Missouri restraining orders: going ex parte without a reason is presumed bad faith

In most states a temporary restraining order is the ex parte remedy and notice is the exception. Missouri reverses that. Rule 92.02 has two tracks, the ordinary one requires notice, and taking the other one without a reason carries a sanction.

Twenty-four hours is the default

Rule 92.02(a)(3):

Except as provided in Rule 92.02(b), no temporary restraining order shall issue without reasonable notice at least twenty-four hours before the hearing on the motion to the party against whom relief is sought.

So the ordinary Missouri restraining order is a noticed order, heard on a day's notice. That is the track the rule expects, and (b) — the without-notice track — is written as the exception to it.

The showing on either track is the same: the party must demonstrate "that immediate and irreparable injury, loss, or damage will result in the absence of relief," supported by "a verified petition or affidavit reciting the specific facts" that support it.

An order on this track lasts longer than most states allow:

A temporary restraining order shall expire within such time after entry, not to exceed fifteen days, as the court fixes. The court may extend the order for additional periods, not to exceed fifteen days each, if the party seeking relief shows that the grounds specified in Rule 92.02(a)(1) continue to exist.

Fifteen days, renewable in fifteen-day periods, each renewal on a showing that the grounds continue to exist — not merely that they existed when the order issued.

Going without notice needs a reason, and the wrong reason is sanctionable

Rule 92.02(b)(1) permits the ex parte route only where the applicant:

establishes that notice cannot be given or notice would defeat the purpose of the order.

Two grounds, and neither is inconvenience. Then Rule 92.02(b)(6) attaches the consequence:

If the court finds that a party obtaining a temporary restraining order without notice did not have a reasonable basis to proceed without notice, the party shall be presumed to have acted in bad faith and to have violated Rule 55.03(c). The thirty-day provisions of Rule 55.03(d)(1)(A) shall not apply to proceedings under this Rule 92.02(b)(6).

Read both sentences carefully.

The presumption is of bad faith, not of error. A finding that there was no reasonable basis does not merely dissolve the order; it puts the applicant in breach of the signing rule.

And the safe harbor is switched off. Rule 55.03 ordinarily gives a party thirty days to withdraw a challenged filing before sanctions can be sought. That period expressly does not apply here. There is no opportunity to cure.

The practical instruction follows directly: document the attempt to give notice, or document precisely why notice would have defeated the order, and put that into the affidavit rather than into the argument.

An ex parte order that omits the facts is void from the start

Rule 92.02(b)(3) requires an order granted without notice to be endorsed with the date and hour, filed forthwith and entered of record, and to set forth specific facts supporting the showing. Then:

A temporary restraining order failing to set forth such specific facts is void ab initio.

Not voidable on motion — void from the moment it issued. That is a drafting instruction for whoever prepares the order, which is usually the applicant. Reciting the standard is not enough; the facts have to be in the order itself.

The ex parte order also runs on a shorter clock than the noticed one:

A temporary restraining order granted without notice shall expire within such time after entry, not to exceed ten days, as the court fixes.

Ten days rather than fifteen, extendable in ten-day periods but only after notice to the restrained party, and the court may dispense with that notice only on the same two grounds that justified proceeding ex parte in the first place.

One day's notice to get back into court, and the burden shifts

Rule 92.02(b)(5):

On one day's notice to the party who obtained the temporary restraining order without notice, or on such shorter notice as the court may prescribe, the adverse party may appear and move to dissolve or modify the order. At the hearing, the burden shall be upon the party seeking the temporary restraining order to establish a right to relief.

One day — shorter than the two days most states allow, and a deliberate counterweight to the ex parte order.

The second sentence is the one that decides hearings. On a motion to dissolve, the burden is not on the restrained party to show the order was wrong. It is on the applicant to establish a right to relief, as though the application were being made afresh with both sides present.

Thirty days is the outside limit before a preliminary injunction hearing

Rule 92.02(c)(2):

If a temporary restraining order is in effect for more than thirty days without a hearing on an application for a preliminary injunction, the court shall schedule a hearing at the earliest possible date. The hearing shall take precedence over all other matters except older matters of the same character. The hearing on the application for a preliminary injunction may be delayed past these limits if all parties consent.

Successive extensions can keep a restraining order alive, but not quietly. Once thirty days have passed without a preliminary injunction hearing, the court must schedule one and it takes precedence. Only the parties' consent can push it further.

A preliminary injunction itself "shall not issue unless the party against whom relief is sought is given prior notice and an opportunity to be heard."

Bond, and the state's exemption

Rule 92.02(d) requires a bond before any injunction or restraining order issues, "except in suits instituted by the state in its own behalf," conditioned that the plaintiff:

will abide by the decision that shall be made thereon and pay all sums of money, damages and costs that shall be adjudged if the injunction or temporary restraining order shall be dissolved.

And it offers an alternative to finding a surety: "In lieu of the bond the plaintiff may deposit with the court such sum, in cash, as the court may require sufficient to secure such amount."

Who may grant one, and what happens on appeal

Rule 92.01 is a single sentence: "Injunctions may be granted by a circuit or associate circuit judge." So an associate circuit judge has the same power here as a circuit judge.

Rule 92.03 covers the interval after judgment:

When an appeal is taken from a judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

Four verbs — suspend, modify, restore, grant. A party that lost below can ask the trial court to restore an injunction pending appeal, and Rule 92.04 preserves the same powers in the appellate court.

A short checklist

If you are applying:

1. Plan on giving twenty-four hours' notice. That is the ordinary route, not the exception.
2. If you go without notice, prove why — notice cannot be given, or would defeat the order.
3. Put the specific facts in the order itself. An ex parte order without them is void ab initio.
4. Diary ten days, or fifteen on the noticed track, and show the grounds continue before extending.
5. Arrange a bond or a cash deposit before the order issues.
6. Expect to carry the burden at any dissolution hearing.

If you are restrained:

1. Move on one day's notice. You do not have to wait for the injunction hearing.
2. Read the order for specific facts. Their absence is a void-making defect, not a technicality.
3. Ask whether there was a reasonable basis to proceed without notice. If there was not, the presumption of bad faith and Rule 55.03 follow — with no thirty-day safe harbor.
4. Watch the thirty-day mark. After that the court must set the injunction hearing.

Where these rules live

• Mo. R. Civ. P. 92.01 — Who may grant
• Mo. R. Civ. P. 92.02 — Temporary restraining order; preliminary injunction
• Mo. R. Civ. P. 92.03 — Injunction pending appeal
• Responding to a Missouri petition
• Missouri motion to dismiss
• Missouri summary judgment
• Missouri discovery deadlines

This page explains what the rules say. It isn't legal advice, and how Rule 55.03's sanction provisions are applied in a particular case is a question this page does not answer.