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Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

 Saint Paul Lawyer
 
 mdouglas@injurylawtwincities.com

 

UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A07-2050

Robert Bonczek,
Appellant,

vs.

City of Minneapolis,
Respondent,

Minneapolis Park and Recreation Board,
Respondent.

KALITOWSKI, Judge
Pro se appellant Robert Bonczek challenges the district court's grant of summary judgment to respondents City of Minneapolis (the city) and Minneapolis Park and Recreation Board (the park board) on appellant's discrimination, retaliation, and excessive-force claims. Specifically, appellant contends that (1) legal counsel for respondent park board acted without authority; (2) the district court improperly denied his motion to extend the discovery period; (3) the district court erred in dismissing his age-discrimination and retaliation claims as time-barred; and (4) the district court erred in dismissing his 42 U.S.C. 1983 excessive-force claims. We affirm.

= = = =

A07-2337

EnComm Midwest, Inc.,
Respondent,

vs.

James M. Larson and Kari L. Larson d/b/a Larson Properties, et al.,
Appellants,

First National Bank of Elk River, et al.,
Defendants.

PETERSON, Judge
Appellant property owners (1) challenge the award of damages, costs, and attorney fees to respondent on its mechanic's-lien claim, arguing that the jury's finding that respondent failed to substantially perform the underlying contract precludes respondent's recovery; (2) argue that the evidence does not support the jury's finding that appellants failed to mitigate damages on their breach-of-contract claim; and (3) challenge the denial of their motion for a new trial. On cross-appeal, respondent challenges the denial of its motion for judgment as a matter of law with respect to appellant's breach-of-contract counterclaim, arguing that the district court's finding that respondent had a valid mechanic's lien on appellant's property was essentially a finding of substantial performance. Respondent also challenges the district court's reduction of the attorney fees awarded. We reverse and remand the award of attorney fees for findings on the reasonable rate for respondent's attorney's services, but otherwise affirm the district court's decision.

= = = =

A08-0019
A08-0020

Kevin Sumstad,
Appellant,

vs.

Mark Edward Wilson, M. D., et al.,
Respondents,

Minnesota Cardiovascular and Thoracic Surgeons, LLC, et al.,
Respondents.

KALITOWSKI, Judge
In this action alleging medical malpractice, appellant Kevin Sumstad challenges the district court's grant of summary judgment to respondent Minnesota Cardiovascular and Thoracic Surgeons, LLC (Thoracic). Appellant also challenges several of the district court's rulings in his medical malpractice action against respondent Dr. Mark Edward Wilson. We affirm.

= = = =

A08-0035

Dr. Ba Lam,
Appellant,

vs.

County of Ramsey, Minnesota, et al.,
Respondents.

STONEBURNER, Judge
A jury found that respondent county did not intentionally or negligently create or maintain a nuisance alleged by appellant landowner and that appellant sustained zero damages. Appellant challenges denial of his motion for judgment as a matter of law or a new trial arguing that the district court erred or abused its discretion by: (1) summarily dismissing his breach-of-contract claim for failure to present evidence of damages; (2) denying his motion to add a claim of punitive damages; (3) dismissing named employees of respondent county; (4) refusing to apply the doctrine of res judicata to bar defenses asserted by respondent; (5) ordering certain discovery; and (6) awarding costs and disbursements. Respondent noticed review of the district court's denial of summary judgment on appellant's nuisance claim. Because the district court did not abuse its discretion in denying appellant's posttrial motions or in awarding costs and disbursements, we affirm.

= = = =

A08-0159

Daniel Treinen, et al.,
Respondents,

vs.

Northern States Power Company
d/b/a Xcel Energy, et al.,
Defendants,

and

Northern States Power Company,
d/b/a Xcel Energy,
Third Party Plaintiff,

vs.

Donovan Construction Company,
third party defendant,
Appellant.

CRIPPEN, Judge
Appellant Donovan Construction Company contends that it is entitled to a new trial in this personal-injury case, arguing that the district court's failure to give a particular instruction to the jury was prejudicial error, that the court erred in prohibiting appellant from introducing into evidence the adverse party's pleadings and interrogatory answers, and that the court erroneously limited appellant's use of these file documents for impeachment purposes. We affirm.

