This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1232

 

Daniel Gregory Lumbar,

Respondent,

 

vs.

 

Raymond J. Welsh, et al.,

Appellants,

 

Mary Joan Lumbar,

Defendant.

 

Filed May 29, 2007

Reversed and remanded

Dietzen, Judge

Dissenting, Randall, Judge

 

Ramsey County District Court

File No. C9-06-5565

 

Steven P. Carlson, Hedback, Arendt & Carlson, P.L.L.P., Suite 201 Anthony Place, 2855 Anthony Lane South, St. Anthony, MN 55418 (for respondent)

 

James E. Blaney, Martin D. Kappenman, Moore, Costello & Hart, P.L.L.P., 55 East Fifth Street, Suite 1400, St. Paul, MN 55101-1792 (for appellants)

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellants, who are vendors on a contract for deed, challenge the district court order granting a temporary injunction restraining its cancellation, arguing that the district court erred in not requiring respondent to file a complaint as required by Minn. Stat. § 559.211 and in failing to properly analyze the Dahlberg factors.  We reverse and remand.

FACTS

            Appellants Raymond and Joan Welsh are the owners of a home located on Wellesley Avenue in St. Paul that is subject to a contract for deed between appellants and respondent Daniel Lumbar and his wife Mary Lumbar.  Mary Lumbar is the daughter of appellants.

            Respondent and Mary Lumbar were married in October 1994 and entered into a contract for deed with appellants to purchase the subject home that same month.  The purchase price was $150,000 with a down payment of $7,500, and the balance to be paid at the rate of $750 per month, plus some partial balloon payments, as set forth in the written agreement.  The contract for deed contains a default provision that provides “should purchaser fail to timely perform any of the terms of this contract, seller may, at seller’s option, elect to declare this contract cancelled and terminated by notice to purchaser in accordance with applicable law.” 

In February 2006, respondent and Mary Lumbar separated and divorce proceedings were commenced.  The primary asset of the marriage was the subject home.  In May 2006, appellants served respondent and Mary Lumbar with a notice of cancellation of contract for deed, asserting that respondent and Mary Lumbar had defaulted under the terms of the agreement and demanding that, in accordance with the contract, payment be made in full, plus attorney fees, for a total amount owing of about $188,000.  The statutory cancellation period expired on July 1, 2006. 

            Respondent applied for and received notice that he qualified for a loan in an amount sufficient to cure the alleged default.  Respondent then served appellants with a motion for temporary injunction to restrain the cancellation of the contract for deed, which was heard on June 22, 2006.  The district court did not conduct an evidentiary hearing but did consider affidavits and depositions.  During the hearing, appellants argued that respondent’s failure to file a complaint under Minn. Stat. § 559.211 was fatal.  The district court ordered respondent to file a complaint “immediately.”  Respondent pointed to a letter from appellants’ attorney to the title company that was working on a title commitment for the property, notifying it of the pendency of the action.  Respondent argued that by sending the letter, appellants were interfering with his ability to close on a loan to pay off the contract for deed.  Appellants denied that the letter was unjustified or unlawful. 

On June 27, the district court issued an order granting a temporary injunction restraining the cancellation of the contract for deed.  The district court rested its decision entirely on respondent’s oral-modification-of-contract claim and did not reach respondent’s other potential claims.  The order provided that respondent “shall continue to make the scheduled payments on the contract for deed,” and “Without further order of this court, the order enjoining the cancellation of the contract for deed shall expire no later than July 31, 2006 . . . .”  On July 17, 2006, respondent served appellants and defendant Mary Lumbar[1] with a summons and complaint and filed the same with the court.  This appeal follows the district court’s June order for temporary injunction. 

On July 25, the district court denied appellants’ motion to dissolve the temporary injunction, thereby continuing the temporary injunction during the appeal, and provided that appellants were not required to answer the complaint and respondent was not obligated to make any payments until further order of the court.

D E C I S I O N

I.

Appellants argue that the district court lacked authority under Minn. Stat. § 559.211 (2006) to consider respondent’s motion for temporary injunction until after respondent served and filed his summons and complaint.  Statutory interpretation is a question of law, which we review de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  When interpreting a statute, we give words their plain and ordinary meaning.  All Metro Supply, Inc. v. Warner, 707 N.W.2d 1, 5 (Minn. App. 2005); see also Minn. Stat. § 645.08(1) (2006) (words and phrases are construed according to their common and approved usage).  

