This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Bloomington Housing Partners II,
Filed April 25, 2006
Toussaint, Chief Judge
Daniel R. Kelly, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402 (for respondent)
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellants Brian T. Carlson and Susan B. Carlson challenge the district court’s denial of their motion to temporarily enjoin respondent Bloomington Housing Partners II, a Minnesota Limited Partnership, from canceling a purchase agreement for a condominium. Respondent moves to strike portions of appellants’ brief. Because portions of appellants’ briefs should be struck as outside the record, respondent’s motion to strike is granted in part. Because the district court did not abuse its discretion in applying the Dahlberg factors, we affirm its denial of the temporary injunction.
On April 4, 2004, appellants Brian and Susan Carlson entered into a purchase agreement with Bloomington Housing Partners I (BHPI) for a “townhome-style condominium unit” in a common-interest community. BHPI and respondent are owned and managed by the same individuals and entities and use the same sales office, sales personnel, form purchase agreements, and association and disclosure statements.
In October 2004, appellants decided they would prefer a less expensive “flat-style condominium unit” in the same project. The flat-style units were sold by respondent. On October 10, 2004, appellants executed documents to (1) cancel the April 4 agreement with BHPI; (2) transfer and get a refund of some of the earnest money paid at the time of the April agreement; and (3) enter into a second purchase agreement for a flat-style condominium with respondent.
In December 2004, “some things had changed with respect to [appellants’] personal situation and [they] decided [they] no longer wanted to purchase the condo unit.” They asked respondent to cancel the agreement and refund the earnest money, but respondent refused. When appellants later complained to respondent that they were entitled to a new disclosure statement for the new contract, respondent’s counsel provided them with a “courtesy” copy of the same disclosure statement originally provided to appellants with the April agreement. Respondent’s counsel clarified that the same disclosure statement covered both the townhome- and flat-style-condominium units in the development and asserted that the “rescission period with respect to the purchase of any unit . . . began to run” upon appellants’ receipt of a disclosure statement in April and that the courtesy copy would not restart the statutory rescission period.
Appellants’ attempts to cancel the October purchase agreement were followed by respondent’s commencement of a statutory cancellation proceeding. On April 8, 2005, appellants, pro se, filed a complaint and motion for an order enjoining the cancellation of the purchase agreement and returning the earnest money to appellants. The motion was heard on April 18, and the following day the court denied it. Appellants filed a notice of appeal, and respondent filed a motion to strike portions of appellants’ briefs.
D E C I S I O N
Respondent moves to strike portions of appellants’ briefs containing arguments not raised in the district court. Specifically, respondent seeks to strike arguments that (1) appellants would suffer irreparable harm if the purchase agreement were cancelled because they would lose their breach-of-contract claims, (2) the purchase agreement contained a provision making its terms exclusive and disclaiming any prior agreements, and (3) additional errors invalidate the condominium declaration and disclosure statement.
Loss of Breach-of-Contract Claims. Appellants argue that they will be irreparably harmed if the purchase agreement is cancelled because their breach-of-contract claims will not survive. The district court specifically determined that the balancing of harms would not favor an injunction because, even if the injunction were denied and the contract cancelled, appellants could still pursue their breach-of-contract claims. There is no transcript of the hearing, and no other document in the record indicates that appellants raised this issue before the district court filed its order. Nevertheless, the order indicates that the district court considered and decided the issue. Therefore, this court will review the issue on appeal.
Appellants submitted to this
court an affidavit stating that they raised the issue of the loss of their breach-of-contract
claims to the district court and attached a letter that they filed with the
district court the day after the hearing.
“A temporary injunction may be granted if by affidavit, deposition
testimony, or oral testimony in court, it appears that sufficient grounds exist
Purchase Agreement “Zipper” Clause. Respondent argues that appellants never raised in the district court paragraph 24 of the purchase agreement or its effect on the motion for an injunction. Appellants did argue to the district court that the October purchase agreement required a new disclosure statement, but did not cite or discuss this particular clause of the agreement. Nevertheless, any court considering whether the purchase agreement required another disclosure statement would necessarily read the entire agreement before evaluating a party’s likelihood of success on the merits of its breach-of-contract claim. Therefore, this court, too, will consider the entire agreement in evaluating the district court’s decision.
