This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).






Mankato Township,





Malcolm, Inc., et al.,



Filed March 13, 2001


Randall, Judge


Blue Earth County District Court

File No. C7-00-1254


Randall D.B. Tigue, Randall Tigue Law Office, P.A., Karmel Square Building, 2940 Pillsbury Avenue South, Suite 9, Minneapolis, MN 55408 (for appellants)


Kenneth R. White, Farrish Johnson Law Office, P.L.L.P., Union Square Business Center, 201 North Broad, Suite 107, P.O. Box 550, Mankato, MN 56002 (for respondent)

Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Huspeni, Judge. *


R. A. RANDALL, Judge

Appellants put up signs on their property without obtaining a permit. After various legal proceedings, the district court ordered appellants to remove the signs on a summary judgment motion. Appellants seek reversal and/or remand, arguing that the district court failed to make findings and that respondent's complaint was moot. Appellants also contend that res judicata and laches barred the claim. We affirm.


During the fall of 1997, appellants Malcolm, Inc. and DiMa Corp. (Malcolm) erected a sign advertising their business "Pure Pleasure" bookstore within the 500-foot setback near the intersection of Highway 22 and Highway 14 in Mankato Township where signs are statutorily prohibited under Minn. Stat. 173.16, subd. 4 (1996). Blue Earth County zoning ordinances also prohibited signs absent a conditional use permit. Malcolm neither sought nor received a permit from the State of Minnesota Department of Transportation (MnDot) or a conditional use permit from Blue Earth County or Mankato Township before erecting the sign. All parties agree the permit from Mankato Township was necessary to erect a sign.

Respondent Mankato Township (Mankato) served Malcolm with a complaint on October 17, 1997, seeking removal of the sign and to permanently enjoin Malcolm from maintaining the sign in violation of the ordinances. Malcolm admitted in its answer that the sign violated the ordinance, but raised the First Amendment as an affirmative defense. MnDot physically removed the sign on December 2, 1997. In January 1998, Malcolm commenced an action in U.S. District Court challenging the state statute and county and township ordinances as unconstitutional under the First and Fourteenth Amendments. During the federal proceedings, Malcolm applied for and received a permit from the state, resulting in dismissal of the state as a defendant. Malcolm then erected two new signs on the property without seeking or receiving a conditional use permit from Mankato.[1]

The U.S. District Court denied summary judgment and a preliminary injunction for Malcolm and granted summary judgment for defendant, finding the ordinance constitutional. Malcolm appealed to the U.S. Court of Appeals, 8th Circuit. The court dismissed the appeal. Within three months of the circuit court's final decision, Mankato proceeded with its original complaint against Malcolm by bringing a motion for summary judgment in state court. Malcolm did not dispute any of the facts in his response, but did raise the procedural defenses of res judicata and laches. Malcolm agrees he neither sought nor received the necessary permits from Mankato throughout the entire process.

On August 24, 2000, the district court granted summary judgment for Mankato and ordered removal of the signs within 30 days. Malcolm appeals the grant of summary judgment and moved for a stay of enforcement of the order pending appeal. That motion was denied by order of this court dated October 12, 2000.


On appeal from summary judgment, we review the record to determine (1) whether any genuine issues of material fact exist; and, (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view the evidence in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court, however, is not bound by a district courts decision on a question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I. Findings of Fact for Summary Judgment

Malcolm argues that this court cannot reasonably review the grant of summary judgment absent specific findings of fact by the district court. Malcolm's argument is based on application of Minn. R. Civ. P. 52.01 in light of Crowley Co. v. Metropolitan Airports Commission, 394 N.W.2d 542 (Minn. App. 1986). In Crowley, this court reversed and remanded the denial of a temporary injunction because the district court failed to make findings of fact and conclusions of law required under rule 52.01. Crowley recognized a few exceptions to the mandate of rule 52.01, which Malcolm argues apply to this case. Crowley, 394 N.W.2d at 545. Malcolm, however, does not challenge the district court's grant of summary judgment under this issue.

Summary judgment decisions do not require findings of fact and conclusions of law. See Minn. R. Civ. P. 52.01 (stating "[f]indings of fact and conclusions of law are unnecessary on decisions on motions pursuant to * * * [summary judgment]), review denied (Minn. Nov. 24, 1998).

Malcolm's use of Crowley is inappropriate in this case. Crowley was about a temporary injunction, which falls directly under rule 52.01. Rule 52.01 states that granting or refusing interlocutory injunctions requires the court to set out the findings of fact and conclusions of law, which constitute the grounds for its action. A temporary injunction is an interlocutory injunction. Black's Law Dictionary 788 (7th ed. 1999). Malcolm's claim is about a permanent injunction and summary judgment, which Malcolm concedes "[do] not fall within the literal strictures of Rule 52.01." The exceptions listed under Crowley[2] cannot be applied to this case.

