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23-P-73 Appeals Court

BRETT LYMAN vs. SASHA LANSER.

No. 23-P-73.

Middlesex. November 8, 2023. - March 7, 2024.

Present: Sacks, Brennan, & D'Angelo, JJ.

Dog. Animal. Tenants in Common. Injunction. Practice, Civil,

Injunctive relief, Interlocutory appeal. Appeals Court,
Appeal from order of single justice. Frauds, Statute of.
Contract, Performance and breach, Construction of contract,
Specific performance.

Civil action commenced in the Superior Court Department on

June 24, 2022.

A motion for a preliminary injunction was heard by Shannon

Frison, J.

A proceeding for interlocutory review was heard in the

Appeals Court by Grant, J.

Jeremy M. Cohen (Robert D. Stewart also present) for the

plaintiff.
Philip A. Bongiorno for the defendant.

SACKS, J. The plaintiff brought this Superior Court action

against his former romantic partner, the defendant, seeking

specific performance of an agreement to equally share possession

 2

of their jointly-owned property, a Pomeranian dog named Teddy

Bear. The plaintiff alleged that Teddy Bear is a "specific and

unique chattel." The plaintiff sought, and a motion judge

issued, a preliminary injunction requiring the defendant to

share Teddy Bear with the plaintiff for alternating two-week

periods. The defendant sought relief from a single justice of

this court, arguing that, although the dog was coowned, the

judge had no authority to order "shared custody" of a dog. The

single justice vacated the preliminary injunction, concluding

that the motion judge had improperly treated Teddy Bear as if he

were the parties' child. The plaintiff appealed the single

justice's order to this court. We conclude that there was

insufficient basis to vacate the preliminary injunction, and

therefore we reverse the single justice's order.

Background. We draw our summary of facts from the verified

complaint and the plaintiff's affidavit in support of his motion

for a preliminary injunction; the defendant submitted no

evidence in opposition.1 At the time the parties met in 2016,

the plaintiff and a previous romantic partner coowned a

Pomeranian dog and shared possession of him on an alternating

1 Attached to the defendant's memorandum in opposition was a

certificate indicating that she had registered Teddy Bear as an
emotional support animal in an Internet database. The
certificate was dated November 30, 2021, which was after the
parties' breakup.
 3

basis. The plaintiff and the defendant "loved" that dog and

found it hard to have him only part time. They decided to buy

their own Pomeranian that they "could share together."

The parties agreed that if they acquired a dog and then

later separated, they would share the dog equally. In June of

2018, they purchased a male Pomeranian puppy and named him Teddy

Bear Lanser-Lyman. Although the ownership registration form

bore only the plaintiff's name, the parties evenly split the

cost of buying Teddy Bear. During the time the parties remained

together, they continued to share the responsibility of caring

for and training Teddy Bear, although the plaintiff asserted

that he bore a significant majority of the costs, spending about

$8,000 during that time.

In the summer of 2021, the parties' relationship ended, and

the defendant moved out of their shared residence. The parties

"communicated regularly about [their] intended plan to share

Teddy Bear on an approximately equal basis." They sent text

messages to each other "to work out as many details as possible

to set up a predictable routine" for sharing him. In early

August the defendant proposed that they exchange possession of

Teddy Bear approximately every week, and it appears they

exchanged possession of him several times that month and the

next. Until January of 2022, the parties shared the dog

amicably, although the amount of time that the plaintiff had

 4

possession of Teddy Bear steadily decreased, in part due to the

plaintiff's conflicting family obligations.

In January of 2022, the defendant moved to a different

apartment, and so the parties agreed to temporarily suspend

their sharing arrangement to allow Teddy Bear to adjust to the

defendant's new home. This temporary suspension continued until

March of 2022 when, according to the plaintiff, the defendant

cut off all communication with him and refused to allow him

access to Teddy Bear.

The plaintiff then commenced this action for conversion and

breach of contract. Expressly disclaiming any request for

damages, the plaintiff, in his verified complaint, sought only

equitable relief, including specific performance of the parties'

agreement to equally share possession of Teddy Bear.

The plaintiff moved for a preliminary injunction to restore

his asserted joint ownership and possessory rights to the status

quo that existed before the defendant refused him access to

Teddy Bear. He argued that although "the law regards . . . dogs

as property, dogs are property of a distinctive type and nature,

living creatures with distinct personalities and [a] finite life

span, clearly distinguishable from inanimate personal property."

