Tennessee courts, if they follow the law, which they usually do, are very disinclined to make a party do something or to make a party refrain from doing something until the usual legal processes which occur after a lawsuit has been filed have taken place. The usual processes, which typically take many months, are an initial round of pleadings and motions, an opportunity for each party to engage in discovery, and the occurrence of a trial (if one of the parties has not shown that it has a strong enough case that it is entitled to a summary judgment or dismissal).
There are situations in which Tennessee courts are authorized to, and will, grant what is referred to as “extraordinary relief” or “injunctive relief” on an emergency or semi-emergency basis. Such relief comes in the form of temporary restraining orders (“TROs”) and temporary injunctions, sometimes also called emergency injunctions. Temporary restraining orders and temporary injunctions are almost always granted at the outset of litigation in order to prevent irreparable harm to a party. (Permanent injunctions are granted after a trial or dispositive motion and are not discussed in this blog.)
The notion behind TROs and temporary injunctions is that, in some situations, if a party has to wait on the usual legal processes to occur, even if it wins, it will suffer damages or harm that cannot be remedied even by an award of money damages.
A. Requirements for Obtaining a TRO or Temporary Injunction
To obtain a TRO, a party must prove to the court that, absent a TRO, the opposing party’s actions will cause it immediate damage which will be irreparable. TROs are frequently issued in cases where ex-employees or independent contractors are violating valid non-compete agreements and/or have confidential information, which information gives them a competitive and unfair advantage over their prior employer or the party with whom they had the independent contractor relationship.
Although the requirement that a party seeking a TRO or temporary injunction prove that it has a substantial likelihood of success on the merits is not expressed in Rule 65 of the Tennessee Rules of Civil Procedure, which governs TROs and temporary injunctions, Tennessee case law establishes it as an important factor. So, lawyers who handle temporary restraining orders and temporary injunctions should make the case that their client has a substantial likelihood of success on the merits.
The same requirements that apply for obtaining a TRO apply for obtaining a temporary injunction. As discussed below, a TRO is typically just a placeholder until a hearing on a motion for a temporary injunction can be conducted.
B. The Process
One of the keys to understanding how temporary restraining orders and temporary injunctions work is to understand that TROs can be granted by a court before the opposing party has had a chance to defend and even before it has notice that the other party has filed a motion for a TRO. Temporary injunctions, on the other hand, cannot be issued until the opposing party has notice.
Because Tennessee courts disfavor the issuance of injunctive relief without the party who is subject to the injunction having notice and an opportunity to appear and to defend itself against injunctive relief, Tennessee Rule of Civil Procedure 65.03 provides that every TRO granted without notice expires within no more than 15 days unless good cause is shown.
For an example of how the process works, take a look at a case we filed in 2011, Southern Hobby Supply New York, Inc., v. Pirozzi, no. 11-1355-III. The pleadings in that case are available through the Davidson County Chancery Court Case Information Access (“CIA”) on-line database.
In that case, we filed a motion for a TRO on October 4. By the close of business the next day, the court, now known as the Davidson County Business Court, issued a TRO prohibiting the defendant from doing the things that we asked that he be prohibited from doing. In that order, the court also ordered that the TRO would expire on October 18 which was the date the court set for a hearing on our motion for a temporary injunction.
In that case, the defendant voluntarily agreed to extend the TRO and the judge signed an agreed order to that effect. So, the hearing for a temporary injunction never took place. Had the defendant not agreed to extend the TRO, the temporary injunction hearing would have gone forward and the judge would have had to decide whether to grant a temporary injunction.