*1 INC., COMPANY, Plaintiff-Appellee, v. C.D. PETERS CONSTRUCTION (Keller Construction, DISTRICT, TRI-CITY REGIONAL PORT Defendant Inc., Defendant-Appellant). District No.
Fifth 5 — 95—0582 May 30, Opinion filed *2 CHAPMAN, J., dissenting. Broom, Hebrank, Hayes, Burroughs, Hepler, MacDonald & J. Todd
Edwardsville, appellant. for Halloran, P.C., Callis, Jensen, Papa, & Papa, T. Jackstadt John City, appellee. Granite for of the court: opinion
JUSTICE GOLDENHERSH delivered the Inc., Plaintiff, filed com- Company, C.D. Construction against plaint for (hereinafter District) defendants, Tri-City Regional District Port Port (hereinafter Keller), Construction, to halt work on a Inc. Although spur project. plaintiff submitted railroad construction bid, project Keller. The the Port District awarded lower sought in to halt work project between spur construction until railroad wrongfully awarded whether the bid was and the Port District over filed, day On the same to Keller could be resolved. 17, 1995, order was entered March conduct- restricting the Port District from enjoining days.. In the same for ing further work determine March for trial court scheduled be extended temporary restraining order should allegations based on the trial court was days. initial order of complaint. On March plaintiffs contained or, restraining order a motion to dissolve the filed alternative, modify require order to On post District filed motions. bond. similar arguments the trial court heard on the motion Ultimately, withdraw the order. the trial court plaintiffs request injunction and denied dissolved April Keller filed a mo- order. On statutory damages tion under section 11—110 the Code of Civil (the Code) (735 (West 1994)). Procedure ILCS Keller now 5/11 —110 (1) appeals damages, contending from the denial of its motion denying petition trial court erred in because language provides of section 11— 110 shall be dissolved, where awarded order has been (2) holding that the trial court erred in that the March issued. Defendant part appeal. Port District takes no this We affirm.
I August 20, 1994, published Port District a bid notice for spur railroad Plaintiff submitted bid to $786,445. Port District in the amount of Keller submitted a bid of $855,597.81. On December the Port District awarded the bid to Keller. The Port District required only contends that *3 award the bid to the lowest responsible bidder. The Port District plaintiff informed had awarded the to contract Keller rather plaintiff plaintiff than unwilling complete because project to timely in a and efficient manner. January 26, 1995,
On plaintiff a sent letter to the Port in District protested letter, the award of the bid to Keller. In the plaintiff alleged that it had not been awarded the contract of because by Peters, a president plaintiff, against lawsuit filed James of Granite City. Plaintiff requested that the Port to District rescind contract Keller, plaintiff bidder, declare responsible the low and and award plaintiff. the contract to requested Plaintiff also that no to notice proceed with work be issued protest to Keller until of the award fully to Keller resolved. 17, 1995,
On March complaint filed a a complaint alleged order. The that a to proceed project to issued Keller the Port District begun. complaint sought work had The a or- der without notice and without The or- bond. der was to project halt work on the until the between and the Port District over whether the Port District On wrongfully awarded the bid to Keller could be resolved. the same filed, day a enjoining by defendants for 10
entered time, At conducting work the same hearing for March to determine trial court scheduled be extended whether' the order should 10-day period. Keller filed motion to dissolve or, alternative, modify the to At- post to to bond. require Hamman, Jerry an em- the affidavit of tached to said motion was Keller, setting forth the shutdown of the ployee of heavy job- pieces equipment Keller to another to remove of equip- at a of Hamman also attested to the fact that site cost $442.50. costing approximately due ment idled to shutdown was resumed, only $3,772 and, day, if not soon Keller’s per work was economically equipment feasible alternative would to remove moving expense an to other sites. This would add additional redeploy- this equipment back at a later date. Hamman stated that exposing delay, potentially liquidated ment would cause 23, 1995, took by the court for March scheduled trial up took the motion place At that time the as scheduled. D. James arguments heard allowed dissolve. The trial court testify. orally the com- Both defendants moved dismiss Peters to any legal injunction. failing identify basis for the plaint for specifi- hearing, the trial court motion was denied. At the close cally stated: protectable has interest and particular
"I think this cause action. I’m right to kind of relief if he has a some proper place for an into this court is the sure Authority, they should governance Tri-City Port and whether protest or whatever. provide some kind of remedies or should not sense, I’m sure that makes a lot While all think telling their business. position them how run I’m in start particular important probably for this But what is after the court particular stage is that it’s the at this plaintiff that C.D. listening presented to evidence remedy at has, fact, inadequate Company failed to show *4 they will law, particularly has to show a likelihood and failed be damages that can Clearly we have prevail merits. fact, here.” if, proper cause of action in there is a established trial court also found no evidence that suffered reputation to its due to loss of contract thus failed meet showing irreparable burden of harm. The court denied the request and dissolved the restraining order. April petition damages for Keller filed its verified
