FIRST DIVISION

April 28, 2003

JUSTICE McNULTY delivered the opinion of the court:

This case comes before us for a second time. Save thePrairie Society sued to prevent Greene Development Group fromconstructing an elaborate development on property Greene ownednear a natural prairie. The trial court denied plaintiff'smotion for a preliminary injunction. On the initial appeal wereversed the trial court and ordered the court to enter thepreliminary injunction on remand. The trial court entered theordered injunction, but it also ordered plaintiff to post a bondof $200,000. Plaintiff again appeals.

We find that the trial court abused its discretion byordering the large bond from a not-for-profit corporation withlimited resources, where the injunction the corporation soughtserved the public interest. We again reverse the trial court andorder the court to enter the preliminary injunction without bond.

Founder's Bank, as trustee of a trust for benefit of Greene,owns a 5-acre lot in a 60-acre residential community. All 12 ofthe lots in the community are about 5 acres, and no property hasmore than one principal building. When Greene acquired the lot,all 12 lots had a single-family residence. The deeds for the 12lots all forbid construction of any principal building other thana residence.

Greene sought to construct a development of 5 buildings,including 4 buildings with 32 residential units in each building. Plaintiff, which owned another lot in the community, sued toenforce the restrictive covenant. Plaintiff also moved for apreliminary injunction, without bond, to preserve the status quopending determination of the suit to enforce the covenant.

At the hearing on the motion for preliminary injunction plaintiff presented evidence that the residential communitybordered a nature preserve consisting of 80 acres of prairie,wetland and savanna. The general superintendent of the CookCounty Forest Preserve District described the nature preserve as"a unique natural area with national and international ecologicalvalue." He added that savanna, like that in the nature preserve,is "critically imperiled globally." The low-density residentialcommunity of 60 acres "provides critical buffer for and helps toprotect" the nature preserve. In the interest of shielding thenature preserve, the Forest Preserve District preferred to see nomajor development of the residential community.

Following testimony concerning the character of theresidential area, plaintiff recognized the need for furthertestimony in support of the request for waiver of bond.Plaintiff's attorney said:

"In the interest of time, we would suggest that wepostpone that testimony to a point in time if and whenit's necessary."

The court and Greene agreed to let plaintiff reserve theright to present evidence concerning the bond later. The issueof the amount of the bond did not arise in the initial hearingbecause the court denied the motion for a preliminary injunction.

On the first appeal this court addressed only the issue ofwhether the trial court erred by denying the motion for apreliminary injunction. The parties did not address thepossibility of a bond, and the record did not include evidencepertinent to the request for waiver of bond.

On remand plaintiff amended its complaint to add allegationsthat Greene bought a second lot in the residential community anddemolished residences on both of the lots. Founder's Bank, astrustee, held legal title to the first lot, and Standard Bank &Trust, also as trustee, held legal title to the second lot. Greene then transferred its beneficial interests in both truststo Orchard Hill Construction. Plaintiff sought leave to addOrchard Hill and Standard Bank as new defendants. Plaintiff alsorenewed the request for an injunction, this time to preventdevelopment of both of the lots Orchard Hill owned.

Greene asked the court to establish a bond for theinjunction. In the motion Greene asserted, without citation toany evidence, that the delay due to the preliminary injunctionwould jeopardize the proposed development even if the courtfound, at trial, that plaintiff had no right to enforce therestrictive covenant. Greene also asserted, without citation toevidence, that it intended to spend $21 million on the proposeddevelopment. Greene did not indicate the price it paid for theproperties or the value it would lose if the court imposed thepreliminary injunction but decided after trial to permit thedevelopments. Instead, Greene requested a bond of $21 million,without explaining how an injunction preventing it from spending$21 million for the duration of the trial could cause it anyloss, let alone a loss of $21 million.

Greene supported its request with evidence of plaintiff'sability to pay. Plaintiff's tax return for the year ending June30, 1999, showed net assets worth more than $750,000, but landaccounted for more than $680,000 of those assets. For that taxyear plaintiff received total revenues of $58,000, mostly fromcharitable donations, covering total expenses of almost $56,000,for a net income of $2,094. Greene also submitted a realtor'sreport estimating the value of plaintiff's property in theresidential community at $550,000.

