… And More on Pitfalls of TRO’s …

February 11, 2015 § Leave a comment

Adding to the thoughts about TRO’s from Monday …

Chancellor David Clark rendered an opinion in a case in which he had granted a TRO without notice, but concluded at the full hearing that it was unfounded. Here is an excerpt from his opinion on the defendant’s motion for sanctions:

The dismissal of a complaint, whether by the Court or by the plaintiff, operates as a dissolution of any injunction issued thereunder. It also establishes the fact that it was wrongfully sued out and that the defendant is entitled to recover whatever damages he sustained by the issuing of the same. Warner’s Griffith, Mississippi Chancery Practice (Rev. Ed.), §463, citing Johnson v Howard, 141 So. 573 (Miss. 1932), and Day v McCandless, 142 So. 486 (Miss. 1932).

Rule 65(c), Mississippi Rules of Civil Procedure, provides:

(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney’s fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Mississippi or of an officer or agency thereof, and provided further, in the discretion of the court, security may not be required in domestic relations actions. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (Emphasis added)

In Broome v Hattiesburg Building and Trades Council, 206 So.2d 184 (Miss. 1967), the Court held that: . . . [I]t has become well settled in this state that in suits upon injunction bonds no recovery may be had against principal or sureties in excess of the penalty of the bond. Broome, 206 So.2d, 188.

Further, as noted in 42 Am Jur 2d, Injunctions, §359: It is the well-established general rule that there is no liability in tort for the damages caused by the wrongful suing out of an injunction, unless the circumstances give rise to a cause of action for malicious prosecution. . . On the other hand, the statutes of the majority of the states require an injunction bond, under which the principal and surety may be liable for damages if the injunction is wrongful or is dissolved.

Also, see 43A C.J.S., Injunctions, §314: Under statutes so providing, damages may be awarded where occasioned by the wrongful entry of an injunction, and liability may be fixed by the bond the complainant is required to give as a condition to the granting of the injunction, as discussed infra §315. Apart from such statutory liability, since the seeking of injunctive relief is not a tort, in the absence of a bond or security there may be no recovery of damages for the issuance of an injunction, even though it may have been granted without just cause; and recovery may not be had unless the person enjoined can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the person who obtained the injunction.

The bottom line is this: (1) The Chancellor has the discretion, but is not required, under MRCP 65(c) to waive the requirement of bond in domestic relations actions1; (2) If the Chancellor, in the exercise of that discretion, waives the requirement of bond, the defendant is precluded from thereafter recovering damages of and from the plaintiff for the wrongful suing out of the TRO; (3) unless the defendant can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the person who obtained the injunction.

In this action, since the requirement of bond was waived by the Chancellor issuing the TRO, the defendant is precluded from recovering her damages in this action. However, this does not prevent her from filing an action in tort. Therefore, the Amended Motion of the Defendant for Sanctions will be, and the same is hereby denied and dismissed.

Based on that authority, I think that the idea of a bond in domestic TRO’s without notice is something that should move from the rear of the judge’s mind to the forefront. It’s a way of establishing some balance in the situation, because we are being asked to grant immediate relief without giving the other side any opportunity to be heard. The bond requirement can discourage less-than-meritorious filings while at the same time providing insurance that the defendant will not be out attorney’s fees and costs if the case is dismissed. In other words: you can proceed with this if you really believe it will stand up, but there will be something at stake if it does not.

Of course, the chancellor can always exercise discretion to waive bond in exigent cases.

I am not aware of any cases under the Litigation Accountability Act or MRCP 11 involving dismissed TRO’s. If anyone knows of any decisions, please let us know. There should be no impediment to proceeding under either authority, as far as I know.

Finally, here are some sage observations that Judge Clark added on the subject of TRO’s without notice:

My experience has taught me that the granting of a TRO without notice only exacerbates the tension and strife between the parties, and between their counsels. I understand that. If I were at home on a Saturday watching a game on TV and a deputy Sheriff knocked on my door and told me I have to move out of my house, immediately, and allow the deputy to take my son to his mother, all without notice to me, I would be upset; I would be convinced that “the fix is in.” I have found that I can better deal with the issues if both parties are present before the Court. If I can look both parties in the eye and explain to the husband, for instance, why I feel he needs to move out of this house and why I think the children should go with their mother, he at least has had an opportunity to participate and to have his say. He may disagree with the ruling but he has not been denied his right to participate; his due process rights. In almost every case wherein I have been asked for a TRO without notice, I subsequently find at a hearing with both parties present that the factual situation has been exaggerated and distorted. Your experience may be different and I would not presume to indicate otherwise. I am only suggesting that we, as Chancellors, should be wary of TRO’s without notice. I think that is what Rule 65 requires.

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