Lawsuit for Preliminary Injunction Must Show the Likelihood of Success on the Merits

A trial judge in the circuit Court of Cook County has denied a request for a preliminary injunction in the case of a business whose owners wanted to build a gas station alongside another gas station in Oak Forest.

Oak 159th Inc. owned a BP gas station at the corner of 159th and Central Avenue in Oak Forest, Illinois. Two sides of the gas stations were on 159th Street and Central Avenue. The other two were on the parking lot of a shopping center. The shopping center was owned and managed by Inland Real Estate.

One of the tenants of the shopping center, Food4Less, a supermarket, leased a portion of the parking lot. The supermarket received permission from Inland Real Estate and the City of Oak Forest to build a gas station on its portion of the parking lot, which was immediately east of the BP station.

The construction of the new gas station would have reduced access to the existing BP station. Food4Less also planned to add a new speed bump and change the traffic pattern around the BP station.

Oak 159th filed suit in the Circuit Court of Cook County to block the construction of the new gas station, arguing that the new station would interfere with an easement. The lawsuit sought an injunction against the construction of the gas station.

After a hearing, the trial judge denied a request by Oak 159th for a preliminary injunction. The judge found that the easement was undefined and was limited only to what was reasonably necessary for specified purposes. In this case, that meant access in and out from the common areas. The court held that the development of a new gas station could take place without Oak 159th’s consent so long as Oak 159th’s easement rights were not reasonably accommodated.

The turning point in this case was that the court found that Oak 159th did not show a reasonable likelihood of success on the merits, making the preliminary injunction inappropriate.

It has been established by the Illinois Supreme Court that a party seeking a preliminary injunction must establish: (1) a clearly ascertained right that needs protection; (2) an irreparable injury that will occur in the absence of the injunction; (3) no adequate remedy at law; and (4) a likelihood that he will succeed on the merits. Mohanty v. St. John Heart Clinic, S.C., 225 Ill.2d 52 (2007).

There are exceptions that are found in Illinois Appellate Court decisions on the requirement of the likelihood of success. But those cases dealt with facts where the movant sought to preserve the status quo when property may be destroyed. Those cases predate the Illinois Supreme Court’s decision in Mohanty.

This court held that a preliminary injunction always seeks to preserve the status quo. The court also said that the only possible exception to the Supreme Court’s rule on likelihood of success is when property destruction is equivalent to “irreparable injury.”
Therefore, the appellate court found that any exception to the likelihood of success requirement did not survive Mohanty and is no longer a valid proposition.

Oak 159th, Inc. v. Inland Real Estate LBI, LLC, et al., No. 2012 IL App. (1st) 112452-U.

Kreisman Law Offices has been handling Illinois business litigation and trial matters for companies, businesses, individuals and families for more than 36 years, in and around Chicago, Cook County and its surrounding areas, including, Chicago (Lincoln Park), Chicago (Hyde Park), Summit, Bedford Park, Bridgeview, Hickory Hills, Robbins, Riverdale, Calumet Park and Evergreen Park, Illinois.

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