Inaccuracies in the Condominium Documents. Respondent also argues that appellants made only general arguments regarding the declaration and disclosure statement to the district court but add six new specific arguments in their reply brief on appeal. This accurately describes the record. The district court order addressed the only argument raised by appellants below—that the April disclosure statement did not cover the unit purchased in October and that they were entitled to a second disclosure statement, with a notice of right to rescission, at the time they executed the October agreement.
This court’s review is
necessarily limited to issues that the record establishes were “actually raised
in, and decided by, the trial court.” In re Estate of Magnus, 436 N.W.2d 821,
In conclusion, appellants’ motion to strike is granted in part and denied in part. This court will strike the portions of appellants’ briefs and affidavit (1) containing or referring to the letter filed with the district court after the temporary-injunction hearing; (2) attempting to supplement the record; and (3) arguing inaccuracies in the condominium documents not raised below.
decision on whether to grant a temporary injunction is left to the discretion
of the district court and will not be overturned on review absent a clear abuse
of that discretion. Carl Bolander & Sons v.
The Relationship. The district court found that the parties were in “comparable” bargaining positions because respondent was a real-estate-development company and appellant Brian Carlson was a seasoned attorney. Carlson argues that this was an abuse of discretion because it would take years for him to become thoroughly versed in condominium law. We agree with the district court that the facts do not suggest unfair bargaining positions requiring special or equitable relief for appellants.
Carlson successfully negotiated the April real-estate transaction and was sophisticated and knowledgeable enough to re-negotiate a different and preferable purchase after the rescission period had run on the first transaction. He was not a layperson in this transaction and has further demonstrated his competence and knowledge of the issues by representing himself and his wife in this litigation.
Balancing of Harms. Appellants alleged that they would suffer irreparable harm if they lost their right to purchase the condominium and lost their earnest money. The district court determined that appellants would not suffer irreparable harm if the purchase agreement were cancelled. The district court also found that appellants could still pursue their breach-of-contract and wrongful-cancellation claims but that they had the option of closing on the property and losing nothing. The court stated that appellants might forfeit their earnest money, but respondent may lose “thousands of dollars in carrying costs by delaying its ability to complete construction and close on a sale of the unit.”
It is well established that
appellants’ primary argument for irreparable harm, loss of their earnest money,
is not independently sufficient to provide a basis for injunctive relief. Miller
v. Foley, 317 N.W.2d 710, 713 (
In weighing the harm to the parties, the district court found that appellants had indicated that they would still like to close on the property and that they still had that option, which would have precluded any loss. It also found that respondent had shown substantial harm if the cancellation were enjoined. Viewing the facts in the light most favorable to respondent, the district court did not abuse its discretion in determining that appellants had not demonstrated irreparable harm if the injunction did not issue.
Likelihood of Success on the Merits. The district court found it apparent from the documents in the record that appellants had received the disclosure statement prior to entering the second purchase agreement and that they were not entitled to another period of rescission. Accordingly, the court determined appellants were unlikely to prevail on the merits.
In addition to the documentary evidence presented to the district court, appellants’ affidavit in support of their motion for injunctive relief clearly indicates that they initially sought cancellation of the second purchase agreement because they had changed their minds. When the seller refused to cancel the second agreement, appellants began developing a laundry list of alleged technical errors in the seller’s documents. After reviewing the facts and documents in the light most favorable to respondent, we conclude there was no abuse of discretion in the district court’s determinations that appellants were not entitled to a second disclosure statement and that their right to rescind had expired.
Public Policy. The district court stated that nothing in the fact situation required consideration of public-policy issues. Although important public policies underlie the statutes governing both cancellation of the agreement and condominium sales, consideration of these policies does not compel issuance of an injunction in this case.
Administrative Burden. Appellants do not dispute the district court’s determination that there would be no administrative burden resulting from an injunction.
In summary, the district court did not abuse its discretion in applying the Dahlberg factors to the facts presented and denying the temporary injunction.
Affirmed; motion granted in part.