UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2011 IRENE LEVENTHAL KOEGEL JOSEPH WILLIAM KOEGEL, JR.

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1 UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No September Term, 2011 IRENE LEVENTHAL KOEGEL v. JOSEPH WILLIAM KOEGEL, JR. Wright, Watts, Sharer, J. Frederick (Retired, Specially Assigned), JJ. Opinion by Sharer, J. Filed: May 20, 2013

2 This is an interlocutory appeal in a divorce action from the issuance of a preliminary injunction by the Circuit Court for Montgomery County. Because the chancellor s action was taken without providing appellant sufficient notice and an opportunity to be heard, we shall vacate the injunction and remand for the reasons that follow. BACKGROUND The controversy before us does not depend on an examination of the merits of the underlying action, so we summarize facts for context. Irene Leventhal Koegel, appellant, and Joseph William Koegel, Jr., appellee, were married on December 21, 1991, and they are the parents of three children. The marriage began to sour, for on July 30, 2010, Irene filed a complaint for limited divorce, asserting as the basis for this action appellee s constructive desertion. See Md. Code (1999, 2006 Repl. Vol.), 7-102(a)(3) of the Family Law Article ( F.L. ). As represented by counsel, appellant obtained her own residence[.] Following appellee s motion to dismiss, appellant on December 27, 2010, lodged an Amended Complaint for Limited Divorce. A Consent Order that addressed custody issues was filed on March 9, On May 18, 2011, appellee filed a Verified Petition for Temporary Restraining Order, Preliminary Injunctive Relief, and Permanent Injunctive Relief. Appellee sought this relief to enjoin appellant from entering the marital home and removing any property, marital or non-marital, regardless of how titled, from the marital home pending any agreement as to the ownership, value and division of such possessions[.] A hearing on appellee s motion for a temporary restraining order was conducted on May 19, His

3 counsel told the chancellor that [o]ur real request is that the Court issue a TRO, pending a further hearing on this matter, granting our request that Mrs. Koegel does not re-enter the marital home. Attorneys for both sides presented argument on the motion, after which the chancellor ruled. He first outlined the controversy before him: First of all, let me start out by saying is what's not in dispute is that these, there s a divorce action pending. And that the plaintiff wife moved out of the home. That the parties have two minor children. And that the parties, through their attorneys and through their being level-headed, were able to work out a visitation custody schedule which allows for shared visitation, custody, on basically a basis. And to the parents' credit, they moved into homes, or the second, mom s in a home that s not far from the, I ll, call it the marital home where dad is still living. And so it gives the children the opportunity to go back and forth, stay in their same schools, have the feel for home when they re there, but yet not be in a foreign jurisdiction like being in Dundalk or someplace when they go visit mom. So there s been nothing presented to me to indicate that mom needs to go to that house, first of all on a continuing basis, but even on an infrequent basis. The attempt to preserve her property is certainly something that [is] understandable, but that could have been taken when she left, or it can be done through counsel. You don t protect your property by going by three or four times, or even 20 times in a 10-month period. Now the rule indicates, , a temporary restraining order may be granted only if it clearly appears from specific facts shown that substantial and irreparable harm will result to the person seeking the order before a full adversary hearing can be held on the property of a preliminary or final injunction. 2

4 Now I don t know this specifically. I don't think this was carved out for the domestic relations area. But I don t agree with plaintiff to say that the only remedy is a use and possession order. The Court believes in this particular case, under , that there s been a history of the plaintiff going back unannounced, uninvited, and that there have been some problems. Now the irreparable harm the Court finds in this case, because when a domestic violence, in a domestic setting, is the potential irreparable harm to the children to be subjected to this. Because under the plaintiff s argument there would be absolutely no restriction, other than normal propriety that somebody would have to self-impose. That s not a good guarantee for these two children, especially when the mother has gone back several times and there s been a confrontation, and there s absolutely no need to go back there. But the fact is that in a heated situation the tempers are high, emotions are high. This has proved it, based on the confrontation and the incidents that have already taken place. To find, and the Court concludes that there is immediate and substantial potential for irreparable harm if the Court doesn t grant this motion, because there is no indication, according to the mother, she might want to go back and get some records. She may want to get something else. And Mr. Quinn s read off the items that she s taken. She didn t go back to get a hairbrush. She didn t go back to get a toothbrush. She didn t go back to get her hair dryer. Those are, you know, some normal things that a woman would need or want to have on a regular basis. She s gone back because she s worried about some type of protection from her property. So this is a situation that s volatile. It s as volatile as it can get in the sense that we have two people living apart for 10 months, and we have an occasion where the wife has gone over on several accounts. There is no real reason for her to go over, other than to assert her rights as an owner. The potential danger over there, and the Court finds there s immediate and substantial harm, because we ve got two children involved. 3

