No. 13507 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

JOHN BOYER and LAURA LU BOYER, 

Plaintiffs and Respondents, 

ANTHONY L. KARAGACIN, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robb and Botsford, Missoula, Montana 

Archie J. Robb argued, Missoula, Montana 

McCaffery and Peterson, Butte, Montana 

For Respondents: 

Knight, Dahood, MacKay and McLean, Anaconda, Montana 

Conde MacKay argued and Bernard J. Everett argued, 

Anaconda, Montana 

Submitted: June 15, 1978 

Decided : 

Filed: JUL 10 1976 
Mr. Justice John Conway Harrison delivered the Opinion 

of the Court. 

This appeal is from the issuance of a temporary restraining order and the denial of a motion to quash by the 

Honorable Arnold Olsen, District Court, Silver Bow County. 

Courts become involved in all types of fights--dog 

fights, fence fights, church fights, school fights and 

street fights. This case arose because defendant parked 

his car in such a manner as to cut off traffic going into 

a drive-in. It can be classed as a street fight. 

By the time it reached this Court nearly four years 

had passed since the plaintiffs filed this cause seeking a 

permanent injunction preventing defendant from parking his 

car in such manner as to block proper ingress to plaintiffs' 

place of business; for damages for loss of business; and, 

for exemplary damages for the alleged malicious character 

of defendant's actions. The action was filed September 14, 

1974. A temporary restraining order was issued by the 

Honorable Robert J. Boyd. Thereafter, Judge Boyd disqualified himself and between September 25, 1974 and October 1975, 

four additional judges were disqualified. Also, new counsel 

for defendant came into the case. Hearings were set on motions but it was not until May 3, 1976 that Judge Olsen 

heard defendant's motion to quash. 

Plaintiffs operate a drive-in restaurant in the 1100 

block of East Park Avenue in Anaconda, Montana. Defendant 

owns a triangular shaped piece of property on the Northeast 

corner of the 1000 block of East Park Avenue. East Park is 

a one-way street, running in an easterly direction, and is 

classified and regulated as a state highway. Lying between 

the properties of the respective parties and intersecting 

East Park is a short, oil covered gravel drive, known as 

Jefferson Street. 
Plaintiffs allege that beginning in 1974 defendant parked 

his vehicle at the Southwest corner of Park and Jefferson (see 

diagram) in such a manner as to prevent tourists and others not 

familiar with the location of plaintiffs' business from seeing 

plaintiffs' business, and from making proper entry into the 

business. It is alleged that such parking was done maliciously, 

to vex and harass plaintiffs. 

Defendant contends he was legally parked in front of his 

own property, within the parking boundaries established by the 

Montana Department of Highways and, as such, cannot be considered a "nuisance". Defendant testified he parked his 

vehicle in that location for years without complaint from 

plaintiffs' predecessor in title. Defendant further testified 

that others parked in the location as well. 

In July 1974 defendant was issued a ticked for illegal 

parking by the Anaconda City Police because he parked in the 

disputed area. The ticket was subsequently dismissed by the 

city judge. At the May 3, 1976, hearing on the motion to 

quash, defendant attempted to introduce evidence concerning 

the issuance and dismissal of the ticket. However, the testimony was excluded upon plaintiffs' objection. 
Defendant raises three issues: 

1. Is the July 26, 1976 order of the District Court, 

continuing in effect its temporary restraining order, an 

appealable order under Rule 1, M.R.App.Civ.P.? 

2. Did the District Court abuse its discretion in 

initially issuing and subsequently refusing to quash the 

temporary restraining order? 

3. Did the District Court err in excluding evidence 

offered by defendant at the hearing on the motion to quash 

concerning the issuance and dismissal of the parking ticket? 

Defendant first argues that the order of the District 

Court continuing in effect the temporary restraining order 

and denying the motion to quash is an appealable order. 

Under Rule l(b), M.R.App.Civ.P., an aggrieved party 

may appeal from an order granting or refusing an injunction. 

Generally, this Court has determined the appealability of 

injunctive orders by distinguishing between those which are 

temporary or permanent in substance, without regard to form. 

Guardian Life Ins. Co. v. State Board of Equalization, (1959), 

134 Mont. 526, 335 P.2d 310; State ex rel. Public Service 

Commission v. District Court, (1936), 103 Mont. 563, 63 P.2d 

1032. In Labbitt v. Bunston, (1927), 80 Mont. 293, 260 P. 

727, it was stated: 

"Where the matter is heard upon an order 

to show cause, the right to a temporary 

injunction is 'adjudicated' by the decision 

rendered after the hearing * * * so here as 

the motion to dissolve presented the question of plaintiff's right to the restraining 

order, and the decision on the motion was 

equivalent to a decision on the hearing on 

the order to show cause and rendered such a 

hearing needless, the order of September 24, 

was an 'adjudication' of the plaintiff's 

right to an injunction pendente lite and an 

order refusing to dissolve an injunction, 

from which an appeal lies * * *." 80 Mont. 302. 
See, State ex rel. Keast v. Krieg, (1965), 145 Mont. 521, 

432 P.2d 405. 

Here, the order continuing the temporary restraining 

order appears appealable because it has the effect of a permanent injunction. The record reveals that Judge Olsen 

regarded the issue as whether or not a permanent injunction 

should be granted: 

"THE COURT: Very well, when this matter is 

submitted to the Court then it is submitted 

on the question of the Motion to Quash - and 

-- or the final question ----- in the case as to 

whether -- or not there be a permanent injunction. -- 

"MR. MACKAY: Yes, if it please the Court. 

