Court of Appeals Digest: Sept. 16, 2019

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Civil Unpublished

Attorneys

Pro Hac Vice

Pro se appellant challenged the dismissal of his civil-rights claims arising out of a DWI arrest in Missouri and subsequent revocation of his Minnesota driver’s license, arguing that the District Court erred by (1) admitting pro hac vice counsel for respondents from Missouri; (2) concluding that it lacked personal jurisdiction over the Missouri respondents; (3) dismissing appellant’s claims under 42 U.S.C. § 1983 as time-barred; (4) dismissing his conspiracy claim for failure to state a claim; and (5) denying his motions for injunctive relief. The Court of Appeals concluded that, because Minn. R. Gen. Prac. 5 does not impose a reciprocity requirement, the District Court did not err by admitting pro hac vice counsel for the Missouri respondents. Additionally, the remainder of appellant’s claims did not warrant reversal. Affirmed.

A19-0360 Milliman v. Karsten (Meeker County)

Breach of Contract

Termination

On appeal after remand in a breach of contract action that was tried to the District Court, appellant argued that the District Court erred in determining that the termination of a grain-handling contract of indefinite duration occurred after a reasonable time had passed. Appellant also argued that the District Court erred in basing its reasonableness determination on recoupment caselaw and in finding that respondent gave reasonable notice of termination. Noting that appellant had, at the very least, four years’ notice before the District Court terminated the contract, the Court of Appeals agreed that a reasonable time had passed for contract performance so that respondent could terminate at will and that respondent provided reasonable notice of termination.

A19-0254 Glacial Plains Coop. v. Chippewa Valley Ethanol Co., LLLP (Swift County)

Civil Commitment

SDP; Discharge

On appeal from the denial of his petition for full discharge from his commitment as a sexually dangerous person (SDP) after a second-phase hearing, appellant argued that (1) the Commitment Appeal Panel erroneously determined that respondent proved by clear and convincing evidence that his petition for discharge should be denied and (2) the Minnesota Commitment and Treatment Act (MCTA) violated due-process standards and the separation-of-powers doctrine. The Court of Appeals concluded that the commissioner proved by clear and convincing evidence that appellant was not currently capable of making an acceptable adjustment to open society. Affirmed.

A19-0620 In re Civil Commitment of Coker (Commitment Appeal Panel)

Civil Commitment

SDP; Transfer

Sexually dangerous person respondent is indeterminately civilly committed to the Minnesota Sex Offender Program. The Commitment Appeal Panel granted respondent’s petition for transfer to community preparation services after an expert testified that transfer would best facilitate his continued treatment. The commissioner of human services appealed, arguing that the panel’s factual findings on respondent’s petition were inadequate for appellate review and that the panel clearly erred by granting the petition. The Court of Appeals concluded that, because the panel’s findings explain that, among other things, it credited the opinion of the expert who supported respondent’s transfer, the findings were sufficient for our review. Furthermore, the record as a whole supported the panel’s decision that transfer was appropriate. Affirmed.

A19-0615 In re Civil Commitment of Heginger (Commitment Appeal Panel)

Contracts for Deed

Restraining Orders

Appellant vendors challenged the District Court’s temporary injunction preventing the cancellation of a contract for deed that they entered into with respondent purchasers. They argued that the underlying temporary restraining order (TRO) did not prevent the cancellation of the contract for deed because it did not take effect until after the 60-day statutory window to correct a default had run. The Court of Appeals concluded that, even if the TRO did not take effect until a few days after the expiration of the 60-day window because of the bond and actual-notice requirements, it was within the District Court’s equitable power to determine that the TRO prevented cancellation of the contract for deed and the District Court therefore did not abuse its discretion in granting the temporary injunction. Affirmed.

A18-1762 Kristo v. Johnson (Hennepin County)

Domestic Relations

Child Support; Modification

Appellant mother argued that the Child Support Magistrate (CSM) abused its discretion in apportioning payment for uninsured medical expenses and modifying her ongoing child support obligations. Noting that the apportionment was exactly what she agreed to in the stipulated divorce decree, the Court of Appeals noted that appellant’s argument was effectively requesting a re-write of the stipulated decree to allow each party to unilaterally incur expenses that the other party would be financially responsible for, and declined to do so. Affirmed.

