March 14, 2001

No. 2--00--0549

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE RAPP delivered the opinion of the court:

Defendant-appellant, James H. Brummel, appeals from atemporary restraining order enjoining him and defendant Rae J. Puccini fromtransferring or dissipating any of their assets. Brummel contends that the trialcourt erred in denying his motion to dissolve the temporary restraining order.We dismiss the appeal for lack of jurisdiction.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs Tara L. Goodwin, Cathleen M. Coombs, James O. Latturner, andDaniel A. Edelman are the general partners of plaintiff Edelman, Coombs &Latturner (the law firm). On February 15, 2000, plaintiffs filed a verifiedcomplaint for injunctive and other relief alleging fraud, conversion, and breachof fiduciary duty against Brummel and Puccini. Plaintiffs alleged that Pucciniwas a former office manager for the law firm and that she misappropriated fundsfrom plaintiffs by forgery and other means. The complaint also alleged thatBrummel, Puccini's paramour and cohabitant, participated in misappropriationsfrom plaintiffs and benefitted from the proceeds. The complaint sought, interalia, a temporary restraining order preventing Brummel and Puccini fromtransferring, concealing, or using any funds that may have been misappropriatedfrom plaintiffs and preventing Brummel and Puccini from destroying evidence.

At 2:45 p.m. on February 15, 2000, the trial court entered an ex partetemporary restraining order enjoining Puccini and Brummel from dissipating ortransferring any assets and enjoining any entity in custody of assets in thename of Puccini or Brummel from transferring any such assets. The temporaryrestraining order was to be served upon defendants and was made returnable onFebruary 23, 2000, at 10 a.m. Later that same day, plaintiffs filed an amendedverified complaint for injunctive and other relief.

On February 23, 2000, plaintiffs filed a motion for a preliminary injunction.On February 24, 2000, the trial court entered an agreed order extending thetemporary restraining order until further order of the court. The agreed orderalso modified the temporary restraining order by allowing limited funds to bereleased to Brummel and Puccini. The agreed order denied without prejudiceBrummel's motion to dissolve the temporary restraining order and also set thehearing on plaintiffs' motion for a preliminary injunction for April 6, 2000.

On March 14, 2000, plaintiffs filed a second amended verified complaint forinjunctive and other relief. On March 30, 2000, Brummel filed a motion to strikeand dismiss plaintiff's second amended complaint and to dissolve the temporaryrestraining order. In his motion, Brummel argued that plaintiffs failed to stateany cause of action against him and therefore the complaint should be dismissedpursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615(West 1998)). In the same motion, Brummel argued that there was no factual basispresented upon which the trial court could enter a temporary restraining orderagainst him and therefore the temporary restraining order should be dissolvedpursuant to section 11--108 of the Code of Civil Procedure (735 ILCS 5/11--108(West 1998)).

On April 6, 2000, the trial court entered an order continuing to April 26,2000, the hearing on Brummel's motion to strike and dismiss the second amendedcomplaint and to dissolve the temporary restraining order.

On April 26, 2000, the trial court entered an order denying Brummel's motionto strike and dismiss the second amended complaint and to dissolve the temporaryrestraining order. A hearing on the motion for a preliminary injunction was setfor June 12, 2000. On May 19, 2000, Brummel filed a notice of interlocutoryappeal pursuant to Supreme Court Rule 307(a)(1) (166 Ill. 2d R. 307(a)(1)).

On May 23, 2000, plaintiffs filed in this court a motion to dismiss thisinterlocutory appeal. We have taken this motion with the case.

II. DISCUSSION

Temporary restraining orders are entered by the circuit court pursuant tostatutory authority in section 11--101 of the Code of Civil Procedure. 735 ILCS5/11--101 (West 1998). Because temporary restraining orders are issued exparte, section 11--101 provides that they remain in effect for a shortduration, but there are exceptions:

"Every temporary restraining order granted without notice *** shall expire by its terms within such time after the signing of the order, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period." (Emphasis added.) 735 ILCS 5/11--101 (West 1998).

