May 7, 2001

JUSTICE RAPP delivered the opinion of the court:

The State appeals from the order of the circuit court ofMcHenry County denying its request for a preliminary injunctionseeking to enjoin defendant, Yvonne Cryns, from engaging in thepractice of nursing and/or midwifery. We vacate and remand.

The record indicates that on April 7, 2000, the Department ofProfessional Regulation (the Department) issued a cease and desistorder, ordering Cryns to cease and desist the practice of nursingand midwifery, under the authority of the Nursing and AdvancedPractice Nursing Act (the Act) (225 ILCS 65/5--1 et seq. (West1998)). Cryns has sought administrative review of the Department's cease and desist order, which was pending in McHenry County at thetime the parties filed their brief in this case.

On October 3, 2000, the Department filed a verified complaintfor injunctive and other relief and a motion for the entry of atemporary restraining order to prohibit Cryns from violating thecease and desist order and to enjoin her from engaging in thepractice of midwifery and/or nursing. Cryns was served with copiesof these documents on October 4, 2000.

The Department's complaint for injunctive relief alleged thatCryns violated the cease and desist order and engaged in thepractice of nursing without a license when she attended the homebirth of Spencer Verzi on August 19, 2000. The complaint furtheralleged that Spencer died after being born in a breech position. It is undisputed that Cryns does not have a license to practicenursing in Illinois. The complaint sought, inter alia, apreliminary injunction against Cryns.

On October 5, 2000, the trial court granted the Department'smotion for a temporary restraining order. On October 13, 2000,Cryns filed a motion to vacate the temporary restraining order.

A hearing was held on the Department's request for apreliminary injunction on October 13, 2000. Louis Verzi testifiedconcerning Cryns's assistance in the home birth of his son, SpencerVerzi. The delivery was videotaped. The trial court admitted thevideotape into evidence but did not view the tape prior to makingits determination. The State also called Cryns to testify. However, Cryns invoked her fifth amendment (U.S. Const. amend. V)privilege against self-incrimination because of criminal chargespending against her as a result of Spencer Verzi's death.

The State rested its case, and Cryns moved for a directedfinding. The trial court denied the Department's request for apreliminary injunction, finding that the State had not met itsburden in presenting evidence to establish a violation of the Act. The trial court reasoned:

"I am not a doctor. I am not a nurse. I am not theDepartment of Professional Regulation. I do not know what itis that -- there is no evidence, there is no opinion thatwhatever occurred was the practice of nursing, the practice ofmidwifery, and I don't believe it is -- at this point thatthey have established that there was a violation of the ceaseand desist order for the purpose for this court to enter apreliminary injunction at this stage.

Whether they can establish that at another point, I don'tknow, but the evidence presented today is not sufficient to dothat ***."

The trial court then granted Cryns's motion for a directedfinding on the State's request for a preliminary injunction andalso granted Cryns's motion to dissolve the temporary restrainingorder, but stayed the order subject to an interlocutory appeal. The Department filed its notice of appeal on October 20, 2000.

Cryns argues that this court lacks jurisdiction over theDepartment's appeal of the dissolution of the temporary restrainingorder. We agree with Cryns that Supreme Court Rule 307(d)(Official Reports Advance Sheet No. 16 (August 9, 2000), R. 307(d),eff. July 6, 2000)) provides that a notice of appeal from thegranting or denial of a temporary restraining order must be filedwithin two days of the entry of the order. The Department did notappeal the trial court's dissolution of the temporary restrainingorder. Rather, the Department appeals from the denial of apreliminary injunction, which is controlled by Supreme Court Rule307(a) (Official Reports Advance Sheet No. 16 (August 9, 2000), R.307(a), eff. July 6, 2000)). Rule 307(a) provides that a notice ofappeal from the granting or denial of an injunction must be filedwithin 30 days from the entry of the order. Cryns incorrectlyasserts in her brief that the Department did not file its notice ofappeal until November 20, 2000, 35 days after the entry of theorder denying the injunction. The record is clear that the trialcourt denied the Department's request for a preliminary injunctionon October 13, 2000, and the Department filed its notice of appealone week later, on October 20, 2000. Therefore, the Departmenttimely appealed, and this court has jurisdiction over the appealpursuant to Supreme Court Rule 307(a).

On appeal, the Department argues that the trial court erred indenying its request for a preliminary injunction. In order toobtain a preliminary injunction, the plaintiff must establish by apreponderance of the evidence (1) that he possesses a right thatneeds protection, (2) that irreparable injury will occur if theinjunction is denied, (3) that no remedy at law exists, and (4)that there exists a probability of success on the merits of thecase. Chessick v. Sherman Hospital Ass'n, 190 Ill. App. 3d 889,894 (1989). In Chessick, this court explained:

"The purpose of a preliminary injunction is not to decide thecontroverted facts or merits of a case. A preliminaryinjunction is merely provisional in nature and concludes norights, its office being merely to preserve the status quountil a final hearing on the merits." Chessick, 190 Ill. App.3d at 894.

The trial court's decision to grant or deny a preliminaryinjunction will not be disturbed on review absent an abuse ofdiscretion. Grchan v. Illinois State Labor Relations Board, 291Ill. App. 3d 571, 573 (1997).

Both parties agree that the central issue in this case iswhether Cryns was engaged in the practice of nursing on August 19,2000. The Department argues that the videotape admitted intoevidence establishes that Cryns was practicing nursing when shehelped deliver Spencer Verzi. However, as pointed out by theDepartment, the trial court failed to view the videotape beforemaking its ruling.

It is well settled that, once evidence is admitted in a case,it is available for all purposes, and every party is entitled tothe benefit of all the evidence, whether produced by him or hisadversary. See Morris v. Central West Casualty Co., 351 Ill. 40,47 (1932); see also Dudanas v. Plate, 44 Ill. App. 3d 901, 909(1976). Just as a jury is instructed that, in determining whetherany proposition has been proved, it should "consider all of theevidence bearing on the question without regard to which partyproduced it" (see Illinois Pattern Jury Instructions, Civil, No.1.02 (3d ed 1995)), the trial court, as the finder of fact, is alsoobligated to "consider all of the evidence." We thereforedetermine that the trial court abused its discretion in ruling onthe Department's request for a preliminary injunction withoutviewing the videotape that it had admitted into evidence.

Accordingly, we vacate the trial court's order of October 13,2000, and remand this cause for the court to consider all of theevidence offered, including the videotape. In vacating the orderand remanding this cause, we do not mean to suggest that thevideotape provides sufficient proof entitling the Department toinjunctive relief; we simply hold that the trial court erred in notconsidering this evidence once it was admitted.

For the foregoing reasons, the order of the circuit court ofMcHenry County denying the Department's motion for a preliminaryinjunction is vacated, and the cause is remanded.

Order vacated; cause remanded.

MCLAREN and GROMETER, JJ., concur.