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These opinions were released June 21. They will appear in the June 27 print edition of Minnesota Lawyer.

Court of Appeals Digest: June 21

Civil Published


Underinsured Motorist Benefits


Following a bench trial on appellant-insured’s claim of unreasonable denial of underinsured motorist (UIM) benefits pursuant to Minn. Stat. § 604.18, appellant challenged the District Court’s taxable costs award, arguing that the District Court misinterpreted the phrase “proceeds awarded” in Minn. Stat. § 604.18, subd. 3(a)(1). The Court of Appeals held that, in calculating the amount of a discretionary taxable costs award under said statute for an insurer’s unreasonable denial of underinsured motorist benefits to an insured, the term “proceeds awarded” means the amount of the judgment entered by the District Court as underinsured motorist benefits. Affirmed.

A15-1438 Wilbur v. State Farm Mut. Auto. Ins. Co. (Hennepin County)


Civil Unpublished


Boundary Disputes

Adverse Possession

After a court trial in this boundary dispute, appellant challenged the District Court’s determination that he failed to meet his burden of proving (1) adverse possession, (2) trespass or an appropriate measure of damages for trespass, and (3) prescriptive easement. Appellant argued that, because testimony at trial clearly shows that no interested party was aware that a boundary-line issue existed until after the statutory 15-year time period passed and because appellant’s predecessor in interest, used the property as if it were his own, appellant satisfied all the elements of adverse possession. The District Court determined that a close familial relationship existed and applied an inference, if not a presumption, of permissive use. The Court of Appeals agreed, and held that appellant failed to affirmatively show, by clear-and-convincing evidence, that predecessor’s use of the land was hostile. Affirmed.

A15-1810 Besemann v. Weber (Itasca County)


Civil Commitment

SDP; Discharge

Appellant challenged the District Court’s denial of his motion under Minn. R. Civ. P. 60.02 for relief from the District Court’s 2008 order indeterminately committing him to the Minnesota Sex Offender Program as a sexually dangerous person. The Court of Appeals held that appellant’s rule 60.02 motion was barred by the exclusive transfer-or-discharge remedies of the Minnesota Commitment and Treatment Act. Affirmed.

A15-2083 In re Civil Commitment of Holmquist (Todd County)


Civil Commitment

SDP; Discharge

Appellant, committed as a sexually dangerous person, challenged the denial of his motions for relief, arguing that the District Court abused its discretion in denying his Minn. R. Civ. P. 60.02 motion and in denying his motion for a preliminary injunction and a temporary restraining order. The Court of Appeals held that a motion under rule 60.02 for relief from judgment was not an appropriate means of challenging SDP commitment or seeking discharge. Affirmed.

A15-2054 In re Civil Commitment of Stevens (Goodhue County)


Domestic Relations

Child Custody; Modification

Appellant challenged the denial of his motion to modify custody of the parties’ children, arguing that the District Court erred in considering allegations in respondent’s affidavit and in failing to grant an evidentiary hearing and abused its discretion in determining that appellant failed to make a prima facie case for modification of custody, not giving appellant the statutory 25 percent of parenting time, and awarding attorney fees to respondent sua sponte. The Court of Appeals held that the record refuted appellant’s argument that the District Court impermissibly relied on respondent’s affidavits rather than on appellant’s affidavits and the District Court did not abuse its discretion in determining that appellant failed to make a prima facie case for modification of custody or in awarding parenting time. Furthermore, the District Court’s award of $1,000 in attorney fees incurred in responding to a second motion to modify custody filed two months after a previous motion had been denied was not an abuse of discretion. Affirmed.

A15-1684 Sullivan v. Sladek (St. Louis County)


Domestic Relations

Parenting Time; Findings

In this parenting time dispute, pro se appellant father argued that the District Court made findings that were unsupported by the record, abused its discretion by suspending his parenting time and by admitting into evidence an affidavit by the minor child, erred by relying on the guardian ad litem’s report, and violated his constitutional and other rights. The Court of Appeals held that findings were supported by the record, temporary suspension of appellant’s parenting time for endangering the child’s physical or emotion health was warranted, admission of the affidavit and guardian ad litem’s report was permitted, and the District Court did not otherwise violate appellant’s rights. Affirmed.