5 So I find under that the facts, undisputed facts show to me that there s an immediate, substantial, irreparable harm to the children if this order is not granted. So I ll grant the temporary restraining order. After extensive discussion about the terms of the contents of the proposed TRO, and the amount of a bond, the chancellor then decided to go beyond the relief originally sought and determined to expand the relief to a preliminary injunction: THE COURT: I think this might be better morphing into a preliminary injunction. I don t see, well, they can just file something else so we can modify this. What are we going to get if we come back in 10 days? I m not going to go through the same exercise. Appellant s counsel objected: MR. LOWINGER: I think you have to, Your Honor THE COURT: Well, I m looking at the rule. MR. LOWINGER: The rule is, this is without, there s no evidence. There s no testimony. We ve had Mr. Quinn s proffer. The Court The chancellor disagreed, observing that while a TRO is designed on an ex parte status[,] the proffers had been a sufficient basis. The transcript reflects the chancellor s reasoning: MR. LOWINGER: But not evidentiary. It s been done on proffer. THE COURT: Well 4

6 MR. LOWINGER: So it is conceivable, Your Honor, that at a full hearing THE COURT: It doesn t say evidentiary. It says full adversary MR. LOWINGER: Adversarial. Isn t that THE COURT: hearing. And that s the difference. That s what we have. That s what you don t have at TRO. It doesn t say evidentiary. MR. LOWINGER: I think adversarial THE COURT: Adversary means when you can both, we can have the arguments. I m not saying I'm precluded from taking testimony. I don t see a requirement that testimony be taken. MR. LOWINGER: Well, I don t, it s got to be verified, so implicit was that it would have had to been based on testimony, but MR. QUINN: It is verified. THE COURT: I m assuming you d rather [have] a preliminary injunction. MR. QUINN: Yes. THE COURT: I think it fits under the rules, [a]nd if you want to provide an order to that effect, I ll grant this temporary order, temporary restraining order. But I feel we ve complied with the statute with respect to a preliminary injunction. Because this is not the ex parte where they were coming, come to me as a duty judge, and I make that determination based on an affidavit. Then we set it in for a hearing within 10 days, and you folks come in. Basically we ve bypassed the temporary restraining order. We're at the preliminary injunction stage. And I don t see that you re being prejudiced in any way. MR. LOWINGER: Well, Your Honor, with all due respect, and I know I m not going to persuade you, because I haven t been persuading you all day. But I think the meaning of an adversarial hearing is the Court has an opportunity 5

7 to assess the testimony and the credibility. I mean there ve been, I haven t taken issue with certain things that Your Honor has found. I mean I The chancellor further explained that he made [his] determination based only on what was not really in dispute. He then offered to sign an order granting a preliminary injunction based on everything that s on this record. On May 26, 2011, the chancellor issued a Preliminary Injunction Order, which provided in part: ORDERED, that the terms of the Temporary Restraining Order executed by the [court] on May 19th, 2011 be and the same are hearby adopted and incorporated into this Preliminary Injunction Order; and it is further ORDERED, that this Preliminary Injunction Order shall remain in effect pending further Order of this Court. DISCUSSION Appellant contests the chancellor s issuance of a preliminary injunction. She first avers that the chancellor s issuance of the preliminary injunction without the benefit of a full hearing constituted a violation of due process. She next maintains that the chancellor erred by ignoring the four prong test that must be satisfied before an injunction of this nature may issue. We agree, and explain. Standard of Review Normally, we review a court s decision whether to issue an injunction for an abuse of discretion. City of Bowie v. Mie Properties, Inc., 398 Md. 657, 678 (2007). The court s 6

