*1 175 Respondent, & S K v. al., PORTER HOWARD et Plaintiff BRAD partnership, PARTNERSHIP, a Montana Ap PEMBERTON, al., REHBERG Defendants et JACK pellants. 80-290. No. 17, 1981. Feb.
Submitted April Decided P.2d 836. *2 Hanson, Dietrich, Toole & Crowley, Haughey, L. Billings, Randall for argued, Billings, defendants Bishop appellants.
Anderson, & Edwards A. Clifford Edwards Molloy, Billings, for argued, Billings, plaintiff respondent.
MR. delivered the of the opinion WEBER Court. JUSTICE & The defendants are S and the named members Partnership K to as K & K & are referred S. S partnership. Collectively they from the appeals conclusions and order findings, Thirteenth District Court of Yellowstone & County K S enjoining Judicial from here involved for other than using building any purpose Porter, aas Howard single-family dwelling. his own behalf and in behalf of other owners of in the Grandview Subdivision property is the and is herein referred to as Billings, Porter. plaintiff on Porter’s Following motion hearing preliminary injunction, and after briefs were submitted parties, both the District held that the operation an property triplex apartment K & violates S certain restrictive covenants to which the property subject, and that Porter is not barred the restrictive enforcing laches, covenants doctrines of waiver or ac- estoppel, Furthermore, quiescence. the court held that enforcement restrictive covenants will not unconstitutionally deny equal protec- tion of the laws to &K S or the K & S tenants under the Fourteenth Amendment to the U.S. Constitution. The preliminary injunction allows &K S the to show cause at a opportunity later date why injunction should not be made permanent.
The preliminary has been stayed pending appeal. The issues as discussed K & are as S follows: 1. Did the District Court err by concluding any action to enforce the restrictive covenants is not barred doctrines of laches, waiver estoppel, or acquiescence?
2. Did the District in Court err concluding that enforcement of the restrictive covenants will not deny equal protection law to &K S or its tenants?
3. Did the District err in Court to Porter granting preliminary injunction?
4. Did the District err in Court to admit refusing certain evidence?
We hold that the District Court erred in the preliminary granting injunction. This answers third issue and of this disposes appeal. We do not consider issues number one and two because are they not before this on the properly merits. A discussion of the defenses of & K S would be part premature final pending We do discuss the evidence at the trial court level. determination four. of issue number questions owners in are represents property and the others whom he
Porter The original in Billings. Subdivision and residents Grandview subdivision, and executed in that lots owner of platted Sub- Grandview Affecting of Restrictions recorded “Declaration an older & purchased In 1980 K S division at Montana”. Billings, of operating admitted purpose house in the subdivision are alumni The purchasers triplex. house as an apartment of that members and rent primarily Sigma fraternity, Kappa and the homeowners Porter College. Montana Eastern fraternity their based upon an damages he seek represents on most subdivi- the restrictions placed that such use violates claim sion property and is expressly is comprehensive
The Declaration Restrictions and for its owners of the present made the use benefit “for as number things cover such The restrictions future grantees”. constructed, costs of minimum be which can buildings kind residences, fence and win- heights, of front and side yards, width of such following portions dow and porch projections. are of Restrictions pertinent: Declaration RESTRICTIONS BY THESE BOUND “PERSONS any in- acquire now own or shall hereafter . who “All . . persons . taken . . shall be Subdivision of the lots in Grandview any terest in of the lots shown on with the owner and covenant and held agree to and observe to conform his heirs and assigns said and with plat to the use covenants, and stipulations restrictions following . . . thereof
“USE OF LAND used or occupied bemay improved, of said lots 1. None “Section apartment and no flat or residence private purposes for other than *4 house, be erected may for residence purpose, intended though shall be thereon or maintained residence erected thereon. Any family. a single for designed occupancy by 9. DEFINITIONS “Section —
“Family One or more persons and living, sleeping usually and on the cooking eating premises, unit. single housekeeping “Section 12. RIGHT TO ENFORCE “. . . owner or owners of of the above any land shall have [T]he to sue for and right obtain an or man- injunction, prohibitive of, datory, the breach or to prevent enforce the observations of forth, the restrictions set above in addition to action ordinary legal for and damages, the failure of . .. the owner ... of . . . any . lot. . forth, to enforce the restrictions herein set at the time of its viola- tion, shall in no event be deemed to abe waiver of the to do so right thereafter ...”
