1

NOTICE

Decision filed 12/16/09. The text of

this dec ision m ay be changed or

corrected prior to the filing of a

Petition for Re hea ring o r the

disposition of the same.

NO. 5-09-0447

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

CARTER KALBFLEISCH, by and ) Appeal from the 

Through His Next Friends, ) Circuit Court of

CHRISTOPHER KALBFLEISCH and ) Monroe County.

MELISSA KALBFLEISCH, )

)

 Plaintiff-Appellee, ) 

)

v. ) No. 09-CH-57

)

COLUMBIA COMMUNITY UNIT SCHOOL ) 

DISTRICT UNIT NO. 4, ) Honorable

) Dennis B. Doyle, 

 Defendant-Appellant. ) Judge, presiding.

________________________________________________________________________

JUSTICE WEXSTTEN delivered the opinion of the court:

This is an interlocutory appeal taken pursuant to Supreme Court Rule 307(a)(1) (188

Ill. 2d R. 307(a)(1)). At issue in this case is whether the Monroe County circuit court

properly ordered a preliminary injunction to compel the defendant-appellant, Columbia

Community Unit School District Unit No. 4 (the school district), to permit the plaintiffappellee, Carter Kalbfleisch, a five-year-old child with autism, to bring his service dog with

him to school pursuant to section 14-6.02 of the School Code (105 ILCS 5/14-6.02 (West

2008)). 

BACKGROUND

On July 17, 2009, Carter, by his next friends, Christopher Kalbfleisch and Melissa

Kalbfleisch, filed a verified complaint for injunctive relief and a verified motion for a

preliminary injunction, claiming that he had a right under section 14-6.02 of the School Code

(the service animal statute) to bring his service dog with him to Parkview Elementary School
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(the school). That section provides as follows: 

"Service animals such as guide dogs, signal dogs[,] or any other animal

individually trained to perform tasks for the benefit of a student with a disability shall

be permitted to accompany that student at all school functions, whether in or outside

the classroom." 105 ILCS 5/14-6.02 (West 2008).

On July 21, 2009, the school district filed a notice of removal, alleging that the case

arose under federal law, and the case was removed to the United States District Court for the

Southern District of Illinois (the district court). Carter filed a motion to remand, and on

August 5, 2009, the district court granted the motion and remanded the case to the circuit

court after finding that Carter's claim did not arise under and was not preempted by federal

law. Kalbfleisch v. Columbia Community Unit School District Unit No. 4, 644 F. Supp. 2d

1084 (S.D. Ill. 2009).

On August 13, 2009, the school district filed a motion to dismiss the verified

complaint for injunctive relief and the motion for a preliminary injunction, contending that

because Carter failed to exhaust his administrative remedies, the circuit court lacked

jurisdiction over the subject matter in the complaint and the motion for a preliminary

injunction. On August 19, 2009, the circuit court held a hearing on the school district's

motion to dismiss. The court denied the motion and gave the school district leave to file its

answer that day. After a brief recess, the school district filed its answer. 

The next day, the court held a hearing on Carter's motion for a preliminary injunction,

where the following evidence was presented.

Carter's mother, the only witness to testify on Carter's behalf, stated that Carter was

diagnosed with medium-to-severe autism at 18 months of age. She described Carter's

behavior prior to having his service dog as follows: Carter was prone to having tantrums on

a daily basis; he suffered from an eating disorder called pica, a pattern of eating nonfood
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materials; he would refuse to walk when he was taken to public places; he sporadically would

take off running; he could not fall asleep on his own and, once asleep, woke up

approximately every hour; he did not communicate with anyone; and he was unable to focus.

She said Carter's tantrums involved kicking, screaming, and biting, often occurred at

dinner and would last approximately one hour, and also occurred in the morning at least three

times per week and would last approximately two hours. She testified that because of

Carter's eating disorder he had tried to eat such items as rocks, mulch, grass, trash, cleaning

supplies, batteries, and coins and had drunk from the toilet. She indicated that when the

family would take Carter to public places, such as parks, stores, and restaurants, Carter would

throw himself down on the ground and refuse to walk. As a result, Carter's family was

unable to take him to public places, and the family was homebound. 

