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State Digest

Web Admin//October 2, 2000//

State Digest

Web Admin//October 2, 2000//

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Attorney Discipline

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)

Attorney Discipline

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

No. SC-212-00)

Court Administration

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

No. SC-213-00)

Court Administration

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)

Court Administration

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)


of Appeals


Civil Opinions

Civil Procedure

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

as Co-Tenant

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

leased premises.

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)


Civil Opinions

Civil Procedure

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.

Appeal dismissed.


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)

Domestic Relations

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.


Domestic Relations

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)

Real Property

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

logistically possible.


Tracy v. Holtegaard (Olmsted County) (Minnesota Lawyer No. CA-1045-00)

Reemployment Compensation

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)


Criminal Opinions


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

upward departure.

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)

Traffic Violations

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)

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