M.R. v. Niesen , 2020 Ohio 4368 ( 2020 )

[Cite as M.R. v. Niesen, 2020-Ohio-4368.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
M.R., a Cincinnati Police Officer, : APPEAL NO. C-200302
pleading under a pseudonym, TRIAL NO. A-2002596
Plaintiff-Appellee, O P I N I O N.
:
vs.
:
JULIE NIESEN,
and
:
TERHAS WHITE,
Defendants-Appellants, :
and
JAMES NOE, :
and
:
ALISSA GILLEY,
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
OHIO FIRST DISTRICT COURT OF APPEALS
Date of Judgment Entry on Appeal: September 9, 2020
Gottesman & Associates, LLC, Zachary Gottesman and Peter J. Stackpole, and
Crehan & Thumann, LLC, and Robert J. Thumann, for Plaintiff-Appellee,
Kinsley Law Office and Jennifer M. Kinsley, and Laursen & Mellott, LLC, and Erik
W. Laursen, for Defendants-Appellants.
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OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Plaintiff-appellee M.R. filed a motion in this court to dismiss
defendants-appellants Julie Niesen and Terhas White’s appeal from the trial court’s
entry granting in part and denying in part plaintiff’s request for a temporary
restraining order. The trial court declined to temporarily restrain defendants from
making social-media posts, but did enjoin temporarily until the case could be heard
on the merits of a preliminary injunction, the disclosure of personal identifying
information of the plaintiff, such as his phone number, address, name, and social
security number. Because we find this limited, temporary order to be a nonfinal
order, we grant the motion to dismiss. We emphasize that the only issue we are
deciding is whether the temporary restraining order, by law limited in time and
designed to maintain the status quo until a hearing on the request for an injunction,
presents us with a final order.
{¶2} M.R., a Cincinnati police officer, filed a complaint against Niesen and
White, along with several other defendants who are not parties to this appeal. The
complaint alleged that M.R., while providing crowd control and security during an
open forum before the city’s Budget and Finance Committee, had made the “okay”
signal by holding up his hand and touching his thumb and index finger in response
to a question about the status of a police officer that had just left the scene. The
complaint further alleged that, in response to M.R.’s signal, several in the crowd
claimed he was a white supremacist and that he intended to intimidate people with
his gesture. According to the complaint, the defendants made various posts on
social-media platforms falsely portraying M.R. as a white supremacist, referring to
him derogatorily, and threatening to publicize his personal identifying information.
M.R. also claimed the defendants filed false complaints against him with the Citizen’s
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OHIO FIRST DISTRICT COURT OF APPEALS
Complaint Authority. The complaint contained causes of action for false light
invasion of privacy, defamation, a violation of R.C. 2307.60, and
negligence/recklessness. The merits of these claims are not before this court.
{¶3} M.R. filed two additional motions. He filed a motion under Sup.R. 45
for leave to file an affidavit under seal and proceed under a pseudonym. M.R. also
filed a motion for a temporary restraining order and a preliminary injunction,
requesting that the trial court order the defendants to remove the social-media posts
portraying M.R. as a white supremacist and to refrain from similar posting on social
media in the future, and to enjoin the defendants from publicizing M.R.’s personal
identifying information.
{¶4} On July 24, the trial court held a hearing on these two motions. The
trial court granted the Sup.R. 45 motion to seal the affidavit and allow M.R. to
proceed under a pseudonym. The latter half of the hearing focused on the motion for
a temporary restraining order.1 Counsel for M.R. and counsel for defendants
presented legal arguments, focusing primarily on the content of the posts, rather
than personal identifying information of the officer. At the conclusion of the hearing,
the trial court stated that, with respect to M.R.’s request that it order the defendants
to remove their social-media posts and prohibit them from making similar posts in
the future, it would “stand with the First Amendment,” and it overruled that request.
But the trial court stated that it was granting the temporary restraining order and
enjoining the defendants from publishing M.R.’s personal information. The trial
court issued an entry granting the temporary restraining order in this limited way,
and enjoined the defendants from publicizing, through social media or other
channels, M.R.’s personal identifying information. The court set the case for hearing
on the request for a preliminary injunction for the next week, July 30.
1 The court was prepared to hold a hearing on the request for an injunction, but all parties
objected and requested the hearing be limited to the temporary restraining order.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} At the defendants’ request, this hearing was moved to August 11. On
that date, the court indicated that it intended to proceed with the hearing for a
preliminary injunction. Counsel for two of the defendants, however, objected to the
hearing going forward. The court granted the request for a continuance, continued
the temporary order in place, and set the case for the injunction hearing on
September 1.
