Tara Ann Nesmoe-Thompson, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1008

Tara Ann Nesmoe-Thompson, petitioner,
Respondent,

vs.

Neil V. Lindemann, et al.,
Appellants.

Filed January 22, 2019
Reversed
Smith, Tracy M., Judge

LeSueur County District Court
File No. 40-CV-18-99

Michael P. Herrmann, Christopher E. Morris, Wornson, Goggins, P C, New Prague,
Minnesota (for respondent)

Timothy J. Lessman, Knutson+Casey, PC, Mankato, Minnesota (for appellants Neil V.
Lindemann and Margie L. Lindemann)

Considered and decided by Johnson, Presiding Judge; Ross, Judg e; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Respondent Tara Ann Nesmoe-Thom pson sought a harassment restra ining order
(HRO) on behalf of herself and her minor sons against appellant s Neil and Margie
Lindemann. The district court granted an HRO only with respect to Nesmoe-Thompson,

2
concluding that the Lindemanns ha d engaged in multiple incident s of conduct having a
substantial adverse effect on her safety, security, or privacy. We reverse.1
FACTS
Nesmoe-Thompson is the Lindema nns’ daughter. The parties are e stranged from
each other. The fracture of their relationship appears to have originated with the
Lindemanns’ interference with the parent-child relationship bet ween Nesmoe-Thompson
and one of her sons, J.W.N. In 2015, Nesmoe-Thompson was granted an HRO against the
Lindemanns, forbidding harassment of both Nesmoe-Thompson and J .W.N. That order
was modified several times, once to permit the Lindemanns to at tend J.W.N.’s sporting
events, and again to require that the parties not sit near each other at sporting events.
In the spring of 2017, while the HRO was in effect and after i t had been modified
to permit the Lindemanns’ attendance at J.W.N.’s sporting events, Margie Lindemann and
Nesmoe-Thompson ran into each other—literally—at one of J.W.N.’ s track meets. The
parties dispute the nature of the contact: Lindemann says that Nesmoe-Thompson walked
into her while not paying attention; Nesmoe-Thompson maintains that Lindemann stepped
in front of her, elbowed her on purpose, and told her to “watch herself.” Nesmoe-Thompson
then moved the district court for a new restraining order based on allegations regarding that
event. The district court denied the motion, finding that “the allegations [were] not proven.”

1 The Lindemanns challenge not only the grant of the HRO but also its scope—its duration
of 20 years and its prohibition on the Lindemanns’ being within five miles of Nesmoe-
Thompson’s person or home. Because we reverse the HRO based on error in determining
that harassment occurred, we do not reach the issues regarding its scope.

3
In late 2017, the the n-existing HRO expired. On the day of its expiration, Nesmoe-
Thompson emailed and sent a lette r to the Lindemanns, informing t h e m t h a t s h e w a s
“requiring that [they] are to ha ve absolutely no unsupervised c ontact with” her children.
The Lindemanns continued attending J.W.N.’s sporting events but did not have contact
with Nesmoe-Thompson’s children until January 2018.
In January 2018, Nesmoe-Thompson was attending a hockey game i n which J.W.N.
was playing. Another of her sons, J.M.N., was also in attendance. After the game, Nesmoe-
Thompson went down onto the ice for a “parents’ night” event. While Nesmoe-Thompson
was on the ice, the Lindemanns left their seats—whether the tim ing was coincidental is
disputed by the parties—then saw and spoke with J.M.N. Nesmoe-T hompson got off the
ice, took J.M.N. out of the arena, and then returned to the are na. The parties argued. The
Lindemanns claim that Nesmoe-Tho mpson was vulgar and unreasonab le; Nesmoe-
Thompson claims that Neil Lindemann shouted “hasta la vista Tara” several times, waved
his hands in her face, and followed her, shouting her name, until she left the arena.
A few days later, Nesmoe-Thompson petitioned the court for a n ew HRO. She made
allegations specifically related to the January incident at the hockey game and the incident
at the track meet some eight months earlier. She alleged that the Lindemanns “continually
show up” at her children’s even ts without invitation or permiss ion, that they send emails
and text messages from “unknown /fake email accounts” and “SMS c odes that are
untraceable,” and that they genera lly cause anxiety and threate n family stability by their
mere presence. She requested that the HRO cover J.W.N., J.M.N., and herself. The court