Porter filed verified and complaint application preliminary injunction on March 1980. &K S filed its answer on April 1980. answer denies covenants, violation any of the restrictive defenses interposes sounding equal protection, waiver and acquiescence, laches estoppel. on the Hearing application for was held on April owner, shows that a evidence Mrs. Froney, who previous S, sold the to & house K had rented out rooms or con- apartments over About tinuously period 1940 Mrs. years. Froney began her basement to five renting or six female students at the request Eastern Montana In College. 1952 Mrs. remodeled her at- Froney tic and rented it out as an apartment entrance. separate Mrs. Froney continued out both the renting basement and attic to dif- ferent persons and units until when family she sold the house S, to &K advertised and it as a having represented unit. triplex Porter admits knowing Mrs. out Froney’s practice renting substance, rooms. In stated they Porter allowed this because they her, knew knew she lived and knew that she would premises, run a quiet Also Porter and the others believed that she bad- place. needed the & ly money. K S testified that the of the house purchase Pemberton, was made it to be a who believing Brad legal triplex. S, acted for K & stated that had no he the restrictive knowledge covenants not have unit if prior purchase would bought he had known of them.
180 several other that at indicates hearing testimony
Other many fraternity A years. not been enforced restrictions have numerous that he had counted stated triplex in living member General fence restrictions. height which were in violation of fences K & at- were also made. S in other houses of apartments allegations of the sub- other residents by signed to introduce petition tempted to the have no objection that residents division which states those as not rele- the trial court by was excluded but the petition triplex, that, due to evidence to prove & submitted vant. K S Finally, the character area over years, in the development surrounding of the enforcement has so greatly of the subdivision changed be would restrictions now inequitable. of the by that the use house Court specifically
The District found restrictions; & had that K S is a violation of the & as a triplex K S house; that the it purchased the time notice of restrictions was different Froney materially use of the house Mrs. previous use, is not barred by estoppel, and that Porter from the present addition, the restrictions. In enforcing laches or waiver that enforcement of the restrictions against District Court found and, K & is not a that evidence equal S denial protection; and in change surrounding in the subdivision development & to show character sub- change areas offered K S now covenants division such that enforcement the restrictive not to the action. would be was relevant inequitable, outset, not involve a does judg- we note this appeal At It involves preliminary after trial on the merits. ment rendered such to remain after hearing, injunction granted final on the merits after the in effect until the determination only are Preliminary injunctions by Title Ch. hearing. governed 27-19-201, MCA, provides section Parts 3 and Specifically, be injunctions may granted: when preliminary “ An be injunction may granted. When cases: in the may following order be granted “(1) is entitled to the when it shall appear applicant consists in thereof any part such relief or relief demanded restraining commission or continuance of the act complained of, either for a limited or period perpetually;
“(2) when it shall that the commission or appear continuance some act during the would litigation produce irreparable great added.) to the . injury . .” applicant (Emphasis The preliminary injunction statutes have been construed and ap- plied by times. statutes were many amended legislature, Montana but the are changes procedural *6 nature. The statutes now a require on the in all hearing application cases, whereas prior 1979 have preliminary injunction could been on the granted alone under certain pleadings circumstances. 399, (1979). See Ch. Laws of Montana
The allowance of a preliminary injunction is vested in the Court, sound discretion of the District legal with the exercise which the Court will not Supreme interfere in instances except manifest (1923), abuse. Atkinson v. County Roosevelt 66 Mont. 411, 421, 74, 76-77; 214 (1921), P. Parsons v. 59 Mussigbrod 336, 340, 528, Mont. 196 P. 529. An applicant for preliminary case, must establish a injunction facie or prima show that it is at least doubtful whether or not he will suffer injury irreparable made, before his can be rights fully either If is litigated. showing then are courts inclined to issue preliminary injunction preserve status quo trial. Rea Bros. pending Co. v. Rudi Sheep (1912), 149, 160, 85, 46 Mont. 127 P.
“Status has been quo” defined as follows: ‘. . . the last actual noncontested peaceable, condition which ” ” (1946), . preceded pending . State v. Sutton 2 controversy. 523, 684; (1978), Wash.2d 98 P.2d State v. Oldham 283 Or. Phrases, 584 P.2d 743. See also Words and 40 “Status Quo”.