{¶6} Before that hearing could be held, Niesen and White appealed the trial
court’s July 24 entry granting in part the requested temporary restraining order.
M.R. has filed a motion to dismiss the appeal, arguing that the trial court’s entry was
not a final, appealable order.
{¶7} This court only has jurisdiction to review final and appealable orders.
Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.03. Typically, the granting
of a temporary restraining order is not a final, appealable order subject to appellate
review. Nexus Gas Transm., LLC v. Camelback, Ltd., 5th Dist. Stark No.
2015CV00167, 2016-Ohio-624, ¶ 22; In re Estate of Georskey, 11th Dist. Geauga No.
2000-G-2299, 2001 WL 824326 (July 20, 2001).
{¶8} Appellants argue that the trial court’s entry is subject to immediate
appellate review because it imposed a prior restraint on their speech. They cite
multiple cases in support of their argument that an order imposing a prior restraint
requires immediate appellate review. See Natl. Socialist Party of Am. v. Village of
Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977); Puruczky v. Corsi, 2018-
Ohio-1335, 110 N.E.3d 73 (11th Dist.); Connor Group v. Raney, 2d Dist. Montgomery
No. 26653, 2016-Ohio-2959; Internatl. Diamond Exchange Jewelers, Inc. v. U.S.
Diamond and Gold Jewelers, Inc., 70 Ohio App.3d 667, 591 N.E.2d 881 (2d
Dist.1991).
{¶9} Each of the cases cited by appellants involves a trial court’s issuance of
an injunction, either preliminary or permanent. See Natl. Socialist Party of Am. at
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OHIO FIRST DISTRICT COURT OF APPEALS
44 (where an injunction imposes a prior restraint on First Amendment rights, strict
procedural safeguards, including immediate appellate review, must be provided);
Puruczky at ¶ 15 (when a preliminary injunction constitutes a prior restraint on
speech, immediate appellate review is required); Connor Group at ¶ 1 (“a preliminary
injunction that constitutes a prior restraint on speech requires immediate appellate
review”); Internatl. Diamond Exchange Jewelers, Inc. at 670 (where a preliminary
injunction constitutes a prior restraint on speech, immediate appellate review is
required).
{¶10} Perhaps recognizing this distinction between the issuance of a
preliminary injunction and a temporary restraining order (which by its terms is
temporary and expires as provided by rule and law), appellants contend that the trial
court’s order is, in essence, a preliminary injunction rather than a temporary
restraining order. They argue that the order retains all of the qualities of a
preliminary injunction because it was not issued ex parte, but rather following a
hearing at which appellants were present, and because the trial court extended the
order’s application past the expiration of the period set forth in Civ.R. 65 for a
temporary restraining order.
{¶11} Having reviewed the transcript of the July 24 hearing before the trial
court, we are not persuaded by the appellants’ assertion that the trial court’s issuance
of a temporary restraining order was tantamount to a preliminary injunction. When
the hearing began, the trial court, recognizing that the hearing was not ex parte,
stated that because service had been perfected it would proceed with a preliminary
injunction hearing. The plaintiff and the defendants objected. Counsel for M.R.
stated that he was only prepared to proceed with a hearing for a temporary
restraining order because he intended to proceed solely on the previously filed brief,
whereas he would have offered live testimony if the court were holding a hearing on a
motion for a preliminary injunction. The trial court heard from all counsel, and
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OHIO FIRST DISTRICT COURT OF APPEALS
ultimately determined that it would proceed solely on the motion for a temporary
restraining order.
{¶12} Additionally, the temporary restraining order issued by the trial court
was not tantamount to a preliminary injunction because its purpose was solely to
preserve the status quo as to the personal identifying information of M.R. until the
hearing on the preliminary injunction and public access could be held. See Farmers
Ins. Exchange v. Weemhoff, 5th Dist. Richland No. 02-CA-26, 2002-Ohio-5570, ¶ 11.
The order only prohibited appellants from publishing M.R.’s personal identifying
information; it did not otherwise grant M.R.’s request to delete social-media posts or
enjoin the defendants from making social-media posts in the future. And it was
consistent with maintaining the court’s previously entered Sup.R. 45 order
protecting this same information until further hearing. Both issues were to be
addressed by the court on September 1.
{¶13} We hold that the trial court’s issuance of a temporary restraining order
was not a final, appealable order subject to review by this court. We accordingly
grant M.R.’s motion to dismiss the appeal.
Appeal dismissed.
MYERS, P.J., BERGERON and CROUSE, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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