Officer’s Observations Together with Citizen’s Tip
Where a police officer, after receiving a police radio dispatch relaying a motorist’s
report that a motor vehicle was being driven erratically, observed the same vehicle
cross and recross the fog line, the officer possessed an objective basis for reasonable
suspicion warranting an investigative stop.
Reversed and remanded.
Minnesota v. Richardson (Court of Appeals) (Minnesota Lawyer No. SC-60-01)
Committee on Gender Fairness
Paula M. Schaefer, Director of Planning for Female Offenders, Department of
Corrections, is appointed as a member of the Committee on Gender Fairness to
complete the term of a member who has resigned.
In Re Appointment to the Standing Committee to Implement Recommendations of
the Minnesota Task Force on Gender Fairness in the Courts (Minnesota Lawyer
State Board of Public Defense
Nancy Brostrom Vollertsen is reappointed, as a Supreme Court Representative,
to serve as a lawyer member of the State Board of Public Defense.
In Re Appointment to the State Board of Public Defense (Minnesota Lawyer No.
Funds Placed in Another’s Account
Funds placed by a decedent during her lifetime into a bank account under the
exclusive control of another are presumptively the property of the account holder
and that presumption governs in the absence of a legally supported finding of
fraud, theft, conversion or other wrongful act.
Thus, where decedent and Bienfang resided together with the decedent’s minor son and lived as a family; decedent and Bienfang commingled funds to pay for mutual expenses in Bienfang’s individual checking account; and decedent remained mentally competent in the year prior to her death during which time she made substantial transfers to Bienfang’s checking account and arranged that Bienfang would have custody of the minor child after her impending death; the presumption relieves Bienfang of the burden to prove the decedent’s intent to make a gift and the presumption was not rebutted by the evidence.
In e: Estate of Whish v. Bienfang (Hennepin County) (Minnesota Lawyer No. CA-272-01)
City’s Maintenance of Sewer System
A municipality’s decision not to make major capital improvements to an existing
sewer system is immune from tort liability as a discretionary function.
Thus, even though homeowners who lived in a low-lying area experienced the flooding of their basement with raw sewage following a heavy storm, the District Court erred in identifying the conduct at issue as the city’s knowledge of the amount of sewage in the city system and denying the city’s statutory immunity defense where the conduct at issue is the manner in which the city maintained its sewer system and the city’s decision not to remedy a defect in its sewer system was of a policy-making nature.
Christopherson v. City of Albert Lea (Freeborn County) (Minnesota Lawyer No.
Corporation’s Removal to Conciliation Court
Where a corporation demanded removal from conciliation court to District Court
through its non-attorney vice-president, the District Court did not err by dismissing
the action for lack of jurisdiction because a corporation must be represented
by counsel to file a notice of removal.
Quantum Restoration, a/k/a Quantum Construction, Inc., et al. v. Oakes (Hennepin
County) (Minnesota Lawyer No. CA-274-01)
Debtor / Creditor
Judicial Involvement Mandated for Levy
Where the assignee of a shooting victim’s interest in a judgment caused the
county sheriff to levy on business property of a company believed to be the
“alter ego” of the judgment debtor, the District Court did not err by holding
the levies improper because there was no judicial determination of an “alter
ego” or fraudulent transfer, as is required by statute.
We reject other claims of error.
Jazzville, Inc. v. C&L Asset Group, Ltd. (Ramsey County) (Minnesota Lawyer
Driving and Alcohol
Evidence of Improper Stop Admitted
Even though the court in the driver’s implied consent case suppressed the
evidence of the driver’s alcohol use because it was obtained from an improper
stop, the District Court did not err by admitting the evidence in a hearing
regarding whether the driver’s license should be canceled because he is inimical
to public safety. Applying the exclusionary rule to this type of public safety
hearing would not deter future unlawful police conduct to any significant degree.
Anderson v. Commissioner of Public Safety (Meeker County) (Minnesota Lawyer
Child Support Determined without Obligor’s Appearance
Where father failed to appear at a continued child support hearing and had
consistently refused to disclose information regarding income or employment,
and the District Court received evidence of father’s income in the form of employment
records and the child support officer’s testimony, the District Court reasonably
determined father’s income, his child support obligation under the guidelines,
and his obligation to reimburse the county.
In addition, the District Court did not err by denying a continuance and allowing the hearing to proceed by default.
Abfalter v. Williams (Wright County) (Minnesota Lawyer No. CA-277-01)
Child Support: Obligor’s Income; Deviation
Where (1) the magistrate’s findings regarding father’s average net monthly
income cannot be tied to the record, (2) the magistrate’s conclusion that father
was not voluntarily underemployed did not address the statutory factors and
is not supported by the record, which shows a change to new employment at a
reduced wage, and (3) the magistrate deviated from the child support guidelines
without applying the statutory factors or the proper legal standard, and without
considering father’s other resources from his mother, we reverse and remand
for findings consistent with the record and the law.
