STATE OF OHIO EX REL. MICHAEL DEWINE, OHIO ATTORNEY GENERAL, PLAINTIFF-APPELLEE, v. 333 JOSEPH, LLC, ET AL., DEFENDANTS-APPELLANTS, -аnd- ROBERT CENDOL, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 9-13-71
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
November 17, 2014
2014-Ohio-5090
Appeal from Marion County Common Pleas Court, Trial Court No. 13-CV-0453, Judgment Reversed and Cause Remanded
Colin G. Skinner for Appellants
Clint R. White for Appellee, Michael DeWine, Ohio Attorney General
WILLAMOWSKI, P.J.
{¶1} Defendants-appellants, a company known as 333 Joseph, LLC and its member, Stanley Rosenfeld (collectively referred to as “333 Joseph“), bring this appeal from the judgment of the Marion County Court of Common Pleas granting a preliminary injunction1 in favor of Plaintiff-appellee, State of Ohio ex rel. Michael DeWine, Ohio Attorney General (“the State“). For the reasons that follow, we reverse the trial court‘s judgment.
{¶2} The facts relevant to this appeal are as follows. On July 24, 2013, thе State filed a Complaint for Injunctive Relief and Civil Penalties with the Marion County Court of Common Pleas (“the Complaint“). (R. at 2.) The Complaint alleged that 333 Joseph conducted illegal demolition activities at a construction site at 333 Joseph Street in Marion, Ohio. (Id.) The eight counts of the Complaint included: air nuisance, statutory nuisance, failure to notify the Ohio Environmental Protection Agency (“Ohio EPA“) of a demolition operation, failure to remove asbestos-containing materials, shipping or removing asbestos-containing material without an authorized representative present at the operation, failure to keep all regulated asbestos-containing material adequately wet, failure to properly dispose
{¶3} Count Eight of the Complaint specifically alleged that on October 31, 2012, the Director of the Ohio EPA issued Director‘s Final Findings and Orders (“Director‘s Orders“) pursuant to
{¶5} 333 Joseph filed an answer denying allegations in all counts of the Complaint. It then filed a brief in opposition to the State‘s motion, arguing that there was no evidence that the construction site posed any risks, that other parties were responsible for any potential violations, that 333 Joseph could not comply with the Director‘s Orders due to its limited means, and that no exigent circumstances existed to require a preliminary injunction, in place of the “normal litigation process.” (R. at 10.) 333 Joseph further alleged that the State must prove its right to the injunction by clear and convincing evidence.
{¶6} The trial court held a hearing on the State‘s motion. The hearing was largely focused on resolving the issue of whether 333 Joseph was in violation of the Director‘s Orders, but the trial court also heard arguments and reviewed other evidence of statutory violations that would warrant an injunction under
{¶7} After the hearing and additional briefing, the trial court determined that the applicable standard of proof was the preponderance of the evidence. The trial court found that this standard was satisfied in this case and issued its judgment entry granting the preliminary injunction. The trial court‘s findings and
{¶8} 333 Joseph filed this timely appeal, in which it raises four assignments of error.
The trial court erred as a matter of law in issuing an injunction order that incorporated other documents in contravention of Civil Rule 65.
ASSIGNMENT OF ERROR NO. 2
The trial court erred as a matter of law in its application of a preponderance [of the] evidence standard to Plaintiff‘s motion for preliminary injunction.
ASSIGNMENT OF ERROR NO. 3
The trial court‘s ruling in determining the presence of asbestos was against the manifest wеight of the evidence.
ASSIGNMENT OF ERROR NO. 4
The trial court erred in admitting the Director‘s Orders into evidence, and finding that it [sic] had been properly served.
{¶9} We elect to address the assignments of error out of order.
Second Assignment of Error—
Standard of Proof for Statutory Injunction
{¶10} In the trial court, 333 Joseph argued that the State must prove the elements necessary for a preliminary injunction by “clear and convincing” evidence. The trial court rejected this assertion and applied the preponderance of the evidence standard to the action, reasoning that a statutory injunction does not require the higher burden of proof.
{¶11} In this case, determination of the proper standard of proof is complicated by the nature of the action, which is an injunction based upon a
{¶12} Generally, a preliminary injunction will not be granted unless the party seeking injunсtion proves by clear and convincing evidence that (1) there is a substantial likelihood of prevailing on the merits, (2) there is a risk of irreparable injury if the injunction is not granted, (3) the injunction will not unjustifiably harm third parties, and (4) the injunction will serve the public interest. Davis at ¶ 29, quoting Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d 268 (1st Dist.2000); accord State ex rel. Dann v. R & J Partnership, Ltd., 2d Dist. Montgomery No. 22162, 2007-Ohio-7165, ¶ 21. This exact standard is not followed, however, for statutory injunctions.
It is established law in Ohio that, when a statute grants a specific injunctive remedy to an individual or to the state, the party requesting the injunction “need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law * * *.”
Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51, 56, 378 N.E.2d 145 (1978), quoting Stephan v. Daniels, 27 Ohio St. 527, 536 (1875); accord Dann at ¶ 21, quoting Ackerman at 56, 57 (“when a statute grants a specific
{¶13} Nevertheless, although
{¶15} In another case, hоwever, the Second District Court of Appeals analyzed the question of what degree of proof is required for a statutory action concerning nuisance abatement, brought under the same Title of the Revised Code as the action before us, “Health—Safety—Morals.” See State, ex rel. Freeman v. Pierce, 61 Ohio App.3d 663, 573 N.E.2d 747 (2d Dist.1991). There, the court reasoned that since the statute did not specify the standard of proof, common law was the source of authority. Id. at 670. It analyzed the common law cases as follows.