A18-2119 Neumann v. Neumann (Washington County)

Domestic Relations

Dissolution; Child Custody

In this appeal from a marriage dissolution judgment and decree, appellant mother, who was from Germany, argued that the District Court abused its discretion by awarding sole physical custody of the parties’ minor child to respondent father, denying her post-trial motions, and sealing the court records. Noting that the District Court’s findings of fact were not clearly erroneous, the Court of Appeals concluded that the District Court did not abuse its discretion in awarding custody and parenting time or in denying mother’s post-trial motions for a new trial and to reopen the judgment. Affirmed.

A18-1229 Strosahl v. Strosahl (Carver County)

Domestic Relations

Dissolution; Service

Appellant challenged the District Court’s denial of her motion to reopen dissolution proceedings, contending that the District Court’s decision to allow service by publication was improper. Noting that the District Court did not check the boxes on the form permitting publication indicating that personal service could not be made on appellant or that appellant was not likely to receive notice mailed to her last-known address, and that the District Court ordered respondent to attempt service by mailing the summons and petition to appellant’s last-known address, the Court of Appeals concluded that the District Court erroneously permitted service by publication resulting in ineffective service of process, and therefore a lack of personal jurisdiction. Reversed and remanded.

A19-0206 Trainer v. Goodlander (Blue Earth County)

Domestic Relations

Parentage; Unmarried Couples

Appellant challenged the denial of her petition to be adjudicated the parent of three minor children under the Minnesota Parentage Act, arguing that the District Court erred in determining that no presumption of parentage applies to her, that the parentage act was unconstitutional, and that the District Court erred in denying her request to be granted third-party custody of the children. Appellant and respondent had been in a same-sex relationship when the three children were born, but were not married. All three of the children considered appellant to be one of their parents. The Court of Appeals agreed with the District Court that, because appellant was not the biological parent of the children and never adopted the children, she did not have a parent-child relationship within the meaning of the Act. The court also concluded that the parentage act did not discriminate based on marital status. Affirmed.

A18-0990 Bischoff v. Vetter (In re Custody of N.S.V.) (Hennepin County)

Employment

Restrictive Covenants

Appellant employer challenged summary judgment in favor of respondent former employee, asserting that a restrictive covenant signed by respondent was ancillary to new employment and did not require independent consideration. The Court of Appeals concluded that appellant made an offer of new employment and the restrictive covenant was ancillary to that offer, regardless of any retroactivity provision, and that, therefore, the District Court erred by determining that the restrictive covenant lacked consideration. Reversed and remanded.

A19-0175 Wells Fargo Ins. Servs. USA, Inc. v. Galioto (Hennepin County)

Negligence

Emergency Rule

This case arose out of a vehicle collision between respondent and appellant. Following the accident, a jury trial was held on appellants’ claims of negligence and loss of consortium against respondents and his employer. The jury found that respondent was negligent, but that his negligence was not a direct cause of the accident. Accordingly, the District Court entered judgment in favor of respondents. The Court of Appeals concluded that respondent’s getting struck in one eye with a piece of dirt or sand while driving with his window down did not constitute an emergency, and thus, it was error for the District Court to instruct the jury on the emergency rule. Reversed and remanded.

A19-0058 Simondet v. Enga (Sherburne County)

Orders for Protection

Firearms

In this appeal from the District Court’s order for protection, appellant argued that (1) the OFP’s requirement that he transfer his firearms violated his rights under the Second Amendment; and (2) he was denied due process when the District Court allowed respondent to seek a firearm restriction at the hearing despite not identifying that relief in her petition. The Court of Appeals declined to consider appellant’s Second Amendment challenge to the OFP statute because appellant did not provide notice to the Minnesota Attorney General and because the appellate record was insufficient for review of this issue. Second, the Court concluded that appellant’s due process challenge was not properly before the court because he did not raise the issue in District Court. Appeal dismissed.

