specially concurring:
I agree with the majority that the trial court abused its discretion when it issued a temporary restraining order (TRO) on August 29, 1986, without requiring G&J to at least informally notify the City of Chicago of its petition for emergency injunctive relief. I also agree that under certain circumstances, a defendant may recover damages incurred by reason of a wrongfully issued TRO. However, I do not believe that TROs should be appealable orders or that the present procedure for appeal pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307) is at all practicable.
Prior to 1967, our injunction statute did not distinguish between temporary injunctions and preliminary injunctions. In 1967, the legislature amended the injunction statute, dividing injunctive relief into preliminary and permanent injunctions and adding temporary restraining orders. (Ill. Rev. Stat. 1967, ch. 69, pars. 3, 3 — 1 (now codified at Ill. Rev. Stat. 1985, ch. 110, par. 11 — 101).) TROs are an equitable device available to the trial court to merely preserve the status quo between the parties until such time as a hearing on the plaintiff’s motion for a preliminary injunction can be held. Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 541, 447 N.E.2d 288, 291.
Our 1967 amendments were based upon Rule 65 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 65) and distinguished between emergency temporary restraining orders and preliminary injunctions. Federal courts have long recognized that TROs are not subject to interlocutory review and that “often the question of their validity is moot or merged with final judgment when the case is reviewed at a later time.” (Squillacote v. Local 2U8, Meat & Allied Food Workers (7th Cir. 1976), 534 F.2d 735, 743 n.6; Wright & Miller §§2947, 2953.) Illinois courts, however, have blurred the distinction between TROs and preliminary injunctions by permitting interlocutory appeals of both forms of injunctive relief pursuant to Supreme Court Rule 307. See Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177,186, 303 N.E.2d 1, 6 (Ryan, J., dissenting).
Although Illinois courts have held that TROs are immediately appealable, they have not gone so far as to hold that the filing of a notice of interlocutory appeal divests the trial court of all jurisdiction and, in fact, a trial court may determine the merits of the case before the appeal is heard. (Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 826, 483 N.E.2d 1004; Miller Brewing Co. v. Jos. Schlitz Brewing Co. (7th Cir. 1979), 605 F.2d 990, 995.) The supreme court rules governing interlocutory appeals give the appellant 30 days from the time the order denying his motion to vacate is issued to file a notice of appeal and the record. (107 Ill. 2d R. 307.) The appellant has seven days from the filing of the record to file a brief, and the appellee has seven days thereafter to file his brief. The appellant then has seven days from the time the appellee’s brief is filed to file a reply brief. 107 Ill. 2d R. 307(c).
Rule 307 permits a total of 51 days in which to prepare an interlocutory appeal for review. The injunction statute by its terms, however, limits TROs to 20 days (an initial 10-day period plus one extension by order of the court not to exceed 10 days). (See Ill. Rev. Stat.1985, ch. 110, par. 11 — 101.) Thus, under these circumstances, it is not even possible to file an appeal and receive a review of the decision granting the TRO before the order has expired. Quite likely, the appeal may not even be heard until after the case will have been decided on the merits and the TRO rendered moot. Accordingly, I do not see how the Illinois legislature could have intended TROs, as distinguished from preliminary injunctions, to be appealable in such a setting.
However, in Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 303 N.E.2d 1, our supreme court held that temporary restraining orders were appealable under Rule 307. The court’s reasoning in Bohn is based on what I believe is a faulty premise that a defendant would be precluded from later recovering damages incurred by reason of the TRO if he were not permitted to immediately appeal its wrongfulness. 55 Ill. 2d at 185; see Unikel & Biederman, Cases of First Impression: Prosecuting and Defending Against Motions for Temporary Restraining Orders, 70 Ill. B. J. 568, 574 (1982).
Two justices dissented from the decision in Bohn on the ground that the legislature intended for injunctive relief in Illinois to be similar to that in the Federal system. The Bohn dissenters noted that while preliminary and permanent injunctions are appealable as interlocutory orders, TROs are not appealable in the Federal system. The Bohn dissenters argue that courts should look to the substance and effect of the order, rather than its mere labeling as a TRO, to determine its appealability. (Bohn, 55 Ill. 2d at 188, 303 N.E.2d at 7-8.) Where a court has denied a motion to dissolve the TRO and continues it in effect after a hearing, such an order may actually perform the function of a preliminary injunction, and, thus, the effect of such an extension will change the TRO to a preliminary injunction. The defendant may then appeal the issuance of the order extending the TRO, but not the original TRO itself. (New York Telephone Co. v. Communication Workers of America, AFL-CIO (2d Cir. 1971), 445 F.2d 39, 46.) Under this analysis, the right to appeal is grounded, I believe, more properly in the issuance of a preliminary injunction and not in the denial of a motion to dissolve the TRO. Bohn, 55 Ill. 2d at 191, 303 N.E.2d at 9 (Ryan, J., dissenting).
Applying the analysis of the Bohn dissenters and the Federal courts to the present case, the city did not have an appealable order because there is no evidence in the record that the trial court continued the TRO of September 15, 1986, as the defendants had contended in their amended notice of appeal. The TRO dissolved by its own terms on that date and was not extended beyond the statutory authorized term.
I believe it is clear that the legislature did not intend TROs to be immediately appealable. To protect a defendant’s claim for damages would merely require the defendant to file a post-trial motion for damages in the trial court within 30 days of a final determination on the merits of the plaintiff’s case. (Cf. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 383, 483 N.E.2d 1271, 1275; Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 548, 447 N.E.2d 288, 295 (Simon, J., dissenting).) This approach would give the trial court the opportunity to render the issue of damages moot, by fashioning the final judgment to give this relief, would deter piecemeal appeals, and would promote the efficient resolution of injunction cases.
Accordingly, it is my opinion that the city’s interlocutory appeal from the order denying its motion to vacate the TRO should not be appealable under Supreme Court Rule 307. I do, however, recognize that this view is not consistent with prevailing Illinois Supreme Court decisions, but I believe that these authorities should be reexamined by our supreme court since, as stated, I also believe the underlying legal analysis supporting the appealability of TROs is faulty. However, if the court continues to find that public policy warrants the appealability of TROs, then I would further suggest that, at least, Rule 307 should be amended to shorten the time for filing a record and briefs. A more expedited appeal would allow a review of the trial court’s decision before the TRO has expired by its own terms and while there is time to correct any error of the trial court.