Check out what is happening in the news relating to the firm and our clients. December 18, 2017 Lommen Abdo held its 12th annual Toys for Tots drive. The total number of toys donated was 61 and the total amount raised was $930 – topping our highest amount raised in past years by $150. November …
Rapp v. Weller – Wisconsin Court of Appeals Decision of October 31, 2017
Laura Rapp and Empire Fire and Marine Insurance Company appeal a summary judgment requiring payment on a personal representative’s bond based on Rapp’s failure to fulfill her duties as personal representative of the Estate of Laurence Berg. We conclude the undisputed facts show that Rapp failed to comply with the probate court’s orders and otherwise committed maladministration while acting as personal representative.
Florine v. Florine – Minnesota Court of Appeals Decision of October 23, 2017
In this marital dissolution action, appellant/husband challenges the district court’s property division, maintenance, and security decisions. By notice of related appeal, respondent/wife argues that the district court abused its discretion by failing to take taxes into account when setting her maintenance award and by ordering her to pay all of the homestead costs pending sale of the homestead.
Gorney v. Gorney – Minnesota Court of Appeals Decision of September 5, 2017
Appellant argues that the district court erred by miscalculating the spousal maintenance amount, establishing a payment schedule for a property equalizer, vacating the parties’ stipulation that appellant receive all of his restricted stock units, and granting respondent need-based attorney fees.
Crowley v. Meyer – Minnesota Supreme Court Decision of June 28, 2017
After dissolving their marriage, appellant and respondent agreed to share joint legal and physical custody of their children. Their agreement was reflected in a 2012 judgment and decree. In 2013, the district court issued a series of orders granting respondent “temporary” sole physical custody of the children. More than a year later, appellant moved to “reinstate” joint custody, but the district court denied her motion in a March 2015 order. Appellant appealed the March 2015 order. The court of appeals determined that it had appellate jurisdiction and affirmed the order.
Anderson v. Anderson – Minnesota Court of Appeals Decision of May 30, 2017
If a spousal-maintenance award is disputed, a recipient of the disputed award can preserve any right to a biennial cost-of-living adjustment under Minnesota Statutes section 518A.75 (2016) by sending notice of the adjustment to the obligor and, if the obligor contests the adjustment, asking the district court to hold in abeyance the question of whether to grant the adjustment.
Leiendecker v. Asian Women United of Minnesota – Minnesota Supreme Court Decision of May 24, 2017
Sinuon and Lawrence Leiendecker sued the nonprofit organization Asian Women United of Minnesota (AWUM), alleging that two of AWUM’s previous lawsuits against them constituted malicious prosecution. AWUM sought immunity under Minnesota’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law, which permits parties to move for dismissal of a lawsuit on the ground that a claim against them relates to an act involving public participation. After we clarified the law’s procedure, the district court ruled that the section of the law that governs motions “to dispose of a judicial claim,” Minn. Stat. § 554.02, subdivision 1, violated the Leiendeckers’ right to a jury trial by requiring the trial judge to find facts. Id., subd. 2(3) (requiring “the court” to make findings). AWUM appealed to the court of appeals, then petitioned this court for accelerated review.
Nordahl v. Nordahl – Minnesota Court of Appeals Decision of May 1, 2017
Teresa Marie Nordahl and Steven Edward Nordahl were married for approximately 25 years before their marriage was dissolved. The district court awarded Teresa temporary spousal maintenance of $2,500 per month for a period of approximately 12 years. The district court also awarded Teresa need-based attorney fees.
Hermer v. Cisek – Minnesota Court of Appeals Decision of March 13, 2017
Appellant Lawrence James Cisek, Jr., appeals from the district court’s award of permanent spousal maintenance to respondent Laura Diane Hermer, its division of the parties’ marital assets, and its determination that appellant’s child-support obligation to the mother of appellant’s children born of a previous marriage is a nonmarital debt.
Orr v. Britten – Minnesota Court of Appeals Decision of January 30, 2017
Appellant challenges the district court’s dismissal of her complaint for failure to comply with the one-year filing requirement of Minn. R. Civ. P. 5.04 and denial of relief under Minn. R. Civ. P. 60.02, arguing that the district court erred by concluding that attorney neglect in failing to comply with Minn. R. Civ. P. 5.04 could not constitute excusable neglect and that she did not act with due diligence.
Kremer v. Kremer – Minnesota Court of Appeals Decision of January 9, 2017
In this family-law case, appellant husband challenges the district court’s order declaring invalid the antenuptial agreement he executed with respondent wife. Husband also challenges the district court’s subsequent order awarding wife (1) $750,000 as her share of marital property, (2) temporary rehabilitative and permanent spousal maintenance, and (3) need-based attorney fees.The procedural fairness of an antenuptial agreement that covers or includes marital property is assessed under the common law, using the multifactor test outlined in In re Estate of Kinney, 733 N.W.2d 118 (Minn. 2007).
