author: STONEBURNER, Judge.

text:
    STATE of Minnesota, by its Attorney General, Mike HATCH, Respondent, v. CROSS COUNTRY BANK, INC., et al., Appellants.
    No. A05-205.
    Court of Appeals of Minnesota.
    Sept. 13, 2005.

      Mike Hatch, Attorney General, Erik A. Lindseth, Assistant Attorney General, St. Paul, MN, for respondent.
    Alan H. Maclin, Margaret K. Savage, Briggs & Morgan, P.A., Minneapolis, MN; and Burt M. Rublin (pro hac vice), Ballard, Spahr, Andrews & Ingersoll, L.L.P., Philadelphia, PA, for appellants.
    Considered and decided by PETERSON, Presiding Judge; HALBROOKS, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Respondent State of Minnesota sued appellants, a bank that issues credit cards and the company that collects payment on the cards, alleging violations of the Uniform Deceptive Trade Practices Act, Consumer Fraud Act, Automatic Dialing-Announcing Devices Act, and the tort of invasion of privacy by intrusion upon seclusion. In this appeal, appellants challenge the district court’s denial of their motion to compel arbitration of the tort claim and grant of a temporary injunction governing collection procedures. We affirm in part and reverse in part.

FACTS

Appellant Cross Country Bank (CCB) is a Delaware-based, state-chartered bank that issues credit cards to consumers in the “subprime” market, i.e., people with a poor credit rating or low income. Appellant Applied Card Systems, Inc. (ACS) is a Delaware corporation that performs credit-card-servicing functions for CCB, including collection of delinquent accounts.

Respondent, the Minnesota Attorney General (the state), sued CCB and ACS, alleging that ACS’s collection procedures violate the Deceptive Trade Practices Act (Minn.Stat. § 325D.44, subd. 1 (2004)) (DTPA); Prevention of Consumer Fraud Act (Minn.Stat. § 325F.69, subd. 1 (2004)) (CFA); and Automatic Dialing-Announcing Devices Act (Minn.Stat. § 325E.26 (2004)) (ADADA). The state also asserted a tort claim of invasion of privacy, specifically, intrusion upon seclusion.

The state requested relief in the form of: (1) a declaratory judgment that appellants violated the statutory provisions and committed tortious invasions of privacy on multiple occasions; (2) an injunction preventing appellants from engaging in the acts described in the complaint and/or otherwise violating the statutes invoked or committing further tortious invasions of privacy; (3) judgment for civil penalties under Minn.Stat. § 8.31, subd. 3 (2004), for each violation of the statutes and for each tortious invasion of the privacy of a Minnesota citizen; (4) “restitution under the par-ens patriae doctrine, Minn.Stat. § 8.31, the general equitable powers of this court ... and any other authority for all persons injured by [appellants’] acts”; and (5) costs and attorney fees.

The state moved for a temporary injunction enjoining appellants’ further violations of Minnesota statutes and acts of intrusion upon seclusion. The state submitted affidavits of CCB credit-card holders; card holders’ family members, acquaintances, employers, and colleagues; people who assert that they received collections calls for CCB card holders whom they did not know, and former ACS employees. The affidavits describe a variety of allegedly unfair, deceptive or fraudulent, abusive, illegal, and intrusive practices by ACS debt collectors, including:

• calling consumers multiple times per day or multiple times within a very short period of time;
• calling consumers on holidays such as Easter and Labor Day;
• referring to consumers as “idiot,” “assh-,” “thief,” “b-,” or “liar” and telling a consumer that the collector was “more important than your f — ing child” or that the consumer “talk[s] like a black person”;
• ignoring or claiming not to have received multiple requests to stop calling for consumers unknown to the person answering the telephone or to stop calling card holders at their workplaces;
• tying up workplace phones in a hospital and a group home by making multiple calls in a short space of time;
• providing personal financial information to card holders’ colleagues and work supervisors;
• calling homes as early as 6:30 a.m. and as late as 11:00 p.m.;
• using an auto-dialing machine to give consumers pre-recorded messages without first obtaining permission to send such messages;
• threatening legal action that was never taken;
• threatening to foreclose on card holders’ homes and/or repossess all their possessions;
• threatening to report card holders to immigration authorities;
• identifying themselves by aliases or misleading titles, such as “Adam Dunn, Director of Federal Fraud Investigations”;
• adopting misleading tones of voice to “trick” phone answerers into believing it was a friend calling or that an emergency had occurred;
• engaging in a practice called “assumptive pay-by-phone,” which involves hurriedly giving a consumer a confirmation number while falsely asserting that the customer has permitted payment of a balance, and if the customer accepts the confirmation number, withdrawing funds from the customer’s account;
• withdrawing money from customer bank accounts without any prior authorization, by using bank routing numbers from checks tendered for previous payments;
• agreeing to accept a certain amount as payment to bring an account out of delinquency status or settle an account, but later asserting that the amount paid was not enough, assessing additional late fees and over-limit penalties, and attempting to collect an additional balance;
• deliberately withholding information about the actual payoff balance of an account, so that customers would pay only the balance due as of the date of the inquiry, believe they were paying in full, and would be charged additional late fees for the balance of accrued interest that was not paid off.

Some affidavits allege physical and emotional harm from such practices, including increased stress and exacerbated or potential exacerbation of heart disease, diabetes, and other pre-existing health problems. A number of affidavits from ACS employees relate that they engaged in these practices or witnessed other collectors doing so, and that ACS management either explicitly required the use of such tactics or tacitly encouraged it, such as by ignoring or not investigating employee complaints.

Appellants moved (1) for partial dismissal on the grounds that the state did not have proper parens patriae standing to bring a tort claim for invasion of privacy, (2) to compel arbitration of the state’s “parens patriae” elaim(s), and (3) to strike an affidavit of appellants’ former general counsel.

Appellants submitted affidavits from current and former ACS employees. These affidavits state that the allegations from former ACS employees are false, that the alleged activities were prohibited by ACS’s policies and that any collector caught violating the policy would be terminated. ACS’s site manager for the Beck-ley, West Virginia, facility; a manager; and a unit supervisor from the same facility, stated in largely identical affidavits that they would not have permitted actions in violation of the policies, never instructed anyone to disregard the policies, and that any supervisor caught advising collectors to disregard the policies would also be subject to termination. These individuals also denied that management pressured or counseled violation of policies or that any collectors ever committed more than minor infractions and asserted that collectors were counseled when they committed an infraction.

Appellants also submitted affidavits detailing their use, beginning in late 2002, of a collections-monitoring system called “Total View,” alleged to provide a more proactive monitoring of collector practices, such as tracking the total number of calls made to a particular phone number. They also submitted an expert’s affidavit detailing his observations of current collection activities and opinion that the collection practices more than complied with relevant industry standards and laws and regulations. Finally, without submitting the telephone records, appellants submitted an affidavit of a current employee describing ACS’s phone records and how those records could demonstrate the number of total calls made to a consumer’s phone (with the ultimate goal of proving that the affidavits submitted by the attorney general exaggerated the total number of calls made to each affiant).

The district court denied appellants’ motion to compel arbitration and granted the state’s request for a temporary injunction. The district court based denial of the motion to compel arbitration on the conclusion that the state, as parens patriae, is not a party to the arbitration clause contained in CCB’s contracts with card holders and has not agreed to arbitrate. The district court also stated: “[appellants’] motion to compel arbitration of four claims brought by the State would unnecessarily complicate the case.”

The temporary injunction generally restrains appellants from violating the statutory provisions cited in the complaint and imposes specific limitations on appellants’ practices with regard to collection of customer accounts to prevent intrusion upon seclusion. In analyzing the request for temporary injunctive relief, the court discussed the Dahlberg factors and determined that the “balance of harms,” likelihood of success on the merits, and the “public policy” factors all favored injunc-tive relief. The injunction was entered after the court denied appellants’ motion to modify the injunction. This appeal, challenging the district court’s denial of appellant’s motion to compel arbitration and grant of the temporary injunction, followed.

ISSUES

1. Did the district court err by denying appellants’ motion to compel the state to arbitrate its claim for tor-tious intrusion upon seclusion?

2. Did the district court err by granting injunctive relief without making a finding that the state would suffer irreparable harm and that legal remedies were inadequate?

