Chapter 2 Injunctions

• Library: Remedies 2006

*Mr. Mollenkamp received his B.A., 1989, from the University of Missouri-Columbia and J.D., 1992, from The University of Texas.

In part, this is a revision and updating of previous chapters written by Karl W. Blanchard, Karl W. Blanchard, Jr., and Theresa Kenney.

B. (§2.23) Preliminary Injunction

1. (§2.24) Notice

2. (§2.25) Duration

3. (§2.26) Hearing

4. (§2.27) Bond

5. (§2.28) Order

C. Permanent Injunction

1. (§2.29) Purpose and Procedure

2. (§2.30) Mandatory Injunctions

3. (§2.31) Order

4. (§2.32) Modification

VII. (§2.33) Appeal

VIII. (§2.34) Enforcement

I. (§2.1) Introduction and Scope

Any practitioner researching the remedy of injunction will quickly discover that it has a long history and a broad scope—much too long and too broad for any single chapter to cover the topic completely. This chapter does not attempt that impossible task; instead, it briefly discusses the topic in a way that should be helpful to a practitioner beginning to research an injunction case governed by Missouri state law by pointing the way to relevant and recent Missouri authority. Thus, this chapter contains:

• citations to relevant rules and statutes
• an outline of the procedural and jurisdictional requirements for injunctions
• a description of the injunction process; and
• a checklist for pleading

Federal cases and procedures are beyond the scope of this chapter.

II. (§2.2) Nature of Remedy

An injunction is an equitable remedy. See, e.g., Inman v. Mo. Dep’t of Corrections, 139 S.W.3d 180 (Mo. App. W.D. 2004). Courts describe it as “an extraordinary and harsh remedy.” Farm Bureau Town & Country Ins. Co. of Mo. v. Angoff, 909 S.W.2d 348, 354 (Mo. banc 1995); City of Kansas City v. N.Y.-Kan. Bldg. Assocs., L.P., 96 S.W.3d 846 (Mo. App. W.D. 2002); McDonald v. City of Brentwood, 66 S.W.3d 46 (Mo. App. E.D. 2001); Tichenor v. Vore, 953 S.W.2d 171 (Mo. App. S.D. 1997). Injunctive relief is not a matter of right but of judicial discretion. An injunction should not issue against great public interest. In re J.H. Fichman Co. v. City of Kansas City, 800 S.W.2d 24, 28 (Mo. App. W.D. 1990).

An injunction should issue only when necessary to protect against substantial interference with a right and not over “trivial matters where the injury is small or technical.” RFS, Inc. v. Cohen, 772 S.W.2d 713, 718 (Mo. App. E.D. 1989). Similarly, equitable relief is not normally proper “where the injunction will work little benefit to plaintiff and cause great hardship to defendant.” Newmark v. Vogelgesang, 915 S.W.2d 337, 339 (Mo. App. E.D. 1996).

The remedy of injunction is inherently compensatory and not punitive. Harris v. Union Elec. Co., 766 S.W.2d 80, 88 (Mo. banc 1989). Injunctive relief is to prevent future wrongdoing and not to remedy past wrongs. Metts v. City of Pine Lawn, 84 S.W.3d 106, 108 (Mo. App. E.D. 2002); Cissell v. Brostron, 395 S.W.2d 322 (Mo. App. E.D. 1965). Molding of an appropriate injunction is within the trial court’s discretion. “However, while the decree should grant the relief to which the parties are entitled, it should be narrowly framed and should not interfere with any legitimate or proper activities.” Schluemer v. Elrod, 916 S.W.2d 371, 379 (Mo. App. S.D. 1996).

III. (§2.3) Source of Remedy

Modern practitioners considering injunctions should consider statutes and rules together. See Chapter 526, RSMo; Rule 92. Further, a large number of specific statutes grant rights to seek injunctive relief on particular subjects, but those specific statutes are beyond the scope of this chapter other than to be mentioned generally here.

To the extent there is any conflict between a statute and a rule, “the rule always prevails if it addresses practice, procedure or pleadings.” State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. banc 1995). This is so because Article V, § 5, of the Missouri Constitution grants the Supreme Court power to “establish rules relating to practice, procedure and pleading for all courts and administrative tribunals . . . .” Mo. Const. art. V, § 5.

IV. (§2.4) Preliminary Matters

For the most part, cases in which a party seeks injunctive relief are governed by the same rules of jurisdiction, pleading, procedure, and limitation as any other civil case. Each area is discussed briefly below.