Reversed and remanded.
Countryman, n/k/a Schroeder v. Countryman (Anoka County) (Minnesota Lawyer No.
CHIPS Adjudication Reversed; Spanking
Even though father spanks his children with a wooden lath, the District Court
erred by adjudicating the children in need of protection or services (CHIPS)
where there is no evidence that father spanks his children for reasons other
than discipline and there is no evidence of physical injury to the children.
“Minn. Stat. sec. 260C.007 must be broadly interpreted as requiring evidence of physical injury before a child will be found a victim of physical abuse.”
In the Matter of the Welfare of the Minor Children of: J.B.B. and N.F. (Watonwan
County) (Minnesota Lawyer No. CA-279-01)
Teacher Waived Seniority Challenge
Where the parties’ collective bargaining agreement addresses seniority, and
the teacher had failed to grieve his placement on a seniority list according
to the procedures set forth in the collective bargaining agreement, the teacher
waived his right to challenge the seniority dispute at a hearing concerning
his placement on an unrequested leave of absence.
Abeln v. School Board of Independent School District No. 276 Minnetonka (Independent
School District No. 276) (Minnesota Lawyer No. CA-280-01)
Evidence Supports Enforcement
Where a civil engineer sought enforcement of a mechanic’s lien for work performed
surveying and platting lots in a housing development; the engineer presented
evidence that two lots had to be replatted because the owner changed the floor
plans; and the owner presented evidence that the replatting resulted from errors
by the engineer; we defer to the District Court’s credibility determinations
and affirm its enforcement of the mechanic’s lien.
Brandt, d/b/a Brandt Engineering & Surveying v. Johnson-Reiland Construction,
Inc. (Dakota County) (Minnesota Lawyer No. CA-281-01)
Evidence re Inoculation System is Insufficient
Where plaintiff claims to have suffered injury from administration of a flu
shot with the Biojector needle-free injection system but (1) plaintiff has not
identified any design defect in the injection system or any evidence that the
Biojector used to inoculate her was defective, and (2) the mere fact that plaintiff’s
arm was injured after she received a shot with a Biojector is insufficient to
establish causation, the District Court properly granted summary judgment in
favor of the Biojector manufacturer on plaintiff’s product liability claim.
Summary judgment against plaintiff was also proper on plaintiff’s failure-to-warn claim against the manufacturer and her malpractice claims against the nurse administering the injection because the expert affidavit failed to detail the standard of care and causation.
Donovan v. Bioject, Inc., d/b/a Bioject Medical Technology, Inc. (Dakota County)
(Minnesota Lawyer No. CA-282-01)
Violation of Sign Ordinance; Res Judicata Rejected
Where a bookstore erected signs without a conditional use permit required by
zoning ordinances, the township sought removal of the signs and a permanent
injunction on the ground that the bookstore had violated the ordinances, the
bookstore bought an action in federal court challenging the ordinances on constitutional
grounds, and the federal court found the ordinances constitutional, we conclude
that (1) the township was not required to bring its claim that the bookstore
had violated the ordinances as a compulsory counterclaim in the federal case
and (2) res judicata does not bar the township’s claim because the federal and
state cases involved different causes of action.
In addition, this case is not moot or barred under the doctrine of laches.
Mankato Township v. Malcolm, Inc. (Blue Earth County) (Minnesota Lawyer No.
Trucker Hitting Overpass Fails on Negligence Claim
Where a truck owner-operator contracted with a freight-hauling service to
haul cargo; the trucker received inaccurate information as to the height of
the cargo and failed to measure the height of the total load after the cargo
was loaded; and the actual height exceeded that allowed on the route that the
trucker selected and his truck struck a railroad overpass; the District Court
did not err in granting summary judgment against the trucker because, pursuant
to the terms of the parties’ contract, Minnesota statutes and regulations, and
the parties’ course of dealing, no duty of care was owed by the freight-hauling
service to the trucker.
In addition, neither the customer, which ordered the delivery and provided an inaccurate height for the cargo, or the manufacturer, which loaded the cargo, had a duty to measure the height of the load.
Bohman v. Trimodal (Hennepin County) (Minnesota Lawyer No. CA-284-01)
Preventing Occurrence of Wrongdoing; Intoxilyzer Rule
1. Stops to investigate suspected criminal activity include those aimed at
preventing the occurrence
of criminal wrongdoing. Thus, where a driver was suspected
of having engaged in harassing behavior, resulting in a call to police; and
the driver and his vehicle were specifically identified; the stop of the driver’s
vehicle was lawful because the officer had a particular and objective basis
to suspect that the driver had acted wrongfully and that the conduct might be
repeated if the officer did not deter a future occurrence.