A19-0165 Fostervold v. Monson (Kandiyohi County)

Product Liability

Asbestos

These consolidated appeals were taken from judgments dismissing appellant’s asbestos-related claims against respondents. Appellant challenged the summary-judgment dismissal of her claims against respondent, the successor-in-interest of a company that produced brake products containing asbestos, arguing that the District Court erred in determining that appellant’s claims were barred by the six-year period of limitations set forth in Minn. Stat. § 541.05, subd. 1(5). Appellant also challenged the dismissal of her claims against another respondent, the seller of asbestos insulation, on grounds of insufficient service of process, arguing that the District Court erred by (1) determining that, under published caselaw and Minn. Stat. § 302A.781, appellant was required to bring her claim within two years of insulation seller’s 1985 corporate dissolution; and (2) concluding that a 2007 amendment to Minn. Stat. § 302A.781 did not apply to revive appellant’s claim. The Court of Appeals concluded that appellant had four years to bring claims involving strict product liability and six years to bring her other claims. Furthermore, the 2007 amendment contained no indication of legislative intent that it should apply retroactively. Affirmed.

A18-2114, A19-0155 Palmer v. Walker Jamar Co. (Ramsey County)

Products Liability

Foreseeability

In this appeal from the dismissal of a products-liability action for failure to state a claim upon which relief can be granted, appellant argued that the District Court erred by determining whether respondent had a duty to protect appellant from harm caused by a third person, rather than whether respondent had a duty as the manufacturer of a product. The District Court determined that no duty existed because respondent’s manufacture and sale of dust remover, a product that others might misuse, were not active misconduct. The Court of Appeals concluded that, accepting the facts alleged in the complaint as true, it was reasonably foreseeable that a driver would misuse the dust remover and become acutely intoxicated, and that, if it was also foreseeable that people who inhale the dust remover and become acutely intoxicated were a danger to appellant, respondent had a duty to protect appellant from the foreseeable danger. Reversed and remanded.

A19-0354 Diehl v. 3M Co. (St. Louis County)

Public Employment

Retaliation

Appellant challenged the summary-judgment dismissal of his retaliation claim under the Minnesota Whistleblower Act (MWA), arguing that the District Court erred by determining that no causal connection existed between his protected conduct and respondent-employer’s termination of his employment. Noting that the evidence clearly established that respondent school district was dissatisfied with appellant’s performance, had concerns about his teaching abilities, and made the decision not to rehire him before he engaged in protected conduct, the Court of Appeals concluded that the District Court appropriately granted summary judgment. Affirmed.

A18-2027 Xiong v. Minneapolis Pub. Schools, Special School Dist. No. 1 (Hennepin County)

Real Property

Covenants

Appellants challenged the District Court’s grant of summary judgment permitting real property to be used for purposes other than a golf course. They contended that a corporate merger agreement placed the property in trust and that the District Court erred in determining the agreement’s prohibition against other uses expired after 30 years. The Court of Appeals concluded that a legal memorandum drafted by an attorney in preparation for the merger did not evince an intent to create a trust at the time the trust was purportedly created. Furthermore, the agreement’s provisions requiring the property to be used as a golf course expired after 30 years pursuant to Minn. Stat. § 500.20, subd. 2a. Affirmed.

A19-0327 Auto Club Group v. Anderson (St. Louis County)

State-Licensed Programs

Qualification

Relator appealed from a final agency decision from the Department of Corrections (DOC) refusing to set aside his disqualification from working in a position that involves direct contact with persons receiving services from state-licensed programs. He argued that the decision was not supported by sufficient evidence and that his due-process rights were violated. Noting that appellant’s disqualifying offense had occurred recently and that appellant was still on probation, the Court of Appeals concluded that DOC’s decision was not arbitrary or capricious. Affirmed.

A19-0286 Krause v. Minn. Dep’t of Corr. (Minn. Dep’t of Corr.)

