England v. 116 W. Main, L.L.C.England v. 116 W. Main, L.L.C.
PER CURIAM:
{¶ 1} On Junе 30, 2023, 116 West Main LLC and Randy Kimmel (collectively, “West Main“) appealed the trial court‘s June 23, 2023, “Entry and Order Concerning Status of Tavern Building and Selection of Court-Appointed Expert Witness” in Miami County Common Pleas Court Case No. 23 CV 00238. It appeared to this court that the trial court‘s order was not a final order. See
I. Factual Background
{¶ 2} The order on appeal concerns the status of the “Tavern Building” in Troy‘s downtown historic district. After the Tavern Building sustained tornado damage in 2020, its owner, West Main, sought to demolish the structure. Evil Empire, LLC v. Troy Bd. of Zoning Appeals, 2d Dist. Miami No. 2022-CA-25, 2023-Ohio-960, ¶ 4. West Main applied for and obtained a certificate of appropriateness under the Troy Codified Ordinances to demolish the building from Troy‘s planning commission. Id. Adjoining landowners, i.e., Evil Empire, and others appealed the planning commission‘s decision to the Troy Board of Zoning Appeals (“BZA“). Id. at ¶ 4-5. The BZA approved West Main‘s applicatiоn with modifications. Id. at 5.
{¶ 3} Evil Empire appealed the BZA‘s decision to the Miami County Common Pleas Court (Case No. 21 CV 00378). Id. at ¶ 8. The common pleas court determined that the BZA‘s decision was arbitrary, unreasonable, and unsupported by a preponderance of substantial, reliable, and probative evidence. Id. at ¶ 9. West Main appealed the common pleas court‘s decision. On March 24, 2023, this court determined that the common pleas court did not abuse its discretion in reversing the BZA‘s decision. Id. at ¶ 34. Therefore, as of March 24, 2023, it appeared that if West Main intended to demolish the Tavern
A. March 29, 2023 – West Main Begins Demolition of the Tavern Building and the Trial Court Enjoins Demolition
{¶ 4} On March 27, 2023, Rob England, in his capacity as Chief Building Official for the Miami County Building Department (the “CBO“), issued Adjudication Order #0034 finding the Tavern Building to be a “serious hazard” to be “abated” within 14 days. West Main interpreted the adjudication order to allow demolition of the Tavern Building in accordance with Section 109 of the Ohio Building Code and without need for a certificate of appropriateness pursuant to Troy Codified Ordinance 1143.22(q). In the early morning hours of March 29, 2023, West Main began to demolish the Tаvern Building.
{¶ 5} On March 29, 2023, at 8:51 a.m., the City of Troy filed a complaint in the common pleas court seeking preliminary and permanent injunctive relief to restrain West Main from demolishing the Tavern Building without obtaining a certificate of appropriateness under its ordinances (Case No. 23 CV 00109).2 At 8:57 a.m., the trial court granted Troy‘s request for a preliminary injunction restraining West Main from “[d]emolishing, razing, or otherwise removing any part of” the Tavern Building.
{¶ 6} Evil Empire moved to intervene and filed a complaint seeking a declaration that West Main could not demolish the Tavern Building without a certificate of
{¶ 7} After an emergency hearing to determine the risk of structural collapse at 3:00 p.m., the trial court set a hearing on the preliminary injunction requests for April 4, 2023, which was later continued to April 18, 2023.
B. An Agreed Preliminary Injunction is Entered
{¶ 8} Before the April 18, 2023, hearing, West Main moved to dissolve the рreliminary injunction issued on March 29, 2023. Troy and Evil Empire responded in opposition to the motion. The CBO then withdrew Adjudication Order #0034.