He asserted that the defendant's actions were causing him

irreparable harm, in the form of the loss of Teddy Bear's

companionship, which could not be remedied by money damages.

 5

After a hearing, the motion judge credited the plaintiff's

evidence of a binding agreement for shared possession. She

found that "[t]he parties each paid half of the price of the

dog, expressed intent to share custody even if they separated,

and acted on that agreed/shared custody until Jan[uary] 202[2]."

Her preliminary injunction, referring to "the property known as

Teddy Bear," ordered that "[b]ased upon joint ownership rights,

both parties shall be allowed to have Teddy Bear for alternating

[two]-week periods. Beginning on [November 27, 2022], Teddy

Bear will be exchanged at a mutually agreeable location for each

exchange (Sunday-Sunday)."

The defendant then petitioned a single justice of this

court for relief from the preliminary injunction. See G. L.

c. 231, § 118, first par. The single justice acknowledged as

undisputed that the parties had equally split the cost of

purchasing the dog and agreed to co-own him. The single justice

nevertheless found no Massachusetts authority for treating a

dog, which is personal property, as unique, such that an order

for specific performance of their sharing agreement could be

appropriate. The single justice noted a distinction between

specific enforcement of written contracts concerning real

property and an oral contract concerning personal property.

The single justice concluded that the motion judge abused

her discretion by "effectively treat[ing] the dog . . . as if it

 6

were the parties' child," instead of as personal property. The

single justice therefore vacated so much of the preliminary

injunction as required the parties to alternate possession of

Teddy Bear.2 The plaintiff then appealed to this court. See

G. L. c. 231, § 118, second par.

Discussion. 1. Standard of review. When we review a

single justice's order issued under G. L. c. 231, § 118, first

par., "[t]he essential legal question" before us is "whether the

single justice abused [her] discretion by entering an order

without having a supportable basis for doing so" (citation

omitted). Aspinall v. Philip Morris Cos., 442 Mass. 381, 390

(2004), S.C., 453 Mass. 431 (2009). "Answering that question,

however, requires examination of the trial [court] judge's

order," because:

"[t]he single justice is not a fact finder and must accept

any relevant facts found by the judge when those facts have
support in the record. Considerable deference is also
required on the part of the single justice to
determinations by the judge, especially where those
determinations involve an exercise of discretion. In most
cases, based on the deference normally accorded
determinations by the judge who heard the matter in the
first instance, the single justice will decline to act on
an application for relief under G. L. c. 231, § 118, first
par., that does not disclose clear error of law or abuse of
discretion." (Quotation and citation omitted.)

Id.

2The single justice left in place those parts of the

preliminary injunction barring the defendant from transferring
ownership of Teddy Bear or removing him from the Commonwealth.
 7

The motion judge, in turn, was governed by the familiar

preliminary injunction standard:

"To succeed in an action for a preliminary injunction, a

plaintiff must show (1) a likelihood of success on the
merits; (2) that irreparable harm will result from denial
of the injunction; and (3) that, in light of the
plaintiff's likelihood of success on the merits, the risk
of irreparable harm to the plaintiff outweighs the
potential harm to the defendant in granting the injunction.
. . . When . . . a party seeks to enjoin governmental
action, the court also considers whether the relief sought
will adversely affect the public." (Citation omitted.)

Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass.

217, 219 (2001). "At the preliminary injunction stage, an

appellate court will not reverse the action of the motion judge

if there is a supportable legal basis for that action." Boston

Harbor Commuter Serv., Inc. v. Massachusetts Bay Transp. Auth.,

46 Mass. App. Ct. 122, 123 (1999). Of course, "[i]f the basis

on which the preliminary injunction was issued is wrong as a

matter of law, the preliminary injunction cannot be sustained."

Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212 (1997).

2. Likelihood of success on the merits. As already

stated, there is no dispute that the parties jointly own Teddy

Bear. Domestic animals are personal property, see Irwin v.

