http://www.minnlawyer.com/all.rss The latest News updates from Minnesota Lawyer en-us Copyright 2008, Minnesota Lawyer. http://www.minnlawyer.com/article.cfm/2008/07/28/Actively-Seeking-Employment Where claimant’s health issues caused him to cease doing the type of work he had engaged in for 27 years; and thereafter, claimant testified that he applied for a few positions and went to workforce centers regularly but his testimony was inconsistent and he did not show that he applied for any jobs posted at the workforce centers or enlisted in any job training;  we conclude that the ULJ did not err in determining that claimant is ineligible for unemployment benefits because he did not show that he was actively seeking suitable employment. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Claims-Barred-or-Lack-Merit Where petitioner brought a second petition for postconviction relief, we conclude that the District Court did not err in denying the petition because (1) some of petitioner’s claims are procedurally barred; (2) although petitioner was charged with two counts of first-degree burglary and found guilty of both counts, he was only adjudicated on one count; and (3) the sentences for second-degree assault and terroristic threats were proper because they apply to different victims. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Consecutive-to-Prior-Convictions Even though defendant was on probation for two 1998 convictions when he committed offenses in 2003 in connection with a burglary of a carwash, we conclude that the District Court abused its discretion when it imposed a 60-month sentence for the 2003 third-degree burglary offense to be served consecutively to the probation sentences for the 1998 convictions where the 2003 offense fails to satisfy the criteria for permissive consecutive sentencing under the sentencing guidelines, and, while the District Court provided sufficient findings to support an upward durational departure for the 2003 offense under the career-offender provision of Minn. Stat. sec. 609.1095, subd. 4, it did not find the existence of “severe aggravating circumstances” which would have allowed it to impose both a durational departure and a consecutive sentence. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Default-Due-Process Where mother signed a notice warning her of the ramifications of failure to appear at a pretrial hearing; mother did not appear; at the pretrial hearing, the District Court took testimony in support of a default but stayed the order to allow mother to appear at a later hearing; mother did not appear at that hearing; and the District Court’s decision to terminate parental rights was not based on mother’s absences but, instead, on her failure to correct the conditions that led to the removal of the children; we conclude that the District Court’s termination of parental rights was not a violation of mother’s right to due process. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Eviction Even though the tenant breached the lease by subletting a portion of the property, the District Court erred by granting judgment of eviction where the landlord waived the breach of a lease provision that prohibits subleasing by accepting rent with knowledge of the sublease. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Ex-Parte-Communication Where the District Court notified the prosecutor, in an ex parte conversation, that the prosecutor should be prepared to discuss the prejudice to the state or to defendant’s victims if defendant made a motion to withdraw his guilty plea, we conclude that the conversation was an inappropriate ex parte communication, but defendant did not establish that he was prejudiced by the communication where the transcript of the ex parte conversation indicates that the court was concerned that the case would be delayed if the prosecutor was not prepared to address certain issues, and the court did not take a position on the merits of a possible motion.  Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Explosive-Device Where defendant admits that he possessed “MacGyver bombs”; a witness testified that he heard a large explosion and saw a flash, which he estimated to be about three feet in diameter, in his neighbor’s yard; the neighbor testified that she saw spots on her house that appeared to have been made by a liquid and observed a hole a few inches deep in the yard; and a BCA chemist testified that a MacGyver bomb sprays an acid that can cause serious personal injury if it lands on a person and that the fireball resulting from the explosion can ignite combustible material; we conclude that the evidence was sufficient to allow the jurors to conclude that the MacGyver bombs were capable of producing destructive effects for defendant’s conviction of felon in possession of an explosive device under Minn. Stat. sec. 609.668, subd. 1(a) (2004). Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Failure-to-Redeem Although a junior creditor obtained a default judgment against the senior creditor’s predecessor-in-interest, we conclude that the senior creditor is not barred by the junior creditor’s prior action from pursuing a declaratory judgment against the junior creditor because there was no privity between the senior creditor and its predecessor-in-interest, which had no motivation to defend against the junior creditor, and the senior creditor did not have a full and fair opportunity to litigate the matter. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/FirstDegree-DWI Even though defendant committed the offense of first-degree DWI while he was on supervised release from an executed prison sentence for another alcohol-related driving offense, we reverse and remand the District Court’s 75-month consecutive sentence where consecutive sentences for first-degree DWI convictions were no longer mandatory at the time of defendant’s sentencing because the 2006 amendment to Minn. Stat. sec. 169A.28 had become effective, and although a consecutive sentence is presumptive under the guidelines because defendant committed the current offense while on supervised release from an executed prison sentence, the duration must be calculated based on a criminal-history score of one. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Hearsay Where the state offered as evidence part of a telephone conversation in which the individual who allegedly accompanied defendant during an armed robbery said, “They didn’t find no gun on me or nothing,” to which defendant responded, “Yeah, they found it?”;  and  it was undisputed that police did not find a gun on the accomplice when they arrested him at the scene; we conclude that the state did not offer the accomplice’s statement to prove the truth of the matter asserted but rather to give context to defendant’s statement, and therefore, the District Court did not abuse its discretion when it determined that the accomplice’s statement was not hearsay. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Insureds-Bankruptcy-Workmanship Where a CGL insurer brought a declaratory judgment against its insured (a roofing contractor) and a building owner which claimed damages resulting from the work of the insured; the building owner filed a counterclaim directly against the insurer for insurance coverage and indemnification; the insured filed a Chapter 7 bankruptcy; and the District Court proceeded to determine that the insurer is liable to the building owner; we conclude that the insured’s bankruptcy does not relieve the insurer of its obligation because the counterclaim was against the insurer, not the insured, and the insurance policy and its proceeds are not the property of the bankruptcy estate because the insured is not the intend beneficiary of a liability policy. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Law-License-Suspension Where an injured passenger brought a negligence action against the drivers in a two-vehicle accident; one of the drivers was an attorney whose law license had been suspended on the basis of perjury; and the attorney’s testimony at trial concerning various factors of consequence was inconsistent with his deposition testimony and accounts from other witnesses; we conclude that the District Court did not abuse its discretion by allowing evidence of the attorney’s license suspension because the veracity of the attorney’s testimony was in dispute, and the evidence directly related to his character for offering truthful testimony under oath.  Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Maintenance-Modification Where, during the term of temporary maintenance, wife finished a master’s degree and became employed at a gross annual salary of $65,400; and in support of her motion to convert the temporary maintenance to permanent, wife failed to produce more than general evidence of the marital standard of living; we conclude that the District Court did not abuse its discretion by refusing to convert wife’s maintenance obligation from temporary to permanent because wife failed to sustain her burden of proving that she had not rehabilitated to the marital standard of living, but we remand the issue of an increase in wife’s temporary maintenance for further findings because the District Court’s findings are too cursory for meaningful appellate review.  Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Misconduct Where the ULJ’s findings describe ten occasions in which the employer observed that claimant, who worked as an assembler, did not follow the directions of her supervisors or failed to abide by company policies; claimant argues that the real reason she was terminated was because she threatened to make a report about a product ingredient to OSHA; and the ULJ found that that the employer was responsive to claimant’s concerns about the ingredient and that a retaliatory motive was not the reason for her termination; we conclude that the evidence supports the ULJ’s determination that claimant was terminated for misconduct. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Misconduct Where claimant conceded that one year prior to her discharge, she had received a written warning that any further problems with attitude or inappropriate conversation would lead to her dismissal; and claimant was discharged after telling a co-worker that the co-worker “could be a real b***h at times”; we conclude that the record supports the ULJ’s determination that claimant was discharged for misconduct because she refused to abide by the employer’s reasonable policies and conducted herself in a manner contrary to the employer’s stated requests. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Misconduct-Determination-Reversed Even though claimant scheduled employees to work 56 hours more than was allotted to his department for a one-week period, we conclude that the record does not support the determination that claimant engaged in misconduct where there is nothing in the record to indicate claimant had been warned that his labor overages would be calculated on a weekly, rather than annual, basis; claimant had good-faith reasons for the week’s overage—one employee on restricted duty, another employee learning a new task, and two new staff members requiring orientation; and in prior years, claimant had saved the employer employee time per year. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/NoContact-Order A District Court does not have authority to impose a no-contact order as part of an executed sentence unless the order is expressly authorized by statute. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Refusal-to-Test Where the arrestee told the officer that he would not take the test because he did not want to; the officer testified that the arrestee did not offer a further explanation for his refusal; and at his first opportunity to enter a guilty plea, the arrestee did not do so; we conclude that the arrestee failed to establish that his test refusal was reasonable because he has not proven that at the time he refused testing he intended to plead guilty, and he failed to enter a guilty plea at the first available opportunity.    Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Sexually-Dangerous-Person Where the District Court found that the proposed patient committed five instances of sexual conduct against four vulnerable victims; two victims and the mother of one victim testified to the harm the victims have suffered; both court-appointed examiners concluded that all five instances of sexual conduct carried a substantial likelihood of serious physical and/or emotional harm; and the District Court carefully considered the examiners’ testimony regarding the requirements for commitment and rejected the opinion of one examiner that the proposed patient meets the criteria for commitment as a sexual psychopathic personality; we conclude that the record supports commitment as a sexually dangerous person. Mon, 28 Jul 2008 23:00:00 CDT http://www.minnlawyer.com/article.cfm/2008/07/28/Snowmobiles-Speeding Where a deputy who was patrolling a lake by snowmobile testified that he stopped to observe approaching snowmobiles and, based on his experience visually estimating speeds and verifying those estimates with a radar or laser device, he estimated that the snowmobiles were travelling between 30 and 40 miles per hour; and the applicable nighttime speed limit for snowmobiles in the shore zone area is 15 miles per hour; we conclude that the deputy had a reasonable, articulable suspicion that the vehicles were speeding and lawfully stopped the snowmobiles. Mon, 28 Jul 2008 23:00:00 CDT