{¶ 9} On April 18, 2023, the trial court entered an “Agreed Preliminary Injunction Order” restraining West Main from “demolishing, razing, or otherwise removing any part of the [Tavern Building], unless otherwise directed by the Court.” The parties agreed to
C. The CBO Issues Adjudication Order #0036 and New Litigation Ensues
{¶ 10} On May 9, 2023, the CBO issued Adjudication Order #0036 finding the Tavern Building to be a “serious hazard” and ordered West Main to “abate all unsafe conditions immediately.” In the common pleas court, West Main renewed their motion to dissolve the preliminary injunction prohibiting demolition of the Tavern Building. On May 23, 2023, the trial court stayed all deadlines in the case with the apparent goal of allowing the parties time to reach a settlement. The trial court ordered that “[w]hile the matter remains pending, [West Main] agree[s] that the building will not be demolished.”
{¶ 11} On June 16, 2023, the CBO filed a complaint in the common pleas court seeking preliminary and permanent injunctive relief to restrain West Main “from continuing to violate Miami County Department of Development Adjudicаtion Order #0036 and requiring that [West Main] immediately raze” the Tavern Building (Case No. 23 CV 00238). On June 21, 2023, the trial court conducted a status conference, at which all parties to Miami County Common Pleas Court Case Nos. 23 CV 00109 and 00238 appeared.
D. June 23, 2023 – The Trial Court Issues the Order on Appeal
{¶ 12} On June 23, 2023, the trial court issued an “Entry and Order Concerning Status of Tavern Building and Selection of Court-Appointed Expert Witness.” In pertinent part, the order states that “[t]he Court will not order the immediate demolition of the Tavern Building.” Further, the trial court orders West Main, “after consultation with [the CBO] and [Troy Fire] Chief Simmons, to take whatever steps necessary to shore-up the exterior brick wall on the north side of the third floor of the Tavern Building, so that it is no longer
II. Law & Analysis
{¶ 13} The court of appeals lacks jurisdiction to review any order that is not a final order. See
(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.
(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.
{¶ 14} The parties agree that
A. Orders Prohibiting Immediate Demolition and Mandating that West Main Shore Up the Tavern Building
1. The Order Grants or Denies a Provisional Remedy.
{¶ 15} The parties disagree about whether the June 23 Order grants or denies a provisional remedy. Evil Empire contends that the order is merely a status order and not reviewable. In contrast, West Main argues that the June 23 Order grants or denies a preliminary injunction.
{¶ 16} A “provisional remedy” is “а proceeding ancillary to an action, including * * a preliminary injunction.”
{¶ 17} To determine the nature of the trial court‘s order, we review the substance and effect of the order. Although the trial court has denominated its order as a “status order,” this language is not dispositive. Here, it appears that, before deciding the consolidated common pleas court cases on their respective merits, the trial court has issued a prohibitory injunction preventing West Main from complying with the CBO‘s Adjudication Order #0036, i.e., immediately razing the Tavern Building. In this respect, the trial court has denied the preliminary injunctive relief sought by the CBO and has granted, at least in part, the preliminary injunctive relief sought by Evil Empire. The trial court has also issued a mandatory preliminary injunction that West Main “shore-up” the exterior brick wall on the north side of the third floor of the Tavern Building to prevent a structural collapse, which is consistent with the preliminary injunctive relief sought by Evil Empire. Therefore, we agree with West Main that the June 23 Order grants or denies a provisional remedy, i.e., a preliminary injunction.
2. Additional Analytical Steps
{¶ 18} Although an order granting or denying a preliminary injunction is a provisional remedy, this alone does not determine whether this court has jurisdiction to review the order. “Preliminary injunctions are considered interlocutory, tentative, and impermanent in nature.” McHenry v. McHenry, 5th Dist. Stark No. 2013CA00001, 2013-Ohio-3693, ¶ 9, citing Quinlivan v. H.E.A.T. Total Facility Solutions, Inc., 6th Dist. Lucas App. No. L-10-1058, 2010-Ohio-1603, ¶ 3. “The burden of establishing the appellate court‘s jurisdiction over an interlocutory appeal ‘falls on the party who knocks on the
a. R.C. 2505.02(B)(4)(a) is Satisfied.
{¶ 19} We find that the trial court‘s order determines the action with respect to each preliminary injunction and prevents a judgment in the action in favor of the appealing party with respect to each preliminary injunction. See
b. R.C. 2505.02(B)(4)(b) is Satisfied.
