TIMOTHY F. BURKE and KIMBERLY A. BURKE, husband and wife, JASON C. OLSEN and MELISSA W. OLSEN, husband and wife, and CHRISTOPHER PRICE and SHALAYNE PRICE, husband and wife, Plaintiffs and Appellants,
JAMES E. ROLLE and ELIZABETH ROLLE, husband and wife and SENESCENCE CARE, INC., a Montana corporation, Defendants and Appellees.
Submitted on Briefs: November 14, 2018
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DV-17-1200 Honorable
John W. Larson, Presiding Judge.
Appellants: David B. Cotner, Eric R. Henkel, Cotner Law,
PLLC, Missoula, Montana
Appellees: Reid J. Perkins, Jesse Kodadek, Worden Thane,
P.C., Missoula, Montana
Amicus Curiae: Beth Brenneman, Roberta Zenker, Disability
Rights Montana, Helena, Montana
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Timothy F. Burke, Kimberly A. Burke, Jason C. Olsen, Melissa
W. Olsen, Christopher Price, and Shalayne Price
("Homeowners") challenge a Fourth Judicial District
Court order refusing to preliminarily enjoin James E. Rolle
and Elizabeth Rolle from operating a community residential
facility on their property.
The Rolles and Homeowners own homes in a Missoula subdivision
that is subject to restrictive covenants. The restrictive
covenants provide that the properties shall be used strictly
for residential purposes, and no business may be conducted on
the properties. The Rolles intend to operate a community
residential facility for aging adults in the residence they
own. Homeowners filed a complaint alleging that the
Rolles' intended use of their property violated the
restrictive covenants. Homeowners sought a preliminary
injunction pursuant to § 27-19-201(1) or (2), MCA, to
restrain the Rolles from further developing the property or
operating the facility during the pendency of the litigation.
The District Court denied the preliminary injunction,
reasoning that it could not conclude as a matter of law that
Homeowners were entitled to a preliminary injunction because
the merits needed to be determined in further proceedings.
The court also found that the evidence did not support a
finding or conclusion of irreparable harm to Homeowners
during the pendency of the litigation.
For an injunction to issue under § 27-19-201(1), MCA,
the applicant must show: (1) that he has a legitimate cause
of action; (2) that he is likely to succeed on the merits;
and (3) that an injunction is an appropriate remedy.
Sandrock v. DeTienne, 2010 MT 237, ¶ 16, 358
Mont. 175, 243 P.3d 1123. A preliminary injunction may issue
under § 27-19-201(2), MCA, when it appears that the
commission or continuance of some act during the litigation
would produce a great or irreparable injury to the applicant.
Caldwell v. Sabo, 2013 MT 240, ¶ 29, 371 Mont.
328, 308 P.3d 81.
We will not disturb a district court's decision to grant
or deny a preliminary injunction unless the appellant
demonstrates a manifest abuse of discretion. Doe v. Cmty.
Med. Ctr., Inc., 2009 MT 395, ¶ 14, 353 Mont. 378,
221 P.3d 651. "A manifest abuse of discretion is an
'obvious, evident, or unmistakable' abuse of
discretion." Davis v. Westphal, 2017 MT 276,
¶ 10, 389 Mont. 251, 405 P.3d 73 (internal citation
omitted). A preliminary injunction does not resolve the
merits of the case. Sandrock, ¶ 13. When
determining whether to grant or deny a preliminary
injunction, findings and conclusions regarding the resolution
of the ultimate issues must be reserved for trial on the
merits. Benefis Healthcare v. Great Falls Clinic,
LLP, 2006 MT 254, ¶ 19, 334 Mont. 86, 146 P.3d 714.
Homeowners argue that the District Court erred in denying a
preliminary injunction under § 27-19-201(1), MCA,
because they are seeking to enjoin the Rolles' commercial
use of their property and it appears that Homeowners are
entitled to the relief demanded. Homeowners argue further
that the District Court erred in denying a preliminary
injunction under § 27-19-201(2), MCA, because the
Rolles' continuing invasion of the Homeowners'
property rights constitutes an irreparable injury that
warrants injunctive relief. "Without wading into the
ultimate issues reserved for determination through further
proceedings," the District Court concluded that it could
not rule as a matter of law that Homeowners were entitled to
a preliminary injunction. The District Court concluded
further that the evidence did not support a finding of
irreparable harm. It reasoned that the residential appearance
of the Rolles' house had been preserved and the possible
harms were speculative because the facility was not yet
The parties and amicus devote considerable briefing to the
interpretation of the covenants and whether precluding the
Rolles' intended use of the property would violate the
federal Fair Housing Act and Fair Housing Amendments Act, 42
U.S.C. § 3601, et seq. The latter issue was not
considered in the District Court's preliminary injunction
analysis. We decline to opine on the merits of that issue at
this stage of the proceedings, but conclude nonetheless that
the court did not manifestly abuse its discretion in denying
a preliminary injunction under § 27-19-201(1) or (2),
MCA. See Sandrock, ¶ 13 (noting that the
Court's analysis on appeal of a preliminary injunction
ruling "'is not intended to express and does not
express any opinion about the ultimate merits' of the
underlying case" (quoting Benefis Healthcare,
¶ 19)). We cannot conclude that the District Court
abused its discretion in a way that was "obvious,
evident, or unmistakable." Davis, ¶ 10.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable standards of
review. The District Court's ruling was not ...