 She said that Carter had a tendency to sporadically take off running, sometimes into

a pond near their house or into a nearby road with traffic, that Carter would not fall asleep

on his own and would wake up about every hour, and that because of this, she had to sleep

in his bed with him for the previous two years. She said that if she did leave his room after

he had fallen asleep, she would lock his bedroom door to give her more time to respond if

Carter woke up and tried to leave the room. On one occasion, however, she was not able to

respond quickly enough, and Carter was able to get out of the home and into the pond in the

middle of winter.

She testified that Carter did not communicate with other students on his own and that

he did not speak any meaningful words but would mumble different sounds. She described

getting Carter to focus as almost impossible. She stated he would distract himself by selfstimulation, or stimming, with his hands or other objects, and would stare off into the

distance when people tried to communicate with him.

She stated that when Carter was around three years old, his doctor suggested that
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Carter obtain a service dog. After Carter's mother researched the issue and exhausted all

other possibilities, Carter's family decided to apply for a service dog with Wilderwood

Service Dogs (Wilderwood), a company that provided service dogs trained to aid patients

with neurological disorders. Carter's application was extensive, and once approved, he was

placed on a two-year waiting list for a service dog. Carter has a prescription for a service dog

from two different doctors.

She testified that after Carter's application had been accepted, Carter's family sent in

a video of Carter and a sample of his worn clothing. She indicated that these articles were

used to train Carter's service dog, Corbin, to become acquainted with Carter's appearance,

voice, and smell. It was Carter's mother's understanding that Corbin would sleep with

Carter's clothing and would watch the video of Carter repeatedly. She stated that Corbin was

trained to understand 70 commands and was specifically trained for Carter's pica, impulse

running, night awakenings, and tantrums. She stated that Corbin is a Bouvier breed, which

is considered to be a hypoallergenic dog. Carter's mother understood this to mean that people

who are allergic to dogs with fur would not be allergic to hypoallergenic dogs because they

have hair rather than fur.

On July 16, 2009, after approximately two years of being on a waiting list, Carter

received Corbin. Wilderwood brought Corbin to Carter's area so that Carter's mother and

father and anyone from the school could be trained to handle him. The training lasted eight

days, totaling approximately 80 hours, and Carter's mother and father attended the entire

training. Carter's aide at school also attended the training for two hours. 

After the training, Carter's mother and father took an examination and passed. They

are currently awaiting their certificates from the State of Illinois for completing the training

and passing the examination. As a result of the training, Carter's mother and father are

certified dog handlers. According to Carter's mother, this means she is qualified to train
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other people in their own comfortable environment. For example, she could train her mother

to handle Corbin in her mother's home but not anywhere else. She said that as of the time

of her testimony no one at the school was trained to handle Corbin but that she was able and

willing to train the staff to do so and was willing to remain with Carter and Corbin at school

if needed. 

She testified that after having Corbin for a month or so, Carter was a much happier

child; that his tantrums have minimized to a couple per week and his recovery time has been

reduced to minutes, compared to the half hour to hour it used to take to reconcile the

situation; that Corbin will physically take Carter down if he takes off running into a

dangerous situation, like into traffic, and as a result, Carter does not try running for the road

anymore; that by the third night of training, Carter was able to sleep without his mother in

the room because Corbin would calm him when he woke up; that Corbin draws Carter out

of his stimming by batting him with his nose, which allows Carter to focus more; that the

family was able to take Carter to Six Flags without incident and on a weekend vacation to

Mark Twain Lake; and that on the second-to-last day of training, Carter, for the first time in

his life, used meaningful words when he told Corbin to "wait" and "hold." 

She also testified that when Carter's grandfather was hospitalized, Carter and Corbin

were separated for a few days for about eight hours a day. She said that this disrupted their

working relationship because Corbin was not responding to his commands and that Carter

went back to having more tantrums. She stated that after a few days of coaching, their

relationship was back to normal. She testified that, in her opinion, separating Carter and

Corbin would greatly harm their working relationship and that if they are separated, Corbin

would become a pet, as opposed to a service animal, and Carter would suffer. She stated that

Carter and Corbin share a working relationship and a very strong bond and that in order to

maintain that bond and relationship, Corbin needs to be with Carter every day as a part of his
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daily routines. 

