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These opinions were released March 9. They will appear in the March 16 print edition of Minnesota Lawyer.

Court of Appeals Digest: March 9

Unpublished Civil Opinions

Amendment of Pleadings – Court’s Discretion

Appellants challenged the District Court’s summary judgment on their medical-malpractice action, arguing that the District Court abused its discretion by allowing respondents to amend their answer to include a statute-of-limitations defense. Appellants argued that the District Court should not have allowed the amendment because respondent waived the statute-of-limitations defense by not including the defense in its original answer. The Court of Appeals concluded that respondent’s failure to include the statute-of-limitations defense in its original answer did not preclude it from obtaining leave of the court to amend the answer to include the defense. The court held that the District Court did not abuse its discretion in allowing the amendment. Affirmed.

A14-0773 Moore v. Park Nicollet Methodist Hosp. (Hennepin County)

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Breach of Contract – Summary Judgment

Appellant construction company challenged summary judgment in favor of respondent insurer, arguing that the District Court erred by ruling that its breach-of-contract, promissory-estoppel, and unjust-enrichment claims failed as a matter of law. The District Court granted summary judgment to respondent on appellant’s contract claim on two grounds—because appellant lacked standing as a third party to the insurance contract and for lack of contract formation. With respect to standing, the District Court ruled that appellant cannot maintain a direct action for breach of contract against respondent in the absence of a judgment against its insured. The Court of Appeals held that courts will not allow third parties to maintain a direct action against an insurer until the third party has a judgment against the insured. Affirmed.

A14-1085 Mavco, Inc. v. Am. Family Mut. Ins. Co. (Hennepin County)

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Civil Commitment – Mentally Ill & Dangerous; Sufficiency of the Evidence

Appellant appealed from his commitment as mentally ill and dangerous (MID). Appellant argued that the District Court erred in concluding that he met the statutory requirements for MID and that there was no less-restrictive alternative available to his initial commitment to a secure treatment facility. The Court of Appeals concluded that there was clear and convincing evidence that appellant committed an overt act and the District Court did not err in concluding that appellant was substantially likely to engage in future dangerous acts. Affirmed.

A14-1837 In re Civil Commitment of Pendleton (Kandiyohi County)

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Domestic Relations – Child Custody; Modification

On appeal from the District Court’s decision to modify child custody, appellant-mother argued that the District Court abused its discretion because its decision was unsupported by the record. The District Court had concluded that (1) there was a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangered her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment was outweighed by the advantage of change. The Court of Appeals reviewed the record and found sufficient support for each holding. Affirmed.

A14-0687 Christian v. Busch (Anoka County)

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Domestic Relations – Dissolution; Tax Issues

On appeal in this marital dissolution action, appellant-wife argued that the District Court abused its discretion by (1) dividing between the parties the tax dependency exemptions for their children and (2) awarding damages post-decree for appellant-wife’s failure to make payments on respondent-husband’s credit card during the pendency of the dissolution. The Court of Appeals concluded that the District Court’s finding that it had reserved the tax-dependency exemption issue was supported in the record, and therefore the District Court did not abuse its discretion by resolving the issue post-decree. The Court reversed the post-decree damages award but otherwise affirmed. Affirmed in part and reversed in part.

A14-1506 Jacobson v. Jacobson (Dakota County)

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Domestic Relations – Parenting Time; Modification

Appellant challenged the District Court’s denial of his motion to expand his parenting time. Appellant argued that the provision in the stipulated dissolution judgment concerning 50-50 parenting time “should be enforced.” But the Court of Appeals noted that appellant made no assertion that the stipulated provision created a binding or enforceable legal obligation. Appellant contended that the language of the judgment was “clear and unambiguous.” The Court of Appeals agreed, but it did not support father’s argument. The judgment was explicit that parenting time shall be “reviewed” after one year, and that the review shall be based upon the best-interests-of-the-child standard. Affirmed.