ANALYSIS

I. Denial of motion to compel arbitration of tort claim

This court reviews de novo the denial of a motion to compel arbitration. Johnson v. Piper Jaffray, Inc., 530 N.W.2d 790, 795 (Minn.1995). Appellants assert that the state, acting under its parens patriae authority, has stepped into the shoes of CCB card holders and is therefore subject to the arbitration agreement contained in CCB’s contracts with card holders. Appellants suggest that, because the facts underlying the state’s claim are the same facts that would permit private relief, the state is necessarily seeking to protect only private interests.

The state argues that appellants’ position ignores basic contract-interpretation principles and reflects a fundamental misunderstanding of the parens patriae standing doctrine. We agree.

Arbitration is a matter of contract, and a party that has not agreed to arbitrate a dispute cannot be required to arbitrate. AgGrow Oils, L.L.C. v. Nat’l Union Fire Ins. Co., 242 F.3d 777, 780 (8th Cir.2001). Under long-standing contract-law principles, a nonparty to a contract generally will not be bound by that contract. See, e.g., Rausch v. Julius B. Nelson & Sons, Inc., 276 Minn. 12, 19, 149 N.W.2d 1, 6 (1967). In this case, there is no question that the state is not a party to CCB’s credit-card agreement, which binds only persons “who applied to [CCB] for ... a credit card account.” The question is whether the state is bound by the arbitration agreement in individual card holders’ contracts with CCB under some other theory.

The state relies on E.E.O.C. v. Waffle House, 534 U.S. 279, 293-96, 122 S.Ct. 754, 764-65, 151 L.Ed.2d 755 (2002), in which the United States Supreme Court held that the EEOC was not required to arbitrate a suit it brought pursuant to its authority to enforce the Americans with Disabilities Act (ADA), even though the employee on whose behalf the claim was pursued had signed an employment contract that contained a mandatory arbitration clause, and the EEOC sought victim-specific relief. In Waffle House, the court stated: “we are persuaded that ... whenever the EEOC chooses ... to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest ... even when it pursues entirely victim-specific relief.” Id. at 295-96, 122 S.Ct. at 765.

If it were true that the EEOC could prosecute its claim only with [the employee’s] consent, or if its prayer for relief could be dictated by [the employee], the [circuit] court’s analysis might be persuasive. But once a charge is filed, the exact opposite is true under the statute — the EEOC is in command of the process.

Id. at 291,122 S.Ct. at 762-63.

In this case, the state is in a position similar to the EEOC’s position in Waffle House. The state, like the EEOC, is pursuing its claim, not with the purpose of obtaining relief for particular victims, but to vindicate a “quasi-sovereign” interest: protecting the privacy of its citizens. A parens patriae claim is founded on the state’s assertion of a “quasi-sovereign” interest that grows out of, but surpasses, the interests of individual citizens. See State by Humphrey v. Standard Oil Co., 568 F.Supp. 556, 563 (D.Minn.1983) (stating that “the parens patriae doctrine allows a state to maintain a legal action where state citizens have been harmed, where the state maintains a quasi-sovereign interest.... A state maintains a quasi-sovereign interest ... where the health and well-being of its residents is affected”) (citation omitted). The doctrine is one of standing, and an injury to the state and a real interest of the state’s own are prerequisites for bringing the claim. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600-01, 102 S.Ct. 3260, 3265, 73 L.Ed.2d 995 (1982) (explaining that a parens patriae suit “does not involve the States stepping in to represent the interests of particular citizens who, for whatever reason, cannot represent themselves.”). As in Waffle House, the individuals in this case, whose privacy was allegedly violated, are not directing or controlling the state’s action or the prayer for relief.

Just as the state does not step into the shoes of victims of crime when it acts in its prosecutorial role, the state does not step into the shoes of individual card holders in this case but acts as an independent party. The state is asserting a state interest that is based on the facts involving individual card holders. See Standard Oil Co., 568 F.Supp. at 565 (stating that when the state acts in its quasi-sovereign capacity in a parens patriae action, “the state becomes, in effect, the embodiment of its citizens. A harm to the individual citizens becomes an injury to the state, and the state in turn becomes the plaintiff.”).

Similar to the EEOC’s statutory authority to pursue discrimination claims on behalf of individual victims, the attorney general has the authority to investigate and prosecute statutory violations, as well as to assert other claims on behalf of the state to protect public rights. See State v. Ri-Mel, Inc., 417 N.W.2d 102, 112 (Minn.App.1987) (stating that “[cjommon law has also recognized the attorney general has broad powers, which are not limited by statute, and may maintain an action for enforcement of the state’s laws and for the protection of public rights”), review denied (Minn. Feb. 17, 1988); Minn.Stat. § 8.31 (granting attorney general power to investigate and bring suit to prevent violations of various state statutes). It is not dispos-itive that the attorney general seeks victim-specific relief or that the claim is based on the facts that could permit an individual to obtain relief through a private tort claim. That was the situation in Waffle House as well. The state’s purpose in bringing the claim is to secure protection of a public interest. The United States Supreme Court specifically recognized that future violations may be best deterred by seeking victim-specific monetary relief, rather than non-victim-specific injunctive relief. See Waffle House, 534 U.S. at 295, 122 S.Ct. at 765 (noting that “[pjunitive damages may often have a greater impact ... than the threat of an injunction.”).

Appellants’ argument that res judicata principles demonstrate that the state is only enforcing the card holders’ individual interests is without merit. The Court in Waffle House specifically stated that, “[t]he fact that ordinary principles of res judicata, mootness, or mitigation may apply ... does [not] render the EEOC a proxy for the employee.” Id. at 298, 122 S.Ct. at 766.

Appellants cite a number of cases in which a nonsignatory to an arbitration contract has been obligated to arbitrate a claim, but the cases relied on are inappo-site because they involved assignment of a contract, reliance by the nonsignatory on the contract under a third-party-beneficiary theory, or situations where the nonsig-natory’s claim is asserted on behalf of a party who signed the arbitration agreement. No such circumstances are present here.

We also reject appellants’ argument that the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2000), compels arbitration in this matter. The purpose of the FAA is to “place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991). The various provisions of the FAA providing that valid contractual agreements to arbitrate must be enforced “have [been] read ... to ‘manifest a liberal federal policy favoring arbitration agreements.’ ” Waffle House, Inc., 534 U.S. at 289, 122 S.Ct. at 762 (quoting Gilmer, 500 U.S. at 25, 111 S.Ct. at 1651 (quotation omitted)). But, as noted in Waffle House, it is the language of the contract, not the FAA policy in favor of arbitration, that defines the scope of disputes subject to arbitration. “[N]othing in the statute authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement.” Id. The FAA only applies when there is an agreement to arbitrate. As discussed above, the state in this case is not party to or bound by the agreement to arbitrate.

Other cases appellants rely on for the proposition that the pro-arbitration policy expressed in the FAA mandates arbitration of the tort claim in this case are also inapposite. Those cases dealt with conflicting state or federal laws that purported to remove an entire class of claims from arbitration. See, e.g., Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 843, 130 L.Ed.2d 753 (1995) (involving determination that contract was within scope of FAA coverage and thus state anti-arbitration law could not apply); Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 227, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987) (recognizing that a federal statute could remove claims from beyond the reach of FAA’s pro-arbitration policy if Congress clearly expressed intent to do so). This case merely involves the determination of whether a plaintiff is bound by an arbitration clause in a contract to which it is not a party, not whether a legislative body, federal or state, has attempted to preclude a set of claims from decision in an arbitration forum. The FAA policy favoring arbitration of disputes does not compel the state to arbitrate its tort claim in this case, and the district court did not err by denying appellants’ motion to compel arbitration of the state’s claim for intrusion upon seclusion.

II. Grant of temporary injunction

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). “A district court’s findings regarding entitlement to injunctive relief will not be set aside unless clearly erroneous.” Haley v. Forcelle, 669 N.W.2d 48, 55 (Minn.App.2003), review denied (Minn. Nov. 23, 2003). “It is error, however, for the trial court to grant injunctive relief without evaluating specific factors.” Wadena Implement Co. v. Deere & Co., Inc., 480 N.W.2d 383, 388-89 (Minn.App.1992) (citing M.G.M. Liquor Warehouse Int'l, Inc. v. Forsland, 371 N.W.2d 75, 77 (Minn.App.1985)), review denied (Minn. Mar. 26, 1992).

