Steven B. Tibbetts, petitioner, Respondent, vs. Diane Erichsen, Appellant.

Steven B. Tibbetts, petitioner, Respondent, vs. Diane Erichsen, Appellant. A04-829, Court of Appeals Unpublished, February 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-829

 

 

Steven B. Tibbetts, petitioner,

Respondent,

 

vs.

 

Diane Erichsen,

Appellant.

 

 

Filed February 8, 2005

Affirmed

Halbrooks, Judge

 

 

Wright County District Court

File No. C5-04-233

 

 

Jonathan N. Jasper, Jasper & Brandt, P.L.L.C., 303 Anoka Professional Building, 403 Jackson Street, Anoka, MN 55303-2372 (for respondent)

 

James M. Ventura, 125 West Lake Street, Suite 208, Wayzata, MN 55391 (for appellant)

 

 

 

            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court's issuance of a harassment-restraining order (HRO), arguing that the testimony presented at the HRO hearing does not support the court's finding that her conduct constituted harassment.  Because the record supports the district court's findings, we affirm. 

FACTS

            On January 26, 2004, respondent Steven Tibbetts filed an HRO petition in Wright County against appellant Diane Erichsen, alleging that she (1) followed, pursued, and stalked him by appearing at his residence, workplace, and at various public places; (2) made several uninvited visits to his residence and workplace; (3) made harassing phone calls, despite being told not to call; (4) frightened him by using threatening behavior; (5) entered his residence without permission to do so; and (6) took pictures of him without his consent.  Based on the allegations, the district court granted an HRO for a period of two years.  In response, appellant's attorney requested and received an HRO hearing.

            Both parties were represented by counsel at the hearing.[1]  Appellant and respondent had a romantic one-year relationship in 1985 and began to see each other again over a two-year period from 2001 to 2003.  The relationship was secretive because appellant was married at the time and respondent had a girlfriend.  Respondent testified that, after the relationship soured, appellant made harassing phone calls to him "on a daily basis" and that she continued to do so even after being told to stop.  Respondent also testified that appellant made unwanted visits to his home, workplace, and various public places.  On one occasion, she entered respondent's home without his permission.  Two witnesses corroborated respondent's testimony, confirming many of these incidents.  Appellant testified that she received mixed signals from respondent and that, in her mind, many of their interactions seemed consensual.  But she also admitted calling and visiting respondent, despite being told not to.

            After hearing testimony from both parties, as well as three other witnesses, the district court concluded that "there have been acts of harassment committed."  The district court specifically found that appellant (1) made uninvited visits to respondent; (2) made harassing phone calls to respondent; and (3) entered respondent's residence without permission.  Based on these findings, the district court granted the HRO to respondent, valid for two years, until January 26, 2006.  The court ordered that the harassing behavior cease and that appellant have no contact with respondent, either at his home or workplace.  This appeal follows. 

D E C I S I O N

We review a district court's grant of a harassment-restraining order for an abuse of discretion.  Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn. App. 2000).  A district court's findings of fact 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.  Findings are clearly erroneous "only if the reviewing court is left with the definite and firm conviction that a mistake has been made."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  But we will reverse the issuance of a restraining order if it is not supported by sufficient evidence.  Bjergum v. Bjergum, 392 N.W.2d 604, 606-07 (Minn. App. 1986).

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) (2004).  But inappropriate or argumentative statements alone cannot be considered harassment.  Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002).  A court may grant a harassment-restraining order 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) (2004).  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 makes a variety of arguments challenging the district court's findings of fact, which we will not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  As a threshold matter, she argues that the alleged acts do not constitute harassment because each phone call, visit, and interaction was welcomed, permitted, or accepted by respondent.  But respondent testified that appellant made harassing phone calls to him "on a daily basis, three to five phone calls, three to four times a week, on [his] cell phone and at home."  Respondent explained, "I asked her to quit calling me and to quit coming to my office and my house," but she continued to do so.  Following one particular incident, respondent decided to petition for the HRO.  He explained how appellant approached him at a local bar, kicked him in the heel, and demanded to speak with him.  Later that night, she accessed respondent's personal e-mail account, printed several communications, and delivered them to a variety of third parties.  Respondent testified:

I was having a conference [at a bar] with a business associate, and it wouldn't matter who I was talking to or whatever, she would come up and barge in and say I need to talk to you for two minutes or two seconds or ten minutes, and she's kicking me in the heel saying, um, you know, I need to talk to you; and I'd say, I don't have time to talk to you and, ahh, [the business associate and I] left and went to [a] hockey game; and . . . the next day or even that night . . . she delivered some [of my] e€‘mails to various people and, um, what she got into my computer, or somebody's computer, and got[] [the e-mails] out and distributed them.