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dismissed J.W.N., who had recently turned 17, from the petition based on his own request
and with the consent of the parties.
In April 2018, the district court granted the restraining orde r as to Nesmoe-
Thompson but not as to J.M.N. Th e district court found that Nei l Lindemann followed,
threatened, and frightened Nesmo e-Thompson by yelling “hasta la v i s t a T a r a ” a n d
following her. Relying on those findings, it concluded that the incident at the hockey game
was an incident of intrusive or unwanted conduct. See Minn. Stat. § 609.748, subd. 1(a)(1)
(2018). It concluded that the incident at the track meet was also an incident of threatening
and frightening behavior based on its finding that Nesmoe-Thomp son was “shoved” and
told to “watch herself.” The district court found that the Lind emanns had been notified
“that their presence at [Nesmoe-Thompson’s] children’s sporting events was not welcome
and would be considered harassment” but that they attended the events anyway. Finally,
the district court found that, despite Nesmoe-Thompson’s effort s to prevent the
Lindemanns from “having any cont act with her children,” they “c ontinued to show up at
sporting events” and concluded th at their attendance at those e vents “has a substantial
adverse effect on [Nesmoe-Thompson’s] safety, security and privacy.”
The Lindemanns appeal.
D E C I S I O N
A person may seek an HRO if that person is a victim of harassme nt. Minn. Stat.
§ 609.748, subd. 2 (2018). “Harassment,” as relevant here, includes “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,”

5
Minn. Stat. § 609.748, subd. 1(a)(1), as well as “a pattern of attending public events after
being notified that the actor’s presence at the event is harass ing to another,” id.,
subd. 1(a)(3) (2018). Caselaw has clarified that, to constitute harassment, the respondent’s
conduct or intent must be “objectively unreasonable” and the pe titioner’s belief that the
conduct was substantially adverse to the petitioner’s safety, s ecurity, or privacy must be
“objectively reasonable.” Dunham v. Roer , 708 N.W.2d 552, 567 (Minn. App. 2006),
review denied (Minn. Mar. 28, 2006).
We will not set aside the district court’s findings of fact unl ess they are “clearly
erroneous.” Minn. R. Civ. P. 52.01. When determining whether findings of fact are clearly
erroneous, we give “due regard” to the district court’s opportu nity to evaluate the
credibility of witnesses. Id. Whether the facts as found by the district court satisfy the
definition of harassment is a question of law and is reviewed de novo. Peterson v. Johnson,
755 N.W.2d 758, 761 (Minn. App . 2008). Once a petitioner shows that harassment has
occurred, the decision to issue an HRO is left to the district court’s discretion. Kush v.
Mathison, 683 N.W.2d 841, 846 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).
We review that decision for an abuse of discretion. Peterson, 755 N.W.2d at 761. A district
court abuses its discretion if it grants an HRO based on conduct that is not harassment, as
defined in the statute. See Witchell v. Witchell, 606 N.W.2d 730, 732 (Minn. App. 2000)
(holding that the district court abused its discretion by grant i n g a n H R O w h e r e t h e
appellant’s conduct was not intrusive and did not adversely affect the respondent).
The Lindemanns raise two challenges to the issuance of the HRO. First, they argue
that the district court erred as a matter of law because, they assert, it concluded that