Rucker v. Rucker – Minnesota Court of Appeals Decision of December 27, 2016
Appellant-husband Kraig Rucker challenges an Olmsted County District Court’s judgment in the marriage-dissolution proceeding between appellant and respondent-wife Kathleen Rucker. Appellant argues on appeal that the district court (1) abused its discretion by granting sole physical and sole legal custody of the parties’ children to respondent and limiting his parenting time; (2) abused its discretion by denying appellant a downward deviation from the presumptively appropriate guideline child-support obligation; (3) abused its discretion by denying appellant spousal maintenance; (4) abused its discretion by denying appellant’s non-marital property claim; and (5) erred in construing an in vitro fertilization consent form to award respondent the parties’ cryopreserved embryos.
Expose v. Thad Wilderson & Associates – Minnesota Supreme Court Decision of November 30, 2016
Respondent Jerry Expose, Jr. brought a civil action against appellant Thad Wilderson & Associates, P.A. (the clinic) and appellant Nina Mattson (collectively appellants), asserting claims for unlawful disclosure of health records under the Minnesota Health Records Act, §§ 144.291-.298 (2014), invasion of privacy, vicarious liability, and negligent supervision. Appellants jointly moved for judgment on the pleadings, and the district court dismissed the claims. As relevant here, the district court ruled that appellants are immune from liability under Minn. Stat. § 148.975 (2014), that they are immune from liability under the common law doctrine of absolute privilege, and that Expose consented to Mattson’s disclosures. The court of appeals reversed on all of these issues except the immunity under the common law doctrine of absolute privilege as to the testimony from the criminal trial. We granted the clinic’s petition, as well as Mattson’s petition, for review. The three questions presented in the appeal arise in the context of a relationship between a patient and an unlicensed intern-therapist. First, we determine whether Minn. Stat. § 148.975, which imposes a duty to warn on a licensed therapist when a specific, serious threat of physical violence is made against a specific, clearly identified or identifiable person, imposes the same duty on an unlicensed intern-therapist to disclose that information to law enforcement. Second, we determine whether the common law doctrine of absolute privilege shields the disclosures made by an unlicensed intern-therapist to law enforcement and to prosecutors. Third, we determine whether a consent form notifying a client of the client’s rights under the Minnesota Health Records Act authorizes the release of the client’s medical records.
Gruett v. Labriola – Minnesota Court of Appeals Decision of November 14, 2016
Appellants Katherine A. Gruett and Gary L. Gruett challenge the district court’s imposition of frivolous-litigant sanctions under Minnesota General Rule of Practice 9. This case arises out of a protracted family dispute involving commercial real estate. Appellants are the daughter and son-in-law of respondent Victoria B. Labriola and John Labriola Sr. Appellants and John Labriola Sr. each held a one-half interest in commercial property. Victoria Labriola inherited this interest following her husband’s death. Victoria Labriola also held unpaid promissory notes from appellants. In 2006, Victoria Labriola and appellants entered into a loan agreement governing the repayment of the promissory notes.
Gams v. Houghton – Minnesota Supreme Court Decision of August 31, 2016
In this case, we are asked to decide whether Minn. R. Civ. P. 60.02 applies to a Minn. R. Civ. P. 5.04(a) “deemed” dismissal, and whether such a dismissal violates procedural due process. The district court concluded that Rule 60.02 is inapplicable to a dismissal under Rule 5.04(a) or, alternatively, that respondent Ferdinand Leo Gams, Jr. failed to establish all four requirements for relief under Rule 60.02, see Finden v. Klaas, 268 Minn. 268, 128 N.W.2d 748 (1964). The court of appeals reversed and remanded for reconsideration, rejecting the district court’s conclusions that Rule 60.02 was inapplicable and that all four Finden prongs must be established in order for relief to be warranted. Gams v. Houghton, 869 N.W.2d 60, 61 (Minn. App. 2015).
Cole v. Wutzke – Minnesota Supreme Court Decision of August 31, 2016
The question presented in this case is whether counsel’s mistake about the applicability of a procedural rule is sufficient, by itself, to deny relief under Minn. R. Civ. P. 60.02. The district court denied respondent Jerry Wayne Cole’s Rule 60.02 motion concluding that Cole’s counsel’s admitted “ignorance of the law” could not constitute “excusable neglect” under the rule. The court of appeals reversed and concluded that Cole was entitled to relief under Rule 60.02. Cole v. Wutzke, 868 N.W.2d 925, 928-30 (Minn. App. 2015).
