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4. Is the appellate court likely to dismiss the appeal?
The lender appealed the court's order extending the TRO. The homeowner has moved to dismiss the appeal.
Two days before his home was to be sold at a foreclosure sale, a homeowner obtained a temporary restraining order (TRO) in federal court that prevented his lender from proceeding with the sale for 14 days or until a preliminary injunction hearing could take place, whichever was sooner. When a preliminary injunction hearing could not be scheduled within the original 14-day period, the court extended the TRO for another 30 days.
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In federal court, an appeal is only allowed after all the issues involved in the suit have been finally determined by the trial court. This means that the party that wishes to appeal must wait until all the issues have been finally determined by the court. An appeal that is taken when no final judgment has been entered is called an «interlocutory review.»
In federal litigation, 28 U.S.C. § 1292(a)(1) allows for an immediate appeal of a federal district court order granting, continuing, modifying, refusing, or dissolving injunctions, refusing to dissolve or modify injunctions. This provision makes it easy to take an interlocutory appeal from a decision granting or denying the injunction.
B is correct. A TRO is a short-term pre-trial temporary injunction to protect from an irreparable injury. These orders are intended to be stop-gap measures, and only last until the court holds a hearing on whether or not to grant a preliminary injunction. Judges' decisions on whether or not to issue a TRO, generally, may not be appealed. Here, the court extended the TRO for an additional 30 days, giving it the effect of a preliminary injunction. Therefore, it is appealable and the court is not likely to dismiss the appeal.
A is incorrect. Generally, a TRO is not appealable because it is meant to be a stop-gap measure, usually expiring in 14 days. However, if an extension gives a TRO the effect of a preliminary injunction, then it is appealable.
C is incorrect. Although a TRO is generally not appealable, in this case, the extension operates as a preliminary injunction, which is appealable.
D is incorrect. As explained above, the TRO functions as a preliminary injunction because of the extension given by the judge. Thus, in this specific fact pattern, the TRO can be appealed.