Rule 65.Injunctions

Reporter’s Notes—2026 Amendment: Rule 65(b)(1) is amended to eliminate the option to apply for a preliminary injunction in the complaint without a motion. Use of this option resulted in inadvertent scheduling delays. The amended rule requires a motion. This brings an application for preliminary injunction within the uniform motion practice of Rule 7, under which a motion is required in applying for a court order, and in requesting to present evidence. V.R.C.P. 7(b)(1), (6). A motion for preliminary injunction may be filed and served with the complaint or filed and served separately. The amendment brings forward the existing provision that a copy of the notice of hearing and the motion must be served together upon all parties in the manner provided by these rules. The amendment makes other changes for clarity and consistency intended to be stylistic only.

Reporter’s Notes—2018 Amendment: Rule 65(a) is amended to extend its 10-day time periods to 14 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6. Consistent with V.R.C.P. 65(b)(4), the two-day notice period for a motion to dissolve a TRO obtained without notice is retained in view of the exigent circumstances likely present in such a case.

Reporter’s Notes—1985 Amendment: This rule is amended in three respects. Subdivisions (a) and (b)(1) are amended to change references to the “judge” to references to the “court.” Prior to the recent legislation, only the presiding judge sat in equity matters, including injunction proceedings. See Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983). Thus, the reference to the judge in the rule was appropriate. Pursuant to recent legislation, Act No. 201, 1983 (Adj. Sess.), amending 4 V.S.A. § 219, the composition of the superior court is no longer determined by whether a case or claim is legal or equitable. Thus, the amendment changes the language of the rule to refer to the court. Under Rule 83(1), as amended contemporaneously, the definition of “court” is determined by the legislation. Depending upon the action involved, the term may mean either the presiding judge sitting alone or the presiding judge and the assistant judges. See, e.g., 4 V.S.A. § 112(f) (presiding judge may hear petition for emergency relief when the court is not sitting). Thus, the change in language does not necessarily mean that the assistant judges will participate in the actions described in the rule. Subdivision (b)(1) is also amended to clarify how a notice of a preliminary injunction hearing is given when the motion for the preliminary relief is made after the commencement of the action. The former language required service under Rule 4—usually service by officer—a method that is unnecessary where the summons and complaint have already been served, and the defendants have answered. In such a case, notice should be served under Rule 5. The amendment allows this alternative by requiring service under any appropriate rule rather than only under Rule 4. Subdivision (c) is amended to delete the language on enforcement of the obligations of a surety. That language has been shifted to new Rule 65.1. See Reporter’s Notes to Rule 65.1. As in Federal Rule of Civil Procedure 65(c), a cross-reference has been included in this rule.

Reporter’s Notes—1977 Amendment: Rule 65(a) is amended to provide time limits on the duration of temporary restraining orders granted ex parte. When the rule was originally adopted, the limit of 10 days plus one 10-day extension found in Federal Rule 65(b) was not carried over for fear that it might not be possible in Vermont to obtain a hearing on a motion for preliminary injunction within that period. See Reporter’s Notes to Rule 65. Because of the absence of limits, judges have felt free to extend temporary restraining orders for long periods, sometimes simply by failing to render a decision after hearing. In view of the extraordinary nature of the remedy and the common failure to require security before grant of a temporary restraining order, these long delays can be productive of great injustice. The amendment follows the Federal Rule in permitting a maximum initial period of ten days for a temporary restraining order and one extension “for a like period.” To take account of the possible difficulty in finding a judge, the rule makes explicit what federal judges have done as a matter of discretion: An order that has been once extended under the foregoing provision may be extended further “to the earliest available hearing date,” if the plaintiff can show his inability to obtain a judge within the period. See 11 Wright and Miller, Federal Practice and Procedure § 2953, at 519-521 (1973). Finally, the trial judge may extend the restraining order for an additional ten days after the hearing date for the purposes of further hearing sessions and time to decide the question. When all extensions granted under these provisions have run without a decision to grant a preliminary injunction, the temporary restraining order expires by its own force and is no longer binding.

