Restriction on Areas of Practice to Continue
Even though the attorney has successfully completed the required
one-year of supervised probation subject to numerous conditions, including a restriction
to litigation in the areas of routine debt collection and personal injury, we
decline to lift the practice restriction where the attorney has not submitted
any evidence that he is currently fit to handle matters more complex than routine
debt collection or personal injury on his own.
In Re Petition for Reinstatement to the Practice of Law of Pinotti (Minnesota
Lawyer No. SC-211-00)
Transfer to Disability Status
The attorney is transferred to disability inactive status, and all pending
disciplinary investigations are stayed until the attorney seeks reinstatement.
In Re Petition to Transfer to Disability Status of Jambois (Minnesota Lawyer
Board of Continuing Legal Education
The Hon. Tanya M. Bransford and Deanne L. Magnusson are appointed as members
to the Board of Continuing Legal Education.
In Re Appointments to the Board of Continuing Legal Education (Minnesota Lawyer
Consolidation of Microsoft Antitrust Cases
Microsoft Corporation’s motion to transfer and consolidate antitrust cases
against it before a single District Court judge in Hennepin County is stayed
until after the October 24, 2000 coordination meeting scheduled by a federal
District Court judge to discuss coordination of pretrial proceedings in the
various federal and state court cases.
In Re Minnesota Microsoft Antitrust Litigation (Minnesota Lawyer No. SC-214-00)
Public Access to Attorney Registration Records
Amendments to Rule 9 of the Rules of the Supreme Court for Registration of
Attorneys, concerning public access to attorney registration records, are adopted
effective July 1, 2001.
Order Amending Rule 9 of the Rules of the Supreme Court for Registration of
Attorneys (Minnesota Lawyer No. SC-215-00)
Personal Jurisdiction over Nonresident for Defamatory E-Mail
1. A nonresident who sent one or more allegedly defamatory e-mail messages
to Minnesota recipients did not commit an act within Minnesota for the purpose
of exercising personal jurisdiction under the long-arm statute where the statute
specifically excepts jurisdiction over a defamation action even when an act
committed outside Minnesota causes injury in Minnesota.
2. In addition, the deceptive trade practice statute does not apply to the
nonresident who sent the allegedly defamatory e-mails as part of personal activities,
not in course of business or trade.
Affirmed. Motion granted.
Northwest Airlines, Inc. v. Friday (Dakota County) (Minnesota Lawyer No. CA-1034-00)
Landlord / Tenant
Collateral Attack on Bankruptcy Order; Landlord
1. A bankruptcy court order confirming the sale of a leasehold interest
may not be collaterally attacked in state court.
Thus, where a leasehold interest was held by a corporation and its owner,
individually; the bankruptcy court assigned the corporations’ leasehold interest
to the landlord; and that order of the bankruptcy court was not appealed; we
conclude that the individual owner’s arguments regarding the invalidity of the
assignment constituted an improper collateral attack on the bankruptcy court’s
confirmation order, in part because the individual owner was in privity with
the corporation in the bankruptcy action.
2. Because the landlord also had status as a co-tenant, the landlord may not
be awarded rent when it excluded its co-tenant from access to and use of the
Affirmed in part, reversed in part and remanded.
Balasuriya v. Bemel, d/b/a Triple B Investments (Hennepin County) (Minnesota
Lawyer No. CA-1035-00)
Common Law Claims against Locomotive Manufacturer Preempted
The federal Locomotive Inspection Act preempts state common-law claims
for contribution or indemnity asserted by a railroad carrier against a locomotive
Engvall v. Soo Line Railroad Co., d/b/a Canadian Pacific Railway Co. v. General
Motors Corp. (Hennepin County) (Minnesota Lawyer No. CA-1036-00)
Certified Question not “Doubtful”
The Trial Court erred in certifying for appeal the question
of whether the “voluntary payment doctrine” bars cable television subscribers
from recouping administrative late fees they paid to their cable television company
because, even though the question is important, it is not doubtful where there
is controlling precedent and the applicability of the voluntary payment doctrine
as a defense is based on the specific facts of the case.
