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State Digest

Minnesota Lawyer//April 30, 2001

State Digest

Minnesota Lawyer//April 30, 2001




Court Administration

Retired Justices Assigned to Blatz Case

Douglas K. Amdahl has been assigned to sit as the Acting Chief

Justice of the Minnesota Supreme Court in this case. Five retired members of the

court are assigned as acting associate justices to consider and determine the

petition for review and, if review is granted, the appeal on the merits.


Blatz v. Allina Health System, d/b/a HealthSpan Transportation Services (Minnesota

Lawyer No. SC-74-01)

Workers’ Compensation

The decision of the Workers’ Compensation

Court of Appeals is affirmed without opinion.



Schwartz v. Morell Services, Inc. (Workers’ Compensation Court of Appeals) (Minnesota

Lawyer No. SC-75-01)

Workers’ Compensation

The decision of the Workers’ Compensation

Court of Appeals is affirmed without opinion.



Nauber v. Caring Hands Home Care, Inc. (Workers’ Compensation Court of Appeals)

(Minnesota Lawyer No. SC-76-01)


of Appeals


Civil Opinions

Domestic Relations

Attorney Fees in Dissolution Proceeding

1. In a dissolution proceeding, Minn. Stat. sec. 518.14, subd.

1 (2000), allows the District Court to award both need-based and conduct-based

attorney fees. If fees are awarded, the Court must identify whether the award

is based on need, conduct, or both. When an award of attorney fees is based on

both need and conduct, the District Court must identify what portion of the fee

award is attributable to each basis.



In re the Marriage of: Geske, f/k/a Marcolina v. Marcolina (Ramsey County) (Minnesota

Lawyer No. CA-436-01)


Prevailing Wage Act; State Employees

State employees are not the intended beneficiaries of Minnesota’s Prevailing

Wage Act, which requires that laborers on state-funded projects be paid the

prevailing wage in the community, and therefore cannot state a cause of action

under the Act.



Dicks v. Minnesota Department of Administration (Ramsey County) (Minnesota Lawyer

No. CA-437-01)


Contractor as “Additional Insured;” Recovery of Attorney Fees

1. An endorsement covering a contractor’s liability “arising out of”

a subcontractor’s operation does not limit coverage to vicarious liability imposed

upon the contractor due to the subcontractor’s acts or relieve the insurer of

the duty to defend.

Affirmed in part and remanded.


Andrew L. Youngquist, Inc. d/b/a Birtcher Construction Services v. Cincinnati

Insurance Co. (Anoka County) (Minnesota Lawyer No. CA-438-01)


Permissive Driver’s Liability Coverage

1. The insurance contract provided to an automobile garage in this

case effectively provides a lower limit of liability coverage for a permissive

driver’s use of a motor vehicle than for the owner’s vicarious liability for

that use.



State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Insurance

Co. (Hennepin County) (Minnesota Lawyer No. CA-439-01)

Prison Law

Cost-of-Confinement Surcharge on Gifts to Inmates

1. People who send prison inmates gifts of money do not have standing

to challenge the Minnesota Department of Corrections (DOC) policy imposing a

10% cost-of-confinement surcharge on such gifts.



Weber v. Hvass, Commissioner of Minnesota Department of Corrections (Ramsey

County) (Minnesota Lawyer No. CA-440-01)

Public Law

Standard for License Revocation; Procedural Irregularities

1. Where a city charter authorizes the revocation of any license issued

by the city council based on the “good cause” standard, the standard does not

violate due process because (1) ordinary persons do not have to guess at the

meaning of the standard, and (2) the charter read in its entirety indicates

the type of behavior that is prohibited.

Affirmed in part and transferred to the District Court.


Hard Times Cafe, Inc. v. City of Minneapolis (Minneapolis City Council) (Minnesota

Lawyer No. CA-441-01)


Vicarious Liability of Auto Owner; Out-of-State Accident

1. Minn. Stat. sec. 170.54 (2000), which makes a permissive driver

in the state of Minnesota an agent of the owner in case of accident, does not

apply to accidents occurring outside of the state.



