Lead Opinion
{¶ 2} In September 2008, Gilmour, a private Catholic school in Gates Mills, Ohio, expelled Christopher, a senior at Gilmour, for violating school policy by arriving highly intoxicated at a school dance on September 13, 2008. On October 21, 2008, Christopher filed suit against Gilmour seeking injunctive relief and money damages. On October 22, 2008, the trial court issued a temporary restraining order, ordering Gilmour to reinstate Christopher as a student. On November 21, 2008, the trial court granted a preliminary injunction, extending indefinitely the temporary restraining order issued in October.
{¶ 3} Gilmour filed its notice of appeal and an emergency motion to stay the judgment. The motion to stay proceedings was never ruled on. In its appeal, Gilmour filed its brief, raising one assignment of error, i.e., the trial court erred in granting Christopher a preliminary injunction preventing Gilmour from expelling him. Christopher filed his brief in opposition. *4
{¶ 4} As noted above, prior to the scheduled oral argument, this court ordered the parties "to address whether the granting of a preliminary injunction in this matter constituted a final appealable order pursuant to R.C.
{¶ 5} According to Section
{¶ 6} R.C.
{¶ 7} As used in this section a "provisional remedy" is defined as "a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction ***." R.C.
{¶ 8} Here, Gilmour has established the first prong, where there is no dispute that the trial court issued an order granting a preliminary injunction. That order determines the action with respect to the provisional remedy and prevents judgment in favor of appellants with regard to that provisional remedy.
{¶ 9} We are not convinced, however, that Gilmour has established the second prong. Gilmour has to be deprived of "a meaningful and effective remedy" if it cannot appeal now.
{¶ 10} Granting of a preliminary injunction in an action for injunctive relief is not a final appealable order. State ex rel. Tollisv. Cuyahoga Cty. Court of Appeals (1988),
{¶ 11} Furthermore, Ohio courts have held that "a preliminary injunction which acts to maintain the status quo pending a ruling on the merits is not a final appealable order under R.C.
{¶ 12} Gilmour argues that preserving the status quo would entail honoring its decision to expel Christopher. We disagree. Christopher filed his complaint for injunctive relief to preserve his status as a student. The trial court granted the preliminary injunction to preserve Christopher's rights while the underlying action was being litigated. In addition, if this case were to proceed to final judgment and the trial court granted Christopher a permanent injunction, Gilmour would have the ability to appeal the judgment to this court.1 We do not consider here whether the ultimate resolution on the merits comes too late to prevent Christopher's completion of his senior year, since it was the school that *7 chose to appeal the preliminary injunction rather than move to have the injunction dissolved.
{¶ 13} For the foregoing reasons, it is our position that the trial court's granting of Christopher's preliminary injunction does not satisfy the requirements of a final order under R.C.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANN DYKE, J., CONCURS; MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION)
Notes
Dissenting Opinion
{¶ 14} For the following reasons, I respectfully dissent from the majority opinion that Gilmour has failed to meet both prongs of the statute, thereby dismissing its appeal for lack of a final order. *8
{¶ 15} R.C.
"(A) (3) `Provisional remedy' means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section
2307.85 or2307.86 of the Revised Code, a prima-facie showing pursuant to section2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section2307.93 of the Revised Code.(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
***
4) An order that grants or denies a provisional remedy and to which both 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."
{¶ 16} Based upon the plain language of the statute, this appeal outlines just the type of situation contemplated in R.C.
{¶ 17} In holding that Gilmour would not be deprived of a meaningful and effective remedy if it cannot appeal right now, the majority relies on Tollis v. Cuyahoga Cty. Court of Appeals (1988),
{¶ 18} In Tollis, the Ohio Supreme Court held that a court of appeals is without jurisdiction to consider an appeal from a preliminary injunction because a preliminary injunction is not a final appealable order. However, in Tollis, a writ of prohibition was issued, based upon the appellate court's lack of jurisdiction to consider an appeal from a preliminary injunction issued to enjoin a municipality from proceeding with a sewer assessment. Int'l Diamond Exch. Jewelers, Inc. v. UnitedStates Diamond Gold Jewelers, Inc. (1991),
{¶ 19} Such is not the case here. While it is true that "[a] temporary injunction which merely serves to preserve the status quo pending the hearing on a request for a permanent injunction is not a final order appealable under §§
"Likewise, before the amendment of R.C.
2505.02 , this court had held that the granting of a preliminary injunction is an action for injunctive relief and is not a final appealable order. Tollis at 148. The current R.C.2505.02 (B)(4) changed the law in this regard and makes other provisional remedies reviewable as well."
{¶ 20} Based upon the Ohio Supreme Court's holding in Community FirstBank Trust and the statutory revisions in subsection (B)(4)(a) and (b), the granting of a preliminary injunction is arguably, in itself, a final appealable order. What is more, the statutory revisions in R.C.
{¶ 21} Here, the trial court granted not only the temporary restraining order requiring Gilmour to reinstate Christopher as a student, but also the preliminary injunction in which it extended the restraining order under the statute. Thus, for all practical purposes under 2505.02(B)(4)(b), this appeal is the only meaningful opportunity Gilmour has to preserve what it argues is the status quo, i.e., its decision to expel Christopher. It cannot, as the majority suggests, request that the injunction be dissolved, since such a request would, under these circumstances, be tantamount to a motion for reconsideration.
{¶ 22} As it stands, the majority has preserved Christopher's place as a student at Gilmour, but that is not the status quo. Status quo for appellant is *11
that its decision to expel Christopher be upheld. Preserving this is in accord with both the two-prong test in R.C.
{¶ 23} I would find that Gilmour meets the criterion in subsections (B)(4)(a) and (b) under the statute, and would not dismiss the appeal. *1