Jay Thomas Nygard, (A15-1276), Kendall Mae Nygard, (A15-1277) v. Dennis S. Walsh ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1276
A15-1277
Jay Thomas Nygard, petitioner,
Appellant (A15-1276),
Kendall Mae Nygard, petitioner,
Appellant (A15-1277),
vs.
Dennis S. Walsh,
Respondent
Filed February 16, 2016
Affirmed
Stauber, Judge
Hennepin County District Court
File Nos. 27CV1513586; 27CV1513587
Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellants)
William L. Davidson, Eric Steinhoff, Peter D. Stiteler, Lind, Jensen, Sullivan & Peterson,
P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellants, husband and wife, challenge district court orders dismissing their
petitions seeking ex parte harassment restraining orders (HRO) against a neighbor,
arguing that they are entitled to a hearing under Minn. Stat. § 609.748 (2014) and due-
process guarantees. Because appellants’ due-process rights were vindicated and because
appellants have not alleged sufficient facts to support a prima facie case for issuance of
an HRO, we affirm.
FACTS
In these consolidated appeals, appellants Jay and Kendall Nygard challenge two
district court orders dismissing their individual HRO petitions against respondent Dennis
Walsh. This is one of several cases that appellant Jay Nygard has initiated against his
neighbors.1
Appellants allege nearly identical facts that occurred over a four-year period to
support their petitions. They assert that in 2012, respondent, who lives 0.1 miles from
appellants, “monitor[ed] the activities” of appellants’ family, “stood in front of our house
and [verbally] threatened each member of our family,” photographed and filmed Jay
Nygard as he installed a “flagpole” on his property, and verbally taunted their disabled
son, causing the son to have seizures in response to the stress. Also in 2012, respondent
allegedly “threatened to go after [Kendall Nygard] at her place of employment, our
daughter at her school, and . . . the mortgage on our house.” And further in 2012,
respondent allegedly stopped his vehicle abruptly in an attempt to have Jay Nygard strike
respondent’s vehicle with his “family heirloom automobile.”
1
See, e.g., Nygard v. Rogers, No. A14-2175, (Minn. App. Nov. 16, 2015); Nygard v.
Walsh, No. A15-0272, (Minn. App. Nov. 9, 2015); Nygard v. Walsh, No. A14-0011,
(Minn. App. Dec. 22, 2014); Nygard v. Walsh, No. A13-1103, (Minn. App. Feb. 3, 2014),
review denied (Minn. Sept. 24, 2014).
2
Appellants also assert that on three or four occasions in 2013 through 2015,
respondent photographed or filmed their property. In another section of Jay Nygard’s
petition, he alleges that respondent photographed appellants’ property twice in a three-
month period in 2015. Finally, Jay Nygard asserts that respondent told him that he would
“not stop until you (Jay Nygard, petitioner) are gone.” Appellants’ petitions requested a
court hearing if the district “court finds there is no immediate and present danger of
harassment.” The petitions note that police were called several times during the alleged
harassment but took no action regarding their complaints.
In orders filed August 6, 2015, the district court denied the parties’ HRO petitions,
dismissing them without a hearing on the ground that they lack merit. These appeals
followed, and during their pendency this court ordered the appeals consolidated.
DECISION
“An appellate court may review an appeal from an order denying a motion for a
temporary restraining order.” M.G.M. Liquor Warehouse Intern., Inc. v. Forsland, 371
N.W.2d 75, 77 (Minn. App. 1985). An HRO should not issue if there is insufficient
evidence to support it. Kush v. Mathison, 683 N.W.2d 841, 844 (Minn. App. 2004),
review denied (Minn. Sept. 29, 2004). Under general legal principles, a district court
must dismiss a complaint when “it appears to a certainty that no facts, which could be
introduced . . . exist which would support granting the relief demanded.” Northern States
Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963); cf. Minn. R. Civ.
P. 12.02(e). When a district court summarily dismisses an action, this court gives de
novo review to the question of whether the claim is legally sufficient to support the relief
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requested. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003)
(stating that a district court’s decision that a claim is legally insufficient to grant relief is
subject to de novo review); Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358
N.W.2d 639, 642 (Minn. 1984) (stating that “an appellate court need not give deference
to a [district] court’s decision on a legal issue”); Elzie v. Comm’r of Pub. Safety, 298
N.W.2d 29, 32 (Minn. 1980) (stating that the standard of review on a motion for
dismissal is whether the complaint sets forth a legally sufficient claim for relief).
A district court may issue an HRO if it finds “that there are reasonable grounds to
believe that [an individual] has engaged in harassment.” Minn. Stat. § 609.748, subd.
5(b)(3) (2014). The petitioner bears the burden of proof to establish grounds for issuance
of an HRO. See C.O. v. Doe, 757 N.W.2d 343, 352 (Minn. 2008) (stating that when a
statute does not specify the burden of proof as between the parties, “[t]he general rule is
that the burden of proof rests on the party seeking to benefit from a statutory provision”).
Harassment is defined to include
[A] single incident of physical or sexual assault or
repeated incidents of intrusive or unwanted acts, words, or
gestures that have a substantial adverse effect or are intended
to have a substantial adverse effect on the safety, security, or
privacy of another, regardless of the relationship between the
actor and the intended target[.]
Minn. Stat. § 609.748, subd. 1(a)(1)(2014). “[I]nappropriate or argumentative statements
alone cannot be considered harassment.” Kush, 683 N.W.2d at 844. A hearing is
generally held when a petitioner has filed a colorable petition seeking an HRO, but
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“[n]othing in [the statute] shall be construed as requiring a hearing on a matter that has no
merit.” Minn. Stat. § 609.748, subd. 3(a) (2014).
Most of respondent’s alleged conduct occurred in 2012, and we agree with the
district court’s implicit conclusion that the 2012 allegations do not demonstrate the
requisite immediacy necessary to support further inquiry into whether an HRO should
issue. With regard to the remaining allegations of conduct that occurred between 2013
and 2015, they include, at best, only three or four alleged incidents of respondent taking
photos of a flagpole, other neighbors’ property or the street, and one verbal interaction
that cannot be construed as more than mere inappropriate or argumentative statements
that do not meet the statutory definition of harassment. This conduct, as a matter of law,
does not exemplify conduct that affected appellants’ “safety, security, or privacy.” See
Minn. Stat. § 609.748, subd. 1(a)(1). In addition, the HRO statute requires a
“substantial” adverse effect to the petitioner, and appellants have not have alleged facts
that are sufficient to show a “substantial adverse effect.” See Washek v. New Dimensions
Home Health, 828 N.W.2d 732, 737 n.2 (Minn. 2013) (requiring that interpretation of a
statute “harmonize all its parts and, whenever possible, no word, phrase or sentence
should be deemed superfluous, void or insignificant”).
As to appellants’ due-process argument, “the basic requisites of due process [are]
notice and the opportunity to be heard.” Sawh v. City of Lino Lakes, 823 N.W.2d 627,
635 (Minn. 2012) (quotation omitted). The district court did not hold a hearing or make
factual findings before summarily dismissing the HRO petitions. Appellants strongly
argue that the HRO statute mandates a hearing on the petitions, but they ignore the
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statutory provision in section 609.748, subdivision 3(a), that specifically authorizes the
district court to summarily dismiss a petition “that has no merit.” Even if all of the
allegations contained in appellants’ petitions are true and all factual inferences resolved
in their favor, we agree with the district court that the petitions are factually insufficient
to support issuance of an HRO.
Affirmed.
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