{¶ 20} The First District Court of Appeals has identified three lines of caselaw interpreting the “meaningful or effeсtive remedy” requirement under
- (1) cases recognizing that preservation of the status quo generally fails to satisfy the requirements of finality;
- (2) cases holding that a preliminary injunction does not meet the standard of
R.C. 2505.02(B)(4)(b) when the plaintiff ultimately seeks a permanent injunction; and - (3) cases illustrating the “unringing” of the bell concept.
We proceed to apply these cases, in turn, to the trial court‘s demolition and shoring orders.
{¶ 21} A preliminary injunction which maintains the status quo pending a ruling on the merits is not a final order. See, e.g., Taxiputinbay, LLC v. Put-in-Bay, 6th Dist. Ottawa No. OT-20-021, 2021-Ohio-191, at ¶ 17. “Status quo” means “the last, actual, peaceable, uncontested status which preceded the pending controversy.” Id. Evil Empire argues that the trial court‘s оrder enjoining the immediate demolition of the Tavern Building, i.e., “[t]he Court will not order the immediate demolition of the Tavern Building,” is not final because it merely preserves the status quo. West Main does not make any argument to the contrary. Before Troy, Evil Empire, and the CBO filed their complaints, the greater part of
{¶ 22} The portion of trial court‘s order commanding West Main to “shore up” the Tavern Building, however, merits additional consideration. Unlike the trial court‘s order prohibiting immediate demolition of the structure, the shoring order requires West Main to take affirmative action, i.e., “whatever steps necessary to shore-up the exterior brick wall on the north side of the third floor of the Tavern Building.” Evil Empire does not consider this distinction to be significant. Repair orders, which the trial court has previously issued, Evil Empire argues, safeguard the Tavern Building from (further) deterioration during the (presumably) short time in which litigation is pending. Accordingly, Evil Empire concludes that the shoring order preserves the status quo and is not reviewable.
{¶ 23} Evil Empire‘s argument is not entirely convincing. Arguably, an order maintaining the status quo would simply leave the Tavern Building in the state in which it existed on March 29, 2023, when demolition stopped. Here, the trial court‘s order does
While analysis of the status quo can provide a meaningful guidepost in understanding whether a provisional remedy meets the requirement of
R.C. 2505.02(B)(4)(b) , the ultimate question remains whether the appealing party would be afforded a meaningful or effective remedy by an appeal following final judgment.
Columbus v. State, 10th Dist. Franklin No. 22AP-676, 2023-Ohio-195, ¶ 16.
Evil Empire argues that West Main has a meaningful and effective remedy by an appeal from the shoring order following final judgment. Ordinarily, “the granting of a temporary or preliminary injunction, in a suit in which the ultimate reliеf sought is a permanent injunction, is generally not a final appealable order.” See, e.g., Taxiputinbay, 2021-Ohio-191, at ¶ 12, quoting Woodbridge Condominium Owners’ Assn. v. Friedland, 11th Dist. Lake No. 2003-L-072, 2004-Ohio-14, ¶ 4. The underlying rationale supporting this conclusion is that “generally, if a permanent injunction is sought, this will allow for a remedy at the conclusion of the proceedings.” Fatica Renovations, LLC v. Bridge, 11th Dist. Geauga No. 2017-G-0106, 2017-Ohio-1419, ¶ 15. Here, Evil Empire has sought permanent injunctive relief mandating repair and remediation of the Tavern Building. The trial court‘s shoring order grants that relief on a preliminary basis. Thus, Evil Empire argues, West Main may appeal if the trial court grants permanent injunctive relief to Evil
{¶ 24} Although this line of cases would appear to foreclose an interlocutory appeal of the shoring order, we find that it does not adequately consider the issue of the potential expense that West Main may incur by complying with the shoring order. The fundamental principle underpinning this court‘s review of interlocutory orders under
{¶ 25} West Main argues that it cannot obtain meaningful and effective relief on appeal after final judgment because the preliminary injunction requires that they “undertake cost-prohibitive – but ultimately meaningless – repairs” to the Tavern Building. West Main estimates that the cost of complying with the trial court‘s shoring order would exceed $225,000. Troy appears to accept West Main‘s estimate as accurate, whereas Evil Empire argues that West Main‘s estimate is inflated. Evil Empire suggests that shoring up the Tavern Building might cost as little as $35,000.
