Lommen Abdo Appellate Decisions
For more information, contact Kay Nord Hunt, Appellate Section Chair, at kay@lommen.com or 612-336-9341 or 800-752-4297.
Appellee "MHM" sued its former employees and shareholders, all CPAs licensed by the State of Minnesota, to enforce restrictive covenants contained in contractual agreements between the appellants and MHM. Following a bench trial, the district court granted judgment to MHM, awarding MHM permanent injunctive relief and $1,369,921 in liquidated damages. Appellants bring this appeal, contending that: (1)
enforcement of the restrictive covenants is contrary to Missouri law and (2) even if the restrictive covenants are enforceable, the liquidated damages provision is void and unenforceable under Missouri law. We reject these contentions and affirm the judgment of the district court.
Appellant challenges the judgment denying enforcement of a personal guaranty against respondent. The district court erred as a matter of law in concluding that the personal guaranty is unenforceable because it is ambiguous; and the clear terms of the personal guaranty mandate entry of judgment in favor of appellant.
Negotiated-discount amounts—amounts a plaintiff is billed by a medical provider but does not pay because the plaintiff’s insurance provider negotiates a discount on the plaintiff’s behalf—are "collateral sources" for purposes of the collateral-source statute, Minn. Stat. § 548.251 (2008).
An easement-user who crosses a state trail for purposes of access to the main road as contemplated by Minn. Stat. § 85.015, subd. 1b (2004), is not a “trail user” within the meaning of Minn. R. 6100.3400, subp. 6(D) (2009).
In dissolving the parties’ four-year marriage, the district court ruled that the parties’ entire premarital agreement (PMA) was unenforceable and awarded respondent Jennifer Igo $60,000 in costs and attorney fees, despite inclusion in the parties’ PMA of a severability clause and a provision requiring the parties to pay their own costs and attorney fees in the event of a marital dissolution. On appeal, appellant Richard Igo argues that the district court (1) erred by failing to consider the effectiveness of the severability clause when it determined that the entire PMA was unenforceable; (2) abused its discretion by awarding respondent attorney fees without identifying the extent to which the award was need-based or conduct-based; and (3) abused its discretion by imposing a continuing monetary sanction against appellant for his failure to turn over eleven vehicles to respondent as required by the original decree.
In this marital-dissolution appeal, appellant-obligee Mark Edward Clyma argues he should have received a larger share of marital property, a larger, permanent spousal-maintenance award, and additional need-based attorney fees. Respondent-obligor Tracy Joan Van Steenburgh challenges the existing awards of maintenance and attorney fees.
Appellant challenges the district court’s denial of his motion for amended findings or a new trial in this child custody case. Because the district court did not abuse its discretion in establishing the extent and conditions of appellant’s parenting time, we affirm.
Appellant challenges the district court’s grant of summary judgment in favor of respondents, arguing that genuine issues of material fact exist concerning his claims of breach of contract, tortious interference of contract, defamation, and tortious interference with prospective economic advantage.
In this personal injury action, Appellant challenges the judgment, which resulted in no recovery of medical costs because the jury’s award of damages was offset by the amount she received from collateral sources pursuant to Minn. Stat. § 548.251 (2008). Appellant asserts that the court erred by refusing to reduce the collateral source offset by the amount of the costs and attorney fees she incurred to obtain judgment.
This is an appeal from summary judgment in an interpleader action in which the district court determined that respondent partnership was entitled to the proceeds from the settlement of a lawsuit against the federal government, and dismissed appellants’ damages claims against respondent law firms, who were litigation counsel in the federal lawsuit and commenced this interpleader action to resolve the dispute over settlement proceeds.
The district court's orders regarding Basic Resolution 876 are void because the district court lacked in rem jurisdiction over the revenue bonds.
In this land-use dispute, appellant argues that it has the inherent authority to amend respondent’s CUP to reflect the representations that respondent made in its CUP application regarding its intended use of the property. Respondent contends that appellant cannot unilaterally amend its CUP.