A15-1728 Rubey v. Vannett (Washington County)


Domestic Relations

Termination of Parental Rights; Palpable Unfitness

In this appeal from an order terminating her parental rights, appellant argued that the District Court clearly erred by finding that she failed to rebut the presumption of palpable unfitness to parent because she was not allowed sufficient time to complete her case plan and attain sobriety. Appellant was presumed to be palpably unfit to parent because her parental rights to her other children were previously involuntarily terminated. The Court of Appeals held that substantial evidence in the record supported the District Court’s finding that appellant showed no desire to attain sobriety, including that when she finally went into treatment, she failed to remain and did not return after leaving a second time. Affirmed.

A16-0062 In re Welfare of Child of H.M.T. (Hennepin County)


Harassment Restraining Orders


Appellant challenged the District Court’s ex parte temporary harassment restraining order (THRO) and subsequent harassment restraining order (HRO), arguing: (1) the evidence was insufficient to support the THRO; (2) the District Court abused its discretion in excluding testimony of appellant’s intent; (3) the evidence was insufficient to support the HRO; and (4) the District Court erred by including respondent’s children in the HRO. The Court of Appeals held that the ex parte THRO was not an appealable order. Furthermore, fact that appellant frightened respondent with multiple threats made through a third party supported the HRO with regard to respondent. However, there was nothing in the record showing that the children were victims of appellant’s harassment. Affirmed in part, reversed in part, and remanded.

A15-2022 Heikkila v. Dietman (Lake County)


Insurance Coverage

Mistakes of Agent

Appellant insurance agent appealed from a judgment entered after a jury verdict finding him negligent in an action concerning insurance coverage. Appellant argued that the District Court erred in concluding that he and the insurer were estopped from asserting a mistake, in not including comparative-fault questions in the special verdict form, and in not including a causation question in the special verdict form. Insureds were denied coverage under a liability insurance policy after their dog bit a child, based on alleged material misrepresentations in their application, namely their ownership of an Akita dog, which were not covered by insurer. The jury found that agent never asked insureds if they had a dog, and incorrectly represented their response on the application. The Court of Appeals held that, where an insurance applicant provides truthful answers to all questions asked of him by an insurance agent, the insurer is estopped from denying coverage based on the agent’s mistake. Affirmed.

A15-2027 Selective Ins. Co. of S.C. v. Huynh (Hennepin County)


Legal Services

Attorney Fees

In this attorney fee dispute, appellant challenged the District Court’s order granting summary judgment in favor of respondent law firm, arguing primarily that the law firm was required to obtain his consent before providing further services once his retainer was exhausted. The Court of Appeals agreed with the District Court’s conclusion that the agreement did not require the law firm to notify appellant of the exhaustion of the retainer or contain any language suggesting that appellant was required to pay an additional retainer in order to continue receiving legal services. Affirmed.

A15-1849 Wolf, Rohr, Gemberling & Allen, P.A. v. Kapacs (Hennepin County)


Orders for Protection

Domestic Abuse

Appellant-father challenged the District Court’s issuance of an order for protection (OFP), arguing that the record did not support a finding that domestic abuse occurred and that the District Court’s order was inconsistent because it granted protection to respondent-mother and two children while denying protection to another child. The Court of Appeals held that the evidence was sufficient to establish that appellant intended to inflict fear of physical harm against children and mother. Affirmed.

A15-1287 Mokalla v. Mokalla (Hennepin County)


Temporary Injunctions

Adequate Remedy at Law

An attorney resigned from a law firm and started a new law firm. Clients followed her. The first law firm sued the new law firm to recover attorney fees for legal services performed by the attorney while she was employed by the first law firm. The first law firm moved for a temporary injunction that would require the new law firm to deposit settlement proceeds into an escrow account, which, it argued, would facilitate the distribution of fees between the two firms. The District Court denied the motion. The Court of Appeals held that the first law firm failed to establish that it did not have an adequate remedy at law and that a temporary injunction was necessary to prevent irreparable harm. Affirmed.

