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Common Misconceptions in Civil Injunction Cases – Part II

October 27, 2021 | Daniel J. Donnellon

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Should you always move for a TRO along with a Preliminary Injunction?

Perhaps the most common misperception counsel, and even judges, have in Rule 65 Civil Injunction cases is failing to recognize the important distinction between the Temporary Restraining Order (“TRO”) and the Preliminary Injunction.  Many view the TRO as a necessary prerequisite to a motion for Preliminary Injunction.  IT IS NOT.  A motion for Preliminary Injunction, however, is a necessary post-requisite to a successful TRO, because the TRO must automatically expire after a limited time.

Frequently, lawyers view the two as going together hand-in-glove because both are designed to protect the status quo of litigants to an action, to prevent those litigants from harming one another during the pendency of the litigation and to preserve the availability of the ultimate remedy.  Proctor & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267 (1st Dist. 2000); see also Yudin v. Knight Industries Corp., 109 Ohio App.3d 437, 439, 672 N.E.2d 265 (6th Dist. 1996).  The status quo to be preserved “is the last, actual, peaceable, uncontested status which preceded the pending controversy.” Obringer v. Wheeling & Lake Erie Ry. Co., 2010-Ohio-601, 2010 WL 597363, ¶ 19 (3d Dist. 2010). Their purpose is to keep the parties, until the suit is finally resolved, as much as possible in the respective positions they occupied when the suit began. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953).

But, the TRO, under R. 65(A), is reserved for emergency, ex parte proceedings.  The TRO is only appropriate when the movant fears the Defendant, unless restrained by the Court, could take certain actions that would forever alter the status quo and render the ultimate relief sought ineffectual before the Court can hear evidence from both sides.  This is precisely why the remedy must be available ex parte, in limited circumstances, and must automatically expire within 14 days of the Order (extended once for good cause for the same duration).  Lawyers, however, unfortunately perceive that their case will not be considered urgent, and in need of immediate relief to preserve the status quo unless they present it to the Court as a TRO.  They ask the Court to schedule an urgent hearing, usually within the same day or the next day, and provide notice to the other counsel or party, eliminating the important ex parte nature of the TRO.  Logically, if the case presents itself as one where you can provide notice to the other side before the initial hearing, then any claim that they could or would take any actions that would forever alter the status quo before Court intervention is without merit.  Otherwise, even in the limited 8 to 24 hours before the parties appear before the Court, why would the Defendant not proceed to take the precise action that would alter the status quo and render ultimate relief meaningless?  They most certainly would.

The temporary restraining order is, as its name implies, a temporary measure available ex parte–.i.e., without notice to the opposing party–to serve as a precursor to the preliminary injunction.  If the matter proceeds ex parte, then the relief requested must be considered a temporary restraining order.  City of Cincinnati ex rel. Cosgrove v. Grogan, 141 Ohio App. 3d 733, 753 N.E. 2d 256 (2001).  Conversely, if the motion does not proceed ex parte, then the court should consider the relief requested to be a preliminary injunction rather than a temporary restraining order.  See, Meade v. Beverly Enterprises-Ohio, Inc., 154 Ohio App. 3d 521, 797 N.E.2d 1040, 1042 (2003) (even though trial court captioned entry as “Temporary Restraining Order”, appellate court found the order was for a preliminary injunction and thus qualified as a final appealable order); Turnoff v. Stefanac, 16 Ohio App. 3d 227, 16 O.B.R. 243, 475 N.E.2d 189 (8th Dist. 1984) (reversed and remanded because, even though movant brought motion for temporary restraining order, where all parties had notice of, were present at, and participated in hearing, it should be considered as motion for preliminary injunction).

Unfortunately, a significant number of civil cases that commence with a TRO request – perhaps the majority – should never involve such a request.  This is precisely why, in my most recent book, Donnellon, D.J., Injunctions and Restraining Orders in Ohio 2020 Edition, Ch. 3 (Amazon KDP, 2020) available HERE, I recommend to judges that they use such an initial appearance as a scheduling conference only; journalize the denial of the TRO, and discuss discovery schedules, witnesses and scheduling of the Preliminary Injunction hearing.

The best practice for a plaintiff seeking prompt, immediate, court intervention to avoid irreparable harm is to file the appropriate initial Verified Complaint (or complaint with separate affidavit) and Motion for Preliminary Injunction, along with an immediate request for a status conference to discuss a date for the injunction hearing.  If the court awards a preliminary injunction, then it is not required to expire automatically and it can stay in place until a final trial on the merits.  But, don’t waste judicial resources, and attorney time, filing for a TRO unless you appreciate the difference and truly need an ex parte hearing.  You could also end up hand-cuffing yourself with the automatic expiration if it may take more than 14 or 28 days to prepare adequately for the injunction hearing.

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Daniel J. DonnellonOf Counsel