       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2020 Term
                                  _______________
                                                                          FILED
                                    No. 18-1034                        June 15, 2020
                                                                         released at 3:00 p.m.
                                  _______________                    EDYTHE NASH GAISER, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA
                  NORTHEAST NATURAL ENERGY LLC,
                    and NNE WATER SYSTEMS LLC,
                       Defendants Below, Petitioners

                                         v.

                             PACHIRA ENERGY LLC,
                             Plaintiff Below, Respondent

        ________________________________________________________

             Appeal from the Circuit Court of Monongalia County
                 The Honorable Russell M. Clawges, Judge
                          Civil Action No. 18-C-369

                               AFFIRMED
        ________________________________________________________

                             Submitted: January 28, 2020
                                Filed: June 12, 2020

Ancil G. Ramey, Esq.                          Jeffrey C. King, Esq.
Steptoe & Johnson PLLC                        K&L Gates LLP
Huntington, West Virginia                     Fort Worth, Texas
Charles F. Johns, Esq.                        Jared S. Hawk, Esq.
Kylie D. Barnhart, Esq.                       Katherine M. Gafner, Esq.
Steptoe & Johnson PLLC                        K&L Gates LLP
Bridgeport, West Virginia                     Pittsburgh, Pennsylvania
Counsel for the Petitioner                    Frank E. Simmerman, Jr., Esq.
                                              Chad L. Taylor, Esq.
                                              Frank E. Simmerman, III, Esq.
                                              Simmerman Law Office, PLLC
                                              Clarksburg, West Virginia
                                              Counsel for the Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT

              1.     “West Virginia Constitution, article VIII, section 3, which grants this

Court appellate jurisdiction of civil cases in equity, includes a grant of jurisdiction to hear

appeals from interlocutory orders by circuit courts relating to preliminary and temporary

injunctive relief.” Syllabus Point 2, State ex rel. McGraw v. Telecheck Servs., Inc., 213 W.

Va. 438, 582 S.E.2d 885 (2003).


              2.     “In reviewing the exceptions to the findings of fact and conclusions

of law supporting the granting of a temporary or preliminary injunction, we will apply a

three-pronged deferential standard of review. We review the final order granting the

temporary injunction and the ultimate disposition under an abuse of discretion

standard, West v. National Mines Corp., 168 W.Va. 578, 590, 285 S.E.2d 670, 678 (1981),

we review the circuit court’s underlying factual findings under a clearly erroneous

standard, and we review questions of law de novo. Syllabus Point 4, Burgess v.

Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syllabus Point 1, State By & Through

McGraw v. Imperial Mktg., 196 W. Va. 346, 472 S.E.2d 792 (1996).


              3.     “The granting or refusal of an injunction, whether mandatory or

preventive, calls for the exercise of sound judicial discretion, in view of all the

circumstances of the particular case; regard being had to the nature of the controversy, the

object for which the injunction is being sought, and the comparative hardship or

convenience to the respective parties involved in the award or denial of the writ.” Syllabus

Point 4, State v. Baker, 112 W. Va. 263, 164 S.E. 154 (1932).

                                               i
HUTCHISON, Justice:

              In this appeal from the Circuit Court of Monongalia County, we are asked to

examine a circuit court’s order granting a preliminary injunction. The circuit court found

that the plaintiff below had a likelihood of succeeding on the merits of its underlying claims

and found that the plaintiff was likely to suffer irreparable harm in the absence of the

injunction. The defendant below challenges these findings.


              As we discuss below, we find no error in the circuit court’s preliminary

injunction order. Accordingly, we affirm the circuit court’s decision.


                         I. Factual and Procedural Background

              In 2011, plaintiff Pachira Energy LLC (“Pachira”) entered into an agreement

with defendant Northeast Natural Energy LLC (“Northeast”). The agreement established

the Blacksville Area of Mutual Interest (“Blacksville AMI”) and set forth guidelines for

exploiting oil and gas leases and other mineral interests in an area encompassing parts of

Monongalia County, West Virginia, and Greene County, Pennsylvania. Pachira and

Northeast agreed that all jointly-held leases within the Blacksville AMI would be

developed with Northeast owning a 75% working interest and Pachira owning a 25%

working interest. The parties subsequently entered into a Joint Operating Agreement to

operate natural gas wells on the leased lands, and again agreed to split costs and profits

using the same 75%/25% ratio.




