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 2019 IL App (5th) 190337-U NOTICE NOTICE 

Decision filed 11/18/19. The This order was filed under 

text of this decision may be Supreme Court Rule 23 and NO. 5-19-0337 

changed or corrected prior to may not be cited as precedent 

the filing of a Peti ion for by any party except in the

 IN THE Rehearing or the disposition of limited circumstances allowed 

the same. under Rule 23(e)(1).

 APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

DEVELOPMENTAL DISABILITY SERVICES ) Appeal from the 

OF METRO EAST, ) Circuit Court of 

) St. Clair County. 

Plaintiff and Counterdefendant-Appellant, ) 

) 

v. ) No. 19-CH-153 

) 

ILLINOIS DEPARTMENT OF HUMAN SERVICES; ) 

GRACE B. HOU, Secretary of Illinois Department of ) 

Human Services; ) 

DIVISION OF DEVELOPMENTAL DISABILITIES; ) 

KATHLEEN R. WARD, Acting Director of the ) 

Division of Developmental Disabilities; ) 

GARY KRAMER, Chief Accountability Officer ) 

of the Division of Developmental Disabilities, ) 

) 

Defendants and Counterdefendants-Appellees ) 

) Honorable 

(Prairieland Service Coordination, Inc., Third-Party ) Julie K. Katz, 

Defendant and Counterplaintiff-Appellee). ) Judge, presiding. 

JUSTICE CATES delivered the judgment of the court. 

Justices Moore and Boie concurred in the judgment. 

ORDER 

¶ 1 Held: The circuit court properly denied the plaintiff’s request for a preliminary 

injunction where the plaintiff failed to establish a fair question as to the 

existence of a clearly ascertainable right in need of protection. 

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¶ 2 The plaintiff, Developmental Disability Services of Metro East (DDSME), sought 

a preliminary injunction to require the defendants to maintain funding to DDSME and to 

prevent the defendants from entering into a contract with the third-party defendant, 

Prairieland Service Coordination, Inc. (Prairieland). The circuit court of St. Clair County 

entered an order denying DDSME’s motion for preliminary injunction. For the reasons 

that follow, we affirm the decision of the circuit court. 

¶ 3 BACKGROUND 

¶ 4 DDSME is a nonprofit, independent service coordination (ISC) agency that 

provides services to individuals with developmental and intellectual disabilities. DDSME 

was founded in 1986 and served as the sole ISC agency in St. Clair and Madison 

Counties for 32 years. During this time, the State funded ISC services through a 

noncompetitive, annual fiscal year renewal contract process. Each year, DDSME entered 

into annual contracts with the Illinois Department of Human Services (DHS) and its 

Division of Developmental Disabilities (DDD) to provide ISC services. The final contract 

entered into between DDSME and DHS was for fiscal year 2019, and was effective from 

July 1, 2018, until June 30, 2019. The contract included a provision governing renewal, 

which provided that the contract may be renewed for additional periods by mutual 

consent of the parties but that the current contract did “not create any expectation of 

renewal.” 

¶ 5 On September 10, 2018, DHS and DDD posted a Notice of Funding Opportunity 

(NOFO) for ISC services for fiscal year 2020. This was the first time DHS sought to fund 

ISC services through a competitive bidding process. On November 12, 2018, DDSME 

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submitted a timely application to DHS and DDD for funding under the ISC NOFO for St. 

Clair and Madison Counties, identified as region K in the NOFO. 

¶ 6 On January 2, 2019, DHS and DDD notified DDSME that it had not been selected 

to receive the ISC NOFO grant funding for region K for fiscal year 2020. Instead, DHS 

and DDD had selected another ISC provider, Prairieland, to service the region. On 

January 16, 2019, DDSME filed a timely appeal with DHS and DDD. On February 15, 

2019, DDSME received an email from Kathleen Ward, acting director of DDD, advising 

DDSME that the result of the NOFO had been upheld. Attached to the email was a letter 

from Gary Kramer, the Chief Accountability Officer for DHS, who was also acting as an 

appeal review officer. In his letter, Kramer stated he agreed with the initial NOFO 

determination made by DHS and DDD, and that he recommended that a notice of 

nonselection be issued to DDSME be upheld. 