Boatwright v. Budak (Hennepin County) (Minnesota Lawyer No. CA-442-01)

Unpublished Civil



Mentally Ill and Chemically Dependent

Where the proposed patient testified that he was arrested twice in four days based

on disagreements with others and that he had struck his landlord’s son, and the

proposed patient suffers from an organic brain disorder, we conclude that clear

and convincing evidence was presented showing the proposed patient posed a substantial

likelihood of physical harm to himself or others and that the District Court did

not err by committing him as mentally ill and chemically dependent.



In the Matter of the Civil Commitment of: Dooley (Hennepin Cou
nty) (Minnesota

Lawyer No. CA-443-01)

Construction Law

Defense and Indemnity Agreement Enforceable

Even though Minnesota statute provides that an agreement to indemnify

a party to a building and construction contract for liability for its own negligent

actions will not be enforced, a defense and indemnity agreement executed between

a contractor and a home manufacturer during the course of litigation does not

fall within the statute and is enforceable.



Lyrek v. Wick Building Systems, Inc. (St. Louis County) (Minnesota Lawyer No.



Failure to Meet Time Limit Immaterial

Even though (1) a provision in a comprehensive purchase and sale agreement

required the buyer to deliver a calculation to the sellers within 45 days after

closing if the buyer sought a post-closing adjustment to the base purchase price,

and (2) the buyer delivered the calculation 35 days late, the District Court

erred in granting summary judgment in favor of the sellers because the 45-day

time limit was not material.

Reversed and remanded.


Beeler v. Katz Enterprises (Minnesota), Inc. (Hennepin County) (Minnesota Lawyer

No. CA-445-01)


Third-Party Beneficiary Claim

Where a developer and a contractor entered into a contract requiring

the contractor to obtain a performance bond and a labor-and-materials payment

bond; the developer and contractor later modified their agreement by change

order and the bond requirements were waived; a subcontractor alleges that it

prepared its bid in reliance on the bond requirements in the developer/contractor’s

contract; and after the contractor failed to pay the subcontractor, the subcontractor

commenced an action against the developer claiming it was a third-party beneficiary

of the developer/contractor’s contract; the District Court erred by dismissing

the subcontractor’s claim against the developer for failure to state a claim

on which relief can be granted because, presuming the facts alleged in the complaint

to be true, the complaint sets forth a legally sufficient claim for relief.

Reversed and remanded.


Hennen Construction Co. v. Pilot Land Development (Wright County) (Minnesota

Lawyer No. CA-446-01)


Collateral Source Rule Barred Evidence

Where the former employee filed a wrongful-termination suit alleging

that he was discharged following a positive drug test, and the jury found that

the employee was discharged in violation of Minnesota statute but suffered no

damages, we conclude that the trial court erred by permitting the employer to

introduce evidence of a workers’ compensation settlement award because the collateral

source ruled barred such evidence, even though the employer was entitled to

present an alternate explanation of why the foreman was terminated (because

he was injured and could not work).

Reversed and remanded.


Kasuske v. Rothers Construction, Inc. (Swift County) (Minnesota Lawyer No. CA-447-01)

Domestic Relations

Child Custody Modification; Guardian’s Fees

1. Where the 1998 dissolution decree awarded the parties joint legal

custody of their two children and awarded father sole physical custody; mother

did not establish that father’s alleged neglect of physical and emotional needs

constituted endangerment; Minnesota courts have not accorded weight to an 11-year-old

child’s custody preference; the guardian ad litem (GAL) stated that mother exploited

or instigated the 11-year-old child’s complaints for her own purposes; and the

GAL stated that both mother’s and father’s positions on various matters can

be supported as legitimate parenting practices; the District Court did not abuse

its discretion by finding that mother did not establish a prima facie case for

modification of physical custody and by summarily denying an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.


In Re the Marriage of: Petroski v. Petroski (Washington County) (Minnesota Lawyer

No. CA-448-01)

Domestic Relations

Child Support: Educational Loans May Support Deviation

When determining whether to deviate from the child support guidelines

based on a debt incurred for the “generation of income” under Minn. Stat. sec.

518.551, subd. d(2), the fact-finder may consider educational loan payments.

Loans for the generation of income are not limited to costs incurred by self-employed

people in meeting their private business obligations.

Reversed and remanded.