The last noncontested peaceable, condition here consisted Mrs. out second Froney’s practice renting story apartment and basement as well as on the main floor herself. apartment living then, The established status would be that of a quo three-family unit, as defined the restrictions. The order of District Court that the usage requiring quo by the status altering effect of
has the of this in- effect single family. occupancy be limited the dwelling the rental reduce substantially is to junction unit. a three-family be rented it could no longer because if suffer might injury not find that Porter Court did The District The District Court ap- did not issue. injunction the preliminary MCA, 27-19-201(1), pro- which under section parently proceeded when it appears of a preliminary for the vides granting and such relief to the demanded is entitled relief that the applicant find- no Although of an act. the commission consists restraining required injury damage ing the injury to minimize it is the court’s duty under that paragraph, Atkinson, As stated to all to the controversy. or damage parties 77: 214 P. Mont. will of this court this appeal the endeavor upon “. . . the limit of that, suit, whatever to this of all parties be to so protect rights issues, may these each injury decision of be the ultimate may added.) minimum.” (Emphasis he reduced to the & is a fac- of rental income Kby significant loss S potential to be tor considered. facie that the restrictive showing of Porter’s prima
In rebuttal
*7
violated,
to
&
evidence tending
K S submitted
being
covenants are
(a)
acquiescence
show the following:
long-standing
covenants Mrs.
in violations of the restrictive
neighborhood
unit, (b)
owner and renter of the three-family
Froney,
prior
the subdivi-
throughout
covenants
violations of other restrictive
sion,
(c)
& that is
similar
substantially
K S
usage by
present
as a three-family
rented the property
in that both
Froney,
of Mrs.
showing
facie
We find such evidence does rebut
prima
unit.
violated.
Porter that the restrictions are being
made by
rebutted,
case was
concluded that Porter’s
facie
Having
prima
not be
and that the
that the status
would
quo
injury
preserved,
minimized, we hold that
issuance of the
all would not be
in-
was a manifest abuse of discretion. The
preliminary injunction
183
dissolved,
and the case remanded to the District Court
junction
on the
trial
merits.
We
out that we
no
as to the ultimate
point
express
opinion
court,
merits of the action. “It is not the
of the district
nor
province
Court],
to determine
matters that
arise
Supreme
finally
may
[the
Atkinson,
78;
425,
a trial on the merits.”
upon
66 Mont.
P.
542,
(1920),
Blinn v. Hutterische Soc.
Creek
58 Mont.
of Wolf
554-555,
194 P.
143. In
relief
granting temporary
by injunc
tion, courts of equity should in no manner
anticipate
ultimate
Rather,
questions
determination
of right involved.
the court
should
merely
decide
whether
sufficient
has
case
been made out
to warrant the
preservation
property
status
rights
quo
trial,
until
without
final
as to
expressing
opinion
such
An
rights.
not
applicant need
make out such a case as would entitle him to
Atkinson,
422, 424,
final
on the merits.
judgment
66 Mont.
214 P.
77, 78;
Co.,
Rea Bros.
Sheep
Mont.
Appellants appropriate evidence. no. fact the District Court found that ing evidence in the character of the subdivision caused changes by developments land was not relevant to the neighboring question whether the restrictions on the are violated. The authorities triplex being agree, however, that where the restricted area has so changed radically over the such that years intent of the restrictions purpose defeated, totally are then cannot enforce the restrictions. equity must be so as to change radical and neutralize the permanent benefits the restrictions. 7 on Real Thompson Ch. Property § *8 184 684; 20 211-216); Ch. on Real Property § 5 Powell (pages Restrictions, Covenants, §§ Conditions
Am.Jur.2d merits, should consider the District Court the trial on the At the specific and outside subdivision of inside changes effect on the con- as alleged, of Widespread renting apartments restricted area. traffic, in- and development nearby increased streets and gested College, Montana and Eastern Vincent’s Hospital stitutions like St. restric- of the purposes all could have the effect defeating state, however, that greater authorities do The above-cited tions. of the inside the boundary be to changes should weight given areas. changes neighboring restricted area than ex in limine to Porter’s motion granted The District Court S, other residents & and offered K petition signed clude subdivision, no objection residents have stating the petition of the The District Court excluded operation triplex. error, and asks that this Court claims not relevant. Appellant admissible. declare petition to make the tendency having any evidence evidence
“Relevant to the determination fact that is consequence existence of any . . .” Rule or less probable the action more probable Commis- admissibility. standard allows wide This Mont.R.Evid. 401; ad- 402. The petition appears to Rule Rule sion Comment whether the character neighborhood missible on question of the restric- as to render enforcement so radically has changed on the merits. be at trial and should considered tions inequitable, for trial consistent case to the We remand the District should be if to determine a permanent this opinion granted. DALY, HAR- HASWELL
MR. CHIEF JUSTICES JUSTICE RISON, concur. MORRISON SHEA dissenting;
MR. SHEEHY JUSTICE to dissolve The reasons given Court, as indeed they to the District will be inexplicable
majority are me. *9 the opinion
There is no
the
showing
majority
plaintiff
to establish a
to
here failed
prima
right
preliminary injunc
facie
relief,
(1969),
tive
v.
