This opinion is nonprecedential except as provided by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

A23-0625

In the Matter of:

Kaycee Houde,

Respondent,

vs.

David Fryxell,

Appellant.

Filed February 14, 2024

Affirmed

Larkin, Judge

Crow Wing County District Court

File No. 18-CV-22-4160

Daniel M. Hawley, Gammello-Pearson, PLLC, Baxter, Minnesota (for respondent)

Richard Dahl, Dahl Law Firm, PA, Brainerd, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and 

Halbrooks, Judge.



NONPRECEDENTIAL OPINION

LARKIN, Judge

Appellant challenges the district court’s grant of respondent’s petition for a 

harassment restraining order (HRO), arguing that the HRO was based on conduct that did 

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

not constitute harassment as a matter of law, that respondent failed to prove that the conduct 

adversely affected her, and that the conduct was protected free speech. We affirm.

FACTS

On November 11, 2022, respondent Kaycee Houde petitioned for an HRO against 

appellant David Fryxell. Houde and Fryxell were in a relationship and have a minor child 

together. Houde alleged that Fryxell sent her harassing messages, told people in the 

community personal information about her, and financially harassed her by giving her 

money for things related to their daughter and then asking for the money back. She further 

alleged that Fryxell’s conduct compromised her sense of safety, privacy, and security.

On November 14, 2022, the district court granted a temporary HRO. On November 

23, 2022, the district court amended the temporary HRO to allow for communication 

between Fryxell and Houde about “shared parenting issues” through the use of a 

communication application (Our Family Wizard), to provide for exchanges of their child,

and to allow incidental contact during those exchanges.

Fryxell requested a hearing on Houde’s petition, and on February 27 and March 3, 

2023, a referee heard the matter. Houde testified and called one witness. Fryxell also 

testified. The parties introduced exhibits, including text-message conversations, 

conversations that took place on Our Family Wizard, and video recordings.

Houde’s witness testified that Fryxell sent him text messages alleging details about 

Houde’s sexual history. The witness testified that Fryxell’s texts were “inappropriate.” 

The witness responded to Fryxell’s texts, stating that Fryxell was sharing “really personal 

stuff that [Fryxell] probably shouldn’t be sharing with people [he does not] know.”
3

Houde testified that Fryxell sent her repeated and unwanted text messages and that 

she asked him to stop. Houde explained that Fryxell’s messages regarded her sexual 

history and that they were “all a pattern of behavior, and they had been for the many months 

of [their] relationship.” She also testified that Fryxell did not limit his use of Our Family 

Wizard to communicate only “shared parenting issues.”

Fryxell testified that he contacted Houde’s witness to find out whether Houde was 

cheating on him. He also testified that Houde made false allegations to the police about 

him, called him, assaulted him, and that Houde was the “aggressor” in their relationship.

The district court issued a two-year HRO against Fryxell, finding that he “engaged 

in harassment which has or is intended to have a substantial adverse effect on [the] safety, 

security, or privacy of [Houde].”

Fryxell appeals.

DECISION

This court reviews a district court’s grant of an HRO for an abuse of discretion. 

Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), rev. denied (Minn. Sept. 29, 

2004). The district court’s findings of fact “shall not be set aside unless clearly erroneous, 

and due regard shall be given to the opportunity of the [district] court to judge the 

credibility of the witnesses.” Minn. R. Civ. P. 52.01; see Kush, 683 N.W.2d at 843-44. “A 

district court abuses its discretion if it makes findings of fact that are not supported by the 

record, misapplies the law, or resolves the matter in a manner that is contrary to logic and 

the facts on record.” Borth v. Borth, 970 N.W.2d 699, 701 (Minn. App. 2022) (quotation 

omitted). A finding of fact is clearly erroneous if we are left with a “definite and firm 
4

conviction” that a mistake was made. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 

101 (Minn. 1999) (quotation omitted). “[T]his court will reverse the issuance of a 

restraining order if it is not supported by sufficient evidence.” Kush, 683 N.W.2d at 844.

Despite caselaw establishing the standard of review applicable to the district court’s 

grant of an HRO, Fryxell insists that we apply a different standard in this appeal. He argues 

that a different standard is required because he ordered a transcript of the hearing before 

the referee and this court is reviewing the decision of the referee. He relies on caselaw 

regarding attorney-discipline actions in which the standard to be applied depends on 

whether a party orders a transcript. See, e.g. In re Disciplinary Action Against Colosi, 

977 N.W.2d 802, 811 (Minn. 2022); In re Disciplinary Action Against MacDonald, 

962 N.W.2d 451, 460 (Minn. 2021); In re Disciplinary Action Against Walsh, 872 N.W.2d 

741, 747 (Minn. 2015). For two reasons, we reject this argument.