Glenwood State Bank v. Golden West LLC, et al. – Minnesota Court of Appeals Decision of August 15, 2016
These consolidated cases come before us on appeal after years of litigation primarily between Glenwood State Bank and Peterson Earth Movers Inc. (PEM), PEM’s principal, LaVern “Bud” Peterson, JBI LLC, JBI’s principal Curtis Trude, and Golden West LLC, and Golden West’s principal LaDon Peterson. The instigating transaction was a defaulted loan from Glenwood to PEM guaranteed by Bud. PEM and Bud confessed to the default in 2010, and Glenwood obtained a judgment against them. But when the bank tried to repossess PEM’s earthmoving equipment and other property in 2011, Trude and his company JBI sued Glenwood claiming that JBI and Trude owned the property, not PEM. The bank filed a counterclaim against JBI and Trude, alleging several common law causes of action and that JBI acquired PEM’s equipment fraudulently in violation of the Minnesota Uniform Fraudulent Transfer Act (MUFTA). The bank also filed a third-party complaint against PEM and Bud, and against Bud’s brother, LaDon, and his company, Golden West LLC, alleging that they assisted and conspired in hiding PEM’s assets from the bank. The district court entered a default judgment against JBI and Trude for repeated discovery violations. PEM and Bud became subject to a default judgment after they failed to answer and avoided direct involvement with the litigation, but in March 2015 they moved for relief from the judgment. The district court tried Golden West and LaDon’s claims in a bench trial, and it found in Glenwood’s favor and held Golden West and LaDon liable for the initial judgment plus attorneys’ fees, costs, and interest.
Gruenstein v. Gruenstein – Minnesota Court of Appeals Decision of August 15, 2016
Appellant-father appeals from the consensual special magistrate’s rulings concerning custody, father’s request to relocate the children to Chicago, spousal maintenance, child support, and conduct-based attorney fees.
Ryan Contracting v. O’Neill & Murphy, LLP – Minnesota Supreme Court Decision of August 3, 2016
(1) The phrase “in use” in Minn. Stat. § 514.011, subd. 4c (2014), refers to both active and passive uses of land in existence at the time a mechanic’s lien attaches. (2) The real property in this case was not in agricultural use and was wholly or partially nonresidential in use at the time the mechanic’s lien attached, so no pre-lien notice was required under Minn. Stat. § 514.011, subd. 4c(c). (3) Under Minn. Stat. § 514.09 (2014), a mechanic’s lien claimant who performs work for the owner pursuant to a contract is not precluded from filing a blanket lien and then spreading the value of the lien on a pro rata basis against the whole area improved.
Frederick v. Wallerich – Minnesota Court of Appeals Decision of August 1, 2016
We affirm the district court’s order granting respondents’ motion to dismiss appellant Joseph W. Frederick’s legal-malpractice claims as barred by the six-year statute of limitations (SOL) because the district court did not err in determining that respondent attorney and her law firm did not commit separate acts of malpractice from 2007 through 2011, which would have tolled the limitations period. We further affirm because Frederick’s claims do not involve separate negligent acts and he did not set forth sufficient facts to establish that respondents concealed the cause of action.
Kaminski v. Hackett – Minnesota Court of Appeals Decision of August 1, 2016
Appellant challenges the district court’s denial of his motion for sole physical custody of his minor son, arguing that the district court erred by (1) considering the wrong standard in determining physical custody and (2) considering only one factor of the best interests of the child analysis to the exclusion of all others. Respondent challenges the district court’s grant of appellant’s motion for sole legal custody and award of attorney fees, arguing that the district court erred by (1) failing to limit its award of sole legal custody to only matters pertaining to the minor child’s health and (2) failing to make findings sufficient to award conduct-based attorney fees.
Addison v. West Bend – Wisconsin Court of Appeals Decision of July 13, 2016
This case is an insurance dispute between Addison Insurance Company and West Bend Mutual Insurance Company. The dispute arose when an employee of Badger State Auto Auction, Inc. (BSAA) injured the plaintiffs while driving a vehicle it was preparing to auction off for Fairview Auto, Inc. Addison insures Fairview and West Bend insures BSAA. The primary issue is whether Fairview’s policy with Addison covered the accident. The circuit court concluded it did, resting in part on the conclusion that the BSAA driver was acting as Fairview’s agent at the time of the accident.
Wines v. Wines – Minnesota Court of Appeals Decision of July 11, 2016
Appellant challenges the rule-12 dismissal of her claims, arguing that they are properly pleaded and timely. Respondents appeal the district court’s denial of their motion for rule-11 sanctions.
In the Matter of the RIJ Revocable Trust Agreement – Minnesota Court of Appeals Decision of July 11, 2016
Appellant, the daughter of a deceased trust settlor, challenges the district court’s conclusion that the settlor’s revocation of the trust was void and its judgment against appellant in favor of respondent, the settlor’s ex-wife. Respondent challenges the prejudgment award of costs and the denial of her motion to amend her application for costs; she also moves to strike parts or all of appellant’s briefs.
Reis v. Hallberg – Minnesota Court of Appeals Decision of May 9, 2016
Appellant challenges several aspects of the judgment dissolving her marriage on whether the district court abused its discretion by setting an incorrect valuation date for the marital and real-property assets, by awarding insufficient spousal maintenance, by declining to order life-insurance coverage to secure respondent’s maintenance obligation, and by denying appellant need-based attorney fees.
Excel Manufacturing v. Maren Engineering – Minnesota Court of Appeals Decision of April 18, 2016
The district court treated respondents’ motion as a motion for summary judgment. The district court granted summary judgment and dismissed all of Excel’s claims with prejudice.Excel argues that the district court erred by converting respondents’ motion to dismiss under rule 12 into a summary-judgment motion under rule 56.