She stated that she notified Carter's special education coordinator that Carter was

going to obtain a service dog. She did so the first time after Carter's application for a service

dog had been approved. She said that at that time she asked what she needed to do to prepare

the school for the dog's arrival and was told that when the start of school was closer, the

school would look into any issues that might arise. She testified that she subsequently spoke

with the special education coordinator on several other occasions about Carter's service dog.

On March 11, 2009, Carter's annual individualized education plan (IEP) meeting was

held. At the conclusion of the IEP meeting, Carter's attorney asked whether the school would

allow a dog at the school, and the attorney was informed that the school's superintendent

handled those types of policy considerations. Carter's mother stated that she was informed

at this meeting that Carter would not be allowed to bring his service dog to school but that

she was unable to get the school to give her this message in writing. She indicated that she

tried on several other occasions to get something in writing indicating that Carter would not

be able to bring his service dog to school but that her efforts failed until June 2009. She said

she had filed complaints against the school district with the Illinois Department of Human

Rights, the United States Department of Education, and the Illinois State Board of Education.

The school district presented several witnesses: the director of special education for

the school district, Carter's case manager, the mother of another child enrolled to attend

Carter's school, the principal of Carter's school, and the superintendent of Carter's school. 

Carter's case manager testified that Carter's mother told her during the summer of

2008 that Carter was applying for a service dog, that she believed having a dog in school

would be disruptive, and that Carter had an individual aide at school to ensure that Carter's

needs were met. Carter's principal testified that the school had a policy of allowing no

animals at school and that on the last day Carter attended his school, he did not have a dog
7

with him. 

The mother of another child enrolled to attend the morning session of preschool at the

school testified that her child has a rare lung disease, that her child is highly allergic to dogs,

that the school district promised her at her child's IEP meeting on August 18, 2009, that her

child would not be exposed to any animals, and that if there was a dog in her child's

classroom, her child would not go to school. The school district's superintendent testified

that in June he denied Carter's request to bring his service dog to school. 

After hearing all the evidence, the court issued a preliminary injunction but deferred

its entry until the following Monday, August 24, 2009, when a hearing on how to implement

Carter's service dog at school would be held, because issuing it that day would be too much

of a hardship on the school district. The following Monday, the school district filed a motion

to stay, requesting the court to stay its order granting the motion for a preliminary injunction,

pending the resolution of its appeal. The court denied the school district's motion and entered

the order for a preliminary injunction enjoining the school district from preventing Carter

from attending school while being accompanied by his service dog under the service animal

statute. The court made the order effective September 14, 2009. On the same day, the school

district filed its notice of appeal pursuant to Supreme Court Rule 307(a)(1). 

On August 25, 2009, the school district filed a motion to stay the preliminary

injunction pending the appeal with this court. We denied that motion on September 1, 2009.

On October 26, 2009, Carter filed a motion to strike portions of the school district's reply

brief. On November 9, 2009, we issued an order taking the motion to strike with the case.

We now grant that motion, and we have not considered those portions of the school district's

reply brief in reaching our decision. Pursuant to Supreme Court Rule 345 (210 Ill. 2d R.

345), the Illinois Attorney General's office filed a brief amicus curiae on Carter's behalf.
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ANALYSIS

The school district raises three points on appeal. First, the school district contends

that because Carter failed to exhaust his administrative remedies prior to bringing suit, the

circuit court lacked jurisdiction to enter a preliminary injunction. Second, the school district

avers that Carter failed to meet the requirements necessary to obtain a preliminary injunction.

And finally, the school district argues that the circuit court failed to maintain the parties'

status quo and properly consider the public interest in balancing the equities between the

parties.

On appeal from an order granting or denying a preliminary injunction, " 'we examine

only whether the party seeking the injunction has demonstrated a prima facie case that there

is a fair question concerning the existence of the claimed rights.' " Mohanty v. St. John Heart

Clinic, S.C., 225 Ill. 2d 52, 62 (2006) (quoting People ex rel. Klaeren v. Village of Lisle, 202

Ill. 2d 164, 177 (2002)). Generally, we review this decision for an abuse of discretion

(Mohanty, 225 Ill. 2d at 63), but where "the trial court's determination regarding the grant of

a preliminary injunction involves the interpretation of statutory law, the appropriate standard

of review is de novo." Caro v. Blagojevich, 385 Ill. App. 3d 704, 709 (2008), appeal

allowed, 231 Ill. 2d 629 (2009). Thus, we review the trial court's interpretation of the service

animal statute de novo but review its findings of fact for an abuse of discretion. 

