This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-95-2059

City of Perham,

Respondent,

vs.

Phil Hanson,

Appellant.

Filed May 21, 1996

Affirmed

Randall, Judge

Otter Tail County District Court

File No. C5-95-255

Dennis W. Happel, 100 Second Avenue Southwest, Box 157, Perham, Minnesota 56573 (for Respondent)

Zenas Baer, 331 Sixth Street, Box 249, Hawley, Minnesota 56549 (for Appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Mulally, Judge.*

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant-landowner Phil Hanson challenges a district court order terminating a temporary restraining order, denying his motion for a preliminary injunction, and continuing the effect of two previous orders of the district court that authorized respondent city to raze appellant's hazardous property. We affirm.

FACTS

Appellant negotiated the purchase of a house in July 1981. In November 1983, appellant moved the house to its current location: lots 7, 8, and 9, Block 1, Luce's Addition to Perham, Minnesota. No one has lived in the house since appellant purchased it. Currently the house has no water, electricity, or sewer hook-ups. It is in a state of disrepair. Prior to 1990, the county assessor valued the building at $7,000. In 1990, upon appellant's request, the assessor reduced the value of the building to $2,000.

In October 1994, respondent City of Perham (Perham) commenced action against appellant. First, the Perham City Council ordered appellant to meet with the city attorney and the chief of police regarding the condition of the property. Appellant did not appear. Second, the city council issued an order finding that appellant's building is

a hazardous building because of inadequate maintenance, dilapidation, physical damage, unsanitary condition, and abandonment and constitutes a hazard to public safety and health

and ordering appellant to repair and improve the house within 90 days. The order provided:

If you fail to take the corrective actions as set out hereinabove within said time limit or if you fail to file an Answer within twenty (20) days after service of this Order, the City will bring a motion before the Court for summary enforcement of this Order.

Appellant failed to file an answer.

On March 31, 1995, appellant appeared at a hearing after which, on April 10, 1995, the district court concluded that he was in default of the city council order and that he must make continuous and substantial progress toward the restoration of the premises to a safe and habitable condition by August 18, 1995. The district court also held that

if at any time before August 18, 1995, it appears to [Perham] that there is not continuous and substantial progress being made toward completing the renovations in a timely fashion, then [Perham] shall be entitled to immediately bring a motion for relief.

In June 1995, appellant appeared at a second hearing. On June 22, 1995, the district court granted Perham's motion to raze the house, finding that appellant had failed to comply with the April 10, order by not making "even minimal progress" toward renovation. However, the district court stayed enforcement of this order for three weeks to give appellant time to comply.

By August 1995, appellant had made only cosmetic improvements to the building. On August 1, Perham notified appellant that it was proceeding with the demolition of the building. On August 28, appellant petitioned for several court actions, including, inter alia:

1. That a temporary restraining order issue restraining [Perham] * * * from enforcement of the default judgment and Court Orders previously entered on April 10, 1995, and June 22, 1995, until a hearing is had on [his] application for a preliminary injunction.

2. A preliminary injunction issue enjoining [Perham] * * * from razing the [building] during the pendency of this action.

3. On a final hearing, [Perham] * * * be permanently enjoined from razing the [building].

4. Ordering an evidentiary hearing on setting aside the default judgment * * * .

The district court granted the temporary restraining order (TRO) and notified Perham to appear on September 5, to show cause why the TRO should not continue as a preliminary injunction.

On September 5, the district court conducted a hearing at which it considered appellant's affidavit "valuing" his investment in the building at $37,298. The district court allowed, as evidence, appellant's oral stipulation that his expert witness, a licensed engineer, would testify that he inspected the property on September 2, 1995, and that, in his professional opinion, the house is structurally sound. The district court reserved for itself the power to "make the legal conclusion whether it is or isn't." On September 15, the district court terminated the TRO, denied appellant's motion for a preliminary injunction, and continued the effect of the April 10 and June 22, 1995, orders.

D E C I S I O N

A trial court's findings regarding entitlement to injunctive relief will not be set aside unless clearly erroneous. LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn. 1979). Appellant argues the district court's termination of the TRO and denial of injunctive relief was clearly erroneous because: (1) he was given inadequate notice of the city council's order; (2) the hearing was flawed; and (3) the common-law factors for determining whether an injunction should lie were in his favor. We are unpersuaded.

1. Adequacy of the Notice

Appellant argues the Perham City Council failed to give him adequate notice because it did not cite the hazardous-building statute in its order and did not identify the court with which he was required to file his answer. We disagree.

A hazardous building or hazardous property is defined as

any building or property, which because of inadequate maintenance, dilapidation, physical damage, unsanitary condition, or abandonment, constitutes a fire hazard or a hazard to public safety or health.

Minn. Stat. § 463.15 (1994). A city is authorized to either order the owner of a hazardous building to correct the hazardous condition or raze the building. Minn. Stat. § 463.16 (1994). Minn. Stat. § 463.17, subd. 1 (1994) sets forth the following requirements for such an order:

The order shall be in writing; recite the grounds therefor; specify the necessary repairs, if any, and provide a reasonable time for compliance; and shall state that a motion for summary enforcement of the order will be made to the district court of the county in which the hazardous building or property is situated unless corrective action is taken, or unless an answer is filed within the time specified in section 463.18 [twenty days].

(Emphasis added.)

In this case, Perham did not cite Minn. Stat. § 463.15, but it did use its specific language. Moreover, Minn. Stat. § 463.17 only requires a city to recite grounds for removal or razing; it does not require a city to cite the specific rule or statute under which it has ordered removal or razing.