Fern Hill Place Retail Association v. Fern Hill Place Homeowners Association – Minnesota Court of Appeals Decision of April 18, 2016
Appellant retail association challenges the district court’s denial of its motion to vacate an arbitration award, arguing that the arbitrator exceeded the scope of his power, there was no agreement to arbitrate, and the arbitration was conducted without proper notice.
Newman-Lakke Cancer Foundation v. Briggs – Minnesota Court of Appeals Decision of March 7, 2016
Appellant Newman-Lakka Cancer Foundation challenges the district court’s dismissal of its defamation lawsuit after concluding that respondent Christine E. Briggs, a resident of Massachusetts, is not subject to the personal jurisdiction of Minnesota’s courts. Appellant also argues that the district court abused its discretion in denying appellant’s request for jurisdictional discovery before dismissing the complaint on jurisdictional grounds.
DeCook v. Olmsted Medical Center – Minnesota Supreme Court Decision of February 17, 2016
In this appeal from the denial of a motion to dismiss for insufficiency of process, the Minnesota Supreme Court considers the question of whether a summons and complaint signed by an attorney licensed outside the state of Minnesota are legal nullities, or whether the defective signature may be cured. In the related conditional cross-appeal, the Court considers whether the district court erred in granting a motion to dismiss as to several defendants for insufficiency of service.
In the Matter of the Estate of Mitzi Olson – Minnesota Court of Appeals Decision of December 7, 2015
Appellant challenges the district court’s order affirming the personal representatives’ apportionment of estate taxes under decedent’s will. By notice of related appeal, respondent personal representatives assert that the district court erred when it concluded that appellant’s petition for declaratory relief was timely.
Minnwest Bank v. RTB, LLC – Minnesota Court of Appeals Decision of December 7, 2015
Appellant Minnwest Bank challenges the damages award in favor of respondent RTB, LLC, arguing that the district court erred in (1) calculating diminution-in-value damages; (2) awarding ancillary damages for mortgage interest, property taxes, and maintenance expenses; and (3) determining the accrual date for prejudgment interest. Minnwest requests that we reverse the damages award and remand on the issue of prejudgment interest.
Ertl v. Ertl – Minnesota Court of Appeals Decision of November 2, 2015
In this post-dissolution dispute regarding whether the husband’s disability benefits are included in the parties’ agreement to divide “retirement assets,” appellant-husband James Allen Ertl (husband) challenges the district court’s division of his disability benefits and the district court’s award of additional funds from husband’s retirement account to respondent-wife Diane Martha Ertl (wife). Issues: 1) Parties’ written agreement to limit division of property in marriage-dissolution action to husband’s “retirement benefits” is narrowly construed and does not include a presumptive award of “disability benefits” unless clearly set out in the dissolution judgment. 2) A district court deprives a litigant of due process of law by modifying a marriage-dissolution judgment and decree without providing litigant with notice or a meaningful opportunity to respond.
Cole v. Wutzke – Minnesota Court of Appeals Decision of August 31, 2015
A district court abuses its discretion by ordering the entry of judgment in an action deemed dismissed for noncompliance with Minn. R. Civ. P. 5.04(a) if the plaintiff has established a basis for relief under Minn. R. Civ. P. 60.02. Appellant challenges the district court’s judgment of dismissal of his personal-injury action for noncompliance with Minn. R. Civ. P. 5.04(a), which requires actions to be filed within one year of service.
Gams v. Houghton – Minnesota Court of Appeals Decision of August 24, 2015
Appellant’s personal injury action was dismissed pursuant to Minn. R. Civ. P. 5.04(a) because it was filed in district court more than one year after the action was commenced by service. The district court denied appellant’s request for relief under Minn. R. Civ. P. 60.02, concluding that such relief from a judgment of dismissal under rule 5.04(a) is not available and, alternatively, that appellant failed to “prove all four elements” for rule-60.02 relief even if such relief were to be considered available.
Spolum v. D’Amato – Minnesota Court of Appeals Decision of August 17, 2015
Appellant argues that the district court abused its discretion by awarding respondent permanent maintenance and in calculating the amount of maintenance and his income.
Ryan Contracting v. O’Neill & Murphy, LLP – Minnesota Court of Appeals Decision of July 27, 2015
We reverse and remand the district court’s grant of summary judgment to respondent because appellant raised genuine issues of material fact regarding whether its 2007 lien-foreclosure action would have been successful but-for the negligence of its attorney. In the interests of judicial economy, we affirm the district court’s analysis in its alternative holding, challenged in respondents’ related appeal, that appellant raised genuine issues of material fact precluding summary judgment regarding whether its 2010 settlement agreement precluded its malpractice suit.
Wiebusch v. Tschida – Minnesota Court of Appeals Decision of May 4, 2015
In this appeal from a judgment following a jury verdict for damages arising out of an automobile accident, appellant argues that the district court erred by giving a misleading jury instruction and denying his motion for a new trial.
