dissenting. I respectfully dissent. I distice, majority’s conclusion that the Rule 65 requirements do not apply to the State’s request for a preliminary injunction under § 4-88-104. I believe this case should be reversed and remanded to the circuit court for application of Rule 65 to the State’s request for preliminary injunction.
In determining whether to issue a preliminary injunction or temporary restraining order pursuant to Rule 65, the circuit court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or a restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002). Recently, in AJ& K Operating Co. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004), this court took the opportunity to clarify that the standard of review for a temporary restraining order or preliminary injunction is whether the circuit court abused its discretion. We stated: “The standard of review is the same for the two essential components of a TRO or preliminary injunction: irreparable harm, and likelihood of success on the merits. See David Ñewbern & John J. Watkins, Civil Procedure § 29-2, at 437 (3d ed. 2002).”
The majority holds that in cases where the Attorney General “has a specific statutory mandate to protect public interest, traditional common-law prerequisites for an injunction in civil litigation, such as irreparable harm and likelihood of success on the merits, are not applicable.” I disagree. Our rules of civil procedure govern the procedure in the circuit courts in all suits or actions of a civil nature with the exceptions stated in Rule 81. See Ark. R. Civ. P. 1. Rule 81 provides, in relevant part:
(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit courts of this state except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.
(c) Procedure Not Specifically Prescribed. When no procedure is specifically prescribed by these rules, the court shall proceed in any lawful manner not inconsistent with the Constitution of this State, these rules or any applicable statute.
Ark. R. Civ. P. 81(a), (c) (emphasis added).
In the present case, § 4-88-104 (Repl. 2001) provides a remedy for civil enforcement of the ADTPA; however, § 4-88-104 does not specifically provide a different procedure for seeking injunctive relief. As such, the exception in Rule 81(a) does not apply.1 Further, the Rule 81(c) exception does not provide a basis for deviating from our rules of civil procedure. Where, as here, a procedure is not specifically prescribed by these rules, the court shall proceed in any lawful manner not inconsistent with the Arkansas Constitution, our rules of civil procedure, or any applicable statute. By creating a new procedure for seeking injunctive relief, the majority authorizes a proceeding which is inconsistent with a rule of civil procedure. Specifically, this judicially-created procedure is inconsistent with Rule 65, which requires the circuit court to consider: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. This new procedure is also inconsistent with this court’s well-settled rule that the standard of review for a temporary restraining order or preliminary injunction is whether the circuit court abused its discretion.
Moreover, it is unclear exactly what this new procedure entails. The majority states that “[t]he circuit court has already found substantial evidence to support a violation of the FTC order which would constitute a violation of the ADTPA.” Shortly thereafter, the majority states that “[t]he circuit court found evidence of a violation, and we hold that the court’s finding in this regard is not clearly erroneous.” How much evidence warrants the issuance of an injunction?
Had the General Assembly intended to institute a new procedure for seeking injunctive relief under § 4-88-104, or to deviate from the rules of civil procedure, it could have done so. In State v. Lester, 343 Ark. 662, 38 S.W.3d 313 (2001), this court stated:
The Arkansas Constitution confers upon the courts the inherent authority to promulgate rules of procedure. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). However, Article 7, sections 1 and 4,2 “do not expressly or by implication confer on this Court exclusive authority to set rules of court Procedure.” Jackson v. Ozment, 283 Ark. 100, 101, 671 S.W.2d 736, 738 (1984) overruled on other grounds by Weidrick u Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). The court shares this authority with the General Assembly. St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Thus, it is not a violation of separation-of-powers. principles for the legislature to enact statutes pertaining to rules of procedure, Si. Clair v. State, supra, although such statutes may be superseded by the rules promulgated by the judiciary. See Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994); Weidrick v. Arnold, supra.
Lester, 343 Ark. at 668, 38 S.W.3d at 316.
Clearly, the General Assembly is aware of its authority to enact statutes pertaining to rules of procedure. For example, the General Assembly enacted § 5-37-407, which covers forgery and fraudulent practices in cable television. This statute makes clear that the General Assembly, in providing for injunctive relief, intended to deviate from the rules of civil procedure. In a civil action under that subchapter, “[t]he court may [a]ward declaratory relief and other equitable remedies, including preliminary and final injunctions to prevent or restrain violations of this subchapter, without requiring proof that the plaintiff has suffered or will suffer actual damages or irreparable harm or lacks an adequate remedy at law.” Ark. Code Ann. § 5-37-407(b)(1) (Supp. 2003) (emphasis added).
