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Court of Appeals Digest: Aug. 21, 2023

Minnesota Lawyer//August 24, 2023

The Minnesota Judicial Center stands in the Capitol complex in St. Paul. (File photo)

Court of Appeals Digest: Aug. 21, 2023

Minnesota Lawyer//August 24, 2023

Civil Precedential



Francise Fee

These consolidated appeals were taken from judgments entered after a trial of claims arising out of a business dispute. In 2008, appellant entered into a business relationship with respondent, some of which was governed by a series of written contracts. For eight years, appellant cut quartz slabs, finished or fabricated the slabs into countertops, and sold them to respondent, which installed the countertops in homes and other settings. In 2017, respondent notified appellant that it was terminating the agreements. Respondent sued appellant for unpaid invoices for countertops that had been delivered; appellant counterclaimed for damages caused by respondent’s abrupt termination of their business relationship, among other things. On appeal, appellant asserted that the District Court erred by (1) dismissing at summary judgment appellant’s counterclaim that the parties’ relationship was a franchise and respondent violated the Minnesota Franchise Act (MFA), specifically, Minn. Stat. § 80C.14, subd. 3; (2) dismissing at summary judgment appellant’s counterclaims for tortious interference with contractual relations and unfair competition; (3) rejecting at summary judgment appellant’s defense that respondent breached their contracts first and thereby excused appellant’s performance; (4) awarding attorney fees to respondent under one of the parties’ written contracts; (5) improperly instructing the jury on recoupment damages and denying appellant’s motion for a new trial on that ground; (6) failing to enter judgment for appellant on prejudgment interest; (7) awarding costs and disbursements to respondent based on an unaccepted offer of judgment under Minn. R. Civ. P. 68.03; and (8) imposing sanctions against appellant’s attorney for violating a protective order.

The Court of Appeals held that (1) for purposes of the Minnesota Franchise Act, a payment for a customized or fabricated good at a bona fide wholesale price is not a franchise fee under Minn. Stat. § 80C.01, subd. 9, when the predominant purpose of the parties’ contracts is a finished product and not services; and (2) under Minn. R. Civ. P. 68.01, an unaccepted offer of zero dollars entitles the offeror to recover costs and disbursements as provided in Minn. R. Civ. P. 68.03 if the relief awarded is less favorable to the offeree than the unaccepted offer. Affirmed.

A22-0723, A22-0724 Cambria Co., LLC v. M&M Creative Laminants, Inc. (Le Sueur County)





Appellant city challenged a District Court order vacating an Minnesota Office of Administrative Hearings (OAH) order that approved the city’s annexation of a designated area in an adjacent township by joint resolution under Minn. Stat. § 414.0325, subd. 1(h), and remanding for an evidentiary hearing. The Court of Appeals held that review by OAH of a joint resolution for annexation under subd. 1(h) is limited to determining satisfaction of the conditions and procedural requirements in Minn. Stat. § 414.0325, subds. 1, 1b. Reversed.

A23-0048 Trails Truck & Travel Plaza, LLC v. Albert Lea Twp. (Freeborn County)



State Tort Claims Act

Vicarious Liability

Appellant, a former inmate, challenged the dismissal of her claims against respondents—the State of Minnesota, its department of corrections (the DOC), and its commissioner of corrections—arising out of a sexual assault by a correctional officer. Appellant asserted the District Court erred by (1) dismissing her tort claims against respondents on the ground that respondents were immune from vicarious liability, and (2) granting summary judgment on her sex-discrimination claim under the Minnesota Human Rights Act (the MHRA).

The Court of Appeals held that an inmate who asserts a claim for sex discrimination in the provision of public services under Minn. Stat. § 363A.12 arising out of a sexual assault by a corrections officer who had custody of the inmate, is not required to prove that the corrections officer’s employer knew or should have known of the sexual assault to hold the employer vicariously liable. Reversed and remanded.