Rauworth v. Rauworth – Minnesota Court of Appeals Decision of February 2, 2015
On appeal from an amended judgment and decree in a dissolution action, appellant-husband challenges the district court’s increase of his spousal maintenance obligation and the retroactive award of increased maintenance. On related appeal, respondent-wife challenges the district court’s designation of certain assets as husband’s nonmarital property, its denial of her claims that husband improperly disposed of marital assets, and its denial of her requests for permanent maintenance and attorney fees.
Uppal v. Positive – Minnesota Court of Appeals Decision of January 12, 2015
The district court held a bifurcated trial on breach of contract and unjustenrichment claims. After the jury found there was no oral contract between the parties, the district court concluded that appellant had been unjustly enriched in the amount of $1,267,814.
Shierts v. U of M Physicians – Minnesota Court of Appeals Decision of December 29, 2014
Appellant-trustee challenges the district court’s dismissal of this wrongful-death medical-malpractice action arising out of her sister’s death from cancer contracted from a donated organ. Appellant asserts that the district court erred by determining as a matter of law that it was not foreseeable that the decedent would contract cancer from a transplanted organ and thus that respondent-doctor did not breach the standard of care, and that the alleged breach was not the proximate cause of the decedent’s death.
Leiendecker v. Asian Women United of Minnesota, et al. – Minnesota Court of Appeals Decision of December 15, 2014
On remand from the Minnesota Supreme Court, the Minnesota Court of Appeals was directed to address whether Asian Women United of Minnesota, et al. (AWUM) made a threshold showing that the claims asserted against them by the Leiendeckers materially relate to acts involving public participation under the anti-SLAPP statute.
Carlson v. Barta – Minnesota Court of Appeals Decision of October 20, 2014
In this appeal from judgment following a jury trial in a negligence action, appellant challenges the district court’s denial of his pretrial motion for summary judgment. He argues that respondent’s negligence claim arose from respondent’s performance under the parties’ timber-sale contract and that the claim is barred under a provision in the contract.
Pfeiffer v. Allina – Minnesota Court of Appeals Decision of July 21, 2014
On appeal from dismissal of her medical-malpractice action, appellant argues that the district court erred in determining that Minnesota Statute § 145.682, subd. 6(c) (2012), governing the filing of affidavits of expert disclosure, is subject to the filing deadlines set forth in rule of general practice 115.03.
Rooney v. Sanvik – Minnesota Court of Appeals Decision of July 14, 2014
1. When a party’s motion for attorney fees under Minn. Stat. § 518.14, subd. 1 (2012), is pending upon dismissal of a divorce action, that party’s right to seek contribution for attorney fees from the opposing party continues and may be asserted by the party’s attorney. 2. Minn. Stat. § 518.14, subd. 1, does not permit a court to award conduct based attorney fees against an attorney for a party in a divorce proceeding.
Toso v. Toso – Minnesota Court of Appeals Decision of June 30, 2014
In this appeal from a marital-dissolution judgment, appellant argues that the district court failed to comply with this court’s remand instructions following the first appeal and abused its discretion by awarding spousal maintenance and attorney fees to respondent.
Leiendecker v. Asian Women United of Minnesota, et al. – Minnesota Supreme Court Decision of June 25, 2014
For the past 10 years, respondents Sinuon Leiendecker and her husband Lawrence Leiendecker have been embroiled in litigation with appellant Asian Women United of Minnesota (“AWUM”), a nonprofit organization that Sinuon once directed and for which Lawrence, an attorney, once did pro bono work. In this case, the fifth in a series of lawsuits between the parties, the Leiendeckers contend that AWUM and the other defendants committed various torts by suing the Leiendeckers in the past. In response, AWUM sought dismissal under Minnesota’s anti-SLAPP statutes, Minn. Stat. §§ 554.01-.05 (2012), which include a procedure for citizens and organizations to seek dismissal of lawsuits that deter them from exercising their right to participate in government. The district court denied AWUM’s motion, concluding that the allegations in the Leiendeckers’ complaint were sufficient to defeat the motion. The court of appeals affirmed.
Shorter v. Equity Bank v. Vermilya – Minnesota Court of Appeals Decision of June 9, 2014
Appellant-landowners challenge the district court’s summary-judgment dismissal of their cross-claim for attorney fees against respondent-bank incurred in connection with a lawsuit brought by previous landowners against appellants and respondent.
Johnson v. Mead Johnson & Company, LLC – Eighth Circuit Court of Appeals Decision of June 6, 2014
Scott Johnson, guardian ad litem for minor H.T.P., appeals the district court’s adverse grant of summary judgment in this products liability case. The district court excluded the testimony of Johnson’s expert and accordingly entered judgment in favor of Mead Johnson (Mead). The district court also assessed costs in the amount of $18,442 against Johnson.
SN4, LLC & DN10, LLC v. Anchor Bank, fsb – Minnesota Court of Appeals Decision of June 2, 2014
Under the Uniform Electronic Transactions Act (UETA), Minn. Stat. §§ 325L.01–.19 (2012), an electronic signature in an e-mail message does not necessarily evidence intent to electronically sign a document attached to the e-mail. Whether a sender has electronically signed an attached document depends on the circumstances, including whether the attached document itself contains the sender’s electronic signature and whether the attached document was intended to be a draft or final version.