Michon v. Bloomquist (St. Louis County) (Minnesota Lawyer No. CA-449-01)

Domestic Relations

Spousal Maintenance Terminated

Where the parties’ 1997 divorce decree provided that husband would

pay wife $500 per month temporary spousal maintenance until the first of several

contingencies, one of which was that wife “is earning a gross income of $26,500

per year;” and on Jan. 3, 2000, wife was promoted and received a pay raise which

constituted an annualized gross income of $31,824; the District Court did not

err by terminating the temporary spousal maintenance as of Jan. 3, 2000, even

though wife had not been earning $26,500 for one year before the termination

took effect.



Simone v. Simone (Ramsey County) (Minnesota Lawyer No. CA-450-01)

Estates and Trusts

Removal of Trust Beneficiary’s Attorney

Where (1) a trust was established for the financial needs of the beneficiary

who has been severely incapacitated both physically and mentally since a 1972

accident; (2) the beneficiary married a caregiver, and her expenses, as caregiver,

are now paid by the trust; and (3) after the marriage, attorney Roban has represented

the beneficiary and his wife in actions against the trustees and in an action

to enable the beneficiary to adopt two of his wife’s three adult children; the

District Court did not
abuse its discretion in granting the petition to remove

Roban as the beneficiary’s attorney because the beneficiary and his wife have

adverse interests and the beneficiary lacks capacity to waive the conflict.



In Re Matter of Mellgren Trust Agreement, et al. (Washington County) (Minnesota

Lawyer No. CA-451-01)


Petition Facially Invalid

Where petitioner alleges that he entered the parking lot of a bar adjacent

to his home in order to invoke his citizen’s arrest powers, and the bar owner

and a group of men threatened him, the District Court did not err by refusing

to grant a hearing or issue a restraining order. The petition is facially invalid

because it does not allege multiple incidents of threatening behavior or a physical

or sexual assault, and the immediacy of harm requirement has not been met where

petitioner had no right to trespass on the bar’s property.



Kreuz v. Pernat (St. Louis County) (Minnesota Lawyer No. CA-452-01)

Unemployment Insurance

Employer’s Appeal Untimely

Where the department determined that the former employee was not disqualified

from receiving benefits and mailed a notice to the parties on Sept. 4, 1999;

no appeal was received by the department within 30 days and the former employee

began collecting benefits; in Jan. 2000, the employer wrote to the department

claiming that it had protested the claim for benefits in a timely manner; and

at the hearing, neither the department nor the employer submitted admissible

testimony or an affidavit regarding the mailing and receipt of a timely notice

of appeal; we conclude that the employer’s appeal was untimely.



Gross v. Post Specialty Co. (Department of Economic Security) (Minnesota Lawyer

No. CA-453-01)

Unemployment Insurance

Misconduct: Dishonesty

Where a supervisor witnessed the employee leave the plant site for

20-30 minutes without permission and without punching out, and when confronted,

the employee gave dishonest answers about his absence, the commissioner’s representative

did not err in concluding that the employee’s dishonesty constituted misconduct

and disqualified him from receiving reemployment benefits.



Edwards v. Longview Fibre Co. (Department of Economic Security) (Minnesota Lawyer

No. CA-454-01)

Unemployment Insurance

Misconduct: Drug Use

Where the employee tested positive for cocaine use on the job; she

was evaluated by a chemical dependency counselor, who recommended that she complete

a treatment and aftercare program; the employee’s own behavior prevented her

from completing that program; and the employee was discharged for violation

of the employer’s drug and alcohol policy; the findings support the commissioner’s

representative’s determination that the employee committed misconduct and is

thus disqualified from receiving unemployment benefits.



Schaeppi v. H.M. Smyth Co. (Department of Economic Security) (Minnesota Lawyer

No. CA-455-01)

Unemployment Insurance

Misconduct: Failure to Report

Where the evidence supports the findings that the employer informed

the employee that he should not return to a specific job site and should call

in to ascertain his work schedule for the following week, that the employee

thereafter failed to ascertain his work schedule, and that the employer had

other work available during the period when the employee failed to call in,

the employee committed misconduct justifying the denial of unemployment benefits.



Pearson v. Ken Streiff Co. (Department of Economic Security) (Minnesota Lawyer

No. CA-456-01)


Criminal Opinions

Drinking and Alcohol

Binding Effect of Issues Determined in

Implied Consent Hearing

1. A prosecuting authority that is given notice and an opportunity

to participate in an implied consent hearing will be collaterally estopped from

opposing the binding effect of an order issuing from that implied consent hearing

at any later DWI hearing involving the same underlying facts and same question

of law.

