EN BANC CALENDAR
Before
the
March 2009
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office
Monday, March 2, 2009, 1:00 p.m.
University of
Minnesota Law School
LeRoy Bahr, Appellant vs. Boise Cascade Corporation, a/k/a Boise Paper Cascade Corporation, et al., Respondents – Case No. A07-1353: Appellant LeRoy Bahr was employed by respondent Boise Cascade Corporation. After a confrontation between Bahr and another employee, Bahr was suspended without pay for three days. Bahr challenged the disciplinary action through his union’s formal grievance process and the action was eventually dropped. Bahr then sued Boise Cascade, the other employee, and Bahr’s supervisor for defamation. Bahr’s complaint alleged that the other employee had falsely alleged that Bahr harassed and threatened him, and that Bahr’s supervisor and other management level employees communicated or republished those false and defamatory statements to additional parties in the course of their investigation. After respondents’ motion for summary judgment was denied, a jury found that the other employee’s statements were defamatory per se and were made with malice, and awarded Bahr monetary damages of about $28,000, plus interest, costs and disbursements. The court of appeals reversed, concluding that any defamatory statements were protected by qualified privilege, which the evidence of malice was insufficient to overcome. The court of appeals remanded the matter to the district court for consideration of respondents’ costs and disbursements. The issue before the supreme court is whether there was sufficient evidence in the record for the jury to find malice on the part of the other employee and Boise Cascade. (Koochiching County)
Tuesday, March 3, 2009, 9:00 a.m.
Supreme Court
Courtroom, State Capitol
Dean Do, Appellant vs. American Family Mutual Insurance Company, Respondent – Case No. A07-1461: Appellant Dean Do was injured in a motor vehicle accident. Do sought no-fault benefits from his insurer, respondent American Family Mutual Insurance Company, and received about $870. American Family denied the balance of Do’s claim on grounds that the medical expenses submitted were not the direct result of the accident. Do settled with the other driver’s automobile accident liability insurer and received $28,000. Do then sued American Family for no-fault and underinsured motorist coverage. Do’s policy with American Family provided no-fault coverage up to $30,000. A jury determined that Do’s damages from the accident exceeded $49,000, including nearly $40,000 in medical expenses. On American Family’s motion, the district court determined that the $28,000 received from the other driver’s insurer constituted a collateral source and ordered it offset against the jury’s award. Minnesota Statutes § 548.251 (2008) requires a district court to reduce a damages award by the amount received by the plaintiff from “collateral sources,” defined as “payments related to the injury or disability in question” from such sources as “health, accident and sickness, or automobile accident insurance or liability insurance that provides health benefits or income disability coverage.” The court of appeals affirmed. At issue before the supreme court is whether the district court erred by subtracting Do’s settlement from the jury award as a collateral source. (Dakota County)
EN BANC NONORAL – Pierre Lamont Leake, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A08-1596: Appellant Pierre Leake was convicted of first-degree murder; his conviction was affirmed on direct appeal. State v. Leake, 699 N.W.2d 312 (Minn. 2005). In 2006, Leake petitioned for postconviction relief, claiming that the district court judge improperly communicated with the jury, the district court judge was biased against him, the district court’s evidentiary rulings were erroneous, the jury instructions were confusing and inaccurate, the presentence investigation was flawed, and he was denied effective assistance of trial and appellate counsel. The district court denied the petition without an evidentiary hearing. The supreme court affirmed the district court’s denial of the petition in all respects but one, remanding the matter to the district court for an evidentiary hearing on Leake’s claim of ineffective assistance of counsel in connection with Leake’s rejection of a plea offer. Leake v. State, 737 N.W.2d 531 (Minn. 2007). On remand, the district court conducted an evidentiary hearing at which Leake and his former attorney testified, and denied relief. On appeal to the supreme court, the issue is whether the district court erred in denying postconviction relief. (Hennepin County)
Wednesday, March 4, 2009, 9:00 a.m.