Builders Development & Finance v. Vern Reynolds Construction – Minnesota Court of Appeals Decision of May 12, 2014
This case involves the value of stock that secured a now-defaulted loan between two businesses. Construction company borrowed money from lender and secured its loan with its share in another company. Construction company defaulted, lender arranged to sell its security interest in the collateral company to a buyer company, and the district court declared the sale to be reasonable after construction company failed to challenge it. Construction company and its principal sued to stop the sale, alleging that the lender and the buyer company fraudulently underestimated the collateral company’s value and that the construction company’s failure to challenge the sale was merely excusable neglect. The lender defended the district court’s judgment declaring that the sale was reasonable and sought attorney fees for its effort. The district court agreed with the lender and refused to vacate its judgment, but it disagreed that the lender was entitled to attorney fees for defending the judgment.
Rye v. Cook – Minnesota Court of Appeals Decision of May 5, 2014
In this spousal-maintenance dispute, appellant-husband argues that the district court abused its discretion by: (1) awarding respondent-wife $19,500 per month in permanent spousal maintenance; (2) ordering him to secure his spousal-maintenance obligation with a $1 million life insurance policy; (3) awarding him almost all of the marital debt and respondent all of the proceeds from the sale of the parties’ homes; and (4) awarding respondent need- and conduct-based attorney fees.
Southcross, LLC v. Meridius Company, LLC and Paul Nesburg – Minnesota Court of Appeals Decision of March 17, 2014
Appellant challenges the district court’s determination that he is liable to respondent under a personal lease guaranty, arguing that when the tenant whose performance he originally guaranteed was released from the lease, his personal liability ended. Because the lease guaranty is ambiguous and the district court’s factual determination that the parties did not intend to release appellant from his guaranty obligations is not clearly erroneous, we affirm.
Van Steenburgh v. Clyma – Minnesota Court of Appeals Decision of March 3, 2014
Because appellant failed to show a change in circumstances rendering the 2008 temporary spousal maintenance award unreasonable and unfair, we affirm the district court judgment denying his motions to permanently extend the award. We affirm the district court’s denial of appellant’s motion to strike expert reports or grant a continuance because respondent’s late identification of experts was due to appellant’s delayed statement of the specific basis for his modification motion. Finally, appellant also failed to demonstrate an inability to pay his own attorney fees, and we affirm the denial of a fee award.
In re the Matter of the RIJ Revocable Trust Agreement – Minnesota Court of Appeals Decision of February 24, 2014
Appellant challenges the district court’s orders denying her motion to dismiss respondent’s petition in this trust matter, arguing that the district court lacks subject-matter jurisdiction over the damages claims in the petition and personal jurisdiction over appellant. She also argues that respondent lacked standing to assert a claim under the trust for spousal-maintenance-related obligations after the settlor’s death.
Novus Franchising, Inc. v. Dawson, et al. – Eighth Circuit Court of Appeals Decision of August 5, 2013
This is a dispute over an automotive glass repair franchise located in Richmond, Virginia. Novus Franchising, Inc. (Novus) appeals the district court’s refusal to enforce a non-compete clause against franchisee Michael L. Dawson as part of a preliminary injunction which prohibits Dawson from using Novus’s marks and products in his automotive glass repair business. The district court dismissed Dawson’s corporation, CarMike, Inc., from the suit after concluding Novus failed to allege sufficient facts for a Minnesota court to exercise personal jurisdiction over the Virginia corporation; the district court also gave Dawson an extension of time in which to file an answer. In addition to challenging the scope of the injunctive relief granted by the district court, Novus appeals these two other aspects of the district court’s order.
Mogck v. Bandy-Alms – Minnesota Court of Appeals Decision of July 22, 2013
On appeal in this child-support- and spousal-maintenance-modification dispute, appellant-mother argues that the district court (1) should have applied the doctrine of collateral estoppel to preclude relitigation of the child-support and spousal-maintenance modification to the extent that respondent-father’s current motion was based on issues decided in his prior motion; (2) misread the underlying support award, thereby misidentifying the baseline circumstances against which claims of substantially changed circumstances should properly be measured; and (3) should not have allowed the failure to achieve certain circumstances expected by the parties to satisfy the requirement of substantially changed circumstances.
Dickhoff v. Green – Minnesota Supreme Court Decision of May 31, 2013
In a medical malpractice action, a patient may recover damages when a physician’s negligence causes the patient to lose a chance of recovery or survival. The district court erred in ruling that plaintiffs’ expert testimony failed as a matter of law to establish a prima facie case of causation.
Haefele v. Haefele – Minnesota Supreme Court Decision of May 29, 2013
1. Under Minn. Stat. § 518A.30 (2012), when determining child support, a parent’s income from self-employment or operation of a business includes the parent’s income from joint ownership of a closely-held subchapter S corporation. To calculate a parent’s income under section 518A.30, the district court must identify the corporation’s gross receipts, cost of goods sold, and ordinary and necessary expenses, regardless of whether corporate funds have been distributed or are available to the parent. 2. After calculating the presumptive child-support obligation, the district court must, pursuant to Minn. Stat. § 518A.43, subd. 1 (2012), consider all of the circumstances and resources of each parent in setting the final child-support obligation, and may rely on the unavailability of funds included in gross income in departing from the presumption.
