Stacy Herbst, petitioner, Respondent, vs. Julie Herbst, Appellant.

Stacy Herbst, petitioner, Respondent, vs. Julie Herbst, Appellant. A05-945, Court of Appeals Unpublished, February 7, 2006.

This opinion will be unpublished and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

A05-945

 

Stacy Herbst, petitioner,

Respondent,

 

vs.

 

Julie Herbst,

Appellant.

 

Filed February 7, 2006

Affirmed Willis, Judge

 

Stearns County District Court

File No. C3-05-0716

 

Stacy Herbst, 3240 92nd Avenue Northeast, Foley, MN  56329 (pro se respondent)

 

Timothy R. Reuter, Melissa R. Nelson, Kelm & Reuter, P.A., 1287 Second Street North, Suite 101, Sauk Rapids, MN  56379 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Willis, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            This is an appeal from the issuance of a harassment restraining order.  Because the record supports the district court's findings that appellant sent two letters and an e-mail to respondent's employer with the intention of interfering with respondent's privacy, we affirm.

FACTS

            Appellant Julie Herbst is married to respondent Stacy Herbst's former husband.  According to appellant, she received a letter in January 2005 from St. Cloud Hospital stating that respondent had accessed the medical records of appellant, appellant's husband, and appellant's son.  Later testimony established that respondent had been employed by Centra Care Clinic River Campus and that respondent's employer discharged her in November 2004 for accessing patients' medical records without authorization.

Appellant sent an anonymous letter, dated January 21, 2005, to Central Minnesota Mental Health Center (CMMHC), respondent's new employer.  In that letter, appellant told CMMHC that respondent had been fired by her previous employer for breaches of confidentiality.  Appellant sent a second anonymous letter to CMMHC, dated January 31, 2005, in which she again told CMMHC of respondent's past breaches of confidentiality and stated, "It is possible that our first letter was not taken as seriously as it should have, being that [respondent] is still employed there."  On February 7, 2005, appellant sent an e-mail to CMMHC, complaining that respondent was still employed by CMMHC.  In her January 31, 2005 letter, appellant mentioned that CMMHC may want to direct her letters to their "security officer" who enforces "HIPAA laws," and in her February 7, 2005 e-mail, appellant asked who CMMHC's "security officer . . . [was] for HIPAA."  Appellant does not dispute that she sent these letters and the e-mail to CMMHC. 

            In February 2005, respondent filed a petition for a harassment restraining order (HRO) against appellant, in which she stated that appellant had been calling and e-mailing respondent at work and that respondent's employer had told her that appellant had been trying to get respondent fired by sending letters and e-mail to CMMHC.  In March 2005, the district court held an evidentiary hearing and found that "harassment ha[d] occurred, and that the contacts with staff at [CMMHC] were intended to interfere with the privacy of [respondent]."  The district court issued an HRO against appellant, and this appeal follows.

D E C I S I O N

I.

Appellant asserts that her actions of sending two letters and an e-mail to respondent's employer cannot constitute harassment because they are actions protected under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936.  But appellant does not identify the provisions of HIPAA that she claims protect her actions or specify the nature of the protection that she claims HIPAA affords.  Issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  A claim that is based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).  Because appellant merely asserts that HIPAA protects her actions without providing specific supporting authority or argument and because prejudicial error is not obvious after mere inspection of her assertion, we decline to review this issue. 

II.

 

This court reviews a district court's issuance of an HRO under an abuse-of-discretion standard.  Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  This court will set aside a district court's findings in support of its issuance of an HRO only if they are clearly erroneous.  Id.  But if such findings are not supported by sufficient evidence, then this court will reverse the issuance of the HRO.  Id. at 844. 

            A district court may grant an HRO if it finds "that there are reasonable grounds to believe that [a person] has engaged in harassment."  Minn. Stat. § 609.748, subd. 5(3) (2004).  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, regardless of the relationship between the actor and the intended target."  Id., subd. 1(a)(1) (2004). 

Appellant argues that her actions did not have a substantial adverse effect on respondent's privacy and that the district court failed to make a finding on the adverse effects of her actions.  But the statutory definition of "harassment" requires that appellant's acts "have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy" of another.  See id. (emphasis added).  Here, the district court found that there were reasonable grounds to believe that appellant engaged in the harassment of respondent by sending two letters and an e-mail to respondent's employer in which she told the employer that respondent had been fired by her former employer for violation of patient confidentiality.  The district court further found that "the thrust of the letters and the email is that CMMHC should not trust [respondent] and implies that [respondent] should not be an employee at CMMHC" and that "[t]his conduct was intended to interfere with the privacy of [respondent]."  Because the record supports the district court's findings and because these findings are sufficient to support the issuance of an HRO, we conclude that the district court did not abuse its discretion by issuing an HRO against appellant.

Appellant also argues that her actions do not constitute harassment because (1) there was no direct contact or communication between appellant and respondent; (2) her communications were written and not oral; and (3) neither respondent nor her employer told appellant that her letters and e-mail were unwanted.  Because appellant did not raise these arguments in the district court, we are not required to review them.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that a reviewing court must generally consider only those legal theories that the record shows were presented and considered by the district court). 

We nevertheless conclude that the new arguments made on appeal are without merit.  The definition of "harassment" does not require that there be direct contact or oral communication between the actor and the intended target.  See Minn. Stat. § 609.748, subd. 1(a)(1).  The fact that appellant wrote in her e-mail to CMMHC that she wanted to keep her communications, the first two of which were initially anonymous, with CMMHC confidential because if respondent found out "she will accuse me of harassment" supports a conclusion that appellant knew her communications with CMMHC were unwanted by respondent.  And "harassment" includes "intrusive or unwanted acts."  Id. (emphasis added).  Here, the district court found that appellant's "conduct was intended to interfere with the privacy" of respondent.  (Emphasis added.)  "Interfere" means "[t]o intervene or intrude in the affairs of others."  The American Heritage Dictionary 913 (4th ed. 2000) (emphasis added).  Therefore, a finding that appellant's conduct was unwanted by respondent is unnecessary here.

            Affirmed.