Supreme Court
Courtroom, State Capitol
In re: Paul Abbott Company, Inc., Petitioner. In re: Minnesota Asbestos Litigation – Case No. A08-1105: In 1993, petitioner Paul Abbott Company, Inc., an insulation contractor, filed a notice of intent to dissolve under Minn. Stat. § 302A.753 (2008). Although the statutory dissolution process was not completed, the corporation was administratively dissolved by the Minnesota Secretary of State in 1997 for failure to file annual registration statements. The corporation was a defendant in a number of cases alleging injury due to exposure to asbestos. In 2007, the insurance company defending the corporation, with the consent of the corporation’s majority shareholder and its only surviving officer, retained an attorney to finalize the statutory dissolution. Karen Abbott, who according to some documents had been the vice president and secretary of the corporation, signed the dissolution paperwork. Counsel for the plaintiffs in the asbestos cases sought to depose the lawyer who finalized the statutory dissolution. The corporation, Paul Abbott, Inc., moved for a protective order, arguing that because Karen Abbott had been an officer of the corporation and the lawyer was hired to represent the corporation, any conversations between them were subject to the attorney-client privilege. The district court denied the motion for protective order on grounds that there was no attorney-client relationship between the lawyer and Ms. Abbott. The corporation petitioned for a writ of prohibition from the court of appeals, seeking to restrain the district court from enforcing its order denying the protective order. The court of appeals denied the requested writ. On appeal to the supreme court from the denial of the writ, the question is the effect of an insurer’s retention of counsel for an insured corporation on the lawyer’s ethical obligation to maintain the confidentiality of communications with an officer of the corporation. (Ramsey County)
State of Minnesota, Respondent vs. David Michael Davis, Appellant – Case No. A07-36: In December 2005, a Mille Lacs tribal police officer observed appellant David Davis speeding on Highway 169 in Mille Lacs County. The officer stopped Davis on a tribal road within the Mille Lacs reservation and cited Davis for speeding and for having no insurance. Davis is a member of the Leech Lake Band which, with the Mille Lacs Band, is part of the Minnesota Chippewa Tribe. In State v. R.M.H., the supreme court held that Minnesota has jurisdiction to enforce speeding and driver’s license laws against tribal members who commit these offenses on state highways within the reservation of an Indian tribe in which the driver is not an enrolled member. 617 N.W.2d 55 (Minn. 2000). Davis challenged the jurisdiction of the State of Minnesota to prosecute him based on the United States Supreme Court’s decision in United States v. Lara, 541 U.S. 193 (2004), which overruled several decisions relied upon by the Minnesota Supreme Court in R.M.H. The district court denied Davis’ motion to dismiss. After a trial on stipulated facts, Davis was found guilty of both charges. The court of appeals affirmed. Two issues are before the supreme court: (1) whether in Lara the United States Supreme Court overturned the Minnesota Supreme Court’s ruling in R.M.H.; and (2) whether the state has jurisdiction to prosecute a member of one band of the Minnesota Chippewa Tribe for traffic offenses committed on the reservation of another member band. (Mille Lacs County)
Thursday, March 5, 2009, 9:00 a.m.
Supreme Court
Courtroom, State Capitol
In re Petition for Disciplinary Action against Linda A. Brost, a Minnesota Attorney, Registration No. 182692 – Case No. A08-1012: An attorney discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter.
In re Petition for Disciplinary Action against Daniel P. Taber, a Minnesota Attorney, Registration No. 108157 – Case No. A08-1524: An attorney discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter.
EN BANC NONORAL – Brian T. Carlson, et al., Appellants vs. Bloomington Housing Partners II, Respondent – Case No. A07-1105: In April 2004, appellants Brian and Susan Carlson agreed to purchase a condominium in Bloomington. In October 2004, the Carlsons canceled the purchase agreement and signed a second agreement for the purchase of a less-expensive townhouse in the same complex, developed by respondent Bloomington Housing Partners II. In connection with the second purchase agreement, the Carlsons paid $15,995 in earnest money. In November 2004, at the Carlsons’ request, the developer provided a second copy of the disclosure statement given to the Carlsons in connection with the purchase of the condominium in April, which disclosure statement covered all units in the development. The Carlsons then served notice of cancellation of the second purchase agreement, which the developer deemed ineffective. The developer began a statutory cancellation proceeding under Minn. Stat. § 559.21 (2008). The Carlsons sued, arguing among other things that deficiencies in the disclosure statement entitled them to rescind the second purchase agreement and required the return of their earnest money. The Carlsons sought a temporary restraining order to prevent the statutory cancellation of the purchase agreement and, when the district court denied the injunction, the Carlsons unsuccessfully appealed. During a portion of the proceedings, Brian Carlson, an attorney, represented himself and his wife. After two years of litigation, the district court granted summary judgment in favor of the developer and awarded the developer $36,925 in attorney fees pursuant to Minn. Stat. § 515B.4-116 (2008). The district court’s attorney fees award was a reduction of $40,000 from the amount sought by the developer, which reduction the district court justified based on the profit earned by the developer on the sale of the townhouse to a third party. The court of appeals affirmed the award but reversed the district court’s reduction of the amount, on grounds that the district court lacked discretion under the statutory provision to reduce the amount of attorney fees awarded. The issues before the supreme court are: (1) whether the district court erred in awarding the developer attorney fees; and (2) the discretion afforded to the district court under Minn. Stat. § 515B.4-116. (Hennepin County)
Monday, March 9, 2009, 9:00 a.m.
