Kallys Albert Sr., Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0577

Kallys Albert Sr.,
Appellant,

vs.

Allen Eduardo Diaz,
Respondent.

Filed December 6, 2021
Affirmed
Reilly, Judge

Dakota County District Court
File No. 19HA-CV-21-489

Kallys Albert Sr., Minneapolis, Minnesota (pro se appellant)

Allen Eduardo Diaz, Eagan, Minnesota (pro se respondent)

Considered and decided by Gaïtas, Presiding Judge; Ross, Judge; and Reilly, Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges the district court’s decision to dismiss his petition for a
harassment restraining order without a full evidentiary hearing, arguing that his petition
stated a sufficient basis for the relief sought and that the district court erred in determining
his petition was made in retaliation for events in his daughter’s marital dissolution case.
Because the district court did not abuse its discretion by dismissing appellant’s harassment
restraining order petition without an evidentiary hearing, we affirm.
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FACTS
Appellant Kallys Albert Sr. (Kallys) petitioned the district court for a harassment
restraining order (HRO) against respondents Allen Diaz (Allen) and his current romantic
partner, Anastasia Nicole Zay Zay Diaz (Anastasia).1 Allen was previously married to
Kallys’s adult daughter, Nkemdilim Kelly Albert (Kelly), and the couple divorced in or
around December 2017.
In his petition for an HRO and accompanying affidavit, Kallys alleged that Allen
and Anastasia frightened him by claiming they had proof that Kallys’s grandchildren were
not safe in his home. Kallys also alleged that Allen and Anastasia took unauthorized
possession of Kelly’s laptop and destro yed her property. Finally, he alleged that Allen
tarnished the family’s reputation by forging documents , making false accusations, and
seeking to deprive Kelly of legal custody of the joint minor children. The HRO petition
referred the court to about six ty-seven screenshots of electronic conversations between
Kelly and Allen as further instances of alleged harassment.
In his prayer for relief, Kallys requested an ex parte order granting the HRO, asked
the court to vacate an existing HRO against Kelly on b ehalf of Anastasia, and sought a
custody hearing on behalf of the minor children. Kallys requested a hearing if the court
denied his request for an ex parte HRO. The district court denied the ex parte request and
granted his request for a hearing on the matter.

1 Because several individuals share the same surname, we use first names to avoid
confusion.
3
The district court scheduled an HRO hearing; both parties represented themselves.
Because of the COVID -19 pandemic, the district court conducted the hearing by
videoconference. Before the hearing, Kallys submitted pages of screenshots of text
messages and emails between Allen and Kelly, court documents from a prior restraining
order against Kelly, and other miscellaneous documents as exhibits. The record reflects
that the district court received and reviewed Kallys’s exhibits.
Without hearing testimony from the parties or potential witnesses, the district court
dismissed the matter at the start of the scheduled hearing, concluding that Kallys pleaded
nothing that would allow the court to go forward with a hearing. The dist rict court then
issued a one-page order denying the HRO. The order stated that the petition failed to state
a legal basis for an HRO and that the petition was made in retaliation of a family court
matter. Kallys filed a motion for reconsideration, arguin g his petition had a proper basis
under the statute and that the district court improperly dismissed the matter. The district
court denied the motion for reconsideration.
Kallys appeals the district court’s dismissal of his petition for an HRO.2
DECISION
Kallys argues that the district court erred in determining (1) that he was not entitled
to a full evidentiary hearing because his HRO petition did not state a sufficient basis for

2 Allen and Anastasia did not file a responsive brief. “If the respondent fails or neglects to
serve and file its brief, the case shall be determined on the merits.” Minn. R. Civ. App. P.
142.03. This court previously issued an order stating that the case would be submitted for
consideration on the merits under rule 142.03.
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relief sought, and (2) that the HRO petition was retaliatory. We address each argument in
turn.
I. The district court did not abuse its discretion when it dismissed Kallys’s
petition for an HRO.

