Kimberly Schultz, Petitioner, Respondent, vs. Dennis Ryan, Appellant.

Kimberly Schultz, Petitioner, Respondent, vs. Dennis Ryan, Appellant. A04-590, Court of Appeals Unpublished, January 18, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-590

 

Kimberly Schultz, Petitioner,
Respondent,
 
vs.
 
Dennis Ryan,
Appellant.

 

Filed January 18, 2005

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. HA04212

 

 

Kay Nord Hunt, Seth M. Colton; Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellant)

 

Jay M. Quam, James R. Mayer; Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN  55402 (for respondent)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court's decision to grant respondent's petition for a harassment restraining order, arguing that the record does not support the finding that appellant harassed respondent when (a) the district court based the order on one incident, which alone does not constitute harassment; and (b) the subsequent contact between the parties at work was innocuous and benign.  We affirm.

FACTS

 

Appellant Dennis Ryan and respondent Kimberly Schultz met in 2002 in the common smoking area at work.  On March 21, 2003, Ryan, Schultz, and Schultz's co-workers went to happy hour.  During the evening, Ryan asked Schultz's sister personal questions about Schultz and made an offensive comment about Schultz's husband.  Schultz told Ryan that he was "being too pushy" and directed him to "back off."  Although Ryan complied to a limited degree, he continued to ask Schultz to dance.  Schultz refused Ryan's requests.  Ryan's behavior at the bar made Schultz nervous and uncomfortable. 

The next day, while Schultz was alone in her office, Ryan stormed in and yelled at her for treating him poorly the night before.  Ryan told Schultz several times to "f*** off" and called her a "b****."  Schultz called her supervisor, Heather Garcia, in a panic.  According to Garcia, Schultz sounded upset and frightened on the telephone.  Garcia contacted Ryan's human-resources manager following this incident, and Ryan apologized for his behavior. 

In mid-April, about two weeks after Garcia complained to Ryan's employer, Ryan approached Schultz as she was preparing to leave the office.  Schultz did not want to speak with Ryan.  Schultz went into the restroom, but Ryan was waiting nearby when she came out.  Ryan told Schultz that the last two weeks had been difficult for him because he had not spoken with her.  Ryan seemed angry and was speaking in a tone that made Schultz uneasy.  After that, the parties had little or no contact until June when Ryan entered Schultz's office and asked if he could attend a work-sponsored happy hour with her.  Schultz refused.

In July, Schultz and Garcia met with Ryan's human-resources manager.  An agreement was reached that required Ryan and Schultz to avoid contact with one another and required Ryan to stay out of Schultz's office area.  Ryan violated the agreement on October 31, 2003, when he went out on the dock while Schultz and Garcia were smoking.  Ryan mouthed "f*** you" to Garcia as he was heading inside.  Soon after Schultz and Garcia arrived back at their office, Ryan showed up outside Garcia's window, motioning for her and waving a piece of paper around.  Ryan came back to Garcia's window every ten minutes for the entire day, pressing his face up against the glass and trying to get her attention.  Ryan also stood outside of Schultz's window, laughing and waving the paper, until Schultz finally called the police. 

Because of Ryan's conduct in October, Schultz's employer prohibited Ryan from entering the lower level of the office building, taking breaks on the loading dock, and parking anywhere but the upper-level side lot.  Although Ryan was barred from Schultz's floor, Schultz saw Ryan walk by her office twice and stare at her through the window.  Schultz felt threatened by this behavior. 

Based on these interactions, Ryan filed a petition for a harassment restraining order against Schultz, alleging that she was initiating unwanted contact and trying to get him fired.  Schultz then filed a cross-petition for a harassment restraining order against Ryan.  On February 5, 2004, the district court held a hearing on the petitions, after which the district court granted Schultz's petition and denied Ryan's petition.  This appeal followed. 

D E C I S I O N

 

            Ryan argues that the district court abused its discretion in granting the petition for a harassment restraining order because the record does not support a finding that he harassed Schultz.  We review the decision to grant a petition for a harassment restraining order to determine whether the district court abused its discretion.  Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn. App. 2000).  Giving deference to the district court's opportunity to judge witness credibility, we will not set aside the district court's factual findings unless they are clearly erroneous.   Minn. R. Civ. P. 52.01; Kush v. Mathison, 683 N.W.2d 841, 843-44 (Minn. App. 2004); review denied (Minn. Sept. 29, 2004).  But we will reverse the district court's decision to issue a restraining order if the decision is not supported by sufficient evidence.  Kush, 683 N.W.2d at 844.

            A harassment restraining order is warranted when "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) (2002 & Supp. 2003).  Harassment is defined as "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) (2002).

To constitute harassment, there must be repeated incidentsof unwanted or intrusive conduct, not merely repeated acts within a single incident.  Id.  Repeated incidents of intrusive or unwanted acts may be shown through specific harassing incidents in conjunction with general harassing conduct.  See Kush, 683 N.W.2d at 844 (affirming harassment finding when record showed two specific instances and other harassing conduct taken together formed ongoing situation).  The repeated acts, words, or gestures must have a substantial adverse effect on a person's security or privacy.  Minn. Stat. § 609.748, subd. 1(a)(1).  The actions, however, need not be obscene or vulgar to constitute harassing conduct.  Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. App. 1993).  Exhibiting unwelcome and unwarranted familiarity, for example, may be sufficient to show an adverse effect on the security or privacy of another.  Id.  But inappropriate or argumentative statements alone do not constitute harassment.  Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002); see also Witchell, 606 N.W.2d at 732 (reversing harassment order because four argumentative comments written in notebook, though inappropriate, were not intended to adversely affect safety, security, or privacy).

