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The Supreme Court Chamber in the Minnesota Capitol in St. Paul. (Staff photo: Kevin Featherly)

Supreme Court Calendar: November 2020

The following summaries of upcoming Supreme Court arguments were prepared from information provided by the Supreme Court Commissioner’s Office.

Monday, Nov. 2, 2020

Minnesota Judicial Center

John Moore, Appellant vs. Robinson Environmental, et al., Respondents, Century Surety, Defendant – Case No. A19-0668:  Appellant John Moore hired respondent Robinson Environmental, Inc., to remove a 1922-vintage boiler, and its connecting pipes, from his residence so that Moore could replace the boiler.  The boiler and pipes were insulated with asbestos.  Over 4 years after Robinson completed the work, Moore sued Robinson, alleging that Robinson had left debris containing asbestos near the old boiler site, with the result that the contractor who installed the new boiler tracked fallen asbestos around Moore’s home.

Robinson moved to dismiss Moore’s claims based on the statute of limitations in Minn. Stat. § 541.051, subd. 1(a) (2018), which imposes a 2-year limitations period for claims for damages arising out of a “defective and unsafe condition of an improvement to real property” against any “person [engaging in] construction of the improvement to real property.”  The district court granted the motion to dismiss, concluding that Moore’s claims fell within the scope of Minn. Stat. § 541.051, subd. 1(a), and were therefore time-barred.  On appeal, Moore argued that § 541.051 did not apply because his work was not “construction of [an] improvement to real property” and his alleged conduct did not lead to a “defective and unsafe condition” of any such improvement.  The court of appeals affirmed.

On appeal to the supreme court, the issue presented is whether Robinson’s work falls within the scope of Minn. Stat. § 541.051, subd. 1(a).  (Hennepin County)


City of Waconia, Respondent/Cross-Appellant vs. Jayson Dock, et al., Appellants/Cross-Respondents – Case No. A19-1099:  In 2017, the City of Waconia commenced an action to enjoin Jayson and Cristine Dock from constructing a permanent dock on their lakeshore property.  The Docks asserted a counterclaim, which challenged the validity of a Waconia ordinance prohibiting permanent docks in public waters from riparian lots.  The district court granted summary judgment in favor of the City and granted a permanent injunction compelling removal of the dock.

The court of appeals affirmed.  Among other rulings, the court of appeals concluded that the dock ordinance is valid.  The court of appeals determined that, as a statutory city, the City had authority under Minn. Stat. § 412.221, subd. 12 (2018), to enact the dock ordinance.  The court of appeals further determined that the dock ordinance is not a “zoning ordinance” and therefore the City was not required to provide notice or hold a public hearing under Minn. Stat. § 462.357, subd. 3 (2018), before adopting the ordinance.

On appeal to the supreme court, the following issues are presented:  (1) whether the dock ordinance is invalid because the City did not comply with the notice and public hearing requirements of Minn. Stat. § 462.357, subd. 3; (2) whether the City was required to cooperate with neighboring municipalities and obtain approval from the Commissioner of Natural Resources before adopting the dock ordinance, see Minn. Stat. § 459.20 (2018); Minn. Stat. § 86B.205 (2018); and (3) whether the portion of the Docks’ appeal that challenged the order granting injunctive relief was untimely.  (Carver County)


Tuesday, Nov. 3, 2020

Minnesota Judicial Center

Dannielle Zephier, Respondent vs. Derrick Agate, Jr., Appellant, Lee Ann Krueger, Appellant – Case No. A19-0907:  Appellants Derrick Agate, Jr. and Lee Ann Krueger claim ownership of a certain dog, Oliver.  So does respondent Dannielle Zephier.  Zephier purchased Oliver in 2008, and she cared for Oliver and another dog until 2013 when she moved to California for school; Zephier’s father then cared for the dogs.  In 2015 Agate began caring for the dogs under an informal agreement that Agate would care for them and Zephier would pay for their care.  In 2016 Agate began dating Krueger and they moved in together.  Also in 2016 Zephier flew to Minneapolis and brought the smaller dog back with her to California.  In October 2017, Zephier made arrangements with Agate to visit Oliver during a planned trip to Minneapolis, but when Zephier arrived at Agate and Krueger’s home, Agate refused to bring Oliver outside to visit her, or to return Oliver to her.

