EN BANC CALENDAR

 
Jason George, Respondent vs. Daniel Evenson, et al., Defendants, Auto-Owners Insurance Company, Appellant, Progressive Insurance Company, Respondent – Case No. A06-2133:  Respondent Jason George was struck and injured in May 1999 by a car owned by respondent Melissa DesMarais and driven by respondent Daniel Evenson.  DesMarais was insured by Farm Bureau Insurance and Evenson was insured by respondent Progressive Insurance Company.  At the time of his injuries, George was insured under his father’s policy with appellant Auto-Owners Insurance Company.  Auto-Owners and Progressive both denied coverage for George’s injuries under the exclusion for intentional acts.  In April 2005, George notified Progressive and Auto-Owners that Farm Bureau Insurance, DesMarais’ insurer, had agreed to arbitrate the matter.  The arbitration award to George, after reduction for his fault, was approximately $194,000, against which Farm Bureau paid its policy limits of $100,000.  George gave notice of the arbitration award to Progressive and Auto-Owners, but the insurers continued to decline coverage.  George then began this litigation for underinsured motorists (UIM) benefits against DesMarais and Evenson and their insurers, Auto-Owners and Progressive, eventually settling with both DesMarais and Evenson.  In general, a judgment against an insured defendant is binding on the defendant’s insurer if the claimant has given sufficient and timely notice of the pending claim to the insurer.  Malmin v. Minn. Mut. Fire & Cas. Co., 552 N.W.2d 723 (Minn. 1996).  Alternatively, a “best settlement” between the injured party and the insured defendant is binding on the defendant’s insurer if the claimant has given written notice of the proposed settlement to the insurer.  Schmidt v. Clothier, 338 N.W.2d 256 (Minn. 1983).  The district court dismissed George’s UIM claim against Progressive on grounds that in Minnesota an injured party cannot sue an insurance company with whom he has no direct relationship without first obtaining a judgment against the insured.  The district court also dismissed George’s UIM claim against Auto-Owners, on grounds that George failed to give sufficient notice of the arbitration as required by Malmin and released DesMarais and Evenson from liability before giving Auto-Owners proper notice under Schmidt v. Clothier.  The court of appeals affirmed the dismissal of George’s claim against Progressive, but reversed the dismissal of George’s claim against Auto-Owners.  The following issues are before the supreme court in connection with Auto-Owners’ appeal:  (1) whether George is limited to characterizing his arbitration award as either a “best settlement” (to which Auto-Owners would be bound under Schmidt v. Clothier) or as a conclusion to a tort action (to which Auto-Owners would be bound under Malmin) but not both; (2) whether the district court properly held that Auto-Owners was prejudiced by George’s ineffective Malmin notice and properly held that George therefore forfeited his uninsured motorist (UIM) claims; (3) whether George can argue on appeal that the arbitration award is a “best settlement” because that theory was not raised at the district court level; (4) whether, in the event that George is permitted to argue the arbitration was a best settlement, George has forfeited his claim for UIM benefits by failing to provide proper Schmidt notice; and (5) whether the court of appeals erred in requiring the district court to enter the arbitration award as a judgment.  (Hennepin County)

State of Minnesota, Respondent vs. Harry J. Evans, Appellant – Case No. A06‑821:  During the 2006 trial of appellant Harry Evans for the murder of a police officer, the district court received a phone call alleging that one of the jurors seated in the case had made racist remarks.  Evans was convicted and appealed his conviction to the supreme court.  By order filed on April 17, 2007, the supreme court remanded the matter to the district court for further inquiry into the issue of potential juror bias.  After an evidentiary hearing, see Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960), the district court denied Evans’ motion for acquittal or a new trial.  The case returns to the supreme court on the following issues:  (1) whether the state’s interviews with the juror, after Evans’ request for an evidentiary hearing was granted but before the hearing itself, violated the prohibition of Olberg v. Minneapolis Gas Co., 291 Minn. 334, 191 N.W.2d 418 (1971), against attorney contact with jurors to gather evidence to support a request for a Schwartz hearing and unfairly prejudiced Evans; and (2) whether the evidence adduced at the Schwartz hearing established the potential for juror bias warranting a new trial.  (Ramsey County)
 