A. (§2.5) Standing and Joinder

“The question of standing is a threshold issue” that must be determined as a matter of law. Executive Bd. of Mo. Baptist Convention v. Carnahan, 170 S.W.3d 437, 445 (Mo. App. W.D. 2005). “Standing relates to the jurisdiction of the court, and to have standing a plaintiff must show she has ‘some actual and justiciable interest susceptible of protection’ by her suit.” Dodson v. City of Wentzville, 133 S.W.3d 528, 533 (Mo. App. E.D. 2004) (quoting Schlarman v. City of St. Charles, 623 S.W.2d 57 (Mo. App. E.D. 1981)). Courts determining standing treat “properly pleaded facts as true, give [plaintiff’s] allegations a liberal construction, and make reasonable inferences fairly deductible from the facts stated.” Id. at 534. A party must have an interest in the subject matter that would permit recovery, if validated, and needs to show a personal stake in the action arising from a threatened or actual injury. Inman v. Mo. Dep’t of Corrections, 139 S.W.3d 180 (Mo. App. W.D. 2004).

For example, a city providing electrical service to customers had standing to appeal the issuance of an injunction even though the customers did not appeal. Union Elec. Co. v. City of Jackson, 791 S.W.2d 890, 891 (Mo. App. E.D. 1990). Likewise, a person whose father was interred in a cemetery and who owned other plots there had standing to seek injunctive relief against the cemetery association. Burnside v. Gilliam Cemetery Ass’n of Gilliam, 96 S.W.3d 155, 159 (Mo. App. W.D. 2003). On the other hand, minor children do not have standing to seek injunctive relief prohibiting a defendant from garnishing their father’s wages. The common-law duty of a father to support children does not give rise to a sufficient legally protected pecuniary or personal interest so as to grant standing. Phillips v. Mo. Dep’t of Soc. Servs. Child Support Enforcement Div., 723 S.W.2d 2, 4 (Mo. banc 1987). Further, a plaintiff does not have standing to sue for injunctive relief to prevent revocation of a permit when the plaintiff did not possess the license to begin with. Cheatham v. Walsh, 669 S.W.2d 587 (Mo. App. E.D. 1984). Nor do plaintiffs have standing to sue when they seek to prohibit the sale of a city park and

show “no special injury related to the challenged action . . . .” Ours v. City of Rolla, 965 S.W.2d 343, 345 (Mo. App. S.D. 1998).

All of the parties necessary to the resolution of the case must be joined for the court to proceed. Rocky Ridge Ranch Prop. Owners Ass’n v. Areaco Inv. Co., 993 S.W.2d 553, 557 (Mo. App. E.D. 1999).

B. (§2.6) Ripeness and Mootness

Suits for injunction, like other suits, must be ripe and may not be moot.

Although plaintiffs have standing, they must still establish that the case is ripe, which means, in general, that “the parties’ dispute is developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing and to grant specific relief of a conclusive character.”

Brooks v. State, 128 S.W.3d 844, 849 (Mo. banc 2004) (quoting Mo. Health Care Ass’n v. Attorney Gen. of State of Mo., 953 S.W.2d 617, 621 (Mo. banc 1997)); see also Dodson v. City of Wentzville, 133 S.W.3d 528 (Mo. App. E.D. 2004).

Courts cannot consider claims after facts have changed, making the decision unnecessary or granting relief impossible. Such issues are moot and should not be addressed. Inman v. Mo. Dep’t of Corrections, 139 S.W.3d 180 (Mo. App. W.D. 2004) (transfer to a different facility moots claims about conditions of confinement); In re Cooper v. Gammon, 943 S.W.2d 699 (Mo. App. W.D. 1997) (same). Likewise, when the subject matter of the suit expires or is withdrawn, the case is moot. Mo. Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34 (Mo. App. W.D. 2002) (contract expired before appeal); Gray v. Humphries, 960 S.W.2d 553 (Mo. App. E.D. 1998) (school withdrew expulsion); Verity v. First City Drink, Inc., 800 S.W.2d 796 (Mo. App. E.D. 1990) (lease expired). But if the action does not eliminate all need for relief, the case is not moot. R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744, 746 (Mo. banc 2004) (repeal of challenged ordinance did not moot case because plaintiff still might be entitled to relief under Sunshine Law); Rosenfeld v. Thoele, 28 S.W.3d 446 (Mo. App. E.D. 2000) (removal of wall did not moot case because plaintiff also sought removal of debris and backfill).

C. Proper Subject Matter

1. (§2.7) Criminal Matters

Older cases recite the rule that, generally, a court of equity has no jurisdiction to enjoin a crime because to do so would be redundant of the criminal penalties already in place and might deprive the person of any procedural protections inherent in a criminal prosecution. See, e.g., Mo. Veterinary Med. Ass’n v. Glisan, 230 S.W.2d 169 (Mo. App. E.D. 1950). But the rule had exceptions; “the acts can be restrained by injunction if they are prejudicial to the public health and welfare, and thereby constituted public nuisances.” State ex rel. Allai v. Thatch, 234 S.W.2d 1, 7 (Mo. banc 1950).

Similarly, Missouri cases recognize a reluctance to enjoin enforcement of a criminal statute. Because the court has no jurisdiction to enjoin criminal statutes except when the criminal law in question is unconstitutional or otherwise invalid and attempted enforcement would directly invade a property right causing irreparable harm, a request for injunctive...