South Carolina injunctions: a TRO cannot shut down a business

South Carolina puts one category of relief permanently out of reach of the ex parte order. However urgent the facts, a temporary restraining order cannot close a business.

No TRO against a going concern

Rule 65(e):

No temporary restraining order shall be granted to suspend the general and ordinary business of an individual, partnership, association or corporation. Same may be suspended only by injunction after notice.

The prohibition is absolute in form — "shall be granted," not "shall ordinarily be granted" — and the alternative is stated in the same breath: injunction after notice.

Two practical consequences.

Check what your order actually does. Relief that stops a specific contract, a specific sale or a specific use of property is not a suspension of the general and ordinary business. Relief that halts trading, freezes operations, or closes premises is. The line is between restraining a transaction and suspending the enterprise.

Plan for the hearing if you are in the second category. There is no emergency route, so the sequence is notice, hearing, injunction — and the application should be built for that timetable rather than drafted as an ex parte paper and cut down later.

For a defendant, this is the first thing to test in any TRO that touches operations. An order that suspends the general and ordinary business is one the rule did not permit.

The ordinary without-notice test

For everything else, Rule 65(b) applies the familiar standard: "No temporary restraining order shall be granted without notice of motion for the order to the adverse party unless it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon."

Specific facts, by affidavit or verified complaint, and harm landing before notice can be served and a hearing had — not merely before a convenient hearing date.

Security, and enforcing it by motion

Rule 65(c) requires security before a restraining order or preliminary injunction issues, in a sum the court deems proper, for costs and damages to a party wrongfully enjoined. "No such security shall be required of the State or of an officer or agency thereof."

Enforcement against a surety is direct:

His liability may be enforced on motion without necessity of an independent action.

So the undertaking is a practical remedy rather than the beginning of new litigation — the enjoined party moves in the same case.

Remedial writs travel with this rule

Rule 65(f) puts mandamus, habeas corpus and other remedial writs on the same footing as injunctions for notice purposes:

No writ of mandamus, habeas corpus, or other remedial writ shall be granted without notice of motion for the writ to the adverse party

The rule then sets the procedure: "The motion shall be heard upon such notice as the court may prescribe, and the court shall proceed to hear and determine such motion as expeditiously as possible." And the responding party's obligations run in parallel — "[u]nless a different time be prescribed by the court, the adverse party shall plead to the complaint and respond to such motion in the time prescribed" by the rules.

One useful piece of flexibility: "A claim for any other relief to which a party may be entitled in the action may be joined with a claim for writ of mandamus, habeas corpus, or other remedial writ." The extraordinary writ does not have to be brought alone.

What the order itself must say

Rule 65(d) sets the drafting requirements and the reach:

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Read this alongside the business-suspension bar. An order drafted broadly enough to catch a company's officers, employees and those acting in concert with them can easily slide into suspending the general and ordinary business — which Rule 65(e) does not permit a temporary restraining order to do.

The order is served like process — with a summons if there isn't one yet

South Carolina's service provision does something most states leave to a separate rule:

shall be served, together with a summons and complaint in the event no summons and complaint have previously been served in the action, upon the adverse party in accordance with the provisions of Rule 4

So an ex parte restraining order is served the way process is served, not the way papers are served on a party already in the case. And if the action has not been served yet, the summons and complaint go with the order.

That is the practical sequence in an emergency filing: the first thing the defendant receives is the complaint, the summons and the order together, delivered under Rule 4.

The same structure governs remedial writs, where notice of the motion "shall be served, together with the summons and complaint, in event no summons and complaint have previously been filed and served in the action."

In family cases, security is up to the court

The security provision opens with an exception:

Except in divorce, child custody and non-support actions where the giving of security is discretionary, no restraining order or temporary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper

Read the sentence carefully. Outside those three categories, security is a condition of issuance — no order without it. Inside them, security is discretionary, so a party seeking a restraining order in a divorce, custody or non-support case is not held up by a bond the court does not require.

The State's own exemption sits alongside it: "No such security shall be required of the State or of an officer or agency thereof."

For everyone else the bond is the price of the order, and the amount is what "the court deems proper" — which is a figure worth addressing in the application rather than leaving to the hearing.

A short checklist

Applying:

1. Test your proposed order against Rule 65(e). If it suspends the general and ordinary business, no TRO is available.
2. Go straight to injunction after notice if you are in that category, and build the application for a hearing.
3. Plead specific facts by affidavit or verified complaint for any without-notice application.
4. Frame the harm as landing before notice and a hearing — that is the statutory test.
5. Expect to post security, unless you act for the State or one of its officers or agencies.
6. Join related relief with a remedial writ rather than filing separately.

If you are enjoined:

1. Ask first whether the order suspends the business. If so, it should never have issued ex parte.
2. Test the affidavit for specific facts, not conclusions.
3. Enforce the undertaking by motion in the same action; no independent suit is needed.
4. Check the notice on any remedial writ — the rule requires it there too.

Where these rules live

• S.C. R. Civ. P. 65 — Injunctions; Mandamus, habeas corpus
• S.C. R. Civ. P. 6 — Time
• Responding to a South Carolina complaint
• South Carolina motion to dismiss
• South Carolina depositions
• South Carolina subpoenas

This page explains what the rules say. It isn't legal advice, and where the line falls between restraining a transaction and suspending a business is developed in case law this site doesn't cover.