Lommen Abdo’s appellate team Kay Hunt and Michelle Kuhl handled appeals presenting a wide range of legal issues this year. As we close out 2023, we wanted to share with you a sampling of these cases you may find interesting. We can’t wait to see what new cases 2024 brings!


In re Lawrence B. Schwagerl Tr. Under Agreement Dated Apr. 9, 1999, No. A23-0197, 2023 WL 6206257 (Minn. Ct. App. Sept. 25, 2023)

Schwagerl involved a unique set of facts leading to a dispute about fees awarded to a trustee. A husband and wife executed trusts simultaneously. Upon the husband’s death, the wife became trustee of his trust. When some beneficiaries challenged her actions as trustee, the court appointed a neutral trustee. It was later discovered that the wife had moved nearly all of the assets to her own trust, with the result that there might not be sufficient funds to pay the court-appointed trustee’s fees. The court therefore ordered that the fees be paid from the husband’s trust “and/or” the wife’s trust. The appellants argued the trust code did not allow an award of fees from a trust other than the one for which the trustee was appointed. We successfully represented the court-appointed trustee on appeal and obtained affirmance of the trial court’s order.

Hukriede v. Engh-Liska, No. A22-1716, 2023 WL 3939469 (Minn. Ct. App. June 12, 2023)

Hukriede involved a legal malpractice action arising out of an estate plan. The client owned a home in which his parents had life estates. He wanted to own the home jointly with his spouse, so the attorney prepared a quit claim deed conveying the life estate to the client and a second quit claim deed from the client to the client and his spouse jointly. The parents and the client later brought a legal malpractice action against the attorney, alleging that her actions negligently eliminated certain Medicaid benefits that the prior life estate would have provided. The Court of Appeals held the parents’ claims were properly dismissed because they had no attorney-client relationship with the lawyer. However, the client’s claims were allowed to proceed.

In re the Estate of Margaret Peteler Bush a/k/a Margaret Bush, Deceased, No. A23-1185 (Minn. Ct. App.)

Peteler Bush addresses the enforceability of an antenuptial agreement in a probate matter. The decedent had executed an antenuptial agreement that limited the rights of her spouse in the event of her death because her family wanted to keep the family business within the family and away from spouses. The surviving husband challenged the antenuptial agreement as both procedurally and substantively unfair. The trial court enforced the antenuptial agreement. The Court of Appeals is expected to issue its decision in 2024.

Family Law

In re the Marriage of Heather Cattnach Johnson v. Matthew Sok Johnson, No. A22-1409 (Minn. Ct. App. Apr. 3, 2023) and
In re the Marriage of Alessandra Patano Orthey v. Christopher Scott Orthey, No. A23-1365 (Minn. Ct. App.)

A recurring issue in family law appeals this year was how to reserve jurisdiction over spousal maintenance. In two cases, the spousal maintenance recipient did not bring a motion to extend temporary maintenance or make it permanent until after the temporary maintenance had ended, so the trial court ruled it had no jurisdiction to consider the motion.

  • In Cattnach Johnson, we obtained reversal, arguing that the award of spousal maintenance “subject to future modifications by the court” was sufficient to reserve jurisdiction over the issue.
  • In Patano Orthey, the issue is whether an agreement that spousal maintenance “shall be reviewed” is a reservation of jurisdiction when it is not in fact reviewed at the time the parties had agreed it would be. The Court of Appeals is expected to issue its decision in 2024.

Both cases highlight the importance of ensuring any language in proposed orders is clear and, if the court enters an order that is not clear, filing a motion before temporary maintenance expires.

In re Knorp, No. A23-0910, 2023 WL 4676984 (Minn. Ct. App. July 18, 2023), review denied (Oct. 17, 2023)

It is well-established that a parenting consultant cannot be appointed without both parties’ consent. In Knorp, the wife did not agree to the appointment of a parenting consultant, so the trial court appointed a special master with the same powers that would have been given to a parenting consultant. We filed a petition for an extraordinary writ, arguing that the appointment of a special master improperly creates a loophole effectively eliminating the consent requirement for parenting consultants. The Court of Appeals denied the writ on the grounds that the wife could only appeal after the special master makes decisions. As a result, this important legal issue of whether a special master can be appointed without consent to serve the same role as a parenting consultant remains unresolved.