A. Kallys’s HRO petition failed to state a basis for relief.

A district court may issue an HRO if “there are reasonable grounds to believe that
the respondent has engaged in harassment.” Minn. Stat. § 609.748, subd. 5(b)(3) (2020);
Kush v. Mathison, 683 N.W.2d 841, 844 (Minn. App. 2004), rev. denied (Minn. Sept. 29,
2004). “Harassment,” for purposes of an HRO, is defined by statute to require either
(1) “a single incident of physical or sexual assault” or (2) “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.” Minn.
Stat. § 609.748, subd. 1(a)(1) (2020). A single incident of the latter type of conduct is
not harassment. Peterson v. Johnson, 755 N.W.2d 758, 766 (Minn. App. 2008).
A person seeking an HRO from the district court must file a petition for relief that
alleges facts sufficient to show the name of the alleged harassment victim, the name of the
respondent, and that the respondent has engaged in harassment. Minn. Stat. § 609.748 ,
subd. 3(a)(1)-(3) (2020). A person may seek an HRO on behalf of themselves or on behalf
of their minor child. Id., subd. 2 (2020). This court reviews a district court’s decision to
issue an HRO for an abuse of discretion. Kush, 683 N.W.2d at 843. This court applies a
de novo standard of review to whether the facts found by the district court satisfy the
definition of harassment. See Peterson, 755 N.W.2d at 761 (noting that the authority to
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grant an HRO is statutory, and that appellate courts review questions of statutory
interpretation de novo).
Following the submission of Kallys’s petition, the district court stated on the record:
Having reviewed [the] entire petition, Mr. Albert, there is
nothing that is pled there that would support or even allow for
us to go forward with a hearing today, and at thi s time, this
particular matter is dismissed, and I will send you both a copy
of that order.

The later order mailed to the parties stated:
The Petition fails to state a legal basis to support this
Respondent harassed this Petitioner. Petitioner’s daughter is
Respondent’s ex-wife. There is a contentious divorce file and
multiple restraining orders regarding Respondent and
Petitioner’s daughter. Petitioner is unhappy with the Family
Court matter and the petition is retaliatory. IT IS ORDERED
THE MATTER IS DISMISSED.

We agree with the district court that Kallys’s HRO petition did not allege facts that,
if true, would allow the district court to rule that Allen and Anastasia engaged in
harassment. Kallys raised allegations of harassment mainly on behalf of his adult daughter,
Kelly.3 Yet, the HRO statute only allows a person who is the victim of harassment or their
guardian if they are a minor to bring a petition for an HRO. Minn. Stat § 609.748, subd. 2
(emphasis added). Kelly was born in 1993. She is not his minor child or a person under
Kallys’s custody and care as required by the HRO statute. For that reason, Kallys cannot

3 Kallys alleges on behalf of his adult daughter that Allen sexually assaulted Kelly
sometime between 2017-2018, that Anastasia and Allen used Kelly and Allen’s children to
stalk and gain details about her private life between 2018 -2019, a nd that Allen and
Anastasia stole Kelly’s laptop and deleted photographs and schoolwork in or around March
2018. Later in the petition, he also alleges that Allen harassed Kelly by calling Child
Protective Services and her employer to make false allegations about Kelly.
6
bring an HRO on her behalf. Thus, the facts in Kallys’s petition pertaining to the alleged
harassment of Kelly are legally insufficient to allow the district court to grant an HRO.
Kallys’s petition also detailed alleged acts of harassment toward him. Kallys first
alleges in his HRO petition that Allen and Anastasia frightened Kallys from 2018 through
November 2, 2020, by alleging they have proof that his grandchildren are not safe in his
home. It is unclear why Kallys alleges this harassment occurred for two years, because he
provides no detail about the allegations, and the only exhibit suggesting that the allegation
occurred is a screenshot of a text me ssage between Allen and Kelly dated October 24 and
November 2. That screenshot states: “I have proof that my children are not even safe at
your fathers house . . . .” and “[a]ll I am saying is I won’t let you put [the children] in the
same mental situatio n you got put in when you were a child during you[r] parents
divorce[].”
Kallys argues that such allegations devastated his reputation in his community. But
nothing in the petition or accompanying exhibits show s that either Allen or Anastasia
shared the information with third parties in the community. Further, this allegation appears
to be a single instance of alleged harassment by Allen and Anastasia. It does not amount
to a single instance of “physical or sexual harassment ” or arise to an instance intended to
have “a substantial adverse effect on the safety, security or privacy” of Kallys as required
by Minn. Stat. § 609.748 , subd. 1(a)(1). See generally Szarzynski v. Szarzynski , 732
N.W.2d 285, 292 (Minn. App. 2007) (noting, in the context of addressing whether a party
moving to modify custody made the prima facie case that would entitle the movant to an
7
evidentiary hearing, that allegations that are conclusory, vague, or unsupported by specific
evidence are insufficient to make a prima facie case).
Kallys next alleges in his petition that the continual harassment haunts, scares, and
threatens his integrity , but again does not detail any alleged ongoing ha rassment in his
petition, affidavit, or accompanying exhibits. Kallys appears to imply that the allegations
against himself, including that the children are not safe in his home, constitute ongoing and
severe threats to himself and his family because the statements continue to harm the
relationship between himself and the children. While this second allegation s eems to
suggest repeated threats, the conclusory and vague nature of his allegations are insufficient
to arise to the level of incidents intended to have “a substantial adverse effect on the safety,
security or privacy” of Kallys as required by statute. Minn. Stat. § 609.748, subd. 1(a)(1).
Kallys cites no other specific evidence tending to prove that Allen and Anastasia had an
intent to affect the safety, security, or privacy of Kallys. See Peterson, 755 N.W.2d at 764.
Thus, the allegation s made on his own behalf are insufficient to justify an evidentiary
hearing and the district court did not abuse its discretion when it dismissed the petition.
B. Kallys was not entitled to a full evidentiary hearing.