"THE COURT: If there is no other evidence to 

be offered -- on the question -- of the permanent 

injunction, this case will be concluded." 

(Emphasis supplied.) 

In substance, by continuing in effect the temporary 

restrai.ning order, Judge Olsen granted an injunction of a 

permanent nature, appealable as such. 

In his second issue, defendant contends the District 

Court abused its discretion in initially issuing and subsequently refusing to quash the temporary restraining order. 

Under Montana statute, section 93-4204(1)(2), R.C.M. 

1947, an injunctive order may be granted: 

"1. When it shall appear by the complaint that 

the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, 

consists in restraining the commission or continuance of the act complained of, either for 

a limited period or perpetually; 

"2. When it shall appear by the complaint of 

affidavit that the commission or continuance 

of some act during the litigation would produce a great or irreparable injury to the 

plaintiff." 

This Court has consistently held to obtain a temporary 

restraining order the complaint must contain a statement of 

material facts establishing irreparable injury or plaintiff's 

right to the relief sought therein. Emery v. Emery, (1949), 

122 Mont. 201, 200 P.2d 251. 
However, equity will not interfere by way of injunction where the law can furnish all the relief to which the 

complaining party is entitled, as by monetary damages. 

State ex rel. Keast v. Krieg, supra. 

Defendant contends plaintiffs' complaint failed to 

establish the irreparable nature of the injury caused by 

defendant's parking, as the complaint specifies monetary 

damages compensable as such under the law without resort 

to equity. 

Plaintiffs, however, appear to be correct in responding 

that a plaintiff in a nuisance action can seek judgment 

that the nuisance be enjoined, as well as damages recovered. 

Section 93-6101, R.C.M. 1947; Thrasher v. Hodge, (1929), 86 

Mont. 218, 283 P. 219. Further, plaintiffs contend precise 

monetary damages for loss of business due to defendant's 

actions are not precisely ascertainable because of the 

peculiar nature of the allegedly harmful activity, in relation to the asserted harm. 

Defendant further argues the impropriety of the initial 

grant of injunctive relief on the ground that the effect of 

the temporary restraining order is a change in the status 

quo, contrary to Montana case authority. Plaintiffs do 

not respond to this argument. 

It is well settled that the purpose of a temporary 

restraining order is to preserve the status quo until a 

hearing can be held to determine whether an injunction 

pendente lite should be granted. State ex rel. ~c~enzie 

v. District Court, (1941), 111 Mont. 241, 107 ~.2d 885; 

State ex rel. Cook v. District Court, (1937), 105 Mont. 

72, 69 P.2d 746. 
The Washington Supreme Court in State v. Sutton, (1940), 

2 Wash.2d 523, 98 P.2d 680, stated that the "status quo" 

which the injunction is to preserve, consists of: 

I! I * * * the last actual peaceable, noncontested status which preceded the pending 

controversy. Ordinarily where the issuance 

of a preliminary injunction would have the 

effect of granting all the relief that could 

be obtained by a final decree and would 

practically dispose of the whole case, it 

will not be granted.'" 98 P.2d 684. 

However, this argument appears without merit as Montana 

courts sitting in equity have the power to restrain or enjoin 

the continuance of an existing nuisance as well as a contemplated or threatened nuisance. State ex rel. Dussault v. 

Fox Missoula Theatre Corp., (1940), 110 Mont. 441, 101 P.2d 

1065; Purcell v. Davis, (1935), 100 Mont. 480, 50 ~.2d 255. 

Defendant also argues that because his act of parking 

was not shown to be other than legal, it could not be 

enjoined, temporarily or otherwise. However, it is clear 

that an act, while technically legal, may be enjoined as a 

nuisance. 66 C. J. S. NUISANCES, ~lll.(c)., - 874,875. 

As a general rule, the granting of a temporary restraining order rests within the sound discretion of the 

trial court. Atkinson v. Roosevelt County, (1923), 66 Mont. 

411, 214 P. 74; Rea Bros. Sheep Co. v. Rudi, (1912), 46 Mont. 

149, 127 P. 85. Unless it appears on appeal that such discretion was abused, the order of the trial court will be 

affirmed. Postal Telegraph-Cable Co. of America v. Nolan, 

(1916), 53 Mont. 129, 162 P. 169. 

