Litigation Law Roundup

Sharp  Thinking

No. 197   Perspectives on Developments in the Law from Sharp-Hundley, P.C.   June 2021

Elements For Preliminary Injunction Fiercely Debated

By John T. Hundley, Sharp Thinking Editor

Litigation over the validity of Governor J.B. Pritzker’s eviction moratoria has given rise to a fierce debate in the Appellate Court’s Third District over the elements required for granting a preliminary injunction.

In JL Properties Group B, LLC v. Pritzker, 2021 IL App (3d) 200305, all members of the three-judge panel agreed that the plaintiffs’ request for a preliminary injunction against the governor should have been denied.  But that’s about all they agreed upon.


Five-Part Test: The majority imposed a five-part test on requests for preliminary injunctions, requiring the movant to establish that “(1) he has a clearly ascertained right that needs protection, (2) he will suffer irreparable harm without the preliminary injunction, (3) he has no adequate remedy at law, (4) there is a likelihood of success on the merits of the underlying suit, and (5) the benefits of granting the preliminary injunction outweigh the injury to the defendant.”  It then expanded the fifth element to require a weighing of injury to the public.

It said that “[a]ll five factors must be established in order to obtain a preliminary injunction” and that a court could jump to the fifth element in denying such a request.  “If the circuit court finds that the harm to the public or to the opposing party outweighs the benefits of granting the injunction, it must deny the motion for a preliminary injunction, even if all the other requirements for granting a preliminary injunction are met.”

The majority in JL Properties did just that.  “Because the plaintiffs cannot obtain a preliminary injunction without establishing that the balance of hardships weighs in their favor, we affirm the circuit court’s judgment on this basis alone,” it said.  “[W]hile a prima facie showing as to the other elements may be a necessary condition to obtaining a preliminary injunction, it is not a sufficient condition.  To obtain an injunction, the plaintiff must also show that the balance of hardships favors an injunction” (court’s emphasis).

Fierce “Concurrence”:  That approach sparked a fiercely-worded “concurrence” by Presiding Justice Mary McDade, who said the majority’s analysis “adopts a misconstruction of long-settled law regarding preliminary injunctions and actively perpetuates bad law.”  In McDade’s view, only the first four elements are requirements for preliminary injunctions and she would affirm denial of the preliminary injunction by examining those elements.

Rule 304(a) Construed:  The decision also is notable in its treatment of the trial court’s dismissal of four counts of the plaintiffs’ complaint, which the circuit court had made final under Supreme Court Rule 304(a).  The majority held that it did not have jurisdiction to consider that dismissal.

“A circuit court’s inclusion of Rule 304(a) language in its order does not conclusively determine that the order is in fact appealable,” the majority said.  “[I]f the court’s order is not in fact final, the inclusion of Rule 304(a) language is insufficient to confer appellate jurisdiction.”

Moreover, “[w]here a single claim is stated differently in several counts, each of which is based on the same operative facts and seeks the same relief, the dismissal of fewer than all counts is not a final judgment as to any of the party’s claims as required by Rule 304(a).  *** A trial court abuses its discretion when it certifies its dismissal of some but not all of such counts for appeal under Rule 304(a), and the appellate court lacks jurisdiction to review such nonfinal orders.”

In the case before it, the plaintiffs had alleged that Pritzker’s eviction moratoria were unlawful for 10 different reasons stated in 10 separate counts.  However, all counts sought the same relief.   Because the 10 counts “are, in effect, different iterations of the very same claim”, the majority held that the court did not have jurisdiction to review the dismissal decisions as to the four counts.

Rule 222(b) Violation Limits Recovery, Court Says

A party’s failure to file an affidavit in compliance with Illinois Supreme Court Rule 222(b) can result in its recovery being limited to $50,000, the Appellate Court’s Fifth District has ruled.

Acting in Village of New Athens v. Smith, 2021 IL App (5th) 200257, the court reformed a $148,680.30 judgment into one for only $50,000, the maximum amount permitted for assignment to a “law miscellaneous” or “LM” docket.

Noting the plaintiff had failed to file an affidavit in compliance with Rule 222(b), the court said “the Village was precluded from recovering more than $50,000 from Smith and Rule 222(b) requires the judgment be reduced to $50,000.”

Rule 222 limits discovery in cases subject thereto.  Its subsection (b) states:

“Any civil action seeking money damages shall have attached to the initial pleading the party’s affidavit that the total amount of money damages does or does not exceed $50,000.  If the damages sought do not exceed $50,000, this rule [on limited discovery] shall apply.  Any judgment on such claim which exceeds $50,000 shall be reduced posttrial to an amount not in excess of $50,000.  Any such affidavit may be amended or superseded prior to trial pursuant to leave of court for good cause shown, and only if it is clear that no party will suffer any prejudice as a result of such amendment.  Any affidavit filed pursuant hereto shall not be admissible in evidence at trial.”