Degtiarov, 85 Mass. App. Ct. 234, 237 (2014), and may be owned

by a tenancy in common,3 see Goell v. Morse, 126 Mass. 480, 481

3 Personal property also may be owned through a joint

tenancy or through a tenancy by the entirety. See Marble v.
 8

(1879) (parties who each contributed to purchase price "were the

owners as tenants in common of the horse").

a. Existence of agreement. The motion judge, having found

that the parties evenly split the purchase price of Teddy Bear,

"expressed intent to share custody even if they separated, and

acted on that agreed/shared custody" for some months after their

separation, could view the plaintiff as having stated a

meritorious claim for breach of a contract to equally share

possession of Teddy Bear.4 There is no doubt that tenants in

common may make an agreement governing their respective rights

in personal property. To be sure, our case law most often

Jackson, 245 Mass. 504, 507 (1923). Absent any contrary

indication, it could be presumed that the parties owned Teddy
Bear as tenants in common rather than as joint tenants. Cf.
Battle v. Howard, 489 Mass. 480, 484–485 (2022) ("unless the
intent to create a joint tenancy is clearly expressed, a deed or
devise will be treated as creating a tenancy in common"). This
case does not require us to determine whether the parties own
Teddy Bear as tenants in common or as joint tenants.

4 The judge did not address the plaintiff's conversion

claim, and we need not do so either. Because the issue may
arise in further proceedings in the trial court, we do address
one limited aspect of the defendant's response to that claim --
that one coowner cannot seek a remedy for conversion by the
other, "since both are equally entitled to possession and the
possession of one is the possession of both." Johnson v.
Nourse, 258 Mass. 417, 419 (1927). Cf. Jarvis v. De Peza, 251
Mass. 447, 448 (1925) (similar, in replevin action to obtain
possession of jointly owned car). These cases have no apparent
application to a claim against a coowner seeking specific
performance of an agreement to share possession of property in a
particular manner. Cf. Goell, 126 Mass. at 482 (where tenants
in common agreed neither party should sell horse without other's
agreement, sale by one was conversion).
 9

addresses agreements governing the parties' rights to transfer

ownership interests in such property. See Goell, 126 Mass. at

482 (proceeds from sale of horse); Somerby v. Buntin, 118 Mass.

279, 287 (1875) (patent); Clark v. Flint, 22 Pick. 231, 241

(1839) (brig). We see no reason, however, why tenants in common

may not make enforceable agreements regarding their rights vis-

à-vis each other to possess and use their property. See

Somerby, supra (oral agreement to hold letters patent jointly

could be enforced through order for specific performance). Cf.

Tucci v. DiGregorio, 358 Mass. 493, 497 (1970) (if tenants in

common of premises including two-family house could not agree

that each would occupy a particular half of premises, it could

be partitioned under G. L. c. 241). At this preliminary

injunction stage, at least, the defendant has offered no such

reason.

That the claimed agreement here is lacking in detail is not

fatal to the plaintiff's likelihood of success on the merits.

Although "[a] contract must be complete and definite to support

a decree for specific performance, . . . a contract embodying

all the material factors for the accomplishment of a transaction

undertaken by the parties is not incomplete or indefinite

because it fails to express in terms some matters concerning the

performance of the contract and reasonably necessary for the

attainment of its object." Shayeb v. Holland, 321 Mass. 429,

 10

430 (1947). For example, even where a contract does not

expressly state "an essential element" such as the purchase

price of real estate, the contract may reasonably be interpreted

to require "a fair and reasonable price." Id. at 432.

Here, the plaintiff stated in his affidavit supporting his

motion for a preliminary injunction that the agreement was to

"share Teddy Bear on an equal basis" in the event the parties

separated. Such an agreement might be interpreted to require

that possession be shared in a reasonable manner. The record

indicated that the parties had successfully shared possession of

Teddy Bear for many weeks. Thus, the judge preliminarily

ordered that Teddy Bear be exchanged every two weeks on Sunday,

at a mutually agreeable location. Moreover, in further

proceedings, the plaintiff may be able to establish additional

terms of the agreement. The judge did not abuse her discretion

or otherwise err in concluding that the plaintiff had a

likelihood of success on his contract claim.

