TRO Hearings in Illinois: What Can You Bring to the Table?
Conjure the typical temporary restraining order situation. A frantic call from a client to his or her lawyer expressing the need for an immediate remedy.Lawyers scramble to draft a complaint and a motion for a temporary restraining order and run to court to file. Assume notice is given. The defendant’s lawyers then scramble as well to prepare for the temporary restraining order (TRO) hearing. Query: What exactly are the lawyers able to prepare for and present at the TRO hearing? Is it just phone calls with their respective clients hearing their side of the story? Legal research to craft legal arguments? The lawyers will certainly go to the courthouse with copious notes scribbled on a legal pad and caselaw printed out. But what about actual evidence to support their case? In Illinois, the answer is surprisingly unclear whether parties may present evidence at a TRO hearing. And that lack of clarity is something of which all litigants in Illinois should be aware. (Credit is given to the Honorable Thomas J. O’Brien, who previously explored this topic in-depth. See TRO Petitions: Is an Evidentiary Hearing Required?, 81 Ill.B.J. 572 (Nov. 1993).)
TROs are the first step in Illinois’ three-tiered system of injunctive relief. Courts describe TROs as a “drastic, emergency remedy,” the purpose of which is to maintain the status quo until a hearing can be held on an application for a preliminary injunction. Jurco v. Stuart, 110 Ill.App.3d 405, 442 N.E.2d 633, 635, 66 Ill.Dec. 207 (1st Dist. 1982). Ultimately, the “plaintiffs must demonstrate that they: (1) possess a protectable right; (2) will suffer irreparable harm without the protection of an injunction; (3) have no adequate remedy at law; and (4) are likely to be successful on the merits of their action.” American Federation of State, County & Municipal Employees, Council 31 v. Ryan, 332 Ill.App.3d 965, 773 N.E.2d 1196, 1198, 266 Ill.Dec. 126 (1st Dist. 2002). Normally, plaintiffs try to convince the trial court through legal authority and legal argument that they have met these required elements. See 773 N.E.2d at 1199(“Plaintiffs have presented neither authority nor argument for the proposition that the IDOC lacks authority to close Valley View.”). The defendant, of course, will refute the plaintiff with legal argument and authority. However, whether a trial court will allow the parties to present evidence to support their case is an open question in Illinois.
Some Illinois appellate courts have opined trial courts should not consider evidence in a TRO hearing. One court noted how a TRO is an emergency remedy reserved for exceptional circumstances “and only until the trial court can hear arguments or evidence.” Paddington Corp. v. Foremost Sales Promotions, Inc., 13 Ill.App.3d 170, 300 N.E.2d 484, 487 (1st Dist. 1973). Thus, without elaborating, the court in effect stated a TRO issues before the trial court can hear evidence. Another appellate court affirmed the trial court’s denial of a motion to dissolve a TRO entered against the defendants without holding an evidentiary hearing. Similar to Paddington, the court stated that “the purpose of a restraining order is to maintain the status quo until both parties can appear before the court and present evidence on the preliminary injunction.” Lawter International, Inc. v. Carroll, 107 Ill.App.3d 938, 438 N.E.2d 590, 592, 63 Ill.Dec. 659 (1st Dist. 1982).
The language courts employed to classify TROs in this fashion only strengthened. One court explained the classification of a trial court’s order as a TRO or a preliminary injunction determines the type of hearing required for issuance of that order. Passon v. TCR, Inc., 242 Ill.App.3d 259, 608 N.E.2d 1346, 1349, 181 Ill.Dec. 872 (2d Dist. 1993). The Passon court drew a distinct contrast between a TRO and a preliminary injunction; whereas a preliminary injunction requires an evidentiary hearing, “however, a hearing on a motion for a TRO is a summary proceeding, and even if the defendant files a verified answer, the court still proceeds in a summary fashion, hearing only arguments on the motion for the TRO.” [Emphasis added.] Id. Because the trial court was ruling on a TRO, the appellate court found the defendants did not waive an evidentiary hearing by failing to request one because “the defendants were not entitled to an evidentiary hearing if the court was merely determining whether a TRO should be issued.” Id.