A22-1827 Brisson v. State (Ramsey County)




Civil Nonprecedential


Domestic Relations

Child Custody; Modification

The parents of a ten-year-old child, who share joint legal custody, could not agree on which school the child should attend after the child’s mother moved from one city to another. The District Court granted the mother’s motion for an order specifying the school district of her new residence. In addition, the child’s father moved to modify custody and parenting time. The District Court granted the father’s motion in part by awarding equal amounts of parenting time but denied his motion in part by not ordering joint physical custody. The Court of Appeals concluded that the District Court did not clearly err in any of its factual findings related to the mother’s motion, applied the proper legal standard to father’s motion to modify physical custody, and did not clearly err in any of its factual findings related to the father’s motion. Affirmed.

A22-1290 Gustamante v. Schwamberger (Blue Earth County)



Domestic Relations

Child Protection; Termination of Parental Rights

Appellant challenged the termination of her parental rights to her two children. She argued that respondent county did not make reasonable efforts to reunify the family because it did not prepare an adequate case plan. The Court of Appeals concluded that county made reasonable efforts to reunify the family notwithstanding any technical deficiencies in appellant’s case plan. Affirmed.

A23-0345 In re Welfare of Children of S.A.N. (Hennepin County)




Equitable Subordination

In this latest and fourth appeal arising from a property dispute between common-interest communities each of which controls its own section of the same property, appellant argued that the District Court erred when it (1) failed to apply the doctrine of equitable subordination, (2) determined that the doctrine of merger did not apply, and (3) failed to address its receivership argument. Respondents filed notice of a related appeal arguing that the District Court erred when it ordered the parties to split the receiver’s costs and fee. The Court of Appeals concluded that, even if we were to conclude that a finding of bad faith warranted the application of equitable subordination, respondent’s roles first as assignee then subsequently as the assignor of the mortgage were not undertaken in bad faith, and thus equitable subordination did not apply.

A22-1814 Fern Hill Place Homeowners Ass’n Inc. v. Fern Hill Place Retail Ass’n, Inc. (Hennepin County)





Pro se appellant challenged the denial of his motion to reopen a stipulated judgment, arguing that the judgment was unfair for various reasons and should be vacated under Minn. R. Civ. P. 60.02(f). Noting that, although appellant may have felt pressured to reach a settlement because of the duration of the litigation and the District Court’s exclusion of nearly all of his evidence based on his failure to timely disclose it, those pressures are predictable, if frustrating, aspects of litigation, the Court of Appeals discerned no abuse of discretion in the District Court’s decision. Affirmed.

A23-0512 Baye v. McKee (Ramsey County)



Limited Liability Companies


Appellant challenged the judgment entered against him following a court trial of respondent’s breach-of-contract claim, arguing that respondent, as an administratively dissolved LLC, lacked standing to sue. The Court of Appeals concluded that the record supported the District Court’s finding that respondent cured the termination by paying a fee. Affirmed.

A23-0423 Design Innovations, LLC v. Lockhart (Hennepin County)



Medical Malpractice

Expert Testimony

Appellant-child appealed the summary-judgment dismissal of her medical-malpractice action against respondents, hospital and clinic, for an alleged birth injury. She argued that the District Court erred by excluding expert testimony regarding her primary liability theory—cranial compression ischemic encephalopathy (CCIE)—following a Frye-Mack hearing. Appellant further contended that the District Court erred by determining that she had produced no evidence to support her additional liability theory, uteroplacental insufficiency. The Court of Appeals concluded that the District Court did not abuse its discretion by excluding testimony concerning CCIE on the ground that the theory lacked foundational reliability and did not err in concluding that appellant had offered no admissible evidence to support her uteroplacental-insufficiency liability theory. Affirmed.

A23-0190 Moore v. Maple Grove Hospital (Hennepin County)



Unjust Enrichment


Appellant and respondent twice married each other and twice divorced each other before reuniting, building and furnishing properties together, and again separating. Respondent sued appellant for unjust enrichment based on his having paid to build and furnish a cabin on appellant’s lakefront property and having made the down payment on and furnished the parties’ dual-purpose residence and bed-and-breakfast. The District Court ordered appellant to reimburse respondent for his expenditures. Noting that the record demonstrated that respondent improved the property after appellant told him that he could use the property as his own, the Court of Appeals concluded that the District Court acted within its equitable discretion. Affirmed.