In opposition to the motion for bond, plaintiff submitted anaffidavit from the Director of the Illinois Department of NaturalResources Office of Realty and Environmental Planning, who echoedthe testimony from the hearing about the character of the naturepreserve and the need for the low-density residential area as abuffer. He added that plaintiff served the public interest byassisting the Department in its efforts to restore and protectthe nature preserve. Plaintiff also presented a budget for theyear ending June 30, 2002. Plaintiff anticipated income of$63,500 and expenses of $63,300.

The trial court held:

"First, on its face, this is not a case where thebond requirement should be waived. Due to theinjunction, the Defendants are being enjoined fromcommencing construction on certain real estate to which[they] hold[] legal title. Second, the fact that[plaintiff] alleges that it is a small non-for-profitentity with limited financial resources is not alegitimate basis for waiving bond. Third, and perhapsmost compelling, is the fact that the Appellate Courtdid not expressly order that bond should be waived. Upon entry of a preliminary injunction, a fundamentalcondition to its issuance is the posting of a bond. Thus, if the Appellate Court intended that the bondrequirement should be waived in this scenario, it seemsthat it would have directed that instruction in themandate. And, the Appellate Court did not.

***

Accordingly, the Plaintiff['s] *** Motion forPreliminary Injunction is GRANTED, and in accordancewith said injunction, [plaintiff] is ordered to post abond in the amount of $200,000."

Section 11-103 of the Code of Civil Procedure provides:

"The court in its discretion, may before enteringa restraining order or a preliminary injunction,require the applicant to give bond in such sum, uponsuch condition and with such security as may be deemedproper by the court, for the payment of such costs anddamages as may be incurred or suffered by any party whois found to have been wrongfully enjoined orrestrained." 735 ILCS 5/11-103 (West 2000).

This court gives the trial court discretion to determine whetherto require a bond from the party seeking a preliminaryinjunction. Gold v. Ziff Communications Co., 196 Ill. App. 3d425, 436 (1989). The trial court abuses its discretion when itapplies improper legal standards or ignores recognized principlesof law. Zavell & Associates, Inc. v. CCA Industries, Inc., 257 Ill. App. 3d 319, 332 (1993); Roberts v. Illinois Power Co., 311Ill. App. 3d 458, 461 (2000).

The trial court here ignored several legal principles inruling on the bond. First, a "judicial opinion is *** authorityonly for what is actually decided." In re D.S., 313 Ill. App. 3d1020, 1026 (2000). When a court expressly reserves an issue, itsdecision cannot be considered a resolution of the reserved issue. Citicorp Savings of Illinois v. Rucker, 295 Ill. App. 3d 801,805-06 (1998).

At the hearing on the motion for a preliminary injunction, plaintiff, with the express consent ofdefendants and the trialcourt, reserved the right to present evidence on the issue ofwhether to set a bond and the amount of any bond so set. Therefore, when the case came before this court on the initialappeal, the record did not include plaintiff's evidence on theissue, and the trial court had made no ruling concerning thebond. The record on the initial appeal, and the briefs on thatappeal, presented no basis for this court to offer any opinion onthe issue of whether to impose a bond. This court, on the firstappeal, lacked jurisdiction to consider the amount of the bondand whether to set a bond.

Despite the absence of any basis for this court to addressthe issue of a possible bond, the trial court here decided thatthe lack of any ruling concerning a bond in this case constituteda compelling reason to order a bond of more than 3 times plaintiff's total annual revenues, and about 100 timesplaintiff's annual net income. Our decision necessarily had nobearing on the need for a bond, as the parties could not addressthat issue on the record presented to this court on the firstappeal - a record in which the trial court expressly agreed toreservation of the issue of whether to impose a bond.

The trial court also ignored recognized legal principles inthe other reasons it gave for rejecting plaintiff's arguments. Aparty's limited financial resources can provide good cause forrequiring no bond. Mitchell v. Mitchell, 10 Ill. App. 2d 437,444 (1956); Gold, 196 Ill. App. 3d at 436. Plaintiff's status asa not-for-profit corporation may warrant waiver of the bondrequirement (Sunset Hills Homeowners Ass'n v. Karel, 39 Ill. App.2d 477, 486 (1963)), especially where the corporation serves thepublic interest (Town of Cicero v. Weilander, 35 Ill. App. 2d456, 470-71 (1962)). Here, plaintiff's work to conserve ournatural resources serves the public interest. See 415 ILCS 5/2(West 2000).