¶ 7 On March 11, 2019, DDSME filed a timely petition for judicial review of DHS’s 

final administrative decision in the St. Clair County circuit court, case number 19-MR0067, in accordance with 735 ILCS 5/3-103 (West 2018). On March 20, 2019, DDSME 

filed a three-count complaint seeking a temporary restraining order and preliminary 

injunctive relief against DHS; DDD; Ward; Kramer; and Grace B. Hou, the Secretary of 

DHS. In count I, DDSME alleged that the defendants violated 2 C.F.R. § 200.101 of the 

Uniform Administrative Requirements, Cost Principles, and Audit Requirements for 

Federal Awards (the Uniform Guidance) because the Uniform Guidance did not apply to 

block grants awarded under the Omnibus Budget Reconciliation Act of 1981, and some 

of the funding for the NOFO came from federal block grants. In count II, DDSME 

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alleged that the defendants violated the Illinois Administrative Procedure Act (the IAPA) 

(5 ILCS 100/5-5 et seq. (West 2018)), by failing to properly promulgate rules relating to 

the NOFO funding as required by the Grant Accountability and Transparency Act (30 

ILCS 708/1 et seq. (West 2018)). DDSME also alleged that the defendants acted 

arbitrarily, capriciously, and contrary to the law in violation of the IAPA when they 

denied DDSME’s application and that the defendants failed to provide DDSME with a 

fair and meaningful appeal process in violation of DDSME’s due process rights. In count 

III, DDSME sought a temporary restraining order and a preliminary injunction ordering 

the defendants to maintain funding to DDSME and barring the defendants from entering 

into or taking action to implement any contracts pursuant to the NOFO for ISC services 

for fiscal year 2020 until such time as the circuit court rendered a decision in case number 

19-MR-0067. In support of its request for injunctive relief, DDSME alleged it had a 

clearly ascertainable right “in the form of a legally protected property interest in the 

continuation of its funding from the State.” 

¶ 8 On March 20, 2019, DDSME filed a separate motion for temporary restraining 

order and preliminary injunction. In the motion, DDSME alleged that it was entitled to an 

injunction because the defendants “deprived it of a legally protected property interest in 

the continuation of its funding from the State.” Citing the Illinois Supreme Court’s 

decision in Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill. 2d 540 (1977), DDSME 

asserted it had an “expectation interest” based upon its mutual and ongoing financial 

relationship with the State, of which it could not be deprived without due process. On 

March 20, 2019, the circuit court denied DDSME’s motion for a temporary restraining 

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order, finding DDSME failed to allege a valid basis for ex parte injunctive relief, and set 

a hearing on DDSME’s request for a preliminary injunction. 

¶ 9 On April 1, 2019, the defendants filed a response to DDSME’s motion for 

preliminary injunction, arguing that DDSME failed to meet the required elements for 

such relief. The defendants asserted that DDSME did not have a clearly ascertainable 

right in need of protection because it did not have a property right in a future contract 

with the State. The defendants argued the Illinois Supreme Court decision in Polyvend, 

Inc. v. Puckorius, 77 Ill. 2d 287 (1979), supported a finding that DDSME did not have a 

protectable property interest in obtaining a future contract. Also on April 1, 2019, the 

circuit court held a hearing on DDSME’s request for preliminary injunction. At the 

hearing, the defendants argued that Prairieland should be given the right to intervene in 

the action because Prairieland’s interests could be adversely affected by the issuance of 

DDSME’s requested relief.1 

¶ 10 On April 10, 2019, the circuit court entered an order finding Prairieland was a 

necessary party and ordered DDSME to file an amended complaint adding Prairieland as 

a party. On April 23, 2019, DDSME complied with circuit court’s order and filed an 

amended complaint adding Prairieland as a third-party defendant. 