Mont.
451
Bartoletti
152
P.2d
Troglia
106; nor that the District Court in
the
issuing
preliminary injunc
law,
(2d
an
of
tion made
erroneous conclusion
v.
Cir.
Spina
Ring
1945),
Instead,
I. The District Court a had to make duty findings here. of fact The duty of the District Court to make findings upon face issues in the presented on motion for hearing in- 52(a), is clear. junction Rule M.R.Civ.P. provides: “. . . in granting refusing interlocutory the court injunctions shall set forth the of similarly findings fact and conclusions of law which constitute the of its action.” grounds
It is an of established rule law that fact are to findings receive such construction as will rather than defeat the uphold (1958), thereon. judgment v. Tillman 133 Mont. Ballenger 324 P.2d Cr
II. III. The raised issues the district appellants judge decided. of fact and law findings conclusions of to be made required the District in matters Court tried without are the founda- jury
186 ultimate must be findings
tion for the decision of the court. facts, which the conclusions upon which are essential to determine (1978), Mont. the court rests its decision. Barron Marriage of course, must 891. The findings, 36 St.Rep. P.2d fact, conclusions, based and the to the material issues relate in the mat- must issues raised legal upon findings, dispose ter before the court. reaching the District opinion objects
The majority However, the case. principal “final merits opinion” this record in which District Court majority opinion ignores found: that and conclusions which affirmatively entered findings use; different materially past use of present triplex waiver, not barred the doctrines action is plaintiff’s *10 laches; and did not discriminate or that the homeowners estoppel as to create a of a certain class of residents so problem against equal protection. the motion the at
Those same issues were raised defendants the district insisted to injunction hearing. They for the preliminary of were a bar to the issuance the that those same issues judge injunction. a K & entered into contract for deed with Leona S S. Partnership 2, 1980, on for the the of Froney purchase by January partnership Pemberton, 4, a Lot Block Grandview Subdivision. Brad of member is the at Fraternity, only partner present. Kappa Sigma Pemberton, with loans other members in Kappa Sigma and assets of some with Billings Fraternity Building Corporation $2,000 $3,000 Pemberton funded the downpayment. Although of to the was purchase provide appears deny purpose house for the unit at Eastern Montana Col- chapter Kappa Sigma trial, education, of the there male of at time were lege eight on seven students residence living purchased premises, student of and one transfer associated Sigma, members Kappa Nu. Sigma 1980;
& K took S of the on possession premises January plain- tiffs filed their verified on March complaint found, her, district The the evidence judge sustains that Froney Leona of her house in began renting but that portions house, in all the of time until she sold the period Leona ex- Froney lived on the clusively ground floor home. It was Leona have Froney’s only one renter in the practice basement apart- ment and one in upstairs apartment and that she had extremely strict rules with to the conduct respect renters. Leona Froney testified that the rental she received was money necessary sustain her her she whom was daughter, The court found educating. that these facts were known but neighbors, "technical violations” the restrictions were overlooked because of their concern for Leona Froney’s welfare.
