TRO Rule Needs a TKO

December 6, 2001 Published Work
Reprinted with permission of Connecticut Law Tribune, November 19, 2001

It is high time to reconsider the rule that temporary injunctions are not appealable in Connecticut. Consider the following story that a lawyer friend recently shared with me.

A managed care company terminated a physician and promptly sent letters to its members informing them that the company would no longer cover the physician's services. The physician went to court and sought an ex parte temporary restraining order blocking the termination and requiring the company to send a new letter out to all members informing them that the previous letter had been sent by mistake. In other words, the motion sought not only prohibitory injunctive relief, but mandatory relief as well. Even though there was no emergency requiring the motion to be considered on an ex parte basis – remember, the physician had already been terminated and the letters had already gone out – the court granted the motion, issued a show cause order, and set a hearing date for several weeks hence. The judge who granted the motion then left for vacation.

Upon receiving notice of the TRO, the company ran to the court, asked for the hearing date to be expedited, and requested that court stay at least the mandatory relief aspects of the TRO pending the hearing. A new judge, reluctant to question the judge who granted the ex parte motion and then went on vacation, declined both requests. That left the company in the precarious position of risking a contempt citation, or complying with a mandatory TRO that compelled it to engage in speech it believed was incorrect. It chose the latter. For cost reasons, it decided not to appeal and challenge the rule that temporary injunctions are not appealable.

When I heard this story, I cringed. Then I ran to the law books to bone up on the law concerning appeals from temporary injunctions. In particular, I wanted to see whether the general rule precluding appeals from temporary injunctions applied only to prohibitory injunctions, or to mandatory ones also. Somewhat to my surprise, I found that in Stamford v. Kovak, 228 Conn. 95 (1993), the court expressly held that the rule is nearly all encompassing. Said the court, "[w]e are unpersuaded that a temporary mandatory injunction differs in kind from any other temporary injunction. The merits of such an injunction are not appealable unless the mandatory action ordered by the trial court is not subsequently reversible if the trial court is found, upon appeal from the final judgment, to have exceeded its authority."

I wonder whether the court would have treated an appeal from an ex parte temporary mandatory injunction in the same way. It is one thing to deny a party an appeal from a temporary mandatory injunction when the trial court at least granted the party the courtesy of notice and an opportunity to be heard before issuing the injunction. It is another thing altogether to deny an appeal when the court granted the temporary injunction on an ex parte basis, thereby denying the party those most fundamental elements of due process.

The next time a case like the one described above presents itself, I hope that the defendant shows less reluctance than my friend's client to take an appeal. Someone needs to test Stamford v. Kovac. That someone should also keep in mind the case that immediately follows Kovac in volume 228 of Connecticut Reports – Goodson v. State. Invoking the "collateral order doctrine" of State v. Curcio, the court in Goodson permitted an appeal from an order temporarily reinstating a state employee to his job pending the outcome of an arbitration. Perhaps the court has not shut the door entirely on appeals from temporary injunctions. I sure hope not.

This article is republished with permission of