Unemployment Benefits

Employment Misconduct

Relator challenged an unemployment-law judge’s (ULJ) determination that he was ineligible for unemployment benefits because his employer discharged him for employment misconduct after he refused to sign a disciplinary letter imposing a probationary term. Noting that relator committed employment misconduct by repeatedly failing to abide by respondent’s attendance policies, the Court of Appeals concluded that relator was ineligible for unemployment benefits because respondent discharged him for misconduct. Affirmed.

A18-2044 Warsame v. Arlyce Cleveland, Ltd. (Dep’t of Emp’t & Econ. Dev.)

Criminal Unpublished

Arrest

Petty Misdemeanors

Appellant challenged the District Court’s denial of his pretrial motion to suppress evidence obtained by an allegedly illegal entry, arrest, and search. After stipulating to the state’s case under Minn. R. Crim. P. 26.01, subd. 4, the District Court found appellant guilty of fifth-degree possession of a controlled substance. The Court of Appeals concluded that the officers’ observation of the drug-related petty misdemeanors did not give the officers probable cause to arrest appellant for felony possession of a controlled substance. Reversed.

A18-1969 State v. Peterson (Anoka County)

Controlled Substance Possession

Sufficiency of the Evidence

Appellant challenged his convictions of first-degree possession of a controlled substance, endangering a child, conspiracy to sell a controlled substance in the first degree, and aiding and abetting the sale of a controlled substance in the first degree. Appellant argued that there was insufficient evidence to support the convictions and that the District Court committed reversible error by answering the jury’s questions during deliberations without providing notice to the parties and without the defendant being present. Noting that the drug-filled tool chest found in a residence had pictures of appellant attached to it and that appellant referred to the residence as his home, the Court of Appeals concluded that the evidence was sufficient to support appellant’s conviction of first-degree possession of a controlled substance. Furthermore, the judge’s error in answering the jury’s questions was harmless. However, the Court concluded that the evidence was insufficient to support appellant’s convictions for the other charges. Affirmed in part, reversed in part, and remanded.

A18-1281 State v. Wierson (Dakota County)

Criminal Sexual Conduct

Sufficiency of the Evidence

Appellant challenged his conviction of third-degree criminal sexual conduct, arguing the evidence was insufficient to prove that he sexually penetrated the victim and that he should have received a probationary sentence. Noting testimony that appellant was trying to have oral sex with an unconscious person and DNA evidence from the area around the person’s mouth, the Court of Appeals concluded that the only reasonable interpretation of the circumstantial evidence was that appellant sexually penetrated the victim. Affirmed.

A18-1411 State v. Tichich (Hennepin County)

DANCO Violations

Constitutionality

Appellant argued that his conviction for violating a domestic-abuse no-contact order must be reversed because the underlying DANCO was unconstitutionally vague because it specifically allowed him to be in his home. The Court of Appeals concluded that because appellant was neither tried nor convicted for violating the DANCO by being in his home, any alleged vagueness relating to that term of the order was immaterial to the analysis. Affirmed.

A18-2047 State v. Hernandez (Mille Lacs County)

Detainers

Timeliness

On appeal from his convictions of escape from custody, fleeing police in a motor vehicle, and obstructing legal process, appellant—who was serving an unrelated sentence in Wisconsin—argued that the District Court erred by failing to dismiss the charges against him because he was not brought to trial within the 180-day time period dictated by the Interstate Agreement on Detainers. The Court of Appeals concluded that appellant waived his right to challenge the disposition time period by failing to object when his trial was scheduled beyond the 180-day period. Affirmed.

A18-1885 State v. Taylor (Olmsted County)

Driving While Impaired

Right to Counsel

In this direct appeal from final judgments of conviction of driving while impaired, appellant argued that law enforcement failed to vindicate his limited constitutional right to counsel before deciding whether to submit to a chemical test pursuant to a warrant. Noting that the officer applied for and obtained a search warrant, reviewed it with appellant, and provided a warrant advisory, the Court of Appeals concluded that the “unique choice” appellant claims he faced was not enough to justify an extension of the limited right to counsel. Affirmed.