The purpose of a preliminary injunction is not to determine controverted rights or

decide the merits of a case, but rather, its function is to preserve the rights of the parties or

the state of affairs legally existing just prior to the motion for a preliminary injunction until

the case can be decided on the merits. Harper v. Missouri Pacific R.R. Co., 264 Ill. App. 3d

238, 249 (1994); Arends v. Naughton, 11 Ill. App. 2d 227, 236 (1956); but see Heerey v.

Berke, 179 Ill. App. 3d 927, 941 (1989) ("The purpose of injunctive relief is to either relieve

the plaintiff of severe and irreparable injury or to [sic] preserve the status quo ***"
9

(emphasis added)). Granting a preliminary injunction is used to prevent a threatened wrong

or continuing injury and preserve the status quo with the least injury to the parties concerned.

In re Marriage of Jawad, 326 Ill. App. 3d 141, 154 (2001); Limestone Development Corp.

v. Village of Lemont, 284 Ill. App. 3d 848, 853 (1996).

 The party seeking a preliminary injunction is required to establish four factors before

an injunction will be granted: (1) a clearly ascertained right in need of protection, (2) an

irreparable injury in the absence of an injunction, (3) an inadequate remedy at law, and (4)

a likelihood of success on the merits. Mohanty, 225 Ill. 2d at 62.

I. Exhaustion of Administrative Remedies

The school district's first contention is that the circuit court lacked jurisdiction to issue

a preliminary injunction because Carter failed to exhaust his administrative remedies. We

find it unnecessary to determine whether Carter failed to exhaust his administrative remedies

because the circuit court found that Carter would be subjected to irreparable harm and that

any other process would be inadequate due to time constraints. See Morr-Fitz, Inc. v.

Blagojevich, 231 Ill. 2d 474, 499 (2008) ("[E]xhaustion is not required if the administrative

remedy is inadequate or futile or in instances where the litigant will be subjected to

irreparable injury due to lengthy administrative procedures that fail to provide interim

relief"). As explained more fully below, we find that the circuit court did not abuse its

discretion in finding that Carter would suffer irreparable harm by proceeding through an

administrative process. Thus, the circuit court did not abuse its discretion in issuing the

preliminary injunction. Still, even if Carter's claim was pending in an administrative process,

we find under that under the circumstances of this case, the circuit court still would have had

jurisdiction to enter a preliminary injunction pending the completion of the administrative

process. See Kurtzworth v. Illinois Racing Board, 92 Ill. App. 3d 564, 584 (1981) ("[W]hen

the proper circumstances are presented it, a court exercising traditional and inherent chancery
10

powers may intervene in the administrative process by furnishing the provisional relief of a

preliminary injunction *** pending the completion of the administrative hearing processes

***"); Bartelstein v. Goodman, 340 Ill. App. 51, 54 (1950) (" 'If the remedy in equity is more

adequate because of some special circumstance of the situation, the jurisdiction of equity will

be sustained' " (quoting Cordell v. Solomon, 234 Ill. App. 430, 439 (1924))). 

In any event, we find it questionable whether the school district has even preserved

this issue for our review. The denial of a motion to dismiss by itself is not a final and

appealable order but, rather, is an interlocutory order not appealable under any of the

exceptions set forth in Rule 307. In re Petition of Filippelli, 207 Ill. App. 3d 813, 817-18

(1990); Rosinia v. Gusmano, 90 Ill. App. 3d 882, 886-87 (1980). "Rule 307 allows only the

review of the order from which a party takes an appeal, and such an appeal does not open the

door to a general review of all orders entered by the trial court up to the date of the order that

is appealed." In re Petition of Filippelli, 207 Ill. App. 3d at 818; but see Sarah Bush Lincoln

Health Center v. Berlin, 268 Ill. App. 3d 184, 187 (1994) (holding that "the proper scope of

the review under Rule 307 is to review any prior error that bears directly upon the question

of whether the order on appeal was proper"). Here, the denial of the school district's motion

to dismiss raising the exhaustion-of-administrative-remedies argument was an interlocutory

order not generally appealable, and no right of appeal was granted pursuant to Supreme Court