Reporter’s Notes—1975 Amendment: Rule 65(b)(1) is amended to establish a unified procedure for setting preliminary injunctions for hearing and giving notice thereof. In the past it has been deemed necessary for counsel to present an application for a preliminary injunction personally to the judge who will hear it in order that the judge may set the hearing date and sign the notice. Under the amended rule, the clerk of the county where the matter is to be heard, who will either know the judge’s calendar or can consult with him, is to set the time and place of hearing. The clerk may also sign the notice of hearing, which, since it will commonly be the initial process in the action, is to be served by the plaintiff in the manner provided for service of summons and complaint in Rule 4. If it is more convenient for counsel to approach the judge because, for example, hearing is to be in a distant county, the notice may be signed by the judge. The time and place of hearing must still be cleared with the clerk, however.

Reporter’s Notes: This rule is substantially similar to Federal Rules 65 and 65.1, but follows the more logical order and adopts certain provisions of Maine Rule 65. The rule is basically similar to previous Vermont practice. Special provision for injunctive relief in divorce actions is made by Rule 80(c). The rule envisions three different classes of injunctions: (1) the temporary restraining order issued without notice in limited circumstances and for a limited time at the commencement of the action; (2) a preliminary injunction which grants relief pending final determination of the merits and is issued upon notice and hearing either after a temporary restraining order or at the outset of the action; (3) a permanent injunction granted after the merits have been heard. These three classes were recognized in Vermont under a different and somewhat ambiguous terminology. A “temporary injunction,” when granted without notice or ex parte, was the equivalent of a temporary restraining order and, when continued or granted after hearing, was the equivalent of a preliminary injunction, although in the former statutes and chancery rules the latter type of order was simply called an “injunction.” By final decree, temporary injunctions could be made “permanent.” See Sykas v. Alvarez, 126 Vt. 420, 234 A.2d 343 (1967); Emerson v. Hughes, 117 Vt. 270, 90 A.2d 910 (1952); American Steel & Iron Co. v. Taft, 109 Vt. 469, 199 A. 261 (1938); 12 V.S.A. §§ 4441-4446 (now superseded); former Chancery Rules 41-43. Cf. In re Crescent Beach Assn., 126 Vt. 448, 236 A.2d 497 (1967) (temporary injunction distinguished from statutory “temporary restraining order” staying implementation of zoning board action pending appeal). Rule 65 is more detailed than the provisions of the former statute and rules, but it is generally consistent with them. Neither a temporary restraining order nor a preliminary injunction may be granted without at least an ex parte hearing and court approval. This provision is more restrictive than 12 V.S.A. § 4441 and former Chancery Rule 41, which together provided in effect that if notice was given to the defendant and the matter was not one in which “the injunction will necessarily produce great and irreparable injury,” an injunction could issue on a subpoena signed by the clerk. Rule 65(a) providing for issuance of a temporary restraining order, is very similar to former Chancery Rule 42.2. The specific requirement of the federal rule for a showing of the reasons why notice was not given is omitted but the court will probably require such a showing in any event. The rule also requires that, in addition to the requirements as to form imposed on all injunctions and restraining orders by Rule 65(d), a temporary restraining order must state the basis of its issuance specifically. Moreover, such an order is good for only such time as the court directs, unless extended by the court or for a longer period by agreement. (Note that Federal Rule 65(b) limits to 10 days both the original and any extended period during which the order runs.) The provisions of Rule 65(a) for hearing on the preliminary injunction are virtually identical to those of former Chancery Rules 42.2, 42.3. The requirement of former Chancery Rule 43 that defendant have filed his answer before moving to dissolve an injunction was unduly restrictive and is unnecessary under the rules in light of the provisions of Rule 56 for summary judgment on affidavits alone, the last sentence of Rule 65(a), and the inherent equitable power of the court to entertain such proceedings. Rule 65(b)(1) makes clear that notice is required for a preliminary injunction, but that such injunction may issue on motion as well as complaint. Cf. former Chancery Rule 6. Rule 65(b)(2) is a provision of great flexibility permitting both consolidation of hearings on preliminary and permanent injunctions and