Madison Twp. Bd. of Trustees v. Hambden Sportsman Inc. ( 2023 )

[Cite as Madison Twp. Bd. of Trustees v. Hambden Sportsman Inc., 2023-Ohio-3694.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
MADISON TOWNSHIP CASE NO. 2023-L-052
BOARD OF TRUSTEES, et al.,
Plaintiffs-Appellees, Civil Appeal from the
Court of Common Pleas
- vs -
HAMBDEN SPORTSMAN INC. Trial Court No. 2022 CV 000908
d.b.a. C-4 SHOOTING &
TRAINING CENTER, et al.,
Defendants-Appellants.
MEMORANDUM
OPINION
Decided: October 10, 2023
Judgment: Appeal dismissed
Gary L. Pasqualone, Curry & Pasqualone, 302 South Broadway, Geneva, OH 44041,
and Andrea K. Ziarko, Baker Dublikar, 400 South Main Street, North Canton, OH 44720
(For Plaintiffs-Appellees).
Christopher M. Corrigan, Seeley, Savidge, Ebert & Gourash, Co., LPA 26600 Detroit
Road, Suite 300, Westlake, OH 44145 (For Defendant-Appellant, Hambden Sportsman
Inc. d.b.a. C-4 Shooting & Training Center).
Christopher M. Corrigan, Seeley, Savidge, Ebert & Gourash, Co., LPA 26600 Detroit
Road, Suite 300, Westlake, OH 44145 and Luca A. Viglione, 29948 Regent Road,
Wickliffe, OH 44092 (For Defendant-Appellant, C-4 Shooting and Training Academy,
Inc.).
ROBERT J. PATTON, J.
{¶1} On May 11, 2023, appellants, Hambden Sportsman Inc. d.b.a. C-4 Shooting
& Training Center (Hambden) and C-4 Shooting and Training Academy, Inc. (the
Academy), filed a notice of appeal from an entry of the Lake County Court of Common
Pleas.
{¶2} Appellees, Madison Township Board of Trustees and Madison Township
Zoning Inspector Max Ungers, filed a complaint requesting a temporary restraining order,
preliminary injunction, and permanent injunction against Hambden and Neil Harrison
alleging violations of the township zoning code. Appellees sought a permanent injunction
to enjoin the property owners and business from shooting pistols, rifles, or other weapons
other than trap or skeet shooting from the range and to remove any structure not in
existence at the time the property was conveyed. Harrison was dismissed as a party, and
the Academy intervened as a defendant and filed a counterclaim. After a hearing, the trial
court issued a March 31, 2023 entry, where it indicated that it was only dealing “with the
Township’s motion for preliminary injunction.” In that entry, the court granted the
preliminary injunction to prevent the Academy from allowing target shooting on the
property it controls other than trap and skeet shooting. The court filed an amended entry
on May 2, 2023. This appeal ensued.
{¶3} On July 13, 2023, appellees filed a motion to dismiss the appeal alleging
that the judgment is not a final appealable order. Appellants filed opposition to the motion
to dismiss.
{¶4} Pursuant to 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. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-
6241, ¶ 3. If a lower court’s order is not final, then an appellate court does not have
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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 (1989).
{¶5} A preliminary injunction is a provisional remedy that is considered
interlocutory and impermanent in nature. Clean Energy Future, LLC v. Clean Energy
Future-Lordstown, LLC, 11th Dist. Trumbull No. 2017-T-0110, 2017-Ohio-9350, ¶ 4.
Thus, a judgment entry granting or denying a preliminary injunction does not automatically
qualify the order as final and appealable. Id.{¶6} According to R.C. 2505.02(B)(4), an order that grants or denies a
provisional remedy is a final appealable order when both of the following apply:
{¶7} “(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.
{¶8} “(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). For an order to be final in a preliminary injunction case, both prongs of
R.C. 2505.02(B)(4) must be met.
{¶10} In the case at hand, the first prong has been met because the trial court’s
March 31 entry granted a preliminary injunction. That entry determined the action with
respect to the provisional remedy and prevented judgment in favor of appellants regarding
that provisional remedy. R.C. 2505.02(B)(4)(a).
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{¶11} The problem is with the second prong. Appellants have to be deprived of a
“meaningful and effective remedy” if they cannot immediately appeal.
{¶12} This court has stated that when a trial court grants a preliminary injunction
in a matter in which the ultimate relief sought is a permanent injunction there is generally
no final appealable order. Fatica Renovations, LLC v. Bridge, 11th Dist. Geauga No.
2017-G-0106, 2017-Ohio-1419, ¶ 13. Courts in Ohio have also held that a preliminary
injunction that maintains the status quo pending a ruling on the merits of the case is not
a final appealable order. Id. at ¶ 14.
{¶13} As to the second prong, pursuant to R.C. 2505.02(B)(4)(b), we find that
appellants would not be denied a meaningful or effective remedy by an appeal following
a final judgment as to all proceedings in this matter. In general, if a permanent injunction
is sought, this allows for a remedy at the conclusion of the proceedings.
{¶14} This is a preliminary injunction case that is subject to further order of the
court, and the requirements of R.C. 2505.02(B) have not been satisfied. Appellants will
have an opportunity to litigate the merits of their claims with the trial court.
{¶15} Accordingly, appellees’ motion to dismiss is granted, and this appeal is
hereby dismissed for lack of a final appealable order.
{¶16} Appeal dismissed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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