Minn. Stat. § 559.21 (2006) sets forth a procedure for cancellation of a contract for the conveyance of real estate in the event that a default occurs.  The statute provides that, to terminate the contract, the seller must serve the buyer with a notice of cancellation stating the events of default and that the contract will be terminated in 60 days unless the buyer complies with the conditions in default, makes all payments due under the contract through the date that payment is made, and pays costs and the required amount of attorney fees.  Minn. Stat. § 559.21, subd. 2a.  If the buyer complies with the requirements of the notice of cancellation before the termination date, the contract is reinstated.  The purpose of the statute is to avoid the harsh result of forfeiture by allowing buyers a reasonable time to remedy their default.  Thomey v. Stewart, 391 N.W.2d 533, 535 (Minn. App. 1986).

Courts have the authority, before the termination date and subject to the provisions of the statute and Minn. R. Civ. P. 65.02, to enter an order granting a temporary injunction restraining the termination of the contract.  Specifically, Minn. Stat. § 559.211, subd. 1, provides:

In an action arising under or in relation to a contract for the conveyance of real estate or any interest therein, the district court, . . . has the authority at any time prior to the effective date of termination of the contract and subject to the requirements of rule 65 of the Rules of Civil Procedure for the District Courts to enter an order temporarily restraining or enjoining further proceedings to effectuate the termination of the contract, . . . .

 

Appellants argue that the statute requires the party seeking injunctive relief to file a complaint setting forth a cause of action that justifies enjoining the termination of the contract.  We agree. 

The statute contemplates the existence of an underlying action.  Minn. Stat. § 559.211 uses the phrases “[i]n an action arising under or in relation to a contract” and “[i]n the action, the purchaser may plead affirmatively any matter that would constitute a defense to terminate the contract.”  Minn. R. Civ. P. 65.02 has the same requirement, stating “[b]efore or after the commencement of the hearing on a motion for temporary injunction, the court may order the trial of the action . . . .”  (Emphasis added.)  We conclude that the words “an action” of Minn. Stat. § 559.211, are not superfluous and require that a motion for temporary injunction be preceded by an underlying complaint setting forth the causes of action and supporting facts.  The purpose of the requirement is two-fold—it puts the defendant on notice of the plaintiff’s causes of action so that the action can be defended and the supporting facts challenged, and it affords the district court the ability to critically analyze the legal theories and underlying facts of the case. 

Existing caselaw supports our conclusion.  In Smith v. Spitzenberger, 363 N.W.2d 470, 472 (Minn. App. 1985), the sellers on a contract for deed argued that the district court lacked authority to issue a temporary injunction under Minn. Stat. § 559.211 because respondent purchasers did not establish that an action was pending.  Our court agreed, holding that “under section 559.211 and principles of equity, a trial court may not grant injunctive relief unless an underlying cause of action exists.”  Id. (emphasis added). The Spitzenberger court reasoned that injunctive relief is a remedy and not a cause of action and that “a cause of action must exist before injunctive relief may be granted.”  Id.  Because personal service was made on the appellant sellers, and the motion hearing was held before the redemption period ended, the court held that the district court did not abuse its discretion in granting the temporary injunction.  Id. at 472-73. 

Based on the express language of Minn. Stat. § 559.211, Minn. R. Civ. P. 65.02, and our holding in Spitzenberger, the district court lacked authority to grant a temporary injunction before the filing of the complaint.  It has long been the law that time is of the essence in contract for deed cancellation proceedings.  Here, respondent delayed filing a complaint until July 17, which was over 70 days from when he received notice of cancellation, and well after the motion hearing and the order granting the injunction.  Respondent could have filed the complaint in May when the situation he faced should have been clear to him.  Had respondent acted promptly as required by statute, he would have avoided the problem.  Thus, the district court erred in failing to apply the statute. 

II.

Respondent argues that we should address the underlying merits of the district court’s order granting the temporary injunction in the interests of fairness and equity.  See D.J. Enters. of Garrison, Inc. v. Blue Viking, Inc., 352 N.W.2d 120, 121-22 (Minn. App. 1984).  We agree to review the claims considered by the district court, even though we conclude that respondent failed to satisfy the requirements of the statute and rule 65.02.

We review the decision to grant a temporary injunction enjoining the cancellation of a contract for deed for an abuse of discretion.  Eide v. Bierbaum, 472 N.W.2d 193, 194 (Minn. App. 1991).  A temporary injunction is an extraordinary equitable remedy.  Miller v. Foley, 317 N.W.2d 710, 712 (Minn. 1982). It is meant to preserve the status quo pending an adjudication on the merits. Id. The grant of a temporary injunction neither establishes the law of the case nor constitutes an adjudication of the issues on the merits. Indep. Sch. Dist. No. 35 v. Engelstad, 274 Minn. 366, 370, 144 N.W.2d 245, 248 (1966).