RCH Mortgage Fund IV, LLC v. Byrd, LLC – Minnesota Court of Appeals Decision of April 29, 2013
Appellants defaulted on two promissory notes that were secured by a mortgage on real property and guaranteed by Appellant’s chief manager. The district court entered summary judgment for the lender after concluding, as a matter of law, that Appellant was in default on its obligation to repay the notes, that Appellant had breached a term of the mortgage by giving another lender a mortgage encumbering the same real property, and that Appellant’s chief manager is liable on his personal guaranty of the notes.
In re the G.B. Van Dusen Marital Trust – Minnesota Court of Appeals Decision of April 8, 2013
This appeal concerns the terms of a trust that was created to provide for the grantor’s wife after his death. Since the grantor’s death, his widow has received all income produced by the trust and limited distributions of trust principal. The trustee has denied her requests for additional distributions of principal. In addition, the trustee has denied her requests to convert non-income-producing property to income-producing property.
Kremer v. Kremer – Minnesota Court of Appeals Decision of February 19, 2013
When one parent relocates to another state before the district court has made a final custody determination, and where that relocation was necessarily addressed in the district court’s custody decree, the district court is not required to determine whether the parent’s relocation is in the child’s best interests under Minn. Stat. § 518.175, subd. 3 (2012), because (1) that statute only applies when a parent decides to relocate after the final decree has been filed, and (2) the impact of the parent’s relocation on the child is implicit in the best-interests factors that the district court is required to apply in making a custody determination under Minn. Stat. § 518.17, subd. 1(a) (2012).
ECI v. L.H. Bolduc Co., Inc., et al. – Minnesota Supreme Court Decision of January 23, 2013
1. An endorsement in a subcontractor’s insurance policy making a contractor an additional insured for liability “caused by the acts or omissions” of the subcontractor limits the additional insured’s coverage to instances of vicarious liability for the subcontractor’s negligence. 2. A contractual indemnification provision in a construction contract obligating a subcontractor to indemnify another party for damages not caused by the subcontractor’s fault, unaccompanied by either a coextensive insurance agreement or a proper allegation under Minn. Stat. § 337.05, subd. 2 (2012), that the promisor has failed to procure the required insurance, violates Minn. Stat. § 337.02 (2012).
Schupp v. United Fire & Casualty Company – Minnesota Court of Appeals Decision of October 1, 2012
Appellant United Fire & Casualty Company (United Fire) challenges the district court’s grant of summary judgment to respondents Jonathon Schupp and Northern Pine Lodge, Inc. United Fire contends that the district court improperly nullified an automobile exclusion in Northern Pine Lodge’s commercial general liability insurance policy after erroneously determining that United Fire failed to comply with Minnesota law when renewing the lodge’s policy.
Kastning v. State Farm – Minnesota Court of Appeals Decision of September 24, 2012
Appellants challenge the district court’s summary-judgment dismissal of their claim for uninsured motorist coverage under a policy issued by respondent, arguing that the farm tractor with which they collided was an uninsured “motor vehicle” within the meaning of their policy and, alternatively, that they are entitled to coverage under the reasonable-expectations doctrine.
Shorter v. Vermilya – Minnesota Court of Appeals Decision of September 10, 2012
Appellants challenge the district court’s award of summary judgment to respondent bank and respondent purchasers of appellants’ farm. The district court rejected appellants’ (1) challenge to the foreclosure proceeding, (2) claim for damages and equitable relief for bank’s failure to comply with the notice requirements of Minn. Stat. § 500.245 (2010), and (3) claims that purchasers violated Minn. Stat. § 504B.365 (2010) and converted appellants’ personal property left on the foreclosed property. Because there are no genuine issues of material fact concerning service of the foreclosure action and appellants’ claims regarding personal property, we affirm summary judgment on those claims.
Uppal v. Positive – Minnesota Court of Appeals Decision of August 27, 2012
In consolidated appeals from a mechanic’s-lien action, appellants challenge the district court’s grant of default judgments against them as a sanction for their failure to attend a pretrial conference and the district court’s denial of their motions to vacate those judgments. Because respondents did not demonstrate prejudice in allowing this action to proceed and the district court did not consider a less severe sanction before entering default judgment against pro se appellants, we conclude that the district court abused its discretion by granting the default judgments.
McClelland v. Life Insurance Company of North America – Eighth Circuit Court of Appeals Decision of May 24, 2012
Life Insurance Company of North America (LINA) appeals the district court’s ruling that LINA abused its discretion in denying death benefits to Dawn McClelland based upon her husband Anthony’s life insurance policy. LINA also appeals the district court’s award of attorney fees.
