This opinion will be unpublished and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

A03-1337

 

Daniel Larson and Sandra Larson, petitioners,

Respondents,

 

vs.

 

Robert Carrillo,

Appellant.

 

Filed May 11, 2004

Affirmed

Halbrooks, Judge

 

 

Dakota County District Court

File No. C8-03-14515

 

 

Daniel Larson and Sandra Larson, 5077 144th Street West, Apple Valley, MN 55124 (pro se respondents)

 

Mark A. Olson, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Robert Carillo challenges the district court’s decision granting a harassment restraining order (HRO) to respondents Daniel and Sandra Larson on the grounds that the district court (1) lacked jurisdiction to grant an HRO to Sandra where she did not sign the petition or the affidavit forming the basis for the HRO proceeding; (2) should have granted a directed verdict in favor of Robert with regard to both Sandra and Daniel’s claims; and (3) made findings that are not supported by the record.  We affirm.

FACTS

Appellant Robert Carrillo and respondent Sandra Larson dissolved their marriage in 1991.  Robert and Sandra have one child together, J.C., who was born June 12, 1985.  Robert was awarded sole legal and physical custody of J.C., who became emancipated in June 2003.  Sandra is remarried to respondent Daniel Larson. 

It is undisputed that the parties do not have an amicable relationship.  On July 2, 2003, the Larsons filed an HRO petition in Dakota County against Robert, alleging that he (1) made several uninvited visits to the Larsons’ residence and Sandra’s workplace, (2) made harassing phone calls, (3) threatened Daniel that he would “take care of [him] once and for all,” and (4) used profane and abusive language “as a normal means of communication” with the Larsons.[1]  Although the petition lists both Daniel and Sandra as petitioners, only Daniel signed the document.  The affidavit accompanying the petition outlines allegations of Robert’s harassing behavior toward both Daniel and Sandra.  Based on the Larsons’ allegations, the district court granted a temporary HRO and scheduled a hearing. 

At the July 16, 2003 hearing, the Larsons appeared pro se, while Robert appeared with counsel.  Sandra testified that in October 2002, Robert came to her workplace and asked a stranger in the parking lot to deliver a letter to her.  Sandra also testified that Robert contacted her by phone the next day; she responded by telling him not to call her at home or work and hanging up.  Additionally, Sandra stated that she has received numerous letters from Robert, some of which were attached to the front door of her home and others that were sent through the mail.  Sandra said that she stopped reading Robert’s letters because they were “upsetting.”  The parties stipulated to Exhibit 2, a photograph depicting a letter affixed to the front door of the Larsons’ home. 

Sandra’s sister, Nancy Colin, testified that Robert taped a copy of a letter he wrote to Sandra, dated May 24, 2003, to Nancy’s front door.  This letter, marked as Exhibit 1, was received into evidence.  Daniel testified that in the preceding year, Robert contacted their home on several occasions.  According to Daniel, these contacts were “unwanted . . . unrequested, and specifically in violation of what [the Larsons] had specifically asked him not to do.”  Not only were these contacts “devastating” to Sandra, but Daniel testified that they had a negative effect on him as well. 

At the close of the Larsons’ evidence, Robert moved for a directed verdict on both Daniel and Sandra’s claims.  The district court denied the motion and then heard Robert’s testimony.  Robert conceded that he had contacted Sandra on several occasions, but explained that the contacts were necessary because they involved their son, J.C.  Robert also testified that the Larsons had repeatedly contacted him and had interfered with his relationship with J.C.  Robert admitted to sending three letters to Sandra in the preceding year and to calling the Larsons at least three times over the weekend of September 20-22, 2002.  Exhibit 7, a photograph showing an incoming call from Robert at 7:59 a.m. on September 22, was admitted into evidence.  But Robert denied threatening to “catch the first flight home and take care of [Daniel] once and for all,” and explained that numerous calls were required because “[Daniel] hung up the phone and wouldn’t allow [him] to speak to [Sandra].”  Robert denied that the Larsons told him on September 20, 2002, to stop contacting them. 

The district court found that Robert (1) made uninvited visits; (2) called the Larson residence approximately seven times between Saturday, September 21, and Sunday, September 22, 2002, including as early as 6:50 a.m. on Saturday morning and as early as 7:59 a.m. on Sunday morning, and continued calling the Larsons after being asked not to do so; (3) told Daniel on September 20, 2002, that he would “take care of him once and for all”; (4) went to Sandra’s place of employment on October 10, 2002, and delivered a letter to a security guard; (5) made additional threatening phone calls to Sandra’s workplace on October 11, 2002; and (6) posted Exhibit 1 on the Larsons’ door on May 24, 2003, and sent a copy of the letter to Sandra’s sister, Nancy.  Based on these findings, the district court granted an HRO in favor of both Daniel and Sandra.  This appeal follows.