Certified questions answered.


Minnesota v. Victorsen (Hennepin County) (Minnesota Lawyer No. CA-457-01)

Driving and Alcohol

No Serialized Prosecution for Separate Offenses

Driving with an expired driver’s license is a continuing offense and

does not arise from the same behavioral incident as the offense of driving while

intoxicated (DWI), even where the offenses occur at the same time and place.

Therefore, a conviction on an expired driver’s license charge does not bar prosecution

for DWI under the statute prohibiting serialized prosecution.



Minnesota v. Reimer (St. Louis County) (Minnesota Lawyer No. CA-458-01)

Unpublished Criminal



Permissive-Inference Instruction Proper

Where a deputy discovered a baggie of marijuana in defendant’s

pickup, and the trial court gave a permissive-inference instruction that specifically

cautioned the jury that it “should consider all the evidence presented” and twice

advised the jury that it was “not required” to draw an inference that defendant

possessed the marijuana, the instruction did not constitute reversible error.



Minnesota v. Otterson (Pine County) (Minnesota Lawyer No. CA-459-01)


Excited Utterances Admissible

Where the victim and defendant were in an argument prior to her assault;

the victim was punched, a startling event; an
d minutes later, while bleeding,

she told officers that defendant hit her; the victim’s hearsay statements to

the police were admissible as excited utterances.



Banks v. Minnesota (Ramsey County) (Minnesota Lawyer No. CA-460-01)

Ineffective Assistance

Error Not Prejudicial

Even though trial counsel’s performance was deficient because counsel

failed to object to evidence of defendant’s three burglary convictions, an assault

conviction, an escape conviction, and a reference to a pending misdemeanor charge,

the postconviction court did not abuse its discretion when it determined that

keeping out evidence of these convictions would not have affected the jury’s

verdict where evidence of defendant’s two theft convictions was properly admitted.



Johnson v. Minnesota (Lake County) (Minnesota Lawyer No. CA-461-01)


Defendant’s Failure to Follow Conditions

Where (1) under a plea agreement, defendant agreed to several conditions,

including cooperating fully with a drug task force and being truthful and honest

with all agents; (2) defendant lied to task force agents about his association

with an individual and lied to his probation agent about his methamphetamine

use; and (3) a task force agent testified defendant had not cooperated fully;

the District Court did not abuse its discretion in declining to reduce defendant’s

presumptive sentence pursuant to the plea agreement.



Minnesota v. Efta (Scott County) (Minnesota Lawyer No. CA-462-01)


Defendant’s Failure to Follow Conditions

Where defendant pleaded guilty to controlled-substance crime in the

fifth degree, the District Court’s agreement to a downward departure was conditioned

on defendant’s conduct between the date of the plea and sentencing, defendant

failed to meet the conditions imposed by the Court, and the Court imposed the

guideline sentence, the District Court did not abuse its discretion in denying

defendant’s motion to withdraw his plea.



Minnesota v. Barker, a/k/a Asaad (Ramsey County) (Minnesota Lawyer No. CA-463-01)

Search and Seizure

Illegal Search of Visitor’s Coat

Where defendant was a visitor in a residence that was searched pursuant

to a search warrant; defendant initially was patted down and then told he could

leave; and before he left, officers searched his coat which had been next to

him on the couch and found methamphetamine in a pocket; the District Court did

not err by suppressing evidence of the methamphetamine because defendant was

not named in the warrant and the challenged search was not a limited patdown

to assure officer safety.



Minnesota v. Longsdorf (Washington County) (Minnesota Lawyer No. CA-464-01)


Criminal History Point for Out-of-State Conviction

Where the two-year Massachusetts sentence for defendant’s 1994 firearm

conviction would generate a felony point under Minnesota law, and the conduct

there at issue could result in a sentence of more than one year under both Minnesota

and Massachusetts law, the District Court correctly determined that defendant

should receive a felony point for the out-of-state conviction.

In addition, the District Court did not abuse its discretion in declining

to grant a downward dispositional departure.



Minnesota v. Holloman (Ramsey County) (Minnesota Lawyer No. CA-465-01)

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