This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Elaine Johnson, petitioner,
Darcy Luppino, et al.,
Filed May 30, 2006
Affirmed; motion denied
Scott County District Court
File No. CV-05-9645
Jori Whitehead, Ronald L. Whitehead, Matthew S. Krohn, Whitehead Law Offices, 2412 – 117th Street East, Burnsville, MN 55337 (for respondent)
Marc G. Kurzman, Kurzman Grant & Ojala Law Office, 219 Main Street S.E., Suite 403, Minneapolis, MN 55414 (for appellants)
Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge the issuance of a harassment restraining order, contending that the evidence was insufficient to support the order, the court received inadmissible hearsay, and the court considered evidence outside the record. We affirm.
This appeal involves a challenge to a harassment restraining order issued in favor of respondent Elaine Johnson against appellants Sally Johnson and Darcy Luppino.
an evidentiary hearing, the district court found that Sally Johnson and Darcy
Luppino had contacted personnel at
a result of the allegations and the information in the transcript,
The district court concluded that Sally Johnson and Darcy Luppino had made multiple contacts with Elaine Johnson’s employer and had given misinformation that was reasonably likely to result in an investigation of Elaine Johnson or disciplinary action against her. Accordingly, the court ruled, there were reasonable grounds for the grant of a harassment restraining order.
D E C I S I O N
court reviews the grant of a motion for a harassment restraining order for an
abuse of discretion. Witchell v. Witchell, 606 N.W.2d 730,
The district court may issue a harassment restraining order if it finds “reasonable grounds to believe that the respondent has engaged in harassment.” Minn. Stat. § 609.748, subd. 5(a)(3) (2004). Harassment includes “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, subd.1(a)(1) (2004).
Sally Johnson and Darcy Luppino contend that the evidence is insufficient to support a finding of harassment; that the court relied on inadmissible hearsay; that the court relied on evidence outside the record; and that the court’s findings were not supported by the evidence.
Elaine Johnson testified that her manager, Janice Netterfield, questioned her as to why a copy of her “divorce transcript was delivered by the private investigator working for the Johnson family.” She referred to allegations in the transcript about her misuse of drugs, and she indicated that there had been an ongoing investigation that went through the pharmacy, risk management, and administrative departments of the hospital.
A week later, Elaine Johnson was called back to her manager’s office to respond to statements that Sally Johnson and Darcy Luppino had made. These statements—which related to accusations that Elaine Johnson was on drug-monitoring, had run over her first husband with a vehicle, and lost custody of her children—shocked and upset Elaine Johnson. She related that Sally Johnson and Darcy Luppino had complained about her being dangerous and would harm Leroy Johnson while he was a patient at the hospital.
Strike testified that Sally Johnson told her that, in a previous hearing, Elaine Johnson was found to have possessed drugs that she took from Fairview and another hospitals, that Elaine Johnson was not mentally well, that Elaine Johnson might have run over her former husband with a vehicle, and that she was concerned about Elaine Johnson’s aggressive behavior. Strike recalled meeting Darcy Luppino but did not recall a conversation with her. Strike testified that ultimately the hospital took no negative employment action regarding Elaine Johnson.
Darcy Luppino testified that she spoke to Kiekbush and stated that she did not want Elaine Johnson to visit Leroy Johnson. She denied speaking to any other hospital personnel, and she denied saying anything pejorative about Elaine Johnson.
The direct and circumstantial evidence presented at the evidentiary hearing support the court’s conclusion that Sally Johnson and Darcy Luppino had multiple contacts with Elaine Johnson’s employer and reported misinformation that was reasonably likely to result in adverse employment consequences. Although Sally Johnson and Darcy Luppino deny some of the statements Elaine Johnson and Helen Strike testified to, and although Darcy Luppino denies any contact with hospital staff other than one conversation in which she expressed concern for Leroy Johnson’s safety, the court found that the testimony of these parties “was significantly inconsistent with the testimony provided by Strike, whom the court views as a neutral and objective witness in this matter, raising issues regarding their credibility.” Credibility determinations are for the district court to make and ordinarily will not be disturbed on appeal. See Minn. R. Civ. P. 52.01(stating that a district court’s findings of fact will not be set aside unless clearly erroneous, and due regard is given to the district court’s opportunity to judge the credibility of witnesses); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate court defers to district court’s credibility determinations).
Resolving credibility inferences against Sally Johnson and Darcy Luppino, the evidence is sufficient to show that they were involved in the disclosure of Elaine Johnson’s private marriage-dissolution information and in revealing matters that surely would seriously affect the employment of a nurse, and that they related the information to two or three hospital staff members. Even though they claim they were only trying to protect the welfare of Leroy Johnson, the district court was not bound to accept that explanation if there existed a plausible contrary explanation, as there did. It is a reasonable inference from this record that these parties intended, at the very least, to cause a substantial adverse effect on Elaine Johnson’s privacy. The elements of the harassment definition were satisfied.
Sally Johnson and Darcy Luppino contend that most of the support for the court’s conclusion was hearsay, to which they objected during the hearing. They did object in a timely fashion but the statements, as the district court noted, were not hearsay because they were not received for their truth.
be classified as inadmissible hearsay, an out-of-court statement must be offered
for the truth of its assertion.
Nor did the district court improperly rely on facts outside the record or make any dispositive findings not supported by the record. Although the court drew inferences from the evidence as to the effect of the investigation on Elaine Johnson and characterized the effect in a manner different from Elaine Johnson’s characterization, these conclusions were within the province of the court. Elaine Johnson was shocked and upset to learn that she had been accused of having drug and mental-health issues and that relatives of a patient had requested special safety measures to keep Elaine Johnson away from the patient. It was a reasonable, perhaps even compelling, inference that such information would have a substantial adverse effect on a nurse employed by the hospital that learned of the potentially damaging accusations.
The district court neither abused it discretion in its rulings nor committed clear error in its findings.
Luppino and Sally Johnson moved to strike Elaine Johnson’s “Statement of
Facts,” arguing that it failed to cite to the record. Parties on appeal are required to cite to the
record for all statements of material fact.
Although Elaine Johnson did not cite to any portion of the record in the “Statement of Facts,” the relevant facts on appeal are set forth in Elaine Johnson’s affidavit, which is part of the district court record. That record is not extensive and we have been able to identify the relevant evidence, despite Elaine Johnson’s failure to include appropriate citations. Thus, the motion to strike is denied.
Affirmed; motion denied.