Minn. R. Civ. P. 52.01 requires that the district court set forth the findings of fact that constitute the grounds of its action in granting or refusing the temporary injunction.  Ensco Int’l, Inc. v. Blegen, 410 N.W.2d 11, 13 (Minn. App. 1987).  Absent exceptional circumstances, the district court’s failure to make findings of fact when granting a motion for temporary injunction is an abuse of discretion.  State v. Gartenberg, 488 N.W.2d 496, 498 (Minn. App. 1992).  Here, the district court failed to make specific findings of fact. 

Minnesota courts have developed a five-factor test to consider in determining whether an injunction should be issued.  Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965).  The third Dahlberg factor, which is a likelihood that one party will prevail on the merits, is the most important factor.  See  Minneapolis Fed’n of Teachers, AFL-CIO, Local 59 v. Minneapolis Pub. Sch., Special Sch. Dist. 1, 512 N.W.2d 107, 110 (Minn. App. 1994) (stating that probability of success in the underlying action is a “primary factor” in determining whether to issue a temporary injunction), review denied (Minn. Mar. 31, 1994).  The party seeking the temporary injunction must demonstrate a reasonable probability of success at trial on the merits of the action.  Queen City Construction, Inc. v. City of Rochester, 604 N.W.2d 368 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000).    

Here, the district court’s decision to grant the temporary injunction relied on  respondent’s oral-modification-of-contract claim.  The district court concluded that “based on the relationship of the parties, there may have been modifications to the contract for deed that were not in writing.  If modifications were made, there is a serious question concerning whether there actually is a breach of the contract for deed.  Due to the question of whether there is actually a breach, this factor weighs in favor of granting injunctive relief.” (Emphasis added).  We disagree.

Article 28 of the agreement provides:  “This contract may not be modified, amended or changed orally, but only by an agreement in writing signed by Purchaser and Seller.”  Respondent argues that the contract was modified in a conversation between Mary Lumbar and appellants.  Specifically, he contends that they mutually agreed that late payments would not constitute a default under the agreement.

Contracts for the sale of land are subject to the statute of frauds.  Minn. Stat. § 513.05 (2006); McLaughlin v. Heikkila, 697 N.W.2d 231, 233 (Minn. App. 2005), review denied (Minn. Aug. 24, 2005).  But the method or time of performance under a land-sale contract may be modified orally without violating the statute of frauds.  Thoe v. Rasmussen, 322 N.W.2d 775, 777 (Minn. 1982).  When a party asserts that there has been an enforceable oral modification of the terms of a written contract, that party has the burden of proving the modification of the written contract by clear and convincing evidence; the burden is not met by a mere preponderance of the evidence.  Bolander v. Bolander, 703 N.W.2d 529, 541 (Minn. 2005), review dismissed (Minn. Nov. 15, 2005).

Here, the relevant admissible facts do not support a reasonable probability of success on respondent’s oral-modification-of-contract claim.  Specifically, the affidavit of Mary Lumbar states, “[A]t no time did we make any oral agreement changing or modifying the terms of the Contract for Deed.”  Appellant Raymond Welsh also submitted an affidavit of similar import.  During his deposition, respondent conceded that he did not know if the contract was modified and that appellants never stated to him that the contract was modified.  Further, the contract specifically provides that the failure to enforce a right or remedy for a late payment “shall not be a waiver” of such right or remedy or preclude the exercise of the right at a future date.

Second, we are compelled to address the issue of respondent’s potential claim of tortious interference with prospective contractual relations.  The district court wisely did not reach respondent’s potential claim in its order, and respondent did not brief the issue on appeal.  Consequently, we do not reach the issue on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (statute-of-limitations issue that had been raised in, but not decided by, the district court would not be addressed on appeal); see also In re Petition for Improvement of County Ditch No. 86, 625 N.W.2d 813, 816 n.2 (Minn. 2001) (holding when reviewing the grant of a temporary injunction, appellate courts will “not decide” legal issues that have not yet been addressed by the district court); Rehberger v. Project Plumbing Co., 295 Minn. 577, 578, 205 N.W.2d 126, 127 (1973) (stating that even though a  question was raised in the district court, it should not be decided on appeal “if it was not passed on by the [district] court.” 

