This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






City of Coates,

a municipal corporation,





Richard W. Jacobson and Jake’s Ltd., Inc.,





Bonnie J. Malloy, et al.,



Filed June 6, 2000

Affirmed; motions denied
Klaphake, Judge


Dakota County District Court

File No. C5-98-8820


Michael Molenda, 7300 West 147th St., Suite 600, Apple Valley, MN  55124 (for respondent)


Randall D.B. Tigue, 2940 Pillsbury Ave. S., Suite 200, Minneapolis, MN  55408 (for appellant Jacobson)


Mark C. Vandelist, 14569 Grand Ave. S., Burnsville, MN  55306 (for appellant Jake’s Ltd.)


Steven P. Lundeen, 100 Karmel Square, 2942 Pillsbury Ave. S., Minneapolis, MN  55408 (for appellants Malloy, et al.)


            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


This case involves respondent City of Coates’ (city’s) enforcement of an ordinance to limit the business hours of Jake’s Bar.  The ordinance has been the subject of two prior actions.  The first action was dismissed by agreement of the parties.  The second resulted in a federal judgment declaring the ordinance constitutional.

The present action was instituted by the city against appellants Richard Jacobson and Jake’s Ltd., the owner of Jake’s Bar (collectively “Jake’s”) seeking to enjoin continued violation of the ordinance.  A group of entertainers working at Jake’s successfully petitioned to intervene in the action.  The district court granted summary judgment in favor of the city and issued a permanent injunction.  The court also struck the pleadings of the intervenors.

Jake’s and the intervenors now appeal, arguing that res judicata (1) should not apply to the intervenors, (2) does not bar a new constitutional challenge to the ordinance, and (3) bars the granting of a permanent injunction.  On appeal, the city moves to dismiss the intervenors’ appeal.  In addition, the parties move to strike various portions of briefs submitted by others.  Because the intervenors are not challenging the district court’s order striking their pleadings, we need not address their challenge to the ordinance.  Because Jake’s failed to plead its constitutional challenge and because the district court did not err in granting a permanent injunction, we affirm.  We also deny all motions made by the parties.


In reviewing summary judgment, this court must determine whether there are genuine issues of material fact and whether the district court erred in its application of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  “The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).


            In addition to granting summary judgment and a permanent injunction for the city, the district court also granted the city’s motion to strike the intervenors’ pleadings.  The court did not articulate its reasoning for striking the intervenors’ pleadings, but the sole basis for the city’s motion was intervenors’ discovery violations.  Thus, despite the intervenors’ argument to the contrary, it is clear that their pleadings were stricken as a sanction for discovery violations.  See Minn. R. Civ. P.  37.02(b)(3).

            The intervenors failed to challenge the order striking their pleadings.  The city argues that the intervenors lack standing to appeal because they are no longer parties.  The city’s characterization of the issue as one of standing is inaccurate.  Nevertheless, we agree that the intervenors’ failure to appeal the striking of their pleadings has important ramifications.  Because the intervenors have not challenged an alternative basis for disposing of their claim, we need not address their challenge to the entry of summary judgment against them.  See Reed v. University of N.D., 543 N.W.2d 106, 109 (Minn. App. 1996) (issue need not be addressed on appeal where an alternative basis supports affirmance); Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (on appeal, appellant has burden to show error and prejudice), review denied (Minn. June 28, 1993).

            The city also argues that the documents submitted by the intervenors should not be considered on appeal.  But Jake’s expressly incorporated the intervenors’ arguments and exhibits in its opposition to summary judgment.  Thus, those documents are properly before us on appeal.  See Minn. R. Civ. App. P. 110.01 (listing composition of record on appeal).

            Jake’s moves to strike portions of the city’s brief referring to Dakota County District Court criminal and ticket files.  Jake’s correctly notes that the files themselves were not made part of the district court record.  However, because Jake’s never objected during the district court proceedings, we will not address that issue for the first time on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).


            Jake’s concedes that the prior federal judgment precludes relitigation of whether the ordinance is constitutional on its face.  Jake’s argues, however, that the ordinance is unconstitutional as applied and that it is free to assert this distinct constitutional challenge in this appeal.

            We agree with the district court that this constitutional challenge fails because Jake’s did not assert the defense in its answer and did not raise the issue until it submitted post-hearing arguments.  Ordinances enjoy a presumption of constitutionality.  DI MA Corp. v. City of St. Cloud, 562 N.W.2d 312, 320 (Minn. App. 1997), review denied (Minn. July 28, 1997).  The party challenging an ordinance bears the burden of establishing that it is unconstitutional.  State v. Ellis, 476 N.W.2d 662, 664 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991).  Accordingly, a constitutional challenge to enforcement of an ordinance is an affirmative defense and must be pleaded as such.  See Minn. R. Civ. P. 8.03.  Because Jake’s did not plead this constitutional defense--and did not even raise it until after the summary judgment hearing--the district court did not err by granting summary judgment in favor of the city on that issue.


            Finally, Jake’s argues that res judicata precludes the city from obtaining an injunction in this case because an injunction was requested and denied in federal court.  Res judicata applies when two successive suits involve claims arising out of the same nucleus of facts.  Anderson v. Werner Continental, Inc. 363 N.W.2d 332, 335 (Minn. App. 1985), review denied (Minn. June 24, 1985).  The present request for an injunction concerns facts and circumstances not in existence at the time of the federal judgment.  Prior to the federal judgment, Jake’s violated the ordinance because it was believed to be unconstitutional.  Following its judgment declaring the ordinance to be constitutional, the federal court had no reason to presume that Jake’s would violate the ordinance and defy the court’s decision and, therefore, had no reason to enjoin prospective violations.  Unfortunately, Jake’s has not abided by the decision and continued to violate the ordinance.  Because the city’s present claim involves new facts and circumstances, res judicata did not preclude the state court from granting an injunction.  See Anderson, 363 N.W.2d at 335.

            Affirmed; motions denied.