State ex rel. DeWine v. 333 Joseph, L.L.C.
21 N.E.3d 1142
Ohio Ct. App.2014Background
- In July 2013 the Ohio Attorney General sued 333 Joseph, LLC and its member alleging illegal demolition and asbestos-related violations at 333 Joseph Street and sought injunctive relief and civil penalties under R.C. Chapter 3704 and related statutes.
- The State relied heavily on Director’s Final Findings and Orders (Director’s Orders) issued by the Ohio EPA Director on October 31, 2012, which allegedly required asbestos removal, fencing to prevent public access, and proper disposal by December 31, 2012.
- The trial court held a hearing on the State’s motion for a preliminary injunction, admitted a photocopy of a certified photocopy of the Director’s Orders into evidence (Exhibit 6) over 333 Joseph’s objection, and applied the preponderance standard to grant the injunction.
- 333 Joseph contested admission/authentication of the Director’s Orders, argued the State must prove its case by clear and convincing evidence, disputed the presence/hazard of asbestos, and noted it had not appealed the Director’s Orders.
- The appellate court reviewed four assignments of error addressing Civ.R. 65 incorporation, standard of proof for statutory injunctions, sufficiency/weight of the evidence on asbestos, and admissibility/service of the Director’s Orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper evidentiary admission/authentication of Director’s Orders | State: Exhibit 6 is a public record and self-authenticating; supports injunction | 333 Joseph: Exhibit 6 is only a photocopy of a certified photocopy and was not properly authenticated or shown served | Court: Admission was erroneous — Exhibit 6 was not properly authenticated; fourth assignment sustained |
| Applicable standard of proof for statutory preliminary injunction (R.C. 3704.06) | State: statutory injunctions need only preponderance since statutory remedy differs from equitable injunction | 333 Joseph: State must prove statutory violation by clear and convincing evidence before issuing preliminary injunction | Court: Clear and convincing standard applies to statutory preliminary injunction here; trial court erred in applying preponderance; second assignment sustained |
| Whether evidence proved presence/hazard of asbestos (manifest weight) | State: Director’s Orders and witness testimony showed ongoing violations and remaining regulated asbestos-containing material | 333 Joseph: Witness testimony did not prove asbestos/hazard; site not dangerous; trial court shouldn’t shortcut full merits trial | Court: Because Director’s Orders were improperly admitted and State did not meet clear-and-convincing standard with remaining evidence, grant of injunction was against manifest weight; third assignment sustained |
| Compliance with Civ.R. 65 re: incorporation of external documents in injunction | State: injunction can reference Director’s Orders to effect cleanup | 333 Joseph: Trial court erred by incorporating external documents in injunction in contravention of Civ.R. 65 | Court: Moot after reversing and vacating injunction; first assignment rendered moot by disposition |
Key Cases Cited
- Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51 (Ohio 1978) (statutory injunctive remedies alter traditional equity requirements but did not decide evidentiary standard)
- Davis v. Widman, 184 Ohio App.3d 705 (Ohio Ct. App. 2009) (describes traditional clear-and-convincing standard for preliminary injunctions)
- Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260 (Ohio Ct. App. 2000) (sets out elements typically required for injunctive relief)
- Freeman v. Pierce, 61 Ohio App.3d 663 (Ohio Ct. App. 1991) (applies clear-and-convincing standard to nuisance abatement statutory actions)
- Pizza v. Strope, 54 Ohio St.3d 41 (Ohio 1990) (civil nuisance/abatement context uses civil standards for proof)
- Hydrofarm, Inc. v. Orendorff, 180 Ohio App.3d 339 (Ohio Ct. App. 2008) (reaffirms clear-and-convincing requirement for preliminary injunctions)
- State ex rel. Taft v. Franklin Cty. Court of Common Pleas, 63 Ohio St.3d 190 (Ohio 1992) (addresses admissibility of uncertified public-record copies)
- Zavakos v. Zavakos Enterprises, Inc., 63 Ohio App.3d 100 (Ohio Ct. App. 1991) (discusses equitable standards and burdens for injunctions)
- Southern Ohio Bank v. Southern Ohio Sav. Ass’n, 51 Ohio App.2d 67 (Ohio Ct. App. 1976) (equitable injunction standards)
- White v. Long, 12 Ohio App.2d 136 (Ohio Ct. App. 1967) (discusses evidentiary burdens in injunction contexts)