Appellant sued several drug manufacturers after she was diagnosed with hormone-dependent breast cancer following years of hormone-replacement therapy. The district court awarded summary judgment to respondents Pfizer, Inc., Pharmacia & Upjohn Co., LLC, and Greenstone, Ltd. based on appellant‟s failure to raise a genuine issue of material fact regarding her claimed ingestion of drugs manufactured by these respondents. After holding that appellant‟s proffered specific-causation evidence does not satisfy the Frye-Mack standard and that appellant‟s experts are not qualified under Minn. R. Evid. 702, the district court awarded summary judgment to Wyeth, Inc. and Wyeth Pharmaceuticals, Inc.
On appeal in this spousal maintenance dispute, appellant-husband argues that the district court‟s spousal maintenance award was an abuse of discretion and the district court miscalculated the equalizer payment.
In this land dispute case, appellants challenge the district court's grant of summary judgment in favor of respondents on the issues of adverse possession, ejectment, and judicial determination of the boundary lines. Appellants also argue that they were entitled to summary judgment on the ejectment issue. On notice of review, respondents contend that when appellants' adverse-possession claim was dismissed, it should have been dismissed with prejudice.
Kevin Rains sued his employer, BNSF Railway Company, under the Federal Employer’s Liability Act for injuries he suffered from falling while inspecting a train stopped on a bridge. The district court granted summary judgment for BNSF after finding no evidence that BNSF’s negligence caused Rains’s fall and injuries. Rains appeals.
Appellant argues that the district court abused its discretion in denying his motions for modification of child support and for an evidentiary hearing on modification of legal custody of the parties’ two children.
These consolidated appeals concern a dispute that ignited when the president of a lighting contracting company discovered files left on the computers of two managers who suddenly quit their employment. The discovery convinced the company that the two departing employees had been competing with the company for a contract with one of its prospective clients. A jury found that the employees breached their fiduciary duty and interfered with the company‘s prospective business relationship, awarding damages for the company‘s lost profits. But the district court entered judgment only on the company‘s claim of interference with a prospective business relationship, not breach of fiduciary duty, giving no reason for the omission. Both sides claim error.
This dispute arose after a debtor trusted her attorney’s mistaken opinion that the debtor’s annuity, created by a structured settlement in a civil suit, would entirely survive a bankruptcy proceeding. The debtor, Kimberly Russell, filed for bankruptcy and lost to creditors all but 20% of the value of the annuity. Russell sued George Roberts, her attorney, for legal malpractice and fraudulent misrepresentation. The district court granted Roberts summary judgment because Russell could not prove that she would have obtained a more favorable result by not filing for bankruptcy.
Appellant lessor challenges summary judgment dismissing its action for reformation of a lease and denial of its motion to amend the complaint to add a claim for rescission. Because the district court did not err in concluding that, as a matter of law, appellant is not entitled to reformation or rescission, we affirm.
A seller, who represents to a buyer that a septic system complies with applicable laws and rules governing sewage-treatment systems and who has reason to know that the representations are false, is not shielded from liability under Minn. Stat. § 115.55, subd. 6 (2008), based on the existence of a septic-system certificate of compliance.
In this spousal maintenance dispute, appellant challenges the district court’s denial of his motion to modify maintenance and award of respondent’s attorney fees. Appellant argues that the district court abused its discretion when it found that respondent’s increased income was not a substantial change in circumstances that made the current maintenance payments unreasonable and unfair.
Todd Franck appeals a judgment that dismissed his breach of contract and misrepresentation claims against CBL Partners, LLC, and its member, Lon Feia, and denied his motions after the verdict. He also appeals a judgment awarding attorney fees and costs to CBL. Franck contends the court No. 2008AP791 2 erroneously concluded a purchase contract for a condominium unit was ambiguous and the court should not have permitted the jury to determine the parties’ intent. He also contends the court erroneously instructed the jury on his misrepresentation
claim.
Appellants challenge the district court's determination of a collateral-source offset for past medical expenses following a jury‟s award of damages to respondent. Appellants argue that under the collateral source statute, Minn. Stat. § 548.36, subd. 2 (2006), they are entitled to a full offset of respondent‟s past medical expenses, including amounts the medical providers wrote off.