6
harassment had occurred based on a single incident of intrusive or unwanted conduct
despite the statutory require ment of multiple incidents. See Minn. Stat. § 609.748,
subd. 1(a)(1). Second, they argue that the district court erred by concluding that there were
any “incidents” within the meaning of subdivision 1(a)(1) because the district court’s
findings do not support its conclusion that their conduct had a substantial adverse effect on
Nesmoe-Thompson’s safety, security, or privacy. To resolve these arguments, we evaluate
each incident identified by the district court.
1. The track meet
The district court ruled that the incident at the track meet, when Margie Lindemann
and Nesmoe-Thompson collided, constituted both “threats” and “threatening behavior” by
Margie Lindemann. It concluded th at those threats had a substan tial adverse effect on
Nesmoe-Thompson’s safety, security, or privacy. The Lindemanns argue that the doctrine
of collateral estoppel precludes this conclusion because a dist rict court ruled otherwise in
the immediately preceding HRO litigation between the parties.
Collateral estoppel is a finality doctrine that applies when fo ur elements are
established:
(1) the issue was identical to one in a prior adjudication;
(2) there was a final judgment on the merits; (3) the estopped
party was a party or in privity with a party to the prior
adjudication; and (4) the estopped party was given a full and
fair opportunity to be heard on the adjudicated issue.

Willems v. Comm’r Pub. Safety , 333 N.W.2d 619, 621 (Minn. 1983) (quoting Victory
Highway Vill., Inc. v. Weaver, 480 F. Supp. 71, 74 (D. Minn. 1979)). In evaluating whether
a party had a “full and fair op portunity,” courts ask whether t here were procedural

7
limitations in the first proceeding, whether the party had the incentive to litigate the issue,
and whether any other fact limited effective litigation. State v. Joseph, 636 N.W.2d 322,
328 (Minn. 2001). If the four elements are satisfied, collatera l estoppel is available. Pope
Cty. Bd. of Comm’rs v. Pryzmus, 682 N.W.2d 666, 669 (Minn. App. 2004), review denied
(Minn. Sept. 29, 2004). However, whether estoppel should be applied is a question for the
district court’s discretion; this court will reverse the distri ct court only if it abused that
discretion. Id.
With respect to the first element, in the prior action, Nesmoe-Thompson moved for
an extension of the previous HRO based in part on the incident at the track meet; that
motion was treated as a petition for a new HRO. See Roer v. Dunham , 682 N.W.2d 179,
182 (Minn. App. 2004) (holding that, because the HRO statute li mits the length of
restraining orders to two years, a motion to extend such an order beyond two years may be
considered only as a petition for a new HRO). At issue in the prior action was whether the
incident at the track meet involved intrusive or unwanted acts or words that had a
substantial adverse effect on the safety, security, or privacy of another. The identical issue
is raised in the present action. The first element of collatera l estoppel is met. See Willems
333 N.W.2d at 621.
The parties do not dispute the other elements, and they are pla inly satisfied. There
was a final judgment on the merits—the district court in the pr ior proceeding denied the
petition because it determined tha t the allegations were not pr oven. See id. N e s m o e -
Thompson, the party to be estopped here, was a party to the pri or adjudication—she was
the party who raised the claim. See id. Finally, Nesmoe-Thompson had a full and fair

