dissenting.
I understand that the Apartments find themselves in an aggravating situation-having to dedicate extra employee time to cleaning up the Renter's Gazette from its properties, losing tenants who buy a home as a result of information contained in the Renter's Gazette, and fearing a loss of prospective tenants who see the littered properties and choose not to rent an apartment. But I believe that granting the requested preliminary injunction gives landlords an unprecedented right to bar whomever they choose from their properties, and I also believe that the injunction violates Campbell Realty's and the tenants' rights under the First Amendment to the United States Constitution and Article I, Section 9 of the Indiana Constitution. Therefore, I respectfully dissent from the majority opinion.
I. Trespass
The majority concludes that a landlord has the right to exclusive possession of the common areas of its apartment building such that it may bring an action for trespass. It further concludes that while a tenant has the right to exclusive possession of her apartment, she has only a license to use the common areas of her apartment building, and is an invitee of the landlord while in the common areas. I *171agree that a landlord has a possessory interest in common areas to the extent that needs to repair and maintain them, see City of Indianapolis Hous. Auth. v. Pippin, 726 N.E.2d 341, 345 (Ind.Ct.App.2000), but I respectfully disagree that its interest goes any farther than that.
To hold that a landlord has the right to exclusive possession of the common areas of an apartment building is tantamount to the notion that a landlord has the right to bar anyone of its choosing-not just solicitors-from the premises. While a tenant may agree to such a condition if it is included in her lease, I believe it is unwise for the judiciary to read that condition into a contract-especially where, as here, the already-executed lease governing the landlord-tenant relationship contains no such provision.
Although the Apartments and the majority opinion attempt to distinguish between invited guests-such as The Indianapolis Star and food delivery people- and non-invited guests-such as the Renter's Gazette delivery people-giving landlords the right to exclusive possession of common areas means that they may bar whomever they choose from the premises-including friends and other guests of tenants. Moreover, even if I accept the distinction between invitees and non-invitees for argument's sake, there is evidence in the record that not only did some tenants have no objection to the delivery of the Renter's Gazette, they even decided to purchase a new home based on the information contained therein. Appellant's App. p. 17. Indeed, this loss of business is inarguably a significant-and troublingly content-based-component of the Apartments' problem with the newspaper. I respectfully disagree with the majority's holding that landlords have the right to exclusive possession of common areas, therefore, because I believe that this holding will have far-reaching and unintended implications for the landlord-tenant relationship.
II. Irreparable Harm
I also disagree with the conclusion that the Apartments have shown irreparable harm as a result of the distribution of the Renter's Gazette: There are two ways in which the Apartments attempt to show irreparable harm. The first, concerning litter from the Renter's Gazette blowing around the Apartments' properties, does not qualify for a preliminary injunction because money damages would suffice to remedy this harm. The second, involving a loss of business as a result of the decision of certain tenants to buy a home after reading the Renter's Gazette, is a content-based argument that causes the injunction to violate the United States and Indiana Constitutions.
A. Litter
The Apartments introduced evidence of added clean-up costs, unsightly appearance, and security concerns caused by unclaimed issues of the Renter's Gazette. I agree that this evidence shows that the Apartments have been harmed by the distribution of the Renter's Gazette, but I disagree that it shows irreparable harm such that an injunction is appropriate relief. Initially, the record does not appear to reveal whether the Renter's Gazette is the only printed material that blows around and leaves litter on the premises. It may be that the Apartments have similar problems with other printed material, such as The Indianapolis Star and USA Today. Moreover, it would not be difficult to quantify the number of employees, the number of hours, and the salary per hour of each employee, which is regularly required to clean up the Renter's Gazette litter. Because it is quantifiable, money damages are adequate, and an injunction is inappropriate.
*172B. First Amendment
The Apartments also argue that they may keep the Renter's Gazette from their tenants because it has damaged the Apartments' business. To wit, the Apartments point to the loss of long-time tenants who decided to buy a home after reading the Renter's Gazette, Appellant's Br. p. 7, and to some of the content in the Renter's Gazette that is "calculated to cause residents to look unfavorably on the apartment communities and their management." Id. p. 4. The majority agrees, highlighting evidence that "some tenants were not renewing their leases and had instead decided to buy a new home due to information they had received in the Renter's Gazette." Slip op. p. 14. Based on this argument, I believe that the injunction violates the First Amendment to the United States Constitution and Article I, Section 9 of the Indiana Constitution. See Mishler v. MAC Sys., Inc., 771 N.E.2d 92, 97 (Ind.Ct.App.2002) (holding that trial court's issuance of an injunction is state action sufficient to implicate Article I, Section 9); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind.Ct.App.2001) (same, with respect to First Amendment of U.S. Constitution).
In my opinion, enjoining the distribution of the Renter's Gazette is an impermissible prior restraint. While the Apartments point to Mishler as support for their argument that because Campbell Realty could have distributed the Renter's Gazeilte in other ways and in other places an injuncetion would not be a prior restraint, in fact Mishier stands for the opposite conclusion. The Mishler court noted that the injunetion in that case was an impermissible prior restraint because the plaintiffs were "prevented from exercising their state constitutional right to speak 'on any subject whatever' by the means they deemed most appropriate ...." TTL N.E.2d at 98 (emphasis added). The Mishlers could have shared their opinion by writing a letter to the editor, creating and mailing a newsletter to people in the community, or organizing a protest, but because the injunction prevented them from sharing their opinion by the means they deemed most appropriate-via a sign in their yard-it was an impermissible prior restraint.
Similarly, while it is true, as pointed out by the majority, that Campbell Realty would be free to distribute the Renter's Gazette in other venues such as "grocery stores, drug stores, gas stations, restaurants, and along some city streets," slip op. p. 16, that does not change the fact that Campbell Realty has the right to express itself by the means it deems most appropriate, which appears to be distribution directly to the Apartments' tenants. An injunction preventing Campbell Realty from doing so amounts to an impermissible prior restraint.
Moreover, as acknowledged by the majority, the tenants have a right, pursuant to the First Amendment, to receive information and ideas. Op. at p. 170. I disagree with the majority's conclusion that because Campbell Realty could still publish and distribute the Renter's Gazette in other locations, the preliminary injunction would not interfere with this right. Indeed, a preliminary injunction barring the distribution of the Renter's Gazette directly to the tenants because the Apartments are troubled by its content is a fundamental and impermissible violation of the tenants' right to receive that information, and I believe that it violates the First Amendment and Article I, Section 9.
Therefore, I would affirm the trial court's denial of the preliminary injunction.