Zephier sued for replevin of Oliver.  Agate and Krueger defended on the basis that Zephier had abandoned the dog.  Citing both Minn. Stat. § 354.75 (2018) and State v. McCoy, 38 N.W.2d 386 (Minn. 1949) for the relevant standard on abandonment, the district court concluded that Zephier had abandoned Oliver, and therefore denied replevin.  Zephier appealed, and the court of appeals reversed.  It concluded that Minn. Stat. § 345.75 abrogated the common law regarding abandonment of tangible personal property.  And applying the text of section 345.75, the court concluded that Zephier had not abandoned Oliver, and that the district court clearly erred in its factual finding that Zephier had notice in the manner the statute requires.

On appeal to the supreme court, the following issues are presented: (1) whether Minn. Stat. § 345.75 abrogates the common law regarding abandonment of tangible personal property; and (2) whether Zephier abandoned Oliver.  (Hennepin County)


Wednesday, Nov. 4, 2020

Minnesota Judicial Center

Charles Edward Honke, Appellant vs. Jennifer Hodapp Honke, Respondent – Case No. A19-0448:  Appellant Charles Edward Honke and respondent Jennifer Hodapp Honke divorced in March of 2016.  The district court’s order dissolving their marriage awarded permanent spousal maintenance to Jennifer, resolving a number of disputed issues between the parties to determine an appropriate monthly amount.  Among the disputes the district court resolved was the treatment of significant cash gifts that were regularly given to the parties during the marriage by Jennifer’s parents.  The district court declined to include such gifts in Jennifer’s future income, based on Jennifer’s father’s testimony that the gifts were “legacy gifts” that he would stop providing if it reduced Charles’ responsibility to the family.

Over a year later, Charles filed a motion to modify the amount of spousal maintenance, alleging that he had been required to accept a new job at a lower salary, and that Jennifer’s parents had dramatically increased the cash gifts they were giving her.  The district court found that a substantial change in circumstances had occurred, making the original spousal-maintenance award unreasonable, in that Charles’ income had decreased substantially and that Jennifer’s income had increased, due to both increased earning potential and imputed investment income that should have yielded from the cash gifts.  It therefore reduced the maintenance Charles was required to pay Jennifer.  But in determining Jennifer’s need, the district court did not, as Charles had requested, include the principal of the cash gifts in Jennifer’s income.

On appeal, Charles argued that the district court misapplied Minnesota law by concluding that Jennifer did not have to invade the principal of the post-dissolution gifts, totaling $500,000, as part of her income.  The court of appeals rejected this argument.  Relying on Curtis v. Curtis, 887 N.W.2d 249, 254 (Minn. 2016), it reasoned that Minnesota law is clear that a spouse is not required to diminish the value of marital property received in the dissolution in order to support themselves.  But there was no clear law regarding whether the same principle applied to assets acquired by a party after the divorce that were not part of the property division award.  Because the law was unclear, the court reasoned, the district court could not have misapplied it.

On appeal to the supreme court, the issue presented is whether the district court was permitted to consider the corpus of post-dissolution gifts to a divorced spouse as a financial resource that reduces the spouse’s need for maintenance.  (Hennepin County)


Nonoral:  Trevor Arndt, Relator vs. Tri-County Coop Oil Association, Respondent, Ram Mutual Insurance Company, Respondent, and Carris Health Rice Memorial Hospital, Genex Rehab Services, ACMC Health, Fairview Health Services, UCARE, and United Healthcare Services, Intervenors – Case No. A20-0351:  In 2018, relator Trevor Arndt filed a claim for workers’ compensation benefits and asserted that a 2012 back injury incurred while working for respondent Tri-County Coop Oil was a substantial contributing factor to another back injury that incurred in 2017.  The compensation judge concluded that the 2017 back injury was the result of an independent intervening cause and not the prior injury.  The Workers’ Compensation Court of Appeals affirmed.

On appeal to the supreme court, the following issues are presented: (1) whether the compensation judge improperly shifted the burden of proof; and (2) whether the compensation judge failed to require that an expert witness be subjected to cross-examination.  (Workers’ Compensation Court of Appeals)


Thursday, Nov. 5, 2020

Minnesota Judicial Center

In re Jeffrey Krogstad, M.D., et al., Petitioners, Darrel Manselle, Respondent vs. Jeffrey Krogstad, M.D., et al., Appellants – Case No. A20-0076:  Respondent Darrel Manselle sued appellants Jeffrey Krogstad, M.D., and Lakewood Health System in Kandiyohi County.  The claim arose out of treatment provided by Lakewood in Todd County by Dr. Krogstad, who resides in Kandiyohi County.  Appellants moved for a change of venue to Todd County based on Minn. Stat. § 542.10 (2018), which states in relevant part that “[i]f the county designated in the complaint is not the county in which the cause of action or some part thereof arose and if there are several defendants residing in different counties, the trial shall be had in the county upon which a majority of them unite in demanding or, if the numbers be equal, in that whose county seat is nearest.”