First, in numerous prior HRO appeals, this court has used the clear-error standard 

to review findings of fact. See, e.g., Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. 

App. 2008); Kush, 683 N.W.2d at 843. Here, however, Fryxell asks this court to use the 

standard the supreme court uses in attorney discipline cases. But this is not an attorney 

discipline case. And, the supreme court “retains exclusive power to regulate attorney 

discipline proceedings.” In re Disciplinary Action Against Riehm, 883 N.W.2d 223, 231 

(Minn. 2016). Moreover, Fryxell cites no authority supporting application—in this HRO 

appeal—of a standard the supreme court uses in a proceeding unique to its authority. 
5

Second, it is not clear that applying the supreme court’s attorney-discipline standard 

would produce a different result. Specifically, in attorney-discipline matters, on appeal to 

the supreme court:

If a party orders a transcript of the hearing, as [the 

attorney] did here, the referee’s findings of fact and 

conclusions of law are not conclusive. But we give great 

deference to the referee’s findings of fact and will not reverse 

those findings if they have evidentiary support in the record 

and are not clearly erroneous. A referee’s findings are clearly 

erroneous when we are left with the definite and firm 

conviction that a mistake has been made. Moreover, we review 

the findings of fact to determine whether they support the 

referee’s conclusions of law.

In re Disciplinary Action Against Coleman, 793 N.W.2d 296, 303 (Minn. 2011) (emphasis 

added) (quotations and citations omitted).

A relevant rule provides:

The referee shall make findings of fact, conclusions, 

and recommendations, file them with [the supreme court], and 

notify the respondent and the Director [of the Office of 

Lawyers Professional Responsibility] of them. . . . Unless the 

respondent or Director, within ten days, orders a transcript and 

so notifies [the supreme court], the findings of fact and

conclusions shall be conclusive. If either the respondent or the 

Director so orders a transcript, then none of the findings of 

fact or conclusions shall be conclusive, and either party may 

challenge any findings of fact or conclusions.

Minn. R. Law. Prof. Res. 14(e) (emphasis added).

Thus, there is little difference between the standard of review applicable to findings 

of fact in an HRO proceeding and to findings of fact in an attorney-discipline proceeding

in which a transcript was ordered. In either case, an appellate court reviews the findings 
6

for clear error, giving deference to the findings. See Coleman, 793 N.W.2d at 303; Kush, 

683 N.W.2d at 843-44.

Fryxell has ordered a transcript in this matter and has the right to challenge the 

district court’s findings of fact as clearly erroneous. But that does not mean that we try the 

case de novo. Indeed, this court is expressly prohibited from finding facts on appeal. See 

State v. Colvin, 645 N.W.2d 449, 453 (Minn. 2002) (stating that “[a]ppellate courts have 

no . . . business finding facts”). “[A]n appellate court’s limited scope of review 

circumscribes additional fact finding by it . . . .” Stiff v. Associated Sewing Supply Co.,

436 N.W.2d 777, 779 (Minn. 1989). As the supreme court has explained:

The scope of review of an appellate court is narrowly 

defined. The function of the court of appeals is limited to 

identifying errors and then correcting them.

We have criticized before the court of appeals’

misapplication of the scope of review when it has usurped the 

role of the [district] court by reweighing the evidence and 

finding its own facts . . . .

Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (citations omitted).

We therefore review the findings of fact in this case for clear error, as follows:

[W]e examine the record to see if there is reasonable evidence 

in the record to support the court’s findings. And when 

determining whether a finding of fact is clearly erroneous, we 

view the evidence in the light most favorable to the verdict. To 

conclude that findings of fact are clearly erroneous we must be 

left with the definite and firm conviction that a mistake has 

been made.

Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (quotations and 

citations omitted). In doing so, we will not usurp the role of the district court by reweighing 

evidence or reassessing witness credibility.
7

At oral argument to this court, Fryxell’s attorney argued that the standard of 

appellate review requiring this court to defer to a district court’s findings of fact unless 

those findings are clearly erroneous and to defer to a district court’s credibility 

determinations violates due process. Fryxell acknowledges that he did not raise this issue 

in his briefs. He contends, without legal analysis, that the HRO “implicat[es] Fryxell’s due 

process” rights. He also asserts, without legal analysis, that because the testimony in this 

case was taken via Zoom, it was more difficult to assess credibility and that the underlying 

hearing therefore “lacked the full due process which is normally accorded to a party for an 

in court evidentiary hearing.”