A temporary restraining order is intended to remain in effect for a shortduration and then expire by its own terms, cease by law, or be superseded by apreliminary injunction. Harper v. Missouri Pacific R.R. Co., 264 Ill.App. 3d 238 (1994). In this case, however, the record clearly shows that Brummelconsented to the extension of the temporary restraining order originally enteredon February 15, 2000.

Therefore, the April 26, 2000, order was an order refusing to dissolve thetemporary restraining order. This is the order from which Brummel appeals.Brummel contends that this court has jurisdiction over the appeal pursuant toRule 307(a)(1). Plaintiffs argue that Brummel's appeal should be dismissedbecause an appeal from a ruling on a motion to dissolve a temporary restrainingorder must be brought pursuant to Supreme Court Rule 307(d) (166 Ill. 2d R.307(d)) and Brummel has not complied with the Rule 307(d) requirement of filinga notice of interlocutory appeal within two days of such order. We agree withplaintiffs.

Rule 307(a)(1) allows, inter alia, appeals from interlocutoryorders "(1) granting, modifying, refusing, dissolving, or refusing todissolve or modify an injunction." 166 Ill. 2d R. 307(a)(1). The appealpursuant to Rule 307(a)(1) must be perfected within 30 days from the entry ofthe interlocutory order. 166 Ill. 2d R. 307(a).

Rule 307(d) deals with appeals of temporary restraining orders and, as itexisted at the time of this appeal, specifically provided:

"[R]eview of the granting or denial of a temporary restraining order as authorized in paragraph (a) shall be by petition filed in the Appellate Court, but notice of interlocutory appeal as provided in paragraph (a) shall also be filed, within the same time for filing the petition. The petition shall be in writing, state the relief requested and the grounds for the relief requested, and shall be filed in the Appellate Court, with proof of personal service, within two days of the entry or denial of the temporary restraining order from which review is being sought." 166 Ill. 2d R. 307(d).

The First District, in Friedman v. Thorson, 303 Ill. App. 3d 131(1999), was faced with the same issue we are today, namely, whether ordersmodifying, dissolving, and refusing to modify or dissolve temporary restrainingorders are appealable under Rule 307(a)(1), with a 30-day limit for filing, orwhether they must be appealed under Rule 307(d), which has a two-day filinglimit. Friedman, 303 Ill. App. 3d at 136. The Friedman court heldthat "an interlocutory appeal from the trial court's ruling on a motion tomodify or dissolve a temporary restraining order must be brought pursuant toRule 307(d)." Friedman, 303 Ill. App. 3d at 136. Brummel argues thatthe reasoning in Friedman is in direct contravention of the expresslanguage of Rule 307, and he invites us to disregard Friedman. We believethe reasoning supporting the Friedman court's conclusion that Rule 307(d)governs all appeals from orders regarding temporary restraining orders is sound,and therefore we decline Brummel's invitation to disregard Friedman. Itis important to note that effective July 6, 2000, the supreme court has amendedRule 307(d) so that the rule now makes specific reference to the appeal fromorders modifying, dissolving, or refusing to modify or dissolve temporaryrestraining orders. See Official Reports Advance Sheet No. 16 (August 9, 2000),R. 307(d), eff. July 6, 2000. This amendment of Rule 307, although notapplicable to this appeal, indicates our supreme court's approval of thereasoning and holding in Friedman.

Accordingly, because the April 26, 2000, order appealed from was an orderrefusing to dissolve a temporary restraining order, Brummel was required to filehis notice of interlocutory appeal within two days of that order. Since Brummelfiled his notice of interlocutory appeal 23 days after the trial court's denialof his motion to dissolve the temporary restraining order, his appeal is nottimely.

III. CONCLUSION

For the foregoing reasons, we conclude that we do not have jurisdiction inthis matter. Accordingly, we grant plaintiffs' motion to dismiss the appeal.

Appeal dismissed.

BOWMAN and BYRNE, JJ., concur.