This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
The Residences at the Jewel, LLC, et al.,
Filed August 5, 2003
Concurring specially, Anderson, Judge
Wabasha County District Court
File No. C902645
Patrick A. Lowther, Pat Lowther Law Firm, PLC, 102 West Center Street, Lake City, MN 55041 (for respondents)
Marshall H. Tanick, Stephen H. Parsons, Mansfield Tanick & Cohen, P.A., 1700 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402-4511 (for appellant)
Considered and decided by Anderson, Presiding Judge, Halbrooks, Judge, and Parker, Judge.
U N P U B L I S H E D O P I N I O N
In this harassment restraining order dispute, appellant argues that: (1) the district court’s use of a form order rendered its ruling defective for lack of specific findings; (2) the restraining order is defective because it is not based on “repeated” incidents as required by Minn. Stat. § 609.748; (3) the restraining order’s requirement that appellant “stay away” from respondents and their employees is vague and overbroad; and (4) the restraining order violates Minn. Stat. § 554.03 because it is based on appellant’s attempts to obtain favorable government action on a real estate matter. Because the district court did not abuse discretion in issuing the harassment restraining order, we affirm.
D E C I S I O N
A harassment restraining order is reviewed under an abuse-of-discretion standard. Witchell v. Witchell, 606 N.W.2d 730, 731-32 (Minn. App. 2000). The district court may grant a restraining order if “the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.” Minn. Stat. § 609.748, subd. 5(a)(3) (2002).
Appellant argues that the district court’s order is defective for lack of specific findings because the district court used a preprinted harassment restraining-order form and checked off four boxes regarding appellant making uninvited visits, making threats, frightening petitioner, and calling petitioner abusive names, and that the order should therefore not be upheld.
The district court must make specific findings as to allegations of harassment before it may issue a restraining order. See Mechtel v. Mechtel, 528 N.W.2d 916, 920-21 (Minn. App. 1995). Findings are required in order “to permit meaningful review upon appeal and it is therefore necessary that trial courts find facts and state conclusions clearly and specifically.” Crowley Co., Inc. v. Metro. Airports Comm’n, 394 N.W.2d 542, 545 (Minn. App. 1986) (quotation omitted).
We conclude that the boxes on the form are marginally specific enough in their language to serve as particularized findings sufficient for purposes of appellate review. In addition to the checked boxes, the district court made an entry regarding assault, offensive and indecent conduct, and trespass. Further, review of the hearing transcript shows that there is evidence to support respondents’ claims of harassment on October 19 and 26, 2002.
The district court’s decision also turned on credibility determinations between appellant on one hand and The Residences at the Jewel (the Jewel) project manager Gene Glander and respondents’ employee Richard Arnett on the other regarding the October 26 incident, and between appellant and Myron Lowther regarding the October 19 incident. Because we give due regard to the district court’s opportunity to weigh the credibility of witnesses, Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988), we see no reason to disturb the district court’s credibility determinations.
While the use of the form can present serious problems, we understand that its use is justified on the practical grounds of judicial economy considering the court’s full and long calendars. The restraining order did not constitute an abuse of discretion.
Appellant alleges that the district court based the decision to issue the harassment restraining order on a single incident, rather than repeated incidents as required under Minn. Stat. § 609.748, subd. 1(a) (2002). He argues that the entire basis of respondents’ petition consists of conduct occurring within 15-30 minutes on October 26. That conduct should therefore be viewed as a single incident, which does not meet the statutory requirements.
Harassment is defined as
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) (emphasis added). Conduct occurring within a single confrontation, on one occasion, does not meet the requirement of “repeated incidents” as required for a determination of harassment under the statute unless the conduct involves physical or sexual assault. See Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002) (concluding that “two-sentence statement, uttered on one occasion” does not constitute “repeated incidents” under statute).
