McGuire v. ZarlaMcGuire v. Zarla
- Reporters:
- ,
- Before:
- Donna J. Carr, Whitmore, Moore
CARR, Judge.
{¶1} Appellant, Brian Zarle, appeals the judgment of the Summit Cоunty Court of Common Pleas. This Court dismisses the appeal.
I.
{¶2} This case arises out of a dispute between Brian Zarle and appellee, David McGuire, regarding the nature of their business relationship. In lаte 2004, the two men began working together in a hardwood flooring business. Zarle maintains that the business, called “McGuire‘s Hardwood Floors,” was a partnership between him and McGuire. McGuire denies that a рartnership existed and contends that Zarle was hired as an employee. The two men worked together in some capacity from 2005 to 2007 at McGuire Hardwood Floors. In late 2007, McGuire informed Zаrle that he wanted to discontinue their relationship because McGuire was entering into a partnership with R.J.‘s Floors. While McGuire began working at a business known as “Dave McGuire and Ron Joseph Hardwood Floors,” Zarle registered the trade name
{¶3} On May 11, 2011, McGuire filed a complaint against Zarle, alleging a claim of tortious interference and/or conversion as a result of Zarle‘s use of McGuire‘s name, and requesting both temporary and permanent injunctive relief to enjoin and restrain Zarle from doing business under the name “McGuire‘s Hardwood Floors” or “McGuire‘s Hardwood Flooring.” The trial court promptly scheduled a hearing for June 1, 2011, on McGuire‘s requеst for a temporary restraining order. On June 2, 2011, the trial court issued a journal entry granting the temporary restraining order. On June 10, 2011, the trial court issued a journal entry indicating that, based upon an agreement of the parties, the temporary restraining order would be extended for an additional 14 days to June 29, 2011, at which time a hearing would be held on McGuire‘s request for a preliminary injunction.
{¶4} Prior to the issuance of the temporary restraining order, on May 26, 2011, Zarle filed a motion to dismiss the complaint pursuant to
{¶5} The parties appeared as scheduled for a hearing on McGuire‘s request for a preliminary injunction June 29, 2011. On July 5, 2011, the trial court issued an order granting McGuire‘s request for a preliminary injunction, and denying Zarle‘s motion to dismiss the
II.
ASSIGNMENT OF ERROR I
THE TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION WERE IMPROPERLY GRANTED BECAUSE APPELLEE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE LIKELIHOOD OF SUCCESS ON THE MERITS BECAUSE HE FAILED TO PRESENT ANY EVIDENCE THAT “MCGUIRE‘S HARDWOOD FLOORS” OR ANY TRADE NAME WITH THE TERM “MCGUIRE‘S” HAS OBTAINED SECONDARY MEANING AND IS ENTITLED TO PROTECTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION BECAUSE APPELLEE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE LIKELIHOOD OF SUCCESS ON THE MERITS DUE TO HIS ADMISSION THAT HE CANNOT CALCULATE ANY DAMAGES ASSOCIATED WITH APPELLANT‘S CONDUCT.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION BECAUSE APPELLEE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT HE WILL SUFFER IRREPARABLE HARM SINCE APPELLEE ADMITTED KNOWLEDGE OF APPELLANT‘S BUSINESS ACTIVITIES FOR MORE THAN TWO YEARS PRIOR TO INSTITUTING THIS LITIGATION.
{¶6} Zarle raises three assignments of error on appeal relating to the trial court‘s order granting McGuire‘s request for a temporary restraining order and a preliminary injunction. This Court cannot reach the merits of McGuire‘s assignments of error, as he has not appealed from a final, appealable оrder.
{¶7} The Ohio Constitution limits this Court‘s jurisdiction to the review of final judgments.
{¶8} On December 15, 2011, McGuire filed a motion to dismiss the appeal on the basis that Zarle had not appealed from a final, appealable order. On December 27, 2011, Zarle filed a response in which he argued that the order was appealable because it granted a provisional remedy and satisfied the requirements of
(4) An order that grants or denies a provisional remedy and to which bоth of the following apply:
(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.
{¶9} In suрport of his position that he should be able to appeal the trial court‘s order, Zarle relies heavily on the Eleventh District‘s decision in LCP Holding Co. v. Taylor, 158 Ohio App.3d 546, 2004-Ohio-5324 (11th Dist.), and argues that he has “effectively been forcеd to close the doors to his business and start a new flooring business.” Zarle also argues that the trial court‘s order impacts his marketing campaign and, therefore, is a restraint of speech.
{¶10} In its ordеr granting the preliminary injunction, the trial court found that McGuire had been operating in the hardwood flooring business since 1994 and had been doing business using several derivatives of his last name since 2004. Zarle worked with McGuire from 2005 until the end of 2007. During that time, Zarle also had his own business, Construction Zone, and performed work with McGuire through Construction Zone. For any work performed by Zarle, he was paid via checks from “Dаvid McGuire dba ‘McGuire‘s.‘” McGuire and Zarle parted ways in late 2007 and McGuire continued to perform work using derivatives of his surname. Soon after the parties discontinued their relationship, Zarle registered the name “McGuire‘s Hardwood Floors” with the Ohio Secretary of State. At the time Zarle registered the trade name, he was aware that McGuire was operating a hardwood flooring business which included the name “McGuire” in the title. The trial court further found that since 2008, Zarle has, verbally and in printed and electronic advertisements, held himself out to be “McGuire‘s Hardwood Flooring.” Zarle has at timеs also advertised his business as “family owned and operated,” “the one and only ‘McGuire,‘” and “the real ‘McGuire.‘” In light of these findings, the trial court ordered that Zarle be enjoined, pending trial on the matter, from communicating the name McGuire‘s, McGuire‘s Hardwood Floor, or McGuire‘s Hardwood Flooring; from employing or using materials with the aforementioned names; or from otherwise advertising or suggesting a
{¶11} At the outset, we note that the requirement set forth set forth
{¶12} With respect to the second requirement contained in
{¶13} Zarle also argues that this matter must be immediately appealable because the trial court‘s order constituted a restraint of protected speech. On appeal, Zarle has not argued that the preliminary injunction violated his First Amendment rights. Because Zarle has not raised an assignment of error alleging a violation of his First Amendment rights, this Court cannot exercise jurisdiction over this matter on that basis.
{¶14} We conclude that the trial court‘s order granting McGuire‘s request for а preliminary injunction does not satisfy the requests of a final, appealable order under
III.
{¶15} In light of the foregoing, we are without jurisdiction to determine the merits of McGuire‘s appeal.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Aрpeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.