D E C I S I O N

I.

Robert argues that the district court lacked subject-matter jurisdiction to grant an HRO to Sandra because she (1) failed to sign the petition and (2) failed to provide her own affidavit supporting the petition.  Jurisdiction is a question of law, which this court reviews de novo.  In re Appeal of the Selection Process for the Position of Electrician, 674 N.W.2d 242, 247 (Minn. App. 2004).   

Minn. Stat. § 609.748 (2002) provides that “[a] person who is a victim of harassment may seek a restraining order from the district court in the manner provided in this section.”  Id., subd. 2.  Harassment is defined to include “repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect . . . on the safety, security, or privacy of another.”  Id., subd. 1(a)(1).  A petition for relief must allege sufficient facts to establish “(1) the name of the alleged harassment victim; (2) the name of the respondent; and (3) that the respondent has engaged in harassment.”  Id., subd. 3(a).  The petition must also “be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.”  Id.

A.        Sandra’s failure to sign the petition. 

Both Daniel and Sandra alleged specific acts of harassment directed toward each of them.  Accordingly, they were both “victims” who could seek an HRO against Robert.  See id., subd. 2.  But while each had standing to file a petition on his or her own behalf, Daniel did not have standing to bring an action on behalf of Sandra.  Only a victim, the parent or guardian of a minor victim, or a guardian of an adult ward may seek an HRO.  See id.; State v. Nodes, 538 N.W.2d 158, 161-62 (Minn. App. 1995). 

Our first inquiry, therefore, is whether Daniel brought the petition on behalf of Sandra or whether Daniel and Sandra each asserted their own claims through a joint petition that Sandra neglected to sign.  Although the petition and affidavit appear to be written by Daniel and he states in the affidavit that he is “seek[ing] relief and protection for [his] wife Sandra, [his] family, and [him]self,” the record nonetheless indicates that Sandra was asserting her own claims.  The petition specifically lists Sandra as a petitioner, and the petition and accompanying affidavit describe several incidents of harassment that were directed solely toward Sandra.  Furthermore, Sandra appeared at the hearing and gave testimony supporting her individual position, and the district court restricted Daniel and Sandra from testifying about any acts of harassment directed toward the other.  Sandra also testified that “[i]t was [her] understanding that [both signatures were not] needed when filing [a] joint [petition] within Dakota County,” and that she and Daniel “prepared [the affidavit] together.”  When asked on cross-examination, “You didn’t actually file a petition for harassment here yourself, did you?” Sandra responded, “Yes, I did.”  Based on this record, we conclude that Sandra asserted her own claims through a joint petition with Daniel despite her failure to sign the petition.

Our next inquiry is whether the district court erred in granting relief to Sandra despite her failure to sign the petition.  Minn. Stat. § 609.748 does not specifically require that a petition for an HRO be signed, and no Minnesota case directly addresses the consequences of a party’s failure to sign this type of a petition.  But Minn. R. Civ. P. 11.01 provides that when a party is not represented by an attorney, “[e]very pleading, written motion, and other paper . . . shall be signed by the party.”  While it is clear that Sandra did not sign the petition, rule 11 further provides that “[a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the . . . party.”  Id. (emphasis added).  Here, Robert did not call the alleged error to Sandra’s attention until he cross-examined her at the hearing, and he did not move to strike for noncompliance.  See Minn. R. Civ. P. 12.06 (allowing motion to strike for failure to comply with rule 11).  Therefore, we conclude that the district court did not err in considering Sandra’s petition. 

B.        Sandra’s failure to submit her own affidavit. 

 

            As Robert correctly points out, the Larsons submitted only one affidavit in support of their petition.  While the affidavit was written from Daniel’s perspective, as previously noted, Sandra testified that she assisted Daniel in the document’s preparation and the affidavit outlines incidents of harassment involving both Daniel and Sandra.  Minn. Stat. § 609.748, subd. 3(a), merely requires that the petition “be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.”  Because the Larsons’ affidavit meets this requirement, we conclude that the district court did not err in considering Sandra’s case despite her failure to submit a separate affidavit. 

II.

 

            Robert contends that the district court erred in denying his motion for a directed verdict.  We review the denial of a motion for a directed verdict de novo.  Am. States Ins. Co. v. Ankrum, 651 N.W.2d 513, 521 (Minn. App. 2002).  A directed verdict is appropriate only in those cases where the facts are so clear that only one conclusion can be drawn from them.  See Schmanski v. Church of St. Casimir of Wells, 243 Minn. 289, 291-92, 67 N.W.2d 644, 646 (1954); Herron v. Green Tree Acceptance, Inc., 411 N.W.2d 192, 195 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987).  The district court must assume that all evidence favorable to the non-moving party is true, including the reasonable inferences drawn from that evidence.  Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).  We apply the same standard when reviewing the denial of a directed-verdict motion.  Id.

