Motley v. Kellogg

409 N.E.2d 1207, 78 Ind. Dec. 316, 1980 Ind. App. LEXIS 1699
CourtIndiana Court of Appeals
DecidedSeptember 24, 1980
Docket3-280A48
StatusPublished
Cited by3 cases

This text of 409 N.E.2d 1207 (Motley v. Kellogg) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Motley v. Kellogg, 409 N.E.2d 1207, 78 Ind. Dec. 316, 1980 Ind. App. LEXIS 1699 (Ind. Ct. App. 1980).

Opinion

CHIPMAN, Judge.

Virgil Motley, Mayor Richard G. Hatcher, and the City of Gary, Indiana, collectively appeal from an order granting a preliminary injunction enjoining Virgil Motley, Acting Chief of Police, from interfering with the distribution of handgun applications and ordering him to make applications available to citizens of Gary, Indiana, who desire to apply for handgun licenses. The issue upon appeal is whether the trial court abused its discretion in granting this injunction. 1

We hold the preliminary injunction was properly granted.

The record discloses that for approximately ten years prior to January 1, 1980, applications for handgun permits were routinely available at the office of the Gary Chief of Police. These were state forms which the Gary Police Department obtained from the Indiana State Police and then made available to Gary citizens. In an effort to control the number of handguns on *1209 the streets in Gary, however, an agreement was apparently reached between Gary’s Acting Chief of Police, Virgil Motley and its Mayor, Richard Hatcher, that these applications would no longer be distributed from Motley’s office, and a sign to this effect was posted on the Chief’s office door announcing: “No more gun applications will be given out effective January 1,1980. Thank you!!! Chief’s Office.” Thereafter, although the Gary Police Department never refused to accept applications, the application forms were no longer available there, and the record indicates citizens of Gary could not obtain these forms elsewhere.

This suit was commenced by Gary citizens who had presented themselves at the Gary Police Department and been unable to secure a gun permit application. The plaintiffs-appellees include business persons in the community who testified they felt it necessary to carry a gun because of large sums of money they transported, security guards for a private detective agency, an attorney, and a Gary homeowner. All were refused gun applications due to the department’s adoption of the blanket policy that henceforth, no applications would be distributed. Among the relief sought by these plaintiffs was a preliminary injunction prohibiting the appellants from further withholding handgun license applications. The trial court issued the following preliminary injunction:

“A) John T. Shettle, Superintendent' Indiana State Police is hereby enjoined from the arbitrary and capricious distribution of applications for hand gun permits; that said John T. Shettle, Superintendent shall make available to the defendant Virgil C. Motley such number of handgun permits as shall be requested by the defendant Virgil C. Motley, to be made available by the defendant Virgil C. • Motley to citizens of Gary requesting same for the purpose of applying for handgun permits.
B) That said Superintendent shall make said applications available at the Police Station of the City of Gary, located at 13th and Broadway. That the Acting Chief of Police, Virgil C. Motley, shall in no way interfere with the distribution of said applications; that the said Acting Chief of Police shall immediately process any applications received as provided by statute and shall not in any way or manner delay the processing of said applications.”

Appellants maintain this preliminary injunction is contrary to law because they are under no statutory duty to distribute or otherwise make available handgun permit applications. We disagree.

It is well settled the granting or denial of an injunction rests within the sound discretion of the trial court. Peters v. Davidson, Inc., (1977) Ind.App., 359 N.E.2d 556; Elder v. City of Jeffersonville, (1975) 164 Ind.App. 422, 329 N.E.2d 654. In cases of this posture, we review for an abuse of discretion; we do not review the final merits of the case since a preliminary injunction, unlike a permanent injunction, is issued during the pendency of an action before a determination is made on the merits. Indiana & Michigan Electric Co. v. Whitley County Rural Electric Membership Corp., (1974) 161 Ind.App. 492, 316 N.E.2d 584. A preliminary injunction is not a final adjudication of the merits, Rees v. Panhandle Eastern Pipe Line Co., (1978) Ind.App., 377 N.E.2d 640; consequently, a party need not show they will prevail on the merits.

“The rules governing the granting of a temporary injunction or an interlocutory order are different from those which would prevail in the hearing on the permanent injunction. It is not necessary that the proof be as complete and convincing in the granting of a temporary injunction or interlocutory order as that required at the time of the determination of the permanent injunction. It has been said that the granting of an interlocutory order is within the sound discretion of the trial court and the petitioner need only make out a prima facie ease.”

*1210 Jos. Guidone’s Food Palace, Inc. v. Palace Pharmacy, Inc., (1969) 252 Ind. 400, 406, 248 N.E.2d 354, 357. Moreover, we will not interfere with the exercise of discretion in this regard by the trial court unless it is shown the court acted arbitrarily or the action in question constitutes a clear abuse of discretion. Negley v. Lebanon Community School Corp., (1977) Ind.App., 362 N.E.2d 178; Powell v. Powell, (1974) 160 Ind.App. 132, 310 N.E.2d 898.

Our Supreme Court has held an abuse of discretion to be:

“. . .an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.”

McFarlan v. Fowler Bank City Trust Co., (1938) 214 Ind. 10, 12 N.E.2d 752, 754. We find there were, in fact, reasonable grounds for the action of the trial court herein.

The trial court was called upon to consider: (1) the probability that plaintiffs would prevail on the merits, (2) the probability of plaintiffs suffering irreparable injury unless the injunction was issued, and (3) balance the respective interests of the parties with special consideration for the public interest. Elder v. City of Jeffersonville, (1975) 164 Ind.App. 422, 329 N.E.2d 654, 659.

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Related

Kellogg v. City of Gary
562 N.E.2d 685 (Indiana Supreme Court, 1990)
City of Gary v. Kellogg
519 N.E.2d 570 (Indiana Court of Appeals, 1988)

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Bluebook (online)
409 N.E.2d 1207, 78 Ind. Dec. 316, 1980 Ind. App. LEXIS 1699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/motley-v-kellogg-indctapp-1980.