With the advent of K & S the use Partnership, premises changed to extent: there were eight living people none related each other no owner on the premises, premises. floor, The tenant on the main a member of Frater- Kappa Sigma was the nity, “property who manager” was in and who charge, paid $25 was for his services &by K S Partnership. terms,
In Leona was not simple Froney operating fraternity house; & was. of a K S house Partnership fraternity operation is not the renting unit” which “three-family purported which the status-quo upon majority depends. testified that he not have principal partner would purchased used, it
the house if could not have been as it is now being yet used he knew of the restrictions because were in the title insurance they he in- the time of and he had been policy procured purchase, formed his the house would lawyer proposed usage *11 muster under the restrictions. Leona testified: pass Froney use “Q. didn’t to conceal the fact that intended to try they They all, No, at said they? it as house did A. had that fraternity they said it was had found that already lawyers okay.” they that was to a conversation occurred dur- Froney Leona referring for of the the the house. purchase ing negotiations the that the was the new use of house foregoing dwelling It and en- found “violates the restrictions” should be district judge can & the There be no cavil that K S use of joined. Partnership’s violates that section of the restrictions which states that dwelling — the subdivision shall be buildings family the “one dwellings for, detached for one building, occupied exclusively designed used a frater- that a house dwelling It should be clear family.” as a matter restriction dwelling house violates a nity single-family and this of not erroneous in finding law. The District was Court 52(a), under Rule should not set that aside finding M.R.Civ.P. Heights in Clanton neighbors verified complaint same the was 1980. the day,
Association filed on March On and notice to gave moved for a plaintiff preliminary injunction, in- the that a on the motion for partnership hearing preliminary would be before the court on 1980. April heard junction verified filed their answer to the complaint April defendants (1) an raised as defenses: unconstitutional affirmative They (2) and waiver of the laws due equal protection process; denial of the the to use of Froney’s on the Leona premises, part plaintiff (3) with acquiescence knowledge; estoppel a long-standing through and, (4) knowledge; with acquiescence virtue longstanding same in brief filed laches. The defendants raised those objections the and in the con- District Court on date of hearing, brief, re- to their deny plaintiffs clusion of the asked court (which was an application relief time quested After the to dismiss injunction) complaint. of fact and findings the defendant submitted proposed hearing, of law In their conclu- proposed conclusions to the district judge. sions, that the restrictions had asked the court conclude they 4) acquiescence be construed (Proposal long strictly one-family for other than private plaintiff using premises 5), (Proposal abandonment laches residences constituted ex- misled K & Partnership course of S acquiescence plaintiff’s plaintiff sums of money purchase property pend large 6), and that enforcement be estopped (Proposal should right equal would a denial of tenant’s constitute -restriction *12 federal and state constitu- protection privacy guaranteed by and 10). tions (Proposal
In their brief submitted with their proposed conclu- findings cions, the contention was made is “plaintiff barred either by both, or estoppel laches or the deed enforcing restriction in question ...”
It is clear that the issues by raised the defendants are precisely issues which upon the District Court made and conclu- findings sions granting injunction. in The District had no Court other course but to rule on them because if these defenses to the issuance of a preliminary injunction well-grounded, were is en- plaintiff not titled to a injunction. preliminary
The majority opinion dissolves the issued preliminary injunction the court by ground ultimate of upon resolution the issues should await final trial on the merits. District entered specific findings conclusions in which it found affirmatively use of the is present so triplex materially different from past waiver, use that the is action not barred by the doctrines laches; and that estoppel, the landowners did not discriminate a against residents, certain class of so that the claim denial of equal is protection unfounded.” Those were the issues precisely that were presented the district appellants at the judge time of the on the hearing preliminary injunction on which the district had a judge duty make determination both to fact law, and as to to determine the propriety issuing preliminary injunction.