8
opportunity to be heard on her claim—the record contains no ind ication that she was
limited, procedurally or otherwise, in the prior litigation, an d her incentive to litigate the
issue was the same in both proceedings. See id.
Nesmoe-Thompson makes only one a rgument against the application of collateral
estoppel. She contends that she should not be estopped from rel ying on the same incident
because the judge who ruled on th e prior motion to extend was d ifferent from the judge
here and did not have as much knowledge of the parties and thei r interactions. However,
no caselaw suggests that the preclusive effect of a judgment depends on the identity of the
judge who rendered it. And adopting such a doctrine would make little sense, given that
collateral estoppel is intended t o promote judicial efficiency and to prevent a party from
being “twice vexed for the same cause.” Hauser v. Mealy, 263 N.W.2d 803, 807 (Minn.
1978) (quotation omitted); see also Heine v. Simon , 702 N.W.2d 752, 762 (Minn. 2005)
(Anderson, Paul H., J., plurality opinion).
The final question is whether the district court nonetheless acted within its discretion
when it permitted Nesmoe-Thompson to argue that the incident at the track meet was a
basis for issuing a new HRO. Pryzmus, 682 N.W.2d at 669. The district court did not
explain its decision not to apply collateral estoppel against Nesmoe-Thompson. The record
contains no suggestion that holding Nesmoe-Thompson to the prio r ruling would work
some injustice against her. Further, caselaw prohibits serial H RO petitions based on the
same events, even if the litigants previously proved that the events actually occurred. See
Roer, 682 N.W.2d at 182. This suggests that public policy does not favor successive
petitions based on events that a petitioner has failed to prove were harassing. Because

9
applying collateral estoppel would neither work an injustice nor violate public policy, the
district court abused its discr etion by failing to bar Nesmoe-T hompson from arguing that
the incident at the track meet was a basis for finding that harassment occurred. The district
court therefore erred as a matter of law by basing its order on that event.
2. Attendance at sporting events
The district court found that the Lindemanns engaged in a patte rn of attending
J.W.N.’s sporting events. It described this pattern as constitu ting harassment under two
different clauses of the HRO statute. We address each.
a. Subdivision 1(a)(1)
The district court found that, despite being told not to contact Nesmoe-Thompson’s
children, “the Lindemanns continued to show up at sporting events,” concluding that their
continued attendance had “a substa ntial adverse effect on [Nesm oe-Thompson’s] safety,
security and privacy.” See Minn. Stat. § 609.748, subd. 1(a)(1). However, the district court
never explained how the Lindemanns’ attendance at sporting even ts, which were open to
the public, negatively impacted N esmoe-Thompson’s safety or sec urity, much less her
privacy. The only rel evant finding the district court made was that the Lindemanns
continued to attend the events; that fact alone cannot support the court’s conclusion that
Nesmoe-Thompson’s safety, security, and privacy were adversely affected.
Moreover, our review of the record reveals that it would not su pport findings that
could bolster the district court’s conclusion regarding the effect on Nesmoe-Thompson. In
her combined affidavit and petition, Nesmoe-Thompson wrote that the Lindemanns’
“presence alone is threatening” and that the Lindemanns “inflict fear, anxiety, and hostility

10
. . . simply by showing up, because the threat of their actions is constantly being guarded
against.” She also wrote that they “create anxiety within myself and in my children, as we
cannot trust that they will respect our wishes” because the Lin demanns “do not respect
[Nesmoe-Thompson’s] parental boundaries.” In explaining the eff ect of the Lindemanns’
presence on her safety, security, or privacy, Nesmoe-Thompson w rote that she was “on
constant alert, along with havin g constant anxiety while in att endance at my children’s
sporting events and other school functions.” She said that the anxiety was causing her
“health issues.”
Similarly, at trial, Nesmoe-Thompson testified that “[i]t gives [her] anxiety and
stress to have [the Lindemanns] around” and that she “can’t enj oy [her] kids’ sports”
because the Lindemanns sit in the parents’ section and her desi re to stay away from them
is stronger than her desire to sit with the other parents.
Even if the district court had found these assertions to be fac ts, the findings would
not support the district court’s conclusion that the Lindemanns ’ attendance at Nesmoe-
Thompson’s children’s sporting ev ents had a substantial adverse effect on Nesmoe-
Thompson’s safety, security, or privacy. As noted above, the belief that another’s conduct
substantially affects one’s safety , security, or privacy must b e objectively reasonable.
Dunham, 708 N.W.2d at 567.
Nesmoe-Thompson said that her anxiety was caused by her concern that the
Lindemanns would attempt to cont act her children without her co nsent. Contact with her
children is not a threat to Nesmoe-Thompson’s safety or securit y. The threat, if it was a
threat at all, would be to Nesmoe -Thompson’s children, but the court did not grant the