“[O]n appeal error is never presumed. It must be made to appear affirmatively 

before there can be reversal. . . . [T]he burden of showing error rests upon the one who 

relies upon it.” Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (quotation omitted). Mere

assertions of error without supporting legal authority or argument are waived unless

prejudicial error is obvious on mere inspection. State v. Mod. Recycling, Inc., 558 N.W.2d 

770, 772 (Minn. App. 1997). And “issues not adequately briefed are waived.” Brooks v.

State, 897 N.W.2d 811, 819 (Minn. App. 2017), rev. denied (Minn. Aug. 8, 2017). For all 

of those reasons, we do not address the merits of Fryxell’s alleged due-process violation.

Having established the standards that govern our review of the HRO in this case, 

we proceed to the merits of Fryxell’s challenge.

I.

Fryxell contends that the conduct on which the HRO was based was, as a matter of 

law, insufficient to constitute harassment. 
8

The district court may grant an HRO if “the court finds at the hearing that there are 

reasonable grounds to believe that the respondent has engaged in harassment.” Minn. Stat. 

§ 609.748, subd. 5(b)(3) (2022). “‘Harassment’” 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.” Minn. 

Stat. § 609.748, subd. 1(a)(1) (2022).

The district court explained that it issued the HRO based on “the more recent 

communications between the parties, which [were] really the central focus of the petition.” 

The district court found that Fryxell sent Houde “repeated communications” that were 

“offensive, demeaning, and disparaging,” and “objectively unreasonable,” and that “a 

reasonable person would feel harassed or oppressed upon receiving those messages.” For 

example, Fryxell called Houde abusive names, including “whore,” “crazy,” “mentally 

unstable,” and told Houde that she was sexually promiscuous. In addition, while the 

temporary HRO was in place, Fryxell used Our Family Wizard “to further demean and 

verbally abuse [Houde].” Finally, Fryxell sent a text message to Houde’s witness, in which 

he made allegations regarding Houde’s sexual history. Houde’s witness did not know 

Houde well and, as found by the district court, “the message was not appropriate given the 

limited acquaintance.”

At the hearing, the district court explained that:

[T]here are the communications that [] Fryxell admits that he 

sent to [the witness] that are clearly sent with the intent to 

disparage or demean [] Houde. There’s a consistent theme of 

sexual shaming throughout the communications. That is 
9

abundantly consistent throughout, and that is a form of 

harassment.

The record provides substantial support for those findings. Indeed, Fryxell does not 

dispute that he sent Houde many text messages over an extended period. The record shows 

that Houde told Fryxell to stop sending her messages, that his messages were “abusive,” 

and that she did not deserve to be treated that way. Fryxell often responded by sending 

very long or multiple text messages regarding Houde’s alleged sexual activities.

1

The record also shows that Fryxell sent Houde messages on Our Family Wizard that 

were not limited to “shared parenting issues,” which was the only subject authorized by 

the district court. Finally, the record shows that Fryxell sent text messages to Houde’s 

witness asserting private information regarding Houde’s alleged sexual history. The 

witness responded that “[t]his sounds like really personal stuff that you probably shouldn’t 

be sharing with people you don’t know.” The witness testified that he thought Fryxell’s 

messages were “100 percent” inappropriate, that he did not ask Fryxell to send the 

messages, and that the messages involved allegations about Houde’s sexual history.

As to the effect of Fryxell’s behavior, Houde testified that Fryxell’s 

communications made her feel “[r]eally bad and disgusting, violated.” She testified that

the text messages were “all a pattern of behavior” and “a pattern of turning everything 

around on [her] until [she] would be submissive”; the message made her feel “anxious and 

helpless” because “it[] [was] just someone attacking [her]”; she felt “[t]hreatened”; and 

Fryxell’s communications made her feel like “everything [she] say[s] is turned around to 

1 We do not quote and thereby re-disseminate those messages given their private content.
10

the point where at the end of the day when [she is] in the chaos, [she] feel[s] so confused 

that [she does not] even know what just happened” and that she has to “reread it all and 

make sure that [she is] not going crazy.” Finally, Houde testified that, based on her 

knowledge of Fryxell’s criminal history, she was concerned that he would continue to send 

her objectionable messages and she feared for her safety if she did not receive an HRO.

