Van Loan v. Van Loan

• Decision Date: 08 June 1995
• Docket Number: No. 94-586,94-586
• Citation: 271 Mont. 176,895 P.2d 614
• Parties: Rod Edward VAN LOAN, Plaintiff and Respondent, v. James VAN LOAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 614

895 P.2d 614

271 Mont. 176

Rod Edward VAN LOAN, Plaintiff and Respondent, v. James VAN LOAN, Defendant and Appellant.

No. 94-586.

Supreme Court of Montana.

Submitted on Briefs April 6, 1995.

Decided May 17, 1995.

Rehearing Denied June 8, 1995.

James C. Bartlett, Hash, O'Brien & Bartlett, Kalispell, for appellant.

David W. Lauridsen, Bothe & Lauridsen, Columbia Falls, for respondent.

LEAPHART, Justice.

James Van Loan (Appellant) appeals the November 1, 1994 preliminary injunction issued by the Eleventh Judicial District Court, Flathead County, restraining the transfer of certain of his assets. We affirm.

Appellant sexually abused and molested his adopted children for eleven years. On March 1, 1993, Appellant pled guilty to six counts of felony incest and was sentenced to sixty years in prison. Appellant will not be eligible for parole until 2004. On May 13, 1994, Respondent Rod Edward Van Loan (Appellant's son) brought a civil action against Appellant alleging intentional torts and seeking compensatory and punitive damages. Appellant has admitted liability in this action and that his actions caused "significant damage." Respondent based his tort claims on Appellant's acts of criminal incest.

On May 19, 1994, Respondent filed an application for preliminary injunction and for an ex parte temporary restraining order, requesting that Appellant be prohibited from disbursing his assets, estimated at over $1 million. A temporary restraining order was filed. On October 6, 1994, after a hearing was held, a preliminary injunction was issued prohibiting Appellant from disbursing over $1.5 million in IRA and investment account assets. This appeal followed.

Appellant presents two issues on review:

1. May a plaintiff in a tort action obtain a preliminary injunction freezing a defendant's assets?

2. Is Appellant entitled to affirmative relief for improper pleadings and wrongful issuance of the temporary restraining order and preliminary injunction?

Standard of Review

In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125, we held that the abuse of discretion standard applies to "discretionary rulings, such as trial administration issues, post-trial motions and similar rulings." We will not disturb a district court's preliminary injunction except when there is "manifest abuse" of discretion by the district court. Atkinson v. Roosevelt County (1923), 66 Mont. 411, 421, 214 P. 74, 76-77.

Issue I

May a plaintiff in a tort action obtain a preliminary injunction freezing a defendant's assets?

The question of whether a plaintiff in a personal injury suit may, through a preliminary injunction, freeze the defendant's assets is a case of first impression in Montana. We therefore look to other jurisdictions for guidance.

The United States Supreme Court considered a request for a prejudgment freeze of assets by a party seeking equitable relief in Deckert v. Independence Shares Corp. (1940), 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189. The Court held that:

[i]t is well settled that the granting of a temporary injunction, pending final hearing, is within the sound discretion of the trial court; and that, upon appeal, an order granting such an injunction will not be disturbed unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion. [Citations omitted.] As already stated, there were allegations that Independence was insolvent and its assets in danger of dissipation or depletion. This being so, the legal remedy against Independence, without recourse to the fund in the hands of Pennsylvania, would be inadequate. The injunction was framed narrowly to restrain only the transfer of $38,258.85, and the trial judge required petitioners to furnish security for any losses respondents might suffer. In view of this we cannot say that the trial judge abused his discretion in granting the temporary injunction.

Deckert, 311 U.S. at 290, 61 S.Ct. at 234.

Although Deckert sought equitable as well as legal relief, it is significant that the Court's decision was not based solely on the fact that equitable or statutory relief had been sought. Rather, the Court held that the injunction was a reasonable measure to preserve the status quo and concluded that the legal remedy against the defendant would be inadequate due to the allegations that defendant was insolvent and the danger of dissipation of assets. Deckert, 311 U.S. at 289-290, 61 S.Ct. at 233-234.