Generally, the factors a court must consider in granting injunctive relief include the relationship between the parties, the relative harm to the parties if injunctive relief is granted or denied, the party’s likelihood of success on the merits, any public interest or public policy that may be involved, and the administrative burdens involved in judicial supervision and enforcement. Mounds View v. Metro. Airports Comm’n, 590 N.W.2d 355, 357-58 (Minn.App.1999) (citing Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965)). But when injunctive relief is explicitly authorized by statute, “proper exercise of discretion requires the issuance of an injunction if the prerequisites for the remedy have been demonstrated and the injunction would fulfill the legislative purposes behind the statute’s enactment.” Wadena, 480 N.W.2d at 389 (citing United States v. White, 769 F.2d 511, 515 (8th Cir.1985)); see also State by Ulland v. Int'l Assoc. of Entrepreneurs of Am., 527 N.W.2d 133, 137 (Minn.App.1995) (approving use of Wadena factors in context of temporary injunction except when a party disputed that it was subject to the statute to be enforced, in which case the trial court must consider the Dahlberg factors), review denied (Minn. Apr. 18, 1995).

The statute granting the attorney general authority to enforce laws related to unfair, discriminatory, and unlawful practices in business, commerce, or trade, provides that

[i]n addition to the penalties provided by law for violation of the [statutes the attorney general is charged with enforcing], specifically and generally, whether or not injunctive relief is otherwise provided by law, the courts of this state are vested with jurisdiction to prevent and restrain violations of those laws.... On becoming satisfied that any of those laws has been or is being violated, or is about to be violated, the attorney general shall be entitled, on behalf of the state; (a) to sue for and have injunctive relief ... against any such violation or threatened violation without abridging the penalties provided by law....

Minn.Stat. § 8.31, subd. 3 (2004).

The Minnesota Deceptive Trade Practices Act (DTPA) provides that:

A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits, or intent to deceive is not required.

Minn.Stat. § 325D.45, subd. 1 (2004).

The Consumer Fraud Act (CFA) provides that:

The attorney general or any county attorney may institute a civil action in the name of the state in the district court for an injunction prohibiting any violation of sections 325F.68 to 325F.70. The court, upon proper proof that defendant has engaged in a practice made enjoinable by section 325F.69, may enjoin the future commission of such practice. It shall be no defense to such an action that the state may have adequate remedies at law.

Minn.Stat. § 325F.70, subd. 1 (2004).

The Automatic-Dialing-Announcing Devices Act provides that:

A person who is found to have violated sections 325E.27 to 325E.30 is subject to the penalties and remedies, including a private right of action to recover damages, as provided in section 8.31.

Minn.Stat. § 325E.31 (2004).

Appellants do not dispute that they are subject to the above-cited statutes, which specifically authorize injunctive relief. Under Ulland and Wadena, therefore, the district court was not required to make findings on the Dahlberg factors to enjoin violation of the statute. The district court had only to consider whether the state showed that appellants violated or were about to violate the statutes involved and whether injunctive relief would fulfill the legislative purpose of the statutes. Ulland, 527 N.W.2d at 137; Wadena, 480 N.W.2d at 389.

Despite Wadena’s holding, the district court analyzed this case under Dahlberg. Appellants, however, do not challenge the district court’s use of the Dahlberg factors or any of the district court’s specific findings on the Dahlberg factors. Instead, appellants argue that the district court erred by failing to make any finding that Minnesota citizens would suffer irreparable harm absent entry of a temporary injunction and lack an adequate remedy at law for appellants’ alleged improper debt-collection activities.

Appellants rely on Minnesota cases holding that irreparable harm and inadequate remedy at law are threshold issues that a party seeking an injunction must establish before a district court further analyzes any factors relating to issuance of an injunction. See Mounds View, 590 N.W.2d at 357 (citing Cherne Indus., Inc. v. Grounds & Assocs., 278 N.W.2d 81, 92 (Minn.1979), and describing these factors as a “threshold showing,” necessary before application of the Dahlberg factors).

All of the cases relied on by appellants involve application for the equitable remedy of injunctive relief, as opposed to injunctive relief imposed as a specifically authorized statutory remedy. We conclude that when the legislature has explicitly authorized the state to obtain injunc-tive relief to prevent violation of statutes that protect consumers, the legislature has obviated a showing of irreparable harm and inadequate legal remedy. This court has previously held that, in an action under the DTPA, it is unnecessary for the court to find inadequacy of legal remedies before issuing injunctive relief, noting that injunctive relief is the only type of remedy available under the statute. See Dennis Simmons D.D.S., P.A. v. Modem Aero, Inc., 603 N.W.2d 336, 339 (Minn.App.1999) (stating that generally injunctive relief is reserved for circumstances when legal remedies are inadequate, but that the legislature, in the case of the DTPA, has allowed injunctive relief against “deceptive trade practices regardless of damages or other remedies available at law”). Furthermore, the language of the CFA provides that “[i]t shall be -no defense to such an action that the state may have adequate remedies at law.” Minn.Stat. § 325F.70, subd. 1. And Wadena supports the conclusion that a showing of irreparable harm is unnecessary when a statute specifically authorizes injunctive relief. 480 N.W.2d at 389 (citing White, 769 F.2d at 515); see also Envtl. Def. Fund v. Lamphier, 714 F.2d 331, 338 (4th Cir.1983) (stating that when a statute authorizes injunctive relief for its enforcement, plaintiffs need not plead and prove irreparable injury); State v. NOS Commc’ns, Inc., 120 Nev. 65, 84 P.3d 1052, 1054-55 (2004) (holding that in statutory enforcement action under consumer-protection statutes, state need only show reasonable likelihood that statute was violated and need not make showing of irreparable harm or inadequacy of legal remedy because these factors are presumed in a statutory enforcement action).

We conclude that the district court did not err or abuse its discretion by issuing a temporary injunction to prohibit violation of the DTP A, CFA, or ADADA without making a specific finding of irreparable harm or inadequacy of legal remedy. But a finding of irreparable harm and inadequacy of legal remedy remains a threshold requirement before injunctive relief can be granted on the state’s common-law tort claim for invasion of privacy. Because the district court failed to make such findings, we reverse paragraph seven of the injunction, the portion referring to intrusion upon seclusion.

Appellants also assert that the district court abused its discretion by issuing the temporary injunction without making any finding that allegedly improper debt-collection activities were ongoing or likely to occur in the future, noting that the court relied on allegations of misconduct as described by disgruntled former employees who had worked at a facility that was closed one and one-half years before the temporary injunction was issued. We note that Wadena and Ulland do not require a finding of current or ongoing violation, only a showing that appellants violated or are about to violate the statutes. And the enforcement statute provides that the attorney general may seek and have injunctive relief upon a showing that the statute has been, is currently being, or is about to be violated. Minn.Stat. § 8.31, subd. 3.

Finally, we conclude that the district court’s findings, although not couched in the language of the Wadena factors, demonstrate that the court found a sufficient showing of a violation of the statutes under which the state sought injunctive relief. Acknowledging that some of the affidavits filed by the state may be impeached for one reason or another, the district court stated: “the fact remains that even in the best light, the basic charges enunciated in the Complaint remain unanswered.”

As the state points out in its brief, the record contains much more than the affidavits of a few “disgruntled employees” from a closed facility. The record includes numerous affidavits from card holders who allegedly experienced fraudulent and deceptive practices, as well as affidavits of former employees corroborating that such practices were ordinary and expressly or tacitly encouraged. The district court specifically found that the likelihood of the state’s success on the merits weighed in favor of issuing the temporary injunction. We conclude that the district court’s finding of likely success on the merits is supported by the record, is not clearly erroneous, and satisfies the requirement of a sufficient showing that prerequisites for the statutory remedies have been demonstrated to support the issuance of a temporary injunction in this case.