pursuant petition of the section 11—110 Code. set entry temporary restraining forth that due to Keller damages $20,296.50 shut six down for and total had ac- during crued that time. Keller stated it at- incur torney expenses fees and the preparation pre- connection with dissolve, $2,464.64. sentation of its motion to in the amount of Keller damages $22,761.14. total filed a Plaintiff motion to dismiss petition damages, and a opposition memorandum in plaintiff’s motion to dismiss was filed Keller. On June petition damages. was held on the The trial court took the matter under denying advisement issued a written petition provided, pertinent part: That order reviewing transcript
"After the entire record arguable finds that issue relative harm to reputation at the existed time TRO was issuing judge. considered judge While it is true that this ultimately disagreed rep- conclusion about his utation, allegations the court find cannot that his relative thereto were in faith bad or fraudulent so toas induce the issuance of the Arguably, requirements TRO. met all for a TRO at the time he obtained it.” appeals. now
II statutory asserts is entitled to under sec- $22,761.14 tion 11—110 plus Code in the amount of costs provides because section 11— 110 shall be awarded temporary restraining where the order has been dissolved. Keller argues that expressly section does provide 11—110 order must be found have been awarded, issued assuming, before can argu- but even endo, required, that such a is the instant ing disagree. We issued. imposition
Section 11— 101 of the Code for the allows order without notice. 735 ILCS 5/11 — 101 (West 1994). provides It also that when a or notice, is days. der issued shall expire without within 10 735 ILCS (West 1994). a temporary When 5/11 — 101 *5 notice, hearing preliminary a on the motion entered without possible injunction the "earliest time and takes place must take at 1994). (West all matters.” 735 precedence over ILCS 5/11—101 case, temporary In instant the trial court entered the the restraining a on March and scheduled purpose temporary whether a March restraining for the 10-day period. the In should be extended interim, temporary a to dissolve the restrain the Keller filed motion 1995, 23, up ing was also taken at the order. That motion a Ultimately, plaintiff’s request for hearing. the trial court dismissed temporary restraining or injunction and the preliminary dissolved pursuant damages to sec subsequently der. filed a motion for Code, provides: tion 11—110 of the which Assessing damages. temporary In all where 11—110. cases "§ injunction restraining preliminary is dissolved the order or court, court, reviewing circuit after the circuit court or the the preliminary restraining order or temporary dissolution shall, upon finally disposing the action injunction, and before party claiming damages by reason such the filing petition ing preliminary injunction! under oath ] order or suffered, setting the nature and amount of in favor of forth judgment party the who determine and enter preliminary injured by order or party injunction the suffered as a result which the thereof, judgments for judgment be enforced as other which However, money. as payment of a failure so assess the operate upon as a bar an action set out shall not hereinabove 1994). (West ILCS the bond.” 735 5/11—110 at conclusion The dissolution of constitute a determi injunction does not on a wrongfully entered. temporary restraining order nation Industries, Inc., 94 Ill. 2d Manufacturing Co. v. Darnel Hinge Stocker 288, (1983); Chicago Sun- 535, 542-43, Hirschauer v. 293 447 N.E.2d 630, gen It 635 Times, App. 192 Ill. in section 11— accepted, though expressly it is not stated erally even adjudication prior statutory recovery of prerequisite to the wrongfully issued is Co., at 447 94 Ill. 2d Manufacturing Hinge Stocker Marshall, N.E.2d 293; Meyer at N.E.2d at (1976);Hirschauer, App. 3d at 192 Ill. ap to be Here, standard of review review that we should Keller asserts plied in the instant case. Hirschauer, col our nova, In as done in Hirschauer. matter de that a Court found leagues Appellate First District order, precluded newspaper the defendant ceasing distributor, papers improperly to sell to the is defendant, showing in the of a sued without notice absence given. harm to the before notice could be However, Hirschauer, reviewing court had to determine issued, order was such a because the trial court did not make determination. Hirsch auer, 200-01, contrast, 3d at N.E.2d at Ill. 635. In situation, the trial made a present court determination order was not issued. Neverthe less, wrong court applied maintains test when it concluded that not use faith or did bad fraud order, that, obtaining therefore, however, should review the matter de Our nova. review of the applied proper indicates that standard. concluded, "Arguably The' trial met all the *6 requirements a TRO at he it.” the time obtained We conclude properly that the trial the reviewed matter and concluded that the issued. It is well grant restraining settled that a or denial temporary of a order is the within sound discretion of trial court not be the and will disturbed appeal Stocker, absent an abuse of discretion. Ill. 2d at 447 at Code,