EN BANC NONORAL - Karon Allen Whittaker, petitioner, Appellant vs. State of Minnesota – Case No. A07-2397:  Appellant Karon Whittaker was convicted of first-degree murder in 1996; his conviction was affirmed on direct appeal.  State v. Whittaker, 568 N.W.2d 440 (Minn. 1997).  In 2007, Whittaker petitioned for post-conviction relief on grounds of newly discovered evidence, namely, an affidavit from one of Whittaker’s co-defendants (who refused to testify at Whittaker’s trial) asserting that a third man committed the crime.  The district court denied the petition without an evidentiary hearing.  On appeal to the supreme court, the issue is whether, in denying the petition for post-conviction relief without an evidentiary hearing, the district court abused its discretion.  (Hennepin County)

EN BANC NONORAL – Leon M. Perry, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-2454:  Appellant Leon Perry was convicted of first-degree murder; his conviction was affirmed on appeal.  State v. Perry, 561 N.W.2d 889 (Minn. 1997).  Perry’s petitions for post-conviction relief were denied in 2005 and 2007.  Perry v. State, 705 N.W.2d 572 (Minn. 2005); Perry v. State, 731 N.W.2d 143 (Minn. 2007).  In July 2007, Perry (acting pro se) filed a third petition for post-conviction relief, alleging that the state failed to prove the murder for which he was convicted was premeditated.  Perry also alleged that he did not receive a fair trial because of the prosecutor’s drug use, which came to light nearly ten years after Perry’s conviction.  In October 2007, Perry (also acting pro se) filed a fourth petition for post-conviction relief, alleging additional prosecutorial misconduct before the grand jury that indicted him, and seeking disclosure of allegedly exculpatory evidence obtained by the prosecution before trial and the appointment of counsel to represent him in post-conviction proceedings.  The district court denied these petitions without an evidentiary hearing.  On appeal to the supreme court, the issue is whether, in denying Perry’s third and fourth petitions without an evidentiary hearing, the district court abused its discretion.  (Hennepin County) 
 
State of Minnesota, Respondent vs. Chad Jeffrey Thompson, Appellant – Case No. A07-1439:  In October 1999, appellant Chad Thompson pleaded guilty to third-degree criminal sexual conduct.  While awaiting sentencing, Thompson had sex on two separate occasions with minors.  On January 6, 2000, Thompson was sentenced for the first offense.  Later in January 2000, Thompson was charged with third-degree and fourth-degree criminal sexual conduct for the two additional offenses.  In April 2000, Thompson pleaded guilty to the two additional offenses and received stayed sentences and 10 years of conditional release on each count.  At the time, Minn. Stat. § 609.109, subd. 7(a) (1998), required that the period of conditional release for a person convicted of criminal sexual conduct be 5 years, but 10 years if the person was convicted of criminal sexual conduct “a second or subsequent time.”  In 2001, Thompson pleaded guilty to aiding and abetting auto theft, and his probation for criminal sexual conduct was revoked.  In 2007, Thompson moved to correct his sentences for criminal sexual conduct to reduce the period of conditional release from 10 years to 5 years.  Thompson’s motion was granted by the district court, but reversed by the court of appeals.  On appeal to the supreme court, the question is whether Thompson’s second and third offenses, committed after his guilty plea but before sentencing for his first offense, constitute convictions for “a second or subsequent” offense for which the period of supervised release is 10 years.  (Douglas County)

In re Petition for Disciplinary Action against Richard D. Varriano, a Minnesota Attorney, Registration No. 131507 – Case No. A07-354:  An attorney discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter.

EN BANC NONORAL – Jerome D. Nunn, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-2235:  Appellant Jerome Nunn was convicted of first-degree murder and attempted first-degree murder in 1995; his conviction was affirmed on appeal.  State v. Nunn, 561 N.W.2d 902 (Minn. 1997).  In 2007, Nunn (acting pro se) petitioned for post-conviction relief, alleging prosecutorial misconduct during closing argument and ineffective assistance of appellate counsel.  The district court denied the petition without an evidentiary hearing.  On appeal to the supreme court, the issue is whether, in denying Nunn’s petition without an evidentiary hearing, the district court abused its discretion.  (Hennepin County)
 
