BROOKVILLE EQUIPMENT CORP., Plаintiff-Appellant, v. CITY OF CINCINNATI, Defendant.
APPEAL NO. C-120434
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 15, 2012
2012-Ohio-3648
SYLVIA S. HENDON, Presiding Judge.
Trial No. A-1204469; THE CINCINNATI ENQUIRER, Intervenor-Appellee; CAF USA, INC., Intervenor.
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 15, 2012
Dinsmore & Shohl LLP, Bryan E. Pacheco and Alan H. Abes, for Plaintiff-Appellant,
Graydon Head & Ritchey LLP and John C. Greiner, for Intervenor-Appellee.
Please note: This case has been removed from the accelerated calendar.
{1} Plaintiff-appellant Brookville Equipment Corporation (“Brookville“) appeals the judgment of the Hamilton County Court of Common Pleas denying in part its request for a temporary restraining order and preliminary injunction prohibiting defendant city of Cincinnati (the “City“) from releasing Brookville‘s unredacted proposals for the construction of the City‘s streetcar system to intervenor-appellee The Cincinnati Enquirer, or to anyone else, pursuant to a public-records request, during the pendency of Brookville‘s lawsuit against the City for declaratory judgment and permanent injunction. Because we determine that the trial court did not abuse its discretion in denying Brookville‘s request, we affirm that portion of the trial court‘s judgment.
Factual and Procedural Background
{2} In September 2011, the City issued a request for proposals for the construction of a streetcar system (the “RFP“). The RFP provided that documents submitted to the City as part of a proposal or best аnd final offer would be subject to disclosure under Ohio‘s Public Records Act. The RFP also provided that information a proposer believed to be exempt from disclosure, such as trade-secret information, be set apart on separate pages.
{3} Brookville, a manufacturer of various transportation vehicles, including streetcars, submitted two proposals in response to the RFP (the “Proposals“). At the request of the City, Brookville then submitted its best and final offer for the streetcar (the “BAFO“). Brookville redacted information it believed to be trade secrets from the BAFO.
{5} Unsatisfied with the redacted documents, the Enquirer made a request to the City for “unredacted versions of the bid records.” The City then informed Brookville of the City‘s intent to release the unredacted Proposals and BAFO, absent a court order. Subsequently, Brookville filed a verified complaint in the Hamilton County Court of Common Pleas requesting a declaratory judgment (1) that its unredacted Proposals and BAFO contain trade-secret information аnd (2) that the City cannot disclose this trade-secret information. Brookville also requested a temporary restraining order (“TRO“), preliminary injunction, and permanent injunction prohibiting the City from disclosing its unredacted Proposals and BAFO.
{6} Another streetcar proposer, United Streetcar, LLC, also filed suit against the City to protect its purported trade secrets, which was later consоlidated with Brookville‘s action. A third streetcar proposer, CAF USA, Inc., filed a motion to intervene and also requested injunctive relief prohibiting disclosure of its trade secrets until such time as the City awarded a final contract. The Enquirer also moved to intervene in the action and filed a complaint requesting a declaratory judgment against the City that the streetcar proposals be made available for public inspection.
{8} The trial court refused to stay that portion of its order denying Brookville relief, which would have allowed for immediate disclosure of information. Brookville then filed this appeal from that portion of the trial court‘s order denying its request for TRO and preliminary injunctive relief. We granted Broоkville‘s motion to stay the order of the trial court pending Brookville‘s appeal to this court.
Temporary and Preliminary Injunctive Relief
{9} In its sole assignment of error, Brookville contends that the trial court erred in denying in part its request for a TRO and preliminary injunction.
{10} The purpose of a TRO or preliminary injunctive relief is to preserve the status quo. Acordia of Ohio, LLC v. Fishel, 1st Dist. No. C-100071, 2010-Ohio-6235, ¶ 9. This court reviews a trial court‘s decision granting or denying temporary or preliminary injunctive relief for an abuse of discretion. See Garono v. State, 37 Ohio
{11} A party seeking a TRO or preliminary injunсtive relief must show, by clear and convincing evidence, (1) a substantial likelihood that the party will prevail on the merits, (2) the party will suffer irreparable injury or harm if the requested injunctive relief is denied, (3) no unjustifiable harm to third parties will occur if the injunctive relief is granted, and (4) the injunctive relief requested will serve the public interest. Cincinnati v. Harrison, 1st Dist. No. C-090702, 2010-Ohio-3430, ¶ 8, citing The Proctor & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d 268 (1st Dist.2000). A court must balance all four factors in determining whether to grant or deny injunctive relief, and no one factor is determinative. Toledo Police Patrolman‘s Assn., Local 10, IUPA, AFL-CIO-CLC, v. Toledo, 127 Ohio App.3d 450, 469, 713 N.E.2d 78 (6th Dist.1998).