2. Where the commissioner originally approved the Intoxilyzer 5000 by rule in 1985; and in 1999 the commissioner issued an order clarifying that the rule approving the original machine extended to the Intoxilyzer 5000, Series 68; we defer to the commissioner’s construction of the original rule and the commissioner’s approval of the Series 68 machine without formal rulemaking.
Schuster v. Commissioner of Public Safety (Freeborn County) (Minnesota Lawyer
Speedy Bench Trial Despite Delay in Court’s Decision
Even though the District Court did not issue its decision for
68 days following defendant’s trial on first degree assault and malicious punishment
of a child, defendant’s right to a speedy trial was not violated where defendant
voluntarily waived her right to a jury trial; the pain and anxiety suffered by
defendant are not serious enough to prejudice a party for speedy trial purposes;
and the District Court issued 100 pages of detailed findings due to the exhaustive
amount of evidence presented.
Although the Court committed plain error when it admitted entire learned treatises
relied on by experts, the error was not prejudicial given the weight of evidence
Minnesota v. Reed (Anoka County) (Minnesota Lawyer No. CA-286-01)
Criminal Sexual Conduct
Friend’s Father in Position of Authority
Where the 17-year old victim was spending the night at the home of her friend
and had often stayed overnight there, defendant was the friend’s father and
had been the victim’s coach over the years, and the victim alleged that defendant
sexually abused her while she was sleeping on the couch, the evidence was sufficient
to convict defendant of fourth-degree criminal sexual conduct because defendant
was in a “position of authority” over the victim.
The District Court did not err by not submitting fifth-degree criminal sexual
conduct to the jury as a lesser-included offense.
Minnesota v. DeLong (Hennepin County) (Minnesota Lawyer No. CA-287-01)
Driving and Alcohol
Open Bottle Confession; Violating Driving Restrictions
Where a driver who was stopped for speeding admitted to the officer that he
had consumed alcohol and thrown his open beer can out the window when he saw
the officer, we find adequate evidence to show the trustworthiness of defendant’s
confession and we affirm his open-bottle conviction because, even though the
officer did not see the beer can or retrieve it, the officer testified that
defendant smelled of alcohol, the preliminary breath test confirmed that defendant
had been drinking, and defendant had unopened beer cans in the car.
However, because intent is an element of the offense of violating driving
restrictions, we reverse defendant’s conviction for that offense where defendant’s
driver’s license did not state the restriction, there is no evidence that defendant
ever saw his driving record which contained the restrictions, and the “Statement
Attesting to Abstinence From Alcohol and Controlled Substances” purportedly
signed by defendant was not properly authenticated.
Affirmed in part, reversed in part.
J. Kalitowski, concurring in part, dissenting in part. The evidence is sufficient
to establish that defendant had notice of the restrictions on his driver’s license
where the District Court inferred that defendant had notice because his defendant’s
driving record clearly forbids any use of alcohol, and this inference was directly
supported by the “Statement Attesting to Abstinence From Alcohol and Controlled
Substances” purportedly signed and initialed in four places by defendant.
Minnesota v. Schmitt (Nobles County) (Minnesota Lawyer No. CA-288-01)
Driving and Alcohol
Officer’s Comments on Consequences of Not Taking Test
Where (1) during the time the driver was waiting for a return call regarding
his attorney, an officer told him that test refusal and test failure were crimes,
and that an attorney cannot counsel a client to engage in criminal conduct,
and (2) after 30 minutes, the driver’s refusal to take a breath test without
speaking to his attorney was interpreted as a refusal, we conclude that the
driver was not denied his right to counsel and that he did not refuse to test
because the officer provoked the refusal. The driver’s testimony does not support
a claim that the officer’s statements caused him to believe that it would be
useless to contact an attorney.
Neck v. Commissioner of Public Safety (Hennepin County) (Minnesota Lawyer No.
Obstructing a Highway
Obstruction of Future Route Not Sufficient
Even though defendants obstructed the unbuilt, future route of Highway 55,
they could not be convicted of petty-misdemeanor obstruction of a highway because
our reading of the statutes and related Constitutional provision convinces us
that the statute applies to trunk highways but not the unbuilt, future route
of a trunk highway.
Minnesota v. Avery (Hennepin County) (Minnesota Lawyer No. CA-290-01)
Stop Deemed Pretextual Based on Driver’s Testimony
Even though an officer testified that he observed the driver’s minivan traveling
at 50 miles an hour on a city street, the District Court did not err in concluding
that the stop was pretextual where (1) both the driver and his passenger testified
that the driver had not exceeded the speed limit and that speeding was impossible
because the minivan was incapable of rapid acceleration and they were required
to stop at every traffic light, and (2)
the District Court’s findings are not
Minnesota v. Spraggins (Hennepin County) (Minnesota Lawyer No. CA-291-01)