Even when applying the Crowley exceptions to this case, findings of fact are not necessary since no factual disputes material to the motion exist. First, all parties agreed that Malcolm erected signs without a conditional use permit; second, Malcolm's sole asserted defenses to Mankato's suit were the First and Fourteenth Amendments, which were lost in the U.S. District Court; third, Malcolm erected two new signs without a conditional use permit; and fourth, Malcolm did not offer any additional basis to defend the action or justify its actions on the merits. Both parties agree that no factual dispute exists.[3]

With no material factual disputes, there is no requirement for findings of fact in a summary judgment motion. It is not necessary to remand for purposes of creating specific findings of fact.

II. Mootness

Malcolm argues that Mankato's claim should be dismissed as moot. Malcolm's interpretation of the complaint limits its scope to the sign located on the property owned by Malcolm at the time of Mankato's original complaint, October 1997. Since MnDot physically removed the sign referred to in Mankato's complaint of December 2, 1997, Malcolm believes its removal accomplished everything Mankato sought to accomplish in its complaint. Malcolm claims that Mankato's proper remedy was

not to file a nearly three-year-old moot lawsuit and move for summary judgment * * * [when new billboards were later erected, but rather, to] commence a new action or, if the moot lawsuit [was] filed, to amend it to seek removal of the signs not pled in the original lawsuit.


Since Mankato is actually pursuing removal of signs erected after the complaint regarding the sign removed on December 2, 1997, Malcolm believes the case is moot. Mankato rebuts by stating that Malcolm's actions have been repeated, are capable of further repetition, and likely to evade review.

"The primary function of notice pleading is to give the adverse party fair notice of the theory on which the claim for relief is based." Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997) (citation omitted). Pleadings should be liberally construed and judged by substance not form. Basich v. Board of Pension, 493 N.W.2d 293, 295 (Minn. App. 1992). This court considers the adequacy of the pleadings in light of their intended purpose. Maras v. City of Brainerd, 502 N.W.2d 69, 75 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). "The rules do not require adherence to a mechanistic and rigid formula." Id. (quotation omitted).

Mankato's complaint stated that Malcolm erected a large sign on the property in violation of the Blue Earth County zoning ordinances. Mankato sought to remove the sign in question and to permanently enjoin Malcolm from maintaining the sign in violation of the ordinance. Malcolm's strict reading of the complaint to relate only to the first sign erected (because of the words "the sign"), which was later removed by MnDot, is not in keeping with caselaw regarding interpreting pleadings. When Mankato sought a permanent injunction of the sign in violation of the ordinance, they were asking Malcolm to not erect any sign without properly adhering to the ordinance (i.e., obtain a conditional use permit and place sign more than 500 feet from highway). It was not necessary for Mankato to file a new complaint or amend the complaint in order to keep the complaint alive. Malcolm had adequate notice that all its signs violated the ordinances, particularly since Malcolm conceded that a conditional use permit was never sought nor received even though Malcolm knew it was required.

Mankato's claim that Malcolm's actions are capable of further repetition and likely to evade review has merit. Malcolm tries to show that this case is like DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704 (1974), and that since the Court in DeFunis found the issue in that case was not capable of repetition and evading review, this case is the same. Malcolm's claim misconstrues the law as applied in DeFunis. The Court found that since "DeFunis will never again be required to run the gantlet of the Law School's admission process," the issue was not capable of repetition. 416 U.S. at 319, 94 S. Ct. at 1707.

In this case, Malcolm can continue to erect signs without obtaining a permit from Blue Earth County, thereby violating the ordinances. This is exactly what Malcolm has done. There is a reasonable expectation, based on Malcolm's pattern of behavior, that the wrong will be repeated; therefore, voluntary cessation of the act would not make this case moot. See id. at 318, 94 S. Ct. at 1707 (stating that voluntary cessation of act complained of could make case moot if there was no reasonable expectation wrong would be repeated).

Based on the content of the complaint and the possibility of repetition yet evading review, this case is not moot.

III. Appellant's Defenses

A. Res judicata

Malcolm claims that this case is barred from adjudication because of res judicata. More specifically, Malcolm argues that Mankato "could have asserted a claim for injunctive relief as [a compulsory] counterclaim in the federal action" as required under the Fed. R. Civ. P. 13(a).[4] Applying the three-prong test for res judicata outlined in Porta-Mix Concrete, Inc. v. First Ins. E. Grand Forks, 512 N.W.2d 119, 121 (Minn. App. 1994), review denied (Minn. Apr. 28, 1994), Malcolm believes all three prongs are satisfied. Malcolm contends the third prong is satisfied because the federal lawsuit challenging the constitutionality of the ordinance under the First and Fourteenth Amendments is essentially the same cause of action as this case, which seeks removal of the signs and enjoinment of posting signs absent a conditional use permit.

