Cloverleaf Enterprises, Inc. v. Centaur Rosecroft, LLC (9/29/04 IndCtApp) [Civil Procedure]
Bailey, Judge
Case Summary. [Cloverleaf] appeals the trial court’s grant of an anti-suit injunction, without the issuance of a bond, in favor of [Centaur]. Pursuant to the anti-suit injunction, Cloverleaf is precluded from prosecuting a case that it filed in a Maryland court of law, which involves similar parties and issues to the one at bar. We reverse under principles of judicial restraint and comity.Joseph E. Tons v. Barbara C. Bley (9/29/04 IndCtApp) [Family Law]Issue. Cloverleaf raises four issues, the following one of which we find dispositive: Whether the trial court abused its discretion by granting the anti-suit injunction by, first, prohibiting Cloverleaf—i.e., a Maryland corporation—from pursuing an action, which involves Maryland citizens, Maryland law, and the sale of Maryland real estate, in a Maryland court of law and, second, granting the injunction absent a showing: (1) of irreparable harm; (2) that Centaur has a reasonable likelihood of success on the merits; (3) that the threatened injury outweighed the potential harm to Cloverleaf resulting from the granting of an injunction; and (4) that the public interest would not be disserved.
Facts and Procedural History. The specific controversy at issue here concerns the propriety of a trial court’s order enjoining parties, over whom it has personal jurisdiction, from pursuing similar litigation in a sister state. * * *
For the foregoing reasons, we reverse the trial court’s grant of the anti-suit injunction. Reversed.
SHARPNACK, J., and MAY, J., concur.
Here we are presented with the issue of whether there was sufficient evidence presented to warrant the issuance, pursuant to the Indiana Civil Protection Order Act, of a protective order as to Barbara Bley and Brian Bley and prohibiting Tons from using or possessing any firearms, ammunition, or deadly weapons. * * *Posted by Marcia Oddi at September 29, 2004 02:06 PMIn Garmene v. LeMasters, 743 N.E.2d 782 (Ind. Ct. App. 2001), a case decided under the previous version of the protective order statute, this court held that the petitioner for a protective order must prove by clear and convincing evidence at least one of the allegations of her petition. Indeed, the current statute places the burden of proving the same by a preponderance of the evidence. In Garmene, we reiterated the familiar test for determining the sufficiency of the evidence. We neither weigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and reasonable inferences that support the trial court’s judgment. * * *
The protective orders pertaining to Barbara and Brian present a serious problem. There is no evidence that Tons ever threatened Barbara, and she admitted that he did not. Any acts of violence by Tons against Barbara occurred during their marriage that ended in 1996. While the court may not deny the petition solely by reason of the lapse of time between the act of violence and the filing of the petition, Ind. Code § 34-26-5-13, we may consider remoteness in determining whether a sufficient threat exists to warrant the issuance of a protective order. We believe that unspecified acts of violence occurring eight years previously are a not sufficient basis for the issuance of a protective order. Therefore, we must reverse the protective order as it pertains to Barbara. Likewise there is absolutely no evidence of any acts of violence, or threats, by Tons toward Brian. The protective order as to Brian is reversed.
That portion of the court’s order regarding firearms, ammunition, and deadly weapons raises more concerns. In Garmene, we affirmed the order prohibiting the respondent from possessing firearms, on the grounds that he had pursued the petitioner at home and on her job and had verbally abused her. She testified that he made harassing phone calls, came to her place of employment, and sat outside her home monitoring her movements. She said this activity was very disturbing to her and that she didn’t know what else he might do. We held the evidence was clear and convincing that the respondent posed a significant threat to inflict serious bodily injury and was sufficient to support the order prohibiting respondent’s possession of any firearm. See footnote
Here, there is no evidence that Tons committed any of the types of acts Garmene held sufficient to warrant issuance of the order that the respondent not possess or use any firearms, ammunition, or deadly weapons. Therefore, we reverse that portion of the protective order.
Affirmed in part and reversed in part as set forth above.
DARDEN, J., concurs.
BARNES, J., dissenting with separate opinion:I respectfully dissent. I believe Indiana Code Chapter 34-26-5, the Civil Protection Order Act, was enacted by the General Assembly to provide the umbrella of protection that the trial court extended here.
Here, there is evidence in the record that Tons has in the past violently disciplined his son Travis, including punching him in the head with his fist and throwing him down a flight of stairs. Additionally, there was evidence of violence during the marriage between Barbara Bley and Tons. One may reasonably infer that Tons’ threat to beat Travis “black and blue” implicitly extended to anyone who might interfere with that mission, including Barbara and her current husband, Brian Bley. I believe, as with any factual determination by a trial court, that we should defer to the court’s conclusion here that not just Travis, but also Barbara and Brian, should fall under the scope of the protective order it issued.
I also note that under Indiana Code Section 34-26-5-9(b)(1), (4), and (6), a protective order may be ordered to apply not only with respect to the person petitioning for the order, but also with respect to “each designated family or household member.” I believe this is tacit recognition by the General Assembly that when a respondent has threatened a petitioner with harm, other persons living with the petitioner who may not have been directly threatened are nevertheless at risk of harm by the respondent. I also conclude that the statute permits a protective order to be issued for the benefit of persons living with a threatened person, even if the respondent did not directly threaten those other persons. * * *
In my view, under the current scheme all that is needed to support an order prohibiting the possession of firearms or deadly weapons is a finding, by a preponderance of the evidence, that the respondent poses a credible threat to the safety of a petitioner or member of the petitioner’s household, which is identical to what is needed to order the issuance of a protective order in the first place. There need be no separate evidence and finding specifically relating to firearms and weapons and a substantial threat of serious bodily injury. In this particular case, I am convinced in any event that given Tons’ previously demonstrated violent tendencies, the trial court may reasonably have concluded that prohibiting Tons from possessing firearms or dangerous weapons was necessary to diminish the threat of violence to Travis, Barbara, and Brian. I would affirm the trial court’s order in its entirety.