A14-0978 Kuehl v. Kuehl (Martin County)

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Jurisdiction – First-Filed Rule

Pro se appellant, special administrator of a probate estate in Ramsey County District Court, challenged the dismissal of a lawsuit he filed against respondent in Dakota County District Court, seeking to recover funds allegedly diverted from the estate. Appellant argued that the Dakota County District Court erred by concluding that it did not have subject-matter jurisdiction and that appellant failed to state a claim upon which relief could be granted. The Court of Appeals concluded that, because the conversion and probate actions involved the same parties and claims, and the probate court exercised jurisdiction first, the Dakota County District Court did not abuse its discretion in deferring to the probate court’s exercise of jurisdiction. However, because the District Court declined to exercise jurisdiction, it should not have reached the merits of appellant’s complaint and dismissed it with prejudice. Affirmed as modified.

A14-1101 Voita v. Parrish (Dakota County)

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Minnesota Family Investment Program – Timely Appeals

Appellant challenged the District Court’s dismissal of her appeal for lack of subject-matter jurisdiction because of her failure to timely serve respondents Commissioner of the Minnesota Department of Human Services and Carver County. The Court of Appeals concluded that appellant failed to serve the commissioner and Carver County within the permitted timeframe of Minn. Stat. sec. 256.045, subd. 7. Affirmed.

A14-1704 Powell v. Comm’r of Minn. Dep’t of Human Servs. (Carver County)

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Municipal Liability – Third-Party Suppliers

Respondent city contracted contractor to install a boiler in a city facility. Contractor arranged to purchase a boiler from appellant and installed it, but contractor filed for bankruptcy and failed to pay appellant for the boiler. Appellant sued the city for payment on the theory that the Public Contractors’ Performance and Payment Bond Act made the city liable to pay appellant for contractor’s debt. The District Court dismissed appellant’s suit. Appellant appealed, arguing that a public body is liable to subcontractors and suppliers under the act whenever it fails to obtain a payment bond from the general contractor. The Court of Appeals concluded that the statute establishes municipal liability to third-party suppliers only when the statute requires a payment bond, and the statute required no bond in this case. Affirmed.

A14-1144 Goodin Co. v. City of Prior Lake (Scott County)

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Negligence – Duty

Appellant was injured at work when he was electrocuted. He sued the utility that owned and maintained the power line that was the source of the electrical current that caused his injuries. The District Court granted the utility’s motion for summary judgment. The Court of Appeals noted that a duty would exist only if respondent’s own conduct created a foreseeable risk of injury to a foreseeable plaintiff. The Court of Appeal concluded that, on the day of the accident, respondent was merely passive, which was nonfeasance and did not give rise to a duty of care. Affirmed.

A14-0047 Wenker ex rel. Wenker v. Xcel Energy, Inc. (Hennepin County)

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Probate – Final Accounting

Prison inmate appellant contested the administration of his deceased mother’s estate. The District Court allowed the settling of the estate after appellant’s sisters, acting as personal representatives, gave a final accounting of the estate property. The Court of Appeals denied appellant’s motion to add new documents to the record on appeal because accepting the documents was neither necessary nor proper. It concluded that appellant’s arguments claiming error did not persuade it. Affirmed.

A14-1306 In re Estate of Norman (Cass County)

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Special Elections – Substantial Compliance

Appellant challenged the District Court’s dismissal of his challenge to the results of a special election held by respondent school district on a bonding proposal. The Court of Appeals concluded that the District Court (a) found that the school district’s errors were not the result of bad faith and did not have an impact on the election, and those findings were determinative, and (b) did not err in its application of the law. The court previously announced its decision by order, and here set out its reasoning for that decision in opinion form. Affirmed.

A14-2167 Kranz v. Sibley East Pub. Schools (In re Contest of Special Election held on Nov. 4, 2014) (Sibley County)

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Trusts – Payments

In this appeal after remand in a trust-administration dispute, appellant asserted that the District Court erred in the way in which it applied a stipulated payment that was made before the first appeal in this matter to the final judgment as amended after remand. Appellant argued, based on the language of the parties’ stipulation, that any liability she had in this matter was satisfied by the $650,000 payment made in lieu of a supersedeas bond. Much of appellant’s argument turned on her contention that the original judgment is a distinct judgment from the amended and second amended judgments. The Court of Appeals noted that appellant cited no legal authority for the proposition that an amended (or second amended) judgment is a distinct judgment from the original judgment in this context, and the court was aware of none on point. It concluded that the District Court properly concluded that the amended and second amended judgments were part of “the judgment” contemplated by the parties’ stipulation. Affirmed.