What appellant fails to acknowledge is that the district court did not base the decision only on the October 26 incident. The court also heard testimony about appellant approaching Myron Lowther, a partner in the Jewel, on October 19, an incident initially raised in the petition for a harassment restraining order. While these two incidents were not specifically mentioned in the order by date, they were incorporated into the order by way of a “see petition” reference on the form. There was testimony to corroborate the petition as to these two incidents. Further, when appellant swung the bucket of water at Glander and the bucket hit his teeth, resulting in a broken tooth, this could constitute a single incident of physical assault within the meaning of Minn. Stat. § 609.748, subd. 1(a)(1). Although appellant challenges Glander’s description of the incident, this, too, was supported by testimony at the hearing and the court made a specific finding regarding the assault. Therefore, we conclude that the district court did not err in determining that respondents satisfied the statutory requirements for issuance of a restraining order.
Appellant contends that the order’s language requiring appellant to “stay away” from respondents’ places of residence and their employees is vague and overbroad. He argues that it is not feasible for him to stay away from the Jewel because he lives directly across Wabasha County Road No. 5 from the Jewel. He claims that he is “running the risk of contempt by simply staying in his home or, more seriously, every time he ventures out from his property onto [County Road 5].”
The district court’s order specifically tells appellant to “stay away” from respondents’ residence in Lake City, Minnesota; from “all properties owned by The Residence at the Jewel, LLC and MJ Family LLC, located in Wabasha County”; and from respondents’ employees. We note that this language is included on the preprinted form.
As respondents assert, “[c]ommon sense dictates that the ‘stay away’ language * * * does not apply to one who is in his own house, or to one who is simply using a public road to get to and from his own house.” Appellant’s reading of the language is an unreasonable interpretation, in light of the fact that there is a county road between the Jewel property and appellant’s home and those of his neighbors. Appellant continues to drive the road regularly and has encountered respondents in a civil manner since the order was issued. He has never been found in contempt. We conclude that the language “stay away” is not overly broad or vague in this context.
Appellant argues that the harassment restraining order violates Minn. Stat. § 554.03 because appellant claims he was engaging in “lawful conduct or speech that is genuinely aimed * * * at procuring favorable government action,” which is immune from liability under the statute. Minn. Stat. 554.03 (2002) (providing immunity for lawful conduct or speech aimed at procuring favorable government action unless such conduct or speech constitutes a tort or a violation of another’s constitutional rights). Because appellant did not raise this issue below, we decline to consider it for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
G. BARRY ANDERSON, Judge (concurring specially)
I concur in the result reached here, largely because appellant’s attempts to explain away the physical assault, while creative, ultimately fail. The Minnesota Legislature has spoken very clearly that “a single incident of physical * * * assault” qualifies as harassment. Minn. Stat. § 609.748, subd. 1(a)(1).
But I am not persuaded that any of appellant’s other actions, which formed at least a partial basis for the harassment order issued here, rise anywhere near the statutory requirement that appellant’s actions have or are intended to have “a substantial adverse effect on the safety, security, or privacy of another.” Id.
Annoying, obnoxious, or even profane conduct, is not necessarily harassment. The great danger is that a protection order issued in harassment cases will be used as a club to enforce a civility code or to otherwise protect modern sensibilities against the unpleasantness that occasionally accompanies both public and private conflict.
The absence of any standard to measure the “substantial adverse effect on the safety, security or privacy of another” means that petitioners can, and do, assert that offensive conduct by another has the “substantial adverse effect” required by statute simply because the offended party believes this to be so. It might very well be time for the legislature to consider further substantive restrictions on the availability of harassment orders.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[Footnote from Concurring Opinion]
 While not endorsing any particular vehicle to accomplish this task, it is worth noting that other states have dealt with this issue in a variety of ways. For example, in New Mexico, harassing conduct must be such that “it would cause a reasonable person to suffer substantial emotional distress.” N.M. Stat. Ann. § 30-3A-2 (Michie 1978); see State v. Duran, 966 P.2d 768, 775 (N.M. Ct. App. 1998) (stating that section 30-3A-2 was not vague as applied because “[a] person of ordinary intelligence would have known that [defendant’s] behavior was unlawful and would inflict substantial emotional distress upon the victim”). It is also worth noting that the legislature has recently enacted procedural changes to the harassment statute. 2003 Minn. Laws 1st Spec. Sess. ch. 2 (to be codified at Minn. Stat. § 609.748, subd. 4(c), (d), (e) (changes in hearing requirements under the statute)).