DECISION

The state is not bound by the arbitration clause contained in card holders’ agreements with appellants and the district court did not err by denying appellants’ motion to compel arbitration. The district court did not err or abuse its discretion by issuing a temporary injunction regarding the DTP A, CFA, and ADADA based on findings sufficient to establish a showing of statutory violations and that issuance of a temporary injunction fulfills the legislative purposes behind the enactment of those statutes. But the district court erred by issuing injunctive relief on the state’s common-law tort claim for intrusion upon seclusion without making a finding of irreparable harm or inadequacy of the legal remedy.

Affirmed in part and reversed in part.

      . The state also moved to amend the complaint to add a party. That motion was granted and is not an issue on appeal.

      . This motion was made pursuant to a binding arbitration clause that is contained in the CCB card-holder agreement, which was accepted by card holders upon their use of the card.

      . The court’s orders finding that the state has standing to bring the tort claim in its parens patriae capacity and granting the motion to strike the affidavit are not issues in this appeal.

      . Despite the district court’s reference to a motion to compel arbitration of four claims, the record is clear that appellants only sought to compel arbitration of the tort claim for invasion of privacy.

      . See Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 418 (4th Cir.2000) (noting that equitable estoppel doctrine recognizes that a claimant “may be es-topped from asserting that the lack of his signature on a written contract precludes enforcement of the contract’s arbitration clause when he has consistently maintained that other provisions of the same contract should be enforced to benefit him” as a third-party beneficiary); Quackeribush v. Allstate Ins. Co., 121 F.3d 1372, 1380-82 (9th Cir.1997) (requiring claims of the California Insurance Commissioner, asserted as trustee on behalf of the insolvent reinsureds to recover reinsurance proceeds, to be arbitrated); SouthTrust Bank v. Ford, 835 So.2d 990, 993-94 (Ala.2002) (holding that administrator of estate asserting a claim on behalf of the estate "stands in [decedent's] shoes” and is bound to arbitrate claim as signatory decedent would have been had he asserted claim himself); Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 803-05 (Minn.2004) (holding plaintiff must arbitrate claims, although it was nonsignatoiy to arbitration clauses, when plaintiff had received assignments from the individual insureds of their claims under the contract that contained the arbitration clause).

      . Appellants do not argue that an injunction does not fulfill the legislative purposes behind the statutes' enactment, and even if they had raised such a challenge, the district court’s discussion of public-policy considerations favoring issuance of an injunction is sufficient to meet this factor of the Wadena analysis.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Steven Leo RANNOW, Appellant.
    No. A05-282.
    Court of Appeals of Minnesota.
    Sept. 13, 2005.

      John M. Stuart, State Public Defender, Sean M. McGuire, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Michael K. Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney, Glencoe, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; TOUSSAINT, Chief Judge; and PARKER, Judge.

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

   OPINION

WRIGHT, Judge.

Appellant challenges the consecutive sentences imposed on five convictions of violation of a restraining order, arguing that the district court improperly departed from the sentencing guidelines without stating a reason for the departure. Appellant also argues that imposition of consecutive sentencing without a jury determination of the existence of aggravating factors violated the Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We reverse the sentence and remand for imposition of the presumptive guidelines sentence.

FACTS

After making repeated telephone calls to a former co-worker at her place of employment, appellant Steven Rannow was charged with ten counts of felony violation of a restraining order, Minn.Stat. § 609.748, subd. 6(d)(1) (2002), and one count of engaging in a pattern of harassment, Minn.Stat. § 609.749, subd. 5(a) (2002). Rannow subsequently entered an Alford plea to five of the ten counts of violation of a restraining order. In exchange for Rannow’s guilty plea, the state agreed to dismiss the remaining charges. The parties also agreed on an aggregate sentence of imprisonment of 60 months and five days.

At the sentencing hearing, the district court honored the terms of the plea agreement and imposed an aggregate sentence of imprisonment of 60 months and five days. In doing so, the district court imposed an executed sentence of one year and one day on the first count of violation of a restraining order, rather than the guidelines sentence of 15 months, stayed. Minn. Sent. Guidelines IV. The district court then imposed executed sentences of one year and one day on each of the remaining counts and ordered the sentences on counts two through five to be served consecutively to each other and to the sentence imposed on the first count. The district court did not articulate a reason for imposing the consecutive sentences. This appeal followed.

ISSUES

I. Did the district court abuse its discretion in imposing consecutive sentences?

II. Does appellant’s sentence violate the Sixth Amendment right to a jury trial under Blakely v. Washington?

ANALYSIS

I.

Rannow argues that the district court abused its discretion by imposing consecutive sentences on each of his five convictions of violation of a restraining order. We will not reverse a district court’s decision to impose consecutive sentences absent a clear abuse of discretion. Neal v. State, 658 N.W.2d 536, 548 (Minn.2003). But the threshold issue presented here is whether the consecutive sentences imposed were permissive under the sentencing guidelines or whether they constitute an upward departure. This issue requires interpretation of the sentencing guidelines, which is a question of law subject to de novo review. State v. Watkins, 650 N.W.2d 738, 741 (Minn.App.2002).

If a defendant is convicted of multiple current offenses, it is presumed that sentences for these offenses will be served concurrently. State v. Crocker, 409 N.W.2d 840, 845 (Minn.1987). But under certain circumstances, consecutive sentences may be imposed without departing from the sentencing guidelines. Minn. Sent. Guidelines II.F. For example, when a defendant has “[mjultiple current felony convictions for crimes against persons” and the presumptive disposition for the offenses is commitment to the commissioner of corrections, consecutive sentencing is permissive without departure from the sentencing guidelines. Id. Permissive consecutive sentencing is available under this exception only when the presumptive disposition for the offenses is commitment to the commissioner of corrections. Id.; see also Watkins, 650 N.W.2d at 743 (holding that when prior felony sentence for crime against person has not been discharged and imprisonment is presumptive for current felony sentence, permissive consecutive sentencing is available). If permissive consecutive sentencing is not available, “the use of consecutive sentences ... constitutes a departure from the guidelines and requires written reasons” to support the departure. Minn. Sent. Guidelines II.F.

Although the sentencing guidelines do not define what constitutes a “crime against a person,” caselaw makes clear that such a determination depends on the nature of the underlying conduct rather than the nomenclature used to classify the crime. See State v. Myers, 627 N.W.2d 58, 62-63 (Minn.2001) (holding that consecutive sentence for obstructing legal process is crime against person if underlying conduct in committing crime posed special danger to human life); State v. Notch, 446 N.W.2d 383, 385 (Minn.1989) (holding that burglary may qualify as offense against person if “as committed” it is in fact a crime against a person).

Rannow pleaded guilty to five felony violations of a restraining order for repeatedly calling a former co-worker. Rannow’s harassment of this individual extended over 15 years, but the five current felony convictions were based on conduct that occurred during a 20-day period in 2004. Rannow’s conduct posed a threat to another person, and, therefore, each restraining-order violation constitutes a crime against a person.

Having concluded that Rannow was convicted of multiple current felonies committed against a person, consecutive sentencing is permissive under the sentencing guidelines if the presumptive disposition for the offenses is commitment to the commissioner of corrections. Minn. Sent. Guidelines II.F. “When consecutive sentences are imposed, [the] offenses are sentenced in the order in which they occurred.” Id. The presumptive guidelines sentences for Rannow’s five violations of a restraining order, a severity level IV offense, are as follows: (1) 15 months stayed on the first count; (2) 18 months stayed on the second count; (3) 21 months stayed on the third count; (4) 24 months executed on the fourth count; and (5) 27 months executed on the fifth count. Minn. Sent. Guidelines cmt. II.B.101., IV. Only executed felony sentences involve commitment to the commissioner of corrections.

Because the presumptive disposition for only the fourth and fifth counts is commitment to the commissioner of corrections, consecutive sentencing for all five offenses is not permissive under the sentencing guidelines. Accordingly, the greatest aggregate sentence duration that the district court could impose without departing from the sentencing guidelines is 36 months and one day — 24 months on count four to run concurrently with the sentences on counts one through three and consecutively with one year and one day on count five. See Minn. Sent. Guidelines II.F., IV (when imposing permissive consecutive sentences, duration of second sentence is calculated based on criminal-history score of zero, which in this case is one year and one day). Thus, the district court departed upward from the sentencing guidelines when it ordered all five of Rannow’s sentences to run consecutively, for a total sentence duration of 60 months and five days.

