Sharper Management, LLC v. Melvin Pittel

This opinion will be unpublished and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
A16-0251

Sharper Management, LLC, et al., petitioners,
Appellants,

vs.

Melvin Pittel,
Respondent.

Filed August 29, 2016
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CV-15-17138

Phaedra J. Howard, Joseph M. Barnett, Hellmuth & Johnson, P.L.L.C., Edina, Minnesota
(for appellants)

Jevon C. Bindman, Martin S. Fallon, Maslon LLP, Minneapolis, Minnesota (for
respondent)

Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and Kirk,

Judge.

UNPUBLISHED OPINION

CLEARY, Chief Judge

On appeal from the district court’s denial of their request to extend their harassment

restraining order (HRO) against respondent Melvin Pittel, appellants Sharper Management,
LLC and Westbrooke Condominium Association argue that the district court (1) abused its

discretion when it denied their request for an extended HRO; and (2) erred in concluding

that the requested extension of the HRO constituted a prior restraint on speech. We affirm.

FACTS

Respondent owns a condominium at Meadow Creek Condominiums (Meadow

Creek) in Hopkins. Appellant Westbrooke Condominium Association (the board) is the

managing board of the Meadow Creek owners’ association, and appellant Sharper

Management, LLC is a company hired by the board to manage Meadow Creek’s daily

operations. Appellants and respondent have a history of disagreement regarding the

board’s actions and management of Meadow Creek. Some of these disagreements have

resulted in litigation. Respondent previously created three public websites where he posted

criteria of the board and board members’ personal information.

In December 2013, appellants obtained a two-year HRO against respondent. The

HRO ordered respondent to shut down the three websites and prohibited him from

“creating or maintaining any website to harass [appellants] or their agents.” The HRO

ordered respondent to stay away from the Meadow Creek office and community room, and

prohibited him from attending board meetings. It provided that respondent could submit

his vote at board meetings by proxy and could voice concerns to the board in writing.

Respondent appealed the HRO, challenging the provision that ordered him to immediately

shut down his websites. Westbrooke Condo. Ass’n v. Pittel, No. A14-0198, 2015 WL

133874, at *1 n.1 (Minn. App. Jan. 12, 2015). This court affirmed the district court, holding

that respondent had used the websites in a way that “substantially affected [appellants’]

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privacy interests,” and therefore had engaged in harassment as defined by Minn. Stat.

§ 609.748, subd. 1(a)(1) (2012). Id. at *2-3.

In January 2014, appellants requested a finding of contempt, alleging that

respondent had violated provisions of the HRO by creating a new website to harass them.

The district court denied appellants’ request. In October 2015, appellants petitioned the

district court for an extended restraining order. Appellants alleged that respondent had

repeatedly violated the 2013 HRO. A board member and two employees of appellant

Sharper Management, LLC submitted affidavits alleging that respondent had harassed

them on his new website.

After an evidentiary hearing, the district court found that respondent’s online posts

were “often unpleasant and offensive to their targets,” but concluded that appellants had

failed to prove that respondent’s online activity amounted to harassment as defined by

statute. The district court also found that respondent did not violate the HRO when he tried

to vote at board meetings by assigning a power of attorney to another resident, instead of

using Meadow Creek’s established procedure for proxy voting. The district court

dismissed the case and terminated the temporary restraining order that had been in effect.

This appeal followed.

DECISION

Appellants argue that the district court abused its discretion by ignoring and

mischaracterizing evidence of harassment by respondent and by denying their request for

an extended HRO. This court reviews a HRO issued under Minn. Stat. § 609.748 (2014)

for an abuse of discretion. Roer v. Dunham, 682 N.W.2d 179, 182 (Minn. App. 2004).

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This court will not set aside the district court’s findings of fact unless they are clearly

erroneous, and due regard is given to the district court’s opportunity to judge the credibility

of witnesses. Kush v. Mathison, 683 N.W.2d 841, 843-44 (Minn. App. 2004), review

denied (Minn. Sept. 29, 2004); Minn. R. Civ. P. 52.01.

A district court may issue a HRO if it finds “reasonable grounds to believe that [a

person] has engaged in harassment.” Minn. Stat. § 609.748, subd. 5(b)(3). “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.” Minn. Stat. § 609.748, subd. 1(a)(1). This court has observed that

the language of the statute is directed against constitutionally
unprotected “fighting words” likely to cause the average
addressee to fight or protect one’s own safety, security, or
privacy; “true threats” evidencing an intent to commit an act of
unlawful violence against one’s safety, security or privacy; and
speech or conduct that is intended to have a substantial adverse
effect, i.e., is in violation of one’s right to privacy.

