This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-03-58

 

High Forest Township,
Respondent,

vs.

Malcolm, Inc., et al.,
Appellants,
Dave Larson, et al.,
Defendants.

 

Filed July 1, 2003

Reversed and remanded

Toussaint, Chief Judge

 

Olmsted County District Court

File No. C7022794

 

Kenneth R. Moen, Moen Law Firm, 202 Riverside Building, 400 South Broadway, Rochester, MN 55904 (for respondent)

 

Marian Mimi Hasselbalch, Hasselbalch Law Office, 4910 Highway 61, White Bear Lake, MN 55110 (for appellants)

 

            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

            Appellants challenge a temporary injunction that prohibits them from operating an adult bookstore in an area not zoned for adult entertainment uses.  Appellants argue that the district court abused its discretion in issuing the injunction because (1) respondent did not show a likelihood of success on the merits; (2) the balance of harms does not favor issuing a temporary injunction; and (3) not all necessary parties were joined.  Appellants also argue that the injunction is overbroad, both constitutionally and as related to the applicable ordinance.  Finally, appellants moved to strike certain documents from respondent’s brief.  Because the district court failed to make adequate findings, we reverse and remand.

FACTS

            Appellants Malcom, Inc. and Dave Larson are the owners and landlords of the building located at 2727 Highway 63 in High Forest Township.  Inside the building, there is a store by the name of Pure Pleasure that sells sexually explicit materials.  Pure Pleasure is operated by DiMa Corporation.  DiMa Corporation is appellants’ tenant but is not a party to this action.

            It is undisputed that 2727 Highway 63 is located in an area where an adult bookstore is not a permitted use.  An adult bookstore is defined in the High Forest Township zoning ordinance as:

            A business engaging in the barter, rental, or sale of items consisting of printed matter, pictures, slides, records, audiotapes, videotapes or motion picture film, if such shop is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age, or if a substantial or significant portion of such items are distinguished or characterized by an emphasis on the depiction or description of “specified sexual activities” or “specified anatomical areas.”

 

It is undisputed that Pure Pleasure sells some materials characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas.  It is also undisputed that Pure Pleasure does not admit minors into the area where the sexually explicit materials are displayed. 

            Respondent High Forest Township alleges that Pure Pleasure is an adult bookstore as defined by the ordinance.  Respondent moved for a temporary injunction.  On January 9, 2003, the district court found that the use of the building at 2727 Highway 63 “constitutes an adult entertainment use within the meaning of the zoning ordinance of High Forest Township” and that such use was unlawful.  The district court ordered appellants to

cease and desist from performing or allowing any and all activities on the property at 2727 Highway 63 in High Forest Township, as those activities relate to the sale, rental, or display of items consisting of printed matter, pictures, slides, records, audiotapes, videotapes, or motion picture film, where such items are distinguished by an emphasis on the depiction or description of Specified Anatomical Areas or Specified Sexual Activities as defined within the Zoning Ordinance of High Forest Township.  

 

Appellants challenge the issuance of the temporary injunction.

 

D E C I S I O N

 

I. 

 

A district court’s decision to issue an injunction will not be overturned absent a clear abuse of discretion.  Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993).  This court views the district court’s findings of fact in the light most favorable to the prevailing party.  See Queen City Constr., Inc. v. City of Rochester, 604 N.W.2d 368, 372 (Minn. App. 1999)(stating that we view the facts alleged in the pleadings and affidavits is the light most favorable to the prevailing party), review denied (Minn. Mar. 14, 2000).

A party seeking an injunction must demonstrate that the injunction is necessary to prevent irreparable harm and that there is no other adequate legal remedy.  Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 92 (Minn. 1979).  “Its purpose is to preserve the status quo until adjudication of the case on its merits.”  Miller v. Foley, 317 N.W.2d 710, 712 (Minn. 1982).

In Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 137 N.W.2d 314 (1965), the Minnesota Supreme Court set forth five factors for the district court to consider when deciding whether to grant a temporary injunction:

(1) The nature and background of the relationship between the parties preexisting the dispute giving rise to the request for relief.

 

(2) The harm to be suffered by plaintiff if the temporary restraint is denied as compared to that inflicted on defendant if the injunction issues pending trial.

 

(3) The likelihood that one party or the other will prevail on the merits when the fact situation is viewed in light of established precedents fixing the limits of equitable relief.

 

(4) The aspects of the fact situation, if any, which permit or require consideration of public policy expressed in the statutes, State and Federal.

 

(5) The administrative burdens involved in judicial supervision and enforcement of the temporary decree.

 

Id. at 274-75, 137 N.W.2d at 321-22.  When a district court “fails to analyze the Dahlberg factors in granting a temporary injunction, the court commits error.”  Ulland v. Int’l. Ass’n. of Entrepreneurs of Am., 527 N.W.2d 133, 135 (Minn. App. 1995) (citation omitted), review denied (Minn. Apr. 18, 1995).  The order or memorandum must show that the Dahlberg analysis was completed because

[t]he determination of the individual Dahlberg factors should have taken place at the trial court level.  Absent findings, we do not know what the trial court concluded on the issues, and thus we cannot determine whether [the court’s action] constituted an abuse of discretion.

 

Bio-Line, Inc. v. Burman, 404 N.W.2d 318, 321 (Minn. App. 1987) (quotation omitted).  This requirement is consistent with the Minnesota Rules of Civil Procedure, which provide that the district courts must make “sufficient findings to permit meaningful appellate review.”  Metro. Sports Facilities Comm’n v. Minnesota Twins P’ship, 638 N.W.2d 214, 220 (Minn. App. 2002) (citing Minn. R. Civ. P. 52.01; Crowley Co. v. Metro. Airports Comm’n, 394 N.W.2d 542, 544-45 (Minn. App. 1986)), review denied (Minn. Feb. 4, 2002).   

Here, the district court made only one finding related to the Dahlberg factors.  The district court found that

[a]n analysis of the factors articulated in Dahlberg Brothers, Inc. v. Ford Motor Co., 137 N.W.2d 314 (Minn. 1965), favors the issuance of a Temporary injunction.

 

Though the district court said it analyzed the Dahlberg factors, there are no specific findings on those factors.  The court did not explain which Dahlberg factors favor the issuance of the temporary injunction.  Absent such an explanation, we cannot review the district court’s analysis of the Dahlberg factors and its ultimate issuance of the temporary injunction.  Accordingly, we reverse and remand the case for more specific Dahlberg findings.

            Appellants also argue that the temporary injunction is overly broad and that the district court erred by not requiring joinder of DiMa Corporation.  Because we conclude that the Dahlberg findings are inadequate to permit appellate review, we do not address appellants’ other arguments.   

II.

Appellants moved to strike certain pages from respondent’s appendix.  The pages consist of an affidavit of respondent’s attorney and records from the Secretary of State. 

The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  This court strikes documents included in a party’s brief that are not part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). 

The records at issue were submitted to the district court in contempt proceedings that were commenced after the issuance of the temporary injunction.  Because the records were not available to the district court when it was determining whether to issue the temporary injunction, we conclude that the records are not part of the appellate record. 

Respondent asserts that this court can take judicial notice of the records.  Judicial notice is appropriate for “facts of common knowledge not in dispute, and those for which neither expertise nor foundation is needed.”  State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985).  Here, respondent wants the court to take judicial notice of the fact that Malcom, Inc. and DiMa have the same CEO.  But appellants dispute that fact.  Accordingly, it is not appropriate for this court to take judicial notice of the records maintained by the Secretary of State.

Because the records are not part of the appellate record, and because we decline to take judicial notice of those records, the records, and all references thereto, are stricken from respondent’s brief. 

Reversed and remanded.