We do observe, however, that respondent’s claim relied on a letter from appellants’ attorney to the title company to support his argument.  But respondent failed to introduce any admissible evidence establishing that the letter notifying the title company of the pendency of the action was unjustified or unlawful.  See Minn. Stat. § 557.02 (2006) (stating that in all actions involving an interest to real property, any party may file for record with the county recorder notice of the pendency of the action).  Minn. R. Civ. P. 65.02 requires that an order granting a temporary injunction be based on relevant admissible evidence. Id.(“A temporary injunction may be granted if by affidavit, deposition testimony, or oral testimony in court, it appears that sufficient grounds exist therefor.”). 

Appellants’ counsel’s letter to the title company may not be sufficient as a matter of law to establish a claim for torious interference with contractual relationships.  See United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 633 (Minn. 1982); see also R.A., Inc. v. Anheuser-Busch, Inc. 556 N.W.2d 567, 570 (Minn. App. 1996) (stating that the elements of the claim are (1) existence of a contract; (2) alleged wrongdoer’s knowledge of the contract; (3) wrongdoer’s intentional procurement of its breach; (4) without justification; and (5) damages); see also Minn. Stat. § 557.02.

We also observe that the procedural posture of this case is unique.  Specifically, the temporary injunction enjoining cancellation of the contract has remained in effect during the pendency of the appeal, or about ten months.  And respondent has now filed a complaint setting forth his causes of action and the supporting facts.  Thus, the circumstances may have changed, and the district court may choose to review the motion for temporary injunction and conduct an evidentiary hearing in light of the complaint. 

            Reversed and remanded.  

RANDALL, Judge (dissenting). 

I respectfully dissent. 

The majority does not state all the facts pertinent to a discussion of the equity principles needed when enjoining a cancellation of the contract for deed.  Then the majority includes, as part of its legal analysis:  “Absent exceptional circumstances, the district court’s failure to make findings of fact when granting a motion for temporary injunction is an abuse of discretion.  Here, the district court failed to make findings of fact.”  (citation omitted).

In examining the record, I conclude the district court put in writing in its seven-page “Order for Temporary Injunction and Memorandum” 100% of the facts needed to explain what it did and why it did.  The district court’s carefully drafted order shows that respondent has a “perfect likelihood of success on the merits,” meaning, if we affirm the district court, appellant sellers will get back every single penny of interest, unpaid principal, and costs that they are entitled to, or they will get the property back.  There is absolutely no downside to affirming the district court’s grant of this temporary injunction.  By reversing, this court intentionally helps appellant strip respondent of all of his equity in the homestead.  The district court recognized that, and appellants’ counsel conceded that when it stated on the record that it was their intent to prevent respondent from paying off the contract for deed and salvaging his equity in the homestead.  If we affirm the district court, respondent does not get all of the homestead.  It is a marital asset which will be equitably split during the parties’ dissolution.  That is all that respondent is after; that is exactly what the district court gave him a chance to salvage by giving him a short window to hold off appellant’s concerted efforts to strip him of his rights in his own homestead.

Here are the relevant facts.  While respondent Daniel Lumbar and defendant Mary Lumbar were married, her parents, Raymond and Joan Welsh, sold the couple the home at issue on a contract for deed.  As is normal on an arrangement like this, when “marriage is bliss,” the Lumbars lived there and while they made a substantial amount of payments, there were times when they fell behind.  We know substantial payments toward the contract for deed obligation were made because as of June 2006, payments totaling $121,434.51, counting principal and interest, had been paid on the contract.  At that point in time, the unpaid total needed to satisfy the contract for deed was $188,426.15 plus statutory attorney fees and costs.

It is true that one could say that, at times, the contract for deed was “technically in default,” but in all those times appellants Mr. and Mrs. Welsh took absolutely no legal action to cancel the contract for deed.  Appellants’ attempts to cancel the contract for deed started immediately after the Lumbars started the dissolution action.  Respondent, realizing the joint obligation of defending Mary Lumbar and himself to cure the defaults and/or totally refinance so that the Welshes would get all their money, started discussions with finance companies to borrow the needed sums to fully perform on the contract for deed.  His soon-to-be ex-wife, Mary Lumbar, did not join in his efforts to refinance and pay off the contract for deed, but rather took the position that it was in default and should go back to her parents; also she took the position that there was nothing she could do about that and she would actively block any attempts by respondent to pay off the contract for deed (if he paid off the contract for deed, the paid-for home and its substantial equity would be a marital asset and he would get a fair share in the dissolution).  If he failed to refinance and pay it off, the property, plus all the prior payments would revert to her parents, the Welshes.  They would then be in a position, if they wanted to, to sell or allow their daughter to remain in the house on whatever friendly terms they decided.