¶ 11 On May 20, 2019, Prairieland filed an answer to DDSME’s amended complaint, a 

response to DDSME’s motion for preliminary injunction, and a three-count 

countercomplaint. In its countercomplaint, Prairieland brought a claim for anticipatory 

breach against the defendants (count I); for tortious interference with a contract against 

1

Notably, the defendants did not file any pleading requesting leave to add Prairieland as a party. 

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DDSME (count II); and for a preliminary injunction against all counterdefendants to 

prevent the counterdefendants from entering into any contracts, including settlement 

agreements, that would negatively affect Prairieland’s interest in the grant award 

beginning on July 1, 2019 (count III). 

¶ 12 On May 31, 2019, DDSME and the defendants entered into a settlement 

agreement in which DHS agreed to issue a new NOFO of the ISC contract for region K 

for fiscal year 2020. DHS agreed to allow DDSME to continue serving as the ISC for 

region K until the new NOFO process was completed and a new contract was entered 

into by DHS and the successful NOFO applicant. In exchange, DDSME agreed to 

dismiss with prejudice its lawsuits against the defendants in this case and case number 

19-MR-0067. 

¶ 13 On June 7, 2019, DDSME filed a motion for voluntary dismissal of its claims in 

this case against the defendants. DDSME’s motion did not indicate a reason for the 

dismissal or state that it had entered into the settlement agreement with the defendants. 

On June 17, 2019, the circuit court conducted a hearing on DDSME’s motion for 

voluntary dismissal. At the hearing, the parties advised the court about the execution of 

the settlement agreement and DHS’s reissuance of the NOFO for region K, subjecting the 

ISC contract for fiscal year 2020 to rebidding. At the conclusion of the hearing, the court 

took the matter under advisement. 

¶ 14 On July 12, 2019, the circuit court conducted a hearing on Prairieland’s 

countercomplaint and accompanying request for injunctive relief. At the hearing, 

DDSME advised the court that DDSME’s motion for voluntary dismissal was made 

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pursuant to the settlement agreement. At that time, Prairieland requested that the circuit 

court declare the settlement agreement void. 

¶ 15 On July 17, 2019, the circuit court entered an order declaring the settlement 

agreement between DDSME and the defendants void, and denied DDSME’s request for a 

preliminary injunction preventing the defendants from entering into a contract with 

Prairieland to serve as the ISC agency for region K for fiscal year 2020. The court found 

DDSME was not entitled to a preliminary injunction because DDSME had failed to 

establish that it had a clearly ascertainable right in need of protection, a requirement for 

issuing injunctive relief. The court found DDSME had only a unilateral expectation that it 

would receive future State funding based on its annual contracts with the State and that 

such an expectation did not constitute a protectable property interest within the meaning 

of the due process clause. On August 6, 2019, DDSME filed a Rule 307(a)(1) (Ill. S. Ct. 

307(a)(1) (eff. Nov. 1, 2017)) interlocutory appeal of the circuit court’s denial of its 

request for preliminary injunctive relief. 

¶ 16 ANALYSIS 

¶ 17 The scope of a Rule 307(a) interlocutory appeal is limited. On appeal, we review 

only the circuit court’s decision granting or denying the interlocutory relief, not the 

merits of the plaintiff’s underlying case. Crain v. Lucent Technologies, Inc., 317 Ill. App. 

3d 486, 491 (2000). 

¶ 18 The purpose of a preliminary injunction is to preserve the status quo pending a 

decision on the merits of a cause. Smith v. Department of Natural Resources, 2015 IL 

App (5th) 140583, ¶ 21. It is an extraordinary remedy, applicable only in an extreme 

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emergency where serious harm would result if the injunction is not issued. Jones v. 

Department of Public Aid, 373 Ill. App. 3d 184, 192-93 (2007). 

¶ 19 To establish entitlement to a preliminary injunction, the plaintiff must 

demonstrate: (1) a clearly ascertainable right in need of protection; (2) that they will 

suffer irreparable harm without the injunction; (3) an inadequate remedy at law for the 

injury; and (4) the likelihood of success on the merits. Smith, 2015 IL App (5th) 140583, 

¶ 21. The party seeking the injunction does not carry the same burden of proof required to 

prevail on the ultimate issue and must only raise a fair question as to the existence of 

each element. Jones, 373 Ill. App. 3d at 193. The court must also balance the hardships to 

the parties and consider whether the benefits of granting the injunction exceed any injury 

to the defendant. Scheffel Financial Services, Inc. v. Heil, 2014 IL App (5th) 130600, 

¶ 10. 