A18-1774 State v. Sandhurst (Lyon County)

Driving While Impaired

Statutory Amendments

In this appeal from a conviction for driving while intoxicated in March of 2016, appellant argued that the 2017 amendments to the driving-while-impaired (DWI) statutes required that vacation of his conviction. The Court of Appeals concluded that the amendments to Minn. Stat. § 171.177 unambiguously did not apply to DWI incidents occurring before July 1, 2017. Affirmed.

A18-1938 State v. Thompson (Sherburne County)

Evidence

Complete Defense

In this direct appeal from his convictions of first-degree sale and second-degree possession of a controlled substance, appellant argued that the District Court denied him the opportunity to present a complete defense by excluding any evidence that someone else possessed the methamphetamine found in his apartment. Noting that the methamphetamine was found in a wallet that also contained appellant’s ID cards, the Court of Appeals concluded that any error by the District Court in refusing to allow a complete alternative-perpetrator defense was harmless. Affirmed.

A18-1497 State v. Pexa (Rice County)

Evidence

Relevance

In this appeal from convictions of aiding and abetting a drive-by shooting and aiding and abetting second-degree assault, appellant argued that (1) the District Court abused its discretion by admitting evidence of a threatening text message he made to the mother of his brother’s children, and (2) the evidence did not support two of his convictions. Noting that the close causal and temporal connection between appellant’s message threatening to “take out” the children first and the shooting that occurred two hours later was evident, the Court of Appeals found no abuse of discretion in the admission of the threatening message as immediate-episode evidence. Affirmed.

A18-1337 State v. Wilson (Hennepin County)

Hearsay

State of Mind

Appellant challenged his conviction of gross misdemeanor domestic assault, arguing that he was entitled to a new trial because the District Court abused its discretion by allowing the state to introduce hearsay statements regarding his prior acts of domestic abuse. The Court of Appeals concluded that the statements did not qualify under the hearsay exception for statements of a declarant’s then-existing mental state, noting that they were made in response to an officer’s question, but that the evidence did not significantly affect the jury’s verdict. Affirmed.

A18-1750 State v. Anderson (Ramsey County)

Illegal Ammunition Possession

Sufficiency of the Evidence

Appellant challenged his conviction for ineligible person in possession of ammunition, arguing that the evidence was insufficient to support his conviction. Appellant was found hunched over the driver’s seat of a stolen vehicle that contained a rifle and box of ammunition. The Court of Appeals concluded that the circumstances proved were consistent with guilt. Affirmed.

A18-1832 State v. Yien (Blue Earth County)

Illegal Firearm Possession

Sufficiency of the Evidence

Appellant challenged his convictions for ineligible possession of a firearm and possession of a short-barreled shotgun, arguing that the state presented insufficient evidence to prove that he constructively possessed the short-barreled shotgun found inside the trunk of the car he was driving. Noting that evidence was presented that the gun was not in the vehicle prior to appellant taking it, the Court of Appeals concluded that the state’s evidence was sufficient to prove appellant possessed the shotgun. Affirmed.

A18-1924 State v. Butcher (Red Lake County)

Informants

Corroboration

Appellant appealed the denial of his postconviction petition, which challenged his conviction for ineligible person in possession of a firearm, arguing that the postconviction court erred by concluding that the District Court did not abuse its discretion by denying his motion to suppress evidence and dismiss the complaint or by denying his motion for a downward durational sentencing departure, and that the postconviction court erred by denying his claim of ineffectiveness of trial counsel. Appellant argued, inter alia, that the informant was not reliable, that the postconviction court erred by concluding that the informant voluntarily came forward, and that police officers therefore lacked probable cause to arrest him. Noting that the informant was reliable and provided information that the investigating officers corroborated and that would allow a prudent person to reasonably conclude that appellant was engaging in unlawful activity, the Court of Appeals held that probable cause existed to arrest appellant. Affirmed.

A19-0029 Walker v. State (Hennepin County)

Plea Withdrawal

Adequate Factual Basis

Appellant challenged the postconviction court’s denial of her request to withdraw her guilty plea to murder in the third degree, arguing that the factual basis for her plea was inadequate because the record does not establish that she proximately caused the victim’s death. Noting that allowing appellant to escape liability for “indirectly” supplying the drugs to the victim was contrary to the plain language of Minn. Stat. § 609.195(b), the Court of Appeals concluded that appellant’s guilty plea was supported by a sufficient factual basis. Affirmed.