                                              1
              At some later point, Pachira and Northeast entered into an oral agreement to

develop and operate a water system. This system was originally designed to efficiently

transport water from Dunkard Creek, a stream within the Blacksville AMI, for use in the

drilling and hydraulic fracturing (“fracking”) of wells within the Blacksville AMI. The

parties agree that there is no written agreement governing the construction, operation, or

maintenance of the water lines and facilities. Despite no such formal agreement, Pachira

and Northeast jointly shared the costs of the water system using the same 75%/25% ratio

previously used in the Blacksville AMI agreement and the Joint Operating Agreement.
                                                                                            1




              It appears that at some point in 2018, defendant Northeast began a separate

venture: the construction of the “Monongahela River Trunk Line,” a water line from the

Monongahela River to the Blacksville AMI. Northeast constructed the trunk line at its own

expense. Pachira has no ownership interest in the trunk line and paid nothing for the costs

of construction, operation, or maintenance. However, Pachira paid for 25% of the costs of

an extension line connecting the Blacksville AMI water system to the Monongahela River

Trunk Line, while Northeast paid the remaining 75%.


              In mid-2018, Northeast informed Pachira that it intended to charge Pachira

its 25% share of $0.50 per barrel for water transported through the Monongahela River

Trunk Line to the boundary of the Blacksville AMI. Then, in September 2018, Northeast



                  Northeast subsequently assigned its interest in the water lines and facilities
              1


to an affiliate, defendant NNE Water Systems LLC. For simplicity, we will hereafter refer
to NNE Water Systems LLC jointly with its parent, Northeast.

                                               2
began testing on the Monongahela River Trunk Line, intending to use water from the

Monongahela River rather than Dunkard Creek to develop wells within the Blacksville

AMI.


              However, Pachira had learned that Northeast also intended to use the jointly-

owned Blacksville AMI water system to transport water from the Monongahela River and

through the Blacksville AMI to wells in southern Pennsylvania. These Pennsylvania wells

were outside the Blacksville AMI and were owned, in whole or in part, by Northeast.

Pachira had no interest in the wells that Northeast sought to supply. Furthermore, Pachira

learned that Northeast intended to use the Blacksville AMI water system to transport and

sell Monongahela River water to third parties for use outside of the Blacksville AMI.


              On September 11, 2018, Pachira filed a complaint against Northeast

generally alleging that Northeast was breaching various agreements and was abusing its

power to benefit itself to the detriment of Pachira. Among its various requests for relief,

Pachira sought a permanent injunction to stop Northeast’s use of the jointly-owned water

system within the Blacksville AMI to support Northeast’s drilling operations outside the

Blacksville AMI, and to sell water to third parties for use outside of the Blacksville AMI.


              Contemporaneously, Pachira filed an emergency motion asking the circuit

court for a preliminary injunction and an expedited hearing. Until the underlying dispute

could be resolved, Pachira asked the court to temporarily enjoin Northeast from using the

Blacksville AMI water system to transport water to locations outside of the Blacksville


                                             3
AMI, or to sell water to third parties for use outside of the Blacksville AMI. 2 The circuit

court conducted a hearing on September 19, 2018, and thereafter received documents from

the parties answering questions raised by the circuit court during the hearing.


              In an order entered October 25, 2018, the circuit court granted Pachira’s

motion for a preliminary injunction. The circuit court found that Pachira was likely to

succeed in proving its claims, and had shown it was likely to suffer immediate and

irreparable harm before the court would be able to issue a final ruling on Pachira’s request

for a permanent injunction. The circuit court enjoined Northeast from using the water

system inside of the Blacksville AMI to transport water to locations outside of the

Blacksville AMI, and enjoined Northeast from using the water system to transport and sell

water to third parties for use outside of the Blacksville AMI.


              Northeast now appeals the circuit court’s preliminary injunction order.


                                 II. Standard of Review

              The order under appeal is not a final order and, typically, this Court will not

review such an interlocutory order. However, in Syllabus Point 2 of State ex rel. McGraw

v. Telecheck Servs., Inc., 213 W. Va. 438, 582 S.E.2d 885 (2003), we held that “West



                 Pachira also asked the circuit court to enjoin Northeast from using the
              2


Blacksville AMI water system to import water from sources outside the Blacksville AMI
(that is, water from the Monongahela River Trunk Line at a cost of $0.50 per barrel), and
using that water to develop and operate wells jointly controlled by the parties within the
Blacksville AMI. The circuit court denied this part of Pachira’s motion for a preliminary
injunction, and neither party appeals this portion of the circuit court’s order.

