Opinion
Court of Appeals No. OT-20-021
01-14-2021
Taxiputinbay, LLC Appellee v. Village of Put-in-Bay Appellant
Andrew R. Mayle, for appellee. Susan Keating Anderson, Mark S. Fusco, Sara Ravas Cooper and Zachary C. Maciaszek, for appellant.
Trial Court No. 2020-CV-H-192 DECISION AND JUDGMENT Andrew R. Mayle, for appellee. Susan Keating Anderson, Mark S. Fusco, Sara Ravas Cooper and Zachary C. Maciaszek, for appellant. ZAYAS, P.J.
{¶ 1} Appellee Taxiputinbay, LLC ("Taxiputinbay") has filed a motion to dismiss the appeal filed by Appellant Village of Put-in-Bay ("Put-in-Bay") in this case involving a preliminary injunction prohibiting Put-in-Bay from taking any action against Taxiputinbay due to operating taxis in violation of a village ordinance. Taxiputinpay contends that the order granting the preliminary injunction is not a final appealable order. Based upon our review of the record, the court finds the judgment being appealed is not a final appealable order and therefore this court lacks jurisdiction to hear this appeal.
I. Factual Background
{¶ 2} On March 4, 2020, Put-in-Bay amended its regulations for taxicabs to prohibit a taxicab from receiving a permit if the width exceeds 80 inches, including fender flare, but excluding mirrors. §866.01(a)(4). The prior version prohibited taxicabs from exceeding the width of 80 inches, excluding mirrors. Former §866.13(c). Only taxicabs are subject to the 80 inch width. All other vehicles may exceed the 80 inch width limitation.
{¶ 3} Prior to the amendment, Taxiputinbay had been issued annual licenses that automatically expired on April 15, 2020 per §866.03(a). However, after the amended ordinance became effective, Taxiputinbay was denied a permit because the width of its vehicle exceeded 80 inches.
{¶ 4} On June 13, 2020, Taxiputinbay filed a complaint against Put-in-Bay seeking a temporary restraining order, a preliminary injunction, and a permanent injunction. Taxiputinbay alleged that the ordinance was in conflict with R.C. 577.05(B), and therefore, invalid. It further contended that the ordinance violated the equal protection clause of the Ohio Constitution.
{¶ 5} The trial court granted the preliminary injunction finding that "in regard to the request for a preliminary injunction that there is a substantial likelihood that the plaintiff will prevail on the merits" because the ordinance conflicts with the state statute. The trial court did not address the equal protection argument. The court order "preliminarily enjoined [Defendant] from taking any action against Plaintiff due to operating taxis in violation of the Village ordinance prohibiting taxis with a width exceeding 80 inches, including but not limited to: issuing citations or denying licenses/permits."
{¶ 6} Put-in-Bay appealed, and Taxiputinbay filed a motion to dismiss the appeal arguing that the order granting the preliminary injunction is not a final, appealable order.
II. Final Appealable Orders
{¶ 7} Under Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order" in the action. See Deyerle v. City of Perrysburg, 6th Dist. Wood No. WD-03-063, ¶ 3. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 8} R.C. 2505.02(B)(4) states that:
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶ 9} A "provisional remedy" is defined as "a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction." R.C. 2505.02(A)(3). Therefore, this case is governed by R.C. 2505.02(B)(4). For an order to be final in a preliminary injunction case, both prongs of R.C. 2505.02(B)(4) must be met.
A. The order determines the action and prevents
a judgment in favor of Put-in-Bay.
{¶ 10} Put-in-Bay first contends that the preliminary injunction order "granted the ultimate relief [Taxiputinbay] requested in its Complaint - a declaration that §866.01(a)(4) conflicts with a general law and therefore cannot be enforced." In essence, Put-in-Bay argues that the order is a final decision on the merits that is immediately appealable. In making this argument, Put-in-Bay relies on Dandino v. Hoover, 6th Dist. Lucas No. L-91-078, 1991 WL 132466 (July 11, 1991), a case interpreting the version of R.C. 2505.02 in effect at that time which defined a final appealable order as one that is "an order affecting a substantial right made in a special proceeding." Id. at *3. That statute did not include the category of final appealable orders in the present statute, R.C. 2505.02(B)(4)(b), which is applicable to this case. Moreover, the trial court did not invalidate the ordinance, it merely "preliminarily enjoined" Put-in-Bay from enforcing it against Taxiputinbay.
{¶ 11} In this case, the first prong is met because the trial court issued an order granting a preliminary injunction. That order determined the action with respect to the provisional remedy and prevented judgment in favor of Put-In-Bay regarding the provisional remedy.
B. Put-in-Bay would have a meaningful and effective
remedy by an appeal following final judgment.