¶ 20 At the preliminary injunction stage, the court should not consider contested issues 

of fact, nor should it decide the merits of the plaintiff’s case. Smith, 2015 IL App (5th) 

140583, ¶ 22. Generally, we review the propriety of the circuit court’s ruling on a 

preliminary injunction for an abuse of discretion. Smith, 2015 IL App (5th) 140583, ¶ 22. 

However, where the court’s ruling involves a question of law, the standard of review is 

de novo. Smith, 2015 IL App (5th) 140583, ¶ 23. 

¶ 21 On appeal, DDSME first argues that the circuit court erred in denying its request 

for a preliminary injunction because it has a statutory right to an injunction based upon 

the defendants’ alleged violation of the IAPA’s formal rule-making procedures. DDSME 

also argues that it is entitled to injunctive relief because it has a procedural due process 

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right that is independent of its right to receive the ISC contract. In support of its 

procedural due process claim, DDSME contends that Trainor, 68 Ill. 2d 540, supports a 

finding that DDSME has a protectable property interest which, in turn, bestows DDSME 

with a legally-cognizable interest in the fairness of the bidding process. On appeal, 

DDSME points to isolated portions of its amended complaint to support its position that it 

raised both a statutory claim and a procedural due process claim as a basis for an 

injunction in the circuit court. 

¶ 22 DDSME’s position on appeal, however, does not conform to its position in the 

circuit court. DDSME’s amended complaint indicates that it represented to the circuit 

court that DDSME was entitled to injunctive relief because it had a clearly ascertainable 

right “in the form of a legally protected property interest in the continuation of its funding 

from the State.” DDSME repeated this position in its motion for a temporary restraining 

order and a preliminary injunction, arguing “DDSME contends that Defendants deprived 

it of a legally protected property interest in the continuation of its funding from the 

State.” To the extent that DDSME argued that it was entitled to an injunction because the 

defendants violated the IAPA and DDSME’s rights to procedural due process, these 

issues were raised in the context of the other elements required for a preliminary 

injunction and not as a right or interest in need of protection. Because DDSME failed to 

raise these arguments in the circuit court, they have been forfeited on appeal. See Mabry 

v. Boler, 2012 IL App (1st) 111464, ¶ 15 (in general, arguments not raised in the circuit 

court are forfeited and cannot be raised for the first time on appeal). 

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¶ 23 To the degree that DDSME continues to maintain on appeal that it has a 

protectable property interest based upon its ongoing relationship with the State, we reject 

DDSME’s argument. In the circuit court, DDSME argued that it had a protectable 

property interest due to its “current right to provide the services” under its contract with 

the State, which expired on June 30, 2019. Both in the circuit court and on appeal, 

DDSME relied on the Illinois Supreme Court’s decision in Trainor, 68 Ill. 2d 540, to 

support its contention that it has a protectable property interest. DDSME’s reliance on 

Trainor, 68 Ill. 2d 540, however, is misplaced. 

¶ 24 DDSME is correct that Trainor involved a long-time Medicaid provider who was 

able to obtain a preliminary injunction preventing the State from terminating its 

relationship because the provider had an expectation interest in continued participation in 

the Medicaid program. Trainor, 68 Ill. 2d 540. Trainor, however, involved a situation 

where the State suspended the plaintiff’s current right to participate in the Medicaid 

program. Trainor, 68 Ill. 2d at 544-45. Trainor is clear that it was the “ ‘[i]nterruption of 

an existing relationship between the government and a contractor’ ” which distinguished 

the plaintiff in that case from those who are initially seeking government contracts. 

Trainor, 68 Ill. 2d at 547 (quoting Gonzalez v. Freeman, 334 F.2d 570, 574 (D.C. Cir. 

