This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1805

C5-96-1806

Demetra M. Pappas, petitioner,

Appellant,

vs.

Robert V. Koepp,

Respondent (C3-96-1805),

Erik Kaukis,

Respondent (C5-96-1806).

Filed July 1, 1997

Affirmed

Norton, Judge

Ramsey County District Court

File No. C1-96-100411, C3-96-100412

Demetra M. Pappas, 921 Orange Avenue East, St. Paul, MN 55106 (Pro Se)

Robert V. Koepp, Erik Kaukis, 2386 Valentine Avenue, St. Paul, MN 55108 (Pro Se)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellant challenges the dismissal of her petitions for harassment restraining orders, arguing judicial bias, improper evidentiary rulings, and sufficiency of the evidence. The trial court properly dismissed the petitions because appellant failed to prove harassment. The remaining bias issue is not appropriately before this court. We affirm.

FACTS

Appellant Demetra Pappas and respondent Robert Koepp were co-workers at the University of Minnesota. Pappas admits that she and Koepp were involved in an intimate relationship from January - February 1996. After the relationship ended, Pappas alleges Koepp and his roommate, respondent Erik Kaukis, made repeated unwanted phone calls to Pappas at work and at home and otherwise intruded on her privacy, making her fear for her safety. Pappas filed a petition for a harassment restraining order, supported by circumstantial evidence that she believed inculpated Koepp and Kaukis.

Following a hearing, the trial court dismissed appellant's petitions. The court found "no evidence" that Kaukis had "made any harassing phone calls or any other type of harassing conduct" and no proof of harassment on Koepp's part.

D E C I S I O N

1. Harassment petitions

Pappas contends the evidence in the record does not support the trial court's finding that Kaukis and Koepp had not engaged in harassing conduct. On review, this court will set aside the trial court's findings of fact only when they are clearly erroneous. Minn. R. Civ. P. 52.01; Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995). In reviewing the record, we give due deference to the opportunity of the trial court to observe the witnesses and weigh their credibility. Minn. R. Civ. P. 52.01; Davidson, 535 N.W.2d at 824.

The trial court may issue a restraining order if it finds that evidence presented at the hearing raises sufficient grounds to believe that the respondent harassed the petitioner. Minn. Stat. § 609.748, subd. 5 (Supp. 1995). The statute defines harassment as:

repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

Id., subd. 1 (a) (1). Conduct must include more than one word, act, or gesture to meet this definition. Davidson, 535 N.W.2d at 824. However, conduct need not be obscene or vulgar in nature to constitute harassment. Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. App. 1993).

The trial court properly determined that Pappas failed to establish that Kaukis's or Koepp's conduct rose to the level of harassment. The record contains many objective facts that bothered Pappas, such as hang-up calls, miscellaneous phone calls and messages from Koepp, a threatening phone call, an obscene phone call, car problems, and recurrent encounters with Koepp in the office. As discussed below, however, the record fails to establish that these incidents were intended to adversely affect the safety, security, or privacy of Pappas as required by section 609.748, subdivision 5.

The facts as presented do not lead to the conclusion that Koepp and Kaukis intended, performed, or instigated these events to harass Pappas. Koepp admitted calling Pappas occasionally at home and at the office, but testified his reasons were professional. Similarly, although Pappas considered Koepp's book delivery "mere pretext" for harassment, he testified that he was simply bringing her the books she had requested; Koepp claims his deliveries in and out of her office lasted only a few seconds, a fact she does not contest. Pappas also interpreted Koepp's screen saver, which depicted a collection of fine art work, as sexual harassment targeted directly at her despite the fact that the nudes comprised only a small fraction of the collection. Further, Pappas offered no proof other than speculation as to the source of the hang-ups, the obscene and threatening calls, and the car tampering.

The incidental contact between Pappas and Koepp in the context of their work environment appears to have been reasonably within the scope or related to the scope of their work. On its face, this contact does not reveal any intention on Koepp's part to harass Pappas. The evidence does not establish that Koepp or Kaukis were responsible for the alleged incidents outside the workplace. We defer to the trial court's opportunity to observe the parties testify to these events and weigh their credibility. Davidson, 535 N.W.2d at 824. Given the lack of proof of intent and the speculative links between the outside incidents and respondents, the trial court did not abuse its discretion in dismissing the harassment petitions.

2. Judicial bias/conflict of interest

Pappas contends the trial judge had a conflict of interest and was biased because the judge is an adjunct professor at the University of Minnesota Law School and this case involves University of Minnesota employees. Pappas claims reversible error resulted from the judge's refusal to disclose this conflict of interest and recuse himself from the case.

Procedurally this issue is not appropriately before the court on appeal. Pappas did not file a notice to remove the judge before the trial or hearing commenced, pursuant to Minn. R. Civ. P. 63.03. Her failure to file the motion prior to the hearing was understandable because she did not discover the information about the judge until after the hearing had occurred and the judge had rendered his decision. However, in order to remove a judge after the judge has presided at a hearing, Pappas was required to file a motion affirmatively demonstrating the judge's prejudice. Id. To disqualify a judge, bias or prejudice "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Pedro v. Pedro, 489 N.W.2d 798, 804 (Minn. App. 1992) (quoting In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986)), review denied (Minn. Oct. 20, 1992).

We note for the record that Pappas's concern here is reasonable. The judge's association with the University of Minnesota Law School is sufficient to raise a question regarding where his allegiance may lie. See McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984) (judges should be sensitive to "appearance of impropriety" and take measures to assure that litigants believe their case is being fairly judged). The potential conflict of interest in this case, however, is diminished by the fact that both Pappas and Koepp were affiliated with the university. Moreover, even if Pappas had raised this issue below, the conduct she offers as proof of bias is questionable. Pappas sees bias in the manner the judge interrupted her testimony during the evidentiary hearing. Those interruptions, however, were proper for the purpose of clarification or to keep Pappas on point. See id. (in case involving similar judicial conduct at trial, supreme court allowed judge to determine if he is able to preside fairly over proceedings). Therefore, Pappas has not affirmatively demonstrated that the judge was biased or prejudiced.

Even if there were a colorable claim of affirmative judicial bias, a procedural problem arises because Pappas failed to move for any relief in the trial court, such as amended findings, new trial, or vacation of judgment based on this newly discovered evidence. See Minn. R. Civ. P. 59.01(a) (irregular proceedings deprived party of fair trial); 59.01(f) (errors of law warrant new trial); 60.02(b) (vacate judgment based on newly discovered evidence). Pappas's failure to raise this alleged issue of judicial bias below precludes her from raising it here for the first time. Thiele v. Stich 425 N.W.2d 580, 582 (Minn. 1988).

Affirmed.