b. Availability of specific performance. Agreements

regarding personal property ownership may be specifically

enforced. "Equity will specifically enforce a contract relating

to chattels, if the remedy at law for damages would be

inadequate, and grant relief for delivery of a thing wrongfully

withheld." Dahlstrom Metallic Door Co. v. Evatt Constr. Co.,

256 Mass. 404, 415 (1926). See Poltorak v. Jackson Chevrolet

 11

Co., 322 Mass. 699, 700 (1948) (specific performance available

for contracts for sale of chattels where damages for breach are

not equivalent of promised performance). See also Somerby, 118

Mass. at 287. Actions for specific performance are within the

Superior Court's general equity jurisdiction under G. L. c. 214,

§ 1. See Derby v. Derby, 248 Mass. 310, 313-314 (1924);

Somerby, supra (construing predecessor statute, Gen. Sts.

c. 113, § 2). See also G. L. c. 214, § 1A (remedy in damages

does not bar action for specific performance if damages would

not provide equivalent of performance).

It is no bar to specific performance that an agreement is

not in writing. "Even oral contracts will be specifically

enforced, when the case is not within the statute of frauds, and

no complete and adequate remedy can be had by an action at law."

Somerby, supra. See Derby, 248 Mass. at 313–314. Contrary to

the defendant's Statute of Frauds argument here, the claimed

agreement to share Teddy Bear equally in the event the parties

separated was capable of performance within one year. "The

Statute of Frauds applies only to contracts which by their terms

cannot be performed within the year. It does not apply to

contracts which may be performed within, although they may also

 12

extend beyond, that period" (quotation omitted). Boothby v.

Texon, Inc., 414 Mass. 468, 479 (1993).5

Nor was the motion judge's implicit determination that the

plaintiff had no adequate remedy at law a "clear error of law or

abuse of discretion." Aspinall, 442 Mass. at 390. No doubt,

specific performance of contracts relating to personal property

is the exception rather than the rule, because a damages remedy

usually suffices. "The reason is, that, in regard to most

articles of personal property, the commodity and its market

value are supposed to be substantially equivalent, each to the

other, so that they may be readily interchanged." Jones v.

Newhall, 115 Mass. 244, 248 (1874). The party left without

possession obtains damages and, "with his money, may obtain

similar goods . . . presumably at the market price." Id.

However, "[i]f the character of the property be such that the

loss of the contract will not be fairly compensated in damages

based upon an estimate of its market value, relief may be had in

equity, whether it relates to real or to personal estate." Id.

at 248–249.

5 In Boothby, the Statute of Frauds was inapplicable because

the plaintiff's contract for permanent employment "could have
been performed within one year: [the plaintiff] could have died
or Texon could have discontinued its business, at which point
its obligation to employ [the plaintiff] would end." 414 Mass.
at 479.
 13

We have previously recognized that, although a domestic

animal is property, its market value does not always fairly

measure its value to its owner. See Irwin, 85 Mass. App. Ct. at

235, 237-238. In Irwin, we held that the measure of damages for

injury to a domestic animal may include, in addition to its

"market value or replacement cost," those reasonable veterinary

expenses reasonably incurred in treating the animal. Id. at

238, citing Atwood v. Boston Forwarding & Transfer Co., 185

Mass. 557, 558–559 (1904). The factors relevant to the

reasonableness of such expenses include the animal's "age and

special traits or skills," "whether it was maintained as part of

the owner's household," and "the owner's affection for the

animal." Id. at 239. Implicit in these factors is the

recognition that a domestic animal's value to its owner, and

thus the amount of expenses for veterinary care that the law

views as reasonable, may increase based on the animal's special

role in the owner's household,6 although "the owner cannot

recover for his or her own hurt feelings, emotions, or pain" or

"for the loss of the animal's companionship or society." Id.,

6 The Legislature, too, has recognized the special place

that domestic animals may occupy in a household. Under G. L.
c. 209A, § 11 (a), a court issuing an abuse prevention order
under G. L. c. 209A, a harassment prevention order under G. L.
c. 258E, or similar orders under other statutes "may order the
possession, care and control of any domesticated animal owned,
possessed, leased, kept or held by either party or a minor child
residing in the household to the plaintiff or petitioner."
 14

citing Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 423 (2002).

But Irwin, supra, (a strict liability action) and Krasnecky,

supra, (a tort action) involved duties imposed by law, whereas

here we deal with a claim for breach of a duty voluntarily

assumed by parties to a contract, the very object of which was

to obtain an animal's companionship.