                                             4
Virginia Constitution, article VIII, section 3, which grants this Court appellate jurisdiction

of civil cases in equity, includes a grant of jurisdiction to hear appeals from interlocutory

orders by circuit courts relating to preliminary and temporary injunctive relief.”


              We apply the following deferential standards for reviewing an order granting

a preliminary injunction:

                     In reviewing the exceptions to the findings of fact and
              conclusions of law supporting the granting of a temporary or
              preliminary injunction, we will apply a three-pronged
              deferential standard of review. We review the final order
              granting the temporary injunction and the ultimate disposition
              under an abuse of discretion standard, . . . we review the circuit
              court’s underlying factual findings under a clearly erroneous
              standard, and we review questions of law de novo.

Syllabus Point 1, State By & Through McGraw v. Imperial Mktg., 196 W. Va. 346, 472

S.E.2d 792 (1996) (citations omitted).


                                      III. Discussion

              Northeast contends that the circuit court erred in granting Pachira a

preliminary injunction. We have articulated the following standard for circuit courts

weighing motions seeking injunctive relief:

                     The granting or refusal of an injunction, whether
              mandatory or preventive, calls for the exercise of sound
              judicial discretion, in view of all the circumstances of the
              particular case; regard being had to the nature of the
              controversy, the object for which the injunction is being
              sought, and the comparative hardship or convenience to the
              respective parties involved in the award or denial of the writ.




                                              5
Syllabus Point 4, State v. Baker, 112 W. Va. 263, 164 S.E. 154 (1932). In more recent

times, we have articulated a clearer alternative standard:

                     The customary standard applied in West Virginia for
              issuing a preliminary injunction is that a party seeking the
              temporary relief must demonstrate by a clear showing of a
              reasonable likelihood of the presence of irreparable harm; the
              absence of any other appropriate remedy at law; and the
              necessity of a balancing of hardship test including: (1) the
              likelihood of irreparable harm to the plaintiff without the
              injunction; (2) the likelihood of harm to the defendant with an
              injunction; (3) the plaintiff’s likelihood of success on the
              merits; and (4) the public interest.

Imperial Mktg., 196 W. Va. at 352 n.8, 472 S.E.2d at 798 n.8 (citations and quotations

omitted).


              Northeast contends that Pachira’s claims that Northeast is “trespassing” upon

or “misusing” the water system are fundamentally unsound, and therefore that the circuit

court erred in finding Pachira had established that there was a likelihood of success on the

merits of its claims. Northeast concedes that it jointly owns the water system with Pachira.

Northeast, however, argues that the companies share the water system as tenants in

common, because each party owns a separate fractional share of undivided property. As

tenants in common, it is Northeast’s position that each tenant is “equally entitled to the use,

occupancy, enjoyment, and possession of the common property.” 86 C.J.S. Tenancy in

Common § 21 (2018). Northeast argues that it shares ownership of the water system, and

that is impossible for it to trespass on its own property.




                                              6
              Northeast also asserts that when applying the above-stated guidelines for

injunctive relief, the circuit court erred in finding Pachira was likely to suffer irreparable

harm. “We have uniformly held that in order to obtain a preliminary injunction, a party

must demonstrate the presence of irreparable harm.” Jefferson Cty. Bd. of Educ. v.

Jefferson Cty. Educ. Ass’n, 183 W. Va. 15, 24, 393 S.E.2d 653, 662 (1990). Northeast

argues that Pachira essentially argued to the circuit court that a preliminary injunction was

needed to preserve the status quo and to stop Northeast from misusing the water system in

the future.   As this Court has found, “[i]njunctive relief, like other equitable or

extraordinary relief, is inappropriate when there is an adequate remedy at law.” Hechler

v. Casey, 175 W. Va. 434, 440, 333 S.E.2d 799, 805 (1985). Northeast insists that not only

is Pachira unlikely to win on the merits of its claims, but that even if Pachira does win, then

it can be compensated with an adequate remedy at law: money damages.