The district court denied the motion, concluding that Dr. Krogstad and Lakewood did not qualify as “several defendants” because it interpreted “several” to mean “more than two, but fewer than many.”  Appellants sought a writ of mandamus from the court of appeals, which denied the writ petition, agreeing with the district court that “several” does not include “two.”

On appeal to the supreme court, the issue presented is the meaning of the term “several defendants” in Minn. Stat. § 542.10.  (Kandiyohi County)


In the Matter of Issuance of Air Emissions Permit No. 13700345-101 for Polymet Mining, Inc., City of Hoyt Lakes, St. Louis County, Minnesota – Case Nos. A19-0115, A19-0134:  Appellant PolyMet Mining, Inc., has proposed to operate a copper-nickel-platinum group elements mine near Hoyt Lakes, Minnesota—the “NorthMet project.”  In 2016 PolyMet applied to appellant Minnesota Pollution Control Agency for a “synthetic minor source permit” under the federal Clean Air Act, which is issued when a facility that has the capacity to operate as a “major source” (by emitting larger amounts of pollutants) accepts permit conditions that restrict it to the lower amount of emitted pollutants that characterize a “minor source.”  A synthetic minor source is exempt from certain regulatory requirements applicable to a major source, including the requirement to implement “Best Available Control Technology.”

The MPCA began a public notice and participation process on the permit in January 2018.  The MPCA reviewed, considered, and responded to public comments, and made certain changes to the draft permit based on those comments.  It submitted the proposed permit to the EPA, which did not object.  The EPA’s review period ended on December 10, 2018.

After the close of the public comment period, PolyMet filed with Canadian securities regulators a technical report regarding the NorthMet project that included a discussion of the possibility of operating the NorthMet project at higher rates than authorized by the synthetic minor source permit.  Asserting that  the technical report is evidence that PolyMet did not intend to continue operating the NorthMet project under the limitations provided in the permit, and that PolyMet instead sought to build, and seek permits, for a larger project, respondent environmental groups and respondent the Fond du Lac Band of Lake Superior Chippewa requested that the Department of Natural Resources prepare a supplemental environmental-impact statement (SEIS), which the DNR declined to do.  Respondents then asserted that MPCA had a duty to investigate whether PolyMet actually intended to operate the NorthMet project at the levels for a synthetic minor permit, or was instead engaging in what the EPA calls “sham permitting.”  MPCA did not conduct the requested investigation, stating that the increased output levels in the technical report were speculative, and that nothing in the record indicated an intent by PolyMet to “circumvent major source permitting.”  It then issued PolyMet the permit on December 20, 2018.

Respondents sought certiorari review, challenging the MPCA’s failure to find or investigate whether PolyMet had engaged in sham permitting.  Respondents also moved to add to the administrative record documents that they submitted to the DNR regarding the SEIS.  The court of appeals granted the motion to supplement the record; on the merits, it concluded that MPCA’s findings were insufficient to facilitate judicial review of the permitting decision with respect to sham permitting, and it therefore remanded the matter to the MPCA for further consideration.

On appeal to the supreme court, the following issues are presented: (1) whether the court of appeals erred by remanding without considering whether the MPCA’s decision was supported by substantial evidence; (2) whether the court of appeals erred by remanding based on documents outside the administrative record; and (3) whether the MPCA made adequate findings with respect to respondents’ allegations of sham permitting.  (Minnesota Pollution Control Agency)


Monday, Nov. 9, 2020

Minnesota Judicial Center

In the matter of the reissuance of an NPDES/SDS Permit to United States Steel Corporation (U.S. Steel) for its Minntac facility and response to Contested Case Hearing requests filed by U.S. Steel and the Minnesota Center for Environmental Advocacy (“MCEA”) And In the matter of the Application for Variance from Water Quality Standards in the proposed NPDES/SDS permit, MPCA’s Preliminary Determination to Deny the Variance Request and U.S. Steel’s Contested Case Hearing request on the Variance denial – Case Nos. A18-2094, A18-2095, A18-2159, A18-2163:  In November 2018, appellant the Minnesota Pollution Control Agency issued a National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit governing and authorizing the discharge of pollutants by respondent U.S. Steel from a tailings basin located in St. Louis County into surface waters and groundwater.  Among other things, the permit regulates discharges into groundwater by subjecting them to numerical standards, established by the EPA, that by Minnesota regulations are applicable to designated “class 1 waters” in this state.