1964)). In finding that the Trainor plaintiff’s expectation of continuing to receive 

Medicaid payments was a legal interest, the court relied on Hathaway v. Mathews, 546 

F.2d 227, 230 (7th Cir. 1976). Trainor, 68 Ill. 2d at 547. Similar to the plaintiff in 

Trainor, the plaintiff in Hathaway successfully challenged the government’s termination 

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of Medicaid payments for services she was providing under an existing contract with the 

government. Hathaway, 546 F.2d at 228, 230. 

¶ 25 At the hearing before the circuit court, DDSME argued the case sub judice was 

analogous to that in Trainor because DDSME had a long-term, ongoing relationship with 

the State and, at the time it filed its complaint, it was still providing services under its 

contract with the State. The difference between DDSME and the providers in Trainor and 

Hathaway, however, is that plaintiffs in those cases were seeking to enforce their current 

rights under an ongoing relationship or existing contract, while in this case, DDSME was 

seeking to acquire rights it did not possess under its contract, which is to say, a right to 

funding after the expiration of its contract on June 30, 2019. 

¶ 26 The circuit court was correct that DDSME’s position was more analogous to the 

plaintiff in Polyvend, 77 Ill. 2d 287. In Polyvend, the state rejected the plaintiff’s bid to 

manufacture license plates for the State even though the plaintiff had received the 

contract the previous three years. Polyvend, 77 Ill. 2d at 293. The plaintiff argued that the 

State’s rejection of the plaintiff’s bid based on an antibribery statute denied it procedural 

due process. Polyvend, 77 Ill. 2d at 292. Noting that procedural due process is only 

required when one has a protectable interest, the Illinois Supreme Court observed that a 

protectable property interest requires “ ‘more than a unilateral expectation’ ” but, instead, 

the plaintiff must have a “ ‘legitimate claim of entitlement.’ ” Polyvend, 77 Ill. 2d at 294 

(quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570 (1972)). The 

Court concluded that the plaintiff did not have a legitimate claim of entitlement or a 

protectable property interest in a future State contract despite having received the contract 

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in previous years because each contract was independent from the other and a prior 

contractual relationship did not give the contractor a preferred status or a reasonable 

belief that it would receive future contracts. Polyvend, 77 Ill. 2d at 296. The Court 

concluded that the plaintiff’s “unilateral expectation” that it would receive the contract to 

manufacture the license plates in the future did not constitute a protectable property 

interest within the meaning of the due process clause. Polyvend, 77 Ill. 2d at 296. The 

Polyvend court distinguished the Trainor decision as one involving a “right to continuing 

participation in an ongoing program” as opposed to a situation involving annual 

competitive bidding. Polyvend, 77 Ill. 2d at 298. The court specifically rejected the 

proposition that being awarded a State contract gave rise to a right or interest in a future 

State contract. Polyvend, 77 Ill. 2d at 298. 

¶ 27 Although DDSME had worked with DHS and DDD for many years, the 

relationship was based on annual contracts and not upon DDSME’s participation in an 

“ongoing program.” The terms of DDSME’s contract with DHS were clearly stated. The 

contract was an annual contract, ending on June 30, 2019, and there was no expectation 

of renewal. The Illinois Supreme Court’s holding in Polyvend dictates a finding that 

DDSME, as a party with a State contract, does not have a protectable property interest in 

future State contracts. 

¶ 28 Having found that DDSME failed to establish a fair question as to the existence of 

a clearly ascertainable right in need of protection, there is no need to address the 

remaining elements necessary to obtain a preliminary injunction. As a caution to the 

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parties, this ruling relates only to the denial of the preliminary injunction, and has not, in 

any way, analyzed the merits of DDSME’s remaining claims. 

¶ 29 CONCLUSION 

¶ 30 We find the circuit court did not err in finding that DDSME had not established a 

fair question that it has a clearly ascertainable right in need of protection. For the 

foregoing reasons, we affirm the judgment of the circuit court St. Clair County. 

¶ 31 Affirmed. 

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