Rule 308 (155 Ill. 2d R. 308). Rather, the school district appealed the circuit court's order

granting the preliminary injunction pursuant to Supreme Court Rule 307(a)(1), which

provides for an interlocutory appeal as of right when an injunction is granted. The school

district did not raise the exhaustion-of-administrative-remedies argument at the hearing on

the motion for a preliminary injunction, it was not considered by the circuit court at that

hearing, and taking this appeal did not open the door to a review of the ruling on the motion

to dismiss. 
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II. Preliminary Injunction Requirements

Next, the school district contends that Carter failed to establish two of the four

elements necessary for a preliminary injunction, i.e., that Carter failed to establish a

likelihood of success on the merits and that he would suffer irreparable harm. 

A. Likelihood of Success

The school district contends that Carter did not establish that he had a likelihood of

success on the merits of his underlying complaint. It contends that Carter failed to establish

that Corbin was a service dog and that we should construe the service animal statute as

requiring an educational benefit. We disagree.

To establish a likelihood of success, Carter need only raise a fair question regarding

the existence of a claimed right and a fair question that he will be entitled to the relief prayed

for if the proof sustains the allegations. See Fischer v. Brombolich, 207 Ill. App. 3d 1053,

1066 (1991). Here, the school district does not contest that Carter has a clearly ascertained

right in need of protection under the service animal statute. As provided above, that statute

provides as follows:

"Service animals such as guide dogs, signal dogs[,] or any other animal

individually trained to perform tasks for the benefit of a student with a disability shall

be permitted to accompany that student at all school functions, whether in or outside

the classroom." 105 ILCS 5/14-6.02 (West 2008).

It is undisputed that Carter is a student with a disability. The school district argues,

however, that Carter did not establish that Corbin was a service animal. We note that Carter

was not required to establish that Corbin was a service animal, but rather, he only had to raise

a fair question regarding the existence of his claimed right. Without deciding the merit of

Carter's claim, we have reviewed the service animal statute de novo and have determined that

Carter has raised a fair question about the existence of his right under the service animal
12

statute.

When we interpret a statute, the fundamental rule of statutory construction is to

ascertain and give effect to the legislature's intent. Rosewood Care Center, Inc. v.

Caterpillar, Inc., 226 Ill. 2d 559, 567 (2007). In that process, the language of the statute is

the best indicator of legislative intent, and we give that language its plain and ordinary

meaning. Caterpillar, Inc., 226 Ill. 2d at 567. "We may not depart from the plain language

of the statute by reading into it exceptions, limitations, or conditions that conflict with the

express legislative intent." Caterpillar, Inc., 226 Ill. 2d at 567. 

Carter's mother testified that a video of Carter and a sample of his clothing were sent

to Wilderwood to familiarize Corbin with Carter's appearance and smell, that Corbin was

trained to understand 70 commands, and that Corbin was trained for Carter's pica, impulse

running, night awakenings, and tantrums. She also testified that Carter has benefited from

having Corbin by having reduced tantrums and now needs less time to recover from his

tantrums, that Corbin is trained to physically take Carter down if he takes off running into

a dangerous situation, that Corbin had reduced Carter's night awakenings, and that Corbin

draws Carter out of his stimming. This testimony was sufficient to raise a fair question

regarding whether Corbin was a "guide dog[], signal dog[][,] or any other animal individually

trained to perform tasks for the benefit" of Carter (105 ILCS 5/14-6.02 (West 2008)). 

As to the school district's argument that we should construe the service animal statute

as requiring an educational benefit, we find no such requirement under a plain reading of the

statute. The service animal statute requires that the service animal be "individually trained

to perform tasks for the benefit of a student with a disability." (Emphasis added.) 105 ILCS

5/14-6.02 (West 2008). The language of the statute does not include the term "educational

benefit," and we " 'should not attempt to read a statute other than in the manner in which it

was written' " (Caterpillar, Inc., 226 Ill. 2d at 567 (quoting Ultsch v. Illinois Municipal
13

Retirement Fund, 226 Ill. 2d 169, 190 (2007))). Nonetheless, Carter's mother testified that

Corbin draws Carter out of his stimming, which allows him to focus more on completing his

tasks and certainly would be an educational benefit. Reduced tantrums and a faster recovery

time would also provide Carter an educational benefit. Thus, we find that the circuit court

did not err in finding a likelihood of success on the merits of Carter's claim.