No procedure for seeking injunctive relief is provided in § 4-88-104. Without evidence of a drafting omission, this court will not read into legislation what is not there. Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). In this case, there is no evidence of a drafting omission, nor is there any evidence that the General Assembly intended to provide different rules of procedure. Again, I believe Rule 65 applies.
Further, I believe that the circuit court abused its discretion in granting the State’s motion for preliminary injunction. In Three Sisters, supra, we stated:
Regarding the first necessary showing, this court has held: “Essential to the issuance of a temporary restraining order is a finding that a failure to issue it will result in irreparable harm to the applicant.” Kreutzer, 271 Ark. at 244, 607 S.W.2d 670, 671 (citing Ark. R. Civ. P. 65). “The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief.” Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 302, 954 S.W.2d 221, 224 (1997).
Regarding the second thing that must be shown, this court has held: “Of course, in order to justify a grant of preliminary injunction relief, a plaintiff must establish that it will likely prevail on the merits at trial.” W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 351, 820 S.W.2d 440, 443 (1991) (citing Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989)).The test for determining the likelihood of success is whether there is a reasonable probability of success in the litigation. Customs Microsystems, 344 Ark. 536, 42 S.W.3d 453. Such a showing “is a benchmark for issuing a preliminary injunction.” Id. at 542, 42 S.W.3d at 457-58.
Three Sisters, 348 Ark. at 175, 72 S.W.3d at 101.
In this case, the order of preliminary injunction itself contains no finding of irreparable harm. At the hearing on the State’s motion for reconsideration, the circuit court stated that it believed there was a “chance for harm if they continue the way they’re going, and it’s hard to stop this type of conduct from hurting a lot of people ifIn fact that’s what... [is going on].” (Emphasis added.)
Generally, harm is only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. See Three Sisters, 348 Ark. at 176, 72 S.W.3d at 101 (citing Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980)). Mercury argues that since the State seeks “credit” or “restitution” to consumers for amounts it contended Mercury had improperly billed to its customers, it is clear that the “harm” is not irreparable because it can be adequately compensated by money damages. The State contends that an injunction authorized by the ADTPA results in a different analysis of the irreparable harm prong ofithe preliminary-injunction analysis. I believe the State is correct. The ADTPA protects consumers and the business community from unconscionable, false, and deceptive trade practices. See State v. R&A Inv. Co., 336 Ark. 289, 985 S.W.2d 299 (1999). The enactment of the ADTPA is a determination by the General Assembly that violations of the Act will cause irreparable harm.
Even assuming that the circuit court’s statement concerning a “chance of harm” is considered a finding ofirreparable harm, the record is devoid of a finding of a likelihood of success on the merits. As stated previously, in determining whether to issue a preliminary injunction pursuant to Rule 65, the circuit court must consider: (1) whether irreparable harm will result in the absence of the injunction, and (2) whether the moving party has demonstrated a likelihood of success on the merits. The appropriate standard was not applied in this case.
For the foregoing reasons, I believe that this case should be reversed and remanded for the circuit court to apply the appropriate standard.
Corbin and Imber, JJ., join.See Weiss v. Johnson, 331 Ark. 409, 961 S.W.2d 28 (1998). In that case, the appellee’s driver’s license was suspended by the Office of Driver Services of the Revenue Division of the Department of Finance and Administration pending the adjudication of her DWI charge. Pursuant to Ark. Code Ann. § 5-65-104 (Repl. 1997), the appellee filed a“de novo petition for review” of the agency determination in circuit court. DF &A failed to appear at the hearing, and the trial court entered a judgment in favor of the appellee. DF & A moved to set aside the judgment, arguing that it was not served with the appellee’s petition in compliance with Ark. R. Civ. P. 4. The trial court denied the motion, finding that the hearing was a “special hearing” and that the rule was not applicable. DF& A appealed, arguing that the trial court abused its discretion in denying its motion to set aside because service of the petition for review failed to comply with Ark. R. Civ. P. 4. We reversed and dismissed, stating: “Given the silence of Ark. Code Ann. § 5-65-104(c) on the subject of notice or service of process, and therefore the lack of a'different procedure’ which conflicts with the Rules, we are left with no choice but to conclude that the Rules govern because Rule 81(a) does not apply.” Johnson, 331 Ark. at 416,961 S.W.2d at 31.
Article 7, sections 1 and 4 were repealed by Amendment 80, § 3, which provides: “The Supreme Court shall prescribe these rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.”