8 compliance with the law is subject to de novo review. See Marwani v. Catering by Uptown, 416 Md. 312, (2010). Cf. Schisler v. State, 394 Md. 519, 535 (2006) (noting that even with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal standards. ) (citation and internal quotation marks omitted). In this instance, our review of the chancellor s decision, to dispense with the receipt of evidence, is plenary. Analysis At issue is whether the ruling on a preliminary injunction based solely on proffers and argument by counsel satisfies the Rule s requirement that the chancellor afford all parties with notice and an opportunity for a full adversary hearing. We conclude that the proceeding before us did not satisfy the Rule. A court of equity reserves its injunctive process for the protection of property or other rights against actual or threatened injuries of a substantial character which cannot be adequately remedied in a court of law. That is to say, the jurisdiction or power to grant injunctive relief should be exercised only when intervention is essential to effectually protect property or other rights, of which equity will take cognizance, against irreparable injuries. The very function of an injunction is to furnish preventative relief against irreparable mischief or injury, and the remedy will not be awarded where it appears to the satisfaction of the court that the injury complained of is not of such character. Suitors may not resort to a court of equity to restrain acts, actual or threatened, merely because they are illegal or transcend constitutional powers, unless it is apparent that irremediable injury will result. The mere assertion that apprehended acts will inflict irreparable injury is not enough. The complaining party must allege and prove facts from which the court can reasonably infer that such would be the result. (Emphasis added) 7

9 El Bey v. Moorish Science Temple of America, Inc., 362 Md. 339, (2001) (quoting Coster v. Dep't of Personnel, 36 Md. App. 523, (1977)). Chapter 500 of Title 15 of the Maryland Rules governs the issuance of injunctions. Md. Rule sets forth relevant definitions: Rule Injunctions - Definitions. The following definitions apply in the rules in this Chapter: (a) Injunction. "Injunction" means an order mandating or prohibiting a specified act. (b) Preliminary injunction. "Preliminary injunction" means an injunction granted after opportunity for a full adversary hearing on the propriety of its issuance but before a final determination of the merits of the action. (c) Temporary restraining order. "Temporary restraining order" means an injunction granted without opportunity for a full adversary hearing on the propriety of its issuance. (Emphasis added) Md. Rules and respectively pertain to temporary restraining orders and preliminary injunctions, and relevantly provide: Rule Temporary restraining order. (a) Standard for granting. A temporary restraining order may be granted only if it clearly appears from specific facts shown by affidavit or other statement under oath that immediate, substantial, and irreparable harm will result to the person seeking the order before a full adversary hearing can be held on the propriety of a preliminary or final injunction. (b) Without notice. A temporary restraining order may be granted without written or oral notice only if the applicant or the applicant's attorney certifies to the court in writing, and the court finds, that specified efforts commensurate 8

10 with the circumstances have been made to give notice. Before ruling, the judge may communicate informally with other parties and any other person against whom the order is sought or their attorneys. (f) Modification or dissolution. A party or person affected by the order may apply for modification or dissolution of the order on two days' notice to the party who obtained the temporary restraining order, or on such shorter notice as the court may prescribe. The court shall proceed to hear and determine the application at the earliest possible time. The party who obtained the temporary restraining order has the burden of showing that it should be continued. Preliminary Injunction Preliminary injunctions are governed by Rule The Rule relevantly provides: Rule Preliminary injunction. (a) Notice. A court may not issue a preliminary injunction without notice to all parties and an opportunity for a full adversary hearing on the propriety of its issuance. Preliminary injunctions serve to maintain the status quo between parties during the course of litigation. Eastside Vend Distributors, Inc. v. Pepsi Bottling Grp., Inc., 396 Md. 219, (2006). See Harford County Education Ass'n v. Board of Ed., 281 Md. 574, 585 (1977) ( [I]t is fundamental that a preliminary injunction does not issue as a matter of right, but only where it is necessary in order to preserve the status quo. ). A chancellor must consider four factors before deciding to issue a preliminary injunction: 1. the likelihood that the plaintiff will succeed on the merits; 2. the balance of convenience, determined by whether greater injury would be done to the defendant by granting the injunction than would result from its refusal; 9

11 3. whether plaintiff will suffer irreparable injury unless the injunction is granted; and 4. the public interest. DMF Leasing, Inc. v. Budget Rent-A-Car of Maryland, Inc., 161 Md. App. 640, 647 (2005) 1 (citations omitted). In Maryland, the party seeking a preliminary injunction must satisfy the above requirements in the context of a full adversary hearing. That type of hearing entails the introduction of facts that would form the basis of a claim and the opportunity to ventilate the issues. See Motor Vehicle Administration v. Baptist, 185 Md. App. 56, 82 n. 11 (2009) (describing ex parte telephone conversation between movant and court as insufficient to meet hearing requirement for Rule (b)). The party seeking the preliminary injunction has the burden of adducing facts necessary to satisfy these factors. The failure to prove the existence of 1 See Mark P. Gergen, John M. Golden & Henry P. Smith, The Supreme Court s Accidental Revolution? The Test for Permanent Injunctions, 112 COL. L. REV. 203, 208 n. 22 (2012) (footnote omitted).: Many courts and commentators had stated that, before issuing a preliminary injunction, a court should generally consider at least the following: (1) whether the movant will suffer irreparable injury if the injunction does not issue; (2) the movant s likelihood of success on the merits of its legal claim; (3) how the hardship that the movant will suffer if an injunction is denied compares to the hardship that opposing parties will suffer if the injunction is granted; and (4) whether grant of the preliminary injunction would be contrary to the public interest. 10