              We reject Northeast’s position because, as we discuss below, the language

of the West Virginia Uniform Partnership Act (“Partnership Act”) supports the circuit

court’s conclusion that Pachira is likely to succeed in its claims. See W. Va. Code § 47B-

1-1 et seq. The evidence presented below indicates that Pachira and Northeast are, in fact,

partners in a partnership, and that the Blacksville AMI water system is partnership

property. The evidence also supports the conclusion that Northeast is using that partnership

property for personal gain, to the future detriment of both the partnership and its partner,

Pachira. Hence, we find the record supports the circuit court’s conclusion that Pachira will

suffer an irreparable harm in the absence of the preliminary injunction.


                                              7
              To begin, the Partnership Act defines a partnership as “an association of two

or more persons to carry on as coowners a business for profit[.]” W. Va. Code § 47B-1-

1(7) (2003). A partnership is created by “the association of two or more persons to carry

on as coowners a business for profit . . . whether or not the persons intend to form a

partnership.” W. Va. Code § 47B-2-2(a) (1995) (emphasis added). “Under this definition,

people operating a business together for profit ‘may inadvertently create a partnership

despite their expressed subjective intention not to do so.’” Valentine v. Sugar Rock, Inc.,

234 W. Va. 526, 540, 766 S.E.2d 785, 799 (2014) (quoting Allan Donn, Robert W.

Hillman, & Donald J. Weidner, The Revised Uniform Partnership Act, § 202, Official

Comments (Thompson Reuters 2014)).
                                         3




              The evidence before the circuit court showed that, in the absence of a written

agreement governing the relationship of the parties regarding the water system in the

Blacksville AMI, the conduct of the parties may have inadvertently created a partnership

to co-own and operate the water system as a business for profit. In other words, Pachira
                                                                4




                Northeast repeatedly points to language in both the agreement establishing
              3


the Blacksville AMI and in the Joint Operating Agreement that specifically provides that
Northeast and Pachira are not, by entering those agreements, forming a partnership. We
acknowledge the existence of that language but note that Pachira’s claims are based on an
entirely different agreement: the oral agreement between the parties to construct, operate
and maintain the water system. Northeast has provided no evidence that this oral
agreement specifically disclaimed the formation of a partnership.

                Alternatively, Pachira argued that the water system in the Blacksville AMI
              4


could also be characterized as a “joint venture.” “[A] partnership relates to general
business . . . while [a] joint adventure relates to a single business transaction.” Nesbitt v.
                                                                                Continued . . .
                                              8
made a substantial case before the circuit court indicating that the parties formed a water

system partnership.


              The question remains, however, whether the water system in the Blacksville

AMI could be property owned by this partnership. We believe that it could.


              The Partnership Act states that “[a] partnership is an entity distinct from its

partners.” W. Va. Code § 47B-2-1 (1995). Because a partnership is a distinct entity, the

Act provides the following rule for the ownership of property by a partnership: “Property

acquired by a partnership is property of the partnership and not of the partners

individually.” W. Va. Code § 47B-2-3 (1995). Under the Partnership Act, “Partners are

no longer conceived of as co-owners of partnership property. Rather, the partnership entity

owns partnership property.” Allan Donn, Robert W. Hillman, Donald J. Weidner, Rev.

Uniform Partnership Act, § 203 (2019). “Even property that is contributed by partners

becomes property of the entity rather than property of a cotenancy of the contributing

partners.” Id. See generally, Valentine v. Sugar Rock, Inc., 234 W. Va. at 541, 766 S.E.2d



Flaccus, 149 W. Va. 65, 74, 138 S.E.2d 859, 865 (1964). We have defined a joint venture
as follows:

                      A joint venture or, as it is sometimes referred to, a joint
              adventure, is an association of two or more persons to carry out
              a single business enterprise for profit, for which purpose they
              combine their property, money, effects, skill, and knowledge.
              It arises out of a contractual relationship between the parties.
              The contract may be oral or written, express or implied.

Syllabus Point 2, Price v. Halstead, 177 W. Va. 592, 355 S.E.2d 380 (1987).

                                              9
at 800 (discussing the philosophical underpinnings of property ownership under the

Partnership Act). “[I]f property has become partnership property, the individual partners

no longer have a direct interest in it.” Id., 234 W. Va. at 541, 766 S.E.2d at 800 (quoting

Donn, Rev. Uniform Partnership Act, § 204).


              The Partnership Act provides guidance as to how a partnership – even an

accidentally-formed partnership – may acquire property. Paragraphs (a) and (b) of West

Virginia Code § 47B-2-4 (1995) outline various ways that partnerships may acquire

property in the name of the partnership, or that property may be transferred to the

partnership. However, paragraph (c) provides:

                     Property is presumed to be partnership property if
              purchased with partnership assets, even if not acquired in the
              name of the partnership or of one or more partners with an
              indication in the instrument transferring title to the property of
              the person’s capacity as a partner or of the existence of a
              partnership.