The state argues that, because the sentence imposed was consistent with the plea agreement, the consecutive sentencing did not constitute an upward departure from the sentencing guidelines. Permissive consecutive sentencing, however, is available only under the limited circumstances listed in Minn. Sent. Guidelines II.F. The state’s argument fails to consider the plain language of the sentencing guidelines, which states: “The use of consecutive sentences in any other case constitutes a departure from the guidelines!)]” Thus, the imposition of consecutive sentences for reasons other than those set forth in Minn. Sent. Guidelines II.F. constitutes a departure from the sentencing guidelines and requires the existence of substantial and compelling reasons identified on the record by the district court, notwithstanding the parties’ plea agreement for consecutive sentencing. See State v. Misquadace, 644 N.W.2d 65, 71 (2002) (holding that “negotiated plea agreements that include a sentencing departure are justified under the guidelines in cases where substantial and compelling circumstances exist[,]” but a “plea agreement standing alone ... does not create such circumstances in its own right”); see also Minn.Stat. § 244.09, subd. 5(2) (2004) (rejecting view that sentencing guidelines standards are a “right” that can be waived). The state’s contention that Rannow waived application of the sentencing guidelines by entering into a plea agreement as to his sentence is without merit.

Having concluded that the district court departed from the sentencing guidelines, we next consider whether the district court erred in doing so. Substantial and compelling circumstances must exist to justify a departure from the sentencing guidelines. Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996). If the district court does not state the reasons for the departure at the time of sentencing, the departure is not allowed. State v. Getter, 665 N.W.2d 514, 516 (Minn.2003); see also Minn. R.Crim. P. 27.03, subd. 4(C) (requiring district court to state on the record reasons for departure); Minn. Sent. Guidelines II.D. (requiring district court in felony cases to provide written reasons that specify the substantial and compelling nature of the circumstances and demonstrate why the departure is more appropriate than the presumptive sentence).

The district court did not provide orally or in writing any reason for the sentencing departure. Rather, the district court sentenced Rannow in accordance with the terms of the plea agreement, stating:

Then, as and for sentence, the Court is sentencing Mr. Rannow on all five counts and I understand that constitutes a departure on Count 1, but on Count 1 the Court is sentencing Mr. Rannow to one year and one day in prison. He’s to be committed to the Department of Corrections. That commitment will take place today. On Counts 2, 3, 4 and 5 the Court is imposing sentences of one year and one day on each count; all four counts, 2, 3, 4, and 5, to run consecutive to the sentence imposed on Count 1. So the total prison sentence is five years and five days.

A plea agreement cannot in itself form the basis for a sentencing departure. Misquadace, 644 N.W.2d at 72; Minn. Sent. Guidelines cmt. II.D.04 (requiring district court to state reasons for departure that underlie plea agreement). Rather, when reviewing a plea agreement that includes a sentencing departure, the district court is required to determine whether the offenses reflect any aggravating or mitigating circumstances that warrant a departure and articulate these “substantial and compelling” circumstances on the record. Misquadace, 644 N.W.2d at 71-72. Here, because the district court did not identify any aggravating circumstances justifying a departure from the sentencing guidelines, the district court abused its discretion in imposing consecutive sentences.

We turn now to the proper remedy for the district court’s failure to state any reasons for the sentencing departure. In Getter, the Minnesota Supreme Court held that “absent a statement of the reasons for the sentencing departure placed on the record at the time of sentencing, no departure will be allowed.” 665 N.W.2d at 517. Getter makes clear that a remand to the district court for another opportunity to state the reasons for departure is not the proper remedy. Id. Instead, a reviewing court must remand to the district court for imposition of the presumptive guidelines sentence. Id.

We note, however, that Misqua-dace and its progeny provide an alternative remedy for a departure based solely on the terms of the plea agreement, namely a remand to the district court for a determination of whether proper departure factors are present. 644 N.W.2d at 72. In State v. Lewis, decided one year after Misquadace, the Minnesota Supreme Court stated that, in addition to considering departure factors on remand, the district court also may consider the effect that changes in the sentence have on the entire plea agreement. 656 N.W.2d 535, 539 (Minn.2003). The Lewis court authorized the district court to consider motions to vacate the conviction and plea agreement if it could not find substantial and compelling circumstances to support the departure from the sentencing guidelines. Id. Getter, decided after both Lewis and Misquadace, does not address either case or the alternative remedies authorized therein.

We note that, because the district court departed from the sentencing guidelines in accordance with a plea agreement, the facts here are more analogous to Misqua-dace and Lewis than to Getter. Nevertheless, Getter’s mandate is clear: “[Ajbsent a statement of the reasons for the sentencing departure placed on the record at the time of sentencing, no departure will be allowed.” 665 N.W.2d at 517. Given the breadth of this most recent holding, we follow the rule announced in Getter and remand for imposition of a sentence that does not constitute a departure from the sentencing guidelines. On remand, the greatest sentence duration that the district court can impose is an aggregate sentence of 36 months and one day, which reflects presumptive concurrent sentences on the first three counts of conviction and permissive consecutive sentences on the last two counts of conviction. Minn. Sent. Guidelines II.F.

II.

Rannow also argues that the district court’s imposition of consecutive sentences violated the Sixth Amendment right to have a jury determine the facts supporting the enhancement of his sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely’s application to consecutive sentencing raises a constitutional issue, which we review de novo. State v. Senske, 692 N.W.2d 743, 746-49 (Minn.App.2005), review denied (Minn. May 17, 2005).

In Blakely, the United States Supreme Court refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). The Blakely court held that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 2537 (emphasis omitted). Accordingly, the defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2543.

Rannow argues that the district court’s imposition of nonpermissive consecutive sentences' — sentences that constitute an upward departure from the guidelines— violates the Sixth Amendment right to have a jury determine the facts supporting an enhancement of his sentence. Minnesota easelaw has not addressed whether Blakely applies to consecutive sentences that are departures from the sentencing guidelines. But because we are remanding to the district court for imposition of a guidelines sentence, which precludes a departure from the sentencing guidelines, we need not address this issue.

Because permissive consecutive sentences may be imposed on the last two counts of violation of a restraining order, however, we briefly address Blakely’s applicability to permissive consecutive sentences. We recently held that the rule announced in Blakely does not apply to permissive consecutive sentences imposed for separate crimes. Senske, 692 N.W.2d at 749. The Senske court reasoned that the holdings of Blakely and Apprendi are limited to the enhancement of a sentence for a single crime and do not extend to consecutive sentencing, which determines the relationship between two or more sentences separately imposed for different offenses. 692 N.W.2d at 747-48; see also O’Meara v. State, 679 N.W.2d 334, 341 (Minn.2004) (reducing consecutive terms to 25 years each under Apprendi, although the combined 50-year sentence would have violated the 25-year statutory maximum). The Senske court also noted that, because the jury does not determine the permissibility of multiple sentences under the Double Jeopardy Clause or Minn.Stat. § 609.035, subd. 1 (2004), there is no right to a jury determination as to whether consecutive sentencing is appropriate. 692 N.W.2d at 747.

Based on our recent decision in Senske, we conclude that the district court may impose permissive consecutive sentences on the last two counts of violation of a restraining order without violating the Sixth Amendment right articulated in Blakely.

DECISION

The district court departed from the sentencing guidelines when it imposed consecutive sentences. Because the district court did not state a reason for the sentencing departure, we reverse the sentence and remand for imposition of the presumptive guidelines sentence.

Reversed and remanded.

      . With an Alford plea, a defendant maintains his or her innocence while conceding that there is a substantial likelihood that the evidence would support a conviction by a jury of the crime charged. State v. Goulette, 258 N.W.2d 758, 760 (Minn.1977) (adopting holding of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).

      . Consecutive sentencing is permissive under these circumstances even when the offenses involve a single victim. Minn. Sent. Guidelines cmt. II.F.04.

