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.
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.