This record is sufficient to show that Fryxell engaged in “repeated incidents of 

intrusive or unwanted acts, words, or gestures” that had “a substantial adverse effect on the 

safety, security, or privacy” of Houde. Minn. Stat. § 609.748, subd. 1(a)(1). Fryxell’s 

arguments do not persuade us otherwise. For example, Fryxell argues that the district court 

ignored evidence showing that Houde assaulted Fryxell, Houde falsely accused Fryxell of 

rape, Houde attempted to “entice” Fryxell into violating the HRO, and Houde “was the 

aggressor, showing absolutely [no fear] for her safety, security or privacy.” At the hearing, 

Fryxell argued that such evidence showed that Houde was not credible, Houde was not 

adversely affected, and the HRO should not have been granted. He urges this court to 

reverse the HRO on that ground. 

Given our standard of review, Fryxell’s argument is unavailing. Again, the 

fact-finder is entrusted to weigh the evidence and assess witness credibility. See

Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) (stating that a reviewing 

court “traditionally accord[s] great deference to a [district] court’s findings of fact because 

it has the advantage of hearing the testimony, assessing relative credibility of witnesses 

and acquiring a thorough understanding of the circumstances unique to the matter before 

it”). This court will “neither reconcile conflicting evidence nor decide issues of witness 
11

credibility, which are exclusively the province of the factfinder.” Pechovnik v. Pechovnik, 

765 N.W.2d 94, 99 (Minn. App. 2009) (quotation omitted). And this court will defer to 

the district court’s credibility determination when “[t]he district court’s findings implicitly 

indicate that the district court found respondent’s testimony credible.” Id. Here, Fryxell’s 

attorney cross-examined Houde at the hearing and provided reasons to doubt her

credibility. Nonetheless, the district court’s grant of an HRO shows that it implicitly 

credited Houde’s testimony. See id. We defer to that credibility determination.

Fryxell further argues that his conduct did not adversely affect Houde’s “safety, 

security or privacy,” asserting that his remarks were not objectively unreasonable and that 

they instead were “merely inappropriate and argumentative.” See Peterson, 755 N.W.2d 

at 764 (stating that a petitioner must show “objectively unreasonable conduct or intent on 

the part of the harasser”) (quotation omitted)). Houde’s testimony—as implicitly credited 

by the district court—establishes the necessary adverse effect, and the record supports the 

district court’s conclusion that Fryxell’s conduct was objectively unreasonable.

Fryxell insists that his conduct was not objectively unreasonable because “Fryxell 

had the right to inquire regarding whether the person he is dating is cheating on him.” 

Fryxell emphasized this point at oral argument to this court, indicating he will appeal to 

the Minnesota Supreme Court if this court holds that a person does not have a right to 

contact a third party to determine if he or she has been “cheated” on.2 Fryxell’s focus on 

2 Fryxell argues, “If the law were to the contrary, cheating sexual partners would have the 

absolute protection of the law to act with impunity, basically ending exclusive dating 

relationships and marriage.”
12

such a “right” ignores that his statements to the witness exceeded an inquiry into whether 

Houde had been unfaithful. Fryxell contacted Houde’s witness more than once, and he did 

not limit his inquiry to whether Houde had been unfaithful. Instead, Fryxell provided 

unsolicited, inappropriate, and poorly received information regarding Houde’s sexual 

history.

Fryxell also argues that caselaw supports his position, but the cases on which he 

relies involved a single incident of unwanted contact. See Beach v. Jeschke, 649 N.W.2d 

502, 503 (Minn. App. 2002) (holding that the district court abused its discretion by issuing 

an HRO “based solely on a two-sentence comment made to respondent on only one 

occasion”); Peterson, 755 N.W.2d at 765 (“It is conceivable that the cumulative effect of 

persistent, baseless attempts to peer inside a person’s vehicle might rise to the level of a 

substantial-adverse effect on that person’s safety, security, or privacy, but the evidence 

does not support a conclusion that the single instance of such conduct in this case had the 

requisite effect.”); Harris ex rel. Banks v. Gellerman, 954 N.W.2d 604, 610 (Minn. App. 

2021) (reasoning that because harassment requires “multiple incidents of adverse and 

unwanted contact,” the district court erred by granting an HRO).

Unlike the cases on which Fryxell relies, the record here establishes multiple 

incidents of unwanted conduct. Fryxell sent Houde multiple messages with a consistent 

theme of sexual shaming over the course of weeks. Moreover, Fryxell sent a text message 

to Houde’s witness making assertions regarding her sexual history. This case involves 

more than a single incident of unwanted conduct.
13

Finally, Fryxell argues that the district court was prejudiced against him because the 

district court granted the temporary HRO “immediately,” “with very little inquiry into the 

validity of the allegations.” Minn. Stat. § 609.748, subd. 4 (2022), allows the court to issue 

a temporary HRO if the district court has “reasonable grounds to believe that the [person] 

has engaged in harassment.” “If the petitioner does not request a hearing, the court shall 

advise the petitioner that the respondent may request a hearing . . . .” Id., subd. 3 (2022). 