"In determining whether the remedy in damages would be

adequate," one significant factor is "the difficulty of proving

damages with reasonable certainty." Restatement (Second) of

Contracts § 360 (1981). "Some types of interests are by their

very nature incapable of being valued in money. Typical

examples include heirlooms, family treasures and works of art

that induce a strong sentimental attachment." Id. at comment b.

"Contracts may be specifically enforceable because they involve

a grandfather's clock, even though it will not run, a baby's

worn-out shoe, or faithful old Dobbin the faithful horse whose

exchange value in the market is less than nothing." Restatement

(First) of Contracts § 361 comment e (1932). See Sanford v.

Boston Edison Co., 316 Mass. 631, 635 & n.1 (1944), S.C. 319

Mass. 55 (1946) (collecting cases illustrating Supreme Judicial

Court's "broadening tendency in applying the remedy of specific

performance").

Under these principles, the motion judge reasonably could

have concluded, at least as a preliminary matter, that a damages

 15

remedy for the defendant's breach of her agreement to equally

share Teddy Bear would be inadequate to compensate the plaintiff

for the loss of his equal possession. Whether that possession

is described as involving the companionship of Teddy Bear (the

term "use" being better suited to inanimate objects), or instead

his "shared custody" (a phrase that understandably concerned the

single justice and might better be avoided when discussing

animals), does not seem dispositive. Although the motion judge

used the phrase "shared custody," nothing in her order treated

Teddy Bear as a child. Nor should anything in our decision be

construed as altering the status of pets in divorce proceedings.

The judge's order is supported by settled principles of property

and contract law, even if there is little precedent for

combining them to apply to a pet dog.7

3. Balance of harms. Although the motion judge did not

expressly discuss the balance of harms, focusing instead on the

viability of the plaintiff's contract claim, the judge

reasonably could have concluded that the irreparable harm to the

plaintiff, considered in light of his likelihood of success on

the merits, outweighed the harm to the defendant. The

7 But see Houseman v. Dare, 405 N.J. Super. 538, 542-543

(App. Div. 2009) (specific performance available to enforce
plaintiff's agreement entered into with former boyfriend after
relationship ended, that plaintiff would own and possess dog
they had jointly purchased and owned while engaged).
 16

plaintiff's verified complaint and affidavit stated, among other

things, that he was "losing the value of his investment of time,

money, [and] emotional support of Teddy [Bear] each day that

[his] exercise of ownership and possessory rights to Teddy Bear

is wrongfully denied." It was a reasonable inference from the

other facts asserted by the plaintiff that he had an "owner's

affection for the animal," which "may be considered" in

determining what relief is appropriate. Irwin, 85 Mass. App.

Ct. at 239. The plaintiff sought not to deprive the defendant

altogether of her possessory rights but only to possess the dog

on an equal basis with her. Despite the defendant's unsworn

assertion that Teddy Bear was her registered emotional support

animal, she offered no evidence that ordering her to share

possession of Teddy Bear equally during the pendency of the

action would cause her more harm than it would avoid for the

plaintiff.

4. Public interest. Because this case does not involve a

request for a preliminary injunction by or against the

government, the public interest in its usual sense is not a

significant factor. Cf. Tri-Nel Mgt., Inc., 433 Mass. at 219;

Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984).

Nevertheless, one additional factor affecting the propriety of

specific performance deserves mention: the burden that ongoing

enforcement of pet-sharing agreements might place on our courts.

 17

It is not difficult to foresee that disputes between joint pet

owners, particularly those whose relationships have ended, could

become acrimonious and require the commitment of substantial

judicial resources over a protracted period of time. It might

well be questioned whether the courts should allow themselves to

be drawn into such matters.

This potential drawback of the remedy of specific

performance is nothing new. Nearly a century ago the Supreme

Judicial Court recognized that "[s]pecific enforcement will not

be decreed if the performance is of such a character as to make

effective enforcement unreasonably difficult or to require such

long-continued supervision by the court as is disproportionate

to the advantages to be gained from such a decree and to the

harm to be suffered in case it is denied." McCormick v.

Proprietors of the Cemetery of Mt. Auburn, 285 Mass. 548, 551

(1934), quoting Restatement (First) of Contracts § 371 (1932).8

See Sanford, 316 Mass. at 634 (availability of specific

performance remedy depends in part on whether it will involve

substantial practical difficulties).