11
petition with respect to J.M.N. Further, Nesmoe-Thompson stated that the Lindemanns
attended “too many [sporting events] to count.” Yet, by her own testimony, only at one of
them did they have any contact w ith her children. On this recor d, it was not objectively
reasonable for Nesmoe-Thompson to believe that the Lindemanns w ere a threat to her
safety or security.
Caselaw indicates that “privacy,” within the meaning of the HRO statute, is
connected to the constitutional definition of privacy. See Peterson, 755 N.W.2d at 764-65
(explaining, by reference to the reduced expectation of privacy in automobiles under the
Fourth Amendment, that a respondent did not substantially affec t the privacy of a pickup
truck’s owner by looking through the truck’s windows). Nesmoe-T hompson’s children’s
sporting events are public event s. By attending them, Nesmoe-Th ompson knowingly
exposed her presence to the public and did not have a legitimate expectation of privacy that
could be violated by others’ presence. See Katz v. United States , 389 U.S. 347, 351, 88
S. Ct. 507, 511 (1967) (stating that the Fourth Amendment does n o t p r o t e c t “ [ w ] h a t a
person knowingly exposes to the public”).
Thus, the district court’s conc lusion that the Lindemanns’ pres ence at Nesmoe-
Thompson’s children’s sporting events substantially affected Nesmoe-Thompson’s safety,
security, or privacy was erroneous.
b. Subdivision 1(a)(3)
The district court also found that the Lindemanns were notified by U.S. Mail and by
email that “their presence at [Ne smoe-Thompson’s] children’s sporting events . . . would
be considered harassment” but that the Lindemanns nonetheless continued attending those

12
events. It classified this as harassment under Minn. Stat. § 60 9.748, subd. 1(a)(3), which
defines harassment to include “a pattern of attending public events after being notified that
the actor’s presence at the event is harassing to another.”
The only notice in the record that was sent by both mail and email did not state that
the Lindemanns’ presence at sporting events would be considered harassment. Rather, the
message stated that the Lindema nns were “to have absolutely no unsupervised contact
with” Nesmoe-Thompson’s minor children. This court has held that “contact,” when used
in a no-contact order, is plainly understandable, meaning “coming together or touching, as
of objects or surfaces,” “[t]he state or condition of touching or of immediate proximity,”
or “[c]onnection or inter action; communication.” State v. Phipps , 820 N.W.2d 282, 286
(Minn. App. 2012) (alternations in original) (quoting The American Heritage College
Dictionary 299 (3d ed. 2000)). The same plain meaning is equally applicabl e to Nesmoe-
Thompson’s notice to the Lindemanns. Attendance at a sporting e vent, by itself, is not
“contact” with a person who is p articipating in the event. Thus , the message sent to the
Lindemanns did not notify them that their presence would be con sidered harassment, and
the district court clearly erred by finding that it did provide that notice.2 The Lindemanns’
attendance at the sporting events therefore was not harassment under Minn. Stat. § 609.748,
subd. 1(a)(3).

2 We also note that the prior HRO had expressly permitted the Li ndemanns to attend the
children’s sporting events, while prohibiting both direct and i ndirect contact with either
Nesmoe-Thompson or her minor children. Nesmoe-Thompson’s communication gives no
indication that her parental pr ohibition on contact would be br oader than the prohibition
on contact contained in the expired HRO.