      . At the time of his first offense, Rannow had a criminal-history score of one. Rannow's criminal-history score increased by one point for each subsequent felony offense, causing the presumptive sentence duration to increase accordingly. Minn. Sent. Guidelines V.II. B.I.; State v. Gould, 562 N.W.2d 518, 519-20 (Minn.1997).


text:
    CITIZENS CONCERNED FOR KIDS, Relator, v. YELLOW MEDICINE EAST INDEPENDENT SCHOOL DISTRICT NO. 2190, Respondent.
    No. A05-71.
    Court of Appeals of Minnesota.
    Sept. 20, 2005.

      Marshall H. Tanick, Phillip J. Trobaugh; Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for relator.

      Kevin J. Rupp, Jennifer L. Wolf, Rat-wik, Roszak & Maloney, P.A., Minneapolis, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and FORSBERG, Judge.

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

   OPINION

WRIGHT, Judge.

Relator challenges the decision of a school district to reassign junior high students from a facility housing elementary and junior high grades to a facility housing high school grades, arguing that, because the reassignment is a schoolhouse closing, the school district did not comply with the procedures set forth in Minn.Stat. § 123B.51, subd. 5 (2004). We questioned whether certiorari review is available if the school district did not close a schoolhouse. A special-term panel of this court referred the jurisdictional issue to the reviewing panel. Relator also moves to strike documents presented on appeal that were not before the school district at the time of its decision. We discharge the writ of certio-rari and grant the motion to strike.

FACTS

Respondent Yellow Medicine East Independent School District No. 2190 (the district) operates three major facilities. Two facilities are in Granite Falls: Bert Raney Elementary School, which houses kindergarten through grade six, and Yellow Medicine East High School, which houses grades nine through twelve. The remaining facility, in Clarkfield, houses kindergarten through grade eight.

The district describes the Clarkfield facility as containing two separate “schools” — H.A. Hagg Elementary School, for grades kindergarten through six, and Yellow Medicine East Junior High School, for grades seven and eight. In this facility, grades seven and eight comprise 170 students or 53 percent of the student population and occupy about half of the floor space.

The district formed a committee to review the use of its school facilities in June 2002. After developing grade configurations for each facility, the committee presented several options to the public in September 2004. The committee issued its final report at a school board meeting on November 8, 2004, recommending that the district move grades seven and eight from the Clarkfield facility to the facility housing Yellow Medicine East High School in Granite Falls. The school board adopted the committee’s recommendation at the next meeting of the school board on November 22, 2004. Relator Citizens Concerned for Kids brought this certiorari appeal.

ISSUE

Did the district’s reassignment of its junior high students from a joint elementary and junior high facility to a separate high school facility constitute a schoolhouse closing under Minn.Stat. § 123B.51, subd. 5 (2004)?

ANALYSIS

I.

To be reviewable by certiorari, a school board decision must be “quasi-judicial” in nature. Minn. Chapter of Associated Builders & Contractors, Inc. v. Bd. of Educ. of Minnetonka Indep. Sch. Dist. No. 276, 567 N.W.2d 761, 763 (Minn.App.1997), review denied (Minn. Aug. 26, 1997). The three indicia of quasi-judicial actions are “(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.” Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn.1999) (MCEA). Certiorari is not available when the acts sought to be reviewed are of a legislative or administrative character. W. Area Business & Civic Club v. Duluth Sch. Bd. Indep. Dist. No. 709, 324 N.W.2d 361, 364 (Minn.1982).

The closure of a schoolhouse is a quasi-judicial decision because the governing statute requires a determination by the school board of the necessity and practicability of the closing following notice and a hearing. Id. at 365. As a quasi-judicial decision, the closure of a schoolhouse is renewable by certiorari. Id.

By contrast, no specific statutory standards or procedures govern the discharge of a school board’s general responsibility of furnishing school facilities. Id. Therefore, the reassignment of grades among several school buildings in the district constitutes an administrative act, which is not subject to review by certiora-ri. This action is not quasi-judicial as defined by MCEA because it does not involve application of evidentiary facts to a prescribed standard. The failure to meet any of the three indicia of quasi-judicial acts as defined by MCEA is fatal to a claim that the proceedings are quasi-judicial. MCEA 587 N.W.2d at 842.

Citizens Concerned for Kids (CCFK) argues that a schoolhouse closing occurred when the district reassigned its junior high grades from a facility that jointly housed elementary and junior high students to a separate high school facility. CCFK contends, therefore, that the district’s failure to follow statutory procedures for closing a schoolhouse warrants reversal of the district’s decision. The procedures for closing a schoolhouse are set forth in Minn. Stat. § 123B.51, subd. 5 (2004), which provides:

The board may close a schoolhouse only after a public hearing on the question of the necessity and practicability of the proposed closing. Published notice of the hearing shall be given for two weeks in the official newspaper of the district. The time and place of the meeting, the description and location of the schoolhouse, and a statement of the reasons for the closing must be specified in the notice. Parties requesting to give testimony for and against the proposal shall be heard by the board before it makes a final decision to close or not to close the schoolhouse.

CCFK makes two distinct arguments in support of its assertion that a schoolhouse closing took place. First, because the junior high grades were recognized as a separate “school,” CCFK argues that the junior high grades had a separate “schoolhouse” subject to the statutory schoolhouse-closing requirements. In the alternative, CCFK asserts that the overall reduction of the student population in the Clarkfield facility was sufficient to constitute a closing.

The first argument requires us to interpret the meaning of “schoolhouse” under Minn.Stat. § 123B.51, subd. 5. The primary object of statutory interpretation is to discern and effectuate the intention of the legislature. Minn.Stat. § 645.16 (2004); Olmanson v. LeSueur County, 693 N.W.2d 876, 879 (Minn.2005). In doing so, when the meaning of the statutory terms is clear, we apply the statute’s plain language. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004). We construe words and phrases in accordance with common usage, Sprint Spectrum LP v. Comm’r of Revenue, 676 N.W.2d 656, 662 (Minn.2004), and in the context of the entire statutory provision, ILHC of Eagan, LLC v. County of Dakota, 693 N.W.2d 412, 419 (Minn.2005).

The term “schoolhouse” is defined as a “building used as a school.” The American Heritage Dictionary 1615 (3d ed.1992). This definition comports with Minn.Stat. § 123B.51, in which references to “schoolhouse” consistently relate to the entire building or property where school takes place. See, e.g., Minn.Stat. § 123B.51, subds. 1 (construction and acquisition of schoolhouses), 2 (2004) (use of schoolhouses for nonschool purposes); see also Minn.Stat. § 123B.97, subd. 1 (2004) (controlling acquisition of schoolhouse sites by common school districts). By its plain meaning and by its use throughout the statutory provision, a schoolhouse is the entire building or facility in which school takes place.

Arguing that the term “schoolhouse” is functionally equivalent to the term “school,” CCFK proposes that the definition of schoolhouse be guided by Minn. Stat. § 120A.05, subd. 13 (2004), which defines a secondary school as “any school with building, equipment, courses of study, class schedules, [and] enrollment of pupils ordinarily in grades 7 through 12 or any portion thereof[.]” But this argument fails to distinguish a school, as an academic institution for children, from a schoolhouse, which is a building used by a school. Because these concepts are plainly distinct, CCFK’s argument is unpersuasive. Thus, applying the plain meaning of the term “schoolhouse,” we conclude that, when the district decided to move the junior high grades out of the Clarkfield facility, these grades were not a separate “schoolhouse” to which the statutorily prescribed process for a schoolhouse closing attached.

We next consider CCFK’s argument that, by moving the junior high grades out of the Clarkfield facility, the reduction in student population was sufficient to constitute a schoolhouse closing. The Minnesota Supreme Court addressed what actions constitute a schoolhouse closing in Western Area. There, a school district moved 250 high school students, the entire student population, out of a facility and replaced them with 250 junior high students. 324 N.W.2d at 363. The supreme court reasoned:

In common parlance the term “close” means to totally suspend or cease all operation of a particular facility. In employing this term, the legislature must have intended to require notice and hearing only when a schoolhouse shuts its doors, not when it continues as a school but with a differently composed student body.

Id. at 364. Notwithstanding a complete replacement of the student population, the supreme court concluded that the school district’s decision was not a closing but an “administrative act[ ] ... not subject to review by certiorari.” Id. at 365.

