Vickie Williams and o/b/o M. W. v. Phillip A. Rimmer

• Court: Court of Appeals of Minnesota
• Decided: May 26, 2015
• Docket: A14-1431
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-1431

Vickie Williams and o/b/o M. W., petitioner, Respondent,

vs.

Phillip A. Rimmer, Appellant.

Filed May 26, 2015 Affirmed in part, reversed in part, and remanded Larkin, Judge

Anoka County District Court File No. 02-CV-14-4042

Andrew Larson-Wille, Batten & Beasley, PLLC, Roseville, Minnesota (for appellant)

Vickie M. Williams (confidential address) (pro se respondent)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Minge,

Judge.

UNPUBLISHED OPINION

LARKIN, Judge

In this appeal from the grant of a harassment restraining order (HRO), appellant

challenges the district court’s determination that he engaged in harassment and argues

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. that it is impossible for him to comply with a provision in the HRO that prohibits him

from being within a two-block radius of an undisclosed location. Because the district

court did not abuse its discretion by granting the HRO, we affirm in part. But we reverse

the provision in the HRO that prohibits appellant from being within two blocks of an

undisclosed location and remand for a modified HRO consistent with this opinion.

FACTS

Appellant Phillip Rimmer was respondent Vickie Williams’s landlord from

September 2013 until July 2014. The parties had a contentious relationship, and the

police were called on multiple occasions by both parties. In October 2013, Williams

petitioned for an HRO against Rimmer, which was denied. In July 2014, Williams again

petitioned for an HRO against Rimmer, and she included a request for relief on behalf of

her 17-year-old daughter, M.W.

The district court held an evidentiary hearing on Williams’s petition. Testimony

was limited to events that occurred after the first petition was denied. Williams testified

that Rimmer appeared at the house that she rented from him without notice on at least six

occasions and that while he was there, he cursed at her and acted aggressively and

violently. She also testified that Rimmer addressed her and M.W. using racial slurs and

derogatory terms. M.W. testified that Rimmer constantly screamed obscenities and was

“getting in [their] face[s]” while yelling. She also stated that he threatened to “take

[them] to court and wipe [their] a--[es] across the floor.”

Although most of the testimony concerned Rimmer’s ongoing behavior and

general treatment of Williams and M.W., Williams and M.W. testified about two specific

2 verbal altercations. The first incident occurred on July 2, 2014, the day that Williams and

M.W. vacated the rental property. M.W. testified that Rimmer yelled at them, got very

close to her, and had to be asked more than once to back away. She also testified that

Rimmer continued to yell louder and louder as they attempted to leave and that he called

Williams “the devil.” The second incident occurred on July 7, 2014, the day of a district

court hearing regarding Rimmer’s eviction action against Williams. Williams testified

that after the action was dismissed, Rimmer saw Williams and M.W. in the hallway and

screamed obscenities at them. He also yelled “I’m going to get you.”

Rimmer testified that the HRO petition was retaliatory because he filed a trespass

order against Williams after she vacated the rental property. He also testified that he

always gave proper notice before going to the rental property. He denied that he had ever

called Williams and M.W. names.

At the conclusion of the hearing, the district court issued an HRO that prohibits

Rimmer from (1) harassing Williams and M.W., (2) having direct or indirect contact with

Williams and M.W., and (3) being within a two-block radius of Williams’s home. The

HRO describes Williams’s address as “confidential.” Rimmer appeals.

DECISION

The district court may grant an HRO if “the court finds . . . that there are

reasonable grounds to believe that the respondent has engaged in harassment.” Minn.

Stat. § 609.748, subd. 5(b)(3) (2014). Harassment includes “repeated incidents of

intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are

3 intended to have a substantial adverse effect on the safety, security, or privacy of

another.” Minn. Stat. § 609.748, subd. 1(a)(1) (2014).

“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 findings of

fact “shall not be set aside unless clearly erroneous, and due regard shall be given to the

opportunity of the [district] court to judge the credibility of the witnesses.” Minn. R. Civ.

P. 52.01. To determine if findings are clearly erroneous, this court examines the record

to see if “there is reasonable evidence in the record to support the [district] court’s

findings.” Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013)

(quotation omitted). “[T]his court will reverse the issuance of a restraining order if it is

not supported by sufficient evidence.” Kush, 683 N.W.2d at 844.

Rimmer asserts that the district court erred in determining that he engaged in

harassment and by excluding him from an area surrounding an undisclosed location. We

address each assertion in turn.

I.

We first consider Rimmer’s challenges to the district court’s grant of the HRO.

