NO. 92-250
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
PATTY DICKEN,
Plaintiff and Appellant,
WILLIAM A. SHAW, ANNE M. SHAW,
AND
FRANK 0. WILLIAMS,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roderick K. Ermatinger, Attorneys, Inc., P.C.,
Missoula, Montana
For Respondent:
Kathleen OfRourke-Mullins, Sullivan & Tabaracci,
Missoula, Montana
Gary Kalkstein, Quane, Smith, Howard & Hull,
Missoula, Montana
Karl J. Englund, Attorney at Law, Missoula, Montana
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Submitted on Briefs: September 24, 1992
~ecided.: November 4, 1992
Filed:
CLERK
3mcd
OF SUPREME COUII.
STATE OF MONTANA
chief Justice J. A. Turnage delivered the Opinion of the Court.
Patty Dicken brought this action against the defendants, from
whom she had leased office space, claiming breach of contract,
forcible entry, wrongful eviction, and conversion of personal
property. The District Court for the Fourth Judicial District,
Missoula County, denied Dicken's request for a preliminary injunc-
tion preventing the defendants from leasing the office space to
others during this lawsuit. Dicken appeals. We affirm.
The issues are:
1. Did the District Court err when it held Dicken would not
suffer irreparable injury and refused to enjoin defendants from
leasing the subject premises to others?
2. Did the court err by limiting Dicken's remedies to
monetary damages?
3. Did the court exceed the scope of the preliminary injunc-
tion hearing?
On January 24, 1992, Patty Dicken entered into a two-year
lease agreement to rent commercial office space in the Professional
Village Complex in Missoula, Montana. Defendants William A. Shaw
and Anne M. Shaw owned the Complex, which was managed by Missoula
Realty. Defendant Frank 0. Williams owned Missoula Realty.
Dicken planned to open a business to be called "A Pregnancy
Solution," which she initially described to Williams as a pregnancy
counseling service. The office space Dicken rented was adjacent to
office space rented by Blue Mountain Clinic, a tenant of the
Complex which provided abortion services. A few days after Dicken
entered her lease with defendants, an article appeared in the local
newspaper describing Dicken's business as an "anti-abortion
center." Defendants became concerned. They retained an attorney
who asked Dicken for written assurance that she would violate no
laws in the operation of her business, that she and her staff would
not harass employees, clients, or customers of other tenants, and
that she and her staff would not trespass upon the leased premises
of other tenants. Dicken refused to give such written assurances.
On February 14, 1992, the defendants had the lock changed to
the office space Dicken had rented so that she could not enter it.
Dicken then filed this lawsuit. She asked for specific performance
of her rental contract with the defendants, money damages, costs
and attorney fees, and an injunction preventing the defendants from
leasing the premises to others during the term of her lease.
Dicken also requested a preliminary injunction to prevent the
defendants from renting the space to anyone else while this action
is pending. After a hearing on that request, the District Court
found that Dicken had not met her burden of proving that she would
suffer great or irreparable injury if she were not granted
possession of the premises or if the defendants were not enjoined
from leasing the premises. The court stated that it appeared
monetary damages would fully compensate Dicken if the facts and
circumstances of the case are ultimately determined in her favor.
In addition, the court ordered that Dicken's personal property be
removed from the premises and returned to her.
Did the court err when it held Dicken would not suffer
irreparable injury and refused to enjoin defendants from leasing
the subject premises to others?
The standards for whether a preliminary injunction should be
granted are set forth at 5 27-19-201, MCA. Dicken argues that she
is entitled to a preliminary injunction under subsections (2) and
(3) of 5 27-19-201, MCA:
An injunction order may be granted in the following
cases:
. . .
(2) when it shall appear that the commission or continu-
ance of some act during the litigation would produce a
great or irreparable injury to the applicant;
(3) when it shall appear during the litigation that the
adverse party is doing or threatens or is about to do or
is procuring or suffering to be done some act in viola-
tion of the applicant's rights, respecting the subject of
the action, and tending to render the judgment ineffectu-
al[-]
This Court's standard of review of an order granting or denying a
preliminary injunction is whether the trial court abused its
discretion. Porter v. K & S Partnership (1981), 192 Mont. 175,
Dicken argues that she will be irreparably harmed if the
defendants are allowed to lease the office space to another tenant
because the location next to Blue Mountain Clinic is unique and
ideal for her services. However, her testimony at the hearing
contradicted this argument. She testified on both direct and cross
examination that the features of this office space which were
important to her were the amount of rent charged and the size of
the space:
Q. Once you leased and possessed unit 14 would you tell
us whether or not you believed there was any other
location in Missoula which would serve your center's
purposes better than unit 14?