A14-0791 Evans v. Smith (In re Baker Trust) (Dakota County)

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Underinsured Motorists – Statute of Limitations

In this appeal from a summary judgment dismissing as time-barred appellant’s breach-of-contract action against her uninsured-motorist insurer, appellant argued that although she did not commence her action within six years after her motor-vehicle accident, the action was not barred by the six-year statute of limitations because she brought the action less than one year after respondent insurer breached its contract by failing to pay her uninsured-motorist claim. The Court of Appeals held that a UM claim accrues on the date of the accident when, on the date of the accident, the at-fault driver did not have insurance. Affirmed.

A14-1189 Hegseth v. Am. Family Mut. Ins. Group (Hennepin County)

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Unemployment Benefits – Employment Misconduct

Relator appealed the decision of the unemployment-law judge (ULJ) that she was ineligible for unemployment benefits because she was discharged for employment misconduct. Relator worked for respondent health care provider as a customer-service representative. Relator was discharged after accessing a patient’s confidential information. The Court of Appeals concluded that the ULJ did not err by determining that relator was ineligible for unemployment benefits because she committed employment misconduct. Affirmed.

A14-1302 Eiden-Kellam v. Mayo Clinic Health Sys. – Fairmont (Dep’t of Emp’t & Econ. Dev.)

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Unemployment Benefits – Employment Misconduct

Relator challenged the unemployment law judge’s (ULJ) decision that she was ineligible for unemployment benefits because she was discharged for employment misconduct, arguing that her conduct constituted ordinary negligence and was not a serious violation of the standards of behavior expected by her employer. Relator was employed by respondent as a school bus driver. Relator was dismissed from employment because she twice left a child on the bus after she failed to complete the required walkthrough. The Court of Appeals held that relator’s conduct demonstrated deliberate disregard for her employer’s interests and could have endangered the safety of the children on her bus. The court therefore concluded that the ULJ correctly determined that relator’s actions constituted employment misconduct. Affirmed.

A14-0778 Johnson v. Minneapolis Special School Dist. #001 (Dep’t of Emp’t & Econ. Dev.)

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Unemployment Benefits – Employment Misconduct

By certiorari review, relator challenged the decision of an unemployment-law judge (ULJ) that she was ineligible for unemployment benefits because she was discharged for employment misconduct. She argued that the employer failed to provide evidence that she frequently made mistakes or failed to perform her duties; that her conduct was at most unsatisfactory or the result of good-faith errors in judgment; and that she was discharged only after the board of directors was advised of the employer’s unethical conduct. Relator was employed as a bank teller and was discharged because errors had occurred on the teller line for which relator had responsibility, and other employees had complained that relator was not cooperating in working with the tellers and identifying errors. The Court of Appeals concluded that the ULJ’s findings were supported by substantial evidence and supported the ULJ’s determination that relator’s work performance and failure to follow directives amounted to employment misconduct. Affirmed.

A14-1381 Medal v. Agassiz Fed. Credit Union (Dep’t of Emp’t & Econ. Dev.)

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Unemployment Benefits – Quit

Relator challenged the determination of the unemployment law judge (ULJ) that she was ineligible for employment benefits, arguing that the record did not support the ULJ’s finding that she quit her employment. The Court of Appeals did not find any error in the ULJ’s credibility determinations and concluded that the ULJ’s factual findings were supported by substantial evidence. Affirmed.

A14-0967 Acker v. Inter City Oil Co. (Dep’t of Emp’t & Econ. Dev.)