C.O., Appellant vs. John Doe, et al, Respondents – Case No. A07‑826:  Minnesota Statutes § 259.58 (2006) allows adoptive parents and a birth relative to enter into “an agreement regarding communication with or contact between an adopted minor, adoptive parents, and a birth relative” provided that, among other things, the agreement is in writing and is incorporated into a court order.  In 2005, appellant C.O. entered into an agreement with respondent John Doe and his wife in connection with the termination of C.O.’s parental rights to, and the Does’ adoption of, C.O.’s daughter, which agreement was approved by the district court.  The agreement provided for, among other things, continued visitation between C.O. and the girl.  In 2006, C.O. sought enforcement of the contact agreement; the Does moved for termination of the agreement.  Minnesota Statutes § 259.58(c) (2006) provides for modification of a contact agreement if the modification is “necessary to serve the best interests of the minor adoptee” and “exceptional circumstances have arisen since the agreed order was entered that justify modification of the order.”  The district court vacated the agreement and the district court order approving it; the court of appeals affirmed.  The supreme court has agreed to decide whether the district court erred in vacating the contact agreement.  (Washington County)

In re Petition for Reinstatement of William G. Mose, a Minnesota Attorney, Registration No. 125659 – Case No. A07-437:  An attorney discipline case that presents the question of whether respondent William G. Mose should be reinstated to the practice of law in Minnesota.

EN BANC NONORAL – Derrick Delmar Brocks, petitioner, Appellant vs. State of Minnesota – Case No. A07-2146:  Appellant Derrick Brocks was convicted of first-degree murder in 1997; his conviction was affirmed on direct appeal.  State v. Brocks, 587 N.W.2d 37 (Minn. 1998).  In 2007, Brocks (acting pro se) petitioned for post-conviction relief, alleging ineffective assistance of trial and appellate counsel and that there was insufficient evidence of premeditation.  The district court denied the petition without an evidentiary hearing.  On appeal to the supreme court, the issue is whether, in denying the petition for post-conviction relief without an evidentiary hearing, the district court abused its discretion.  (Hennepin County)
 
EN BANC NONORAL – Theodore Sherman Ashby, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-2385:  Appellant Theodore Ashby was convicted of first-degree murder in 1995; his conviction was affirmed on direct appeal.  State v. Ashby, 567 N.W.2d 21 (Minn. 1997).  In 2007, Ashby (acting pro se) filed a petition for post-conviction relief, alleging prosecutorial misconduct in initially charging him by complaint rather than grand jury indictment; prosecutorial misconduct in trying him in the face of evidence that another committed the crime; that the district court judge improperly injected herself into defense counsel’s closing argument and improperly instructed the jury; and that the district court judge should have recused herself for bias.  The district court denied the petition without an evidentiary hearing.  On appeal to the supreme court, the question is whether, in denying the petition without an evidentiary hearing, the district court abused its discretion.  (Hennepin County)

EN BANC NONORAL – Carol and Roger A. Dreyling, Relators vs. Commissioner of Revenue – Case No. A08-274:  In September 2004, the Minnesota Commissioner of Revenue determined that relator Roger Dreyling was liable for Minnesota income taxes, penalties, and interest for the 2001 and 2002 tax years.  Dreyling appealed the Commissioner’s determination, and the Minnesota Tax Court affirmed.  On appeal to the supreme court, the issue is whether Dreyling was a Minnesota resident for the 2001 and 2002 tax years, as defined in Minn. Stat. § 290.01, subd. 7 (2006), either as an individual domiciled in Minnesota or as an individual domiciled outside of Minnesota who spent, in the aggregate, more than one-half of the tax year in Minnesota.  (Minnesota Tax Court)

EN BANC NONORAL – Harold A. Gustafson, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-2370:  Appellant Harold Gustafson was convicted of first-degree murder in 1984; his conviction was affirmed on direct appeal.  State v. Gustafson, 379 N.W.2d 81 (Minn. 1985).  In 2007, Gustafson (acting pro se) petitioned for post-conviction relief, alleging that one witness against him received a secret deal from prosecutors in exchange for his testimony; that a police investigator assisted in fabricating the testimony of two witnesses; and that he should have been appointed counsel during post-conviction proceedings because he is incarcerated in Nevada.  The district court denied the petition without an evidentiary hearing.  On appeal to the supreme court, the issue is whether, in denying the petition without an evidentiary hearing, the district court abused its discretion.  (Ramsey County)