Minnesota statutes section 609.748 mandates that a district court hold a hearing on
the merits of the petition if requested by the petitioner. Minn. Stat. § 609.748, subd. 3(a)(3).
But the statute permits dismissal of petitions that lack merit: “Nothing in this section shall
be construed as requiring a hearing on a matter that has no merit.” Id. This court reviews
a district court ’s application of the HRO statute under an abuse of discretion standard.
Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn. App. 2000).
8
The district cour t scheduled a hearing on the matter , and the court received and
reviewed all sixty -seven exhibits submitted by Kallys. At the start of the hearing, the
district court determined that Kallys’s petition failed to state a basis for an HRO and
dismissed the matter. Kallys argues the district court’s conclusion that the petition had “no
legal basis” was an error because the district court dismissed the matter before allowing
the parties to testify, present evidence, and otherwise prove or disprove the allegations. We
disagree. Under the specific language of the HRO statute, a petitioner does not have an
absolute right to a full hearing on a meritless matter. Minn. Stat. § 609.748, subd. 3(a)(3).
While the district court scheduled an HRO hearing upon Kallys’s request, Kallys’s petition
failed to make allegations meriting an evidentiary hearing, and that flaw in his petition was
not remedied by his other submissions, all of which the district court reviewed. Thus, the
district court did not err when it denied Kallys a full evidentiary hearing.
II. The district court did not err in finding Kallys’s HRO petition was retaliatory.

Finally, Kallys argues the district court improperly based the dismissal of the HRO
on an unrelated divorce file between his daughter and Allen. “[A] district court’s findings
of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly
erroneous.” Witchell, 606 N.W.2d at 732; see also Minn. R. Civ. P. 52.01. “Findings of
fact are clearly erroneous only if the reviewing court is left with the definite and firm
conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d
96, 101 (Minn. 1999) (quotation omitted) . Under the clear-error standard of review, “an
appellate court need not go into an extended discussion of the evidence to prove or
9
demonstrate the correctness of the findings of the trial court.” In re Commitment of Kenney,
963 N.W.2d 214, 221-22 (Minn. 2021) (quotation omitted).
In its order denying the HRO, the district court dismissed the matter, finding that
the petition “fails to state a legal basis to support this Respondent harassed this Petitioner,”
and that “Petitioner is unhappy with the Family court matter and the petition is retaliatory.”
Kallys argues the district court erred in finding the HRO petition to be retaliatory because
the family court matters were unrelated to the HRO petition. Instead, he argues, the court
should have based its findings solely on the party’s testimony in a hearing.
But whether the district court found the petition was submitted in retaliation to the
family court matter is irrelevant to whether he was entitled to an evidentiary hearing. As
stated above, Kallys failed to make allegations that would merit an evidentiary hearing,
and the court did not err in denying him an evidentiary hearing. Additionally, after
reviewing the district court record as a whole , Kallys raised many concerns about his
daughter’s family court matters. For example, in his petition and affidavit, Kallys
referenced and cited at least five different family court files. As a result, when the district
court found the petition was submitted in retaliation to the family court matter, the district
court did not clearly err in doing so. See Cook v. Arimitsu, 907 N.W.2d 233, 240 n.3 (Minn.
App. 2018) (stating that an appellate court’s “duty is performed when [it] consider[s] all
the evidence, as we have done here, and determine[s] that it reasonably supports the
findings”).
In his petition, Kallys asked the district court to change the outcome of these prior
family law cases through this current HRO petition. He argues that certain statements
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made in prior court cases amount to harassment and must be resolved in his favor or
otherwise proven in an HRO hearing. We disagree. The primary purpose of an HRO is to
order someone to cease harassment or order no contact. Minn. Stat. § 609.748 , subd.
5(a)(1)-(2) (2020). It is not intended to engage in collateral attacks on past court decisions
in other files. Thus, Kallys cannot bring a n HRO to resolve, or change the resolution of,
past or pending court matters on his daughter’s behalf. Because Kallys’s HRO petition,
affidavit, and exhibits submitted to the district court raised many concerns about his
daughter’s family court matters, the district court’s findings of fact were not clearly
erroneous.
In sum, because Kallys’s petition for an HRO and supporting documents failed to
state a sufficient basis for relief , he is not entitled to a hearing on a meritless matter, and
because the district court found, based on the record, that the petition was retaliatory, the
district court did not err in dismissing Kallys’s HRO petition.
Affirmed.