DocketNumber: No. 2007-A-0063.
Citation Numbers: 2007 Ohio 5619
Judges: CYNTHIA WESTCOTT RICE, P.J.
Filed Date: 10/19/2007
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Appellees filed a motion to dismiss the appeal with this court on August 15, 2007. Appellees allege that the appealed order is not a final appealable order. Specifically, appellees allege that the order appealed from granted a preliminary injunction, which is a provisional remedy; therefore, the granting of the preliminary injunction is a final appealable order only if it satisfies the two prong test in R.C.
{¶ 3} Appellants filed a response to appellees' motion to dismiss on August 24, 2007. In their response, appellants claim that the trial court's granting of a temporary restraining order is a final appealable order.
{¶ 4} According to Section
{¶ 5} "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
{¶ 6} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
{¶ 7} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
{¶ 8} "(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶ 9} "(4) An order that grants or denies a provisional remedy and to which both of the following apply:
{¶ 10} "(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.
{¶ 11} "(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.
{¶ 12} "(5) An order that determines that an action may or may not be maintained as a class action * * *."
{¶ 13} A "provisional remedy" is defined as "a proceeding ancillary to an action" and specifically includes a proceeding for a preliminary injunction. R.C.
{¶ 14} In the instant matter, the first prong has been established. The trial court issued an order granting a preliminary injunction. That order determines the action with respect to the provisional remedy and prevents judgment in favor of appellants with regard to that provisional remedy.
{¶ 15} The problem is with the second prong. Appellants have to be deprived of "a meaningful and effective remedy" if they cannot appeal now. In Woodbridge Condominium Owners' Assn. v. Friedland, 11th Dist. No. 2003-L-073,
{¶ 16} Furthermore, the Ohio courts have held 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." E. ClevelandFirefighters, IAFF Local 500 v. E. Cleveland, 8th Dist. No. 88273,
{¶ 17} Here, in the July 3, 2007 entry, the trial court explains that "[o]ne of the purposes of a preliminary injunction is to maintain thestatus quo, pending a determination of the merits of the underlying claims of the parties." (Emphasis sic.) It appears as though the trial court is attempting to maintain the status quo by ordering appellants to remove the obstruction. In addition, if this case were to proceed to final *Page 5 judgment, and the trial court granted a permanent injunction to appellees, appellants would have the ability to appeal the judgment to this court.
{¶ 18} For the foregoing reasons, it is our position that the trial court's granting of appellees' preliminary injunction does not satisfy the requirements of a final order under R.C.
{¶ 19} Appeal dismissed.
*Page 1COLLEEN MARY OTOOLE, J., TIMOTHY P. CANNON, J., concur.
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