The same analysis is applicable to a continuance of an 

injunction, upon hearing, pending final determination of the 

cause on the merits. Atkinson v. Roosevelt County, supra; 

Lowery v. Cole, (1913), 47 Mont. 64, 130 P. 140. This Court 

in Atkinson stated: 
"I* * * And the court should be inclined to 

issue a temporary injunction applied for where 

the plaintiff has made out a prima facie case, 

or if, upon the showing made, it is left doubtful whether or not the plaintiff will suffer 

irreparable injury before his rights can be 

fully investigated and determined; it is not 

necessary that a case be made which would 

entitle him to relief at all events on final 

hearing. * * * 

"I* * * It is not necessary that the court be 

satisfied that the plaintiff will certainly 

prevail on the final hearing; "a probable 

right, and a probable danger that such right 

will be defeated, without the special interposition of the court," is all that need be 

shown.' (Sec, 1685, Pomeroy's Equity Jurisprudence, 4th ed.)." 66 Mont. 422. 

Here, plaintiffs offered proof that they had suffered 

and would continue to suffer a loss of business unless 

defendant was restrained from parking in such mannger as 

to prevent visibility of and proper ingress to plaintiffs' 

business. Plaintiffs contend, and it appears reasonable to 

conclude, that this showing alone is sufficient as there is 

no means of determining the precise number of potential 

patrons who passed by the drive-in due to defendant's 

vehicle, nor how much each would have spent upon entering. 

Defendant's final issue argues the order continuing 

the temporary restraining order was void for lapse of time. 

In other words, defendant asserts the temporary restraining 

order expired after a reasonable time without notice and 

hearing, such that the District Court was without jurisdiction to order the continuance of it. 

In State ex rel. Cook v. District Court, supra, it is 

stated: 

"* * * It is the duty of the court upon 

granting a temporary restraining order without notice, to set the matter for hearing 

for an injunction pendente lite at a very 

early date, to the end that a 'temporary 

expedient may not, in fact, become an injunction.' * * * And six weeks has been held an 

unreasonable time to restrain without notice 

and a hearing." 105 Mont. 75, 76. 
Here, while the temporary restraining order was initially granted on September 11, 1974, it had gone without a 

hearing until May 1976, a period of over one and one-half 

years. A temporary injunction is a procedural device, 

interlocutory or provisional in nature granted at the commencement of an action before there can be a determination 

of the rights of the parties to preserve the subject in 

controversy in its existing condition pending a determination. It does not determine the merits of a case or decide 

controverted facts. It preserves the status quo pending 

an adjudication on the merits. It seeks to prevent 

threatened wrong, further injury, and irreparable harm 

until the rights of the parties are adjusted. 43 C.J.S. 

INJUNCTIONS, 55; Montana Power Co. v. Environmental Protection Agency, (1977), 429 F.Supp. 683; Sheridan County Electric Co-op v. Ferguson, (1951), 124 Mont. 543, 222 P.2d 

597; Kansen v. Galiger, (1949), 123 Mont. 101, 208 P.2d 1049. 

Recognizing that this was raised by defendant in his 

motion to quash, we find no merit due to the delays of 

defendant in changing counsel and disqualifying the judges 

called in. 

Defendant contends the District Court erred in excluding upon objection on the grounds that it was irrelevant 

and hearsay, the evidence offered concerning the issuance 

and dismissal of the parking ticket. 

It is maintained that evidence is not hearsay when 

offered, as here, in proof of the fact that a statement was 

made, and not the truth thereof and that, in any event, the 

evidence was admissible under the "transaction rule". Section 93-401-7, R.C.M. 1947; Stayg v. Stagg, (1934), 96 Mont. 

573, 32 P.2d 856; Sullivan v. ~etropolitan ~ife Ins. Co., 
(1934), 96 Mont. 254, 29 P.2d 1046; Welch v. All Persons, 

(1929), 85 Mont. 114, 278 P. 110; Burns v. Smith, (1898), 

21 Mont. 251, 53 P. 742. 

Finallydefendant urges the ticket is relevant as 

tending to establish or make probable a disputed fact (i.e., 

the legality of defendant's parking and his intent in so 

doing). 

As defendant, on this appeal, requests that the order 

continuing injunctive relief be quashed, this issue appears 

to have little bearing on this Court's ultimate decision. 

The order of the court continuing the temporary restraining order is upheld. The cause is remanded to the 

District Court with directions to expedite the trial of 

the cause for damages. 

Jus ticeL--- 

We Concur: u 

- )& :JdLcL/~;j 

Justices 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 13507 

JOHN BOYER and LAURA LU BOYER, 

F Plaintiffs and Respondents, 

ANTHONY L. KARAGACIN, 

Defendant and Appellant. CLm?s& c:? SUPi'iE@iE COURT 

."TE OF MBN'iANA 

ORDER 

PER CURIAM: 

An error having been discovered in the Opinion issued in 

the above entitled cause where the diagram on Page 3 of that 

Opinion is incorrect, 

IT IS ORDERED that the Page 3 attached hereto be substituted 

for Page 3 of the original Opinion.. 

DATED this day of September, 1978. 

ief Justic 

.?