2023 Ohio 3086
Ohio Ct. App.2023Background
- Tavern Building in Troy was damaged by a 2020 tornado; owner 116 West Main LLC (West Main) sought demolition but prior administrative and judicial proceedings required a new certificate of appropriateness after an earlier appellate decision reversed a BZA approval.
- Miami County Chief Building Official (CBO) issued Adjudication Order #0034 and later #0036 finding the building a "serious hazard;" West Main began demolition on March 29, 2023.
- The City of Troy obtained an emergency preliminary injunction stopping demolition; parties then entered an Agreed Preliminary Injunction on April 18, 2023.
- On June 23, 2023 the trial court issued an order: it would not order immediate demolition, it directed West Main to shore up the north exterior third-floor brick wall by July 7, 2023, and announced intent to appoint a court expert at shared expense; related cases were consolidated.
- West Main appealed; the appellate court issued a show-cause on finality. The court concluded the shoring directive was a final, appealable provisional remedy because compliance could impose substantial unrecoverable expense, but the order preserving the status quo by enjoining immediate demolition and the announced (not-yet-entered) expert appointment were not final.
- The appellate court stayed the shoring deadline pending appeal, consolidated the appeals, ordered an expedited schedule, and limited the appeal’s scope to the shoring order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the June 23 order (prohibiting immediate demolition and ordering shoring) is a final appealable order under R.C. 2505.02(B)(4) | West Main: order is final because it grants/denies provisional remedies and requires cost-prohibitive action that cannot be remedied after final judgment | Evil Empire/CBO: order is a non-final status/status‑quo order or routine repair order; any appeal should await final judgment | Court: split result — the prohibition on demolition is status‑quo and not final; the mandatory shoring order is final and appealable because compliance may cause substantial unrecoverable expense (R.C. 2505.02(B)(4)) |
| Whether appointment (and cost‑allocation) of a court-appointed expert is a final appealable order | West Main: announcement of appointment and cost‑sharing is final and appealable | Evil Empire/CBO: appointment is interlocutory and reviewable after final judgment | Court: not final — the June 23 entry merely announced intent and expert appointment and cost allocation are interlocutory and can be reviewed after final judgment |
| Whether the appellate court should stay enforcement of the shoring directive pending appeal | West Main: enforcement should be stayed because the shoring order is appealable and would otherwise force costly compliance | CBO/Troy: enforcement should continue to protect public safety (CBO sought enforcement) | Court: granted a stay of the shoring order pending appeal; injunctive prohibition on demolition and expert appointment remain in effect |
Key Cases Cited
- Gen. Acc. Ins. v. Ins. Co. of N. Am., 44 Ohio St.3d 17 (Ohio 1989) (interlocutory appeal jurisdiction depends on whether order is a final order)
- In re Special Docket No. 73958, 115 Ohio St.3d 425 (Ohio 2007) (finality requires "nothing further" for trial court to decide regarding the provisional remedy)
- State v. Muncie, 91 Ohio St.3d 440 (Ohio 2000) ("unringing the bell" standard for irreparable/unremediable injury in interlocutory appeals)
- Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158 (Ohio 2007) (orders imposing significant unavoidable litigation expense may be immediately appealable)
- Cleveland Hous. Renewal Project, Inc. v. Wells Fargo Bank, N.A., 188 Ohio App.3d 36 (Ohio App.) (preliminary injunction requiring large expenditures rendered the order effectively final because compliance risked unrecoverable loss)
- Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590 (Ohio 1995) (injunctions are reviewed for abuse of discretion)
- State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30 (Ohio 2011) (trial court divested of jurisdiction over matters inconsistent with the appellate court’s jurisdiction)