W. Va. Code § 47B-2-4(c) (emphasis added). Under this paragraph, “property purchased

with partnership funds is presumed to be partnership property, notwithstanding the name

in which title is held. The presumption is intended to apply if partnership credit is used to

obtain financing, as well as the use of partnership cash or property for payment.” Donn,

Rev. Uniform Partnership Act § 204, Official Comments.
                                                            5




              The presumption created by W. Va. Code § 47B-2-4(c) “is rebuttable. Note
              5


that it may not be obvious whether partnership assets have been used to pay for the
property. In analyzing the kind of facts that should be shown to rebut the presumption,
                                                                          Continued . . .
                                             10
              The evidence before the circuit court suggested that both Pachira and

Northeast invested significant amounts of money, time, and labor to construct, operate, and

maintain the water system in the Blacksville AMI. Even though the water system was not

titled in the name of a particular partnership (instead, the system appears to have been titled

in the name of Northeast Natural Energy before being transferred to its subsidiary, NNE

Water Systems), the water system was constructed using assets pooled by Pachira and

Northeast for the purpose of constructing, operating and maintaining a water system to

support natural gas production in the Blacksville AMI. On this record, Pachira has a

substantial likelihood of establishing that the water system in the Blacksville AMI was

partnership property purchased with partnership assets, and not, as Northeast argues,

property jointly owned by the parties as tenants in common.


              The final question we must address is whether Pachira demonstrated that it

was reasonably likely to suffer irreparable harm, harm that could not (as Northeast

contends) be compensated by money damages. We again turn to the Partnership Act which

plainly provides that Pachira, in its capacity as a partner, has a right to seek equitable,

injunctive relief against its co-partner Northeast. The Partnership Act provides that “[a]

partner may maintain an action against the partnership or another partner for legal or

equitable relief[.]” W. Va. § 47B-4-5(b) (emphasis added).




care should be taken to distinguish disputes among the partners from disputes with third
parties.” Donn, Rev. Uniform Partnership Act § 204.

                                              11
               A partner may bring an action to protect rights and enforce duties created

under the Partnership Act. See W. Va. Code § 47B-4-5(b)(2)(i). Key to this case is the

following duty imposed on every partner: “A partner may use or possess partnership

property only on behalf of the partnership.” W. Va. Code § 47B-4-1(g). Pachira’s suit

alleges that Northeast is violating this duty and is using the partnership-owned water

system for personal gain, to transport water to its own wells in southern Pennsylvania and

to third parties for sale, and not on behalf of the partnership to support wells in the

Blacksville AMI.


               As to past conduct, the Partnership Act says that partners must “account to

the partnership and hold as trustee for it any . . . profit or benefit . . . derived from a use by

the partner of partnership property[.]” W. Va. Code § 47B-4-4(b)(1). The reason the rule

is so clear in the context of past conduct is because, usually, partners and partnerships do

not discover past misuse of partnership property “until there is an accounting on liquidation

of the partnership.” Donn, Rev. Uniform Partnership Act, § 501 Authors’ Comments,

n.15.
        6




               Stated differently, as to past losses, when a partner misuses partnership

property for personal gain and profit, that partner must repay the partnership for the past




                Partners can also be prosecuted for past theft or embezzlement of
               6


partnership property, and “can no longer defend on the ground the property was theirs . . .
[because W. Va. Code § 47B-5-1] now states that the property is not theirs, it is the
partnership’s.” Donn, Rev. Uniform Partnership Act, § 501.

                                               12
misuse of partnership property. In these instances, cash damages are likely sufficient

compensation for the past misconduct; injunctive relief is usually not appropriate because

the damage has been done and, if the misconduct will not continue, there is nothing to

enjoin.


              In the instant case, Pachira is asserting it will suffer irreparable harm caused

by future, threatened misuse of partnership property. “[T]he term ‘irreparable’ does not

always mean what it seems to signify, that is, a physical impossibility of reparation.”

Mullens Realty & Ins. Co. v. Klein, 85 W. Va. 712, 102 S.E. 677, 680 (1920). West

Virginia law is clear that “[e]quity will entertain jurisdiction to prevent a threatened

injury[.]” Summers v. Parkersburg Mill Co., 77 W. Va. 563, 88 S.E. 1020, 1021 (1916).

