                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-1211

                    Amanda Stokes-Ciochetto, Paul Brian Ciochetto
                       and o/b/o Minor Children, petitioners,
                                   Respondents,

                                            vs.

                                   Devin James Eskeli,
                                       Appellant.

                                Filed January 17, 2017
                                Reversed and remanded
                                Smith, Tracy M., Judge

                             St. Louis County District Court
                                File No. 69HI-CV-16-339

James J. Vollstaedt, Sellman Borland & Simon PLLC, Hibbing, Minnesota (for
respondents)

Rachel C. Sullivan, Prebich & Sullivan, P.C., Hibbing, Minnesota (for appellant)

       Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Smith,

Tracy M., Judge.

                        UNPUBLISHED OPINION

SMITH, TRACY M., Judge

       Appellant Devin Eskeli challenges a district court’s issuance of a harassment

restraining order to respondents, members of the Stokes-Ciochetto family. Eskeli argues

on appeal that (1) the district court erred by issuing a harassment restraining order based
on a single incident of harassment; (2) the family failed to show the substantial adverse

effect on respondent-daughter A.S. that is required to obtain a harassment restraining order;

and (3) the record does not support the issuance of the harassment restraining order as to

the remaining members of the family. We conclude that the district court erred by issuing

a harassment restraining order based on a single incident of trespass and therefore do not

reach arguments (2) and (3). We reverse and remand for further proceedings consistent

with this opinion.

                                           FACTS

         Devin Eskeli, age 18 at the time of the petition, and A.S., age 17 at the time of the

petition,1 began dating in June 2015. Respondent-mother of A.S., Amanda Stokes-

Ciochetto, and respondent-stepfather of A.S., Paul Ciochetto, voiced concerns about the

relationship. Paul Ciochetto informed Eskeli multiple times that he was not allowed in the

family’s house. A.S. and Eskeli’s relationship ended sometime before April 2016.2

         Eskeli texted A.S. on April 3, 2016, explaining that he wanted to talk to her. A.S.

responded that she was “open to talking and listening to him, but that was it.” After

midnight on April 4, 2016, Eskeli entered the family’s house through a basement window.

A.S. testified that she never permitted Eskeli to come to the residence that evening. Eskeli



1
    At the time of this appeal, A.S. was 18 years old and therefore no longer a minor.
2
  The parties dispute precisely when the relationship ended. A.S. testified that the
relationship ended in December 2015 but acknowledged that she and Eskeli “were
romantically involved” in February 2016. A.S. claimed her relationship with Eskeli after
December 2015 “wasn’t really a relationship[;] it was kind of a controlling thing.” Eskeli
claims the relationship continued after December.

                                               2
went to the bedroom of A.S., and A.S. hid Eskeli in her closet because she did not want to

get in trouble with her parents. While letting the dog outside, Paul Ciochetto discovered a

set of in-line skates beneath the basement window. Paul Ciochetto asked A.S. who the in-

line skates belonged to. A.S. claimed that she did not know. Paul Ciochetto discovered

Eskeli hiding in A.S.’s bedroom closet and called 911.

       A.S. initially told the responding police officer that she let Eskeli into the house, but

she testified at trial that she had no recollection of this first interview. The police cited

Eskeli for trespass and advised the family to apply for a harassment restraining order. As

the police were leaving the family’s house, A.S. recanted her statement to the police officer

and told the officer that she had not given Eskeli permission to enter the house.

       After the April 4 trespass, A.S. began receiving messages from Eskeli under an alias.

Eskeli sent A.S. messages such as “I’m killing myself I don’t even care anymore” and “I’ll

literally kill myself if I can’t have u [sic] in my life.” A.S. continued to communicate with

Eskeli, sending messages such as “we can wait six months when we have the rest of our

lives together,” but she testified that she sent these messages because she “did not want

him to commit suicide.”

       The family—parents Paul Ciochetto and Amanda Stokes-Ciochetto individually and

on behalf of A.S. and her younger sister A.C.—petitioned for and received a temporary ex

parte harassment restraining order on April 4, 2016. An evidentiary hearing was held on

May 23. At the close of the family’s case, Eskeli moved for judgment as a matter of law,

arguing that the family had produced insufficient evidence to permit issuance of a

harassment restraining order. The district court denied the motion, concluding that the


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family did not have to prove more than a single incident of trespass to obtain the harassment

restraining order. The district court informed Eskeli’s attorney that it would “be a waste

of time” to argue the point, and Eskeli’s attorney made the decision to call only Eskeli’s

sister as a witness. Eskeli did not testify at trial. The district court issued the harassment

restraining order “based on the single incident of the respondent entering the petitioners’

home without their permission.”

       Eskeli appeals.

                                      DECISION

       Eskeli argues that the district court erred by issuing the harassment restraining order

based on a single incident of trespass. The family concedes that “one isolated instance of

harassment not involving physical or sexual harassment may not alone constitute grounds

for issuance of [a harassment restraining order].” We review questions of statutory

interpretation de novo. Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001).

       Under Minn. Stat. § 609.748, subd. 5(a)(3) (2016), a district court may issue a

harassment restraining order if it finds that “there are reasonable grounds to believe that

the respondent has engaged in harassment.” The statute defines “harassment” 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, regardless of the relationship between the actor and
              the intended target.

Id., subd. 1(a)(1) (2016). To establish harassment by “physical assault,” a petitioner must

demonstrate that “the respondent intentionally inflicted or attempted to inflict bodily harm



                                              4
upon another person.” Peterson v. Johnson, 755 N.W.2d 758, 760 (Minn. App. 2008).

Absent a single incident of physical or sexual assault, “[o]ne incident of an intrusive or

unwanted act is insufficient to prove harassment.” Id. at 766.