{¶ 26} Next, West Main compares the cost of compliance with the ecоnomic value of the Tavern Building. West Main states that the Tavern Building, and the land on which it sits, was appraised at $440,000 in 2020. Further, West Main indicates that it received a $456,000 offer for the Tavern Building in September 2021, contingent on demolition of the structure. Demolition of the Tavern Building itself would cost $250,000. Moreover, complete repair and remediation of the structure would allegedly cost more than $2.8 million. All of which is to say, West Main alleges that it would be deprived of much of the economic value of the Tavern Building, if it complies with the trial court‘s shoring order and is subsequently permitted to demolish the Tavern Building following final judgment on the merits. Waiting for appellate review after a final judgment on the merits would be akin to a futile attempt to unring the proverbial bell.
{¶ 27} Ordinarily, arguments that an “appeal from any subsequent adverse final judgment would be inadequate due to time and expense are without merit.” See State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 626, 665 N.E.2d 212 (1996); Gardner v. Ford, 1st Dist. Hamilton No. C-150018, 2015-Ohio-4242, ¶ 8 (DeWine, J.) (“the prospect of high litigation costs does not make a remedy following final judgment unmeaningful or ineffective“); accord Katherine‘s Collection, Inc. v. Kleski, 9th Dist. Summit No. 26477, 2013-Ohio-1530, ¶ 13 (financial hardship caused by loss of employment under preliminary injunction did not create jurisdiction under
{¶ 28} To illustrate the point, in Cleveland Hous. Renewal Project, Inc. v. Wells Fargo Bank, N.A., 188 Ohio App.3d 36, 2010-Ohio-2351, 934 N.E.2d 372 (8th Dist.), the Eighth District Court of Appeals considered the finality of an order granting preliminary
In order to comply with the mandates of the preliminary injunction, Wells Fargo would be required to expend a substantial amount of money. According to Wells Fargo, financial prudence would require it to demolish the homes, which would cost approximately $10,000 per property. Since Wells Fargo currently owns 180 homes in Cleveland, this could result in Wells Fargo expending $1.8 million in order to comply with the trial court‘s order. We recognize that Wells Fargo could forego demolition and make the necessary repairs, but there is no guarantеe that it would recoup its expenses if it then attempted to transfer the properties. We acknowledge that the trial court required [non-profit corporation] to post bonds when granting the TRO and preliminary injunction, but these bonds amount to less than $20,000 and would not reimburse Wells Fargo for its losses should it prove that the preliminary injunction was improvidently granted.
{¶ 29} Thus, the Eighth District concluded that the preliminary injunction was a final order because no remedy was available in a direct appeal that would effectively and meaningfully compensate Wells Fargo for losses sustained if it complied with the trial court‘s prеliminary injunction. Id. at ¶ 22. These losses were distinct from the garden variety losses of time and expense faced in ordinary civil litigation.