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Unpublished Criminal Opinions

Controlled Substance Sale – Sufficiency of the Evidence

Appellant challenged his conviction of second-degree sale of a controlled substance, claiming the circumstantial evidence was insufficient to sustain his conviction and that he was deprived of his right to a fair trial when the prosecutor made improper statements during closing arguments. The Court of Appeals noted that multiple witnesses saw the crack cocaine on the floor only after appellant was taken to the ground. The testimony indicated the cocaine spilled upon the ground, consistent with appellant’s struggle with the officers. Other circumstances, including the cash found on appellant and a witness’s testimony that she believed he was selling drugs out of the apartment, were consistent with his sales conviction. Considering the entirety of the circumstances and resolving factual disputes in favor of the jury’s verdict, the Court of Appeals conclude that the state met its burden of proving appellant’s guilt beyond a reasonable doubt. Furthermore, the prosecutor did not commit misconduct. Affirmed.

A14-0262 State v. Gentry (St. Louis County)

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Controlled Substance Sale – Sufficiency of the Evidence

In this appeal following three convictions of controlled-substance crimes, appellant argued that the convictions must be reversed because the evidence was insufficient to prove that he sold cocaine to a confidential informant and that he must be resentenced for his conviction of a third-degree controlled-substance crime because the sentence imposed was for a first-degree controlled-substance crime. Appellant did not dispute that the evidence was sufficient to show that the CI obtained crack cocaine during the controlled buys, but he argued that the evidence was not sufficient to show that the CI obtained the cocaine from him. The Court of Appeals concluded that the evidence was sufficient to prove beyond a reasonable doubt that the cocaine that the CI gave to police after each buy was obtained from appellant. The Court remanded for resentencing though. Affirmed in part, reversed in part, and remanded.

A14-0743 State v. Watson (Ramsey County)

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Criminal Sexual Conduct – Sufficiency of the Evidence

Appellant challenged her fifth-degree criminal-sexual-conduct conviction, arguing that the evidence was insufficient to show that her “intimate parts” made contact with the complainant. The victim, the owner of a drug store, was kneeling at the end of an aisle straightening products on a bottom shelf, appellant approached him from behind, rubbed her genital area against his back, and asked a vulgar question. Appellant conceded that the contact was nonconsensual and that she acted with sexual intent. She argued, however, that the state failed to prove that she touched her “intimate parts” to the victim’s back. She asserted that she has a “protruding stomach” that prevented her “intimate parts” from making contact with the victim. The Court of Appeals concluded that direct and circumstantial evidence supported appellant’s conviction. Affirmed.

A14-0971 State v. Butcher (St. Louis County)

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Expert Testimony – Frye-Mack Standard

Appellant challenged his convictions of second-degree criminal sexual conduct, arguing, inter alia, that the District Court erred by excluding his expert witness from testifying about a sleep disorder diagnosis known as sexsomnia. The District Court determined that there was insufficient foundational reliability to admit the evidence at trial because the expert did not comply with relevant safeguards and controls in formulating his diagnosis. The Court of Appeals concluded that the District Court’s decision to exclude the testimony based on relevant factors was not an abuse of its discretion. Affirmed.

A13-1792 State v. Uldrych (Hennepin County)

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Guilty-Plea Withdrawal – Voluntary & Intelligent

Appellant sought to withdraw two guilty pleas, arguing that a manifest injustice existed because the pleas were neither voluntary nor intelligent. Appellant argued that his pleas were not voluntary because he only pleaded guilty after the District Court informed him that he would be held in custody until a contested omnibus hearing date three weeks later. The Court of Appeals concluded that the record did not support this claim. Affirmed.

A14-1172, A14-1173 State v. Malik El (Dakota County)

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Hearsay – Excited Utterance

Appellant challenged his conviction of felony domestic assault, arguing that the District Court committed reversible error by admitting unobjected-to hearsay evidence of the complainant’s prior inconsistent statement to police. Appellant argued that the District Court committed plain error by admitting the victim’s prior inconsistent hearsay statement to police through the officer’s testimony as substantive evidence. The Court of Appeals concluded that the prior inconsistent statement was admissible under the excited-utterance exception to the hearsay rule. Affirmed.

A14-0695 State v. Carter (Ramsey County)

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Murder, Attempted – Probable Cause

The state challenged the District Court’s dismissal of four counts of attempted first-degree murder and two counts of attempted first-degree damage to property for lack of probable cause, arguing that the District Court erred in holding that probable cause did not exist to believe that respondent took a substantial step toward the commission of the offenses. The Court of Appeals concluded that, under Minnesota law, the District Court did not err in concluding that appellant did not commit a substantial step toward commission of the offenses. Affirmed.