Likelihood of Success on the Merits
{12} As to the first element of preliminary injunctive relief—likelihood of success on the merits—Brookville asserts that it is likely to prevail on the merits of its suit seeking a declaratory judgment and permanent injunction because the redacted portions of its Proposals and BAFO are trade secrets exempt from disclosure by Ohio‘s Public Records Act,
means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following: (1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascеrtainable by proper means by, other persons who can obtain economic value from its disclosure or use. (2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
{13} The Ohio Supreme Court established a two-part test for determining whether information submitted to a public agency is exempt from disclosure as a trade seсret in State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland, 63 Ohio St.3d 772, 776, 591 N.E.2d 708 (1992): (1) A court must review the documents in camera to determine whether they contain trade-secret information. If the documents do not contain trade-secret information, then they must be disclosed. (2) If the documents contain trade-secret information, however, then the court must
{14} In Allright Parking, the court of appeals in a mandamus action had determined that certain documents submitted to the city of Cleveland as part of a tax-abatement application under
{15} Specifically, the Court determined that
[t]he court of appeals erred in its assumption that once an application is ‘a matter of public record,’ materials that are ancillary to, but submitted with, the application are automatically subject to disclosure. Although the court of appeals was correct that the application itself was a public record because the statute directly provides for its insрection by the public, it incorrectly ruled that all of the documents relating to or submitted with the application were public records and subject to release under
R.C. 149.43 .
{16} In determining whether Brookville‘s Proposals and BAFO were exempt from disclosure, the trial court examined the City‘s requirements for submitting competitive proposals in the Cincinnati Municipal Code.
{17} Brоokville argues that the trial court erred in holding that it waived trade-secret protection. Brookville contends that Allright Parking is distinguishable because in that case a state statute, as opposed to a municipal ordinance, operated to waive trade-secret protection. Brookville is correct insofar as the City‘s competitive-proposal prоcess is governed by
{18} Brookville also argues that the trial court erred in determining that Brookville waived its trade secrets because it complied with the City‘s RFP, which protected trade secrets from disclosure. The language contained in the RFP represented to potential proposers that any disclosure would conform to Ohio‘s Public Records Act. The procedures contained in the RFP were promulgated by a city purchasing agent to whom authority to promulgate procedures for the competitive-proposal process had been delegated. See
{19} Moreover, the Ohio Supreme Court in Allright Parking determined that the party who hаd submitted the tax-abatement application waived its trade secrets despite the fact that the party had been given assurance from the city of Cleveland that such information would be kept confidential. State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland, 8th Dist. No. 57881, 1991 Ohio App. LEXIS 890, *3 (Mar. 1, 1991), rev‘d by Allright Parking, 63 Ohio St.3d 772, 591 N.E.2d 708.
{20} Brookville argues that the use of “public inspection” in
{21} Although we do not agree with Brookville‘s purported definition of the phrase “public inspection” in
The Remaining Factors
{23} Along with likelihood of success on the merits, a party seeking a TRO or preliminary injunctive relief must also show that irreparable injury would result in the absence of injunctive relief. Stoneham, 140 Ohio App.3d at 267, 747 N.E.2d 268. Irreparable injury means a harm for which no plain, adequate, or complete remedy at law exists. Cleveland v. Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 14, 684 N.E.2d 343 (8th Dist.1996). A party does not have to demonstrate actual harm—threatened harm is sufficient. Convergys Corp. v. Tackman, 169 Ohio App.3d 665, 2006-Ohio-6616, 864 N.E.2d 145, ¶ 9 (1st Dist.).
{24} As a general matter, no adequate remedy at law exists for the disclosure of trade secrets. Empower Aviation, LLC v. Butler County Bd. of Commrs., 185 Ohio App.3d 477, 2009-Ohio-6331, 924 N.E.2d 862, ¶ 18 (1st Dist.). Brookville‘s allegation of irreparable harm is greatly weakened, however, given our
{25} As to the remaining factors, the trial court merged the inquiries regarding unjustifiable harm to third parties and the public interest and found that these factors weighed in favor of denying an injunction with respect to the baseline-pricing information, most of the technical and manufacturing information, and the staffing information becausе the public has a strong interest in access to public records. Brookville argues that the trial court ignored the private and public interest in protecting trade secrets, but Brookville‘s argument is undercut in this instance by its decision to participate in a public, competitive-proposal process, which waived trade secrets. Thus, the public interest weighs in favor of dеnying an injunction, and no unjustifiable harm to third parties exists.
Conclusion
{26} In conclusion, because we determine that Brookville waived any trade secrets contained within its Proposals and BAFO, Brookville failed to show a likelihood of success on the merits of its complaint for a declaratory judgment and permanent injunction against the City prohibiting the release of its unredacted Proposals and BAFO. Nor did Brookville establish that the other factors for a TRO or preliminary injunction weighed in favor of granting such relief. Therefore, that portion of the trial court‘s decision from which Brookville has appealed denying Brookville a TRO and preliminary injunction was not abuse of discretion.
{27} Consequently, we overrule Brookville‘s sole assignment of error, and we affirm that part of thе trial court‘s decision denying Brookville‘s requested relief.
Judgment affirmed.
FISCHER, J., dissents.
FISCHER, J., dissenting.
{28} Because I believe that the trial court abused its discretion in denying in part Brookville‘s request for a TRO and preliminary injunction by applying an incorrect legal standard, I respectfully would sustain Brookville‘s assignment of error and remand the cause to the trial court to apply in the first instance the test in Allright Parking, 63 Ohio St.3d 772, 591 N.E.2d 708.
{29} Although the majority implicitly determines that the trial court did not correctly apply Allright Parking and
{30} I believe that the majority goes somewhat too far in deciding the merits of Brookville‘s complaint at this early stage in the proceedings. I would remand the cause to the trial court with instructions to properly apply the test required by the Supreme Court of Ohio in Allright Parking. Specifically, I would instruct the trial court to conduct an evidentiary hearing to determine whether Brookville‘s redacted information is part of its proposal, as defined in Cincinnati
{31} Therefore, I must respectfully dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.