Other courts, however, have determined a trial court may consider evidence depending on whether the defendant has filed a verified answer denying material allegations of the complaint. In one case, a defendant disputed allegations in the complaint not through a verified answer but through a verified counterclaim and affidavits submitted in response to the plaintiff’s motion for a TRO. Bridgeview Bank Group. v. Meyer, 2016 IL App (1st) 160042, ¶11, 49 N.E.3d 916, 401 Ill.Dec. 214. The appellate court held the defendant’s “maneuver” was “procedurally improper” because “on a motion for a temporary restraining order, it has long been held that in the absence of a verified answer, the court should not receive or consider evidence or affidavits from the opposing party.” Id. As recent as the Bridgeview decision is, however, the court appears to have mistakenly relied on authority that stated the no-evidence proposition in the context of a preliminary injunction, not a TRO. (The three decisions to which Bridgeview cited — Russell v. Howe, 293 Ill.App.3d 293, 688 N.E.2d 375, 227 Ill.Dec. 894 (2d Dist. 1997), Carriage Way Apartments v. Pojman, 172 Ill.App.3d 827, 527 N.E.2d 89, 122 Ill.Dec. 717 (2d Dist. 1988), and Kurle v. Evangelical Hospital Ass’n, 89 Ill.App.3d 45, 411 N.E.2d 326, 44 Ill.Dec. 357 (2d Dist. 1980)— all recited the statement from Bridgeview in the context of a preliminary injunction.)
On the other hand, some courts have held trial courts must or at least may consider evidence at a TRO hearing. Some appellate courts implicitly endorsed a trial court’s holding of an evidentiary hearing on a motion for a TRO without expressly commenting on the propriety of the trial court considering the evidence. See Preferred Meal System, Inc. v. Guse, 199 Ill.App.3d 710, 557 N.E.2d 506, 508, 145 Ill.Dec. 736 (1st Dist. 1990) (“After hearing evidence and argument of counsel, the trial court on June 21, 1988, entered a temporary restraining order (TRO) enjoining defendant Guse from engaging in competition with Preferred or consulting in any way with Excel.”); City of Chicago v. Westphalen, 93 Ill.App.3d 1110, 418 N.E.2d 63, 76, 49 Ill.Dec. 219 (1st Dist. 1981) (“[T]he temporary restraining order was issued because of the carbon monoxide leakage and evidence presented by the City that the defendant’s building failed to conform to minimum health and safety standards.”); Krebs v. Mini, 53 Ill.App.3d 787, 368 N.E.2d 159, 162, 10 Ill.Dec. 673 (2d Dist. 1977) (“The trial court took the matter under advisement at the conclusion of the petitioners’ evidence. The court subsequently filed an order which made certain specific findings from the evidence presented at the hearing on the temporary restraining order.”). Other appellate courts have gone a bit further by expressly supporting the presentation of evidence at a TRO hearing. One court analyzed the parties’ positions on appeal and held “there was sufficient evidence before the trial court to sustain its orders pertaining to the parties’ respective motions for a temporary restraining order.” City of Waukegan v. Illinois Environmental Protection Agency, 339 Ill.App.3d 963, 791 N.E.2d 635, 646, 274 Ill.Dec. 543 (2d Dist. 2003). Similarly, another court declared that showing the likelihood of success on the merits “might involve the weighing of evidence, including affidavits.” County of DuPage v. Gavrilos, 359 Ill.App.3d 629, 834 N.E.2d 643, 651, 296 Ill.Dec. 86 (2d Dist. 2005). Finally, one appellate court went so far as to reverse the trial court’s denial of a TRO specifically because the trial court failed to consider evidence. The court framed the question on appeal as “whether the trial court erred in denying G & W the restraints prayed for without an evidentiary hearing.” G & W Electric Co. v. Joslyn Manufacturing & Supply Co., 127 Ill.App.3d 44, 468 N.E.2d 449, 450, 82 Ill.Dec. 187 (1st Dist. 1984). With respect to G & W’s effort to enforce a confidentiality provision against a defendant, the court noted that portion of the motion for a TRO was denied and that “[w]e believe this action taken without an evidentiary hearing was error.” 468 N.E.2d at 452.
In the face of these clashing authorities, what should litigants expect going into a TRO hearing in an Illinois trial court? Should litigants be prepared to present evidence and expect the trial court to consider their evidence? A normative question is should trial courts allow and consider evidence at a TRO hearing? Judge O’Brien made the case against allowing evidence at a TRO hearing. See81 Ill.B.J. at 575 – 576. This article is not meant to answer these questions definitively for the simple reason that there is no clear answer under Illinois law. Nevertheless, when in doubt, advocates should zealously advocate for their clients and should therefore be prepared to present evidence or dispute the presentation of evidence. The lack of clarity on this issue is but another gray area in which litigators must operate. So litigators should do what they do best: advocate and argue their position and let the chips fall where they may.
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