We also considered this issue in Concerned Citizens for the Pres. of Indep. Sch. Dist. No. 712 v. Mountain Iron-Buhl Indep. Sch. Dist. No. 712 in which a school district decided to move its high school grades into a facility housing the middle school, leaving a small portion of the high school facility open for two to four hours daily to teach a class of 20 students. 431 N.W.2d 601, 602 (Minn.App.1988), review denied (Minn. Jan. 25, 1989). After reviewing the outcome in Western Area, we concluded that a school district will not be permitted to avoid compliance with the statutory schoolhouse-closing requirements by keeping only a nominal student population in a schoolhouse:

Allowing a school board to close approximately 90% of a school without requiring the board to comply with the School Closing Law would permit school boards to circumvent the statute’s procedural requirements....
... The new board’s action appears to be an attempt to circumvent the School Closing Law.

Id. at 604.

Western Area emphasizes that the grade composition of a school will not control whether a schoolhouse closing has occurred. 324 N.W.2d at 364. It further holds that, for a schoolhouse closing to take place, the district must “totally suspend or cease all operation of a particular facility.” Id. Concerned Citizens extends this rule by holding that an overwhelming reduction of the student population in a school will also constitute a schoolhouse closing, particularly if it appears that a district is circumventing procedural requirements. 431 N.W.2d at 604.

Here, the decision of the district affects both the size and grade composition of the student population at the Clarkfield facility. But the change in the grade composition of the student population, from a facility jointly housing elementary and junior high grades to a facility exclusively housing elementary grades, is not a relevant factor. See Western Area, 324 N.W.2d at 364. Our sole inquiry is whether the reduction of the student population by approximately one half is sufficient to constitute a schoolhouse closing.

The district did not “totally suspend or cease all operationfs]” at the Clarkfield facility. Id. And because the district is continuing full educational programming for approximately 143 students in the elementary grades, it is not maintaining a nominal student population like that in Concerned Citizens. Thus, we conclude that the district did not close a schoolhouse when it decided to move the junior high grades out of the Clarkfield facility and reduce the number of students housed in the facility from approximately 313 to 143. In making this decision, the school district was not required to follow the procedure set forth in Minn.Stat. § 123B.51, subd. 5; and the decision is not reviewable by writ of certiorari. W. Area Bus. & Civic Club, 324 N.W.2d at 364.

Our decision is supported by the caselaw from foreign jurisdictions cited favorably by the Minnesota Supreme Court in Western Area. Two of three such cases cited concluded that a schoolhouse closing did not occur when a district decided to keep some grades and move other grades out of a schoolhouse. Lang v. Bd. of Trs. of Joint Sch. Dist. No. 251, 93 Idaho 79, 455 P.2d 856, 858 (1969); Choal v. Lyman Indep. Sch. Dist. No. 12 Bd. of Educ., 87 S.D. 682, 214 N.W.2d 3, 4-5 (1974). The third case interpreted a statute that expressly codified a similar rule. Welch v. Bd. of Educ. of Unified Sch. Dist. No. 195, 212 Kan. 697, 512 P.2d 358, 362 (1973); see also Hensley v. Bd. of Educ. of Unified Sch. Dist. No. 443, 210 Kan. 858, 504 P.2d 184, 189 (1972) (interpreting the newly enacted statute as a matter of first impression). Because the district’s decision to reassign grades is administrative rather than quasi-judicial, review by certiorari is not available.

II.

CCFK moves to strike an affidavit by the district’s superintendent, Dwayne Strand. We ordinarily are precluded from considering documents that were not received by the decisionmaker below. Minn. R. Civ.App. P. 110.01; State by Humphrey v. Delano Cmty. Dev. Corp., 556 N.W.2d 922, 924-25 (Minn.App.1996), aff'd, 571 N.W.2d 233 (Minn.1997). If a party includes such a document with the record on appeal, the adverse party may move to strike that document from the record. Davis v. Davis, 631 N.W.2d 822, 826 (Minn.App.2001). Because the affidavit was prepared after the district made its decision and was not part of the record leading to that decision, we grant CCFK’s motion to strike.

DECISION

The school district was not required to comply with the schoolhouse-closing provisions of Minn.Stat. § 123B.51, subd. 5 (2004), when it decided to retain the elementary grades at a facility jointly housing elementary and junior high grades and reassign the junior high grades to another facility. Certiorari review is not available because the appeal does not involve a quasi-judicial decision by the school district.

Writ of certiorari discharged; motion granted.

      . Because we hold that the decision of the district is not subject to review by writ of certiorari, we need not reach the argument of the district that it substantially complied with the procedural requirements of Minn.Stat. § 123B.51, subd. 5. The district also challenged the status of CCFK, as an unincorporated association, to proceed with this appeal. We addressed that issue in favor of CCFK by our order dated May 24, 2005.


author: KLAPHAKE, Judge.

text:
    Joyce A. JOHNSON-SMOLAK, n/k/a Joyce A. Johnson, petitioner, Respondent, v. Jared Pahl FINK, Appellant.
    No. A05-52.
    Court of Appeals of Minnesota.
    Sept. 20, 2005.

      Susan A. Daudelin, Katz, Manka, Teplin-sky, Due & Sobol, Ltd., Minneapolis, MN, for respondent.
    Tracy I. Nightingale, Nightingale Law Office, St. Louis Park, MN. for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, TOUSSAINT, Chief Judge, and WILLIS, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Jared Pahl Fink, the father of M.R.F., and respondent Joyce A. Johnson, M.R.F.’s maternal grandmother, stipulated to joint legal and physical custody of M.R.F. after his mother died in 1996. In 2003, both parties moved to modify custody: appellant sought sole legal and physical custody of M.R.F., while respondent sought sole physical custody or, in the alternative, sole legal and physical custody of M.R.F. Following an evidentiary hearing, the district court denied both parties’ motions. On appeal, appellant argues that the district court abused its discretion by applying an incorrect standard for modification and by failing to acknowledge his presumptive right as natural parent to custody of M.R.F.

Because the district court applied the proper standard for custody modification and because appellant’s presumptive right to custody as parent of M.R.F. has been overcome by the stipulation between the parties and the lapse of time, we affirm.

FACTS

Appellant married Rochelle Johnson when she was still in high school. Shortly thereafter, M.R.F. was born on July 3, 1995. Johnson died in an automobile accident when M.R.F. was 18 months old. At the time, appellant was sporadically employed. Within a year after Johnson’s death, appellant and respondent, who is M.R.F.’s maternal grandmother, entered into a stipulation for joint physical and legal custody of M.R.F. This stipulation was confirmed by court order issued December 4, 1997. M.R.F. has lived with respondent since that time.

In 1999, appellant enlisted in the Navy, left Minnesota for basic training, and eventually settled in Virginia, where he currently lives with his second wife. Although relations between appellant and respondent were initially somewhat cordial, tensions developed after appellant’s enlistment and were heightened over issues of child support and religious training. Appellant, a Mormon, wanted M.R.F. raised in the Mormon church; respondent, a Roman Catholic, agreed to this, but appellant did not believe that she was wholeheartedly involving the child in the Mormon church. A series of confrontations over support, access, visitation, and religious training resulted in both parties moving for modification of the custody order.

A custody evaluation of appellant was performed in Virginia and affirmed that he would be an appropriate custodial parent. A similar evaluation of respondent was performed in Minnesota; the evaluator concluded that respondent was an appropriate custodial parent. Neither evaluator examined both parties. Both evaluations made clear that M.R.F. is a happy, well-adjusted child, despite the now-open hostility between his joint custodians.

After a hearing in July 2004, the district court found that in order to modify custody, appellant would have to demonstrate that (1) there had been a change in circumstances since the prior order; (2) modification would be in M.R.F.’s best interests; (3)the child’s current environment endangered his physical or emotional health; and (4) that the harm caused by modification would be outweighed by the advantages of the change. The district court concluded that appellant failed to prove that modification would be in M.R.F.’s best interests, that M.R.F. was endangered in his current environment, or that the harm caused by modification would be outweighed by its advantages. The district court therefore denied the parties’ motions for modification and ordered that the joint legal and physical custody arrangement and the child’s current residence be continued.

Appellant moved for amended findings or a new trial based on transcripts of telephone conversations between the parties. Appellant claimed that these transcripts showed the open hostility between the parties and how it affected M.R.F.’s emotional health. The district court denied this motion, and this appeal followed.

