### 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: 

## JUL10

## 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 arosebecause defendantparked 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 injunctionpreventing defendant fromparking his

car in suchmanner 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 actionwas 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 judgeswere disqualified. Also, new counsel for defendant came into the case. Hearings were set onmotions but itwas 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 inAnaconda, Montana. Defendant

owns a triangular shaped piece of property on the Northeast

corner of the 1000block 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 thatbeginning in 1974 defendant parked his vehicle atthe Southwest corner of Park and Jefferson (see diagram) insuch a manner as toprevent tourists and othersnot familiarwith the locationof plaintiffs' business from seeing plaintiffs' business, and from making proper entry into the business. It is alleged that such parking 

### was done maliciously, tovex and harass plaintiffs. Defendant contends he was legallyparked infrontof his

own property, within theparking boundaries established by the Montana Department of Highways and, as such, cannot be considered a "nuisance". Defendant testified he parked his vehicle inthat location foryears without complaint from plaintiffs' predecessor intitle. Defendant further testified thatothers parked inthe location as

### well. InJuly 1974 defendant

### was issued a ticked for illegal parking by theAnaconda City Policebecause he parked inthe disputed area. The ticketwas subsequently dismissed by the cityjudge. AttheMay 3, 1976, hearing on themotion to quash, defendant attempted tointroduce 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 thosewhich 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), 80Mont. 293, 260 P. 727, itwas stated: "Wherethematter 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 dissolvepresented 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

## * * 

## *." 80Mont. 302.See, State ex rel. Keast v. Krieg, (1965), 145Mont. 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 thismatter is submitted to the Court then it is submitted on the question of theMotion toQuashand 

### - or the final question inthe case as to 

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

### -- -- "MR. MACKAY: Yes, if it please the Court. "THE COURT: If there isno other evidence to be offered on the question of the permanent 

### -- -- injunction, this case

### willbe concluded." (Emphasis supplied.) In substance, by continuing ineffect the temporary restrai.ningorder, Judge Olsen granted an injunction of a permanent nature, appealable as such. In his second issue, defendant contends the District Court abused its discretion ininitially 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 theplaintiff is entitled tothe relief demanded, and such relief, or any part thereof, consists inrestraining the commission or continuance of the actcomplained of, either for a limited period orperpetually; "2. When it shall appear by the complaint of affidavit that the commission or continuance of some actduring the litigationwould produce a great or irreparable injury to the plaintiff." This Court has consistentlyheld toobtain a temporary restraining order the complaint must contain a statement of material facts establishing irreparable injury or plaintiff's right tothe relief sought therein. Emery v. Emery, (1949), 122Mont. 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 contendsplaintiffs' 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), 111Mont. 241, 107 ~.2d 885; State ex rel. Cook 

### v. District Court, (1937), 105 Mont. 

### 72, 69 P.2d 746.The Washington Supreme Court in Statev. Sutton, (1940), 2 Wash.2d 523, 98 P.2d 680, stated that the "status quo" which the injunction is topreserve, consists of:

I! I

## * * * the lastactualpeaceable, noncontested statuswhich preceded the pending controversy. Ordinarily where the issuance of a preliminary injunction would have the effect of granting allthe relief that could be obtained by a finaldecree and would practically dispose of thewhole case, it willnot be granted.'" 98 P.2d 684. However, this argument appears without 

### meritasMontana courts sitting in equity have the power torestrain or enjoin the continuance of an existing nuisance aswell as a contemplated or threatened nuisance. Stateex rel. Dussault v. Fox Missoula Theatre Corp., (1940), 110Mont. 441, 101P.2d 1065; Purcell v. Davis, (1935), 100Mont. 480, 50 ~.2d 255. Defendant also argues thatbecause his actof parking

was not shown tobe 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 discretionwas abused, the order of the trial court

### willbe 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 finaldetermination of the

cause on themerits. Atkinson 

### v. Roosevelt County, supra; Lowery v. Cole, (1913), 47 Mont. 64, 130 P. 140. This Court inAtkinson stated:"I* 

## * * And the court should be inclined to issue a temporary injunction applied forwhere the plaintiff has made out a prima faciecase, or if, upon the showing made, it is leftdoubtfulwhether ornot theplaintiff 

### willsuffer irreparable injury before his rights can be fully investigated and determined; it is not necessary that a case be made which would entitlehim torelief atallevents on final hearing. 

## * * * "I*

## * * It isnot necessary that the courtbe satisfiedthattheplaintiff 

### willcertainly prevail on the finalhearing; "a probable right, and a probable danger that such right 

### willbe defeated, without the special interposition of the court," is allthatneed 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 defendantwas restrained from parking in such mannger as toprevent visibilityof and proper ingress toplaintiffs' 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 todefendant's vehicle, nor how much each would have spentupon entering. Defendant's final issue argues theorder continuing the temporary restraining order was void for lapse of time. In other words, defendant assertsthe temporary restraining order expired after a reasonable time without notice and hearing, such that the District Court 

### waswithout jurisdiction toorder the continuance of it. In Stateex rel. Cook 

### v. District Court, supra, it is stated: 

## "*

## * * It is the duty of the court upon granting a temporary restraining order withoutnotice, to setthematter for hearing for an injunctionpendente liteata very early date, tothe end that a 'temporary expedientmay not, infact, become an injunction.' 

## * * 

## * And sixweeks has been held an unreasonable time torestrainwithout notice and a hearing." 105Mont. 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, interlocutoryor 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. Itpreserves the status quo pending

an adjudication on the merits. It seeks to prevent threatened wrong, further injury, and irreparableharm 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), 124Mont. 543, 222 P.2d 597; Kansen v. Galiger, (1949), 123 Mont. 101, 208 P.2d 1049. Recognizing that thiswas 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 itwas 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 statementwas made, and not the truth thereof and that, in any event, the evidencewas admissible under the "transactionrule". Section 93-401-7,R.C.M. 

### 1947; Stayg

### v. Stagg, (1934),96Mont. 573, 32 P.2d 856; Sullivanv. ~etropolitan ~ife Ins. Co.,(1934), 96 Mont. 254, 29 P.2d 1046; Welch v. AllPersons, (1929), 85 Mont. 114, 278 P. 110; Burns v. Smith, (1898), 21Mont. 251, 53 P. 742. Finallydefendanturges the ticket isrelevant as tending to establishormake probable a disputed fact (i.e., the legalityof 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 tohave littlebearing on this Court's ultimate decision. The order of the court continuing the temporary restraining order 

### is upheld. The cause isremanded to the District Court with directions to expedite the trialof the cause fordamages.

Jus ticeL---

We Concur: 

# u

-

# )& :JdLcL/~;j JusticesINTHE 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 ."TEOF MBN'iANA

ORDER

PER CURIAM: An error having been discovered inthe Opinion issued in the above entitled cause where the diagram on Page 3 of that Opinion is incorrect, ITIS ORDERED that the Page 3 attached hereto be substituted forPage 3 of the original Opinion.. DATED this day of September, 1978.

ief Justic

.?