A15-1764 Aase Law Firm, PLLC v. Aria Law Firm, P.A. (Ramsey County)




Criminal Published


Electronic Luring of Children


Appellant state challenged the District Court’s order determining that Minn. Stat. § 609.352, subd. 2a(2), was unconstitutionally overbroad on its face and dismissing charge against respondent under the statute. The state also argued that the statute was a permissible content-based regulation of speech. Said statute criminalized the use of electronic communications, with the intent to arouse sexual desire, in engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. The Court of Appeals held that (1) the statute implicated the First Amendment because its reach is not limited to unprotected speech; (2) the statute was facially overbroad in violation of the First Amendment because it prohibits a substantial amount of protected speech; (3) the statute could not be saved by employing a narrowing construction because it was not readily susceptible to such a construction; and (4) the statute was an unconstitutional content-based regulation of speech. Affirmed.

A15-1951 State v. Muccio (Dakota County)



Criminal Unpublished



Petitions for Further Review

This appeal tested the precedential value of an opinion of the Court of Appeals when the Supreme Court at first granted a petition for further review of that opinion but then denied the petition, dismissing the appeal without prejudice and allowing the losing party to raise the same substantive legal issues in the District Court under a different procedural mechanism. Appellant challenged the District Court’s decision denying his petition for writ of habeas corpus and upholding the department of correction’s recalculation of his conditional-release period. Appellant based his appeal on a theory the Court of Appeals rejected on the merits in the state’s prior appeal after the District Court granted appellant’s motion to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9. Because appellant’s habeas petition rested on the same substantive theory that the Court rejected when it resolved the state’s appeal of his rule 27.03 motion, the District Court rejected the theory in his habeas action. Appellant argued that the District Court should not have relied on the Court of Appeals’s opinion because the Supreme Court’s dismissal of his petition for further review without prejudice and with direction to file a habeas petition effectively vacated the Court of Appeals’s opinion. The Court of Appeals did not agree, noting that it was bound to follow its published decisions. Affirmed.

A15-1475 State ex rel. Ward v. Roy (Anoka County)



Defense of Others

On appeal from his misdemeanor convictions of fifth-degree assault, disorderly conduct, and trespass, appellant argued that his assault and trespass convictions were not supported by sufficient evidence and that the District Court committed plain error in its instructions to the jury. Appellant argued that the state failed to prove beyond a reasonable doubt that his use of force was not justified as defense of others. The Court of Appeals held that the evidence in this case was sufficient to disprove beyond a reasonable doubt the existence of reasonable grounds for appellant’s belief, if any, that person allegedly defended was in imminent danger of bodily harm at the moment when appellant hit the victim’s wrist. Affirmed.

A15-1198 State v. Heath (Hennepin County)




Appellant challenged his conviction of third-degree assault, arguing that the evidence was insufficient to prove that he did not act in self-defense, the District Court erred by instructing the jury regarding revival of an aggressor’s right of self-defense, the prosecutor engaged in misconduct during closing arguments. Appellant pushed victim after observing him peering into a neighbor’s house at night. The Court of Appeals held that the evidence was sufficient for the jury to conclude that appellant was the initial aggressor. Affirmed.

A15-1452 State v. Eggermont (Lyon County)




Sufficiency of the Evidence

Appellant argued that his conviction for third-degree assault must be reversed because the state failed to prove beyond a reasonable doubt that he assaulted the complainant. The Court of Appeals held that testimony by the victim that appellant hit and punched her in the head and eye, kicked her, and threw a stapler at her, while threatening to kill her, was sufficient to support his conviction. Affirmed.

A15-1126 State v. Crooks (Hennepin County)


Controlled Substance Possession

Sufficiency of the Evidence

In this direct appeal from his conviction of third-degree possession of a controlled substance, and on remand from the Supreme Court, appellant argued that there is insufficient evidence that he constructively possessed heroin. Appellant argued that the heroin was not found in a place under his exclusive control because it was found in a rental vehicle to which “hundreds of people may have had access.”  The Court of Appeals agreed that the area was not under his exclusive control, but fact that the heroin found was three grams or more worth $600 made the inference that someone else left the heroin in the rental vehicle unreasonable. Affirmed.

