Issuing the TRO

There are several steps necessary to obtain an Temporary restraining order.  This process is complicated, detailed and cannot be entered into without a great deal of planning.  You must work closely with your lawyer in obtaining sufficient evidence to convince a court to issue a TRO.

First, you must make an application to the court for the issuance of a TRO. Normally, our desire is to convince a judge to grant the TRO without telling the other side. A temporary restraining order may be granted without notice to the defendant if it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing held. The affidavit must be based on specific facts and may not be made on the basis of information and belief- so it is important that the person signing the affidavit actually, personally know the facts of the case.

If the court is going to grant a TRO, the plaintiff will be required to post a bond before the TRO will be effective. The bond provision is mandatory, and a temporary restraining order issued without a bond is void. However, the bond requirement does not apply in the case of certain indigent applicants seeking to restrain the adverse party from foreclosing on the applicant's residential homestead. An affidavit of inability to pay conforming to the statutory requirements must be filed.

Any temporary restraining order granted without notice must be endorsed with the date and hour of issuance, must be filed immediately in the clerk's office and entered of record, and must define the injury and state why it is irreparable and why the order was granted without notice. The court must state in the order the time, not to exceed 14 days after signing, by which the order will expire. The court, within the time set for expiration, may extend the order for an additional 14 days for good cause shown, and may extend the order for a longer period with the consent of the party against whom the order is directed. The reasons for the extension must be entered of record. No more than one extension may be granted unless the subsequent extensions are unopposed. Any extension must be made in writing; an oral extension of a temporary restraining order is ineffective. Further, the restrained party must have notice of the actual written extension before the restrained party can be charged with contempt for violation of the order.

The 14-day time period refers to calendar days and expires at the end of the day, not at the exact time of day the order was signed. That is, a temporary restraining order granted on January 30 at 2:30 p.m. expired on February 13 at midnight, exactly 14 calendar days after it was granted. Accordingly, when the court extended the deadline on the 14th day, but after 2:30 p.m., the extension was within the 14-day period and was effective.

If a temporary restraining order is granted, the accompanying application for temporary injunction must be set for hearing at the earliest possible date and takes precedence of all matters except older matters of the same character. If the applicant does not proceed with the application for temporary injunction, the court must dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order or on shorter notice if the court so prescribes, the restrained party may appear and move for the dissolution or modification of the order, and the trial court must hear and determine this motion as expeditiously as the ends of justice require.

Email:  Darrell W. Cook

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