Porta-Mix states that res judicata is meant to prevent relitigation of issues already decided on the merits in prior actions. Id. at 121. This applies to every matter that has been actually litigated and every matter that might have been litigated in the prior action. Id. The three prongs of res judicata are "(1) a final judgment on the merits; (2) identical parties or parties in privity; and (3) a second suit involving the same cause of action." Id. (citation omitted). Porta-Mix analyzed the application of res judicata to two cases involving separate claims of negligence and reasonable expectations between the same parties. It found that res judicata did not bar the second claim because the negligence cause of action involved litigation of different facts than were involved in determining if coverage existed under the doctrine of reasonable expectations. Id. at 123.

In this case, there was a final judgment on the merits in the federal case. The federal case and this case do involve the same parties. The two claims, however, do not involve the same causes of action. The federal case involved determining whether the Blue Earth County ordinances requiring a permit for signs posted within 500 feet of the highway were constitutional. The federal court examined whether Malcolm had standing, the ordinance was void for overbreadth, the government had unbridled discretion, and there was adequate procedural due process. This case, on the other hand, involved determining whether Malcolm had violated the ordinances that required conditional use permits for posting signs near the highway. The federal case was about the process of obtaining a permit. This case is about having a permit.

Because these two claims do not litigate the same set of facts, Mankato was not required to bring this case as a compulsory counterclaim in the federal case, and the claim is not barred by res judicata.

B. Doctrine of Laches

Malcolm also claims that the case is barred under the doctrine of laches because Mankato waited nearly three years from the time of service to file the current suit, resulting in prejudice against Malcolm. Malcolm contends that "[h]ad [r]espondent promptly asserted its claim, [a]ppellants could have sought and obtained a conditional use permit for the current billboard." Further, Mankato is accused of deliberately waiting until it amended its ordinance extending the footage from 500 feet to 1,000 feet before it filed the claim in order to preclude Malcolm from being grandfathered in under the new ordinance.

The basic question in applying the doctrine of laches is "whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant" the requested relief. Harr v. City of Edina, 541 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted). "The doctrine of laches depends on a factual determination in each case." Eide v. State Farm Mut. Auto. Ins. Co., 492 N.W.2d 549, 556 (Minn. App. 1992). "Mere delay does not constitute laches, unless the circumstances were such as to make the delay blamable." Elsen v. State Farmers Mut. Ins. Co., 219 Minn. 315, 321, 17 N.W.2d 652, 656 (1945) (quotation omitted).

The delay in this case is due to the federal action brought by Malcolm. It is logical and reasonable that Mankato would wait until the federal decision was final before pursuing this matter since the federal case was determining the constitutionality of the ordinance. Within three months from the final decision by the federal courts, Mankato proceeded with its complaint and brought a motion for summary judgment one week later. Based on Malcolm's past actions of not obtaining a conditional use permit at any time in the process, Malcolm's claim that it would have sought and obtained a conditional use permit if Mankato had promptly asserted its claim is suspect. Malcolm knew the entire time that it was in violation of the ordinances. Once the federal courts determined the ordinances were constitutional, Malcolm still did not seek a conditional use permit during the three-month window before Mankato filed its complaint. Any prejudice Malcolm has experienced, such as the changing of the ordinance to 1,000 feet from the highway, is suffered because of Malcolm's own actions. Being involved in litigation over the matter for a three-year period does not constitute lack of action by Mankato for purposes of determining unreasonable delay under the doctrine of laches.

This case does not require a remand for specific factual findings, is not moot because of the federal claim brought by Malcolm, and is not barred by the defenses of res judicata and laches. The district court properly granted summary judgment for Mankato.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

[1] Malcolm also appealed a grant of summary judgment in State by Hatch v. Malcolm, Inc., No. C7-00-1084, 2001 WL 32774 (Minn. App. Jan. 16, 2001). Malcolm argued there was a question of material fact as to whether a trailer's primary purpose was advertising or storage, and therefore, within the statutory definition of an advertising devise under Minn. Stat. 173.02, subd. 2 (1998). The court reversed and remanded for the factual determination.

[2] The Crowley exceptions are: (1) where the record is reasonably clear and the facts not seriously disputed; (2) where the decision necessarily decides all the disputed facts; (3) where, even if the decision does not necessarily decide all the facts in dispute, the issues are immaterial; and (4) where no findings in favor of the appellant would have been justified. Crowley, 394 N.W.2d at 545.

[3] Malcolm did, however, raise the defenses of res judicata and laches in its motion in opposition to summary judgment. These defenses are irrelevant when considering whether the facts on the record are in dispute.

[4] Fed. R. Civ. P. 13(a) requires pleadings to state as counterclaims any claim the pleader has against the opposing party at the time of service, which arises out of the same transaction or occurrence of the opposing party's claim.