Haefele v. Haefele – Minnesota Court of Appeals Decision of May 7, 2012
Distributions from a Subchapter S corporation to a shareholder, to be transferred by the shareholder to another business entity, are not the shareholder’s income for child support purposes when the distributions and transfer occurred to further the corporation’s legitimate business purposes and were not to be used by the shareholder. Similarly, distributions made to a shareholder by a Subchapter S corporation solely to cover the shareholder’s share of the tax liability on the corporation’s retained earnings are business expenses that should not be included as gross income when calculating the shareholder’s child support.
Daly v. McFarland – Minnesota Supreme Court Decision of April 25, 2012
This negligence action arose out of injuries sustained by respondent Christopher John Daly while snowmobiling with appellant Zachary John McFarland and two other friends. Appellant argues that the district court erred in (1) denying his motion for judgment as a matter of law (JMOL) based on respondent’s assumption of risk; (2) declining to instruct the jury on the emergency rule; and (3) reconciling the jury’s inconsistent responses to the special verdict interrogatories.
Roers v. Pierce – Minnesota Court of Appeals Decision of April 9, 2012
In this home-sale dispute, appellant-seller argues that the district court (1) erred in ruling that appellant’s violation of Minn. Stat. § 513.55 (2010), which addresses the disclosure a home seller must execute, constituted an intentional tort and required appellant to pay 100% of the damages, despite being found only 13% at fault; and (2) should have granted appellant judgment as a matter of law when respondents failed to present adequate proof of damages.
Blue Star Plumbing v. Herges – Minnesota Court of Appeals Decision of April 9, 2012
Appellant challenges the district court’s dismissal of its contribution and indemnity claims under Minn. R. Civ. P. 12.02(e), arguing that the district court erred in determining that appellant’s third-party complaint fails to state a claim upon which relief can be granted. Appellant also challenges the district court’s imposition of sanctions against appellant’s counsel under Minn. Stat. § 549.211 (2010) and Minn. R. Civ. P. 11.
Langford Tool v. The 401 Group, LLC – Minnesota Court of Appeals Decision of March 19, 2012
Respondent-lender sued appellant-borrowers for defaulting on the parties’ loan agreement. Appellants challenge the district court’s granting of summary judgment in respondent’s favor, contending (1) genuine disputes of material fact preclude summary judgment and (2) the district court abused its discretion by denying their motions for a continuance and reconsideration.
Roers v. Pierce – Minnesota Court of Appeals Decision of November 14, 2011
Appellants challenge the district court’s order on priority of distribution of settlement proceeds in this action, arguing that the district court erred in holding that the garnishment action of one appellant’s judgment creditor has priority over appellant law firm’s attorney lien and applies to non-marital assets of the judgment debtor’s spouse.
Rowe Construction v. Title Mark – Minnesota Court of Appeals Decision of March 29, 2011
This case involves a mortgage “flipping” scheme. Appellants’ construction company, and personal guarantors of mortgage-related note, challenge the district court’s summary judgment in favor of respondent’s closing agent and title-insurance company on appellants’ claims for breach of fiduciary duty, failure to disclose material information, vicarious liability and breach of contract.
Igo v. Igo – Minnesota Court of Appeals Decision of June 8, 2010
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.
Van Steenburgh v. Clyma – Minnesota Court of Appeals Decision of May 4, 2010
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.
Petition for Instructions to Construe Basic Resolution 876 – Minnesota Supreme Court Decision of September 10, 2009
The district court’s orders regarding Basic Resolution 876 are void because the district court lacked in rem jurisdiction over the revenue bonds.
Zandi v. Wyeth – Minnesota Court of Appeals Decision of July 21, 2009
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.
Geiselman v. Geiselman – Minnesota Court of Appeals Decision of June 9, 2009
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.
Rains v. BNSF – Fifth Circuit Court of Appeals Decision of June 3, 2009
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.
Risdall v. Brown – Decision of Minnesota Court of Appeals of January 6, 2009
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.
Brown-Wilbert – Minnesota Court of Appeals Decision of December 31, 2008
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.
Brown-Risdahl – Minnesota Supreme Court Decision of July 31, 2008
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).
MacRae – Minnesota Supreme Court Decision of July 31, 2008
The Minnesota State Supreme Court today ruled that, in a failure to diagnosis cancer case, the statute of limitations (SOL) 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.
Port Authority – Minnesota Court of Appeals Decision of May 27, 2008
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.
Brown-Wilbert – Minnesota Supreme Court Decision of June 4, 2007
1. Answers to interrogatories that identify the plaintiff’s expert witnesses but do not describe their opinions on the standard of care, how the defendants deviated from that standard, or how that deviation caused injury to the plaintiff are not sufficient to constitute the affidavit of expert disclosure that, under Minn. Stat. § 544.42, subd. 2 (2006), must be served in a professional negligence or malpractice action within 180 days after the action was commenced. 2.(a) For purposes of the doctrine of res judicata, the finality of a judgment that has been entered in the district court is not suspended by an appeal. 2.(b) Where the elements of res judicata are not present, the defense of claim splitting may support an abatement of a second complaint, but not a dismissal with prejudice.