South Dakota injunctions: a TRO cannot be appealed, and the hearing evidence follows you to trial

South Dakota's injunction provision is a statute — SDCL § 15-6-65 — and it settles two questions that produce argument elsewhere: whether you can appeal a temporary restraining order, and what happens to the evidence you put in at the injunction hearing.

No appeal from a TRO

The rule says it plainly:

Temporary restraining orders by their very nature may not be appealed.

Not "are generally not appealable," and not a matter of finality doctrine. The instrument is by definition unappealable, so a party restrained ex parte has one route: back to the trial court.

That makes the preliminary injunction hearing the first real contest, and it makes the speed of getting there the thing to press on. If you are restrained, the motion to dissolve or the preliminary injunction hearing is your remedy, not a notice of appeal.

Evidence at the hearing becomes trial evidence

The consolidation provision carries a consequence that operates whether or not consolidation is ordered:

Even when this consolidation is not ordered, any evidence received on an application for a preliminary injunction which would be admissible on the trial on the merits, becomes part of the record on the trial and need not be repeated at the trial. This paragraph shall be construed and applied to save to the parties any rights they may have to trial by a jury.

Read that before deciding what to put in at the hearing. Anything admissible at trial is already trial evidence — you do not get to treat the injunction hearing as a dry run. A witness who does poorly, an exhibit that proves more than you intended, a concession drawn on cross: each is in the trial record without being repeated.

The saving clause is important too. The provision "shall be construed and applied to save to the parties any rights they may have to trial by a jury," so the mechanism does not convert a jury case into a bench determination.

Findings of fact are required

The rule ties preliminary injunctions to the findings requirement:

In addition, and pursuant to § 15-6-52(a), the court for preliminary injunctions shall set forth the findings of fact and conclusions of law which constitute the grounds of its action.

So an order granting or refusing a preliminary injunction must state its grounds as findings and conclusions, not merely announce a result. For the losing party that is the record any later challenge will be built on — worth asking for specificity while the order is being drafted.

The undertaking

Security is required unless a statute provides otherwise:

Where no provision is made by statute for security on a preliminary injunction or temporary restraining order, the court shall require a written undertaking on the part of the applicant with or without sureties in such sum as the court deems proper, to the effect that the applicant will pay to the party enjoined such costs and damages not exceeding the amount to be specified, as he may sustain

Three features. It is a written undertaking, which may be given with or without sureties at the court's discretion. It is capped — damages "not exceeding the amount to be specified." And the default applies only "[w]here no provision is made by statute," so a statutory scheme governing your kind of case displaces it.

How damages are worked out is left open: "The damages may be ascertained by reference or otherwise as the court shall direct."

The exemption is the usual one: "No such security shall be required of the state of South Dakota or of an officer or agency thereof."

What the order itself must say

The form provision does the same work here as elsewhere:

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.

"Set forth the reasons for its issuance" overlaps with the findings requirement noted above, and the two should be satisfied together: the order states its reasons, and § 15-6-52(a) supplies the findings of fact and conclusions of law behind them.

Two chapters are carved out of the ten-day limit

The expiry provision has an exception buried in the middle of it:

and, except in actions arising under chapters 25-3 and 25-4, shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.

Chapters 25-3 and 25-4 are the divorce and separate maintenance chapters. Orders in those actions are not held to the ten-day ceiling that governs every other temporary restraining order granted without notice.

That fits the pattern running through South Dakota's rule. Both the without-notice provision and the undertaking provision open with "where no provision is made by statute," and here the rule steps back again where the legislature has occupied the field. In a family case, the statute sets the duration.

Everywhere else the ten days are real, and the two ways past them are good cause or the restrained party's consent — with "the reasons for the extension" entered of record either way.

Press the motion, or the order is dissolved

An applicant who obtains a TRO without notice takes on a duty:

When the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order.

The hearing itself "shall be set down ... at the earliest possible time and takes precedence over all matters except older matters of the same character," so it will come quickly.

The restrained party need not wait for it:

On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

Given that a temporary restraining order cannot be appealed, that motion is the only way to be heard about it — which is a reason to bring it rather than wait for the injunction hearing.

A short checklist

Applying:

1. Put in only what you are content to have at trial. Admissible hearing evidence joins the trial record.
2. Check for a governing statute before assuming the rule's undertaking provision applies.
3. Expect a written undertaking, with or without sureties, capped at a specified amount.
4. Ask for findings that support the order; the rule requires them.
5. Plan the hearing as a hearing, not a rehearsal.

If you are restrained:

1. Do not file a notice of appeal from a TRO. The rule says it cannot be appealed.
2. Press for the preliminary injunction hearing — that is the first real contest.
3. Watch what the other side puts in. It counts at trial too.
4. Ask for specific findings if the injunction is granted; they frame any later challenge.
5. Preserve the jury point. The evidence provision is expressly not meant to erode it.

Where these rules live

• SDCL § 15-6-52 — Findings by the court
• SDCL § 15-6-65 — Injunctions and Restraining Orders
• Responding to a South Dakota complaint
• South Dakota motion to dismiss
• South Dakota motion to compel discovery

This page explains what the statutes say. It isn't legal advice, and a statute governing security in a particular kind of case may displace the undertaking provision described here.