Paul v. I.S.I. Services, Inc.

STATON, Judge,

dissenting.

I dissent. “Injunctive relief has been referred to as ‘the strong arm of the court.’ ” Wells v. Auberry, 429 N.E.2d 679, 682 (Ind.Ct.App.1982) (quoting Laughlin v. Lamasco City, 6 Ind. 223, 228 (1855)); see also 42 Am.JuR.2d Injunctions § 2 (1969) (the injunction is frequently termed the “strong arm of equity”). This moniker is well earned, as the present case aptly demonstrates. The injunction here prevents both Judith and Donald Paul *323from transferring, selling, or otherwise disposing of certain jointly held assets. Since Judith and Donald may not divest themselves of their interest in this property, the injunction precludes the division of this property in a divorce proceeding initiated by Judith. Accordingly, the injunction effectively places the dissolution proceeding on hold until the merits of the present case are decided. See Ind.Code § 31-15-7-4 (1998); Cunningham v. Cunningham, 430 N.E.2d 809, 812 (Ind.Ct.App.1982) (property division is always an issue in a dissolution of marriage action). This is an extreme burden to place on Judith, whose husband is, as emphasized by the majority, an admitted thief who has attempted suicide and been hospitalized for mental problems. The injury this burden occasions cannot be redressed by the $300,000 bond posted by I.S.I. Security.

Although I conclude that the burden the injunction places on the dissolution proceeding weighs heavily- against granting it, I do not rest my dissent on that fact.4 Rather, I discuss it only to demonstrate the irreparable damage that an improvidently granted injunction creates in this case. I dissent because I.S.I. Security failed to meet its burden of proving that its remedy at law is inadequate.

It is well established that an injunction shall not issue unless the party requesting it lacks an adequate remedy at law. McKain v. Rigsby, 250 Ind. 438, 237 N.E.2d 99, 103 (1968); Jay County Rural Elec. Membership Corp. v. Wabash Valley Power Assoc., Inc., 692 N.E.2d 905, 908 (Ind.Ct.App.1998), trans. denied. Even where a legal remedy exists, however, it ■will defeat an injunction only where it is “as plain, complete and adequate - or, in other words, as practical and efficient to the ends of justice and its prompt administration - as the remedy in equity.” McKain, 237 N.E.2d at 103. “The object of a preliminary injunction is ‘to maintain the status quo pending adjudication of the underlying claim.’ ” Jay County REMC, 692 N.E.2d at 909 (quoting Wells, 429 N.E.2d at 683). “The necessity of preserving the status quo is to prevent harm to the moving party which could not be corrected by final judgment.” Wells, 429 N.E.2d at 683.

Here, I.S.I. Security has sought a monetary judgment from Donald and Judith. I.S.I. Security can be made whole by obtaining and collecting this monetary judgment. The general rule is that “mere economic injury” does not entitle a party to injunctive relief “because an award of post-trial damages is sufficient to make the party whole.” Jay County REMC, 692 N.E.2d at 909. In such a case the party’s remedy at law is adequate. Id. Citing Jay County REMC, I.S.I. Security contends that even where an injury is' economic, the remedy at law can be inadequate where the moving party will have difficulty collecting its monetary judgment.

In Jay County REMC, a power association sought an injunction to require a rural electric company to continue to purchase electricity from the power association in accordance with an “all-requirements” contract between the parties. The rural electric company had sought to terminate the contract and to purchase electricity from a different supplier. In granting the preliminary injunction, the trial court found that the power association’s “remedy of law is inadequate in that [the rural .electric company] would have insufficient liquid assets, *324and/or insufficient non-liquid assets against which it might obtain funding, to pay an award of damages to [the power association] in this cause.” Id. The trial court found that the power association could have lost as much as four million dollars in revenue in one year if the preliminary injunction were not granted and that the power association would have had great difficulty collecting its damages from the rural electric company. This court held that the trial court had not abused its discretion in granting the injunction. Id. at 910.