Similarly, the Ninth Circuit Court of Appeals held that

a district court has authority to issue a preliminary injunction where the plaintiffs can establish that money damages will be an inadequate remedy due to impending insolvency of the defendant or that defendant has engaged in a pattern of secreting or dissipating assets to avoid judgment. This holding is thus restricted to only extraordinary cases in which equitable relief is not sought.

In re Estate of Ferdinand Marcos, Human Rights Litigation (9th Cir.1994), 25 F.3d 1467, 1469. In that case, the district court had found a substantial likelihood that the plaintiffs would succeed on the merits of their tort claims, would be irreparably damaged, and that the remedies at law would not be adequate if the injunction were denied. The district court in that case further found that without the injunction a judgment against the defendants would have been meaningless and that the defendants would not be harmed by the injunction. The Ninth Circuit Court of Appeals concluded that final equitable relief need not be requested to authorize preliminary injunctive relief and that any previous comments by the court to the contrary were merely dicta. Estate of Marcos, 25 F.3d at 1477. That court then concluded that there was ample support for the conclusion that a preliminary injunction may be issued even when a final equitable remedy was not sought. Estate of Marcos, 25 F.3d at 1477.

In an earlier case, the Ninth Circuit Court of Appeals more clearly set out a two-part standard for granting a preliminary injunction:

(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor. [Citation omitted.] These are not two distinct tests, but rather the opposite ends of a single "continuum in which the required showing of harm varies inversely with the required showing of meritoriousness." [Citation omitted.]

Miss World (UK) Ltd. v. Mrs. America Pageants, Inc. (9th Cir.1988), 856 F.2d 1445, 1448.

The Ninth Circuit, in Estate of Marcos, noted that most of the Circuit Courts of Appeal have held that preliminary injunctions are available when a money judgment was in danger of being made worthless by the dissipation of assets. Estate of Marcos, 25 F.3d at 1478. That court cited to the Second Circuit Court of Appeals, which held that

even where the ultimate relief sought is money damages, federal courts have found preliminary injunctions appropriate where it has been shown that the defendant intended to frustrate any judgment on the merits by transferring its assets out of the jurisdiction.... this is an appropriate case for the issuance of injunctive relief to prevent [the defendant] from making uncollectible any judgment. [Citations omitted.]

Estate of Marcos, 25 F.3d at 1479; citing In re Feit & Drexler, Inc. (2d Cir.1985), 760 F.2d 406, 416. The Ninth Circuit similarly relied on the Fourth Circuit Court of Appeals when it upheld a preliminary injunction preventing dissipation of assets where plaintiffs alleged that the defendant was insolvent and where its assets were in danger of dissipation and depletion. Estate of Marcos, 25 F.3d at 1479; citing United States ex rel. Taxpayers Against Fraud v. Singer Co. (4th Cir.1989), 889 F.2d 1327.

In Tri-State Generation and Transmission Ass'n, Inc. v. Shoshone River Power, Inc. (10th Cir.1986), 805 F.2d 351, 355, the court held that a preliminary injunction was warranted where irreparable harm would result from the inability to collect a money judgment. The Tenth Circuit applies a four-part test regarding preliminary injunctions: (1) a substantial likelihood that the movant will eventually prevail on the merits; (2) that the movant will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest. Mid-States Ag-Chem Co. v. Atchison Grain Co. (D.Kan.1990), 750 F.Supp. 465, 467; See, Tri-State Generation, 805 F.2d at 355.

In the instant case, Respondent attempts to prevent Appellant from dissipating his (Appellant's) assets. Respondent presented evidence to support his claim that there is an actual threat to his (Respondent's) ability to collect the full damages that may be awarded to him. Section 27-19-201, MCA, provides for issuance of a preliminary injunction when:

(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 his property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;

(5) when it...