This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-83

 

Rachel Grantz, petitioner,

Respondent,

 

vs.

 

Brian Domeier,

Appellant.

 

Filed October 15, 2002

Affirmed; motion to strike granted and motion for fees granted

Harten, Judge

 

Hennepin County District Court

File No. HA0112680

 

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

Sandra K. Kensy, Attorney at Law, 5430 Carlson Road, St. Paul, MN 55126 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant challenges the district court’s grant of respondent’s petition for a harassment restraining order.  Because we see no abuse of discretion, we affirm.

 

FACTS

 

Appellant Brian Domeier and respondent Rachel Grantz had a romantic relationship for six months.  During this time, respondent was going through a marriage dissolution.  After deciding to end the romantic relationship in November 2000, respondent spent much time and effort in eluding appellant.  She petitioned for an order for protection (OFP) in March 2001 in Wright County; the petition was denied.  Meanwhile, respondent caused appellant to be charged with assault and damage to property in Washington County; the charges were dismissed for lack of evidence. 

In August 2001, respondent filed another petition for an OFP, this time in Hennepin County.   Following a two-day hearing, the district court granted respondent’s petition.  Appellant now challenges the OFP, arguing that the district court’s findings were inadequate and that the OFP was precluded by collateral estoppel.  Respondent moves to strike portions of appellant’s brief pertaining to the Wright County matter and seeks attorney fees on appeal.

ANALYSIS

1.         Adequacy of the Findings[1]

Minn. Stat. § 609.748, subd. 1a(1) (2000), provides that harassment includes “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.”  Appellant argues that the district court made no finding on whether his acts had, or were intended to have, a substantial adverse effect on respondent’s safety, security, or privacy.  However, the district court found:

[Appellant] has repeatedly * * * attempted to set up situations which would require [respondent] to be in the near proximity to him, to be forced to come to a situation where he is present, and even in the most unusual and extraordinary situation, to want to insist upon mediation in an assault and property damage case, which in the experience of this Court * * * [is] unheard of.

 

This finding is supported by language in a letter appellant wrote while the assault case was pending: “maybe just one mediated face to face ice breaker would be all it takes.”

 The district court went on to find:

The only motivation that one could possibly conclude here is * * * [that appellant] is again attempting to place [respondent] in a situation where she will be asked to mediate.  And the very nature of mediation is to try and bring the parties back together, to bring them back together, not to resolve a criminal charge that has been filed against one party, but rather to mend the relationship and to bring them back to a situation where they are in an ongoing relationship, shall we say.

 

            Furthermore, [appellant] has continued * * * to interfere [in respondent’s] personal affairs, to her most critical affairs involving her prior marriage relationship, her relationship with her children, to continue to interfere [in] her personal life and affairs * * * .

 

            * * *  [I]t appears to this court that [appellant] has insinuated himself into [respondent’s] life in every way he possibly can, has intruded into her relationships with her friends, has intruded into legal proceedings that were dealing with most important issues in her life, her marriage, her children, her financial security; that he has continued to intrude in those matters by continuing to make contacts with her, her family, her children, her friends, whether in person, by phone, be email, by correspondence; that he has bought numerous legal proceedings of a civil and criminal nature; and that all of these things have continued as a pattern of intrusive and unwanted behavior * * * .[2]

 

The district court clearly found that appellant had engaged in unwanted acts that had a substantial adverse effect on respondent’s privacy.  We conclude that the findings were adequate to support and permit review of the OFP.

2.         Collateral Estoppel

Harassment restraining orders are reviewed under an abuse of discretion standard.  Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn. App. 2000).  Minn. Stat. § 609.748, subd. 5(a)(3) (2000), provides that a court may grant a restraining order if it finds at a hearing “that there are reasonable grounds to believe that [an individual] has engaged in harassment.”[3]  Appellant does not argue that the district court lacked reasonable grounds for believing that he engaged in harassment, but he invokes collateral estoppel to argue that some of the evidence and testimony elicited at the hearing was inadmissible.  Appellant claims the hearing should have excluded all events occurring before 13 March 2001, when the Wright County district court denied respondent’s earlier petition for an OFP.

