CLEAN ENERGY FUTURE, LLC, Plаintiff-Appellee, - vs - CLEAN ENERGY FUTURE-LORDSTOWN, LLC, Defendant-Appellant.
CASE NO. 2017-T-0110
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
December 28, 2017
[Cite as Clean Energy Future, L.L.C. v. Clean Energy Future-Lordstown, L.L.C., 2017-Ohio-9350.]
TIMOTHY P. CANNON, J.
Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2017 CV 01636. Judgment: Appеal dismissed.
Andrew C. Phelan, pro hac vice, Morgan Lewis & Bockius, LLP, One Federal Street, Boston, MA 02110; Andrew James Barber, Morgan Lewis & Bockius, LLP, One Oxford Centre, 32nd Floor, Pittsburgh, PA 15219 (For Plaintiff-Appellee).
Scott Edward North and Kirsten Rene Fraser, Porter Wright Morris & Arthur, LLP, 41 South High Street, Suites 2800-3200, Columbus, OH 43215 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} On November 30, 2017, Defendant-Appellant Clean Energy Future-Lordstown, LLC (“CEF-L”), filed a notice of appeal from the judgment of the Trumbull County Court of Common Pleas, which adopted the Magistrate’s Decision and Recommendations of November 3, 2017. CEF-L filed a motion to stay the trial court’s judgment, pending the outcome of this appeal, on December 15, 2017. This court granted a temporary stay on December 19, 2017. On December 28, 2017, Plaintiff-Appellee
{¶2} CEF commenced this action on September 20, 2017, for breach of contract, declaratory judgment, specific performance, and permanent injunctive relief regаrding an Agreement for Option and Purchase of certain real property (“Option Agreement”). CEF also moved the trial court to enter a preliminary injunction requiring CEF-L to perform under the Option Agreement, including signing and consenting to the Fifth Addendum to the Declaration of Covenants and Restrictions for Lordstown Industrial Park. In an entry dated November 28, 2017, the trial court granted the preliminary injunction, stating:
Until further ORDER of this Court, Defendant, [CEF-L] is mandated to immediately sign the acknowledgment and consent to the Fifth Addendum To Declaration Of Covenants And Restrictions For Lordstown Industrial Park that CEF provided to CEF-L for such signature. CEF-L is further mandated to comply fully with the Agreement For Option And Purchase dated April 6, 2016, including its assistance and cooperation provisions in Sections 7 and 22, and so is barred from taking any action that delays or interferes with, or in any aspect of, any effort by CEF to dеvelop and build any aspect of any energy facility within the Lordstown Industrial Park, including but not limited to, the transfer of the property upon exercise of the option оn or after January 1, 2018 by CEF. Plaintiff shall post a bond in the amount of One Hundred Thousand Dollars ($100,000.00).
{¶3} Pursuant to
{¶4} “A preliminary injunction is a provisional remedy that is considered interlocutory, tentative, and impermanent in nature. As such, an order granting or denying
- The order in effect determines the action with respect to the provisional rеmedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy;
- The appealing party would not bе afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
Whether thе granting of a preliminary injunction is a final appealable order is, therefore, dependent on the circumstances of each case.
{¶5} “The first of these requirements,
{¶6} CEF-L argues the trial court did not act to preserve the status quo because it orders CEF-L to take an affirmative action by signing the Fifth Addendum. The trial court explained that “[p]reserving the status quo in this situation requires an affirmative action, because the ‘status quo’ is the parties’ rights and obligations under the Option Agreement.” As the trial court explained,
The language of the Option Agreement is unаmbiguous and requires CEF-L to ‘reasonably assist in any capacity as requested by Purchaser (CEF) to facilitate Purchaser’s intended use of the Option Property for Purchasеr’s Improvements…’ and ‘to cooperate … in good faith, and to deal fairly with one another, so as to effect the consummation of the transactions cоntemplated hereby…’. There is no conditional language in the option agreement. The only way to preserve the status quo – the obligations under the Option Agreеment agreed to by both parties – is to require CEF-L to sign the Addendum. Ordering a party to act on a previously agreed upon contractual obligation is merely upholding аnd preserving the terms contained therein.
Based on the limited record before us, we do not disagree with the trial court’s preliminary assessment of the lack of merit in аppellant’s position on this issue. We agree with the trial court that it has essentially acted to maintain the status quo. Assuming arguendo, however, that the status quo in this case has not been preserved, both prongs of
{¶7} Ohio courts generally hold that the second prong of
{¶8} “Moreover, it has been held that ‘[c]alculable monetary losses and losses incurred during the pendency of the case can be remedied by money damаges at the conclusion of the case, so there is generally no right to an immediate appeal from the ruling on the preliminary injunction.’” Aquasea Group, supra, at ¶12, quoting Cleveland Clinic Found., supra, at ¶14. See also Simmons v. Trumbull Cty. Engineer, 11th Dist. Trumbull No. 2004-T-0016, 2004-Ohio-1663, ¶11 (where a party would be entitled to monetary damages for any loss suffered from a preliminary injunction, the order was not final).
{¶9} CEF-L asserts it will suffer an “average annual loss of $6.7 million” between the years 2021 and 2036 if it is required to comply with the trial court’s preliminary injunction. This buttresses our determination that CEF-L will be afforded a meaningful and effective remedy at the conclusiоn of proceedings in this matter. Not only does CEF-L admit its asserted losses are monetary, it also indicates these losses will not come to fruition for another three yеars, likely well after this case has been finally decided on its merits.
{¶10} This is a preliminary injunction, one that is subject to “further order of the court.” In addition, there is a pending motion in the trial court to refer the matter to arbitration based on a provision in the Option Agreement. CEF is ultimately seeking a permanent injunction, and CEF-L will have an opрortunity to litigate the merits of its
{¶11} This case is dissimilar to other scenarios where cоurts have held that no meaningful remedy exists because the inability to pursue an appeal would cause irreparable damage. Examples of such scenarios include when trade secrets may be revealed, privileged information may be disclosed, or business relationships with third parties may be destroyed. See LCP Holding Co. v. Taylor, 158 Ohio App.3d 546, 2004-Ohio-5324 (11th Dist.); Callahan v. Akron Gen. Med. Ctr., 9th Dist. Summit No. 22387, 2005-Ohio-5103; Bob Krihwan Pontiac–GMC Truck, Inc. v. General Motors Corp., 141 Ohio App.3d 777 (10th Dist.2001).
{¶12} Under the сircumstances of this case, the requirements set forth in
{¶13} Appeal dismissed.
CYNTHIA WESTCOTT RICE, P.J.,
THOMAS R. WRIGHT, J.,
concur.