A22-1706 Hepfl v. Meadowcroft (Waseca County)



Civil Order Opinions


Domestic Relations

Dissolution; Discovery

In this challenge to a dissolution judgment in which appellant did not provide any transcripts, the Court of Appeals concluded, that, although the District Court’s fee-related findings of fact were limited, they supported the award of fees for discovery problems. Affirmed.

A22-1491 Ly v. Ly (Hennepin County)


In Forma Pauperis


Appellant challenged an order denying his in forma pauperis (IFP) application based on the District Court’s finding that appellant’s action was frivolous. The Court of Appeals concluded that the District Court was not required to make additional findings beyond that the action was frivolous, and did not abuse its discretion as appellant cited no caselaw supporting his theory of a general right to appointed counsel for civil litigation. Affirmed.

A23-0057 Orsello v. Dep’t of Hum. Rights (Chisago County)



Criminal Precedential


Bail Bonds


Appellant surety petitioned to reinstate a $300,000 bond that was forfeited after defendant failed to appear for an omnibus hearing in the District Court. The District Court granted the petition in part by reinstating and discharging $100,000 of the value of the bond but otherwise denied the petition. Appellant appealed. Noting that appellant did not describe or state the amount of its expenses in attempting to locate defendant, let alone itemize the expenses, the Court of Appeals concluded that the District Court did not err in its analysis of the Shetsky factors and in its decision to only partially reinstate and discharge the bond. Affirmed.

A23-0321 State v. Williams (Crow Wing County)





Defendant challenged his conviction of second-degree criminal sexual conduct, arguing that the District Court lacked jurisdiction to adjudicate the offense under Minn. Stat. § 260B.193, subd. 5(d), because it occurred before his 14th birthday and he was not charged until after his 21st birthday.


The Court of Appeals held that the grant of District Court jurisdiction in Minn. Stat. § 260B.193, subd. 5(d), which applies to a proceeding alleging an offense committed by an adult prior to the adult’s 18th birthday, does not apply if the alleged offense occurred before the adult became 14 years of age. Reversed.

A22-1669 State v. Thompson (Clay County)



Right to Counsel


Defendant appealed his sentence for first-degree sale of a controlled substance and possession of ammunition by an ineligible person. Defendant argued that he was entitled to a new sentencing hearing because he was not represented by counsel at his sentencing hearing and the District Court did not obtain a waiver of his right to counsel. The Court of Appeals held that a criminal defendant must either expressly or impliedly waive the right to counsel before proceeding pro se at a felony sentencing hearing. Reversed and remanded.

A22-1333 State v. Gant (Hennepin County)




Criminal Nonprecedential




On appeal from the District Court’s order adjudicating appellant guilty of first-degree assault, appellant argued that the District Court clearly erred in making credibility findings that were not based on the evidence and misapplied the law of self-defense. The Court of Appeals concluded that appellant failed to show that the District Court’s credibility determination in light of the witnesses’ testimony was improper or that there was insufficient evidence in the record to conclude that appellant was not acting in defense of self or others when he struck the victim. Affirmed.

A22-1820 In re Welfare of D.K.B.-W. (Hennepin County)




Sufficiency of the Evidence

On appeal from a conviction for aiding and abetting a first-degree burglary, defendant argued that (1) the evidence presented at trial was insufficient to establish criminal knowledge and intent, (2) the District Court committed reversible error by erroneously instructing the jury on accomplice liability, (3) the District Court abused its discretion in its evidentiary rulings, and (4) the District Court abused its discretion by sentencing her to a significantly longer term of imprisonment than the principal actor. The Court of Appeals concluded that the totality of the circumstances proved led only to the rational inference that defendant intended for accomplice to obtain money from the victim for her after she failed to obtain it on her own. Affirmed.

A22-1557 State v. White (Hubbard County)




Sufficiency of the Evidence

In this direct appeal from final judgment, defendant challenged the District Court’s contempt finding. He argued that his statements did not constitute direct criminal contempt. Alternatively, defendant contended that the District Court abused its discretion by summarily sentencing him to 180 days and by ordering that the 180-day contempt sentence be served consecutive to a subsequently imposed prison sentence. The Court of Appeals concluded that the record demonstrates that defendant’s statements at the end of his conditional-release violation hearing were contumacious, made in bad faith, and disrespectful to the judicial process, and that they interrupted a judicial proceeding. However, the District Court abused its discretion by imposing a 180-day contempt sentence without finding that aggravating factors were present. Affirmed in part, reversed in part, and remanded.