{¶ 30} Here, as in Wells Fargo, compliance with the trial court‘s order will require West Main to spend money – potentially a substantial amount of money. While the
B. Appointment of Independent Expert Witness
{¶ 31} West Main argues that the trial court‘s announcement of its intention to appoint an independent expert witness to provide information about the condition of the
III. Conclusion
{¶ 32} For all the foregoing reasons, this court‘s July 5, 2023, show cause order in Miami County Appellate Case No. 2023-CA-19 is SATISFIED; however, the scope of this appeal is limited to review of the trial court‘s June 23, 2023, shoring order. Having found
{¶ 33} In making this determination, we are mindful that a “trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court‘s jurisdiction to reverse, modify, or affirm the judgment.” State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 13 (internal citation and quotations omitted). This principle holds true even in the context of interlocutory appeals of finаl orders. State ex rel. Bohlen v. Halliday, 164 Ohio St.3d 121, 2021-Ohio-194, 172 N.E.3d 114, ¶ 25. Nevertheless, the trial court does not lose all jurisdiction pending appeal. In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9 (“The trial court retains jurisdiction over issues not inconsistent with the appellate court‘s jurisdiction to reverse, modify, or affirm the judgment appealed from“). Accordingly, this Order should not be interpreted as preventing the parties and their experts from providing the trial court with information regarding the condition of the Tavern Building or preventing the trial court from issuing orders that are consistent with its jurisdiction while this appeal is pending.
IV. Consolidation
{¶ 34} It is ORDERED that Miami County Appellate Case Nos. 2023-CA-19 and 2023-CA-22, are consolidated for the purpose of appellate review. All future filings in this matter shall retain the caption as noted above and bear all case numbers. 116 West Main
V. Stay
{¶ 35} Because we have determined that the trial court‘s June 23 Order is a final order to the extent that it orders 116 West Main LLC to “take whatever steps necessary to shore-up the exterior brick wall on the north side of the third floor of the Tavern Building” on or before July 7, 2023, this court sua sponte reconsiders its July 7, 2023, “Order Overruling West Main and Kimmel‘s Emergency Motion to Stay Enforcement of Trial Orders” in Miami County Appellate Case No. 2023-CA-19.
{¶ 36} Upon reconsideration, we SUSTAIN West Main‘s motion, in part, and OVERRULE the motion in part. The trial court‘s order that 116 West Main LLC “take whatever steps necessary to shore-up the exterior brick wall on the north side of the third floor of the Tavern Building” on or before July 7, 2023, is STAYED pending resolution of this appeal. The trial court‘s orders enjoining the immediate demolition of the Tavern Building and announcing its intention to appoint an expert witness are not affected by our reconsideration of this matter.
{¶ 37} The CBO‘s August 2, 2023, motion to stay the June 23 Order in Miami County Appellate Case No. 2023-CA-22 is also SUSTAINED, in part, and OVERRULED, in part, to the same extent.
VI. Expedition
{¶ 38} On July 12, 2023, Wеst Main filed an “Application Requesting Accelerated Docket Review and Determination” in Miami County Appellate Case No. 2023-CA-19. On July 28, 2023, the CBO filed an identically styled application in Miami County Appellate
{¶ 39} Although this appeal will not be placed on the accelerated docket under
VII. Motion to Supplement the Record
{¶ 40} On August 2, 2023, West Main moved to supplement the record in Miami County Appellate Case No. 2023-CA-19 with additional docket entries in Miami County Common Pleas Court Case No. 23 CV 00109. The motion is SUSTAINED, in part, and OVERRULED, in part. The clerk of the trial court is ORDERED to prepare, assemble, and submit to the clerk of the court of appeals the following entries:
- Entry #42 – filed April 6, 2023 – Entry Scheduling a Hearing for April 18, 2023, at 8:30 AM
- Entry #103 – filed May 9, 2023 – Entry Scheduling a Status Conference for May 11, 2023, at 2:00 PM
- Entry #113 – filed May 17, 2023 – Subpoena to Rob England to Appear at Hearing
- Entry #117 – filed May 19, 2023 – Entry Scheduling a Hearing for May 24, 2023, at 8:30 AM.
The remainder of the material requested to be added to the record is material that was not part of the trial court proceedings when the trial court‘s June 23 Order was issued
{¶ 41} Appellants shall file their briefs 20 days from the amended
VIII. Oral Argument
{¶ 42} West Main and the CBO have requested oral argument. Their requests are OVERRULED at this time. Oral argument shаll be requested in accordance with
{¶ 43} SO ORDERED.
MICHAEL L. TUCKER, JUDGE
CHRISTOPHER B. EPLEY, JUDGE
RONALD C. LEWIS, JUDGE