Dunham v. Roer, 708 N.W.2d 552, 566 (Minn. App. 2006), review denied (Minn. Mar. 28,

2006).

Before a court may issue an HRO, the statute requires “both objectively

unreasonable conduct or intent on the part of the harasser and an objectively reasonable

belief on the part of the person subject to harassing conduct.” Id. at 567. “[I]nappropriate

or argumentative statements alone cannot be considered harassment.” Kush, 683 N.W.2d

at 844. There must be sufficient evidence to support issuance of an HRO. Id.

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 In this case, the district court concluded that appellants had failed to provide

evidence sufficient to show that respondent had violated the existing HRO by engaging in

harassment as defined by Minn. Stat. § 609.748. Record evidence supports the district

court’s conclusion.

The district court found that respondent’s criticism of appellants “may have been

legally defamatory,” but concluded that respondent’s actions did not implicate appellants’

safety, security, or privacy. Nothing in the record indicates that the district court clearly

erred in making findings or erred in its application of law. After hearing testimony and

appellants’ closing argument, the district court pressed counsel for appellants to show how

respondent’s activities had created or were intended to create a substantial adverse effect

on appellants’ safety, security, or privacy. Appellants conceded that respondent had not

incited violence or threatened anyone. But appellants argued that nonetheless, respondent

made them feel unsafe.

The owner of appellant Sharper Management, LLC testified, “[S]ometimes I

question whether or not [my employee] is safe [at Meadow Creek].” The witness did not

further specify how respondent had adversely affected the employee’s safety. A former

president of the board testified that he is concerned about his own safety due to

respondent’s activities, and stated that his wife “is petrified based on the incidents and the

things that have been said.” On cross-examination by respondent, the witness conceded

that his wife had never been mentioned on the website, but stated that his home had been

mentioned. The district court found that respondent did not post appellants’ personal

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information on the new website he created after issuance of the 2013 HRO. On review, no

evidence suggests that the district court clearly erred in making that finding.

Witnesses for appellants testified to their discomfort and frustration with what they

view as respondent’s dissemination of misinformation. They testified that they are

concerned that respondent’s actions create a negative public impression of Meadow Creek.

An employee of appellant Sharper Management, LLC testified that she felt respondent

called her “stupid” on his website, and that respondent’s critiques could “negatively affect

how people see me as the manager of the association.” The former president testified that

he had recently declined to run for a board office “because of the ongoing electronic

assaults against me.” He testified that respondent had continued to post content online that

portrayed him as a thief, and stated that he believed he is respondent’s “premier target.”

Before issuing an HRO, a court must find that the person subject to harassment also

had an objectively reasonable belief that their safety, security, or privacy was adversely

affected. Dunham, 708 N.W.2d at 567. The testimony elicited in this case amounts to no

more than general, subjective assertions of fearfulness or insecurity, which falls short of

the standard set forth in Dunham. The record supports the district court’s finding that

respondent “engaged in some name-calling, negative insinuations, accusations and

conjecture” and that “[respondent’s] writings were often unpleasant and offensive to their

targets.” The district court correctly applied the law to its factual findings when it

concluded that appellants failed to prove that respondent’s “upsetting and offensive”

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actions rose to the level of harassment, as defined by Minn. Stat. § 609.748.1 The district

court did not abuse its discretion when it declined to extend appellant’s HRO.

Appellants also argue that the district court erred because it concluded that the 2013

HRO is a prior restraint on speech, even though this court had previously upheld the

constitutionality of the HRO in Westbrooke Condo. Ass’n, 2015 WL 133874 at *3. The

hearing transcript and the district court’s memorandum indicate that the district court was

concerned about First Amendment protections for speech. The district court discussed the

topic at length in the evidentiary hearing and in its memorandum. But the district court’s

decision did not rest on whether the HRO was constitutional. It was based on whether

respondent had violated the existing HRO by engaging in harassment. The district court

found that respondent had not violated the HRO, and the court explained why respondent’s

actions did not amount to harassment, as defined by law. We decline to reach appellants’

argument regarding the district court’s constitutional analysis, because it is not the basis on

which the court denied appellants’ request for an extended HRO.

Affirmed.

1
During oral argument before this court, counsel for appellants argued that respondent’s
actions jeopardized appellants’ economic security, because, among other things,
respondent’s actions allegedly discouraged potential tenants from renting units at Meadow
Creek. Appellants did not argue this theory before the district court, therefore it is not
properly before this court under Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).
Additionally, appellants cited no published case law to support the argument that Minn.
Stat. § 609.748 encompasses economic security.

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