This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Betty Heard,

Diane McKinney,
Petitioner Below,


Hank M. Stewart,

Anne M. Stewart,


Filed September 18, 2007


Peterson, Judge


Sherburne County District Court

File No. C9-06-1572


Betty Heard, 10747 302nd Avenue, Princeton, MN  55371 (pro se appellant)


Hank M. Stewart, 10748 302nd Avenue, Princeton, MN  55371 (pro se respondent)


Anne M. Stewart, 10748 302nd Avenue, Princeton, MN  55371 (pro se respondent)


            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order dismissing pro se appellant’s petition for a harassment restraining order, appellant argues that the district court erred as a matter of law when it did not consider the evidence in the light most favorable to appellant and, therefore, erred in denying appellant’s petition.  Because the district court is not required to consider the evidence in the light most favorable to appellant and we give due regard to the district court’s opportunity to judge the credibility of witnesses, we affirm.


            Appellant Betty Heard and her daughter, Diane McKinney, have lived across the street from respondents Hank and Anne Stewart since September 2000.  The Stewarts’ mailbox is located on an easement in front of appellant’s house, and there have been confrontations between the parties when the Stewarts retrieved their mail.  On several occasions dating back to December 2004, the Sherburne County Sheriff’s Department has been called regarding disputes at the parties’ residences. 

            On June 22, 2006, appellant and McKinney petitioned for a harassment restraining order.  In their petition, they made the following allegations: 

            On June 1, 2006, [appellant] and [McKinney] were in their front yard doing yard work.  Anne Stewart came across the street to where [appellant] was cutting her lawn.  Anne has been told by the courts not to have any contact with [appellant] or go near her residence.  The Sheriff was called because Anne continues to taunt and harass [appellant].  The Sheriff did not have any information on file regarding the court order for Anne to stay away from [appellant].  The Sheriff said he could do nothing, but went to speak with Anne.  The officer told [appellant], Anne stated: “[Appellant] chased her with the lawn mower.”  The officer told Anne to have her husband or daughter pick up the mail to avoid an[y] further confrontation.  Two days later Anne came to the mailbox with a neighbor, trying to start trouble.  On several occasions when [appellant] and [McKinney] had their living room curtains open the Stewarts along with other neighbors have been looking in their window.


            On December 30, 2005, while [appellant] was plowing her driveway; Anne came across the street to harass [appellant].  [Appellant] asked Anne to leave, because she was only there to start trouble.  Anne left the area, only after [appellant] pulled a video camera from her pocket.  Anne went to her neighbor’s house (Toni Miller), where she stayed for well over an hour.  That evening Anne sent the sheriff to [appellant’s] residence.  Anne and her neighbor (Toni Miller) had given the officer false information, which led to the officer giving [appellant] a citation. 


            On December 23, 2005, Hank, Anne and neighbors (the Millers) drove snowmobiles around [appellant] and [McKinney’s] residence, on their property. 


            In December 2004, Anne went to [appellant’s] and [McKinney’s] residence to harass them.  Anne was asked to leave the property, but refused.  The sheriff was called, and an arrest report was made against Anne for trespassing.


            In May 2004, Anne went to [appellant’s and McKinney’s] residence to persuade them to let her and Hank cut down trees on their property.  [McKinney] told Anne no, but Anne continued begging.


            . . . .


            On March 24, 2006 Hank and Anne along with other neighbors fired shots at/near [appellant’s and McKinney’s] residence, trying to scare them.


            In January 2005 The Stewarts and other friends pointed a shotgun at [McKinney].


            . . . .


            [Appellant and McKinney] have seen the Stewarts throwing cigarettes in their yard and all around the mailboxes, located in front of [appellant’s and McKinney’s] property.  On July 16, 2005 [appellant] found a lit cigarette near her garage, on the lawn, it was very hot and dry, which could have started a fire.


            Following a hearing, the district court found that the allegations were not proven and dismissed the matter.  This appeal follows.


            A district court’s issuance of a harassment restraining order is reviewed under an abuse-of-discretion standard.  See Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (noting that relief granted in domestic abuse proceeding was within district court’s discretion).  Also, a district court’s findings of fact, whether based on oral or documentary evidence, 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.  Minn. R. Civ. P. 52.01.

            A district court may grant a harassment restraining order if, among other things, “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) (2006).  A district court must base its findings in support of a restraining order on testimony and documents properly admitted.  Anderson v. Lake, 536 N.W.2d 909, 911-12 (Minn. App. 1995).

            Appellant’s sole argument on appeal is that the district court erred as a matter of law when it did not consider the evidence in a light most favorable to appellant.  But as the petitioner, appellant had the burden of proving the allegations in the petition.  See Chemlease Worldwide Inc. v. Brace, Inc., 338 N.W.2d 428, 437 (Minn. 1983) (stating that “[g]enerally in law, the party who stands to benefit from the establishment of the affirmative of a proposition of fact essential to a claim bears the burden of proof as to that proposition”).   In determining whether appellant met this burden, the district court was not required to consider the evidence in a light most favorable to appellant.  “The [district] court, sitting without a jury, is the sole judge of the credibility of witnesses and may accept all or only part of any witness’ testimony.”  Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979).  The parties presented conflicting evidence at the hearing, and the district court apparently found the evidence presented by respondents to be more credible.

            Also, with respect to some of the allegations in the petition, appellant failed to present any probative evidence.  For example, the petition alleged that respondents drove snowmobiles around appellant’s property.  But although the evidence showed that a snowmobile had been driven around appellant’s property, there was no evidence that respondents drove the snowmobile.  See Albert Lea Ice & Fuel Co. v. U.S. Fire Ins. Co., 239 Minn. 198, 204-05, 58 N.W.2d 614, 618 (1953) (explaining that affirmative finding based upon mere conjecture cannot be sustained).