Illinois Injunction Case - Part 2

In our prior post, we set forth the facts of Five Mile Capital Westin North Shore SPE, LLC v. Berkadia Commercial Mortgage, LLC, and other defendants, rendered by the Appellate Court of Illinois,First District, on December 24, 2012, and whether the quashing of a lis pendens could be appealed before the final judgment in the case under Supreme Court Rule 307.  The court ruled that it could not be interlocutorily appealed, and then considered the refusal of the lower court to grant the requested preliminary injunction preventing the sale of the foreclosed on property.  The second interesting issue presented by the appeal was the standard of review.

The parties complicated the matter.  The defendant apparently filed only a motion to dismiss the injunction counts or prayers of the complaint.  The lower court treated the arguments of the parties as a request by the plaintiff for a preliminary injunction, opposed by the defendant based on the court papers filed. Ah, but motions to dismiss are appealed under a de novo standard, whereas preliminary injunction decisions are appealed under the abuse of discretion standard of review.

The appellate court stated that the lower court's handling of the issues was proper, although "unusual," and noted in a footnote that neither party objected and that interlocutory review would have been impossible had the court treated the paperwork and the arguments as merely a motion to dismiss, the granting of which would not have been appealable until the end of the case.  In fact, the lower court (Judge Flynn) handled the case more efficiently than the parties had presented it.  In light of these circumstances, the abuse of discretion standard of review was applied on appeal.

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