At the oral hearing on respondent’s motion to enjoin the statutory cancellation, appellants’ counsel acknowledged that appellants’ intent was to prevent respondent from paying off the contract for deed.  The district court went so far as to call their behavior “outrageous.”

Respondent got what he thought was the financing needed to pay off the contract for deed in place.  But then it came out that the title company was withholding an approval letter based on a negative letter from appellants’ attorney discussing the pending notice-of-cancellation action and other debts that appellants claim respondent owed them.  Then, when respondent brought a motion to enjoin the cancellation of the contract for deed, defendant Mary Lumbar refused to join in that motion.  Respondent persevered and had a closing on his needed loan to completely pay off the contract for deed scheduled for July 7, 2006.  Because they were still married, Mary Lumbar’s presence and signature at the closing was needed (no monetary exposure to her because the deal was set up that Daniel Lumbar would be solely responsible for the needed amount).  Mary Lumbar failed to appear at the closing, and in a subsequent action against her for failing to cooperate, she claimed “a lack of time to review the documents.”

This is the background for why the district court did what it did; it was to fully protect the rights of appellants, the Welshes, to receive every penny they had coming, or get the property back, but at the same time to give Daniel Lumbar a short window of time to protect the equity in a marital asset.

In February 2006, Daniel Lumbar started a dissolution action against Mary Lumbar.  On May 1, the Lumbars were served with a notice of cancellation of the contract for deed, calling on them to come up with $188,246 plus statutory costs within 60 days of service.  On June 8, 2006, Daniel Lumbar moved for a temporary injunction in district court to forestall the cancellation of the contract for deed and pointed out that he had qualified for financing but that the title company was holding off based on the above-mentioned negative letter from appellants’ attorney.  Daniel Lumbar also asked the Ramsey County District Court to transfer jurisdiction to Hennepin County so that his motion to enjoin could be determined along with the marital dissolution.  Ramsey County did not transfer jurisdiction on the cancellation of contract for deed, but rather exercised its authority and made specific findings enjoining appellants for a short time (33 days) from any further proceedings to effectuate the termination of the contract for deed.  To get this done expeditiously for both parties, the district court ordered appellants to execute a warranty deed in favor of the Lumbars and deliver it to the title company to be held in escrow until respondent Daniel Lumbar closed on a loan and fully paid off appellants.  The injunction order would be lifted on July 31, 2006, if Daniel Lumbar had not fully complied with the order.  The appellants complied with the judge’s order and delivered the warranty deed to the title company.  The appropriate documents to process Daniel Lumbar’s loan were written up and given to Mary Lumbar to review.  A closing on that loan was scheduled for July 7, 2006.  As stated above, Mary Lumbar blew the closing by simply failing to appear.

On July 17, 2006, respondent filed a summons and complaint in Ramsey County District Court claiming, among other things, unjust enrichment by the Welshes and Mary Lumbar, fraud and misrepresentation, and injunctive relief.  That action was started on July 17, 2006, well before July 31, 2006, the short time the district court gave respondent to fulfill his part of the contract for deed.

Pertinent parts of the district court’s detailed order stated, with particularity, everything I have listed above.

1.         The Welshes and Mary Lumbar were enjoined from any further proceedings to effectuate the termination of the contract for deed on the Lumbar property until midnight, July 31, 2006 (the oral motion was heard on June 22, 2006, and was dated and signed June 27, 2006).

2.         The Welshes were required to immediately execute a warranty deed in favor of the Lumbars and to deliver it to Excelsior Title to be held in escrow until Daniel Lumbar closed on his pending loan and fully paid off the Welshes.

3.         Defendant Mary Lumbar was ordered to cooperate with Excelsior Title in immediately executing all documents deemed reasonable and necessary by that title company to permit the closing of the loan to Daniel Lumbar and in an amount needed to fully pay off the Welshes’ contract for deed.

4.         The district court protected Mary Lumbar by ordering that any cooperation and document signing by her would not obligate her to repay or be liable on any loan take out by Daniel Lumbar.

5.         The court stated that without any further order, its “[o]rder enjoining the cancellation” would expire no later than July 31, 2006 or earlier if there was confirmation that Daniel Lumbar did not qualify for a loan needed to satisfy the default and the monies owed the Welshes. 