A. I believe it was the only location that would serve
its purpose.
Q. And why is that?
A. Strictly because of the deal I got. There's no other
office space available in town that you could get that
cheap.
Q. Now, if it's fine to look at downtown space, how is
it now that unit number 14 is so unique that you don't
really want --
A. The price, the lease itself. 350 for utilities paid
and the size of the office space.
Q. So it's your testimony then that the real uniqueness
of this space is the monetary advantage?
Q. And if you could find other space that was that cheap
and had that square footage, then that would be fine,
too?
A. Yes, it would.
Q. I guess I'm a little bit confused. If you're not
going to physically interfere with patients who are going
to utilize the [Blue Mountain Clinic] facility, then why
does location matter? If you're going to reach these
people through advertising and through churches, then
what difference does proximity to the clinic make?
A. It doesn't. Like I said, so far as to me being at
Blue Mountain, yes, they do abortions and maybe the women
will see us. The location itself, yes, is important. If
I could have found -- If there was an office space open
to Western Montana Clinic, you know, it doesn't --
Q. So the fact that it's [Blue Mountain Clinic] there,
really isn't important because you're not planning to go
out and intercept these people. You're planning --
A. NO.
Q. Your plan was to advertise and reach them through
other means; is that correct?
A. Yes.
Q. So location really isn't that important to you?
A. Not too important, no.
In her testimony, Dicken did not identify any attributes of
the leased premises that singularly fit her proposed business other
than her belief that the property was less expensive than other
similar property. If the defendants are found to have breached the
lease by changing the locks, it appears Dicken can be adequately
compensated for that breach through monetary damages.
Money damages are not considered "irreparable harm" because
money damages ma:y be recovered in an action at law without resort
to equity. New Club Carlin v. City of Billings (1989), 237 Mont.
194, 196-97, 772 P.2d 303, 305. Therefore, we conclude that
Dicken has failed to prove that she will be greatly or irreparably
injured if the defendants rent the office space to someone else
during this litigation. Similarly, Dicken has not shown, as would
be necessary to justify a preliminary injunction under 5 27-19-
201(3), MCA, that renting the office space to another tenant during
this litigation will tend to render the potential judgment
ineffectual, because she has not shown that she has been damaged
other than monetarily.
We hold that the District Court did not abuse its discretion
in ruling that Dicken would not suffer irreparable injury and in
refusing to enjoin defendants from leasing the subject premises to
others while this litigation proceeds.
II
Did the court err by limiting Dicken's remedies to monetary
damages?
The District Court stated "it appears to the Court that
monetary damages would fully compensate Plaintiff if the facts and
circumstances of this case are ultimately determined to be in her
favor . Dicken contends her remedies have been prematurely
limited before trial.
The District Court's statement is clearly not a final ruling
on the extent and type of Dicken's damages. It is only a statement
of her failure to prove entitlement to injunctive relief and does
not preclude proof of other damages at trial. We hold that the
court's statement was not error.
I11
Did the District Court exceed the scope of the preliminary
injunction hearing?
Dicken argues that the court erred when it ordered removal of
her personal property (a large file cabinet, books, videos, a fetal
model kit, and posters) from the office space she had rented from
the defendants. She states that this relief was not requested by
the defendants and that the defendants did not prove that irrepara-
ble injury would result if her property were allowed to remain
there. Also, she argues that the court should not have changed the
status quo and that she was the last party in legitimate possession
of the property.
A court should act to preserve the status quo only after the
applicant has made a showing that he or she will be irreparably
injured if an injunction is not granted while the matter is being
litigated. Porter, 627 P.2d at 839. As discussed above under
Issue I, Dicken has not made such a showing of irreparable injury.
Defendants point out that it is the duty of the court to
minimize injury to all parties. Porter, 627 P.2d at 840. A the
t
time of the hearing on her motion for a preliminary injunction,
Dicken was locked out of the premises where her personal property
remained. At the hearing, the District Court determined that
Dicken had shown no reason why the premises could not be leased to
others. We hold that the District Court did not err in then acting
to protect Dicken's personal property by ordering the defendants to
arrange to have it returned to her.
Affirmed.
We concur:
/'
November 5. 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Roderick K. Errnatinger
Attorneys, Inc., P.C.
301 W. Spruce St.
Missoula. MT 59802
Kathleen O'Rourke-Mullins & Zane K. Sullivan
Sullivan & Tabaracci
430 Ryrnan
Missoula, MT 59802
Gary Kalkstein
Quane, Smith, Howard & Hull
619 S.. W. Higgins
Missoula, MT 59801
Karl Englund
Attorney at Law
401 North Washington
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: #
Deputy
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