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06/30/94 CHARLES A. HARPER v. MISSOURI PACIFIC

June 30, 1994

CHARLES A. HARPER, PLAINTIFF-APPELLEE,
v.
MISSOURI PACIFIC RAILROAD COMPANY AND UNION PACIFIC RAILROAD COMPANY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County. No. 93-L-1209. Honorable Daniel J. Stack, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Lewis, Goldenhersh, Maag

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

The defendants, Missouri Pacific and Union Pacific Railroad Company, appeal from the trial court's entry of a preliminary injunction which prohibits the defendants from "carrying out their practice, policy, and use of letters requiring knowledge and consent of employee witness interviews concerning facts incident to FELA [Federal Employers Liability Act (45 U.S.C. sec. 51 et seq. (1993))] claimants' injuries, or in any way interfering with their employees regarding such claims, until further order of [the] Court," the court finding that the practice is void pursuant to section 60 of the FELA (45 U.S.C. sec. 60 (1993)). The defendants also appeal from the trial court's entry of a temporary restraining order (TRO) enjoining the same acts of the defendants as those enjoined under the preliminary injunction.

We consider three issues on appeal: (1) whether the defendants preserved their right to appeal the trial court's denial of their motion to dissolve the TRO; (2) whether the trial court abused its discretion in entering the preliminary injunction; and (3) whether the preliminary injunction is overly broad. For reasons we will more fully state herein, we affirm in part and reverse in part.

Plaintiff, Charles A. Harper, filed a complaint against the defendants on November 19, 1993. The first count alleged negligence under the FELA. The second count asked for a declaratory judgment that the defendants' practice of requiring consent before plaintiffs' attorneys were allowed to talk to railroad employees in the investigations of FELA claims was barred pursuant to section 60. The third count requested temporary and permanent injunctive relief from the defendants' policy of requiring notice of and prior consent to interviews with railroad employees who were witnesses to or who had information concerning FELA claims.

The Federal statute which plaintiff claims the defendants have violated is, inter alia, as follows:

"Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest * * * shall [be subject to criminal penalties.]" 45 U.S.C. sec. 60 (1993).

I. TEMPORARY RESTRAINING ORDER

On November 22 through 24, 1993, plaintiff's attorney sent written notices of a hearing set for November 24, 1993, to several different attorneys representing the defendants. Copies of the complaint, including the request for the TRO, were delivered to at least two attorneys for the defendants. Due to the unavailability of the trial Judge, no hearing was conducted on plaintiff's request for a TRO on November 24, 1993. No one appeared for the defendants at the Madison County courthouse on November 24, 1993.

On November 29, 1993, plaintiff's attorney appeared before the trial court, and the TRO was entered, based upon the allegations of the verified complaint and attached affidavits. Plaintiff's attorney informed the trial court that he had called the defendants' law department in St. Louis, Missouri, that morning informing the defendants of the hearing on that date. The trial court entered the TRO, specifically finding that the defendants had actual knowledge of the motion for the TRO but had failed to appear. The TRO enjoined the defendants from "the practice of requiring knowledge and consent of witness/employee interviews concerning facts incident to FELA * * * claimants' injuries or in any way interfering with ex parte communication by plaintiffs' attorneys with its employees regarding such claims." The TRO was entered at 10:30 a.m. on November 29, 1993, and was to remain in effect until December 7, 1993.

On December 6, 1993, the railroad filed a motion for dissolution of the temporary restraining order. On December 7, 1993, before the court began its hearing on plaintiff's request for a preliminary injunction, the trial court heard extensive arguments from both parties concerning the railroad's motion to dissolve the TRO. The trial court denied the motion to dissolve the TRO. On December 7, 1993, the railroad filed its notice of appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)) from the order denying its motion to dissolve the TRO.

Supreme Court Rule 307(a)(1) provides:

"An appeal may be taken to the Appellate Court from an interlocutory order of court

(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." (134 Ill. 2d R. 307(a)(1).)

Under subsection (a) of Rule 307, the notice of appeal must be filed within 30 days from the entry of the interlocutory order. 134 Ill. 2d R. 307(a).

Turning now to the issues in the case at bar, it is apparent that whether the defendants had notice or not is irrelevant. The TRO expired by its own terms on December 7, 1993, the day that the trial court denied the defendants' motion to dissolve. In People v. Conrail Corp (1993), 251 Ill. App. 3d 550, 622 N.E.2d 29, 190 Ill. Dec. 619, the court pointed out:

"A case becomes moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief to any of the parties. [Citations.] An injunction that has expired can no longer be dissolved because the court can not dissolve that which no longer exists. ( Conrail Corp., 251 Ill. App. 3d at 557, 622 N.E.2d at 34.

By the time the notice of appeal from the denial of the motion to dissolve the TRO reached this court, there was nothing to dissolve. Moreover, the preliminary injunction was issued on December 7, 1993, and it superseded the TRO, which would make the TRO moot even if its term had not expired. We need not, therefore, discuss whether the written notices sent by plaintiff to the defendants' attorneys of a hearing asking for a TRO on November 24, 1993, delivery of copies of the complaint to two of the defendants' attorneys, and a telephone call to the defendants' law department on November 29, 1993, to tell counsel of the hearing on that date were sufficient notice to the defendants.

There apparently is some confusion about TROs and about what a defendant must procedurally do to protect and defend against a TRO. (See People v. Conrail Corp. (1993), 251 Ill. App. 3d 550, 622N.E.2d 29, 190 Ill. Dec. 619; Williams v. Nagel (1993), 251 Ill. App. 3d 176, 620 N.E.2d 1376, 190 Ill. Dec. 115, appeal allowed (1994), 154 Ill. 2d 570, 631 N.E.2d 719; People v. Conrail Corp. (1993), 245 Ill. App. 3d 167, 613 N.E.2d 784, 184 Ill. Dec. 467.) It should be noted from the outset that a TRO is a quick, short-term process that is intended to maintain the status quo. It is not meant to be an instrument that causes protracted litigation because of its brief duration due to expiration by its own terms, cessation by law, or supersedence by an order entered in the proceeding for a preliminary injunction. The propriety of the issuance of the TRO becomes moot once the TRO is no longer in existence, except for the question of assessing damages for the wrongful issuance of such. 735 ILCS 5/11-110 (West 1992); Conrail Corp., 251 Ill. App. 3d 550, 622 N.E.2d 29, 190 Ill. Dec. 619.

There are two types of TROs, those granted with notice to the adverse parties and those that are granted without notice, ex parte, to the adverse parties. Either way, relief from a wrongful granting or denial of the TRO should be rendered expeditiously.

Part of the confusion apparently arises from the fact that Rule 307 was amended in 1988, effective January 1, 1989, by the addition of ...


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