Stark v. Borner, 86-396
| Decision Date | 09 April 1987 |
| Docket Number | No. 86-396,86-396 |
| Citation | 735 P.2d 314,226 Mont. 356,44 St.Rep. 717 |
| Parties | John A. STARK and Nadine A. Stark, husband and wife, Plaintiffs and Respondents, v. Maynard BORNER and Opal Borner, husband and wife, Defendants and Appellants. |
| Court | Montana Supreme Court |
Maynard and Opal Borner, pro se.
Calton, Hamman, Calton & Wolff, Rodd A. Hamman, Billings, for respondents.
Maynard and Opal Borner, husband and wife, appeal an August 12, 1986 preliminary injunction issued by the District Court of the Tenth Judicial District, Fergus County. We uphold the District Court's preliminary injunction, but remand so that the court may conduct a hearing to consider whether its findings were proper in light of Sharbono v. Darden (Mont.1986), 715 P.2d 433, 43 St.Rep. 400 and other cases cited herein.
Maynard and Opal Borner entered a contract for deed in November, 1983, for the purchase of a 3,700 acre cattle ranch near Grass Range, Montana, from John and Nadine Stark. The purchase price for the place was $525,000. The Borners paid approximately $107,000 down on the contract and agreed to an annual payment of almost $40,000 until the full amount was paid. Annual payments were made in 1984 and 1985, but the Borner's were unable to meet the obligation of the 1986 payment when it came due in January.
On January 23, 1986, the Starks sent the Borners a notice of default. When the Borners failed to cure the default within sixty (60) days, the Starks sent a notice of acceleration on March 26, 1986. The second sixty days expired May 26, 1986. In June, the Starks began moving their cattle onto the property, as well as cutting and baling the hay.
Although the parties discussed a rental arrangement and renegotiation of a new contract, no agreement was ever reached. The Borners had written a $1,000 check for pasture lease, but stopped payment on it when their attorney advised them that the Starks had no authority to be in possession.
On July 9, 1986, the Starks filed a complaint requesting that they be put in possession of the property, as well as that the Borners be enjoined from interfering with Stark's possession, that the contract for deed be forfeited and that the Borner's right, title, and interest in the property be terminated. The Starks also requested attorney's fees.
After an August 12, 1986 hearing, the District Court made the following findings: 1) that the Borners had not made the land contract payment due Starks, 2) that all contract terms had been complied with by Starks, 3) and that the Starks had demonstrated a strong chance of prevailing on the merits of the suit. For these and other reasons, the District Court found that injunctive relief restraining the Borners from interfering with the Stark's repossession of the property was appropriate and ordered the Borners to vacate the ranch by September 6, 1986.
On September 5, 1986, the Borners filed an emergency application to this Court for a stay of the District Court's order granting the preliminary injunction giving possession of the ranch premises to the Starks. This Court denied the Borners' request, explaining that the questions and evidence presented by the Borners were considered and denied by the District Court and that the Borners failed to show a case for their emergency application.
The Borners now appeal, pro se, raising the following issues:
1. Whether the District Court was required to make a finding that the Starks would be irreparably harmed in order to issue the injunction.
2. Whether the District Court erred in choosing not to require a written undertaking.
3. Whether the District Court erred in finding that the Borners defaulted under the terms of the contract for deed.
4. Whether the District Court is properly providing the due process required for mortgage foreclosures.
The issues raised by the Borners are properly raised on appeal. Rule 1(b)(2) of the Montana Rules of Appellate Procedure provides:
(b) In civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following cases:
(2) from an order ... granting or dissolving an injunction.
The statute could not be clearer in providing for the Borners' right to appeal the District Court's issuance of the preliminary injunction.
As the Borners are representing themselves in this appeal it is understandable that they are unfamiliar with the laws concerning preliminary injunctions. Borners first contend that the District Court should not have granted the preliminary injunction because it failed to make a finding that the Starks would suffer irreparable injury if the injunction was not issued.
Section 27-19-201, MCA, provides that a preliminary injunction order may be granted in the following cases:
(1) when it shall appear that the applicant 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 that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant;
(3) when it shall appear during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant's rights, respecting the subject of the action, and tending to render the judgment ineffectual;
(4) when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of this property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;
(5) when it appears the applicant has suffered or may suffer physical abuse under the provisions of 40-4-121.
The District Court's order granting the preliminary injunction stated:
That it thus appears to the court that plaintiffs Stark have demonstrated a strong chance of prevailing on the merits herein, which under the contract includes right to possession, and that defendants should be temporarily restrained from interfering with that possession during the pendency of the suit.
That it further appears defendants may be unable to respond in damages if plaintiffs prevail herein, which would render any substantial damage award plaintiffs may recover ineffectual and unrecoverable, and further that Starks' damages from Borners continued possession of the lands while suit is pending would be quite difficult or impossible to accurately determine.
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