concurring in part and dissenting in part. The majority opinion is remarkable for what it does not say. I concur in the result, but I disagree with the majority’s reasoning.
My rationale for a reversal and remand differs from the majority in this respect. The circuit court, in my opinion, erred in issuing a nationwide injunction. This is the pivotal issue; yet, the majority declines to address it. The circuit court enjoined trespasses by UFCW organizers nationwide and sought to have the injunction enforced by the courts of other states. In issuing the injunction, the circuit court considered union organization attempts, or “blitzes” as they were termed, in other states in addition to Arkansas to arrive at a finding of irreparable harm. In doing so, the circuit court never acknowledged that the law of trespass, whether common law or statutory law, varies from state to state and that the defenses available to UFCW organizers may vary in other states as well. This was error. In determining whether an injunction should issue, the circuit court should have considered only the facts related to UFCW activity in the WalMart stores in Arkansas and Arkansas law and limited the scope of the injunction to this state.
The majority reverses the circuit court’s order on grounds of no irreparable harm. What is grossly unclear in the majority opinion is whether the majority is focusing only on Arkansas events in weighing whether the harm is irreparable or rather focusing on the blitzes nationwide. The majority never says. At one point, the majority makes passing reference to UFCW representatives in Arkansas, but the majority refrains from holding that the circuit court erred in considering “blitzes” outside of this state.
The majority is equally murky in its analysis of irreparable harm. Is it holding that there was no harm such as a civil trespass by the UFCW representatives or is it holding that there is a harm but that it is not irreparable? A reading of the opinion is not illuminating on this crucial point. Rather, the majority’s conclusion is left to supreme speculation.
In its finding of irreparable harm, the circuit court said that refusing the injunction would be a denial of justice because redress may not be available through money damages. As the majority opinion notes, harm is normally considered irreparable when it cannot be adequately compensated by money damages. Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980). That is the precise principle that the circuit court employed in its analysis.
The circuit court also referred to “recurrent violation of legal rights” by repeated wrongful trespasses as another facet of irreparable harm together with Wal-Mart’s right to “peacable use, enjoyment, and possession of real property.” In other words, the court found that repetitious visits of UFCW organizers in Wal-Mart stores was relevant to the trespass and irreparable-harm inquiries. The majority remarks that there is no proof of recurrent visits. The circuit court, however, found that there would be repetitive visits by UFCW representatives. Counsel for the UFCW acknowledged this at oral argument. To suggest that there would not be recurrent visits, as the majority does, discounts the circuit court’s findings and counsel’s acknowledgment.
The majority further states that without complaints from Wal-Mart customers about UFCW activities in Wal-Mart stores, no irreparable harm can be found and, thus, no injunction issued. I seriously question whether customer complaints are an absolute requirement for the issuance of an injunction. The correct focus, in my judgment, should be on whether a civil trespass has occurred and whether there has been a disruption of Wal-Mart business, and whether recurrent violation of legal rights will occur in the future, so as to constitute irreparable harm. David Scott, a labor relations manager for Wal-Mart, testified that the UFCW efforts inside Wal-Mart stores were distracting employees and could drive away customers. Why should repeated business disruptions and notice to UFCW counsel by letters coupled with a posted no-solicitation policy not be enough to establish irreparable harm, if a court finds this to be the case?
The majority then seems to require Wal-Mart employee testimony about store disruption in addition to testimony of store managers. That is a bizarre requirement. It occurs to me that when a store manager like Chris Comer of the Springdale Sam’s Club testifies to two interruptions of manager meetings by UFCW organizers and a third confrontation with a union representative, all on the same day, additional employee testimony is unnecessary. The majority opinion appears to answer Mr. Comer’s testimony and conclude that this is not irreparable harm. It may not be for an Arkansas injunction. But, again, what is murky and unclear from the majority is whether the circuit court on remand should look only to events in Arkansas such as Mr. Comer’s experience or events nationwide as the circuit court did initially. The majority opinion gives no decision on this critical question.
There is one final point. The majority skirts the issue of whether a civil trespass occurred on Wal-Mart’s premises due to the union blitzes. That, of course, was the primary issue argued to this court by both parties in their briefs and at oral argument. The circuit court relied on Arkansas Model Jury Instructions' — Civil 1107 for a compendium of Arkansas law on civil trespass: “A trespasser is a person who goes upon the premises of another without permission and without an invitation, express or implied.” The circuit court further found that Wal-Mart excluded from a business invitation those UFCW organizers who entered the store only to solicit union membership.
The majority begs off discussion of the trespass issue, it says, for fear of delving into the merits of the case. But the majority’s paralyzing fear is off-base. One of the cornerstones for determining whether an injunction, either prehminary or permanent, should issue is likelihood of success on the merits. See Custom Microsystems, Inc. v. Blake, 344 Ark. 536, 42 S.W.3d 453 (2001); Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). That principle requires some analysis of whether Wal-Mart has actually been harmed. Is the majority now saying that this criterion is no longer valid in Arkansas? Moreover, how else does one determine whether there has been irreparable harm without first examining what the alleged harm is to Wal-Mart? In this case, the harm alleged is civil trespass and repetitive civil trespasses at that. Clearly, whether civil trespasses transpired with the UFCW blitzes in the face of Wal-Mart’s no solicitation policy and its letters to UFCW counsel forbidding trespassers is an issue that we should address in this appeal.
In sum, I concur that this case must be reversed because of the nationwide injunction and, unlike the majority, I would address that issue and give the circuit court some direction. On remand, should injunctive relief be pursued by Wal-Mart, the circuit court, in my judgment, should be limited to whether WalMart has experienced irreparable harm in Arkansas. Regarding irreparable harm, I would answer the question of whether UFCW activities constitute civil trespass. I believe that they do. This would leave the question to be resolved as whether this harm, civil trespass, constitutes irreparable harm in Arkansas. Finally, I would not mandate that customer and employee complaints are mandatory to a finding of irreparable harm, as the majority seems to do in its opinion.
Accordingly, I concur in the result but dissent from the majority’s reasoning.
Imbbr, J., joins.