A.        Denial of directed verdict regarding Daniel’s case.

Robert properly moved for a directed verdict at the close of the Larsons’ case-in-chief.  See Minn. R. Civ. P. 50.01 (allowing a party to move for a directed verdict at the close of the opponent’s evidence or at the close of all evidence).  With regard to Daniel’s case, Robert’s counsel argued that dismissal of the HRO petition was appropriate because

[Daniel] Larson has not identified any incidents where my client has contacted him, had contact with him, [or] interfered with his safety, security or otherwise at any period in time. . . . [Daniel] has failed to identify anything whatsoever that could be legitimately construed as anything close to harassment, especially when you look at the requirements of the statute that require that there be repeated incidences of unwanted, intrusive contacts that affect the safety and security of the person seeking the . . . order. 

 

We disagree.  At the time of Robert’s motion, the record contained evidence of harassing behavior affecting Daniel.  Daniel testified that Robert had contacted his home on several occasions in the past year and that these contacts were “unwanted . . . unrequested, and specifically in violation of what [the Larsons] had specifically asked him not to do.”  Furthermore, Daniel testified that Robert’s behavior was not only “devastating” to Sandra, but had a negative effect on him as well.  According to Daniel, Robert’s actions were a “continual concern” and an impediment to his ability to have a loving relationship with his wife and stepson.  Daniel’s testimony was corroborated by Sandra’s testimony about the disturbing letters Robert continually sent to their home and Nancy’s testimony that she received a copy of one of the letters.  Additionally, Exhibit 1, Robert’s May 24, 2003 letter to Sandra, and Exhibit 2, a photograph depicting a letter affixed to the front door of the Larsons’ home, were admitted into evidence. 

The record contains conflicting evidence about whether Daniel contributed to the harassment by contacting Robert.  Daniel admitted contacting Robert by telephone on at least one occasion concerning J.C., and Robert alleged that Daniel’s message was “[v]itriolic, chastising, hostile and foul.”  Thus, at the time of Robert’s directed-verdict motion, the facts were not so clear that only one conclusion could be drawn from them.  See Schmanski, 243 Minn. at 291-92, 67 N.W.2d at 646; Herron, 411 N.W.2d at 195.  Therefore, we conclude that the district court did not err by refusing to grant Robert a directed verdict with respect to Daniel’s case.

B.        Denial of directed verdict regarding Sandra’s case.

With respect to Sandra’s case, Robert’s counsel argued that a directed verdict was appropriate because

[Sandra] affirmed to the Court that every one of the contracts between herself and [Robert] involved the minor son, who was in the care and custody of [Robert].  She also confirmed that she does not open the envelopes that are being sent to her despite having some sort of an obligation – it’s not clear what – with regard to the medical insurance payments.

 

There is no evidence before this Court that anything [Robert] did had anything to do with anything other than the welfare of the [parties’] minor son.  There is no evidence of any kind of a threat to safety, security, or otherwise.  It’s clear from [Sandra’s] testimony that she won’t accept letters from [Robert].  The only reasonable conclusion . . . is that [Robert] had no choice but to hand deliver documents and to append them to doors to make sure that she received them. . . . [Sandra] concedes that since [J.C.’s] graduation from high school [on May 29, 2003], [Robert] has had no contact with her. . . . She concedes my client brought a harassment order seeking no contact with them whatsoever.

 

The fact is, Your Honor, there’s no evidence before the Court that [Robert] has done anything that justifies a harassment order. . . .

 

At the time of Robert’s motion, there was evidence that Robert harassed Sandra.  Sandra testified that Robert came to her workplace on October 10, 2002, and when he was denied access, left a letter with a stranger in the parking lot and asked him to deliver it to Sandra.  Sandra testified that this was “disturbing,” as the letter was not contained in an envelope and any number of people could have read it, and she was alarmed enough to report the incident to security.  Sandra also testified that Robert contacted her by phone the next day, to which she responded by telling him not to call her at home or work and then hanging up.  Despite her requests, Sandra testified that Robert continued to contact her.  Not only did he call her office several months later, but he also sent Sandra another letter in March 2003.  Robert included a bill for J.C.’s medical expenses with the letter, but Sandra disputed her obligation to pay these expenses under the dissolution decree.  Sandra also testified that she received several other letters from Robert, some of which were attached to her door, including Exhibit 1, and others that were sent through the mail.  She stated that she stopped reading Robert’s letters because they were “upsetting.”  Exhibit 1, the most recent letter, was written in a condescending and sarcastic tone, and while it is not per se threatening, its content could certainly be upsetting to the recipient.  Furthermore, the letter contained the notation, “Cc: others / so that you cannot say that this was not received by you,” which indicates Robert’s willingness to take extraordinary measures to reach Sandra. 