A14-0431 State v. Lester (Hennepin County)




Appellant challenged his second-degree murder conviction on the grounds that (1) the evidence was insufficient to establish that he was not acting in self-defense against an unprovoked attack; (2) the prosecutor committed misconduct during closing argument by impermissibly shifting the burden of proof; (3) the District Court abused its discretion by admitting evidence under the excited-utterance exception to the hearsay rule; and (4) appellant’s trial counsel was ineffective. Appellant contended that the state failed to disprove his actual and honest belief that he faces imminent danger because there was a “stark disparity” between the physical attributes of the victim and of appellant. The victim was approximately six and a half feet tall and muscular and weighed about 230 pounds, while appellant was described as “fat” and “bowlegged.” The Court of Appeals noted that the jury also heard testimony that appellant was “healthy,” had threatened to kill the victim, and that appellant and the victim frequently physically fought to resolve their differences, despite their physical differences. The Court of Appeals held that this evidence was sufficient to support the jury’s determination. Affirmed.

A15-1000 State v. Ward (Ramsey County)


Postconviction Relief


Appellant challenged the District Court’s summary dismissal of his petition for postconviction relief from his conviction for terroristic threats, entered in 2002, for which he was required to register as a predatory offender in 2015. The Court of Appeals held that, because the doctrine of equitable tolling did not apply to appellant’s case and because there was no requirement to advise him of the collateral consequence of registration, the postconviction court did not err by denying appellant’s petition without an evidentiary hearing. Affirmed.

A15-1416 Burks v. State (Washington County)


Probation Revocation

Need for Confinement

Appellant was angry and intoxicated in a bar when he told the bartender and patrons who were trying to restrain him that he was going to return and kill them. Appellant pleaded guilty to making terroristic threats, and the District Court stayed the imposition of his sentence on probationary terms. Appellant failed to complete a chemical-dependency evaluation and anger-management therapy and refused to submit to testing or abstain from using drugs. The District Court revoked his probation and executed his prison sentence. The Court of Appeals concluded that the record left no room for it to doubt the District Court’s patience and leniency, and certainly no room to doubt its careful consideration of the need for confinement. Affirmed.

A15-1695 State v. Karius (Dakota County)


Prosecutorial Misconduct


Appellant challenged his conviction of first-degree criminal sexual conduct, arguing that he was deprived of a fair trial because the prosecutor committed prejudicial misconduct while cross-examining him. The Court of Appeals noted that, because the objected-to questions and comments concerned evidence appellant presented, any misconduct was not likely to have played a substantial role in the jury’s verdict. Moreover, the District Court timely addressed each objection, and the court immediately instructed the jury to disregard the prosecutor’s final statement. Affirmed.

A15-1157 State v. Dykes (Hennepin County)


Warrantless Entry

Emergency-Aid Exception

Challenging his conviction of first-degree driving while under the influence and first-degree test refusal, appellant argued that the District Court erred by refusing to suppress evidence obtained after a police officer entered appellant’s garage without a warrant. Standing outside of the garage, an officer was able to see appellant seated in the driver’s seat and that he was bent forward and did not appear to be awake. The Court of Appeals concluded that the officer’s warrantless entry into the garage was justified under the emergency-aid exception. Affirmed.

A15-1209 State v. Hudson (Clay County)


Warrantless Searches

Plain-View Exception

Appellant challenged the denial of his motion to suppress the evidence after being charged with violating a restraining order. While investigating a report of rocks being thrown at a window, an officer knocked on appellant’s door and was let into the entryway. There he noticed shoes which matched footprints found in the snow outside the complainant’s window. The Court of Appeals held that the three criteria of the plain-view exception to the warrant requirement were met. Affirmed.

A15-1373 State v. Ankney (St. Louis County)


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