Hosta v. Chrysler , 172 Ohio App. 3d 654 ( 2007 )

{¶ 42} I do not agree with the majority that the judgment of November 21, 2006, from which this appeal is taken, ordered injunctive relief. Instead, and because the judgment failed to order such relief, I find that the appeal should be dismissed for lack of a final order.

{¶ 43} Civ.R. 65(D) states:

{¶ 44} "Every order granting aninjunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by referenceto the complaint or other document, the act or acts sought to be restrained; and is binding upon the parties to the action, their officers, agents, servants, employees, attorneys and those persons in active concert or participation with them who receive actual notice of the order whether by personal service or otherwise." (Emphasis added.)

{¶ 45} The judgment of November 21, 2006, from which this appeal was taken, makes no mention of injunctive relief of any kind. Therefore, such relief cannot, consistent with the positive requirements of Civ.R. 65(D), be read into that judgment. Likewise, the judgment cannot be construed to grant or impose injunctive relief "by reference to" the preliminary injunction the court previously ordered on November 9, 2005, either expressly or by implication.

{¶ 46} Plaintiff-appellants sought a declaration pursuant to R.C. 2721.02 that the new board of directors was invalidly elected. They did not likewise ask for injunctive relief on the declaration they sought, which per R.C. 2721.09 the court was authorized to grant. However, Civ.R. 54(C) provides that "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded the relief in the pleadings." (Emphasis added.) Therefore, a summary judgment that determines rights without providing any remedy establishing the respective obligations of the parties to permit compliance or enforcement with the determination is not a final judgment. Coon v. Barnes (1994),95 Ohio App.3d 349, 642 N.E.2d 449.

{¶ 47} The summary judgment determined and declared that the new board of directors was invalidly elected and therefore ultra vires, and that the former board of directors could not act because its term had expired. That determination left the corporation without a board of directors. Yet, except where the stockholders are otherwise specifically authorized to act, "all of the authority of a corporation shall be exercised by or under the direction of its directors." R.C. 1701.59(A). As a result, a corporation lacking a board of directors cannot function. That is why the court entered the preliminary injunction on November 9, 2005.

{¶ 48} Having declared by way of the interlocutory summary judgment that neither board could act for the corporation, the court could not render that interlocutory judgment final without also providing a remedy establishing the obligations of the parties with respect to the rights of the parties relative to control and operation of the corporation that the court had determined. Coon. On this record, that would require the court to appoint some entity to function as the corporation's board, as it had in the preliminary injunction it granted. The judgment of November 21, 2006, failed to do that, and failing to do that the judgment is not final, and not being final the judgment is not appealable pursuant to R.C. 2505.02, even with a Civ.R. 54(B) certification. Id. No certification was made by the court.

{¶ 49} Because the November 21, 2006 judgment was not final and did not by its terms vacate the preliminary injunctive relief the court previously granted, that relief remains in effect. Therefore, on the error assigned, the trial court erred when it held that it lacks jurisdiction to enforce that injunctive relief. Nevertheless, for the reasons stated, I would dismiss the appeal for lack of a final order.