A19-0161 Walker v. State (Chisago County)

Search Warrants

Probable Cause

Appellant challenged his conviction of third-degree controlled-substance sale, arguing that the warrant to search the barbershop where he worked was not supported by probable cause, that his statements and the evidence obtained in subsequent searches should have been suppressed as fruit of the poisonous tree, and that the property and funds seized during the search of the barbershop should be returned to him under Minn. Stat. § 626.21. The Court of Appeals concluded that the search-warrant affidavit adequately established the informant’s reliability and basis of knowledge, and that, combined with another informant’s controlled buy and police observations of suspected narcotics deals, the District Court did not err in denying appellant’s motion to suppress evidence obtained in the search of the barbershop. Affirmed.

A19-0318 State v. Price (Hennepin County)

Seizure

Free to Leave

Appellant challenged his conviction for driving while impaired, arguing that the District Court erred by denying his pretrial motion to suppress the evidence based on its conclusions that the police (1) did not unconstitutionally seize appellant and (2) had a reasonable, articulable suspicion to administer a preliminary breath test to appellant. Appellant argued that he was seized when the officer approached his vehicle because appellant did not feel free to leave:  his vehicle was stuck in snow, a pickup truck was in front of it, and the vehicle was being attached to the pickup truck. The Court of Appeals disagreed, noting that the logical extension of this would be that officers may not approach or check on the welfare of drivers whose vehicles are crashed, stuck, or otherwise prevented from driving away. Affirmed.

A19-0054 State v. Schreyer (Brown County)

Seizure

Reasonableness

Appellant challenged his drug-possession conviction, arguing that the District Court erred by refusing to suppress evidence obtained during a stop. Appellant argued that the District Court erred in finding that he was seized after the officer saw the marijuana pipe in the vehicle, asserting that he was seized earlier when ordered to put his hands on the dashboard. The Court of Appeals concluded that, even if this was a seizure, it was not unreasonable and not unconstitutional because the circumstances showed that it was based on a report of suspicious activity, it was late at night, it was at a hotel teeming with criminal activity, it involved a single officer approaching a vehicle occupied by four individuals, the officer saw movement in the front passenger seat, and one of the vehicle’s occupants exited the vehicle when the officer approached. Affirmed.

A18-1827 State v. Tope (Freeborn County)

Sentencing

Downward Departures

In an appeal by the state, the state argued that the District Court abused its discretion by granting a downward dispositional departure to a nineteen-year-old respondent for his first-degree burglary conviction. Looking at the case as a whole, including especially appellant’s youth, his lack of a criminal history score, his strong family support, his remorse and cooperation with law enforcement, and the details of the offense, the Court of Appeals concluded that the District Court did not abuse its discretion in determining that this was the rare case where there were substantial and compelling circumstances justifying a downward dispositional departure. Affirmed.

A19-0091 State v. Wetzel (Blue Earth County)

Sentencing

Stays of Adjudication

Appellant challenged her conviction of fifth-degree possession of a controlled substance, arguing that the District Court abused its discretion by declining to stay adjudication. Noting that, at the time appellant pleaded guilty to fifth-degree possession of a controlled substance, she had a felony conviction for possession of methamphetamine paraphernalia in the presence of a child, the Court of Appeals concluded that the District Court was not required to stay adjudication. Affirmed.

A18-2134 State v. Abbott (Beltrami County)

Severance

Prejudice

Appellant challenged his convictions for domestic assault, sexual assault, stalking, and OFP violations, arguing that the District Court should have severed the assault charges from the other charges and that the District Court plainly erred by admitting translated text messages into evidence. Concluded that the stalking- and OFP-violation offenses would therefore have been admissible at a trial on the domestic- and sexual-assault charges, and that the assault offenses would have been admissible at a trial on the stalking- and OFP-violation charges, the Court of Appeals held that there was no prejudice to appellant in not severing the charges. Affirmed.

A18-1708 State v. Ramirez (Kandiyohi County)