McKenzie v. Olson

Jason McKenzie, Respondent, v. Aaron Louis Olson, Appellant.

A18-1183

STATE OF MINNESOTA IN COURT OF APPEALS

May 13, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Florey, Judge

Dakota County District Court

File No. 19AV-CV-18-586

Jason McKenzie, Burnsville, Minnesota (pro se respondent)

Aaron Louis Olson, Minneapolis, Minnesota (pro se appellant)

Considered and decided by Connolly, Presiding Judge; Florey, Judge; and Kirk, Judge.^*

UNPUBLISHED OPINION

FLOREY, Judge

Appellant challenges the district court's grant of a harassment restraining order (HRO), arguing that respondent failed to prove that appellant "personally" harassed him. Because we see no abuse of discretion in the granting of the HRO, we affirm.

FACTS

Respondent Jason McKenzie owns and operates a skating rink in Burnsville, Minnesota, called Skateville. Appellant Aaron Louis Olson was a patron at the skating rink. Following allegations of inappropriate behavior between appellant and minor girls at the skating rink, respondent pursued an informal investigation.

In the process of respondent's investigation, appellant sent several threatening emails to respondent and his business.¹ On February 1, 2018, respondent provided a trespass notice to appellant and told him in a phone conversation that he did not feel comfortable having any further communication with him. Appellant continued to contact respondent.

On March 14, 2018, respondent filed an affidavit and petition for an HRO against appellant.² In the petition, respondent alleged that, despite telling appellant to stop contacting him, appellant continued to call and email. He stated that appellant had violated a current restraining order that morning.

In his petition, respondent stated that appellant's conduct "had a substantial adverse effect on [his] personal life as well as at work." He alleged that appellant threatened him by stating that, when he "comes near" Skateville, "it could become a deadly situation." The petition requested a two-year restraining order, and respondent asked that the district court both prohibit appellant from contacting and harassing him and order appellant to stay away from Skateville. The district court issued an ex parte HRO, and appellant requested a hearing.

In April 2018, the district court conducted a hearing and received testimony from both respondent and appellant. Neither party was represented. Respondent testified that appellant continued to call and email him despite being asked, on February 1, 2018, to cease all communications. Respondent testified that, on February 2, 2018, he again told appellant that he was not comfortable having any interactions with him.

Respondent testified that appellant continued to call his work and ask to speak with patrons at the skating rink, despite being aware of the trespass notice and being told that respondent "would not grab a minor customer of [his] to have a conversation with [appellant]." Respondent testified that appellant continued to communicate with him until February 6, 2018, when respondent petitioned for an HRO on behalf of Skateville.³ Respondent further testified that officers at two different police departments had pastinteractions with appellant and advised respondent that he should get an HRO "on top of the trespass notice for extra protection."

Respondent did not offer into evidence copies of the email exchanges or records of the phone calls between him and appellant. He stated to the court: "I guess I kind of assumed that you had copies of all these e-mails that I sent. Do you not? I didn't know it was my job to provide exhibits to you."

Appellant denied communicating with respondent after being told to stop. He testified that he had received threats from patrons of the skating rink, and his purpose in contacting Skateville was to inform the business that he was "getting death threats and threats of great bodily harm."⁴ Appellant disputed that respondent told him "anything that would leave any reasonable person to believe to stop communicating." He testified that he was "primarily communicating" with the manager of Skateville, and that respondent, as the owner of the skating rink, "was really copied [on emails] on what [appellant] was sending to [the manager]."

During cross-examination, respondent read into the record emails, dated February 1, 2018, and February 2, 2018, that were addressed to him from appellant. Appellantobjected, stating that respondent was reading from emails not entered into evidence. The district court overruled appellant's objection. In the email dated February 2, 2018, appellant wrote to respondent: "I think the police have informed me now of the seriousness of the threats against me. If anyone picks a fight with me out there, it unfortunately is a situation that does have the potential of turning deadly." Appellant disputed that the email had a substantial adverse effect on respondent.

The district court issued an HRO. The court determined that there were "reasonable grounds to believe" that appellant harassed respondent by contacting him "by phone calls or email multiple times in February 2018 after [appellant] was notified to stop such communication," and that the harassment was "intended to have a substantial adverse effect on [respondent's] safety, security or privacy." The HRO provided that appellant was prohibited from being within 300 feet⁵ of respondent's business, and the order was to remain in effect for two years.

Appellant disputed the district court's findings and filed several motions, and amended motions, over the next two months. In June 2018, the district court conducted a hearing on appellant's motions and received testimony from both parties. Appellant argued that it was unreasonable for the district court to include a physical proximity limitation (300 feet from Skateville) in the HRO. He contended that "[i]t is against fundamental fairness and the public good to penalize [appellant] by restricting his liberty . . . because [appellant] is the innocent victim of death threats and other hate crimes."

Respondent requested that the restriction stay in effect. He testified, "I am not trying to use this from a business standpoint. I feel personally very harassed by [appellant]. I didn't ask for the 300 feet to be specifically on the business. That's something that was done through the courts, but I would certainly like to also get that in place at my house." The district court declined to apply the restriction to respondent's home, stating, "It wasn't requested earlier and you didn't give notice to [appellant] that you would be making that request today." The district court took the matter under advisement.

In July 2018, the district court issued an order denying appellant's motions. Appellant appealed.⁶

DECISION

I. The district court did not abuse its discretion when it issued an HRO against appellant.

"An appellate court reviews a district court's grant of a harassment restraining order under an abuse-of-discretion standard." Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). The district court's fact findings "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." Id. at 843-44. "But this court will reverse the issuance of a restraining order if it is not supported by sufficient evidence." Id. at 844.

"A district court's authority to issue an HRO is granted by statute." Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008); see Minn. Stat. § 609.748, subd. 5 (2018). A court may issue an HRO ordering an individual "to cease or avoid the harassment of another person" or "to have no contact with another person" if the court finds "that there are reasonable grounds to believe that the [individual] has engaged in harassment." Minn. Stat. § 609.748, subd. 5. 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." Id., subd. 1(a)(1) (2018). An HRO based on "repeated incidents" requires at least two specific instances of harassing conduct. See Kush, 683 N.W.2d at 844.

The HRO statute requires proof of both: (1) objectively unreasonable intent or conduct on the part of the harasser and (2) an objectively reasonable belief on the part of the person subject to harassment. Dunham v. Roer, 708 N.W.2d 552, 567 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006). Objectively unreasonable conduct "goes beyond an acceptable expression of outrage and civilized conduct, and instead causes a substantial adverse effect on another's safety, security or privacy." Kush, 683 N.W.2d at 846.

Statements that are merely argumentative or inappropriate do not rise to the level of harassment. Witchell v. Witchell, 606 N.W.2d 730, 732 (Minn. App. 2000). However, testimony suggesting that a petitioner "can handle" the effects of the harasser's conduct "does not negate evidence that [the harasser's] conduct was unwanted and intrusive, and had a substantial adverse effect on [the petitioner]." Kush, 683 N.W.2d at 845.

Appellant contends that the district court abused its discretion by finding that respondent had proved conduct by appellant "that constitutes (personal) harassment." He argues that the court failed to distinguish respondent's "personal harassment action" from respondent's attempt to protect his business. Without citing authority, appellant asserts that "an attempt by a petitioner to protect his corporation, even in part, through a personal HRO action, is contrary to law in Minnesota."

Appellant also appears to imply that the district court failed to review the recorded telephone conversations that were admitted into evidence, stating: "All indication is that the [d]istrict [c]ourt ruled as it stated...