= = = =

A08-0171

In re the Marriage of:
Arlene Harriet Olson, n/k/a
Arlene Harriet Anderson, petitioner,
Respondent,

vs.

Todd Arnold Olson,
Appellant.

BJORKMAN, Judge
Appellant challenges the district court's factual findings underlying its conclusion that his former wife's interest in her family's business was entirely nonmarital. Because the district court's findings are amply supported by the record, we affirm.

= = = =

A08-0178

Randall Arthur Radunz,
Appellant,

vs.

CWF, et al.,
Respondents,

Minnesota Correctional Facility-Faribault,
Respondent.

SHUMAKER, Judge
Pro se appellant challenges the district court's dismissal of his claim against respondent warden of the Minnesota Correctional Facility-Faribault on the pleadings and his claims against the remaining respondents on summary judgment. Appellant asserts that the district court erred in dismissing all of his claims. Because there is no legal basis on which relief can be granted, we affirm.

= = = =

A08-0208

Brian Conover,
Respondent,

vs.

City of St. Paul,
Appellant.

STONEBURNER, Judge
Appellant city challenges a writ of mandamus, arguing that respondent did not have standing to seek the writ and that the district court erred by ordering city to perform duties not clearly imposed by law. Because the district court erred by issuing a writ of mandamus that requires city to perform duties not clearly imposed by law, we reverse.

= = = =

A08-0247

Sang Enterprises, Inc.,
d/b/a Sang Landscape & Design,
Respondent,

vs.

Henry Langer,
Appellant,

Pat Langer,
Appellant.

KALITOWSKI, Judge
In this breach of contract case, appellants Henry Langer and Pat Langer appeal arguing (1) the judgment was not supported by the evidence; (2) the district court erred by not properly considering respondent's misconduct; and (3) the district court erred in denying appellants' motion for a new trial by not including a memorandum with its order. We affirm.

= = = =

A08-0263


In re the Estate of: Marie M. Moldenhauer, Decedent

TOUSSAINT, Chief Judge
This is an appeal from the district court's denial of a petition to probate a September 5, 2003 will executed by decedent Marie M. Moldenhauer. Appellant Charles W. Eginton, Moldenhauer's son-in-law and a named beneficiary of that will, challenges the district court's finding that Moldenhauer lacked testamentary capacity at the time she signed the will. Because that finding is not clearly erroneous, we affirm.

= = = =

A08-0300

Aurelia Tessmer,
Appellant,

vs.

City of Saint Paul,
Respondent.

CRIPPEN, Judge
Appellant Aurelia Tessmer brought an action against the City of Saint Paul, alleging that the city's decision to demolish her property constituted a taking without compensation and violated her right to equal protection. The district court dismissed for lack of subject matter jurisdiction, and we affirm.

= = = =

A08-0306

Deborah N. Ojogwu,
Relator,

vs.

US Bank National Association,
Respondent,

Department of Employment and Economic Development,
Respondent.

STAUBER, Judge
On certiorari appeal from the decision of the unemployment law judge (ULJ) that relator was ineligible to receive unemployment benefits because she had been discharged for employment misconduct, relator argues that the record does not support the ULJ's finding that she was discharged for employment misconduct. We affirm.

= = = =

A08-0309
A08-0310

Northern Border Pipeline Company,
Appellant (A08-309),
Great Lakes Gas Transmission Limited Partnership,
Appellant (A08-310),

vs.

Commissioner of Revenue,
Respondent.

ROSS, Judge
These consolidated appeals require us to decide whether transporters of natural gas should be refunded the state use taxes they paid on gas that they diverted from their pipelines to fuel the compressors that keep the remaining transported gas moving through their pipelines. The district court granted summary judgment in favor of the commissioner of revenue against Great Lakes Gas Transmission Limited Partnership and Northern Border Pipeline Company, refusing to order the commissioner to refund approximately ,500,000 in use taxes that the companies paid on natural gas consumed to fuel their compressors. The district court determined that their compressor-fuel consumption meets the requirements for imposing a use tax under Minnesota Statutes section 297A.63, subdivision 1. Because we conclude that Great Lakes and Northern Border used, purchased, and consumed the compressor fuel in Minnesota, we affirm.

= = = =

A08-0318

Gordon E. Ess,
Relator,

vs.