Appellant J.W.‟s son, B.R.W., was sexually assaulted by another child while riding a school bus. Appellant sued two school districts and Adam Services, Inc. (Adam), the bus company that provided transportation during the school year. On summary judgment, the district court dismissed all of appellant‟s claims against respondents except for the negligence claim against respondent Adam. The district court also denied appellant‟s motion to amend her complaint to add a punitive-damages claim against Adam and Adam‟s motion for summary judgment.
On appeal after remand in this marital-dissolution proceeding, appellant-father Thomas Daley argues that the district court failed to follow this court’s remand instructions, abused its discretion by awarding permanent maintenance to respondent-mother Anne Daley, failed to make the findings required to support an upward deviation from his presumptively appropriate child-support obligation, and abused its discretion by making his support obligation retroactive to January 1, 2006. Father also argues that the district court failed to make the findings necessary to support an award to mother of need-based attorney fees.
The Minnesota Supreme Court has directed the Minnesota Court of Appeals on remand to address the district court’s summary judgment order concluding that two securities offerings issued by appellants were integrated and thus not exempt from registration under Minnesota law.
On appeal from dismissal after remand of appellants’ claims for breach of contract, breach of fiduciary duty, and restitution, appellants argue that the district court erred in dismissing their claims because expert testimony is not required to present a prima facie case for breach of contract or for breach of fiduciary duty, and that if either claim is reinstated, the restitution claim must also be reinstated. Appellants also contend that the district court abused its discretion in refusing to consider appellants’ motion to amend their complaint.
On remand from the Supreme Court, the Court of Appeals has been directed to address whether the investment return on appellant’s nonmarital interests in certain retirement accounts is marital because appellant did not (a) trace nonmarital interests in the appreciation of his interests in the retirement accounts or (b) distinguish the nonmarital appreciation of his interests from the marital income generated by those interests.
Appellant Alexei Popel challenges the judgment dissolving his marriage to respondent Michelle Popel, arguing that the district court abused its discretion when it (1) awarded the parties joint physical custody of their child; (2) considered his pension payments when finding his net monthly income for child-support purposes; (3) denied his motion for child-support arrearages; and (4) determined respondent‟s nonmarital interest in the marital home.
Appellant challenges the denial of his motion for judgment as a matter of law (JMOL), arguing that the jury’s finding that he conspired with a party to a noncompete contract to intentionally cause a breach of the contract and/or conspired with a nonparty to interfere with the noncompete contract is contrary to law.1 Because the verdict is contrary to law, we reverse the denial of appellant’s motion for JMOL.
Appellant challenges the district court’s dismissal of a medical-malpractice claim based on the failure to comply with the expert-disclosure statute, arguing that (1) the disclosures are sufficient to make the prima facie showing required by the statute and (2) the district court improperly evaluated and weighed the expert opinions against rebuttal evidence.
1. Federal law does not preempt state registration requirements with respect to securities that purport to be, but are not in fact, federal covered securities.
2. A securities offer need not result in a sale in order to be integrated under Minn. Stat. § 80A.15, subd. 2(h)(10) (2006), and Rule 502 of Regulation D, 17 C.F.R. § 230.502 (2007).
The Minnesota State Supreme Court today ruled that, in a failure to diagnosis cancer case, the statute of limitations begins at the point when, looking at the unique circumstances of the particular case, “some compensable damage occurred as a result of the alleged negligent diagnosis.” After reviewing the particular facts of the case at hand, the court ruled in the case of Margaret MacRae v. Group Health Plan, et al., that the statute of limitations had not run before Mrs. MacRae brought the lawsuit alleging that her husband had died because of the failure to diagnose the cancer . MacRae died on August 26, 2005 and a medical malpractice lawsuit was brought in 2006. The defendants had won a ruling in a lower court that the four-year statute of limitations had begun in January of 2001, the date when the physician wrongly told Mr. MacRae his lesion was not cancer.
This appeal arises out of a declaratory judgment action initiated by appellant insurer to determine its liability to respondent building owner for damages resulting from the work of its insured, a roofing contractor. Appellant insurer challenges the district court‟s decision that liability for the underlying jury award against the roofing contractor for negligence is covered under its policy, that none of the policy exclusions are applicable, and that the bankruptcy of the roofing contractor does not relieve appellant of its obligations to respondent. Appellant also claims the recovery exceeds the policy limits. Respondent claims the policy limits do not apply to postjudgment interest. We affirm the district court‟s determinations that the bankruptcy does not relieve appellant of its obligation and that the policy exclusions are not applicable. Because the policy limits recovery for property damage to $1,000,000, we modify the jury award to comply with that limit. Finally, we determine that respondent is entitled to postjudgment interest without regard to the policy limits.