Thus, the district court went out of its way to protect Mary Lumbar and to protect the Welshes, and simply gave Daniel Lumbar a 33-day window to pay all the money owed.  Ten days after the order was signed, the loan to satisfy the contract for deed was in place.  Mary Lumbar thwarted that closing by failing to appear.

In the district court’s memorandum of law, it referenced the fact that the Welshes’ attorney had negatively interfered with Daniel Lumbar’s attempt to refinance the property by contacting the title company and putting them on notice of the cancellation action, and the claim by the Welshes that other monies were owed by the Lumbars to them.  All of this, of course, would be moot if Daniel Lumbar had been allowed to refinance and fully pay off the Welshes.

As part of its reason for granting injunctive relief, the district court, in its memorandum, discussed a long period of forbearance by the Welshes over accepting missed payments from their daughter and son-in-law and that they all changed shortly after Daniel Lumbar started a dissolution action against Mary Lumbar.  The district court also expressed its concerns,

regarding Defendant Mary Lumbar’s inexplicable refusal to join in the challenge to cancellation of the contract for deed and the redemption of the contract which would prevent the loss of one of her marital assets.  There is a question concerning whether the family relationship between the Welsh’s and Defendant Mary Lumbar actually created modification to the contract for deed that were not memorialized in writing.  Because there is a question of modification of the contract based on the relationship of the parties, this factor weighs in favor of injunctive relief.

 

Appellants have no standing in equity in this case and the law is not that clear that they are entitled to legal relief.  Both sides quote the same black-letter law and work off the Spitzenberger case.  Smith v. Spitzenberger, 363 N.W.2d 470, 472 (Minn. App. 1985).  What Spitzenberger and other cases have in common is that through the principles of equity and equitable estoppel, somehow an action was found to be commenced during the 60-day cancellation of contract time frame.  Here, the action was started on July 17, 17 days after that 60-day period had expired, but 14 days before the July 31, 2006 injunction would be lifted.  Respondent fully complied within the court-ordered time frame, including having the entire financing in place, which would have mooted the yet-to-be-tried actions on “who could cancel whom.” 

Every case cited by the majority is distinguishable on this basis.  In none of those cases was there a valid court order both enjoining the cancellation of the contract for deed and giving the buyer a short time frame to comply.  On appeal, at oral argument, respondent’s attorney, when asked why he had not started a separate action, replied, with common sense, that they had a hearing on June 22, the order was not signed until June 27, and they had a closing lined up for July 7.  Since it was their intention to pay off the contract for deed balance in full at the July 7 closing, within the time of the temporary injunction the district court gave us, why would they go out of their way to draw up the legal papers to start a separate cause of action, which would be moot within a week.

Yet, that remains appellant’s and the majority’s only point.  They argue that since between May 1 and July 1, 2006, respondent did not commence a separate action, what the district court did was null and void for lack of jurisdiction.  I strongly disagree.  As noted above, more than once, the district court took careful steps to protect Mary Lumbar and to protect her parents, so within just over a month, they would get all the money due them or they would get the property back.  Without the injunction, and without Mary Lumbar’s ordered compliance (which she reneged on), the marital property, the homestead, would pass out of the Lumbars’ hands and back to her parents.

Our entire system of equity jurisprudence is predicated upon the notion that “a party having a legal right shall not be permitted to avail himself of it for the purposes of injustice, or fraud, or oppression, or harsh and vindictive injury.”  Follingstad v. Syverson, 160 Minn. 307, 312, 200 N.W. 90, 92 (1924) (quoting Joseph Story, Equity Jurisprudence § 1728 (14th ed.)).  Here, the appellants’ right to cancel the contract for deed was weighed against the fact that respondent had paid a large amount on the house and his wife and her parents were not cooperating with respondent’s attempts to pay the remaining balance.  The weighing of these facts is implicit in the district court’s decision to grant a temporary injunction.

Too much emphasis in this case was placed on the Dahlberg factors.  First, the district court did discuss them in its order.  Secondly, and more importantly, the entire issue would have been moot and this appeal would have been unneeded if, on July 7, 2006, Daniel Lumbar would have been allowed to go through with his closing and pay off the Welshes.

There is nothing to be gained by reversing the wide discretion of a district court to grant a temporary injunction except to strip Daniel Lumbar of his fair share of the equity in a marital asset.  There is nothing to be lost by affirming the district court’s granting of a temporary injunction because, with particularity, it protected the individual rights of Mary Lumbar, her parents the Welshes, and respondent Daniel Lumbar.

I dissent and would have affirmed the district court.