Under section 11—101 a temporary restraining party be obtained to the only without notice adverse if "it clearly appears specific from shown or facts affidavit complaint loss, immediate injury, or applicant will result to the can before notice be and a served (West 1994). had party seeking thereon.” 735 ILCS A 5/11 —101 injunction temporary restraining or a is not required to a case make which would entitle him to relief on the Instead, only merits. he is to he show that raises a "fair question” right about the existence the of that and that preserve quo should the status until the case can be decided on its Giannone, Associates, merits. & Buzz Barton Inc. 483 N.E.2d
Contrary assertions, appears to Keller’s it from the record pleadings before us question” plaintiffs the raise "fair as to First, right plaintiffs $70,000 to nearly relief. than bid lower Second, plaintiff Keller’s bid. the bidder on had been successful over projects 60 other the apparently completed Port District and had Third, family all contracts on time. members of the publicly opposed underlying loop project sought the rail and had project. Consequently, District’s modifications the Port conten unwilling complete timely tion to the subject dispute. manner appear efficient would to some important the also find sent a letter to We 26, 1995, District, January protested dated requested proceed Keller and that no notice with work award to to protest Despite Keller until this notice issued to resolved. resolved, proceeded disagreement and the fact that .the copy January A letter was attached or out, points der. into As Keller the critical order should be issued without no whether parties during period tice the adverse is whether takes to destroy give opponent will take measures such notice litigation way obstruct the court in some substance of or (G&J City effectively Co. v. dealing Parking with the issues (1988)) App. Ill. 522 N.E.2d Chicago, 168 3d by promptly proper might litigation have averted Bryant, testing validity injunctive relief. Boltz v. Estate (1988). Here, Ill. notified faced with in which had court was situation grievance prior almost two months time it Port District of but had been un Méanwhile, spur able their differences. to resolve circumstances, it cannot be said that project continued. Under these in fact issued. order was entered note that when the trial court We only defendants ing order, days six later so it scheduled a waiting respond the full 10 opportunity without would have expire. While are *7 restraining order is indeed an parte temporary that an ex mindful damage to remedy a de- extraordinary which can cause considerable fendant, controversy between the here an actual the record discloses determination parties. supports The record court’s appropriate. of was not award reasons, judgment circuit court of foregoing For the County is affirmed. Madison
Affirmed.
KUEHN, J., concurs. CHAPMAN, dissenting:
JUSTICE
disagree
I
majority
from
absolved
serving
Granting injunctive
with notice.
relief without
notice is an extraordinary remedy
appropriate only
and is
under the
urgent
most extreme and
circumstances. Board
Education
Com
munity
Parlor,
397,
Unit School District
401,
No. 101 v.
(1981).
1152,
N.E.2d
grant
To
such relief without notice to the
party,
adverse
clearly appear
specific
must
by
facts shown
af
by
fidavit or
immediate
loss,
injury,
damage
or
will
applicant
result
before notice can
(West
be served and a
had thereon. 735 ILCS 5/11 — 101
1994).
The critical
propriety
injunc
of an
tion without notice is whether in the
necessary
minutes or hours
procure
appearance
defendant’s
defendant
could and would take
seriously
action as to
obstruct
dealing
the court from
justly and
effectively with the issues in dispute. Board
Education
Com
munity
Parlor,
Unit School District No. 101
667,
81 Ill. App. 3d
(1980),
affd, 85 Ill. 2d
Plaintiff’s verified injunctive "[If relief is not granted,] [plaintiff] will lose the substantial preparing bid, cost of profits loss of project, from the pay loss of sales to overhead and in calculable professional reputation submitting a bid 'unresponsive’ found to be Tri-City Regional pleadings District.” The do not indicate how the would be ir reparably injured by notifying the hearing. defendants of the There allegation is no "during period give notice, it takes op ponent will take destroy measures as to litiga substance of the tion or otherwise obstruct dealing court from effectively with the issues.” Parking G&J Co. v. City Chicago, 168 Ill.
Finally, disagree I with majority’s conclusion that notice was because the Port previously District hád been informed plaintiffs grievance. grievance Notice of the equate does not injunction. Moreover, of an according com- plaint, Keller Construction is an principal Illinois firm with offices in Thus, Madison County. there nothing suggest the record to easily could not have notified Keller.
Because nothing in the record supports that notice did given, have to be I would find that or- der issued. I would further find that Keller is entitled under section 11—110 and remand this case to the trial court determination of the amount of incurred Keller.