ISSUES

1. Did the district court abuse its discretion by refusing to modify the joint custody arrangement?

2. Did the district court err by failing to acknowledge that the parent is presumed to be a fit custodian?

ANALYSIS

The district court’s custody modification decisions are reviewed for an abuse of discretion. Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn.1999). An abuse of discretion occurs when the district court makes findings unsupported by the evidence or improperly applies the law. Id. Findings are reviewed for clear error; the record is reviewed in a light most favorable to the findings. Id.

A prior custody order will not be modified unless the court finds that a change of circumstances has occurred and that modification is necessary to serve the best interests of the child. Minn.Stat. § 518.18(d) (2004). When a proposed modification includes a change in the child’s primary residence, custody may be modified if the district court finds that the child’s present environment endangers the child’s physical or emotional health and that the harm caused by the change is outweighed by the benefit to the child. Minn.Stat. § 518.18(d)(iv). “Endangerment” implies a significant degree of danger or likely harm to the child’s physical or emotional state. Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn.App.2000), review denied (Minn. Sept. 26, 2000).

The district court found that the child is not endangered in his present environment, but on the contrary, is a happy, well-adjusted child. The court also found that respondent attempted to provide appropriate religious instruction in accordance with appellant’s wishes and the court further found that allegations regarding hygiene, clothing, and respondent’s smoking do not rise to the level of endangerment. These findings are supported by the record and are not clearly erroneous.

Appellant argues that the district court should have applied the standard of Minn.Stat. § 518.18(e) (2004), as interpreted in Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn.1993), which states that when a joint custodian seeks permission to move the child’s residence to another state, the court must analyze the request using the best interests factors of Minn.Stat. § 518.17, subd. 1(a) (2004). Had appellant simply asked for permission to move M.R.F. to Virginia, this would have been the correct standard. Appellant, however, sought to not only move the residence of the child, but also to modify the basic custody arrangement, from joint legal and physical custody with respondent to sole legal and physical custody with appellant. The district court thus properly applied the law: it maintained the current custody arrangement, which specified the child’s primary residence, in the absence of evidence that the child’s physical or emotional health was endangered.

Presumption of Custody in the Natural Parent

Appellant argues that the district court erred as a matter of law by failing to consider his right as natural parent to custody of M.R.F. The parent is presumed to be a fit and appropriate custodian for his or her child, unless it is shown that the parent is unfit, that the parent has abandoned his or her right to custody, or that there are extraordinary circumstances requiring that the parent be deprived of custody. In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn.2002) (citing Wallin v. Wallin, 290 Minn. 261, 264-65, 187 N.W.2d 627, 629-30 (1971)). But “[t]he principle that the custody of young children is ordinarily best vested in the [parent] ... is distinctly subordinate to the controlling principle that the overriding consideration in custody proceedings is the child’s welfare.” Wallin, 290 Minn. at 265, 187 N.W.2d at 630.

In Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn.1989), custody of the child remained in a third party, despite the fact that the mother was not found to be unfit. The court recognized that there were “grave and weighty” reasons to continue the custodial arrangement, when the child had been integrated into the third party’s home with the initial consent of the mother, and the experts concluded that returning the child to the mother would be detrimental to the child. Id. This principle was reaffirmed in N.AK, 649 N.W.2d at 175, where the supreme court stated that “the cases make clear that ultimately the welfare of the child is the umbrella under which every aspect of custody decisions— including the parental presumption — falls.” The court recognized that the parental presumption can be overcome by “extraordinary circumstances of a grave and weighty nature.” Id.

Here, the district court considered the parental presumption but found extraordinary circumstances that overcame the presumption: the stipulated agreement between these parties to share joint legal and physical custody of M.R.F. and the fact that M.R.F. has lived exclusively with respondent for eight years. These findings are based on the record and are not clearly erroneous. The district court’s decision to maintain the custody arrangement was not an abuse of discretion.

DECISION

The district court did not abuse its discretion by refusing to modify the current custody arrangement, when appellant failed to demonstrate that modification would be in the child’s best interests or that the child was endangered in his current environment.

Affirmed.


author: KAPSNER, Justice.

text:
    2005 ND 156
    In the Interest of K.G. William Pryatel, M.D., Petitioner and Appellee v. K.G., Respondent and Appellant.
    No. 20050266.
    Supreme Court of North Dakota.
    Aug. 31, 2005.
    Kenneth L. Dalsted, Special Assistant Attorney General, Jamestown, ND, for petitioner and appellee.
    Jodie Koch Scherr, Valley City, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] K.G. appeals an order from the district court requiring her to be hospitalized at the North Dakota State Hospital (“State Hospital”) for continuing treatment until May 11, 2006, or until further order of the court. We affirm.

I.

[¶ 2] K.G., a 32-year-old woman, suffers from schizoaffective disorder bipolar type, borderline personality disorder, and alcohol and cannabis dependence. She has been hospitalized in the State Hospital continuously since August 2004. Prior to August 2004, K.G. had been hospitalized approximately fifty-six times. K.G. agrees she requires treatment. She argues that the district court failed to adequately consider less restrictive alternatives to involuntary hospitalization.

[¶ 3] The district court found by clear and convincing evidence that no less restrictive alternatives exist that could facilitate KG.’s required treatment. The court further found that if her condition was left untreated, she would pose a serious risk of harm to herself based on her past history of attempted suicide and aggressive verbal and physical outbursts.

II.

[¶ 4] This Court has articulated a standard used in least restrictive treatment appeals:

When an individual is found to be a person requiring treatment he has the right to the least restrictive conditions necessary to achieve the purposes of the treatment. The court must make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which the individual may inflict upon himself or others. The court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. This Court will not set aside the trial court’s findings unless they are clearly erroneous. A finding is clearly erroneous if it is induced by an erroneous view of the law, it is unsupported by evidence, or this Court, based on a review of the entire record, has a definite and firm conviction a mistake has been made. This Court’s review in involuntary commitment cases is limited to the procedures, findings, and conclusions of the lower court.

Interest of R.F., 2005 ND 102, ¶4, 697 N.W.2d 311 (internal citations omitted).

[¶ 5] K.G. argues there was insufficient evidence produced at her continuing treatment hearing, and the district court failed to adequately consider alternative treatment programs. We disagree.

[¶ 6] The court heard evidence from K.G. and Dr. William Pryatel on the merits of a continuing treatment order. At the hearing, K.G. admitted she continues to be mentally ill and requires treatment. Dr. Pryatel testified K.G. exhibited aggressive behavior and needed to be restrained as recently as a month before the district court’s hearing. Previously, K.G. has also attempted suicide by cutting her wrists. It seems apparent “[i]n some cases, a reporting doctor may reasonably conclude that less restrictive alternatives to hospitalization simply do not exist.” Interest of J.S., 545 N.W.2d 145, 148 (N.D.1996).

[¶ 7] This Court has also noted a pattern of conduct can be a helpful indicator of predicting future events. See, e.g., Interest of A.L. and J.L., 2001 ND 59, ¶ 16, 623 N.W.2d 418; Interest of AS., 1998 ND 181, ¶ 19, 584 N.W.2d 853. Looking to KG.’s pattern of conduct, there is a history of fifty-six separate instances of hospitalization and some unsuccessful attempts at treatment in a less restrictive setting. KG.’s most recent attempt at staying in a less restrictive transitional living facility resulted in K.G. going “AWOL [absent without leave] to drink” her first day there. The treating physician testified that hospitalization was required to meet KG.’s treatment needs. The district court made specific findings that currently no adequate alternative treatment programs existed. The court found that in the beginning of April 2005, she had numerous incidents of “maladaptive behaviors” including incidents of aggressive outbursts, clenched fists, fighting moods, swearing, kicking, and being put in restraints. The court also found K.G. has a history of irritable mood swings, self-mutilation, and suicide attempts. On this record, there was sufficient evidence to support the court’s finding that K.G. “requires further treatment and that a treatment program other than hospitalization is currently not suitable.”

III.

[¶ 8] Because the court’s decision was not clearly erroneous, we affirm the continuing treatment order.

[¶ 9] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ„ concur.