Hanson v. Tele-Communications, Inc. (Mower County) (Minnesota Lawyer No. CA-1037-00)
Terminated Distributor is Denied Temporary Injunction
Where (1) a manufacturer terminated its contract with its distributor pursuant
to the terms of the part
ies’ agreement because the distributor had amassed a
debt to the manufacturer of $1 million; (2) the distributor has made no showing
of irreparable harm because the parties’ relationship is solely contractual
and the distributor has a remedy at law and for money damages; and (3) a temporary
injunction would disturb the status quo; the District Court did not abuse its
discretion in denying a temporary injunction to the distributor.
Ledal Italia S.A.S. v. AVEDA Corp. (Anoka County) (Minnesota Lawyer No. CA-1038-00)
Failure to Trace Premarital Interests; Attorney Fee Award
Where the District Court acknowledged that the proceeds of father’s premarital
property were used to finance the parties’ next home but found father failed
to trace his alleged nonmarital interest in the proceeds of the parties’ homestead,
we defer to the District Court’s implicit determination that father’s testimony
was not credible and its decision that father failed to trace his alleged premarital
Father’s inability to pay is not legally sufficient to challenge an award
of conduct-based attorney fees, but, because father lacks the ability to pay
attorney fees, we remand to the District Court with directions to reduce mother’s
fee award by any portion thereof which is solely need based.
Affirmed in part and remanded in part.
In Re the Marriage of: Brown v. Brown (Waseca County) (Minnesota Lawyer No.
Spousal Maintenance; District Court Findings Required
Where (1) husband claimed reasonable monthly expenses of $2,620, and the District
Court found husband’s reasonable monthly expenses to be $2,000, but did not
make findings that explain why it rejected husband’s claim; (2) wife claimed
reasonable monthly expenses of $3,947, and the District Court wholly accepted
wife’s claimed needs, without explanation; and (3) both parties’ needs were
to be based on the same marital standard of living; the District Court’s finding
that husband is not in need of maintenance is conclusory. We remand for adequate
findings, and if necessary, an award of maintenance.
However, the District Court did not abuse its discretion by requiring husband
to share wife’s student loan obligations.
Affirmed in part and remanded.
In Re the Marriage of: Gross v. Gross (Dodge County) (Minnesota Lawyer No. CA-1040-00)
Estates and Trusts
Constructive Trust on Proceeds of CD Inappropriate
Where (1) Irene Lee purchased a $100,000 certificate of deposit (CD) and designated
Motzko and Reynolds as payable-on-death beneficiaries; (2) a few days prior
to her death, Lee signed a handwritten statement and also instructed her attorney
to change the beneficiary on the CD to Joseph Lee; and (3) the bank did not
receive written notification of the change of beneficiary prior to Irene Lee’s
death; the District Court did not abuse its discretion in failing to impose
a constructive trust on the proceeds of the CD because Joseph Lee failed to
present clear and convincing evidence that Motzko and Reynolds would be unjustly
enriched by receiving the CD proceeds.
Lee v. Lake Area Bank (Ramsey County) (Minnesota Lawyer No. CA-1041-00)
False Imprisonment Claim Stemming from 72-Hour Holds; Expert Affidavit
Even though the former patient sued a hospital and psychiatrist for false imprisonment
stemming from two 72-hour holds and a commitment petition filed by the hospital,
the former patient did not need an expert medical affidavit to establish a prima
facie case because the elements of a prima facie case of false imprisonment
are within the knowledge and experience of lay persons. Further, summary judgment
on this claim is improper in view of the affidavit of a legal expert questioning
whether the hospital and psychiatrist met the requirements of the civil commitment
act when they detained the former patient.
The former patient’s medical malpractice claims were properly dismissed for
failure to satisfy the expert affidavit requirements, and her claims of defamation
and intentional infliction of emotional distress are barred by the two-year
statute of limitations.
Affirmed in part, reversed in part and remanded.
Mellett v. Fairview Health Services (Hennepin County) (Minnesota Lawyer No.
Lessee Required to Insure for Lessor’s Negligence
Where (1) the lessee leased a forklift, (2) a lease provision obligated the
lessee to procure liability insurance for bodily injury covering the lessor
for claims arising out of the lessor’s negligence, and (3) the insurance policy
obtained by the lessee provides coverage for the lessor as an “insured,” the
lessee was required to purchase insurance covering claims from the lessor’s
negligence and the insurer has a duty to defend and indemnify on claims of bodily
injury against the lessor.