 

On cross-examination, respondent admitted that he had had a consensual sexual relationship with appellant, but that she would "show up" wherever he happened to be, without his invitation.  Respondent explained that their sexual relationship ended in April 2002, after he told her to quit "coming around."  As respondent explained, "[appellant] just kept coming around and finally, six months ago, I just said [‘]do not come around me, I cannot have a conversation with you.[']"  Despite this warning, appellant continued to initiate contact with him through unwanted visits and telephone calls. 

Respondent's friend, John Kaster, confirmed the incident at the bar and explained, "[S]he just came in and approached [respondent], um, and kind of kicked him on the foot and said, [‘]I need to talk to you, I need to talk to you right now.[']"  Kaster also testified that he had been present on 15-20 other occasions when respondent asked appellant, "to stay away."  John Rancour, who has an office next to respondent's, testified that the same message had been made clear to appellant at respondent's workplace when he often "told [appellant] that she wasn't supposed to be there."

When asked if she ever "caused a scene" around respondent, appellant responded, "I don't think so."  She explained that respondent "didn't like it when I showed up when other people were around.  He talked to me in confidentiality if no one was around, but he didn't like it when his friends were around and they saw me."  Appellant testified that she received a variety of mixed signals from respondent.  She stated, "Sometimes he'd say that he didn't want me there, and again when other people were around; sometimes when people weren't around, his hands were all over me."  Appellant explained that she continued to contact respondent because she "needed to know why . . . all of a sudden he could just change." 

But appellant admitted to contacting respondent, even after having been served with the HRO, admitting, "Yes, I called him probably an hour or two later.  And I knew I shouldn't have, but I was just surprised that he actually [petitioned for an HRO] and I just said how disappointed I was that he did that and how he could do that to me."  On cross-examination, appellant again admitted to calling and visiting respondent, despite being told not to initiate such contact. 

Q:        And since [having sexual relations with respondent,] he said in front of his friends not to come around; right? 

                        A:        I don't know if he did.  He probably did.

                        Q:        And yet you continued to call; right?

                        A:        I've called him and he's talked to me at length.

                        Q:        Okay.  And you've continued to go to his house?

                        A:        Yup.

                        Q:        You continued to go to his work?

                        A:        Yes.

Q:        And . . . when [respondent and his friend] were going to the [hockey] game, did you go to the bar there?

                        A:        Yes.

                        Q:        Was your purpose there to talk with [respondent]?

                        A:        Yes.

Q:        Okay.  And did you go up and interrupt him and . . . kick[] his heel and say[] you had to talk to him?

A:        I don't recall kicking his heel, but I just went up and said I need to talk to you.

 

Appellant argues that respondent never communicated to her that her conduct was harassing.  Specifically, she questions why respondent would answer her phone calls if they were indeed harassing.  But simply because respondent answered her phone calls does not make them any less harassing.  See Kush v. Mathison, 683 N.W.2d 841, 844 (Minn. App. 2004) (explaining that returning a phone call does not make the alleged harassment any less "intrusive or unwanted"), review denied (Minn. Sept. 29, 2004).  The record supports the district court's factual finding that the harassing phone calls and visits occurred even after respondent warned appellant that they were unwelcome. 

Appellant also contends that she lacked the intent necessary to harass respondent.  Appellant testified that she continued to contact respondent in order to find out why their relationship had ended.  As we explained in Kush, the question before the district court is "not why appellant conducted [herself] in the manner [she] did, but whether appellant's actions had, or were intended to have, a substantial adverse effect on the safety, security, or privacy of respondent."  683 N.W.2d at 844 (citing Minn. Stat. § 609.748, subd. 1(a)(1)).  Under the statute, all that matters is whether appellant actually committed several unwanted acts that substantially affected respondent's privacy.  Minn. Stat. § 609.748, subd. 1(a)(1) (defining "harassment").  Even if appellant did not intend to harass respondent, the district court found that "acts of harassment [were] committed."  Accordingly, her personal intentions are not dispositive, and the district court did not err in issuing the HRO. 

Mindful of our standard of review and with due regard given to the district court's opportunity to determine the credibility of witnesses, we conclude that the record reasonably supports the district court's findings that appellant's conduct constituted harassment.  See Minn. Stat. § 609.748, subd. 5(a)(3) (a court may grant an HRO when "the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment"); Minn. R. Civ. P. 52.01 (due regard is given to the district court's opportunity to judge the credibility of witnesses). 

Because the district court's findings establish reasonable grounds to believe that appellant engaged in repeated incidents of intrusive or unwanted acts, words, or gestures that had a substantial adverse effect on the safety, security, or privacy of respondent, the district court did not abuse its discretion in awarding an HRO to respondent. 

            Affirmed.

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

[1] Appellant filed her brief with this court as a pro se litigant.  She subsequently hired counsel in order to present oral argument to this court.  See Tibbetts v. Erichsen, No. A04-829 (Minn. App. Nov. 9, 2004) (order) (granting appellant's motion to present oral argument).