Aberdeen Apts. v. Cary Campbell Realty Alliance, Inc.
| Decision Date | 11 January 2005 |
| Docket Number | No. 29A04-0406-CV-297.,29A04-0406-CV-297. |
| Citation | 820 N.E.2d 158 |
| Parties | ABERDEEN APARTMENTS, et al., Appellant-Plaintiffs v. CARY CAMPBELL REALTY ALLIANCE, INC., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Andrew C. Charnstrom, Maureen E. Ward, Wooden & McClaughlin, LLP, Indianapolis, IN, Attorneys for Appellant.
Terry R. Curry, Sommer, Barnard, P.C., Indianapolis, IN, Attorney for Appellee.
Aberdeen Apartments and ninety-five other apartment communities1 in Hamilton, Hancock, Hendricks, Johnson, Marion, and Shelby counties (collectively "the Apartments"), appeal the trial court's denial of their motion for a preliminary injunction against Cary Campbell Realty Alliance, Inc. ("Campbell Realty"). We reverse and remand.
The Apartments raise four issues for our review, which we consolidate and restate as follows:
Campbell Realty is an Indiana corporation with its principal office in Hamilton County. It is a for-profit business that seeks to sell new homes to first-time home buyers. In order to find new buyers, Campbell Realty publishes the Renter's Gazette. The Renter's Gazette is a free publication that Campbell Realty has distributed to numerous apartment communities throughout central Indiana for the last two to three years. In City of Indianapolis v. Campbell, 792 N.E.2d 620, 626 (Ind.Ct.App.2003), we held that the Renter's Gazette qualified as a newspaper under a City of Indianapolis and Marion County ordinance. The Renter's Gazette has the appearance of a newspaper. It is printed on newsprint and is folded down the middle. It is usually between eight and ten pages in length. The content of the Renter's Gazette varies. It often contains articles that are appealing to renters, such as how to keep one's apartment secure. It also usually contains the schedule of one of the local sports teams. Some of the articles in the Renter's Gazette are designed to cast apartment communities, their management, and landlords in a negative light. These articles have suggested that landlords were not concerned about their tenants' security, that landlords were thieves, and that landlords are somehow like the mafia. A large portion of the Renter's Gazette is devoted to advertisements. The majority of these ads offer for sale new homes with low monthly payments. Each of these ads lists a telephone number that prospective buyers can call. This telephone number connects the caller with Campbell Realty's answering service located in the state of Arizona. The answering service takes the name and telephone number of the caller and forwards this information to Campbell Realty's real estate agents in Indiana. The real estate agents then contact the caller and attempt to sell them a new house. In 2003, Campbell Realty located about five hundred new home buyers, and in 2002 they located between seven hundred and eight hundred new buyers.
The distribution of the Renter's Gazette is of critical importance here. Anywhere between twenty-five thousand and fifty thousand copies of the Renter's Gazette are published each week. Campbell Realty then hires individuals, who work in teams of three to four, to deliver the Renter's Gazette to numerous apartment communities located throughout central Indiana. The Renter's Gazette is delivered once each week between Sunday and Thursday. The delivery teams are only supposed to deliver the Renter's Gazette between 6 p.m. and 10 p.m., but tenants have reported that the Renter's Gazette has been delivered after 10 p.m. Individuals do not subscribe to the Renter's Gazette, instead delivery teams leave one copy of the Renter's Gazette at the doorstep of each apartment in the apartment community.
The Apartments brought suit against Campbell Realty alleging that the distribution of the Renter's Gazette constituted a trespass and interference with a business relationship.2 Each of the apartment communities involved here have signs posted on their property stating that no solicitation or trespassing is permitted, and these rules are strictly enforced. The Apartments indicated that on several occasions they have contacted Campbell Realty and told them to stop entering their properties to deliver the Renter's Gazette. Despite these requests, Campbell Realty's delivery teams have continued to enter the properties. Security personnel at some of the apartment communities have asked the delivery teams to leave the property. Sometimes the delivery teams leave, but sometimes they do not.
Unclaimed issues of the Renter's Gazette create litter on the grounds of the apartment communities. Many of the apartment communities must use all of their maintenance personnel to insure that the litter caused by the Renter's Gazettes is picked up. This often causes the maintenance personnel to neglect their other responsibilities. The litter caused by the unclaimed Renter's Gazettes detracts from an apartment community's "curb appeal." "Curb appeal" apparently relates to the appearance of an apartment community as a prospective tenant drives by the community. The cleaner and more tidy an apartment community appears, the more "curb appeal" it has. Due to their decreased curb appeal, the Apartments contend that prospective tenants are discouraged from renting there.
The information in the Renter's Gazette has caused some of the Apartments' tenants to purchase new homes rather than renew their leases. The Apartments have received complaints from their tenants regarding the Renter's Gazette. Some tenants have complained about the mess caused by issues of the Renter's Gazette. Others have complained that they have been awakened by the delivery of the Renter's Gazette late at night. The Apartments have been unable to quantify their losses attributable to the Renter's Gazette.
The Apartments moved for a preliminary injunction to bar Campbell Realty's delivery teams from entering onto their properties. The trial court denied the Apartments' motion for a preliminary injunction and this appeal ensued.
The Apartments first contend that the trial court abused its discretion in denying their motion for a preliminary injunction. We agree.
The decision whether to grant or deny a preliminary injunction rests within the discretion of the trial court, and the scope of appellate review is limited to deciding whether the trial court has clearly abused its discretion. Dicen v. New Sesco, Inc., 806 N.E.2d 833, 841 (Ind.Ct.App.2004). "An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances or if the trial court misinterprets the law." Indiana High Sch. Athletic Ass'n Inc., v. Martin, 731 N.E.2d 1, 5 (Ind.Ct.App.2000), trans. denied. When determining whether or not to grant a preliminary injunction, the trial court is required to make special findings of fact and conclusions of law. Barlow v. Sipes, 744 N.E.2d 1, 5 (Ind.Ct.App.2001), trans. denied (citing Ind. Trial Rule 52(A)). When findings and conclusions of law are made, the reviewing court must determine if the trial court's findings support the judgment. Id. We will reverse the trial court's judgment only when it is clearly erroneous. Id. Findings of fact are clearly erroneous when the record lacks evidence or reasonable inferences from the evidence to support them. Id. We will consider the evidence only in the light most favorable to the judgment and construe findings together liberally in favor of the judgment. Id.
The trial court's discretion to grant or deny a preliminary injunction is measured by several factors:
(1) whether the plaintiff's remedies at law are inadequate, thus causing irreparable harm pending the resolution of the substantive action if the injunction does not issue; 2) whether the plaintiff has demonstrated at least a reasonable likelihood of success at trial by establishing a prima facie case; 3) whether the threatened injury to the plaintiff outweighs the threatened harm the grant of the injunction may inflict on the defendant; and 4) whether, by the grant of the preliminary injunction, the public interest would be disserved.
Id. The moving party has the burden of showing, by a preponderance of the evidence, that the facts and circumstances entitle him or her to injunctive relief. Id. The power to issue a preliminary injunction should be used sparingly, and such relief should not be granted except in rare instances where the law and facts are clearly in the moving party's favor. Id.
The trial court found several grounds for denying the Apartments' motion for a preliminary injunction. One of those grounds was its conclusion that the Apartments were not likely to succeed at trial in their trespass claim against Campbell Realty. The trial court made the following relevant conclusions of law:
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