Rimmer contends that the district court erred by determining that he “repeatedly made

uninvited visits to [Williams’s] home, and that this behavior constituted harassment.”

Rimmer argues that he and Williams were in a landlord-tenant relationship and that

residential landlords may visit their property so long as they attempt to give “reasonable

notice.” See Minn. Stat. § 504B.211, subd. 2 (2014) (stating that a landlord may enter the

4 rented premises “only for a reasonable business purpose and after making a good faith

effort to give the residential tenant reasonable notice”). He further argues that unnoticed

visits are allowed under certain circumstances. See Minn. Stat. § 504B.211, subd. 4(1)-

(3) (2014) (listing situations in which a landlord may enter the rented premises without

giving prior notice). Rimmer acknowledges that the district court found that he called

Williams and M.W. names during his visits, but he argues that this “factual determination

does not constitute uninvited visits under the meaning of [the harassment statute].”

The district court credited Williams’s testimony that Rimmer made numerous

visits to the rental property without notice, but the district court referred to those visits as

a “minor issue.” The district court went on to say, “more significantly I’m finding that

[on] some of these occasions when Mr. Rimmer was at the premises, the leased premises,

that he called [Williams and M.W.] names. He called them wh-res, b-tches, n-ggers.”

Thus, although the district court’s form HRO states that “[t]here are reasonable grounds

to believe that [Rimmer] has engaged in harassment . . . by . . . [making] uninvited

visits,” the district court explained that it did not base its harassment determination solely

on the uninvited nature of the visits. Instead, the district court based its harassment

determination on Rimmer’s behavior during the visits. And that determination was not

erroneous. See Kush, 683 N.W.2d at 844-46 (finding harassment based, in part, on face-

to-face confrontations, use of crude and profane language, and use of abusive and profane

names).

Rimmer next contends that the district court erred by finding that he threatened to

“wipe [Williams’s and M.W.’s] a--[es] across the floor.” M.W. testified that Rimmer

5 said “he’d take us to court and wipe our a-- across the floor.” Rimmer admits that he

made the statement, but he argues that the harassment statute requires proof of

“objectively unreasonable conduct or intent” on his part and “an objectively reasonable

belief on the part of [Williams and M.W.].” See Dunham v. Roer, 708 N.W.2d 552, 567

(Minn. App. 2006) (requiring such proof and noting that there must be “reasonable, rather

than merely subjective, grounds to believe” harassment has occurred), review denied

(Minn. Mar. 28, 2006). He argues that his objective intent was clear: he “intended to

prevail in a court proceeding, [and] not [to] physically wipe [Williams’s and M.W.’s] a--

es across a floor.”

This court has previously upheld an HRO that was based, in part, on threats to take

a party to court. See Kush, 683 N.W.2d at 845 (affirming harassment determination

based, in part, on the harassing party’s threats to take petitioner to court). Moreover,

according to M.W.’s testimony, immediately before Rimmer made the statement he was

“yelling and screaming at [Williams] and spitting in [Williams’s] face and calling her

once again b-tches.” When considered in its context, the statement that allegedly was

meant to convey an intent “to prevail in a court proceeding” was threatening. In sum,

there is reasonable evidence in the record to support the district court’s finding that

Rimmer made the statement, and the district court did not err by basing its harassment

determination on the statement. See id. at 843 (upholding harassment determination

based, in part, on the harassing party’s statement to petitioner that “You’re going to regret

the day you ever bought this f---ing place.”).

6 We note that this court will not reverse the grant of an HRO if it is supported by

sufficient evidence. Id. at 846. Even if we were to ignore the district court’s findings

regarding Rimmer’s conduct during the uninvited visits and Rimmer’s statement

regarding his intent to prevail in court, the remaining findings establish that Rimmer

engaged in harassment.1 As support for its harassment determination, the district court

also found that Rimmer threatened, “I’m going to get you,” and engaged in name calling

after a court hearing; “got in [M.W.’s] face” while yelling and shouting on another

occasion; and called Williams and M.W. “abusive names,” such as “n-gger,” “b-tch,” and

“wh-re,” “numerous times” from October 2013 to July 2014. Those findings support the

district court’s determination that Rimmer engaged in harassment. See id. at 844-46

(finding harassment in the context of an ongoing dispute between neighbors that included

face-to-face confrontations, use of crude and profane language, and use of abusive and

profane names).

In conclusion, “[t]he determination of what constitutes an adequate factual basis

for [an HRO] is left to the discretion of the district court.” Id. at 846. We note counsel’s

statements that appellant is a military veteran and that he suffers from a head injury. We

are grateful for Rimmer’s service as a veteran and sympathetic regarding his head injury.

