                                          NO.96-476

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            1997


FIRST INTERSTATE BANK OF COMMERCE,

              Plaintiff and Respondent,

         v.
                                                              '   .?   2 7;jcj:
MARLA R. WARD, W a MARLA R. McFARLAND,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone,
                     The Honorable Maurice R. Colberg, Jr., Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Randy S. Laedeke; Laedeke Law Office;
                     Billings, Montana

              For Respondent:

                     Court E. Ball; Towe, Ball, Enright, Mackey & Somrnerfeld;
                     Billings, Montana


                                                          Submitted on Briefs: March 6, 1997

                                                                          Decided: April 22, 1997
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

       The respondent, First Interstate Bank of Commerce, filed an action for a declaratory

judgment and a preliminary injunction in the District Court for the Thirteenth Judicial

District in Yellowstone County. The District Court granted the preliminary injunction.

Marla R. Ward appeals. We reverse the District Court.

       The dispositive issue on appeal is whether the District Court erred when it granted the

preliminary injunction.

                                FACTUAL BACKGROUND

       In a dissolution action between Ted McFarland and Marla Ward, formerly Marla

McFarland, District Court Judge Robert W. Holmstrom determined that the parties' Lazy

Heart Nine cattle herd, which had allegedly been transferred to Ted's father, Clinton

McFarland, is a part of the marital estate. Accordingly, Judge Holmstrom ordered that Ward

is entitled to a proportionate share of the cattle.

       Pursuant to Judge Holmstrom's order, Ward attempted to remove her share of the

cattle from Clinton McFarland's ranch. In the meantime, however, First Interstate asserted

that, as the holder of a perfected security interest in all of Clinton McFarland's cattle, its

rights to the Lazy Heart Nine cattle herd are superior to Ward's. On that basis, First Interstate

filed an action in the District Court in which it requested the following relief (1) a

declaratory judgment to determine the respective rights of the parties; and (2) a preliminary
injunction to enjoin Ward from removing any of the Lazy Heart Nine cattle fiom

McFarland's ranch. After a hearing, the District Court granted the preliminary injunction.

                                          DISCUSSION

       Did the District Court err when it granted the preliminary injunction?

       In Montana, the availability of a preliminary injunction is controlled by statute.

Section 27-19-201, MCA, is entitled "When preliminary injunction may be granted" and

provides, in relevant part, as follows:

       An injunction order may be granted in the following cases:
               ....
              (2)      when it appears that the commission or continuance of some act
       during the litigation would produce a great or irreparable injury to the
       applicant . . . .

Section 27- 19-201(2), MCA.

       When a district court grants a preliminary injunction, the standard of review is

whether the district court abused its discretion. Dicken v. Shaw (1992), 255 Mont. 23 1,234,

841 P.2d 1126, 1128-29 (citing Porter v. K & SPartnership (1981), 192 Mont. 175, 181,627



       On appeal, Ward contends that the District Court erred when it granted a preliminary

injunction to enjoin her fiom removing any of the Lazy Heart Nine cattle from Clinton

McFarland's ranch. Specifically, she asserts that the District Court erred when it failed to

make a specific finding that such a removal of cattle would "produce a great or irreparable

injury" to First Interstate.
       At the injunction hearing, First Interstate claimed that the removal of cattle from

Clinton McFarland's ranch, prior to a final determination on the merits, would jeopardize its

ability to fully secure the loans previously extended to Clinton. Ward, on the other hand,

claimed that the value of the bank's collateral exceeds the amount of Clinton's debt which is

owed to the bank, and therefore, that the removal of her cattle would neither affect First

Interstate's ability to recover the amount of its loans nor jeopardize its financial interests. In

essence, Ward asserted that because First Interstate is already "over collateralized," the

removal of her cattle would not have a negative impact on First Interstate's financial interests.

       We conclude that First Interstate could suffer a "great or irreparable injury" only if

Ward's removal of her proportionate share of the Lazy Heart Nine cattle from Clinton

McFarland's ranch would, in fact, jeopardize First Interstate's ability to secure payment of

the existing loans.

       However, in spite of Ward's claim that First Interstate was "over collateralized" and

therefore, would not be harmed by removal of Ward's share of the cattle, the District Court

did not address this issue in its findings. The District Court did not find that removal of

Ward's cattle from Clinton McFarland's ranch would jeopardize First Interstate's financial

ability to cover the amount of the existing loans.

       We conclude, therefore, that the District Court abused its discretion when it granted

the preliminary injunction without first specifically finding that First Interstate would suffer
a "great or irreparable injury." Accordingly, we reverse the judgment of the District Court

and hold that it erred when it granted the preliminary injunction.




              Justices     /