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3. The hockey game
The only remaining event that could be an “incident” within the meaning of the
statute is the interaction between the parties at the hockey game. If that interaction is only
a single incident, it cannot support the conclusion that the Li ndemanns engaged in
harassment; harassment requires “repeated incidents.” Peterson, 755 N.W.2d at 766.
Nesmoe-Thompson makes several arguments for why that event supp orts the
determination of harassment. See Minn. Stat. § 609.748, subd. 1(a)(1).
First, she contends that, because the incident affected multipl e people—namely
herself and J.M.N.—it should count as multiple incidents. She argues that the Lindemanns’
conversation with J.M.N. had a substantial adverse effect on his safety, security, or privacy,
that it had the same adverse effects on her, and that it theref ore constitutes repeated
incidents of intrusive or unwanted conduct. This argument fails for several reasons. First,
“harassment” in the statute is relevant with respect to “a victim.” See Minn. Stat. § 609.748,
subd. 2 (authorizing “a victim of harassment” to seek an HRO or “[t]he parent . . . of a
minor who is a victim of harassment” to seek an HRO on behalf o f the minor). The fact
that an incident of intrusive or unwanted behavior affects mult iple people simply means
that there are multiple victims; it does not mean that there ar e multiple incidents with
respect to a single victim. Second, Nesmoe-Thompson’s argument appears to be based on
the premise that J.M.N. is a victim of harassment. But the dist rict court did not grant the
petition with respect to J.M.N.; the HRO applies only to Nesmoe -Thompson herself. The
district court did not conclude that J.M.N. was a victim of harassment.

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Next, Nesmoe-Thompson argues that the district court can count incidents that
formed the basis for the initial HRO when determining whether there have been “repeated
incidents.” This argument is inconsistent with the HRO statute. Relief granted by a
restraining order “must be for a fixed period of not more than two years.” Minn. Stat.
§ 609.748, subd. 5(b) (2018). If conduct that formed the basis of a previous HRO could be
the basis for a new HRO, the two-year limit would be rendered m eaningless because the
victim could re-allege the same facts at the end of the two-yea r period and receive a new
restraining order. Caselaw indicates that a second HRO must be based on new conduct. In
Roer, we held that the district court could “extend” an HRO beyond the two-year limit by,
in effect, granting a new HRO, so long as the statutory require ments for an initial HRO
proceeding were satisfied. 682 N.W.2d at 182. In explaining why the requirements for an
initial HRO proceeding were met i n that case, we stated that “[ t]he district court’s
[conclusion of] harassment was based on recent events, not on t he events on which the
initial order was based.” Id. Thus, a district court cannot base a new HRO on conduct that
has been the basis for a previous HRO.
Finally, Nesmoe-Thompson argues that there were repeated incide nts by counting
the initial interaction with J.M.N. as one incident of harassme nt against her and then
counting the shouting after she returned to the hockey arena as a second incident. We need
not decide whether a few minutes of separation can transform one incident into two because
Nesmoe-Thompson’s argument is unsupported by the district court ’s order. The district
court never mentioned the Lindemanns’ contact with J.M.N. When a district court does not
make findings regarding certain allegations, we “may assume that the district court rejected

15
those grounds for issuance of the HRO.” Peterson, 755 N.W.2d at 766. The district court
here did not determine that the Lindemanns’ contact with J.M.N. was an incident
supporting a finding of harassment, and it therefore cannot be one of the repeated incidents
required by statute. See Minn. Stat. § 609.748, subd. 1(a)(1).
The incident at the hockey game was, at most, a single incident of intrusive or
unwanted acts, words, or gestures. See id. The district court erred in concluding that
harassment occurred because a si ngle incident of that type cann ot constitute harassment.
Peterson, 755 N.W.2d at 766-67. Because the district court’s conclusion that harassment
occurred was erroneous, the district court abused its discretion by granting the HRO.3
Reversed.

3 The Lindemanns argue that the evidence does not support the di strict court’s
determination that their conduct at the hockey game had or was intended to have a
substantial adverse effect on Nesmoe-Thompson’s safety, securit y, or privacy. We need
not reach that argument because, even if it did have that adverse effect, that single incident
would be insufficient to support an HRO.