B. Irreparable Injury

The school district contends that Carter did not establish that he would suffer a valid

irreparable harm if a preliminary injunction were not granted. It argues that Carter's harm

is self-inflicted because Carter can attend school without his service dog if he so chooses.

It argues that self-inflicted harm cannot be irreparable harm. 

"An alleged injury is defined as irreparable when it is of such nature that the injured

party cannot be adequately compensated therefor in damages or when damages cannot be

measured by any certain pecuniary standard." Cross Wood Products, Inc. v. Suter, 97 Ill.

App. 3d 282, 286 (1981). Here, the circuit court did not abuse its discretion in finding that

Carter would suffer irreparable harm if Corbin was not allowed to attend school with him.

Carter's mother testified that during the period of time Carter and Corbin were separated

while Carter's grandfather was hospitalized, Carter and Corbin's working relationship

deteriorated. She said that Corbin became less responsive to his commands and that Carter's

tantrums increased. She stated that in order for Carter and Corbin to maintain their bond,

Corbin needed to be with Carter every day as a part of his daily routines. This evidence was

not rebutted by the school district, and the injury is not compensable in damages, or

measurable by any pecuniary standard, and is exactly the type of harm that a preliminary

injunction is used to prevent. 

Further, the school district's argument that Carter's harm is self-inflicted is without

merit. As established above, Carter has raised a fair question regarding the existence of his
14

right to take Corbin with him to school under the service animal statute. By attending school

without Corbin, Carter would suffer irreparable harm as a result of being separated from

Corbin during school hours. The school district cannot deny Carter access to school with his

service dog and then claim that his harm is self-inflicted. 

III. Status Quo/Balance of Hardships

In its third point, the school district raises two separate arguments: (1) the circuit court

abused its discretion in issuing a preliminary injunction because it altered the status quo, and

(2) the circuit court abused its discretion in balancing the hardships in favor of Carter

because it failed to take into consideration the public interest. 

A. Status Quo

The school district contends that the injunction was improper because it allegedly

altered the status quo between the parties. The school district argues that the status quo was

Carter attending school without a service dog because Carter attended school last year

without a service dog. Carter, on the other hand, defines the status quo as the school district

"not infringing upon Carter's rights secured to him by law." It argues that the school district,

"by denying Carter access to its school while being accompanied by Corbin, has changed the

status quo by denying Carter a right secured to him by the laws of the State of Illinois." 

Under Illinois law, it is generally proper to issue a preliminary injunction that will

preserve the status quo of the parties rather than alter it. People v. Van Tran Electric Corp.,

152 Ill. App. 3d 175, 183 (1987). Often this is done by keeping all actions at rest, but

sometimes it happens that the status quo is not a condition of rest but, rather, is one of action

and the condition of rest is exactly what will inflict the irreparable harm. Brooks v. La Salle

National Bank, 11 Ill. App. 3d 791, 799 (1973). Still, in certain circumstances, altering the

status quo might be appropriate. See Keystone Chevrolet Co. v. Kirk, 69 Ill. 2d 483, 486

(1978) ("Where the effect of a temporary injunction will be to alter the status quo, the party
15

seeking it must first establish the probability of his ultimate success on the merits"); Citizens

Utilities Co. of Illinois v. O'Connor, 121 Ill. App. 3d 533, 535 (1984) (citing Kirk for the

proposition that where the party seeking the temporary restraining order would change the

status quo, it must first establish the probability of its ultimate success on the merits);

Lakeshore Hills, Inc. v. Adcox, 90 Ill. App. 3d 609, 611 (1980) ("The injunction here altered

rather than preserved the status quo. However, this does not require reversal").

"[The term] [']status quo['] has been the subject of countless, often inconsistent,

interpretations." Electronic Design & Manufacturing, Inc. v. Konopka, 272 Ill. App. 3d 410,

415 n.2 (1995). It has often been defined as the last actual, peaceful, noncontested status that

preceded the pending controversy. Limestone Development Corp., 284 Ill. App. 3d at 853.

Another interpretation of the term, however, is the condition necessary to prevent a

dissipation or destruction of the property in question. In re Marriage of Joerger, 221 Ill.

