                          This opinion will be unpublished and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
                                     A15-0610

                             Sharon Anne Johnson, petitioner,
                                       Appellant,

                                           vs.

                                   Paul Jonathan Koski,
                                       Respondent.

                                Filed December 14, 2015
                                       Affirmed
                                     Minge, Judge

                             Hennepin County District Court
                               File No. 27-CV-14-12640

Sharon Anne Johnson, Bloomington, Minnesota (pro se appellant)

Christine Cahill Lake, Christine R. Cahill Law Office, Ltd., Prior Lake, Minnesota (for
respondent)

         Considered and decided by Stauber, Presiding Judge; Smith, Judge; and Minge,

Judge.

                         UNPUBLISHED OPINION

MINGE, Judge

         Appellant challenges the district court’s order vacating an ex parte harassment

restraining order (HRO), arguing that the district court erred by granting respondent’s


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
motion for an evidentiary hearing more than 45 days after the order was issued, and by

determining that appellant failed to prove harassment. We affirm.

                                        FACTS

      Appellant Sharon Anne Johnson rented a house from respondent Paul Jonathan

Koski from 1995 until October 2014. In 2012, Koski attempted to terminate the tenancy

and evict Johnson, but this court determined that Koski had improperly served Johnson

and reversed the judgment granting a writ of recovery of the premises. See Koski v.

Johnson (Koski I), 837 N.W.2d 739, 741 (Minn. App. 2013), review denied (Minn. Dec.

17, 2013). Johnson, who had left the property, moved back in December 2013.

      In January 2014, Koski informed Johnson he had hired professional property

manager Renter’s Warehouse to manage the property and stated that “[t]he terms of our

original lease agreement are now in effect.” In April 2014, Renter’s Warehouse served a

notice to vacate the premises in 30 days, and, when Johnson refused to do so, Renter’s

Warehouse initiated an eviction action. The district court dismissed this action in late

June because the original lease agreement required 60-days’ notice.       In July 2014,

Renter’s Warehouse gave notice to Johnson to vacate within 60 days. Once again,

Johnson refused to vacate and Koski brought a third eviction action. The district court

granted an eviction judgment and Johnson left the property in October 2014. This court

affirmed the eviction judgment. See Koski v. Johnson (Koski II), A14-1836 (Minn. App.

July 20, 2015), review denied (Minn. Sept. 29, 2015).

      On July 23, 2014, before the third eviction action was resolved, Johnson petitioned

for and received an ex parte HRO. Koski was not personally served with the HRO until


                                           2
October 1, 2014, 70 days after it was issued. This was outside the 45-day period during

which he was permitted to request a hearing on the ex parte order. On January 13, 2015,

the district court granted Koski’s motion for an evidentiary hearing because of the late

service.

       After the April 2015 hearing, the district court found that Johnson paid her rent for

February, March, April, May, and June 2014 to Renter’s Warehouse, as she had been

instructed, but Johnson mailed her July rent check to Koski because she had a dispute

with Renter’s Warehouse about some requested repairs.             In July 2014, Renter’s

Warehouse left Johnson four or five messages asking about the rent. Johnson alleged that

Koski or his agent repeatedly made harassing telephone calls so that she became “a

nervous wreck” and “couldn’t pick up [her] phone.” Johnson offered recorded messages

from her telephone, which the district court characterized as “three identical, short and

polite advisories about the unpaid ‘rent or fees’ still owing.” Koski denied speaking with

Johnson in person or by telephone since April 2012, and directed her in a January 2014

e-mail to deal only with Renter’s Warehouse.

       The district court found that there “was no evidence of assaultive behavior by

[Koski], nor of any fear on the part of [Johnson] that Koski has or will assault her.” The

district court found Koski’s testimony “that he has had no contact with [Johnson] since

2012, and neither harassed her directly or through any other person” credible, and that

Johnson was not a credible witness. The district court concluded that Johnson “failed to

provide sufficient facts to show that [Koski] has engaged in harassment within the

meaning of Minn. Stat. § 609.748,” and dismissed the HRO. Johnson appeals.


                                             3
                                    DECISION

                                            I.

      Johnson argues that the district court erred by permitting Koski to have an

evidentiary hearing. Under Minn. Stat. § 609.748, subd. 4 (2014), the district court may

issue an ex parte temporary HRO upon a petition signed by a person alleging that the

respondent has engaged in harassment. A respondent may request a hearing “within 45

days after the [HRO] is issued.” Id., subd. 4(f). “[W]hen no hearing is held because a

respondent does not timely request a hearing, an ex parte [temporary HRO] . . . becomes

an ex parte HRO . . . and remains in effect for the period set forth [in the temporary

order].” Fiduciary Found., LLC ex rel. Rothfusz v. Brown, 834 N.W.2d 756, 760 (Minn.