ALD Enterprises Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

SHUMAKER, Judge
In this certiorari appeal, the pro se relator challenges the unemployment law judge's (ULJ) ruling that he is ineligible to receive unemployment benefits because he was discharged for employment misconduct. Relator argues that his conduct during the course of his employment did not constitute misconduct. Because the evidence supports the ULJ's finding that relator was discharged for employment misconduct, we affirm.

= = = =

A08-0325


In re the Marriage of:
Linda Ann Johnson, petitioner,
Respondent,

vs.

Richard Daniel Johnson,
Appellant.

HALBROOKS, Judge
Appellant challenges an order correcting what the district court characterized as a clerical error in a prior order addressing spousal maintenance. Appellant argues that (1) because any error was not clerical, an alteration of the prior ruling was a modification of maintenance and required a motion to modify and findings to support any modification; and (2) the district court abused its discretion by making maintenance retroactive. Because the district court properly characterized its action as correcting a clerical error and did not abuse its discretion by making maintenance retroactive, we affirm.
= = = =

A08-0389

Valley Paving, Inc.,
Appellant,

vs.

Hampton Township,
Respondent.

JOHNSON, Judge
Valley Paving, Inc., operated an asphalt-mixing plant in Hampton Township between 1999 and 2007, initially based on the informal approval of the township board and later pursuant to an interim-use permit. When its permit expired in 2007, Valley Paving sued the township to establish that (1) the township's informal approval in 1999 was a conditional-use permit that continues to justify its asphalt-mixing operations, (2) the township acted arbitrarily and capriciously in 2007 by refusing to renew the interim-use permit, and (3) the city should be equitably estopped from enforcing its present zoning ordinance. The district court entered summary judgment for the township. For the reasons explained below, we affirm.

= = = =

A08-431

Jayne Fragale,
Respondent,

vs.

Leeds United, L. L. C., et al.,
Appellants.

WORKE, Judge
Appellants challenge an award of attorney fees, arguing that the district court abused its discretion by (1) failing to make findings of fact and conclusions of law; (2) determining that the evidence was sufficient to support the award; (3) failing to require respondent to adhere to the limitations set forth in Minn. R. Civ. P. 33.01(a); (4) failing to grant appellants a continuance; and (5) failing to find that respondent acted in bad faith. We affirm.

= = = =

A08-0498

Renee Harwood,
Relator,

vs.

D.W. Jones Management Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.


STAUBER, Judge
In this certiorari appeal, relator Renee Harwood challenges the decision of the unemployment law judge (ULJ) that she was ineligible to receive unemployment benefits because she quit her employment with respondent D.W. Jones Management, Inc. Relator claims she had good reason to quit because her manager refused to reprimand a tenant for making complaints about her son. We affirm.

= = = =

A08-0734


Lake County,
Appellant,

vs.

William Leslie,
Respondent,

Mary Jo Spencer,
Respondent.

HALBROOKS, Judge

Appellant Lake County challenges the district court's grant of summary judgment to respondents. Because we conclude that a genuine issue of material fact exists as to whether respondents' building is a "dwelling" for purposes of the county's zoning ordinance, we reverse and remand.

= = = =

A08-0812

Gaylord Winfield, et al.,
Respondents,

vs.

Steven W. Kasel, et al.,
Appellants.

HUDSON, Judge
In this property dispute, appellants argue that the district court erred by awarding respondents title by adverse possession. We affirm.

= = = =

A08-0901

In re the Marriage of: Jacqueline Ann Ahlers, petitioner,
Respondent,

vs.

Scott Steven Ahlers,
Appellant.

MINGE, Judge
Appellant challenges the district court's denial of a motion for amended findings and for attorney fees. We reverse and remand.

= = = =

A08-1189

In the Matter of the Welfare of the Children of:
C. M. F. and A. C. R., Parents.

HALBROOKS, Judge
Appellant challenges the termination of her parental rights on the grounds that (1) the record does not support the district court's findings that she failed to satisfy the duties of the parent-child relationship, that her children are neglected and in foster care, and that termination of her parental rights is in the children's best interests; (2) she substantially complied with her case plan and therefore did not fail to correct the conditions that led to her children's placement in foster care; and (3) the district court failed to make findings explaining the causal relationship between the unsatisfied portions of her case plan and her ability to parent. We affirm.

 

 
 
 

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