subsequent use of evidence admitted to the record at the earlier hearing. Although the latter provision could cause problems where two different judges are involved, it is not mandatory, so a second judge may require the evidence to be presented de novo. Rule 65(c) is a broad provision for security to the enjoined party, similar to, but giving the court somewhat greater discretion than, former Chancery Rule 41. The security required is not only for costs but for damages recoverable under 12 V.S.A. § 4447. Note that the rule varies from the federal provision by permitting waiver of the requirement for cause shown. The waiver provision is desirable for Vermont in view of the smaller amounts that are at stake in state court. The second paragraph follows the Maine rule by incorporating the provisions for proceedings against sureties that are found in Federal Rule 65.1. These provisions make such proceedings available by motion in the original action rather than by separate proceeding in the nature of scire facias or suit on the bond. See Rule 81(b). 12 V.S.A. §§ 4326-4328 are accordingly superseded. Note that 12 V.S.A. §§ 4442-4446, pertaining to bond in proceedings to enjoin various types of actions at law, are rendered obsolete by the rules and would be repealed by pending legislation (1971-H. 326, § 226), because ordinarily the matters raised in such proceedings would be filed as defenses or counterclaims under Rule 13 if raised before judgment or by motion under Rule 60(b) if after judgment. Under the latter provision the court has ample power to condition the grant of relief on terms. In the rare case where a party does bring an independent action in equity for relief after judgment as permitted by Rule 60(b), the basic security provision of Rule 65(c), just discussed, should suffice. There was no equivalent in prior Vermont practice of Rule 65(d), prescribing the form of a restraining order or injunction and delimiting the parties upon whom an injunction or order is binding. The requirement of specificity is necessary in view of the broad binding effect given to the order under this subdivision. That scope is based on the general law. See 3 Barron & Holtzoff, Federal Practice and Procedure § 1437 (Wright ed. 1958). The order, if it is “required by its terms to be served” must be served upon all parties as provided by Rule 5(a). Orders will bind certain nonparties having “actual notice . . . by personal service or otherwise,” which would seem to require delivery in hand to a party or agent. Rule 65(e), taken from the Maine rule, saves provisions of such statutes as 16 V.S.A. § 2010 (injunctions in teachers’ labor disputes) and 21 V.S.A. § 1623 (restraining orders in aid of State Labor Relations Board). See Federal Rule 65(e). Rule 65(f), taken from the Maine Rule, is intended to prevent “judge-shopping” by a plaintiff seeking temporary relief. Annotations Generally. Consolidation of hearings. Contents of order. Enforcement against nonparties. Jurisdiction. Notice of order. Security requirement. Specific performance. Generally. An injunction may issue only in cases presenting some acknowledged and well-defined ground of equity jurisdiction, as when it is necessary to prevent irreparable injury or a multiplicity of suits. State Buildings Div. v. Town of Castleton Board of Adjustment, 138 Vt. 250, 415 A.2d 188, 1980 Vt. LEXIS 1198 (1980). Injunction is generally regarded as an extraordinary remedy and will not be granted routinely unless the right to relief is clear. Committee To Save Bishop's House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 388 A.2d 827, 1978 Vt. LEXIS 721 (1978); State Buildings Div. v. Town of Castleton Board of Adjustment, 138 Vt. 250, 415 A.2d 188, 1980 Vt. LEXIS 1198 (1980). Consolidation of hearings. Consolidation of hearing on merits with hearing on application for preliminary injunction is discretionary with the court and must stand on appeal unless it is shown that the court abused its discretion. Campbell Inns, Inc. v. Banholzer, Turnure & Co., 148 Vt. 1, 527 A.2d 1142, 1987 Vt. LEXIS 444 (1987). Court’s discretion to consolidate hearing on merits with hearing on application for preliminary injunction is tempered by requirements that parties be given clear and unambiguous notice of consolidation and full opportunity to present their respective cases. Campbell Inns, Inc. v. Banholzer, Turnure & Co., 148 Vt. 1, 527 A.2d 1142, 1987 Vt. LEXIS 444 (1987). Formal notice of advancement of hearing on application for preliminary injunction to hearing on merits is not required as long as parties are made aware that scheduled hearing is to be on merits. Campbell Inns, Inc. v. Banholzer, Turnure & Co., 148 Vt. 1, 527 A.2d 1142, 1987 Vt. LEXIS 444 (1987). Contents of order. Injunction in a hazardous waste case satisfied the rule governing the content of injunctions, as it set out specific requirements outlining the