A22-1732 State v. Kalland (Morrison County)



Criminal Sexual Conduct


In this direct appeal from his judgment of conviction for second-degree criminal sexual conduct, defendant argued that his conviction must be reversed because the state’s evidence was insufficient to prove his guilt beyond a reasonable doubt. The Court of Appeals concluded that the only reasonable inference from the circumstances proved was that defendant acted with sexual intent, noting that the location of the contact alone—the victim’s groin area—meant that sexual intent could be readily inferred, and that defendant described touching the victim as a “bad decision” and told a detective that he “hate[d]” himself for it. Affirmed.

A22-1352 State v. Giroux (Wilkin County)



Criminal Sexual Conduct

Sufficiency of the Evidence

A mother reported to police that her eight-year-old daughter, who had previously suffered unexplained labial scratches, told her that family friend defendant sexually assaulted her. Defendant appealed from his first-degree criminal-sexual-conduct convictions and summary denial of his petition for postconviction relief. The Court of Appeals concluded that the child’s testimony of defendant’s genital-to-genital abuse and other evidence amply supported the guilty verdict. Furthermore, defendant did not attempt to explain how the alleged deficiencies in his trial attorney’s performance might have led to a different outcome. Affirmed.

A22-0567 State v. Korir (Scott County)



Evidentiary Stipulations

Harmless Error

Defendant challenged his gross-misdemeanor domestic assault and first-degree burglary convictions, arguing the District Court erred by admitting testimony prohibited by a pretrial stipulation, the state engaged in prejudicial prosecutorial misconduct, and the District Court erred by admitting relationship evidence. The Court of Appeals concluded that any error in the officers’ two isolated references to their understanding that a call was for a “domestic with weapons” was harmless. Furthermore, the alleged misconduct did not prejudice defendant’s substantial rights. Affirmed.

A22-1473 State v. Campbell (St. Louis County)





The State charged defendant with first-degree criminal sexual conduct after the victim, who had attended a party at defendant’s house, reported that defendant had sexually assaulted her at the party. On appeal, defendant argued that the District Court abused its discretion in denying his pretrial motion to prohibit the state’s DNA experts from using the term sperm-cell fraction when testifying about their testing methodology; violated his constitutional right to confrontation by requiring trial witnesses to wear face shields despite reflected glare on the shields from overhead lighting; and abused its discretion in denying his motion for a downward dispositional departure. The Court of Appeals found no abuse of discretion in the use of the term sperm-cell fraction, as ample testimony was provided at trial to dispel any confusion that may have been caused by the term. Furthermore, the use of face shields did not violate defendant’s right to confrontation, as the identity of the witnesses was known, and they wore clear face shields that only intermittently may have obscured full visibility of the witnesses’ faces. Affirmed.

A22-0726 State v. Voeltz (Olmsted County)



Ineffective Assistance of Counsel

Deficient Performance

Defendant challenged his conviction of second-degree criminal sexual conduct due to ineffective assistance of trial counsel and prosecutorial misconduct. Defendant argued that he received ineffective assistance when his counsel, inter alia, agreed to or did not object to the evidence that defendant watched pornography involving themes of incest and school uniforms, and his wife believed that the victim’s accusations against defendant were credible. The Court of Appeals found no deficiency, noting that the jury would have heard the same information from wife’s interview recordings, which included defendant’s pornography-browsing history, and the redaction of the statement about what wife believed would not have made any reasonable difference, as the theory was that the victim lied to benefit wife in a custody dispute. Affirmed.

A22-1252 State v. Vasquez Rosales (Mower County)





Defendant arrived drunk at his former girlfriend’s home and stabbed a man in the back. Defendant challenged his consequent second-degree-assault conviction, arguing that the District Court erred by not suppressing in-custody statements he made to a police investigator because the investigator initiated contact with him after he had been appointed legal counsel. Defendant also contended that the District Court erred by admitting into evidence a computer-generated report that organized data and text messages from his cellphone because it deprived him of his constitutional right to confront witnesses against him and because the report was not properly authenticated. The Court of Appeals concluded that the District Court did not err by denying defendant’s motion to suppress, as a police investigator may interview a represented, in-custody defendant who validly waives his right to have counsel present. Furthermore, the computer-generated report containing defendant’s cellphone data does not implicate hi rights under the Confrontation Clause and was sufficiently authenticated. Affirmed.