8 This principle has been carried forward in the Restatement

(Second) of Contracts. "A promise will not be specifically
enforced if the character and magnitude of the performance would
impose on the court burdens in enforcement or supervision that
are disproportionate to the advantages to be gained from
enforcement and to the harm to be suffered from its denial."
Restatement (Second) of Contracts § 366 (1981).
 18

For somewhat similar reasons, the courts of other States,

when confronted with pet disputes in the divorce context, have

traditionally resisted ordering shared custody of or visitation

with jointly owned pets and instead have treated pets as

personal property that must be awarded to one spouse or another.

See 2 B.R. Turner, Equitable Distribution of Property § 6:109

(4th ed. 2024), and cases cited. See also Annot., Divorce and

Separation: Custody Disputes Concerning Pets, 104 A.L.R. 6th

181 (2015). "Determinations as to [pet] custody and visitation

lead to continuing enforcement and supervision problems . . . .

Our courts are overwhelmed with the supervision of custody,

visitation, and support matters related to the protection of our

children. We cannot undertake the same responsibility as to

animals." Bennett v. Bennett, 655 So. 2d 109, 110–111 (Fla.

Dist. Ct. App. 1995). "The extension of an award of possession

of a dog to include visitation or joint custody -- components of

child custody designed to keep both parents firmly involved in

the child's life -- would only serve as an invitation for

endless post-divorce litigation, keeping the parties needlessly

tied to one another and to the court." Travis v. Murray, 42

Misc. 3d 447, 460 (N.Y. Sup. Ct. 2013).9

9 The Travis court adopted a "best for all concerned"

standard for deciding which divorcing spouse should be awarded
ownership of the parties' pet. Travis, 42 Misc. 3d at 460. The
 19

In this case, however, the judge was asked not to determine

whether the parties should share possession of Teddy Bear, but

merely to enforce, on a preliminary basis, the parties' own pre-

existing agreement for shared possession. Although the

potential for acrimony and disputes over minor details of shared

possession remains, the most difficult decision, according to

the plaintiff's as yet unrebutted evidence, had already been

made by the parties themselves and carried out over a period of

some months. We cannot say that the judge abused her discretion

in ordering specific performance here. But it is within the

judge's discretion to revisit that decision if further

proceedings or the parties' actions suggest that the burdens of

such enforcement on the court are disproportionate to the

benefits. See Lawless v. Melone, 350 Mass. 440, 443 (1966)

(specific performance of joint venture should not be ordered

where history of litigation presaged unsatisfactory and

unworkable arrangement); Westinghouse Broadcasting Co. v. New

England Patriots Football Club, Inc., 10 Mass. App. Ct. 70, 74-

Travis case has been characterized as reflecting "a degree of

movement away from the traditional position that pets are no
different from other forms of property." 2 B.R. Turner,
Equitable Distribution of Property § 6:109 (4th ed. 2024). Under
a statute taking effect in 2021, New York matrimonial courts,
"in awarding the possession of a companion animal," were
required to "consider the best interest of such animal." N.Y.
Dom. Rel. Law § 236(B)(5)(d)(15). See L.B. v. C.C.B., 77 Misc.
3d 429, 435-436 (N.Y. Sup. Ct. 2022).
 20

75 (1980) (agreeing with judge's "reluctance to order the

plaintiff and defendant into an uneasy harness" [quotation

omitted]).

Specific performance in these circumstances is a matter of

discretion. Where specific performance is unwarranted or

infeasible, other remedies remain, including a damages remedy

(albeit not fully adequate) for breach of the agreement, and

even an equitable remedy in the nature of partition to free the

parties of the burdens of continued joint ownership. See

G. L. c. 214, § 3(3) (granting Supreme Judicial and Superior

Courts jurisdiction of "[a]ctions between joint owners of

personal property . . . to order a division or sale thereof and

make and order a proper distribution of the proceeds"). See

also Tucci, 358 Mass. at 497 (partition proceeding available if

tenants in common could not agree on use of property).

Conclusion. The order of the single justice vacating the

preliminary injunction is reversed, and a new order shall enter

denying the defendant's petition for relief from the preliminary

injunction.10

So ordered.

10 The defendant's request for costs and attorney's fees is

denied.