Courtroom 300
– Minnesota Judicial Center
Charles Ray Barnes, petitioner, Appellant vs. State of Minnesota, Respondent – Case Nos. A07-2090 and A08-1594: Appellant Charles Barnes was convicted of first-degree murder in 2005. His conviction was affirmed on direct appeal, the supreme court rejecting Barnes’ claim of ineffective assistance of trial counsel “without prejudice to the right of Barnes to attempt to develop and present such a claim in a postconviction petition.” State v. Barnes, 713 N.W.2d 325, 335 (Minn. 2006). In 2007, Barnes filed a pro se petition for postconviction relief alleging that because he received the ineffective assistance of trial counsel, he was entitled to a new trial. Although Barnes requested that counsel be appointed to represent him, the state public defender’s office declined representation on grounds that it had represented him on direct appeal. After a hearing, at which Barnes was not represented by counsel, the district court denied the petition for postconviction relief. Barnes appealed the denial of postconviction relief but also sought a new hearing in the district court. After the district court denied Barnes’ request, he appealed the district court’s ruling. The two appeals are consolidated here. Two questions are before the supreme court: (1) whether Barnes was entitled to the assistance of counsel in connection with a postconviction petition in which he sought to present the reserved claim of the ineffective assistance of counsel; and (2) whether the district court abused its discretion in denying Barnes’ motion for a new trial. (Dakota County)
State of Minnesota, Respondent vs. Christopher Edwards, Appellant – Case No. A07-1012: Appellant Christopher Edwards was convicted after a jury trial of first-degree assault and three counts of drive-by shooting. Edwards was sentenced to 190 months for first-degree assault, an upward durational departure, and concurrent sentences of 88 and 98 months each for two of the three drive-by shootings. The Minnesota Sentencing Guidelines allow for upward departure from the presumptive sentence if the case “involves substantial and compelling circumstances.” In imposing sentence, the district court justified the upward durational departure on grounds that Edwards had fired into a group of nine people. On appeal, the court of appeals affirmed Edwards’ sentence. The issue before the supreme court is whether the upward durational departure in sentencing was an abuse of the district court’s discretion, given that Edwards was also convicted of and sentenced for two counts of drive-by shooting based on the same conduct. (Olmsted County)
Tuesday, March 10, 2009, 9:00 a.m.
Courtroom 300
– Minnesota Judicial Center
State of Minnesota, Respondent vs. Daniel S. Schlienz, Appellant – Case No. A07-874: In November 2006, appellant Daniel Schlienz pleaded guilty to third-degree criminal sexual conduct. Prior to sentencing, the district court judge and the prosecutor discussed the possibility that Schlienz would move to withdraw his guilty plea. Schlienz did move to withdraw his plea, which motion was denied. The court of appeals affirmed the denial, concluding that Schlienz had not shown that he was prejudiced by the conversation between the judge and the prosecutor and therefore the error was harmless. On appeal to the supreme court, the question is whether the case should instead have been analyzed under principles of “structural” error, meaning errors that require automatic reversal because they call into question the accuracy and reliability of the trial process. (Cook County)
T.A. Schifsky & Sons, Inc., Plaintiff vs. Bahr Construction, LLC, et al., Defendants, Consolidated Lumber Company, d/b/a Arrow Building Center, Respondent, Premier Bank, Appellant, Larson Contracting, Inc., et al., Intervening Defendants, and Premier Bank, Appellant vs. Bahr Constrution & Contracting, LLC, d/b/a Bahr Construction, L.L.C., et al, Defendants, Consolidated Lumber Company, d/b/a Arrow Building Center, Inc., Respondent – Case No. A08-1295: Appellant Premier Bank challenged the validity of four mechanic’s liens filed by respondent Consolidated Lumber Company against property owned by defendant Bahr Construction, LLC. The district court concluded that the liens had priority over the bank’s mortgage, adjudicated the reasonable value of the liens, and awarded interest. The district court directed entry of judgment as to priority, the reasonable value of the liens, and interest. Rule 54.02 of the Minnesota Rules of Civil Procedure allows the district court to enter judgment as to fewer than all of the claims involved in an action. The court’s order also stated that Consolidated Lumber was entitled to reasonable attorney fees and costs, to be submitted for court approval by motion. Under Minn. Stat. § 514.14 (2008), a prevailing lienholder is entitled to “costs and disbursements,” which may include reasonable attorney fees. Obraske v. Woody, 294 Minn. 105, 108, 199 N.W.2d 429, 431 (1972). Premier Bank did not immediately appeal the December 13, 2007 judgment but did timely file a motion for amended findings of fact and a motion for new trial. These motions were denied and on May 22, 2008, the court awarded Consolidated Lumber attorney fees and costs. Premier Bank filed a notice of appeal on July 30, 2008. The court of appeals dismissed the appeal, concluding that the December 13, 2007 partial judgment was immediately appealable and appeal from the May 22, 2008 order awarding attorney fees was premature because no judgment had been entered pursuant to it. At issue before the supreme court is whether judgment in a mechanic’s lien foreclosure action as to priority and the reasonable value of the lien must be immediately appealed when the district court reserves for later determination the amount of attorney fees to be included in the final lien amount. (Ramsey County)
Wednesday, March 11, 2009, 9:00 a.m.