In contrast, Minn. Stat. § 144A.10, subd. 4 (1994), a statute pertaining to the enforcement of fire, safety, and health conditions in nursing homes, specifically requires that correction orders "cite the specific rule or statute violated." The legislature chose not to include similar language in chapter 463. We will not infer it. See also State v. Monsrud, 337 N.W.2d 652, 659 (Minn. 1983) (holding in a criminal case that failure to cite specific statutes is not fatal where the findings accompanying the order are clear).

Additionally, section 463.17 does not require a city to specifically identify the court in which the landowner must file his answer. The statute presumes the answer will be filed with the district court where the motion was brought, viz, the district court in which the property is located. Perham's failure to cite the statute and identify the district court did not constitute inadequate notice. At all stages, the record is conclusive that appellant had actual notice of the alleged violations and time to correct them.

2. Hearing

Appellant argues the district court should have neither terminated the TRO nor denied the preliminary injunction without first conducting an evidentiary hearing. We disagree.

Temporary injunction may be granted on the sole basis of affidavits, deposition testimony, or oral testimony in court. Minn. R. Civ. P. 65.02; see also Minnesota Medical Ass'n v. State, 274 N.W.2d 84, 96 (Minn. 1978) (Otis, J., dissenting) (stating that "by the very nature of [injunction] proceedings the presentation of evidence is greatly circumscribed"). In this case, appellant did personally appear and offer evidence at three hearings. He was allowed to make an offer of proof that his expert witness would testify that the house was structurally sound. The court accepted this offer of proof as the expert's opinion. The court also accepted into evidence photographs documenting the current condition of the house as well as appellant's affidavit setting forth the extent of his investment.

We conclude appellant was treated fairly by the district court. He had a fair opportunity to be heard.

3. Denial of preliminary injunction

We reject appellant's argument that the district court should have granted the injunction because (1) he is more harmed by the denial of the injunction than Perham would be harmed by the grant of the injunction, (2) he would likely have prevailed on the merits, and (3) the destruction of usable buildings is generally contrary to public policy. See Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965) (listing degree of harm, likelihood of success, and public policy among the five factors necessary for the issuance of an injunction).

a. Balancing the harms

Appellant argues denial of the injunction has cost him a 12-year, $37,000 investment, whereas Perham would not be harmed if appellant were allowed more time to complete the renovation. Perham argues the grant of an injunction would endanger the general welfare of its citizens because the building invites trespassers, vandals, and curious children and adds that "it is only [a] matter of time before someone is seriously injured on the premises." Appellant's argument is seriously weakened by his recent request to reduce the value of the home to a mere $2,000 for tax purposes. The public's interest in safety weighs heavily. Appellant had years to remodel and correct the offensive conditions.

b. Probability of success on the merits

Minn. R. Civ. P. 60.02(e) provides that the court may relieve a party from a final judgment or order if it is no longer equitable that the judgment should have prospective application. Appellant argues he would have likely succeeded in having the April 10, 1995, order set aside because it is no longer equitable. We disagree.

The district court considered evidence presented by both parties and found

that [Hanson] has had ample notice and time to remedy or repair said building and has not done so as required by the prior orders of the court. [Hanson]'s own attorney stated at the September 5, 1995 hearing that, although it hasn't been done over the past 12 years, such things as electricity, sewage and water hook up could be done by [Hanson] tomorrow.

Based on appellant's lack of diligence and industry, lack of attention to deadlines, city council orders, and district court orders, we conclude it was neither inequitable nor erroneous to enforce the order.

Appellant further argues he would likely succeed on the merits because the April 10, 1995, order is a "default" order and courts apply a lenient and liberal standard of review to motions to vacate default judgments. See Sommers v. Thomas, 251 Minn. 461, 468, 88 N.W.2d 191, 196 (1958) (stating that "courts should be liberal in opening default judgments").

Failure to answer, and a consequential default judgment, may be excused if the defaulting party shows that (1) it is possessed of a reasonable defense on the merits, (2) it has a reasonable excuse for its failure or neglect to answer, (3) it has acted with due diligence after notice of entry of judgment, and (4) no substantial prejudice will result to the other party. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952). Here, appellant presented no evidence tending to suggest a reasonable defense or excuse. Neither has he acted with diligence. We conclude appellant would likely not prevail in having the default order set aside.

c. Public policy

Finally, we reject appellant's argument that denial of the injunction is contrary to public policy because the authority to destroy a usable building must be exercised with great caution. See Village of Zumbrota v. Johnson, 280 Minn. 390, 394, 161 N.W.2d 626, 629 (1968) (stating that the authority to dismantle usable buildings should be exercised with "great caution") (quoting York v. Hargdine, 142 Minn. 219, 222, 171 N.W. 773, 775 (1919)).

The record indicates Perham and the district court have, in fact, gone to great lengths and exercised great caution to protect appellant's landowner rights. Perham's October 1994 order, which came only after 12 years of deterioration of appellant's property, gave appellant 90 days to make repairs. The April 10, 1995, order gave appellant until August 18, 1995 to make repairs. The June 22, 1995, order gave appellant another three weeks to comply before enforcing the August 18 deadline. Even then, Perham notified appellant that it would not start demolition until August 21, 1995. We cannot conclude from the history of this case that the district court made a rash decision when it denied the injunction and permitted the demolition of appellant's building.

Affirmed.


Footnotes

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