App. 3d 400, 409 (1991); Gannett Outdoor of Chicago v. Baise, 163 Ill. App. 3d 717, 721

(1987); Home Savings & Loan Ass'n of Joliet v. Samuel T. Isaac & Associates, Inc., 99 Ill.

App. 3d 795, 802-03 (1981). Under either interpretation, we believe that "[t]he preliminary

injunction is designed to prevent a threatened wrong or the further perpetration of an

injurious act" (Kolstad v. Rankin, 179 Ill. App. 3d 1022, 1034 (1989) (citing Toushin v. City

of Chicago, 23 Ill. App. 3d 797, 801 (1974))). In this case, that was done by issuing the

preliminary injunction.

Once Carter established that he met the requirements necessary for a preliminary

injunction, the circuit court did not abuse its discretion in issuing a preliminary injunction

that prevented the threatened harm and maintained the status quo with the least injury to the

parties. See In re Marriage of Jawad, 326 Ill. App. 3d at 154; Limestone Development

Corp., 284 Ill. App. 3d at 853; see also Kolstad, 179 Ill. App. 3d at 1034 (rejecting the

defendant's argument that the status quo was the set of circumstances immediately prior to
16

the plaintiff's complaint where the defendant ignored "the fact that the failure to issue a

preliminary injunction could result in injury which had not previously occurred" and finding

that the preliminary injunction maintained the status quo by preventing a threatened wrong).

Here, the status quo was not a condition of rest but, rather, was a condition of action that was

necessary to prevent irreparable harm. See In re Adoption of Scraggs, 125 Ill. 2d 382, 388-89

(1988); Continental Cablevision of Cook County, Inc. v. Miller, 238 Ill. App. 3d 774, 790

(1992); American Telephone & Telegraph Co. v. Village of Arlington Heights, 174 Ill. App.

3d 381, 387-88 (1988); Davis v. East St. Louis & Interurban Water Co., 133 Ill. App. 2d 801,

804-05 (1971).

The school district argues that allowing Carter to attend school with Corbin cannot

be the status quo because it was never the actual status. To hold that the status quo was

Carter not attending school with his service dog because the service dog never attended

school last year would leave Carter with no avenue to prevent suffering irreparable harm–the

purpose behind issuing a preliminary injunction in the first place. E.g., Wilson v. Wilson, 217

Ill. App. 3d 844, 849 (1991); Davis, 133 Ill. App. 2d at 805 ("The prevention of this

irreparable injury is the keystone to the granting of injunctive relief ***"). In effect, to hold

otherwise would be to hold that despite finding that Carter has raised a fair question

regarding his legal right to attend school and take a service animal with him under the service

animal statute, the status quo was the school district likely infringing upon Carter's claimed

legal right. A probable violation of law should never be the status quo. See County of Du

Page v. Gavrilos, 359 Ill. App. 3d 629, 638 (2005) (" 'Where the acts sought to be enjoined,

however, violate an expressed law, "the status to be preserved could never be a condition of

affairs where the respondent would be permitted to continue the acts constituting that

violation" ' " (quoting San Miguel v. City of Windcrest, 40 S.W.3d 104, 109 (Tex. App. 2000)

(quoting Houston Compressed Steel Corp. v. State, 456 S.W.2d 768, 773 (Tex. Civ. App.
17

1970)))). "The function of a preliminary injunction is not merely to contain ongoing damage

but to prevent prospective damage." Gavrilos, 359 Ill. App. 3d at 638.

Finally, even if the status quo is to be altered, a reversal is not required in every case.

See Kirk, 69 Ill. 2d at 486; O'Connor, 121 Ill. App. 3d at 535; Adcox, 90 Ill. App. 3d at 611-

12. " 'An application for an injunction is addressed to the conscience and sound discretion

of the court, and it is not controlled by technical legal rules, and unless a reviewing court

finds that the discretion has been abused, the order will not be set aside.' " Keeshin v.

Schultz, 128 Ill. App. 2d 460, 468 (1970) (quoting Simpkins v. Maras, 17 Ill. App. 2d 238,

249 (1958)). We find no such abuse of discretion in this case. 

B. Balance of Hardships

Lastly, the school district argues that the circuit court failed to properly consider the

public interest in balancing the hardships between the parties and that, as a result, the

preliminary injunction should be set aside. In response, Carter cites to Barrett v. Lawrence,

110 Ill. App. 3d 587, 593 (1982), for the proposition that the circuit court should not have

balanced the hardships between the parties because the school district has clearly violated

Carter's statutory right and the school district's violation of Carter's rights was wilful. In the

alternative, Carter contends that the circuit court properly balanced the hardships between

the parties. 