The principle of collateral estoppel prevents the relitigation of an issue identical to one actually litigated in a previous action.  Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822, 825 (Minn. 1980).  The four requirements for application of collateral estoppel are:  (1) the issues in the prior and present adjudications are identical;  (2) there has been a final adjudication on the merits;  (3) the estopped party was a party or was in privity with a party to the prior adjudication; and (4) the estopped party has been given a full and fair opportunity to be heard on the adjudicated issue.  Haavisto v. Perpich, 520 N.W.2d 727, 731 (Minn. 1994).  

Appellant contends that the March 2001 denial of respondent’s petition for an OFP was in fact an adjudication that appellant had engaged in no harassing conduct and that the Hennepin County court was collaterally estopped from considering that conduct.  While there appear to be no published cases addressing collateral estoppel in the context of a harassment order for protection, the commitment context is analogous. 

Collateral estoppel is meant to apply to an issue of ultimate fact.  It precludes relitigation of issues * * * .

 

The determination of whether a person is in need of commitment as mentally retarded * * * does not involve the determination of an ultimate fact that can preclude relitigation of the issue.  Instead, the patient’s condition or circumstances may change, making a new petition for commitment appropriate.  * * *  We decline to apply collateral estoppel in light of these more fully defined circumstances.

 

In re McPherson, 476 N.W.2d 520, 521-22 (Minn. App. 1991) (quotation and citations omitted), review denied (Minn. 13 Dec. 1991).  Circumstances dictating whether a person is entitled to an OFP may also change:  the fact that respondent was denied one in March 2001 does not mean that prior incidents did not form a pattern of conduct that would later provide reasonable grounds for believing that appellant had engaged in harassment.

In particular, appellant objects to the admission of a February 2001 e-mail message referring to his desire for a continuing, intimate relationship with respondent that was also in evidence at the Wright County hearing.[4]  The district court mentioned the e-mail in its findings, saying that it showed its author was “grasping and grabbing at anything he can in order to maintain an ongoing relationship * * * with the recipient.”

Appellant claims that “[t]he issue of whether the February e-mail was harassment had already been determined in the Wright County proceeding” and argues that the Hennepin County court was collaterally estopped from considering it.  But the e-mail was not raised as an issue in the Wright County proceeding, and appellant points to no finding referring to it.  The e-mail was one of many exhibits, and the transcript of the Wright County hearing was not before the Hennepin County court.  Thus, there is no way of knowing if or to what extent the Wright County court relied on the e-mail when it denied respondent’s request for an OFP.  Finally, we note that, even if the district court did err in admitting the e-mail into evidence, that error is not a basis for reversal.  No substantial right of appellant was affected by its admission, and error may not be predicated on an evidentiary ruling unless a substantial right of a party is affected.  Minn. R. Evid. 103(a). 

In any event, the transcript of the Hennepin County hearing shows that appellant continued to harass respondent following the Wright County hearing.  After the parties met at a concert in May, appellant had respondent charged with assault and damage to property, which charges were dismissed following an arraignment.  Appellant also sought an order for protection against respondent in Washington County, and he was pursuing her in conciliation court at the time of the OFP hearing.

We conclude that the district court did not abuse its discretion in granting respondent’s petition for an OFP or in considering evidence of appellant’s conduct prior to the dismissal of respondent’s previous petition.

3.         Motion to Strike

            Respondent moves to strike from appellant’s brief and appendix pages material that was not part of the trial court record.  Minn. R. Civ. App. P. 110.01 provides that the record on appeal is “the papers filed in the trial court.”  An appellate court may not consider material not presented to the trial court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  Appellant concedes that the Wright County record was not part of the Hennepin County file.  Therefore, respondent’s motion is granted.

4.         Motion for Sanctions

            Respondent also moves for sanctions in the form of attorney fees in the amount of $3,500 incurred in responding to this appeal.  Because this appeal was based largely on matters outside the record and appears to substantially continue appellant’s pattern of using the court system to generate contact with respondent, we order that appellant pay $500 of respondent’s attorney fees as a sanction for his abuse of the legal system.  See Minn. Stat. § 549.211 (2000) (permitting imposition of sanctions in civil actions). 

            Affirmed.