McLeod County District Court File No. 43-CV-12-1602
Daniel B. Honsey, Kraft Walser Law Office, PLLP, Hutchinson, Minnesota (for respondents)
Kenneth Hertz, Hertz Law Offices, P.A., Columbia Heights, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Ross, Judge; and Stauber, Judge.
The district court granted respondents' petition for a harassment restraining order (HRO) following an incident in which appellant video recorded respondents for an extended period of time to document what appellant alleged was destruction of his property. Appellant challenges the order, arguing that his conduct did not constitute harassment and that there were not multiple incidents of harassment, as required by Minn. Stat. § 609.748 (2012), before the court may issue an HRO. Because appellant's conduct did not satisfy the statutory definition of harassment, we reverse.
Respondents Arnold and Andrea Koenig, ages 74 and 66 respectively, are the married parents of appellant Michael Koenig, age 43. Arnold and Andrea formed the Koenig Farm Corporation in 1970. Arnold owns 75 percent of the shares of the corporation, Andrea owns 13 percent of the shares, and Michael owns the remaining 12 percent. The corporation owns an 80-acre tract of land that is used for various farming operations. From that tract, a three-acre plot was carved out and sold to Michael, who built a house there. Michael must cross corporate property to access his house by vehicle.
The parties have been involved in extensive disputes and litigation since 2007. The first lawsuit related to the termination of Michael's farm lease with the corporation and Arnold and Andrea's subsequent motion to evict Michael from property owned by the corporation. See Koenig v. Koenig, No. A11-920, 2012 WL 762306, at *1–*3 (Minn.App. Mar. 12, 2012), review denied (Minn. May 30, 2012). The district court granted summary judgment for Arnold, Andrea, and the corporation, and granted a motion for eviction and a writ of recovery of the premises, and this court affirmed that determination. Id. at *3, *9–*10. Although Michael was subsequently required by the district court to remove property and equipment from a portion of the tract, as of October 2012 there was no court order prohibiting him from being on corporate property or restricting his access to buildings on the corporation's property.
A second lawsuit arose from a 2011 collision between a tractor Michael was operating and a pickup truck in which Arnold was a passenger. As of October 2012, two lawsuits brought by Michael and his wife were pending against Arnold, Andrea, and the corporation alleging that Arnold and Andrea misappropriated corporate assets.
On October 1, 2012, Arnold went to corporation property to "take possession of the power panel" by cutting off the padlock on the electrical panel and removing all the fuses. The panel controls electricity for farm operations and Michael's home, and years earlier Michael had placed a padlock on the panel purportedly to protect his small children, though Arnold claimed the padlock was designed to prevent him from accessing the panel. Ownership of the panel is disputed, although the parties agree that Michael paid for it.
Michael saw Arnold accessing the electrical panel and drove his pickup near the panel. While remaining in his vehicle, Michael used his phone to photograph and video record Arnold's actions. At one point Arnold approached Michael's vehicle to engage him, but Michael responded by backing his vehicle away while continuing to record Arnold. Michael alleged that Arnold approached him aggressively and slapped Michael's vehicle, though Arnold denied both.
Arnold called Andrea to describe what was happening, and Andrea called 911 because "[the police] are very familiar with our problems." Three officers arrived, and Michael continued to record his parents for the next half hour while the officers conversed with Arnold and Andrea, despite the fact that one of the officers told Michael that he could stop recording the incident "because nothing was going to happen . . . in the next half hour or so." According to Arnold, Michael was recording him for "nearly an hour and a half" in total. Eventually the deputies escorted Arnold and Andrea from the property. Michael stayed on the corporation's property throughout the incident and was the last to leave. Both Arnold and Andrea testified that they were intimidated by Michael's actions during the incident, and ...