Opinion
A20-1425
03-25-2021
Ann Marie Holland, Respondent, v. Neng Por Yang, Appellant.
ORDER OPINION
Scott County District Court
File No. 70-CV-09-27229 Considered and decided by Segal, Chief Judge; Jesson, Judge; and Smith, Tracy M., Judge.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In 2010, we affirmed a district court's 2009 grant to respondent Ann Marie Holland of a 50-year harassment restraining order (HRO) against appellant Neng Por Yang. Holland v. Yang, No. A09-2321, 2010 WL 3119485 (Minn. App. Aug. 10, 2010), review denied (Minn. Sept. 21, 2010).
2. In December 2019, Yang moved the district court to vacate that HRO, the district court denied that motion, and Yang took this appeal.
3. On this appeal, Yang appears to challenge a separate HRO granted in 2007 to Holland. That HRO had a term of two years and expired in 2009. The matter is thus moot. Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015) (stating a matter is moot if "a decision on the merits is no longer necessary or an award of effective relief is no longer possible"). In addition, the 2007 HRO was granted in a separate district court file that is not before us in this appeal.
4. Yang also appears to challenge the district court's grant, and our affirmance of the grant, of the 50-year HRO. Any challenge, in this appeal, to the grant or our prior affirmance of the grant of the 50-year HRO is a request that we reconsider our decision in case No. A09-2321. "No petition for rehearing shall be allowed in the Court of Appeals." Minn. R. Civ. App. P. 140.01. Thus, any challenge in the current appeal to grant or the affirmance of the grant of the 50-year HRO is not properly before this court in this appeal.
5. A district court "may vacate or modify" an HRO if the party seeking relief proves that "there has been a material change in circumstances and that the reasons upon which the district court relied in granting the HRO no longer apply and are unlikely to occur." Minn. Stat. § 609.748, subd. 5(d) (2020). Generally, a statute's use of "may" confers discretion on the district court regarding the matter to be decided. See, e.g., In re Welfare of Children of J.D.T., 946 N.W.2d 321, 327 (Minn. 2020) (addressing "may" in a statute); compare Minn. Stat. § 645.44, subd. 15 (2020) (stating "'[m]ay' is permissive"), with Minn. Stat. § 645.44, subd. 16 (2020) (stating "'[s]hall' is mandatory"). Thus, satisfying the burden in Minn. Stat. § 609.748, subd. 5(d), does not entitle the moving party to vacation or modification of the HRO; it merely confers on the district court the discretion to resolve the motion in the manner the district court deems fit based on the relevant circumstances.
6. Yang's affidavit supporting his motion does not specify any "material change in circumstances" regarding Holland's continued need for protection, and identifies no reason to believe that the reasons for granting the HRO no longer apply. Additionally, the district court noted that (a) Yang's harassment of Holland was "serious and pervasive," (b) "[Yang's] harassment falls at the far end of the most serious cases," and (c) Yang did not provide "any proof that he has successfully addressed the underlying reasons for his conduct, including proof of mental health treatment and/or medication compliance."
7. These findings are amply supported by the record in this case, see Yang, 2010 WL 3119485, at *1-2, and by the stunning amount of dubious litigation Yang has initiated in state and federal courts. We note that Yang's litigation has produced multiple rulings that he is a frivolous litigant, and that much of Yang's litigation was tied, directly or indirectly, to his pursuit of Holland. Additionally, Yang's assertions that he "sees a mental health psychologist when he can" and that he "takes Tylenol for his emotional stresses" do not adequately address the district court's medical concerns. We discern nothing in Yang's motion to vacate the HRO, or in his supporting affidavit, that indicates there has been any material change or reduction in the need for the HRO.
8. Finally, in balancing the impact on Holland of vacating the HRO against the impact on Yang of leaving the HRO in place, the district court noted that (a) Holland "deserves, at the very least, the small peace of mind of knowing that an HRO, subject to penalty of criminal prosecution, will continue to require that [Yang] have no contact with her"; and (b) "any alleged negative employment consequences for [Yang] by the continued existence of the HRO are substantially outweighed by the benefits to [Holland] in allowing the HRO to remain in place." On this record, and especially in light of the lack of any indication that Yang's attitudes toward both Holland and the proper use of litigation have changed, we cannot conclude that the district court abused its discretion in balancing these considerations as it did.
9. Because we affirm the merits of the district court's decision to deny Yang's motion to vacate the 50-year HRO, we need not address the district court's ruling regarding the inadequacy of Yang's service of his motion.
IT IS HEREBY ORDERED:
1. The district court's order denying Yang's motion to vacate or modify the 50-year HRO is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
Dated: 3/25/21
BY THE COURT
/s/_________
Chief Judge Susan L. Segal