A22-1182 State v. Manton (Clay County)



Probation Revocation

Need for Confinement

Defendant challenged the District Court’s decision to revoke his probation after his fourth probation violation, arguing that the District Court erred in determining that the need for confinement outweighed the policies favoring continued probation. Given the latitude that a District Court has in addressing probation violations and the District Court’s detailed and supported findings, the Court of Appeals was not persuaded that the District Court erred in revoking defendant’s probation. Affirmed.

A23-0062 State v. Stover (Stearns County)



Search Warrants


In this direct appeal following his conviction for possession of child pornography, defendant challenged the District Court’s order denying suppression of evidence seized in a warranted search of the residence in which he rented a room. Defendant claimed that the search of his room and the search of his computer exceeded the scope of the warrant. The Court of Appeals concluded that the search of defendant’s room was within the scope of the warrant, and defendant failed to preserve a challenge to the search of his computer. Affirmed.

A22-1816 State v. Shea (Clay County)




Reasonable Articulable Suspicion

Defendant appealed his convictions, following a jury trial, for attempted third-degree criminal sexual conduct and electronic solicitation of a child. He argued that the District Court erred in denying his pretrial motion to suppress evidence after determining that a police officer had a reasonable and articulable suspicion of criminal activity that justified the officer’s decision to seize him. The Court of Appeals concluded that the totality of the specific factual circumstances provided the officer with an objectively reasonable and articulable suspicion that defendant was engaged in criminal activity, noting that the officer observed that defendant engaged in suspicious driving conduct at a late hour; defendant was driving a pickup truck that largely matched the description of a reported stolen vehicle; defendant parked the pickup truck in a parking lot for businesses that were closed; and defendant abruptly exited his car when the officer pulled into the parking lot behind him. Affirmed.

A22-1322 State v. Alarcon (Steele County)




Downward Departures

Defendant challenged his presumptive sentence for first-degree criminal sexual conduct, arguing that the District Court abused its discretion by failing to consider the valid reasons supporting a downward dispositional departure. Noting that it was clear that the District Court weighed the reasons for and against a dispositional departure, the Court of Appeals concluded that it was not persuaded that the District Court abused its discretion in imposing the presumptive sentence or that this was the rare case in which such a sentence would be disturbed. Affirmed.

A22-1471 State v. Owens (Le Sueur County)



Terry Search

Reasonable Articulable Suspicion

Defendant argued that his convictions of unlawful possession of a firearm, fifth-degree possession of a controlled substance, and obstruction of legal process must be reversed because the District Court erred by denying his pretrial suppression motion, which was based on the assertion that the state intended to rely on illegally obtained evidence. The Court of Appeals concluded that the officer had reasonable, articulable suspicion to stop and frisk defendant, noting that the officer arrived within five minutes of the 911 call around midnight and testified that, because of the vague suspect description he received from dispatch coupled with defendant’s appearance and close proximity to the building, he suspected that defendant was involved in the reported incident. Affirmed.

A22-1429 State v. Bithow (Stearns County)



Threats of Violence

Sufficiency of the Evidence

In this direct appeal from the judgment of conviction for threats of violence, domestic-assault strangulation, and third-degree assault, defendant argued (1) the evidence was insufficient to prove his guilt for threats of violence, (2) his conviction for third-degree assault must be vacated, and (3) his waiver of counsel was invalid. Defendant argued that because his threats constituted a threat of imminent rather than future harm, the state failed to prove his conduct constituted threats of violence. The Court of Appeals concluded that the fact that defendant reached into his backpack during an ongoing altercation did not prevent his conduct from threatening future violence. Furthermore, third-degree assault was not an included offense of domestic-assault strangulation, and defendant’s waiver of counsel was valid. Affirmed.

A22-1677 State v. Weston (Carlton County)

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