Although “[n]othing in this section shall be construed as requiring a hearing on a matter 

that has no merit,” a review of Houde’s petition shows that it was not without merit. Id. 

And, as anticipated under the statute, Fryxell had the opportunity to challenge the basis for 

the HRO at an evidentiary hearing. The process was consistent with the statute, and Fryxell 

does not establish any improper prejudice.

3

In sum, the record provides sufficient evidence to show that Fryxell engaged in 

repeated incidents of intrusive or unwanted acts that had a substantial adverse effect on 

Houde’s security or privacy, which constituted harassment as a matter of law.

3 Fryxell complains that opposing counsel and the district court relied on his 

communications to Houde on Our Family Wizard, “which were NEVER even mentioned” 

in Houde’s petition for an HRO. He complains that Houde’s petition was not amended to 

include his texts to Houde on Our Family Wizard, and he argues that Houde had to bring 

in those texts because the original allegations in her petition were “frivolous.” Fryxell does 

not cite legal authority or provide legal argument indicating that the district court erred by 

considering his communications on Our Family Wizard. Arguably, a party’s alleged 

failure to comply with restrictions put in place by the district court pending a hearing on a 

petition for an HRO is relevant to a determination of whether to grant an HRO and if so, 

the terms of the HRO. Moreover, Fryxell does not explain how he was prejudiced by the 

district court’s receipt of or reliance on his documented statements on Our Family Wizard. 

Given the allegations in Houde’s petition, Fryxell should not have been surprised by the 

introduction of his own statements at the hearing. 
14

II.

Fryxell contends that the HRO was based on speech that is protected under the First 

Amendment and the Minnesota Constitution, that his comments to his therapist were 

privileged, and that he was allowed to make statements regarding Houde’s parenting 

methods.

As to his First Amendment contention, Fryxell relies on caselaw addressing a First 

Amendment challenge to Minn. Stat. § 609.749, subd. 7 (2022), which he describes as the 

“closely related Minnesota criminal harassment statute.” But the district court granted 

Houde’s civil HRO petition against Fryxell under section 609.748, and this court has held 

that conduct constituting harassment under section 609.748 does not violate the First 

Amendment because “the state may regulate certain categories of words or conduct without 

substantially infringing on speech or expressive conduct protected by the First 

Amendment.” Dunham v. Roer, 708 N.W.2d 552, 565 (Minn. App. 2006), rev. denied

(Minn. Mar. 28, 2006). Specifically, section 609.748 does not violate the First Amendment 

because it “is directed against constitutionally unprotected fighting words . . . true 

threats . . . and speech or conduct that is intended to have a substantial adverse effect, i.e., 

is in violation of one’s right to privacy.” Id. at 566 (quotations omitted). Because Fryxell’s 

communications constituted harassment under section 609.748, they were not protected by 

the First Amendment or the Minnesota Constitution.

We next consider Fryxell’s contention that any comments that he made to his 

therapist regarding Houde were made in the context of “a legally protected relationship and 

his statements were privileged and/or protected free speech,” such that the district court 
15

could not rely upon such comments when granting the HRO.4 He argues that “[t]here really 

is no dispute that [he] had a right to discuss his feelings about whether [Houde] was 

promiscuous with his own therapist.” He relies on the therapist/patient privilege, which 

provides:

A registered nurse, psychologist, consulting 

psychologist, or licensed social worker engaged in a 

psychological or social assessment or treatment of an 

individual at the individual’s request shall not, without the 

consent of the professional’s client, be allowed to disclose any 

information or opinion based thereon which the professional 

has acquired in attending the client in a professional capacity, 

and which was necessary to enable the professional to act in 

that capacity.

Minn. Stat. § 595.02, subd. 1(g) (2022).

But Fryxell’s therapist did not testify at the hearing. And Fryxell does not identify 

any evidence that was received from his therapist in violation of the privilege at the hearing. 

Nor does he point to anything in the district court’s findings indicating that it relied on such 

evidence. We therefore discern no error or prejudice justifying relief.

Finally, although Fryxell asserts that his comments regarding Houde’s care of their 

child were privileged or protected free speech, he does not develop this argument. Because 

Fryxell’s assertion on this point is not adequately briefed, we do not discuss it further.

Affirmed.

4 According to Fryxell’s brief to this court, he “was and is required to see this counselor 

relating to the criminal case for which he was on probation.”