An “irreparable injury” is one that is “actual and imminent” and “it is likely that the [past]

offensive conduct will recur.” 3 N.Y. Practice, Com. Litig. in New York State Courts §

18:9 (4th ed.). See also, Fretz v. Burke, 247 Cal. App. 2d 741, 744-45 (Ct. App. 1967)

(“[A]n injunction may be granted as to past acts if there is evidence that they will probably

recur.”).


              The Partnership Act charges a partner with a fiduciary duty of loyalty to the

partnership and to other partners; a breach of this fiduciary responsibility gives rise to a

right to injunctive relief. “The relationship between partners is fiduciary, and the highest

degree of good faith is required.” Barker v. Smith & Barker Oil & Gas Co., 170 W. Va.

502, 509, 294 S.E.2d 919, 926 (1982). Accord Tomlinson v. Polsley, 31 W. Va. 108, 5 S.E.

457, 460 (1888) (“it is a violation of good faith for a partner to clandestinely stipulate with

                                              13
third persons for any private and selfish advantage and benefit to himself, exclusive of the

partnership.”). “The partnership may bring an equitable action in the event of a breach of

fiduciary duties by a partner and, in such case, the court may remedy the breach through

monetary damages or injunctive relief.”      J. William Callison, Maureen A. Sullivan,

Partnership Law and Practice: General and Limited Partnerships, Remedies § 12:14

(2019).


              As we noted earlier, one duty imposed by the Partnership Act is that “[a]

partner may use or possess partnership property only on behalf of the partnership.” W. Va.

Code § 47B-4-1(g). “Violation of this rule [by a partner making personal use of partnership

property] would be a breach of the duty of loyalty under R.U.P.A. Section 404(b)(1).” Rev.

Uniform Partnership Act, “Partner’s Rights and Duties,” Section 401. Restated in the

context of West Virginia’s Partnership Act, violation of the rule prohibiting a partner’s

individual use of partnership property for personal gain (W. Va. Code § 47B-4-1(g)) would

be a breach of the partner’s duty of loyalty W. Va. Code § 47B-4-4(b)(1). In other words,

a partner’s use or possession of partnership property for personal gain is a breach of the

partner’s fiduciary duty of loyalty that can support an award of both monetary damages

and injunctive relief.


              Moreover, courts that have examined this question have found that when a

partner intends to misuse partnership property in the future, the partner is imposing an

irreparable harm on the partnership and the other partners. In such cases, an injunction to

prevent the future harm is warranted.

                                            14
              An example of a trial court granting a preliminary injunction to prevent a

partner’s future, personal misuse of partnership property is Shepard v. Patel, 2012 WL

6019036 (D. Ariz. Nov. 27, 2012). In Shepard, individuals formed a partnership to operate

a hotel. One partner (the defendant) began using partnership property to pay himself

excessive fees to manage the partnership’s hotel; used partnership assets to lease and repair

a Mercedes for himself; and disbursed partnership profits to himself for payments he

purportedly made on behalf of the partnership (and for which he could produce no receipts).

Another partner (the plaintiff) sued to dissolve the partnership and discovered the misuse

of property. The plaintiff moved for a preliminary injunction to stop the defendant partner

from continuing to dissipate partnership property through self-dealing.


              The trial court noted the standard for granting a preliminary injunction,

including the requirement that the plaintiff show “a likelihood of irreparable harm in the

absence of preliminary relief.” The trial court then pointed out that “[a] preliminary

injunction properly issues in actions seeking dissolution and accounting of partnerships to

maintain the status quo pending adjudication on the merits.” 2012 WL 6019036, at *4.

This is because “[t]he purpose of a preliminary injunction is merely to preserve the relative

positions of the parties until a trial on the merits can be held.” Univ. of Texas v.

Camenisch, 451 U.S. 390, 395 (1981).         Hence, “[t]o prevent any further improper

disbursements of partnership assets and to ensure an accurate accounting at the time of

trial, a preliminary injunction is appropriate and necessary.” Shepard, 2012 WL 6019036,

at *4.


                                             15
              The trial court in Shepard relied upon a seminal case from California, Wind

v. Herbert, 186 Cal. App. 2d 276 (Ct. App. 1960). The California court found that a trial

court properly issued a preliminary injunction to preserve the status quo and to prevent

future misuse of partnership property by one partner. The court explained that the granting

of a preliminary injunction “rests largely in the discretion of the trial court,” and that the

general purpose of a preliminary injunction “is to preserve the status quo until the merits

of the action can be determined.”

