This article will discuss the difference between preliminary injunctions and temporary restraining orders in Illinois. In addition to discussing the differences between these forms of relief, we will also discuss the situations in which each is applicable.
Both injunctions and restraining orders are a form of equitable relief, as opposed to a legal remedy.
Legal remedies are typically monetary damages awarded as a result of something quantifiable, such as the cost of repairs when someone backs their car into another car.
Equitable remedies require that no adequate remedy at law be available to the Plaintiff which would allow a full recovery in favor of the Plaintiff. In addition to injunctions and restraining orders, common forms of equitable relief (which are not discussed in this article) include specific performance (typically used in real estate purchases and contract disputes) and replevin (bringing suit against a person for the return of personal property).
An example of a lawsuit seeking a legal remedy is as follows: Person A negligently backs his car into Person B’s car, breaking a tail light and cracking the bumper cover. Person A can be ordered to pay the costs to repair the tail light and bumper cover. In that even, Person B is made whole again.
How would the same example pan out if equitable relief was sought? If the judge issued an injunction ordering Person A to not back his car up anymore or issued a restraining order which requires Person A to keep his car 1,000 feet from Person B, Person B is not being made whole, and making the injured party whole is the goal of all remedies.
The first bit of information necessary to understanding a preliminary injunction is to understand what an injunction generally is. At its most base form, an injunction is a court order that typically requires the party against whom it is being enforced to refrain from a certain, specific activity.
For example, a court can order a person to stop allowing his or her dogs to enter the neighbor’s yard and eat from the neighbor’s vegetable garden.
All injunctions, whether preliminary or permanent, must meet the irreparable injury rule. To meet this rule, the Plaintiff must establish that, unless the Defendant is ordered to cease the objectionable conduct, the Plaintiff will suffer irreparable damages.
An example of this would occur in the following situation: Homeowner seeks injunction stopping logging company from cutting down trees on homeowner’s property. If an injunction isn’t issued and logging company cuts down all of homeowner’s trees, homeowner has likely suffered an irreparable injury.
The test for obtaining a preliminary injunction has four factors:
(1) Plaintiff must be likely to succeed on the merits of the action;
(2) Plaintiff must be likely to suffer irreparable harm if an injunction is not issued;
(3) Balance of equities must tip in Plaintiff’s favor (in other words, the damage to Defendant if the injunction is granted when it shouldn’t have been must be less than the damage caused to Plaintiff if the injunction wasn’t granted and should have been); and
(4) The injunction serves public interest.
Using the above example with the dogs eating the neighbor’s vegetable garden, let’s take a look at this test in action.
(1) If the neighbor is allowing his dogs to enter the Plaintiff’s yard and eat the Plaintiff’s vegetables, Plaintiff is likely to succeed on the merits of his action.
(2) If the dogs are allowed to eat all of the Plaintiff’s vegetables, Plaintiff has suffered an irreparable injury as he lost the entirety of his vegetable garden.
(3) In this situation, the damage to Plaintiff if the injunction is not granted would be the loss of his vegetable garden. The damage to Defendant if the injunction is granted would be that his dogs can no longer enter Plaintiff’s yard. Clearly, the damage to Plaintiff is worse.
(4) An injunction in this situation would serve public interest as it promotes the exclusive use and possession of one’s own property.
Preliminary injunctions are most effective in civil lawsuits that are expected to go on for extended periods of time. In situations like the above two examples, seeking a preliminary injunction early in litigation is a good idea as it provides the relief Plaintiff is ultimately seeking sooner rather than waiting for a final judgment – albeit the relief only last until a final judgment is entered.
Temporary restraining orders are another form of injunction and, therefore, must generally meet the same four factors noted above. As the name suggests, a temporary restraining order, if granted, restrains an individual from a certain activity. The most common form of temporary restraining order is to prevent a person from coming into contact with another individual.
To succeed on a petition for temporary restraining order, notice must be provided to the adverse party unless it is clear from specific facts shown by an affidavit or complaint that immediate and irreparable injury will result to the petitioning party before a hearing can take place.
Example: Harasser has been abusing victim for a long time. Victim hires an attorney to petition the court for entry of a temporary restraining order requiring Harasser vacate the parties’ shared residence. Given the parties’ past history of abuse on the victim, the court may grant the restraining order.
For all intents and purposes, a temporary restraining order serves the same purpose as a preliminary injunction. However, unlike a preliminary injunction, a temporary restraining order will expire after ten days and needs to be extended further. 735 ILCS 5/11-101. A preliminary injunction, on the other hand, remains in effect (unless appealed) until a final judgment is entered in a matter.
Illinois requires that the party seeking relief (in both preliminary injunctions and temporary restraining orders) provide notice of the time and place of hearing to the adverse party (party against whom the relief is sought). 735 ILCS 5/11-101 and 735 ILCS 5/11-102. However, there is an exception to the notice requirement when dealing with temporary restraining orders.
In certain situations, the court will hear a petition for a temporary restraining order ex parte (without the adverse party present). Generally, the only way to have an ex parte hearing is in emergency situations and, most often, these include domestic issues (domestic violence, child custody issues, etc). The justification for ex parte hearings is that, if provided with notice, the adverse party may resort to more violent conduct before the hearing can take place.
For example, if Wife seeks a temporary restraining order against Husband who has been physically abusing Wife or who has threatened to harm and/or kill Wife, providing Husband with notice may only serve to provoke Husband, leading to more physical harm or worse. Therefore, it is Wife’s best interest that the court allow a hearing on her petition for a temporary restraining order to be heard without providing Husband with notice.
Similarly, in cases involving custody issues. If Parent A knows Parent B either wants, or is likely, to remove the parties’ minor child(ren) from the state, Parent A can seek an ex parte temporary restraining order, restricting Parent B from removing the child(ren) from the state. Had Parent B been provided notice of a date and time at which the court would make a decision regarding Parent B’s ability to remove the child(ren), Parent B may have acted improperly sooner by removing the child(ren) before the court hearing.