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04/14/88 Diamond Savings & Loan v. Royal Glen Condominium

April 14, 1988

DIAMOND SAVINGS & LOAN COMPANY, PLAINTIFF-APPELLEE

v.

ROYAL GLEN CONDOMINIUM ASSOCIATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

526 N.E.2d 372, 173 Ill. App. 3d 431, 122 Ill. Dec. 113 1988.IL.530

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. INGLIS and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Defendant, Royal Glen Condominium Association (Royal Glen), appeals from the entry of a temporary restraining order by the circuit court of Du Page County which requires it to place rents received from a certain condominium in escrow. Royal Glen contends that the trial court abused its discretion in granting Diamond Savings & Loan Company's (Diamond's) request for a temporary restraining order because Diamond's petition did not adequately allege the requirements for injunctive relief. We reverse.

Maynard Welch, who is not a party to this appeal, was the owner of a condominium unit commonly known as 1183 Royal Glen Drive No. 302 in Glen Ellyn, Illinois. On June 24, 1987, a forcible entry and detainer order was entered in favor of Royal Glen because of overdue assessment payments on the unit, pursuant to section 9.2 of the Condominium Property Act (Ill. Rev. Stat. 1985, ch. 30, par. 309.2). On September 1, 1987, Royal Glen began renting the condominium.

Plaintiff's counsel sent a letter to Royal Glen's tenant on October 13, 1987, advising her that all rents due under her lease should be forwarded to Diamond because of Diamond's mortgage with Welch. Royal Glen then advised Diamond that Royal Glen was in possession of the unit under a court order and asked Diamond's counsel to refrain from contacting Royal Glen's tenant. Diamond's counsel refused and informed Royal Glen that it would be named in a foreclosure action against the property.

On November 5, 1987, Diamond filed a foreclosure action against the property in the circuit court of Du Page County, naming Maynard Welch, Royal Glen, and La Salle National Bank as defendants. Diamond filed a verified emergency petition for a temporary restraining order on December 10, 1987. Royal Glen's counsel received telephonic notice at 5:25 p.m. on December 9 and did not appear the next morning. The court entered the petition, but continued it to December 16.

The defendant filed a response to the petition, and the court heard arguments on Diamond's request. The plaintiff argued that it had a protectable right in an assignment of rents, and it wanted the money held in escrow until the court determined who was entitled to the rents. The court granted Diamond's request for injunctive relief and ordered the defendant to place all rent payments in escrow until otherwise ordered by the court. The court found that Diamond had a protectable right in future rent payments and would suffer the irreparable injury of losing the ability to collect such payments if a temporary restraining order was not entered. The court set a new hearing date for January 4, 1988, but did not specify the nature of the hearing. The defendant's counsel did not appear on January 4, and the court entered an order continuing the injunctive relief. Defendant filed a timely notice of interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) on January 11, 1988, appealing the trial court's December 16 order.

Our first task is to determine whether the December 16 order entered by the trial court was a temporary restraining order or a preliminary injunction. The plaintiff claims that the order is the functional equivalent of a preliminary injunction because the January 4, 1988, order continued the temporary restraining order for an unlimited duration. As the Illinois Supreme Court has stated:

"In far too many cases the distinction between a temporary restraining order, a preliminary injunction, and a permanent injunction becomes blurred during the proceedings." (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 385.)

The original pleading in this case was a verified emergency petition requesting a temporary restraining order. The order entered on December 16 stated that it was a temporary restraining order. Finally, the January 4 order stated that it was continuing the temporary restraining order. Royal Glen's notice of appeal indicates that it is not appealing the January 4 extension, but only the original December 16 order. Because the appeal of the December 16 order was timely, we will only consider the proceedings up to and including December 16 in determining the nature of the order.

Section 11-101 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 11-101) sets out the process for obtaining a temporary restraining order. If a temporary restraining order is granted without notice to the adverse party, it expires after 10 days and may be extended for an additional 10 days for good cause. (Ill. Rev. Stat. 1985, ch. 110, par. 11-101.) If a temporary restraining order is granted after notice has been given to the adverse party, there is ...


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