              The California court then expansively addressed the requirement of an

“irreparable injury,” and indicated that when a court examines irreparable harm caused by

the future misuse of partnership property, the court can go beyond monetary damages and

consider whether a partner should have the right to inflict harm on other partners.

                      Defendants argue that there was no showing that a
              preliminary injunction was necessary to prevent “irreparable
              injury” to the partnership assets. They contend that any
              conceivable future injury would be readily ascertainable and
              could be compensated by money damages and that there is no
              claim that defendants could not respond in damages. However,
              this argument is without merit.

                      The concept of “irreparable injury” which authorizes
              the interposition of a court of equity by way of injunction does
              not concern itself entirely with injury beyond the possibility of
              repair or beyond possible compensation in damages. Rather,
              by definition, an injunction properly issues in any case where
              it would be extremely difficult to ascertain the amount of
              compensation which would afford adequate relief. Further, the
              equitable rule . . . is that: “The term ‘irreparable injury’ . . .
              means that species of damages, whether great or small, that
              ought not to be submitted to on the one hand or inflicted on the
              other.” In Commonwealth v. Pittsburgh & Connelesville R.R.
              Co., 24 Pa. 159, [160 (1854)] the court said . . : “The argument
              that there is no ‘irreparable damage,’ would not be so often

                                             16
              used by wrongdoers if they would take the trouble to observe
              that the word ‘irreparable’ is a very unhappily chosen one, used
              in expressing the rule that an injunction may issue to prevent
              wrongs of a repeated and continuing character, or which
              occasion damages estimable only by conjecture and not by any
              accurate standard. . . . Besides this, where the right invaded is
              secured by . . . contract there is generally no question of
              the amount of damages, but simply of the right.” In the instant
              case, the wrongs complained of were obviously of “a repeated
              and continuing character” and the rule stated in the case last
              cited is clearly apposite.

Wind v. Herbert, 186 Cal. App. 2d at 284-85 (cleaned up, emphasis in original).


              It is obvious that plaintiff Pachira would have a right to monetary damages

from defendant Northeast for the defendant’s alleged future misuse of partnership property

for personal gain. It is also true that Pachira’s future damages may be capable of exacting

calculation. However, the question the trial court was being asked was, does Northeast

have the right to continue causing damages to the partnership and to Pachira in the future?

As this Court once noted:

              Injunctive relief is designed to meet a real threat of a future
              wrong or a contemporary wrong of a nature likely to continue
              or recur. Whether interlocutory or final, injunctive relief is
              ordinarily preventive or protective in character and restrains
              actions that have not yet been taken. It is generally not
              intended to redress, or punish for, past wrongs.

Bd. of Educ. of Cty. of Taylor v. Bd. of Educ. of Cty. of Marion, 213 W. Va. 182, 186, 578

S.E.2d 376, 380 (2003).


              The case law supports the circuit court’s decision to preserve the status quo,

and to temporarily halt defendant Northeast’s future use of the ostensible partnership’s


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water system for its own personal gain. The circuit court’s preliminary injunction was

designed to meet a real threat of a future wrong, or a contemporary wrong of a nature likely

to continue or recur. While Northeast’s future use is probably capable of being reduced to

some monetary value, the question is whether the partnership and plaintiff Pachira should

be required to submit to having property taken and used without permission. The answer

is, obviously, no.


              On this record, it was fair for the circuit court to preserve the status quo until

the parties resolve the merits of their dispute. The circuit court did not err when it found

Pachira was likely to suffer irreparable harm in the absence of action by the court.

Accordingly, we find no error in the circuit court’s preliminary injunction order.
                                                                                     7




                                       IV. Conclusion

              The circuit court’s October 25, 2018, preliminary injunction order is

affirmed.


                                                                                     Affirmed.




                 Northeast raises three other issues on appeal. First, Northeast contends the
              7


circuit court erred in relying upon an affidavit proffered by Pachira. Second, Northeast
asserts the circuit court failed to clearly identify any public interest impacted by Northeast’s
conduct. Finally, Northeast argues the circuit court failed to properly weigh the harm
caused to Northeast by the injunction. After examining the record, we find no merit to
these issues and therefore decline to address them.

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