Courtroom 300
– Minnesota Judicial Center
State of Minnesota, by its Pollution Control Agency and its Attorney General, Lori Swanson, Respondent vs. Evanston Insurance Company, et al., Defendants, Northwestern National Insurance Company of Milwaukee, Wisconsin, Appellant – Case No. A08-1132: The Minnesota Landfill Cleanup Act, Minn. Stat. §§ 115B.39-.445 (2008), allows the state to recover the cost to clean up closed landfills. In 1996, the act was amended to allow the state to sue directly insurance companies that issued liability insurance policies to entities alleged to have disposed of waste at particular closed landfills. Under the Minnesota Environmental Recovery and Liability Act (MERLA), an action for recovery of environmental cleanup costs must be commenced no later than six years after implementation of a physical response action at the site. See Minn. Stat. § 115B.11, subd. 2 (2008). In conjunction with the 1996 amendment that allowed suits directly against insurers, the Landfill Cleanup Act was amended to provide that with respect to claims for recovery of cleanup costs, “the running of all applicable periods of limitation under state law is suspended until July 1, 2004.” Minn. Stat. § 115B.40, subd. 8(a) (2008).
In December 2005, the state sued Northwestern National Insurance Company under an insurance policy issued by Northwestern National to Indianhead Trucking, which allegedly disposed of waste at the WDE landfill in Anoka County, a landfill the state began cleaning up in 1995. Northwestern National moved to dismiss the state’s claims on grounds that they were barred by the applicable 6-year statute of limitations. In opposition to Northwestern National’s motion, the state argued that by virtue of section 115B.40, subd. 8(a), the running of the statute of limitations was suspended until July 1, 2004, whereupon it resumed running. The district court denied Northwestern National’s motion but, at the insurer’s request, certified the statute of limitations question under Minn. R. Civ. App. P. 103.03 to the court of appeals. Although denial of a motion for summary judgment is not normally appealable, Rule 103.03(i) allows an appeal from the denial of summary judgment upon the district court’s certification that the question presented is “important and doubtful.” The court of appeals dismissed Northwestern National’s appeal as neither important nor doubtful. The question before the supreme court is whether, in dismissing Northwestern National’s appeal, the court of appeals erred. (Ramsey County)
State of Minnesota, Respondent, vs. De-Aunteze Lavion Bobo, Appellant and De-Aunteze Lavion Bobo, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-1688: De-Aunteze Bobo was convicted of first-degree murder. After filing a notice of appeal from his conviction, Bobo moved to stay the appeal and to remand his case for post-conviction proceedings. The supreme court granted Bobo’s motion. Bobo filed two postconviction petitions, alleging juror misconduct and ineffective assistance of counsel. The district court denied the petitions without an evidentiary hearing. Bobo’s appeal from the district court’s denial of postconviction relief is consolidated here with his direct appeal from his conviction. The following issues are before the supreme court: (1) whether Bobo received the ineffective assistance of counsel at trial; (2) whether Bobo was deprived of his constitutional right to a public trial when the district court closed the courtroom during the testimony of a witness; (3) whether Bobo was deprived of a fair trial by prosecutorial misconduct; and (4) whether Bobo’s constitutional right to confront the witnesses against him was violated by the admission of an autopsy report through the testimony of a medical examiner who had not performed the autopsy. Bobo raises additional issues in a pro se supplemental brief. (Hennepin County)