Filosi v. Christensen, No. A22-0536, 2023 WL 2847307 (Minn. Ct. App. Apr. 10, 2023), review denied (July 18, 2023) and In re Custody of A. C. T., No. A22-1122, 2023 WL 3580604 (Minn. Ct. App. May 22, 2023), review denied (Aug. 22, 2023)

Another recurring issue in family law this year was the extent to which past circumstances should affect the court’s current custody decisions.

  • In Filosi, the mother had been sober for nearly a year. She had completed treatment voluntarily and her experts testified she was unlikely to relapse. The opposing party did not offer any evidence that she was likely to relapse. The court nevertheless relied on her past alcohol use to conclude that the children were presently endangered in her care and substantially reduced her parenting time.
  • Conversely, in C.T., the mother repeatedly threatened in graphic detail to kill herself, the child, and the father. The parties agreed that the father would have temporary sole legal custody until the mother engaged in dialectical behavior therapy (DBT). Mother did not participate in DBT, although she did do some other therapy. The trial court awarded joint custody despite the mother’s past domestic abuse of the father, reasoning that “what is important now” is that the mother acknowledged her past behavior and has worked to address it.

In other words, Filosi focused only on past circumstances while ignoring the present, while A.C.T. focused solely on the present circumstances while ignoring the past. The Minnesota Supreme Court denied review in both cases, declining to shed light on the extent to which past and present circumstances or both must be considered.

Automobile Accidents

Kelley v. Bernick’s Co., No. A22-0599, 2023 WL 1098171 (Minn. Ct. App. Jan. 30, 2023)

In Kelley, we represented a plaintiff maintenance worker who was injured when a vehicle drove over a work hose, which caused the hose to jump and injure the plaintiff who was standing nearby while working on the sewer. The jury returned a verdict of over $6 million. The defendant appealed, arguing that there was insufficient evidence that the defendant’s speed caused the hose jump, and that the injury was simply an unfortunate occurrence unrelated to any negligence. We secured a favorable opinion from the Court of Appeals affirming the judgment in full.

Sweet v. Neary, No. A23-1291 (Minn. Ct. App.)

We represented the defense on appeal in another case involving the sufficiency of the evidence. In Sweet, the jury awarded over $5 million to the plaintiff in an automobile accident on the theory that the defendant was driving with her headlights off. But the defendant testified the lights were on and the plaintiff did not remember the accident. The plaintiff presented several pieces of hearsay, as well as a witness who saw a truck without headlights somewhere near the location of the accident at about the time of the accident but could not describe the truck. We argued judgment as a matter of law should have been granted in light of the speculative nature of the plaintiff’s evidence. After we filed our Appellant’s Brief, the case settled.

Monson v. Morsette, No. 20230103 (N.D.)

Finally, we addressed whether there is any limit to noneconomic damages in Monson v. Morsette. This case is on appeal to the North Dakota Supreme Court for the second time. The first trial awarded over $1 billion for the death of two college students and injuries to a third, arising out of an automobile accident. We successfully obtained reversal and a new trial. After the second trial, the jury awarded $175 million in noneconomic damages. We argued the verdict is excessive and shocking to the conscience. The North Dakota Supreme Court is expected to issue its decision in 2024.

As we bid farewell to 2023, Lommen Abdo’s appellate team, led by Kay Hunt and Michelle Kuhl, reflects on a year of diverse legal challenges. From trust and estate intricacies to family law complexities and automobile accident nuances, our team navigated these cases with skill and dedication. We’re eager to see what 2024 has in store and appreciate your continued trust in our firm. For inquiries, feel free to reach out to Kay or Michelle.