Respondent U.S. Steel, along with appellants WaterLegacy and the Fond du Lac Band of Lake Superior Chippewa, each sought certiorari review of various aspects of the MPCA’s decision.  The court of appeals consolidated the four cases for appeal and then reversed and remanded to the MPCA for further proceedings.  As relevant to the issues before the supreme court, the court of appeals concluded that, as U.S. Steel argued, the MPCA erred when it concluded that groundwater is a “class 1 water” under the regulations and therefore subject to secondary drinking water standards imposed by the EPA.

On appeal to the supreme court, the issue presented is whether groundwater is designated as a “class 1 water” by Minnesota Rules chapter 7050.  (Minnesota Pollution Control Agency)


Whitney Hinrichs-Cady, Respondent vs. Hennepin County, Appellant – Case No. A19-1561:  Appellant Hennepin County hired respondent Whitney Hinrichs-Cady as a social worker in September 2016.  At the time of her hire, Hinrichs-Cady was pregnant.  Toward the end of her pregnancy, Hinrichs-Cady requested pregnancy accommodations, but the County notified her that the requested accommodations would prevent her from successfully completing her job.  Instead, the County placed her on unpaid leave, which she had not requested.  When Hinrichs-Cady returned to work in June 2017 following the birth of her child, the County notified her that her employment was terminated.

Hinrichs-Cady brought an action against the County, which included claims for violations of the pregnancy accommodations statute, Minn. Stat. § 181.9414 (2018), and the Minnesota Whistleblower Act, Minn. Stat. §§ 181.931–.935 (2018).  The district court granted the County’s motion to dismiss these claims for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e).  The district court ruled that (a) Hinrichs-Cady was not a covered “employee” under Minn. Stat. § 181.9414 because she had not worked for the County for 12 months at the time she requested the pregnancy accommodations, see Minn. Stat. § 181.940, subd. 2 (2018) (defining “employee”); and (b) the claims are barred by the exclusive remedy provision of the Minnesota Human Rights Act, Minn. Stat § 363A.04 (2018).  The court of appeals reversed and remanded.

On appeal to the supreme court, the following issues are presented: (1) whether a person who has worked for an employer for fewer than 12 months may assert a claim under Minn. Stat. § 181.9414 for failing to provide pregnancy accommodations that would allow her to continue working; and (2) whether the exclusive remedy provision of the Minnesota Human Rights Act precludes the claims under Minn. Stat. § 181.9414 and the Minnesota Whistleblower Act.  (Hennepin County)


Tuesday, Nov. 10, 2020

Minnesota Judicial Center

State of Minnesota, Appellant vs. Derek James Robinette, Respondent – Case No. A19-0679:  In 2018, Derek Robinette was charged with first-degree and second-degree criminal sexual conduct.  A jury found Robinette guilty and the district court sentenced him to 168 months in prison.  On appeal, Robinette asserted several claims, including that his sentence must be reversed and remanded based on a 2019 modification to the sentencing guidelines that would reduce his criminal history score.  The court of appeals concluded that the amelioration doctrine should be applied to Robinette’s sentence and therefore reversed and remanded his case for resentencing based on a 2019 modification to the sentencing guidelines.

On appeal to the supreme court, the issue presented is whether the amelioration doctrine should be applied to Robinette’s sentence.  (Otter Tail County)


Nonoral:  Kristopher Ouellette, Respondent vs. Wal-Mart Stores, Inc., and Wal-Mart Claims Services, Inc., Relators – Case Nos. A20-0384, A20-0415:  In 2011, respondent Kristopher Ouellette incurred a foot injury while working for Relator Wal-Mart and received workers’ compensation benefits.  In 2013, Wal-Mart petitioned to discontinue Ouellette’s workers’ compensation benefits.  The compensation judge determined that the preponderance of the evidence did not support a 75% permanent partial disability rating and granted the petition.  In 2019, Ouellette filed a new claim for workers’ compensation benefits and asserted that he now had an 83% permanent partial disability based on his 2011 injury and additional complications.  The compensation judge granted Wal-Mart’s motion to dismiss based on res judicata.  The Workers’ Compensation Court of Appeals affirmed in part and reversed in part, determining that Ouellette’s claim for 75% permanent partial disability claim was barred by res judicata but the claim beyond that amount was not barred.

On appeal to the supreme court, the issue presented is whether the doctrine of res judicata applies to Ouellette’s claim, in whole or in part.  (Workers’ Compensation Court of Appeals)

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