The District Court did not the matter it its when issued preclude con- judge this case. The district preliminary a further the matter “the de- templated providing hearing fendant at a date and time to set before court be appear if convenience of court and counsel to show cause there why, any be, said should be permanent.” not made case who could show
I cannot envision a where “an applicant is might that he entitled to final on the merits still not be judgment entitled to a unless it be this case. preliminary injunction,” may a result will an always require illogical Such decision. too narrow view the majority opinion power takes has power
District Court these matters. The District Court case being injunction upon prima issue facie A case established person seeking injunction. prima facie here. has made deci- established That the District Court clearly *13 the in the case sions which be ultimate conclusions may eventually is is a It not valid reason for the dissolving preliminary injunction. dictum) Service, v. said the court in Farm Inc. (by way Idaho by (1966), P.2d States 90 Idaho United Steel Corp. 906-07: will a which
“The rule against granting preliminary injunction the to the all injunction have the effect the giving party seeking action, the not the of such granting relief in does sought preclude Rather, re- it is to be understood as an in case. proper a clear to the right in such case show the quiring moving party ...” sought relief in rule that ought Idaho court has enunciated the apply
The to a clear right the here have established plaintiffs this Court. If have, injunc- which the they preliminary preliminary injunction, that the the District ground tion should not be dissolved upon the raised had conclusions on defenses by made ultimate Otherwise, rule that the we make a the mockery other parties. sound legal is vested the allowance of preliminary injunction Court, the the exercise of which of the District discretion abuse. in cases of manifest Court will not interfere except Supreme the was issued properly IV. preliminary injunction District Court. the law and facts
What have said about foregoing applicable we case, time of the the parties in this and the issues raised the doubt that beyond established injunction hearing preliminary for the preliminary injunc- has shown a basis plaintiff prima facie tion, be us. and it should not dissolved by ” the “status V. The misconstrues majority quo requirement injunction. is that District Court majority given
Another reason did the “status in- quo” not preserve granting preliminary status should if only quo junction. preserve, Froney is the use Leona on the real necessary, placed property. maintained, however, . “. . The status to be quo is not necessarily fact, the state of affairs that exists at the time suit was filed. In if were, it then few be injunctions would enforceable pending appeal since vast majority injunctions suits are filed after seeking Further, has defendant started to do the disputed acts. if the status were quo limited to the state of affairs at the time of filing, would be wrongdoer permitted continue in the engaging resolved, conduct disputed until case was as finally long to act wrongdoer began before filed suit. For plaintiff reason, status be should quo preserved be the last un- state of affairs existed before the events disputed rise gave to the pending occurred. controversy This the rule for granting injunctions, which granted are even before there has been a trial the merits ...” State ex rel. Automotive v. McKinley (1978), Oldham 283 Or. 584 P.2d *14 The has not majority opinion followed the rule for proper pre- the status quo. serving
VI. Direct evidence harm is irreparable unnecessary in this of case. type of
In an action to violations of restrictions run with relating which land, the is not it that necessary there be direct evidence of to the harm is An damages pleading parties. Irreparable presumed. injunction to enforce a covenant or ab- restriction issue even may sent a of the amount of caused the breach. showing damages by (1978), 491, 971, Sandstrom v. 59 Haw. no Larsen 583 P.2d show- is ing that the violation has necessary the character of the changed (1976), neighborhood. Carter v. Conroy 25 Ariz.App.
P.2d 258. The
injunction, showing,
prima facie
be
should
of relative
v.
regardless
Gladstone
granted
damage.
(1979),
95 Nev.
Of harm shown in the then irreparable lessened, to is burden make case plaintiff prima facie because then the balances the the court between hardships parties. 1970), Industries, (Alaska (A.J. Inc. v. Alaska Public Service Com’n 198.) 470 P.2d modified on other 483 P.2d grounds, In with the majority opin- addition the diversities foregoing ion, also I decision making petition signed disagree in In my other residents of the subdivision admissible evidence. not the District any is relevant to issue before opinion, petition Court.
The restrictions are owner until a binding upon any majority (ex- all the owners fee to the in title lots the addition holding simple lots) all in certain release the same to land the subdivision cluding an executed and instrument in writing. acknowledged recites, which is offered “we petition the undersigned Subdivision, residents have con- Grandview no objection tinued use of the premises 202 Locust as residence for members of Kappa Sigma Fraternity.” the “residents” are owners is show that no foundation
There involved, it is clear nor property fee simple were understood signers they the petition language those exist with proper- which respect the restrictions waiving us, not ma- are decided by all legal rights for Fortunately ties. vote, of owners of the majority if consisted the petition even jority not. it does which apparently situation, not ad- should be it has no feel relevance
In that I mitted. I would preserve foregoing,
For reasons District Court. a final decision force remand that of the majority my position between difference only *15 opinion, under the majority is dissolved the situations, will be there both Under it in force. and would keep I here. result the permanent trial determine My purpose dissent is to filing assure the members of the Bar that this Court is not unanimous in the narrow construction of the injunctive powers District Court.