Ryan first contends that the district court improperly based its decision to issue the harassment restraining order on a single incidentthe March 22, 2003, incident in which he cursed at Schultz.  Ryan is correct that this incident alone would not support granting a harassment restraining order.  See Jeschke, 649 N.W.2d at 503 (verbal assaults in single confrontation do not constitute harassment).  But our review of the record establishes that the district court did not issue the order solely based on the March 2003 incident. 

The district court identified several incidents of unwanted or intrusive acts in both its written and oral findings.  The district court first stated in oral findings that Ryan harassed Schultz when he "went uninvited to M[s.] Schultz's office and used the supreme expletive."  See Minn. R. Civ. P. 52.01 (noting that findings may be made orally and recorded in open court).  The record supports this finding.  Schultz not only testified regarding Ryan's conduct during this episode, but she also testified that Ryan's conduct frightened her and caused her to call her supervisor at home immediately. 

The district court also stated in its oral findings:  "[A]fter that Mr. Ryan menaced M[s.] Schultz by confronting her at work, having been directed to stay away."  This finding is based on Schultz's testimony regarding Ryan's confrontation with Schultz outside the restroom.  Schultz testified that, one night after work, Ryan confronted her angrily and stated that it was hard not to speak with her.  When Schultz told Ryan that she did not want to have this conversation, Ryan persisted.  Schultz testified that Ryan's tone of voice made her uncomfortable.

The district court next found that Ryan "engaged in a couple of instances or three instances after that of what might be fairly called stalking."  The record supports this finding as well.  First, Schultz testified that, on October 31, 2003, Ryan showed up outside Garcia's window, motioning for her and waving a piece of paper around.  Ryan came back to Garcia's window every ten minutes for the rest of the day, pressing his face against the glass and trying to get her attention.  Ryan engaged in similar conduct outside Schultz's window, causing her to seek assistance from the police to remove Ryan from the area.  Second, Schultz testified that Ryan twice walked by her office and leered at her through the window after he was prohibited from entering her floor.  Schultz felt threatened by this conduct. 

In its written findings accompanying the order, the district court determined that these repeated incidents "followed offensive conduct at a dance which gave Ms. Schultz reason to wish [Ryan] to stay away and be leery of him."  This finding, in conjunction with the district court's other findings of harassment, supports our conclusion that the standard for issuing a harassment restraining order has been met.  There is ample evidence of repeated unwanted or intrusive incidents that had a substantial adverse effect on Schultz's safety, security, or privacy, buttressed by Schultz's testimony that she felt threatened, frightened, and uncomfortable due to Ryan's conduct. 

When taken together, the district court's oral and written findings amply support the conclusion that Ryan harassed Schultz.  Contrary to Ryan's assertion, the district court found repeated incidents of unwanted or intrusive conduct from March 2003 to January 2004.  We acknowledge that many of Ryan's actions, if viewed in isolation, may seem innocuous and benign.  But when considered in the aggregate and in the context of the parties' relationship, they demonstrate harassment.  See Kush, 683 N.W.2d at 844 (finding it proper for a court to rely on two specific incidents of harassment along with evidence of general harassing conduct to show an ongoing situation); Witchell, 606 N.W.2d at 732 (interpreting statements in context).

Ryan contends that, even if the district court found several incidents of harassment, the district court erred because none of the interactions after March 22 was indeed harassing.  Any contact Ryan had with Schultz, he contends, was innocent and friendly.  Ryan not only erroneously focuses on each incident in isolation, but he also fails to recognize that, taken in the aggregate, these seemingly benign incidents constitute harassment.   See Kush, 683 N.W.2d at 844.

Furthermore, although Ryan characterizes his interactions with Schultz as innocuous, Schultz does not.  At the evidentiary hearing, Schultz testified that (1) she did not want to engage in a conversation with Ryan after work hours outside the restroom because his tone of voice scared her; (2) Ryan's behavior outside her office window in October frightened her so much that she called the police; and (3) in January, Ryan walked through a prohibited area for the purpose of staring at her and making her uncomfortable.  Given the district court's opportunity to judge witness credibility, we cannot conclude that the district court clearly erred in accepting Schultz's testimony as credible and rejecting Ryan's.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district court credibility determinations).  Moreover, both Schultz's sister and Garcia provided evidence in support of the district court's determination that the conduct had a substantial adverse effect on Schultz's safety and security.  Schultz's sister testified that Ryan's persistence at the happy hour made Schultz extremely uncomfortable, upset, and nervous.  Garcia testified that, when Schultz called her at home shortly after Ryan had cursed at Schultz in her office, she was hysterical.  Garcia explained that Schultz was afraid of Ryan because she never knew his intentions or what he would do next.

When the many incidents are considered together, we conclude that the district court did not abuse its discretion in finding that Ryan harassed Schultz.  Accordingly, the decision to issue the harassment restraining order was not an abuse of discretion.

Affirmed.

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.