Assuming that all evidence favorable to Sandra is true, including the reasonable inferences drawn from that evidence, see Claflin, 487 N.W.2d at 247, we conclude that the record establishes “repeated incidents of intrusive or unwanted acts, words, or gestures” that may have threatened Sandra’s sense of security or privacy.  See Minn. Stat. § 609.748, subd. 1(a)(1).  Therefore, we conclude that the district court did not err by refusing to grant Robert a directed verdict with respect to Sandra’s case.

III.

Finally, Robert argues that the record does not support the district court’s findings.  A district court must base its findings in support of an HRO on testimony and any documents properly admitted.  Anderson v. Lake, 536 N.W.2d 909, 911-12 (Minn. App. 1995).  Appellate courts use an abuse-of-discretion standard to review an HRO issued under Minn. Stat. § 609.748.  Witchell v. Witchell, 606 N.W.2d 730, 731-32 (Minn. App. 2000).  We must give due regard to the district court’s opportunity to judge the credibility of witnesses and shall not set aside findings of fact unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995).  Findings are clearly erroneous “only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  A district court may issue an HRO if it finds “reasonable grounds to believe that [a person] has engaged in harassment.”  Minn. Stat. § 609.748, subd. 5(a)(3).  But we must reverse an HRO if it is not supported by sufficient evidence.  See Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).

First, Robert argues that the district court abused its discretion in finding that on September 20, 2002, the Larsons told him not to communicate with them.  We disagree.  While the date of the communication was disputed by Robert, Daniel’s testimony supports the district court’s determination.  Giving due regard to the district court’s opportunity to judge the credibility of the witnesses, see Minn. R. Civ. P. 52.01, we conclude that the district court did not abuse its discretion by finding that the Larsons asked Robert not to communicate with them on September 20, 2002. 

            Second, Robert argues that the district court abused its discretion by finding that Robert called the Larsons approximately seven times between Saturday, September 21, and Sunday, September 22, 2002, including as early as 6:50 a.m. on Saturday morning and as early as 7:59 a.m. on Sunday morning.  In their affidavit, the Larsons referred to at least seven phone calls Robert made between September 21 and 22.

            When questioned about the numerous phone calls to the Larson residence during the weekend, Robert admitted to calling the Larsons on Saturday, September 21, and to initiating “each and every call on Saturday morning.”  Robert stated that he continued calling because, “[Daniel] hung up the phone and wouldn’t allow [him] to speak to [Sandra].”  When asked if he called on Saturday, September 21 at 6:50 a.m., Robert stated, “I don’t recall calling that early, and if I did, it’s because of the time difference in between Florida and Minnesota.”  When asked later what his purpose in calling at 6:50 a.m. had been, Robert responded that he wanted to inform them that he was coming home from Florida and that this was “done in a piecemeal fashion because [Daniel] kept hanging up the phone.”  Although Robert initially testified that he did not remember how many times he called the Larsons, he later admitted to calling three times, and finally admitted that it was “possible” that he called “more than three times.”  While Robert denied calling the Larsons on Sunday, September 22, the district court admitted Exhibit 7 into evidence, a photograph showing an incoming call from Robert at 7:59 a.m. on September 22.  Based on this evidence, we conclude that the district court’s finding that Robert called the Larsons seven times between September 21 and 22 was not clearly erroneous. 

            Robert asserts that the district court abused its discretion by finding that on September 20, Robert threatened Daniel that he would “take care of him once and for all.”  When questioned about this statement on cross-examination, Robert admitted calling Daniel from Florida on September 20, but denied making a threat.  But in the Larsons’ affidavit, they contend that Robert stated, “OK, that’s it.  I’m catching the first flight back [to] the Twin Cities and I’m going to take care of you once and for all.”  Again, we defer to the district court’s ability to judge the credibility of witnesses.  See Minn. R. Civ. P. 52.01.  The district court did not abuse its discretion by finding that Robert’s denial was not credible.  Therefore, the district court’s finding that Robert told Daniel on September 20, 2002 that he would “take care of him once and for all” was not clearly erroneous.

            Because the district court’s findings establish “reasonable grounds to believe that [Robert] has engaged in harassment,” i.e., “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,” Minn. Stat. § 609.748, subds. 1(a)(1), 5(a)(3), we conclude that the district court did not abuse its discretion in awarding an HRO to Daniel and Sandra. 

            Affirmed.

 

 



[1]On June 20, 2003, Robert filed a petition for a harassment restraining order (HRO) in Hennepin County against the Larsons, allegedly because he no longer wanted contact with them.