But his conduct crossed the line. See id. (“[T]he harassment laws place carefully limited

restraints on individuals whose conduct goes beyond an acceptable expression of outrage

1 Rimmer challenged the remaining findings for the first time at oral argument before this court. Because Rimmer did not raise those challenges in his appellate brief, we do not consider them. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that an issue not briefed on appeal was waived).

7 and civilized conduct, and instead causes a substantial adverse effect on another’s safety,

security or privacy.”). On this record, the district court did not abuse its discretion by

granting an HRO.

II.

We next consider Rimmer’s challenge to the provision in the HRO that prohibits

him from being within a two-block radius of Williams’s home, the address of which is

described as “confidential” in the HRO.2 Rimmer’s argument on this issue is succinct but

persuasive: “On its face, there is no way for [him] to comply with the [HRO]. Without

knowing where [he] is ordered to stay away from, [he] risks violating the [HRO]

whenever [he] travels anywhere.”

The harassment statute authorizes a district court to “issue a restraining order that

provides any or all of the following: (1) orders the respondent to cease or avoid the

harassment of another person; or (2) orders the respondent to have no contact with

another person.” Minn. Stat. § 609.748, subd. 5(a)(1)-(2) (2014). Unlike the Domestic

Abuse Act, which specifically provides that the district court may “exclude the abusing

party from a reasonable area surrounding the [petitioner’s] residence,” the harassment

statute does not explicitly authorize such relief. Compare Minn. Stat. § 518B.01, subd.

6(a)(3) (2014) (describing available relief in a domestic abuse case), with Minn. Stat.

§ 609.748, subd. 5(a)(1)-(2) (describing available relief in a harassment case).

2 The record does not explain why Williams’s address is described as “confidential” in the HRO. Although Minnesota has an address confidentiality program, Minn. Stat. §§ 5B.01-12 (2014), there is no indication that Williams is a participant in that program. Instead, it appears that Williams simply wrote “confidential address” in all of the HRO forms and documents.

8 Even though the harassment statute does not explicitly authorize the district court

to exclude a harassing party from an area surrounding the petitioner’s residence, such a

restriction is consistent with an order prohibiting the harassing party from having contact

with the petitioner, which is authorized. See Minn. Stat. § 609.748, subd. 5(a)(2).

Moreover, this court has previously upheld such a restriction. See Welsh v. Johnson, 508

N.W.2d 212, 216 (Minn. App. 1993) (concluding, in the context of a First Amendment

challenge, that a provision in an HRO that prohibited the harassing party from coming

within two blocks of the petitioner’s residence was a “permissible” restriction). But we

are not aware of any case upholding an HRO provision that excludes a harassing party

from an area surrounding an unidentified address. Under the circumstances, we look to

the Domestic Abuse Act for guidance. See Anderson v. Lake, 536 N.W.2d 909, 911 &

n.1 (Minn. App. 1995) (stating that “[the Domestic Abuse Act] and [the harassment

statute] are sufficiently similar so that we may recognize caselaw construing the former

as applicable to the latter” and finding “the parallels between . . . the two statutes helpful

in defining” a term under the harassment statute).

Although an order for protection under the Domestic Abuse Act may exclude an

abusing party from “a reasonable area surrounding the [petitioner’s] residence,” the order

must “specifically” describe the area of exclusion. Minn. Stat. § 518B.01, subd. 6(a)(3).

We discern no reason why an exclusionary order under the harassment statute should not

be subject to the same specificity requirement, especially when a violation of either order

exposes the violator to criminal sanctions. Compare Minn. Stat. § 518B.01, subd. 14

(2014) (listing criminal penalties for violation of an order for protection), with Minn. Stat.

9 § 609.748, subd. 6 (2014) (listing criminal penalties for violation of an HRO). In

addition, a specificity requirement is consistent with a notice provision under the

harassment statute that requires an HRO to contain “a conspicuous notice” to the

harassing party “of the specific conduct that will constitute a violation of the order.”

Minn. Stat. § 609.748, subd. 8(a)(1) (2014). The district court’s order excluding Rimmer

from being within a two-block radius of Williams’s home does not satisfy the specificity

requirement because Williams’s home address is not identified in the order and the record

does not indicate that Rimmer knows where Williams resides.

Because the provision in the HRO that prohibits Rimmer from being within a two-

block radius of “Petitioner’s home at: (confidential address)” is not adequately specific,

we reverse in part and remand for the district court to modify the HRO consistent with

this opinion.

Affirmed in part, reversed in part, and remanded.