I.S.I.Security seeks to compare itself to the power association in Jay County REMC. In fact, the trial court appears to have modeled its finding regarding the adequacy of I.S.I. Security’s remedy at law after the trial court’s finding in Jay County REMC since the court’s finding here is identical to that finding in all pertinent respects.5 Nevertheless, a significant difference exists between the factual circumstances that made an injunction appropriate in Jay County REMC and the factual circumstances of this case. Had it not been for the injunction in Jay County REMC, the power association’s damages would have continued to accrue during the pendency of the underlying lawsuit. Thus, the power association’s damages could have greatly increased during this time, resulting in a significantly larger, and possibly uncollectible, judgment. Here, I.S.I. Security’s damages were fixed at the time it filed its lawsuit as Donald was no longer in a position to embezzle funds. Because I.S.I.Security’s damages will not increase during the litigation, the risk that I.S.I. Security will not be made whole by a money judgment is significantly lower than the risk present in Jay County REMC. In fact, the only risk in this case stems from the possibility that Donald or Judith might dissipate their assets, a possibility that is present in most lawsuits in which monetary damages are sought. Our legislature has created statutory procedures for managing this type of risk, by which a plaintiff may attach the property of a defendant or obtain an injunction to prevent the dissipation of assets pending a judgment. See Ind.Code §§ 34-25-2-1 to 34-25-2-25 (1998) (procedures for attachment of defendant’s property); Ind.Code § 34-26-1-6 (1998) (temporary injunction may issue to restrain defendant from fraudulently removing or disposing of property).

I.S.I.Security has not sought to utilize the attachment procedures of IC 34-25-2. Moreover, I.S.I. Security has not made the showing necessary to obtain an injunction pursuant to IC 34-26-1-6, which provides that a temporary injunction may issue where a defendant has threatened to remove or dispose of his property or is about to remove or dispose of his property with the intent to defraud his creditors. The evidence that Donald might move away from the area, that Donald may be mentally unstable, and that Donald and Judith seek to split their assets between themselves as part of a dissolution proceeding does not establish an intent to defraud their potential judgment creditors.

I do not disagree with the majority insofar as it concludes that I.S.I. Security might not be made whole by a monetary judgment in this case. As the majority notes, a judgment of approximately one half million dollars in I.S.I. Security’s favor against Donald, Judith, or both is within reasonable contemplation. At the time of the preliminary injunction hearing, it appeared that Donald and Judith did not own a half million dollars in assets that would be subject to collection following a judgment. Therefore, freezing the defendants’ assets with the injunction will not necessarily make I.S.I. Security whole; it only increases the probability that I.S.I. Security will collect a portion of its judgment. *325In my estimation it is poor policy and an abuse of the injunctive power to place defendants, even those that are likely to have a judgment rendered against them, in a financial deep freeze while a lawsuit proceeds to its conclusion. See Grupo Mexicano Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999) (federal district court exceeded its authority by issuing an injunction that prevented defendants from disposing of their assets pending adjudication of plaintiffs’ claim for money damages). It is better policy to require the party seeking the injunction to show that the defendant is or is about to dissipate his assets with the intent to defraud his creditors. See IC 34-26-1-6.

I.S.I. Security did not demonstrate to the trial court that its remedy at law is inadequate. I conclude that the trial court abused its discretion in granting the preliminary injunction. Therefore, I dissent.

. A court may not grant an injunction unless the party seeking the injunction has established that "the threatened injury to the mov-ant outweighs the threatened harm the grant of the injunction would occasion upon the nonmovant." Jay County Rural Elec. Membership Corp. v. Wabash Valley Power Assoc., Inc., 692 N.E.2d 905, 908 (Ind.Ct.App.1998), trans. denied. The effect that the injunction has on the dissolution action weighs heavily against granting the injunction. Although Judith briefly argued that the injunction was sought for the ulterior purpose of hindering the Pauls’ divorce, I agree with the majority that she failed to adequately argue the point. Accordingly, I base my dissent on other grounds.

. In granting the injunction here, the trial court found: "The Plaintiffs’ remedy of law is inadequate in that the Defendants would have insufficient liquid assets and/or insufficient non-liquid assets against which it might obtain funding to pay an award of damages to Plaintiffs in this cause.” Record at 71.