App. 2013), review denied (Minn. Sept. 17, 2013).1 But the process set forth in Minn. R.

Civ. P. 60.02 is available generally to seek relief from an otherwise final order or

judgment. Minn. R. Civ. P. 60.02; see also Northland Temps., Inc. v. Turpin, 744

N.W.2d 398, 402 (Minn. App. 2008) (noting that rule 60.02 allows relief from orders and

judgment), review denied (Minn. Apr. 29, 2008). There is no reason that rule 60.02

would not be available in the HRO setting. See generally Brown, 834 N.W.2d at 760-63

(reviewing district court’s denial of a motion to vacate and citing rule 60.02 standard of

review).

      We review the district court’s decision on whether to vacate an order or judgment

under rule 60.02 for an abuse of discretion. Turpin, 744 N.W.2d at 402. “[I]t is the duty


1
 Because the district court granted Koski both a rule 60.02 hearing and an evidentiary
hearing on the ex parte HRO, we need not address the issues raised in Brown.

                                            4
of the [district] court to grant a motion to open a default judgment and permit a party to

answer if the party in default shows that it has met each of the requirements in the four-

factor [Hinz] test.” Id. (quotation omitted). The Hinz2 factors include (1) a reasonable

defense on the merits; (2) a reasonable excuse for the failure or neglect to answer; (3) due

diligence after notice of entry of the judgment; and (4) a demonstration that no prejudice

will occur to the other party. Id.

       In his affidavit supporting his rule 60.02 motion, Koski stated that he lived in

Wisconsin and not in Minnesota at the address Johnson listed in her petition, he made no

harassing phone calls to Johnson, and a property manager handled all communications

with Johnson. This is a reasonable defense on the merits. Koski had a reasonable

excuse: He was not personally served until October 1, well after the limit of time for

requesting a hearing, and the papers he received gave conflicting information about when

a request for a hearing must be filed. He filed his motion for a hearing on October 29,

demonstrating due diligence. Finally, Johnson was not prejudiced, because the HRO

remained in effect. Although the district court did not make explicit Hinz findings, the

record supports the conclusion that Koski’s motion met the Hinz factors.

       Johnson argues that Koski should have sought relief by appeal to this court, citing

Brown. But Brown states that although the denial of a motion to vacate an ex parte HRO

is appealable, the issuance of an ex parte HRO is not. 834 N.W.2d at 760-61.




2
  Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 456
(1952).

                                             5
       Based on the record, the district court did not abuse its discretion by granting

Koski’s rule 60.02 motion and permitting him to have an evidentiary hearing.

                                            II.

       “An appellate court reviews the district court’s grant of [an HRO] under an abuse-

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

(citations omitted), review denied (Minn. Sept. 29, 2004). We will reverse an HRO if it

is not supported by sufficient evidence. Id. at 844.

       “Harassment” is defined as “a single incident of physical or sexual assault or

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) (2014).

       The district court found that the alleged harassing incidents were four or five

phone calls made by Renter’s Warehouse after Johnson sent her rent check to Koski

instead of Renter’s Warehouse as she was directed. The district court characterized the

three voice recordings it heard as “identical, short and polite advisories about the unpaid

‘rent or fees’ still owing.” The district court also found that (1) Koski had not directed

Renter’s Warehouse to make these calls, and the property manager made them in the

course of his duties; (2) the “confusion” was a result of Johnson bypassing Renter’s

Warehouse; (3) Koski lives in Wisconsin and has not spoken to Johnson outside of court

since 2012; and (4) there was no evidence that Koski assaulted Johnson or that she feared


                                             6
that he would. Finally, the district court found that Koski was a credible witness and that

Johnson produced no evidence contradicting his testimony; on the other hand, Johnson

was “far less credible” and her “presentation was confused and unorganized.”           The

district court commented that Johnson “exhibited fixations upon certain topics, such as

the unfairness of her eviction and the untimeliness of this hearing, which defied logic”

and “presented no evidence, direct or circumstantial, linking [Koski] to any harassing

actions.”

       “[W]hether certain conduct constitutes harassment may be judged from both an

objective standard, when assessing the effect the conduct has on the typical victim, and a

subjective standard, to the extent the court may determine the harasser’s intent.” Kush,

683 N.W.2d at 845. On this record, there is no evidence that Koski intended to harass

Johnson. The telephone calls were made by Renter’s Warehouse in the course of its

business and Koski employed the property manager so as to avoid any interaction with

Johnson. Johnson’s reaction to the telephone calls was not reasonable, particularly when

she made no attempt to inform Renter’s Warehouse why it had not received her monthly

rent check. The district court’s determination that there was not sufficient evidence to

sustain the HRO was not an abuse of discretion.

       Affirmed.




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