The Steps Necessary to Obtain a Temporary Restraining Order
Obtaining a Temporary Restraining Order takes several steps. The process is detailed and cannot be entered into without a great deal of planning, and you will need to work closely with your lawyer to gather the evidence required to convince a court to issue one.
Step One: Filing the Application
First, you make an application to the court for the issuance of a TRO. Usually our aim is to convince a judge to grant the TRO without telling the other side first, which lawyers call an ex parte application.
A temporary restraining order may be granted without notice to the defendant if it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing held.
See our Ex Parte TROs page for a full discussion of when this emergency procedure is available and what it requires.
Step Two: The Affidavit
The affidavit is the most important document in any TRO application. It is what the judge actually reads when deciding whether to sign an emergency order. Two rules here are absolute.
It Must Rest on Personal Knowledge
The affidavit must be based on specific facts and may not be made on the basis of information and belief. The person signing it must actually, personally know the facts of the case. If the person with the most direct knowledge of the events is a company employee rather than the owner, that employee should be the one to sign.
It Must State Specific Facts
Saying “the defendant will cause irreparable harm” is a conclusion, not a fact. The affidavit must describe the specific conduct, when it is happening or about to happen, exactly what harm it will cause, and precisely why money cannot fix it. Judges have seen every variety of conclusory affidavit, and they deny them.
Step Three: The Bond
If the court is going to grant a TRO, the plaintiff has to post a bond before the order takes effect. The bond requirement is mandatory, and a temporary restraining order issued without a bond is void. It has no legal force, even if a judge signed it.
The judge sets the bond amount in the TRO order itself. The applicant has to file the bond with the court clerk before the writ of injunction is issued, and before the TRO is served.
The Homestead Exception
The bond requirement does not apply to certain indigent applicants seeking to stop the adverse party from foreclosing on their residential homestead, as long as an affidavit of inability to pay that conforms to the statutory requirements is filed.
For a full explanation of how the bond works and what happens if the TRO is dissolved, see our Bond Requirement page.
What the TRO Order Must Contain
Any TRO granted without notice must meet specific formal requirements. It must be endorsed with the date and hour of issuance, filed immediately in the clerk’s office and entered of record, and it must define the injury, state why it is irreparable, and state why the order was granted without notice.
The Specificity Requirement
Every TRO and every injunction order must describe, in specific and concrete terms, the act or acts sought to be restrained. It cannot refer back to the petition or to any other document. If the order fails to specifically describe the prohibited conduct, it is legally defective and unenforceable, and a person cannot be held in contempt for violating a void order.
Here is a defective order: “Defendant is restrained from harming Plaintiff as set forth in the petition.” That one is unenforceable, because it incorporates the petition by reference.
And here is a valid one: “Defendant John Smith is restrained from contacting any customer listed on Exhibit A, from disclosing the pricing data contained in Plaintiff’s internal database, and from soliciting any employee of Plaintiff for employment elsewhere.”
Who Is Bound by the Order
The order is binding not only on the named defendant but also on their officers, agents, servants, employees, attorneys, and all persons acting in active concert or participation with them who receive actual notice of the order. Having an associate or employee do the prohibited act is still a violation.
The 14-Day Limit and How It Is Calculated
The court must state in the order the time, not to exceed 14 days after signing, by which the order will expire. These are calendar days, not business days.
The 14 days expire at the end of the 14th day, at midnight, not at the exact time of day the order was signed. A temporary restraining order granted on January 30 at 2:30 p.m. expired on February 13 at midnight, exactly 14 calendar days after it was granted. When the court extended the deadline on the 14th day but after 2:30 p.m., the extension fell within the 14-day period and was effective.
Extensions: One, in Writing
The court may extend the TRO for an additional 14 days for good cause shown. The reasons for the extension must be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed.
Any extension must be made in writing. An oral extension of a temporary restraining order is not effective. The restrained party must have notice of the actual written extension before they can be charged with contempt for violating it.
After the TRO Is Served
The Temporary Injunction Hearing Is Set Immediately
If a temporary restraining order is granted, the application for temporary injunction must be set for hearing at the earliest possible date and takes precedence over all matters except older matters of the same character. The applicant must pursue the hearing. If the applicant does not proceed, the court must dissolve the temporary restraining order.
The Restrained Party May Move to Dissolve
On two days’ notice to the party who obtained the TRO, or on shorter notice if the court prescribes, the restrained party may appear and move for dissolution or modification of the order. The trial court must hear and determine that motion as expeditiously as the ends of justice require.
This is a real procedural right. See our Defending Against a TRO page for a full discussion of dissolution grounds and strategy.
Contempt for Violation
Violating a TRO, or having someone else violate it on your behalf, is contempt of court. The court may issue an arrest warrant and commit the violating party to jail without bail until the contempt is purged, and contempt proceedings can be initiated at any time. See our Contempt of Court page.
Frequently Asked Questions About Issuing TROs
Can the TRO be issued the same day I file suit?
Yes. In a genuine emergency with strong supporting facts, the petition and TRO application can be presented to the judge the same day they are filed. The bond must be posted before the order is served.
What if the bond amount set by the judge seems too low?
The bond amount is set by the judge but is subject to appellate review. If you are the restrained party and believe the bond is far too low to cover your potential damages from being wrongly restrained, your attorney can raise this with the court.
Can someone violate the TRO before they are formally served?
The TRO is binding from the moment of actual notice, which can occur before formal service if the party learns of the order by other means. Contempt proceedings can be based on actual notice even before the formal writ is delivered.
What if the order is vague about what I am prohibited from doing?
An injunction order that does not specifically describe the restrained conduct, as required, is void and unenforceable. You cannot be held in contempt for violating a void order. If you have received a TRO that you believe is improperly vague, raise this with your attorney immediately and raise it as a defense in any contempt proceeding.