A14-1410 In re Welfare of J.D.L. (Waseca County)

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Postconviction Relief – Timeliness

In this postconviction appeal, appellant argued that he was entitled to withdraw his guilty plea because the District Court erred by dismissing his postconviction petition based on the time limits set forth in Minn. Stat. sec. 590.01, subd. 4. The Court of Appeals, considering relevant caselaw, the District Court did not abuse its discretion when it considered the two-year time-bar. Although it was not clear why the state did not argue the time-bar defense, this court cannot find that the state deliberately waived the defense. Affirmed.

A14-1379 Phongvixay v. State (Cottonwood County)

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Postconviction Relief – Timeliness

On appeal from the denial of his postconviction petition, appellant argued that the District Court abused its discretion by concluding that the petition was time-barred and by denying his request for an evidentiary hearing. Appellant argued that because no one was aware of the deficiencies at the SPPDCL testing center until 2012, the information regarding these problems is newly discovered evidence. The Court of Appeals disagreed, noting that it had recently affirmed the denial of another postconviction petition brought by appellant arising out of his separate 2005 drug conviction, in which he similarly alleged that the SPPDCL problems constituted newly discovered evidence that operate as an exception to the time-bar. Affirmed.

A14-0822 Roberts v. State (Ramsey County)

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Probation Revocation – Valid Conditions

In this probation-revocation appeal, appellant argued that the District Court erred by revoking his probation for failing to complete chemical-dependency treatment where treatment was never imposed as a condition of probation and where the need for confinement does not outweigh the policies favoring probation. The Court of Appeals concluded that the District Court erred by revoking appellant’s probation for a violation of a condition that had not been imposed. Reversed.

A14-1350 State v. Venton (Ramsey County)

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Rape-Shield Rule – Complete Defense

Following his convictions for first- and second-degree criminal sexual conduct, appellant challenged two evidentiary rulings by the District Court. He argued that the District Court abused its discretion in excluding evidence of the victim’s sexual history, as the evidence was relevant and prevented appellant from presenting a complete defense, and in allowing a police officer to testify as an expert concerning delayed reporting of sexual abuse. The Court of Appeals concluded that the District Court correctly applied Rule 403, and its ruling was well within the discretion afforded to it by the law. Affirmed.

A14-0741 State v. Sanchez (Stearns County)

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Searches – Emergency-Aid Exception

In this pretrial prosecution appeal, appellant State of Minnesota argued that the District Court erred by granting respondent’s motion to suppress evidence obtained as a result of the search of his house. The District Court concluded that the state met its burden of showing that the police officers’ warrantless entry into respondent’s house was justified by the emergency-aid exception to the warrant requirement because they “had both objectively and subjectively reasonable grounds to believe that there was an emergency at hand and an immediate need for the protection of life or property.” But the District Court sua sponte concluded that the search of respondent’s oven was outside the scope of the emergency-aid exception because an officer shined his flashlight into the oven to see the marijuana inside the oven. The Court of Appeals concluded that it would not consider whether the District Court erred by determining that the officers’ search of respondent’s oven exceeded the scope of the officers’ warrantless entry into the house under the emergency-aid exception because the District Court erred by sua sponte considering that issue. Reversed and remanded.

A14-1245 State v. Jacobs (Ramsey County)

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Sentencing – Criminal History Score

Appellant challenged his sentence, arguing that the District Court abused its discretion by imposing a sentence of the same length on remand even though it decreased his criminal history score by one point. The Court of Appeals concluded that, under the circumstances present here, the District Court acted within its broad discretion in imposing the same sentence on remand. Affirmed.

A14-1098 State v. Gustafson (Hennepin County)

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Sentencing – Dispositional Departures

Appellant challenged his sentence, arguing that he should have been granted a dispositional departure because he was amenable to probation and because most first-time failure-to-register offenders receive dispositional departures. The Court of Appeals concluded that appellant’s circumstances did not demonstrate that the District Court abused its discretion by sentencing him to prison. Affirmed.

A14-0975 State v. Ojanen (St. Louis County)

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