A federal rule, like section 11-103 of the Code of CivilProcedure, permits courts to enter injunctions with no bond, orwith only nominal bond. Scherr v. Volpe, 466 F.2d 1027, 1035(7th Cir. 1972). The federal courts have articulated appropriatefactors, consistent with Illinois law, for the court to considerin determining whether to impose a bond. In Crowley v. Local No.82, 679 F.2d 978, 1000 (1st Cir. 1982), rev'd on other grounds,467 U.S. 526, 81 L. Ed. 2d 457, 104 S. Ct. 2557 (1984), the courtsaid:

"[C]ases are *** in some conflict as to the effect offailure to require a bond. *** [In one line of cases,w]here the injunction is otherwise upheld, the case hasbeen remanded solely for reconsideration of the bondrequirement. [Citation.] In the second line, no bondis required in suits to enforce important federalrights or 'public interests.' [Citations.] The rightsprosecuted in these cases arose out of comprehensivefederal health and welfare statutes ***. Moreover, someof these cases involved indigent plaintiffs, from whomit would be unjust to require security. [Citations.]

These cases suggest to us that a district courtshould take into account the following factors indeciding whether to require a bond. First, at least innoncommercial cases, the court should consider thepossible loss to the enjoined party together with thehardship that a bond requirement would impose on theapplicant. Applicants in commercial cases --merchants, manufacturers, and others -- can be assumedcapable of bearing most bond requirements, so hardshipto them is less of a factor. Second, in order not torestrict a federal right unduly, the impact that a bondrequirement would have on enforcement of the rightshould also be considered."

See Temple University v. White, 941 F.2d 201, 219 n.26 (3d Cir.1991) (adopting Crowley factors). Also, the "court may dispensewith security where there has been no proof of likelihood of harmto the party enjoined." International Controls Corp. v. Vesco,490 F.2d 1334, 1356 (2d Cir. 1974). A federal court applyingthese factors has refused to impose bond on a nonprofitenvironmental protection organization that sought an injunctionto restrict development of lakefront properties. People of theState of California ex rel. Van de Kamp v. Tahoe RegionalPlanning Agency, 766 F.2d 1319, 1325-26 (9th Cir. 1985).

Like the court in Tahoe, we find that the factors weighheavily in favor of imposing no bond here. First, the injunctionserves the public interest in protecting our vanishing savannasand prairies. The hardship on plaintiff of the excessive bondhere is great, as it amounts to more than one-fourth of all of plaintiff's assets, and about as much income as the organizationcould hope to net in a century. The bond requirement certainlywould severely diminish plaintiff's ability to protect the publicinterest. Finally, Greene cites no evidence that it will sufferany loss due to this preliminary injunction. If a trial on themerits shows that Greene has no right to develop this property,the injunction will have saved Greene the cost of remedying itsunjustified expenditures on development. If the court, after atrial, determines that Greene has the right to develop theproperty, Greene will have lost only the time needed for thetrial. While Greene will need to wait to realize its projectedprofits, the record presents no reason to believe that theprofits will not increase sufficiently to compensate it for thedelay.

In our prior opinion we made no mention of any possible bondbecause the record and arguments before us presented no basis foroffering an opinion on the bond. The trial court improperlyrelied on the lack of discussion of bond as grounds for imposingone. The court also ignored precedent that established that thepublic interest and the plaintiff's limited financial resourcesconstitute grounds for granting the injunction without bond. Inview of the public interest, the plaintiff's lack of financialresources, and the lack of evidence of any loss to defendantsfrom a temporary injunction for the duration of trial, we findthat the trial court abused its discretion by imposing a bond of$200,000. We reverse the decision of the trial court and remandwith instructions to eliminate the bond requirement from theorder for a preliminary injunction.

Reversed and remanded with directions.

O'MALLEY and SMITH, JJ., concur.