Reversed and remanded.
Lift-Stak & Stor, Inc. v. Lumbermens Mutual Casualty Co. (Ramsey County)
(Minnesota Lawyer No. CA-1043-00)
Managerial Position Outside Scope of CBA
Where (1) the position of a licensed practical (LPN) who worked as a Unit Coordinator
at a hospital fell within the scope of a collective bargaining agreement (CBA);
(2) the LPN later accepted a position as Director of the Central Service Receiving
Department (CSR) at the hospital; and (3) the CBA specifically excludes managerial
and supervisory employees; the Commissioner of the State Bureau of Mediation
Services did not err in concluding that the CSR Director position is managerial
and consequently excluded from representation by the union even though the LPN
in her position as CSR Director does not supervise and even though the LPN continues
to perform some incidental nursing duties as needed at the hospital.
Minnesota Health Care Union, Service Employees International Union, Local 113,
Minneapolis v. St. Michael’s Hospital and Nursing Home, Sauk Centre (Bureau
of Mediation Services) (Minnesota Lawyer No. CA-1044-00)
Developer’s Alleged Oral Promise Unenforceable
Where (1) the buyers purchased a lot and contracted to build a home in a subdivision
based on the developer’s alleged promise to refrain from building a home on
the portion of the adjacent lot near the buyers’ property line; (2) there was
no written grant of any easement; (3) the preliminary plat shows only the planned
locations for septic systems and drain fields and does not show any definite
restrictions on where homes in the subdivision could be built; and (4) the developer
later undertook construction on the portion of the lot adjacent to the buyers’
property line; summary judgment for the developer was appropriate in part because
there was no reciprocal-negative easement and the parol evidence rule does not
permit consideration of the oral statement and plat.
J. Lansing, dissenting. Summary judgment was inappropriate on the buyers’ misrepresentation
claim where, read in the light most favorable to the buyers, the record demonstrates
that the developer told the buyers that he couldn’t build a house on
the portion of the lot nearest to their land because it was not physically or
Tracy v. Holtegaard (Olmsted County) (Minnesota Lawyer No. CA-1045-00)
State’s Recovery of Benefits after Misconduct Determination
Where the former employee received unemployment benefits following discharge;
the commissioner’s representative later determined that the former employee
was disqualified because he was terminated for misconduct; and the former employee
failed to pay back the benefits he had received; the department may satisfy
the debt owed to it by garnishing the former employee’s income tax refund, pursuant
to the Revenue Recapture Act.
Kelly v. Commissioner of Economic Security (Department of Economic Security)
(Minnesota Lawyer No. CA-1046-00)
Arrest for Misdemeanor Driving after Suspension
Even though defendant was cited for driving after suspension
and for an unlawful act relating to a driver’s license, police appropriately placed
defendant under arrest for driving after suspension where the officer could reasonably
have concluded that (1) arrest was necessary to prevent the further criminal conduct
of driving after suspension because defendant was alone in the car on an interstate
highway; and (2) there was a substantial likelihood that defendant would fail
to respond to a citation based on defendant’s evasive conduct and his driving
record which indicated he had previously failed either to appear or to pay a fine
when presented with a choice to do either.
In addition, the warrantless search of the car was a valid inventory search.
Reversed and remanded.
Minnesota v. Olson (Carlton County) (Minnesota Lawyer No. CA-1047-00)
Impeachment by Prior Conviction; Upward Departure
Where (1) defendant was charged with fourth-degree criminal sexual
conduct stemming from the sexual abuse of his girlfriend’s daughter in the apartment
that he shared with his girlfriend; (2) defendant had a prior felony conviction
of second-degree criminal sexual conduct; (3) the facts of the prior incident,
which involved an assault on defendant’s former girlfriend, are sufficiently
different to minimize any potential prejudicial effect; and (4) defendant’s
credibility would have been a central issue in this case had he chosen to testify;
we conclude that the District Court did not abuse its discretion in ruling that
the prior conviction was admissible for impeachment purposes.