       The district court acknowledged that a “strict reading of the statute” does not permit

the issuance of a harassment restraining order based on a single incident of trespass but

explained that Eskeli’s conduct rose “to the same level of seriousness as a physical assault

which only requires a single incident.” The statute permits the issuance of a harassment

restraining order based on a single incident only if that incident was “physical or sexual

assault.” Minn. Stat. § 609.748, subd. 1(a)(1). Absent physical or sexual assault, the plain

language of the statute requires the district court to find “repeated incidents of intrusive or

unwanted acts, words, or gestures.” Id. “When the words of a law in their application to

an existing situation are clear and free from all ambiguity, the letter of the law shall not be

disregarded under the pretext of pursuing the spirit.” Minn. Stat. § 645.16 (2016).

       We have previously rejected attempts to broadly construe “a single incident of

physical . . . assault.” Id. In Peterson v. Johnson, the district court issued a harassment

restraining order based on a single incident where the respondent verbally threatened the

petitioner and stuck his chest out but did not physically touch the petitioner. 755 N.W.2d

at 761. This court reversed and vacated the district court’s decision, concluding that the

concept of physical assault contemplated by the statute is narrow in scope and requires

proof that the respondent inflicted or attempted to inflict bodily harm. Id. at 763.

       We conclude that the district court erred in issuing the harassment restraining order

based on a single incident of physical trespass. Minn. Stat. § 609.748, subd. 1(a)(1).


                                              5
       The family argues that we may nevertheless affirm the harassment restraining order

on the alternative theory that Eskeli committed “repeated incidents of intrusive or

unwanted acts, words, or gestures.” As an alternative to that, the family asks us to remand

the case to the district court to allow the district court to rule on whether Eskeli engaged in

multiple incidents of unwanted conduct warranting issuance of a harassment restraining

order. Eskeli argues that either outcome is barred because the family failed to file a notice

of related appeal as required by Minn. R. Civ. App. P. 106.

       Minn. R. Civ. App. P. 106 states, “After an appeal has been filed, respondent may

obtain review of a judgment or order entered in the same underlying action that may

adversely affect respondent by filing a notice of related appeal.” A respondent is barred

from presenting issues not raised by a notice of related appeal. Arndt v. Am. Family Ins.

Co., 394 N.W.2d 791, 793 (Minn. 1986). But a respondent is not required to file a notice

of related appeal where the respondent “advances on appeal an argument that was presented

to, but was not ruled on by, the district court and is an alternative ground that supports

affirmance of a judgment or order that was entered in respondents’ favor.” Day Masonry

v. Indep. Sch. Dist. 347, 781 N.W.2d 321, 332 (Minn. 2010). In cases where the district

court did not rule on the alternative argument, remand is appropriate to allow the district

court to address the unanswered issue. See id. (remanding the case to the district court on

an issue presented to the district court but not decided).

       The family argued before the district court that Eskeli had engaged in repeated

incidents of unwanted conduct, which taken together had “substantial adverse effects” on

the family. The family did not argue that a single incident warranted the issuance of the


                                              6
harassment restraining order.      Because the family advanced the argument that the

harassment restraining order should be issued because of repeated incidents of unwanted

conduct but the district court did not rule on the argument, the family was not required to

file a notice of related appeal. Id.

       Eskeli argues that the district court rejected the family’s repeated-incidents

argument and concluded that the April 4 trespass was the only incident of harassment

committed by Eskeli. We cannot discern from the district court’s order whether it intended

to reject the family’s repeated-incidents argument. The district court checked only the box

for breaking and entering on the order and explained in its memorandum that the single

incident of breaking and entering was sufficient. Based on our reading of the district

court’s order, the district court neither accepted nor rejected the family’s repeated-incidents

argument.

       Eskeli also attempts to distinguish this case from Day Masonry, 781 N.W.2d at 321,

by arguing that the family did not present two theories of relief—the family only argued

that Eskeli had engaged in repeated incidents of unwanted conduct. But a notice of related

appeal is not required “where a respondent advances on appeal an argument that was

presented to, but was not ruled on by, the district court.” Id. at 332 (emphasis added). Day

Masonry does not require the respondent to have presented at least two arguments before

the district court.   The district court never ruled on the family’s repeated-incidents

argument, and therefore a notice of related appeal was not required.

       We do not accept the family’s argument that we may affirm the harassment

restraining order based on the other incidents of harassment alleged by the family.


                                              7
Determination of whether these other incidents rise to the level of harassment “necessarily

involves factual findings.” See Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 728 (Minn.

1985) (describing the district court’s role in fact finding). Our court does not engage in

fact finding. Id. Fact finding is the duty of the district court, and the district court neglected

to make findings on the family’s other alleged incidents of harassment.

       Instead, we reverse and remand. On remand, the district court must determine

whether repeated incidents of unwanted conduct warrant the issuance of the harassment

restraining order. Minn. Stat. § 609.748, subd. 1(a)(1). The district court must determine

whether (1) Eskeli engaged in repeated unwanted conduct that (2) had a “substantial

adverse effect” on the family members’ “safety, security or privacy.” Id.; Dunham v. Roer,

708 N.W.2d 552, 566 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006). In doing

so, the court must find whether “there are reasonable, rather than merely subjective,

grounds to believe that the accused engaged in harassment.” Id. at 567. 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.

The statute also requires the district court to make findings for each family member and

permits the district court to grant the harassment restraining order only to those family

members who have been “victim[s] of harassment.” Minn. Stat. § 609.748, subd. 2 (2016).

We express no opinion as to whether the record is sufficient to sustain the harassment

restraining order as to any or all members of the family. On remand, the district court may,

in its discretion, reopen the record for further evidence.

       Reversed and remanded.


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