The appreciation in the value of a nonmarital asset is marital solely to the extent that marital effort - the financial or nonfinancial efforts of one or both spouses during the marriage - has been expended to generate it, irrespective of whether a spouse has control over the asset. The appreciation in the value of the nonmarital portion of an investment portfolio is passive where no significant effort was diverted from the marriage to generate the increase. Only the financial and nonfinancial efforts of the spouses themselves are relevant to the assessment of marital effort. The district court abused its discretion by failing go have the husband account for attorney fees paid out of a marital checking account.
This appeal arises from a district court order enforcing a pretrial order for payment of temporary spousal maintenance after the court entered a final decree of marital dissolution. Appellate argues that the district court did not have subject matter jurisdiction to enforce the pretrial order after final judgment had been entered.
This is an antitrust case. The plaintiffs accuse 24 taverns in the immediate vicinity of the University of Wisconsin campus in Madison, Wisconsin, and the Madison-Dane County Tavern League of horizontal price-fixing violations under Wis. Stat. §133.03(1) because, in response to the pressure from city government to ban all drink specials after 8 p.m. in the city, the 24 taverns agreed to eliminate drink specials at their establishments on Friday and Saturday nights after 8 p.m.
Respondent, the Port Authority of the City of St. Paul, lacking sufficient funds to pay the interest and principal owed to its bondholders, petitioned the district court for an instruction approving its plan to liquidate the repayment fund and discharge a percentage of its debt to all bondholders. Appellants, holders of the bonds with early experiation dates, moved the district court to dismiss respondent's petition for an instruction on the ground of lack of subject matter jurisdiction and to appoint a receiver; they also moved to vacate district court orders issued in response to respondent's petitions for instructions in 2002 and 2004. Appellants now challenge the denial of their motions.
In this appeal from a marital-dissolution judgment, appellant wife argues that the district court abused its discretion in awarding maintenance and in denying appellant need-based attorney fees and erred in awarding respondent husband conduct-based attorney fees. We affirm the district court’s decisions regarding attorney fees and reverse the maintenance award and remand for further proceedings.
Appellant challenges the grant of summary judgment to respondent, arguing that the district court erred by concluding that appellant's claim for underinsured-motorist benefits was barred by her failure to provide notice of the commencement of a lawsuit against the tortfeasor.
Corn Plus Cooperative brought a declaratory judgment claim against Continental Casualty Company and Lumbermens Mutual Casualty Company to enforce a settlement it had reached with its mechanical contractor who was insured by appellees. The district court determined that the insurance policies did not cover all of appellant's claims and thereafter granted summary judgment to the insurers, concluding that the settlement was unreasonable because it had failed to allocate between covered and noncovered damages. The court also refused to enforce an addendum to the settlement agreement for public policy reasons.
The Workers' Compensation Court of Appeals affirmed the decision of the Compensation Judge that the evidence as a whole did not establish that the employee had permanent partial disability due to a non-work-related hearing loss so as to establish eligibility to claim permanent and total disability. Although the Judge made no specific finding, the Court went on to further state that the claim should have been barred by the principle of res judicata as this same claim had been denied in a previous hearing and that the introduction of a new medical report did not create a new cause of action.
The Minnesota Court of Appeals reversed the trial court's holding that appreciation of a premarital retirement fund is non-marital property; instead, the appreciation is marital because husband and wife hired a financial advisor to manage the accounts, husband also actively managed the accounts himself by controlling and withdrawing funds and the funds in the accounts were always available as liquid assets which husband could withdraw at any time.
The Minnesota Court of Appeals has held that, when a sales offering is made pursuant to Regulation D, 17 CFR sec 230.501-.508, any allegation of improper registration is covered by federal law and any claim for failure to properly register under state law or for recission under state law is preempted.
under state law or for recission under state law is preempted.