Although defendant’s prior conviction is an aggravating factor that may be
used as a reason for an upward departure and some aggravating factors are present,
the District Court’s imposition of a greater-than-triple upward departure from
the presumptive sentence was an abuse of discretion in part because no weapons
were used, no physical injury was caused, no threats were made, and no touching
occurred beneath the victim’s underclothes. We modify the sentence to a double
We also conclude that the prosecutor’s comments during closing argument did
not constitute misconduct.
Affirmed as modified.
Minnesota v. Hopson (Hennepin County) (Minnesota Lawyer No. CA-1048-00)
Prior Juvenile Offense Admissible to Establish Elements
Where defendant was charged with first-degree aggravated robbery and
tampering with a witness who previously had provided police with information
which led to defendant’s 1998 juvenile adjudication for assault and robbery,
the District Court did not commit plain error in allowing the state to introduce
evidence of the 1998 offense because some evidence of the prior offense was
necessary for the state to prove the tampering charge and testimony was limited
to the basic facts about the previous incident.
Further, although it was improper to permit argument that the prior offense
could be used to assess defendant’s credibility, these statements did not substantially
affect the verdict.
Minnesota v. Kangas (St. Louis County) (Minnesota Lawyer No. CA-1049-00)
Order for Protection Violation
“Knowing” Violation not Required
Where (1) defendant was charged with violating an order for protection
which excluded defendant from the restaurant where his former girlfriend worked;
(2) defendant defended on the basis that he believed the order only prevented
him from patronizing the restaurant when his former girlfriend was working;
and (3) in closing argument, defense counsel argued that the state had to prove
beyond a reasonable doubt that defendant “knew being at [the restaurant] at
any time was il
legal;” the District Court did not err in refusing a requested
jury instruction that required defendant to “knowingly” violate the terms of
the protective order or in its corrective instructions following closing arguments,
because violation of an order for protection is not a specific-intent crime.
J. Anderson, concurring specially in the result.
Minnesota v. Peltier (Ramsey County) (Minnesota Lawyer No. CA-1050-00)
Upward Durational Departure; Criminal Sexual Conduct
Where defendant pleaded guilty to second-degree criminal sexual conduct
stemming from sexual abuse of his girlfriend’s daughter, who was between five
and six years old at the time of the abuse; defendant violated the victim’s
“zone of privacy” by assaulting her in her own bed, in her home; and the victim
suffered significant emotional trauma as a result of the abuse; the District
Court did not clearly abuse its discretion in sentencing defendant to 70 months,
a ten-month limited upward durational departure.
Defendant’s “argument that his status as an irregular guest of the victim’s
mother somehow deprives the victim of her expectation of a zone of privacy is
completely without merit.”
Minnesota v. McClinton (Ramsey County) (Minnesota Lawyer No. CA-1051-00)
Upward Durational Departure for Drug Offense Unsupported
Where, pursuant to his guilty plea, defendant pleaded guilty to one
count of the sale of crack cocaine in the third degree, execution of his sentence
was stayed for a year, and the parties agreed that they could argue whether
defendant should receive an upward durational departure; we conclude that the
District Court abused its discretion by sentencing defendant to a 16-month upward
durational departure from the 33-month presumptive guidelines sentence. An upward
departure is not justified on the basis that it gives a defendant an incentive
to complete probation, and the state’s agreement to merge two counts of third-degree
controlled substance crime in exchange for the guilty plea “is wholly distinct
from the manner in which the crimes were committed and does not support an upward
Affirmed as modified.
Minnesota v. Maldonado (St. Louis County) (Minnesota Lawyer No. CA-1052-00)
School Bus Statute Constitutional
Where (1) defendant was cited for failing to stop for a school bus
that was stopped with its stop signal arm extended and its lights flashing;
(2) defendant was driving in the left-hand northbound lane of a four-lane road
divided by double yellow lines and the bus was in the right-hand southbound
lane; and (3) Minn. Stat. sec. 169.444, subd. 4 provides that drivers approaching
a bus on a “separated roadway,” defined as “a road that is separated from a
parallel road by a safety isle or safety zone,” need not stop; the District
Court did not err in rejecting defendant’s arguments that the statute deprived
her of equal protection and was void for vagueness.
Minnesota v. Green (Stearns County) (Minnesota Lawyer No. CA-1053-00)