12 even one of the four factors precludes the grant of injunctive relief. With regard to the factor of the likelihood of success on the merits, the party seeking the interlocutory injunction must establish that it has a real probability of prevailing on the merits, not merely a remote possibility of doing so. Ehrlich v. Perez, 394 Md. 691, 708 (2006) (internal citations and quotation marks omitted) (emphasis supplied). With respect to the movant s threshold showing, the following observation by the United States Court of Appeals for the District of Columbia Circuit is instructive: A preliminary injunction may be granted based on less formal procedures and on less extensive evidence than in a trial on the merits, but if there are genuine issues of material fact raised in opposition to a motion for a preliminary injunction, an evidentiary hearing is required[.] Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) (citations and internal quotation marks omitted). Cf. Penn Central Co. v. Buckley & Co., 293 F. Supp. 653, 658 (D.N.J. 1968) (injunctions should not be granted unless the evidence satisfies the Court that the criteria for the granting of injunctive relief have been clearly disclosed by the proofs ), aff d, 415 F.2d 762 (3d Cir. 1969), quoted in Anthony DiSarro, Freeze Frame: The Supreme Court s Reaffirmation of the Substantive Principles of Preliminary Injunctions, 47 GONZAGA L. REV. 51, 68 n. 102 (2011/12). The Rule (b) and (a) requirements for a full adversary hearing are most clearly prudent, given the adverse consequences that may befall a litigant whose conduct violates the terms of the injunction. The following passage from a recent law review article is instructive: 11

13 A preliminary injunction is a platform for future threats of contempt against the defendant. Now that the plaintiff has much of what [he] wants, [he] has no desire to proceed expeditiously to trial and instead strives to exert pressure on the defendant to persuade her to settle the case. [He] will seek to portray the defendant as disrespectful of the court s authority. A restrained defendant will typically forego what is arguably lawful conduct to avoid the unpleasant situation of having to defend against a contempt motion. Anthony DiSarro, Freeze Frame, 47 GONZAGA L. REV. at 52 (footnote omitted). The United States Court of Appeals placed in context the importance of an accurate measure of entitlement to such relief: We have repeatedly insisted that the use of judicial power to arrange relationships prior to a full determination on the merits is a weighty matter, and the preliminary injunction device should not be exercised unless the moving party shows that it specifically and personally risks irreparable harm. Adams v. Freedom Forge Corp., 204 F.3d 475, 487 (3rd Cir. PA 2000). In the final analysis, we conclude that, where the Rules dictate that a full adversary hearing is required, the chancellor erred by proceeding to grant a preliminary injunction in 2 this case without receiving evidence and without notice to appellant. We emphasize that a hearing on a request for a preliminary injunction is not a substitute for a trial on the merits. Cf. Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572, 1576 (9th Cir. 1990) 2 We hasten to point out that notice in this context is not merely informing the opposing party when and where to show up. We understand that appellee had filed a motion seeking all forms of injunctive relief, and we are also mindful that appellant was present at the hearing and did not testify. Under the circumstances present here, however, we do not deem appellant s decision not to testify at a TRO hearing a waiver of her rights to present evidence at a hearing in which additional relief was granted. We would not expect parties to be prepared to litigate a preliminary injunction hearing on the fly, when the chancellor decided to morph the anticipated proceeding and take the dispute to the next level. 12

14 (stating "general rule, [that] a preliminary injunction should not issue on the basis of affidavits alone.") (citations omitted). In view of our disposition of this appeal, we have no occasion to address appellant s complaint that the chancellor failed to evaluate the propriety of issuing an injunction in the context of the traditional factors. ORDER VACATED. CASE REMANDED TO CIRCUIT COURT FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS ASSESSED TO APPELLEE. 13