{¶ 12} In order to satisfy the second prong, Put-in-Bay must establish that it "would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action." R.C. 2505.02(B)(4)(b). "It is well established that the granting of a temporary or preliminary injunction, in a suit in which the ultimate relief sought is a permanent injunction, is generally not a final appealable order." Hootman v. Zock, 11th Dist. Ashtabula No. 2007-A-0063, 2007-Ohio-5619, ¶ 15, quoting Woodbridge Condominium Owners' Assn. v. Friedland, 11th Dist. Lake No. 2003-L-072, 2004-Ohio-14, ¶ 4.
{¶ 13} Here, Taxiputinbay is ultimately seeking a permanent injunction to prevent Put-in-Bay from enforcing the width requirements against it, withholding its permits based on the width requirement, and prosecuting them for alleged width violations. Put-in-Bay contends that it will suffer "permanent and incalculable" damage due to the deprivation of "its constitutional and statutory home rule power to self-govern." As a result, Put-in-Bay alleges that it cannot regulate any taxicab operator. This argument appears to be based upon its misinterpretation that the trial court ordered that the ordinance was unenforceable. Additionally, Put-in-Bay does not address why it would be deprived of a meaningful or effective remedy if it cannot appeal now.
{¶ 14} Although Put-in-Bay alleges that over-wide taxicabs pose a safety threat to pedestrians, that harm is speculative because there is nothing in this record to show that the Taxiputinbay vehicles have ever endangered any pedestrians. See Empower Aviation, L.L.C. v. Butler Cty. Bd. of Commrs., 1st Dist. Hamilton No. C-090616, 185 Ohio App.3d 477, 2009-Ohio-6331, 924 N.E.2d 862, ¶ 23, cause dismissed, 124 Ohio St.3d 1468, 2010-Ohio-374, 921 N.E.2d 241, ¶ 23 (2010) (concluding that Empower's claim that it will be forced out of business was too speculative because Empower failed to present sufficient evidence of the percentage of revenue it would lose.).
{¶ 15} Accordingly, Put-in-Bay would not be denied a meaningful or effective remedy by an appeal following final judgment as to all proceedings in this case. If a permanent injunction is granted, Put-in-Bay will have the ability to appeal the judgment at the conclusion of the proceedings. See Hootman, 2007-Ohio-5619 at ¶17.
C. The order is not final and appealable because it maintains the status quo.
{¶ 16} Taxiputinbay argues that the order is not final and appealable because the order preserves the status quo while the litigation is pending. We agree.
{¶ 17} Ohio courts have found that "'a preliminary injunction which acts to maintain the status quo pending a ruling on the merits is not a final appealable order under R.C. 2505.02.'" Quinlivan v. H.E.A.T. Total Facility Solutions, Inc., 6th Dist. Lucas No. L-10-1058, 2010-Ohio-1603, ¶ 4, citing Hootman at ¶ 16, quoting E. Cleveland Firefighters, IAFF Local 500 v. E. Cleveland, 8th Dist. Cuyahoga No. 88273, 2007-Ohio-1447, ¶ 5; Deyerle v. Perrysburg, 6th Dist. Wood No. WD-03-063, 2004-Ohio-4273, ¶ 15. Ohio courts have found that in the context of preliminary injunctions, the status quo to be preserved is the "last, actual, peaceable, uncontested status which preceded the pending controversy." (Citation omitted). Quinlivan at ¶ 5; Hootman at ¶ 16.
{¶ 18} Put-in-Bay contends that the order is final because Taxiputinbay's 2019 permits had already expired when its vehicle did not pass inspection due to its width, and therefore, preserving the status quo would require honoring its decision not to renew the permit.
{¶ 19} However, Taxinputinbay's licenses had not expired when the amended ordinance became effective. Taxiputinbay did not pass inspection due to the new width requirements and filed the complaint to preserve its status quo as licensed taxicabs. Taxiputinbay's last uncontested status was its status as licensed taxicabs. The preliminary injunction allows Taxiputinbay to continue operating its taxicabs during the pendency of the litigation. See Hootman at ¶ 17 (finding that the trial court was maintaining the status quo by ordering parties to remove an obstruction from a drainage ditch pursuant to a preliminary injunction order); Neamonitis v. Gilmour Academy, 8th Dist. Cuyahoga No. 92452, 2009-Ohio-2023, ¶ 11-12 (finding that the trial court was maintaining the status quo by ordering a school, via temporary restraining order, to reinstate a student it had expelled, and then granting a preliminary injunction indefinitely extending the temporary restraining order.).
{¶ 20} We, therefore, find that the trial court's granting of the motion for a preliminary injunction does not satisfy the requirements of a final appealable order under R.C. 2505.02(B)(4).
III. Conclusion
{¶ 21} Accordingly, we dismiss the case for lack of a final appealable order. Put-in-Bay is ordered to pay costs pursuant to App.R. 24.
Appeal dismissed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Marilyn Zayas, P.J.
Pierre Bergeron, J.
Candace Crouse, J.
CONCUR /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE Judges Marilyn Zayas, Pierre Bergeron and Candace Crouse, from the First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.