This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Diane Rae Cain,

Petitioner, Respondent,




Donald Alan Bratrud,



Filed November 6, 2001


Lansing, Judge


Olmsted County District Court

File No. C301871



Terrence M. Walters, 18 Third Street Southwest, Suite 303, Rochester, Minnesota 55902 (for respondent)


Donald Alan Bratrud, 3565 6th Place NW, Rochester, MN 55901 (pro se appellant)


Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Harten, Judge. 

U N P U B L I S H E D   O P I N I O N


The district court issued a mutual harassment-restraining order against Donald Bratrud and Diane Cain.  Bratrud appeals, arguing that he was not accorded a hearing and that the record lacks sufficient evidence to support the harassment-restraining order against him.  Because we conclude that Bratrud received a hearing and that the evidence supports the order restraining him from having any contact with Diane Cain, we affirm. 


            At the end of Diane Cain and Donald Bratrud’s two-and-one-half-month personal relationship, Cain filed a petition for an order for protection from Bratrud under the Minnesota Domestic Abuse Act.  Minn. Stat. § 518B.01 (2000).  Cain alleged that Bratrud grabbed and bruised her wrist, almost hit her with a car, left notes on her car, and made threatening statements to her.  On the same day, Bratrud filed a petition for a harassment-restraining order under Minn. Stat. § 609.748 (2000), alleging that Cain made uninvited visits to Bratrud’s home, threatened to cause him to lose his job, and gave false information to Bratrud’s employer.

            The district court held a consolidated hearing on both Cain’s request for an order for protection and Bratrud’s request for a harassment-restraining order.  Cain and Bratrud each appeared pro se, and the court conducted the questioning.  At the conclusion of the hearing, Bratrud and Cain each stated they did not object to an order limiting their contact with one another.  The court issued a mutual harassment-restraining order, prohibiting each from having any contact with the other.

            Bratrud appeals from the order, alleging that he has not received a hearing, as required by Minn. Stat. § 609.748, and that the district court had insufficient evidence to issue a restraining order against him.  Cain submitted a responsive brief that included a request for remand to the district court to amend the order against Bratrud to reflect that it was issued under the Minnesota Domestic Abuse Act.



The district court must conduct a hearing before it grants a harassment-restraining order.  Minn. Stat. § 609.748, subd. 3, 5(a)(3) (2000).  A “hearing” includes the right to present and examine witnesses, to introduce documents, and to have the case adjudicated on the statutory requirements for relief.  Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995) (analogizing from caselaw that defines “hearing” under the Minnesota Domestic Abuse Act).

The district court extensively questioned both Cain and Bratrud under oath.  The court went over the allegations that each had made and allowed each to respond to the allegations.  See Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (holding that “hearing” had not been conducted when district court did not inquire into allegations or whether allegations were true and transcript was only five pages long).  The transcript of the Cain and Bratrud hearing is 32 pages long.  Bratrud offered no documents and neither Bratrud nor Cain appeared with witnesses or asked to present testimony through witnesses.  Cf. Anderson, 536 N.W.2d at 911 (holding no “hearing” was held when opportunity to examine witnesses was denied).  Bratrud received a hearing within the requirements of Minn. Stat. § 609.748 (2000).


The reviewing court analyzes the district court’s issuance of a restraining order under an abuse-of-discretion standard.  Witchell v. Witchell, 606 N.W.2d 730, 731-32 (Minn. App. 2000).  The decision must be based on facts that provide reasonable grounds to believe that harassment has occurred.  Minn. Stat. § 609.748, subd. 5(a)(3).  Acts of harassment that provide a basis for issuing a restraining order 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). 

     The district court did not abuse its discretion in granting the harassment-restraining order against Bratrud.  Cain provided a typewritten statement describing Bratrud’s conduct, including bruising her wrist, impeding her from getting in her car by holding the door shut, blocking her movement and nearly hitting her with his car, threatening her, and repeatedly attempting to contact her after she told him that she did not want to have contact with him.  At the hearing Cain testified to Bratrud's actions and produced a note from Bratrud that buttressed parts of her testimony.  The district court had sufficient evidence to determine that Bratrud had engaged in harassing activities as defined by the statute.


            In her responsive brief, Cain requests that this court remand for the district court to amend the order against Bratrud to indicate it was issued under the Minnesota Domestic Abuse Act.  This issue is not properly before this court because Cain did not file a notice of review under Minn. R. Civ. App. P. 106, and Bratrud has not raised the issue in his appeal.  See Pine River State Bank v. Mettille, 333 N.W.2d 622, 632 (Minn. 1983) (refusing to review issue raised by respondent in absence of notice of review).  Furthermore, the issue of a mutual harassment-restraining order was tried to the court by consent; the testimony related to the elements necessary to support a harassment-restraining order; and the relief Cain sought, i.e., preventing Bratrud from contacting her, is the same under both the Minnesota Domestic Abuse Act and the statute governing harassment-restraining orders.  Compare Minn. Stat. § 518B.01, subd. 6 (2000), with Minn. Stat. § 609.748.