Illinois injunctions: asking for the wrong remedy is not fatal

Illinois puts its injunction law in Article XI of the Code of Civil Procedure rather than in a rule, and the Article carries three provisions that have no counterpart in the federal Rule 65 most states adopted. The first of them saves cases.

Pleaded the facts, asked for the wrong thing

Section 11-107:

Where relief is sought under Article XI of this Act and the court determines, on motion directed to the pleadings, or on motion for summary judgment or upon trial, that the plaintiff has pleaded or established facts which entitle the plaintiff to relief but that the plaintiff has sought the wrong remedy, the court shall permit the pleadings to be amended, on just and reasonable terms, and the court shall grant the relief to which plaintiff is entitled on the amended pleadings or upon the evidence.

Two "shalls." The court shall permit the amendment, and shall grant the relief the facts support.

The trigger is broad — a motion directed to the pleadings, a summary judgment motion, or the trial itself. A plaintiff who reaches trial having asked for an injunction where the facts support some other Article XI remedy does not lose on that ground.

The section then tells the court what "just and reasonable terms" means in practice:

In considering whether a proposed amendment is just and reasonable, the court shall consider the right of the defendant to assert additional defenses, to demand a trial by jury, to plead a counterclaim or third party complaint, and to order the plaintiff to take additional steps which were not required under the pleadings as previously filed.

Four protections for the defendant, and the third is the one to raise: an amendment that changes the remedy may open a jury demand that was not available before.

Saturdays, Sundays and holidays

Section 11-106 is the provision to know before an emergency lands on a Friday afternoon. Where an application is made on a day the courts are not in session, and the complaint is accompanied by an affidavit of the plaintiff or an agent or attorney:

stating that the benefits of injunctive relief will be lost or endangered, or irremediable damage occasioned unless such injunctive relief is immediately granted, and stating the bases for such alleged consequence

then if the court is satisfied of that, it may grant relief on that day, and:

it shall be lawful for the clerk to certify, and for the sheriff or coroner to serve such order for injunctive relief on a Saturday, Sunday, legal holiday or on a day when courts are not in session as on any other day, and all affidavits and bonds made and proceedings had in such case shall have the same force and effect as if made or had on any other day.

The affidavit is doing specific work. It must state both the consequence — relief lost or endangered, or irremediable damage — and the bases for it. A conclusory sentence will not carry a weekend application.

The bond is discretionary

Section 11-103 departs from most states at the first word:

The court in its discretion, may before entering a restraining order or a preliminary injunction, require the applicant to give bond in such sum, upon such condition and with such security as may be deemed proper by the court, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such bond shall be required of any governmental office or agency.

"May," not "shall." In Illinois a bond is something the court can require, not a condition of issuance — which is why a defendant who wants security has to ask for it rather than assume it.

Where a bond is given, the surety is drawn into the case: it "submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent," and liability "may be enforced on motion without the necessity of an independent action."

Dissolution: any time, and on the weight of the evidence

Section 11-108:

A motion to dissolve an injunction may be made at any time before or after answer is filed. Upon a motion to dissolve an injunction after answer is filed the court shall decide the motion upon the weight of the evidence.

Two rules in two sentences.

No timing bar. The motion can be made at any point.

And after the answer, the standard changes. The court decides "upon the weight of the evidence" — it weighs, rather than testing whether the plaintiff's showing was adequate when the order issued. Section 11-109 supports that: the plaintiff may support the complaint and the defendant the answer by affidavits, "which may be read in evidence on the hearing of the motion to dissolve the injunction."

So the sequence matters. A defendant with evidence is generally better served by answering and then moving, because that is what puts the motion on the weight of the evidence.

Damages are assessed in the same case, and the bond is not the only route

Section 11-110 makes the damages assessment part of the injunction case rather than a separate suit:

In all cases where a temporary restraining order or a preliminary injunction is dissolved by the circuit court or by the reviewing court, the circuit court, after the dissolution of the temporary restraining order or preliminary injunction, and before finally disposing of the action shall, upon the party claiming damages by reason of such temporary restraining order or preliminary injunction, filing a petition under oath setting forth the nature and amount of damages suffered, determine and enter judgment in favor of the party who was injured by such temporary restraining order or preliminary injunction for the damages which the party suffered as a result thereof, which judgment may be enforced as other judgments for the payment of money.

Note the timing: the petition is filed after dissolution and before the action is finally disposed of. A party that waits for final judgment to raise damages has missed the window this section provides.

And the section keeps a second route open:

However, a failure so to assess damages as hereinabove set out shall not operate as a bar to an action upon the injunction bond.

So a missed assessment is not a forfeiture where a bond was given. Read with section 11-103's discretionary bond, though, the point is sharper than it looks: if no bond was required, the Article XI petition may be the only route there is.

The ordinary machinery

Section 11-101 carries the familiar structure. A temporary restraining order issues without notice only on specific facts shown by affidavit or verified complaint that immediate and irreparable injury will result "before notice can be served and a hearing had thereon." It is indorsed with the date and hour of signing, filed forthwith, defines the injury, and expires within a period the court fixes "not to exceed 10 days," extendable once for a like period on good cause or for longer by consent — with the reasons "stated in the written order of the court."

If the order issued without notice, the preliminary injunction motion is set at the earliest possible time and takes precedence, and the party who obtained the order must proceed with it or the court "shall dissolve" it. The adverse party may move to dissolve or modify on two days' notice, or shorter as the court prescribes.

Section 11-102 is a single sentence: "No court or judge shall grant a preliminary injunction without previous notice of the time and place of the application having been given the adverse party."

A short checklist

If you are applying:

1. Plead the facts fully. If the remedy is wrong, section 11-107 lets you amend — but only if the facts are there.
2. For a weekend application, draft the affidavit to state the bases, not just the conclusion.
3. Diary ten days and put the reasons for any extension in the written order.
4. Expect no automatic bond. If you want the order to issue quickly, that helps you.
5. Give previous notice of the time and place before any preliminary injunction application.
6. Press the injunction motion at the hearing or the restraining order is dissolved.

If you are restrained:

1. Ask the court to require a bond. It is discretionary, so nobody will do it for you.
2. Consider answering before moving to dissolve — that puts the motion on the weight of the evidence.
3. Support the answer with affidavits; section 11-109 lets them be read in evidence on the motion.
4. File the damages petition after dissolution and before final disposition. Missing it does not bar a suit on the bond, but there may be no bond.

Where these rules live

• 735 ILCS 5/11-101 — Temporary restraining order
• 735 ILCS 5/11-102 — Preliminary injunction
• 735 ILCS 5/11-103 — Bond
• 735 ILCS 5/11-106 — Injunctive relief on Saturday, Sunday or legal holiday
• 735 ILCS 5/11-107 — Seeking wrong remedy not fatal
• 735 ILCS 5/11-108 — Motion to dissolve
• 735 ILCS 5/11-109 — Affidavits in support of motion to dissolve
• 735 ILCS 5/11-110 — Assessing damages
• Responding to an Illinois complaint
• Illinois motions to dismiss
• Illinois summary judgment

This page explains what the rules say. It isn't legal advice, and the standards courts apply in deciding whether to grant an injunction are developed in case law this site doesn't cover.