steps defendant had to take and the benchmarks he had to meet to satisfy the order and his statutory obligations; incorporating published Agency of Natural Resources (ANR) regulations and notifying defendant of his obligation to cooperate with the State and the ANR did not undermine the specificity of the order or make defendant’s obligations less clear—to the contrary, these additions helped clarify the process. Furthermore, the door remained open for defendant to petition the court for modification or interpretation of the order to ensure he was not harmed due to ambiguity. State Agency of Natural Res. v. Parkway Cleaners, 2019 VT 21, 209 Vt. 620, 210 A.3d 445, 2019 Vt. LEXIS 41 (2019). Requirement under subdivision (4) of this rule that restraining order or injunction shall set forth the “reasons” for its issuance does not mandate an exposition of the court’s findings and conclusions. American Trucking Ass'n v. Conway, 152 Vt. 363, 566 A.2d 1323, 1989 Vt. LEXIS 189 (1989). Trial court erred in granting injunctive relief against interference with plaintiff’s use of right-of-way by failing to properly describe the location of the right-of-way, failing to limit the use of the right-of-way to agricultural and recreational uses as was conceded by the parties to be the extent of the easement, and by failing to determine the width of the right-of-way. Rice v. Martin, 139 Vt. 104, 423 A.2d 849, 1980 Vt. LEXIS 1498 (1980). Mandatory injunction ordering removal of right of way encroachment had to be specific in terms and describe in reasonable detail the acts sought to be restrained; insufficient finding of facts regarding right of way location and extent of easement precluded determinative appellate resolution of issue. Pine Haven North Shore Association v. Nesti, 138 Vt. 381, 416 A.2d 147, 1980 Vt. LEXIS 1243 (1980). Issuance of injunction ordering town board of adjustment to issue a zoning permit to state agency intending to convert a former dormitory into a youth service program center was unwarranted and error where court failed to specify reasons for issuance and acts restrained. State Buildings Div. v. Town of Castleton Board of Adjustment, 138 Vt. 250, 415 A.2d 188, 1980 Vt. LEXIS 1198 (1980). Remand was required to correct the form of order for injunctive relief which failed to follow directive of this rule requiring inclusion of specific details without reference to any other document. Rice v. Martin, 136 Vt. 124, 385 A.2d 1090, 1978 Vt. LEXIS 701 (1978). Judgment order for specific performance of contract for sale of land was, in effect, a mandatory injunction, and should have been specific in terms, and should have described in detail, and not by reference, what was required. Brower v. Hill, 133 Vt. 599, 349 A.2d 901, 1975 Vt. LEXIS 465 (1975). Enforcement against nonparties. Enforcement of injunctions against nonparties is allowed in order to ensure that parties do not use nonparties to evade compliance with injunction. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992). Service requirement of contempt statute, section 122 of Title 12, did not apply to parties who acted in concert with parties named in temporary restraining order. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992). Jurisdiction. Superior court had jurisdiction to hear town’s request for injunction against alleged continuing violation of zoning ordinance. Town of Brighton v. Griffin, 148 Vt. 264, 532 A.2d 1292, 1987 Vt. LEXIS 631 (1987). Under V.R.C.P. 62(d), sufficient jurisdiction is retained in the trial court during the course of an appeal to suspend, modify, restore, or grant an injunction as it deems necessary to preserve the status quo; inherent in this limited reservation of jurisdiction is the contempt power of the trial court which it may use to enforce an injunction during the course of an appeal. McDonough v. W. W. Snow Construction Co., 131 Vt. 436, 306 A.2d 119, 1973 Vt. LEXIS 329 (1973). Notice of order. Evidence that police informed abortion protesters, prior to arrest, that they were violating a temporary restraining order and could leave without being arrested and placed a copy of the order on or near each protester supported trial court’s findings that protesters had actual knowledge of the order. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992). Security requirement. Waiver of security otherwise required of party in whose favor injunctive relief was granted was in error where record was devoid of any facts which could have constituted a good cause basis for waiver. Committee To Save Bishop's House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 388 A.2d 827, 1978 Vt. LEXIS 721 (1978). Specific performance. Where the right to relief is clear and a remedy at law is inadequate, specific performance by injunction is appropriate. Campbell Inns, Inc. v. Banholzer, Turnure & Co., 148 Vt. 1, 527 A.2d 1142, 1987 Vt. LEXIS 444 (1987).