"In balancing the equities, the court must weigh the benefits of granting the injunction

against the possible injury to the opposing party from the injunction." Schweickart v.

Powers, 245 Ill. App. 3d 281, 291 (1993). This general rule, however, is not applied where

the violation is wilful, where the existence of a private right and the violation thereof are

clear, or where the act complained of is tortious in itself. Barrett, 110 Ill. App. 3d at 593.

In balancing the equities, the court should also consider the effect of the injunction on the

public. Village of Bensenville v. City of Chicago, 389 Ill. App. 3d 446, 493 (2009). 
18

Here, the circuit court balanced the hardships between the parties and found that the

injury Carter would suffer by being denied his right to be accompanied by Corbin

outweighed any harm potentially incurred by the school district. Because we find that the

circuit court did not abuse its discretion in making this finding, there is no need to address

Carter's argument that the circuit court should not have balanced the hardships between the

parties.

As explained above, there was ample evidence to support the circuit court's finding

that Carter would suffer irreparable harm if Corbin was not allowed to accompany him at

school. As to the school district's harm, Carter's case manager testified she thought having

a dog at school would be disruptive. The mother of another child who was planning to attend

Carter's school testified that her child suffered from a rare lung disease, that her child was

highly allergic to dogs, and that the school district had promised her that her child would not

be exposed to any animals at school. Because of these competing interests, the court did not

make the injunction effective immediately but made it effective three weeks after its entry.

It did so presumably to give the school district time to accommodate both students. There

was no evidence presented that the other child would be allergic to Corbin, a hypoallergenic

dog, that the school district could not accommodate both students, or that the school district

or public would suffer a great hardship by having Corbin at school with Carter. Carter's

mother offered to provide training to the school's staff on how to handle Corbin or stay with

him if need be. Thus, the circuit court did not abuse its discretion in finding in favor of

Carter in balancing the hardships. 

CONCLUSION

In sum, we find that Carter has demonstrated a prima facie case that there is a fair

question concerning the existence of his claimed right under the service animal statute.

Preserving Carter's claimed legal right in status quo until a decision can be reached on the
19

merits prevents Carter from suffering irreparable harm–the purpose for issuing a preliminary

injunction. For the foregoing reasons, Carter's motion to strike taken with the case is granted,

and the circuit court's grant of the preliminary injunction is affirmed.

Motion granted; judgment affirmed.

GOLDENHERSH, P.J., and SPOMER, J., concur.
 NO. 5-09-0447

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

CARTER KALBFLEISCH, by and ) Appeal from the 

Through His Next Friends, ) Circuit Court of

CHRISTOPHER KALBFLEISCH and ) Monroe County.

MELISSA KALBFLEISCH, )

)

 Plaintiff-Appellee, ) 

)

v. ) No. 09-CH-57

)

COLUMBIA COMMUNITY UNIT SCHOOL ) 

DISTRICT UNIT NO. 4, ) Honorable

) Dennis B. Doyle, 

 Defendant-Appellant. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: December 16, 2009

___________________________________________________________________________________

Justices: Honorable James M. Wexstten, J.

Honorable Richard P. Goldenhersh, P.J., and

Honorable Stephen L. Spomer, J.,

Concur

___________________________________________________________________________________

Attorneys Christi L. Flaherty, David L. Mannix, Guin, Martin & Mundorf, LLC, 310 Regency

for Centre, Collinsville, IL 62234

Appellant

___________________________________________________________________________________

Attorneys Anthony P. Gilbreth, Clay B. St. Clair, Crowder & Scoggins, Ltd., 121 West Legion

for Avenue, P.O. Box 167, Columbia, IL 62236 

Appellee

Lisa Madigan, Attorney General of Illinois, Michael A. Scodro, Solicitor General,

Jane Elinor Notz, Deputy Solicitor General, Erin Ipjian, Benjamin Johnson, Assistant

Attorneys General, 100 West Randolph Street, 12th Floor, Chicago, IL 60601 

(Amicus Curiae Brief - for The People of the State of Illinois)

___________________________________________________________________________________