We have held that in order to obtain an injunction, a petitioner must prove his allegations by clear and convincing evidence. Again, we see no reason why the abatement of nuisances should require a lesser degree of proof than other actions which seek injunctive relief. Moreover, the elevated burden seems especially appropriate when the defendant faces the potential loss of her real and personal property.
{¶16} We have recently followed Freeman and applied the clear and convincing evidence standard of proof in a case involving nuisance abatement. State ex rel. Waldick v. Howard, 3d Dist. Allen No. 1-11-33, 2012-Ohio-404. But the trial court in the current case refused to follow Freeman, distinguishing it because the action there was brought by a private citizen and because “confiscation of real estate due to criminal activity is significantly different than enforcement of regulatory statutes intended to protect the public‘s health and safety.” (R. at 21, J. Entry at 4.) We do not find the distinctions made by the trial court to be relevant to the issue before us. In Waldick, the action was brought by the Allen County Prosecutor, not a private citizen; yet we followed Freeman. Furthermore, although the plaintiffs in Freeman and Waldick sought injunctive relief for violations of criminal statutes, they both filed civil actions, as did the State in the current case. The Sixth District Court of Appeals held, “[s]ince abatement of a nuisance action under
{¶17} A further review of Ohio cases does not show consensus among Ohio courts. In another case cited by the trial court, the Fourth District Court of Appeals held, “[b]ecause this is a civil case and these [statutory] provisions are silent as to the applicable burden of proof, we conclude that the State only had to prove the violations by a preponderance of the evidence, not by clear and convincing evidence as thе Appellants suggest.” State ex rel. DeWine v. Ashworth, 4th Dist. Lawrence No. 11CA16, 2012-Ohio-5632, ¶ 64. Like the Second District in Dann, 2d Dist. Montgomery No. 22162, 2007-Ohio-7165, the Fourth District Court of Appeals did not further explain its reasons for choosing the lowered standard of proof.
{¶18} The Ninth District Court of Appeals distinguished preliminary statutory injunctions from permanent ones and indicated that each element of the statute “must be proven by clear and convincing evidence” before the trial court can order a preliminary injunction. Sovereign Chem. Co. v. Condren, 9th Dist. Summit No. 18285, 1998 WL 195876, *2 (Apr. 22, 1998), fn. 2. The court suggested that the distinction is reasonable because a permanent injunction is “ordered after a hearing on the merits has been held,” thus justifying a lower standard of proof. (Emрhasis sic.) Id. The First District Court of Appeals acknowledged the distinction made in Condren, but held that an injunction to
{¶19} While we recognize that the elements necessary for a statutory injunction differ from the common law equitable remedy of injunction, we are persuaded of no reason to require different standards of proof for those actions. The State suggests that the “lesser evidentiary burden” is justified by “the heightened public interests.” (App‘ee Br. at 15.) The State cites no authority to support this suggestion, and the reasoning given in Ackerman for the distinction between statutory and equitable injunctions does not apply to the burden of proof.
Unlike equitable-injunction actions which were developed in response to a rigid and often inadequate common-law system for redressing non-violent wrongs suffered by one individual at the hands of another,
R.C. 3721.08 was designed by the General Assembly to benefit society by proscribing behavior (the unlicensed operation of nursing homes) which the General Assembly has determined not to be in the public interest. It would, therefore be redundant to require the Director of Health to show irreparable damage or lack of an adequate legal remedy once he has alreadyproved that the conditions which the General Assembly has deemed worthy of injunctive relief exist. In addition, it would be inappropriate to balance the equities or require the Director of Health to do equity in an R.C. 3721.08 injunction action becauseR.C. 3721.08 injunctions and similar injunctions which authorize a governmental agent to sue to enjoin activities deemed harmful by the General Assembly are not designed primarily to do justice to the parties but to prevent harm to the general public.
Ackerman, 55 Ohio St.2d at 57-58, 378 N.E.2d 145.
{¶20} The above-quoted Ohio Supreme Court‘s reasoning explains that the rationale for not requiring proof of irreparable injury, lack of an adequate legal remedy, or a higher public interest is that it would be redundant, given that the General Assembly has already determined that these elements exist in situations covered by the statute. Nevertheless, neither the General Assembly nor the Ohio Supreme Court has so far determined that these statutory elements should be easier to prove. Conversely, it is well-established that generally, “[t]he right to a preliminary injunction must be proved by clear and convincing evidence.” Davis, 184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, at ¶ 29; accord Hydrofarm, Inc. v. Orendorff, 180 Ohio App.3d 339, 2008-Ohio-6819, 905 N.E.2d 658, ¶ 18 (10th Dist.), quoting Vanguard Transp. Sys., Inc. v. Edwards Transfer & Storage Co., Gen. Commodities Div., 109 Ohio App.3d 786, 790, 673 N.E.2d 182 (10th Dist.1996) (“Under Ohio law, a party seeking a preliminary injunction ‘must establish a right to the preliminary injunction by showing clear and convincing evidence of each element of the claim.’ “).
{¶22} Accordingly, we hоld that the trial court erred in not applying the clear and convincing standard of proof for violation of the statute in granting the preliminary injunction in this case. The second assignment of error is sustained.
Fourth Assignment of Error—
Admission of Evidence
{¶23} In this assignment of error, 333 Joseph challenges the trial court‘s admission into evidence of Exhibit 6, which appears to be a photocopy of a certified photocopy of what purports to be the original Director‘s Orders. 333 Joseph alleges that the Director‘s Orders were “the cornerstone of the State‘s case” and without them, the State‘s case for preliminary injunction would have failed. (App‘t Br. at 14.)
{¶24} We review the trial court‘s rulings on admissibility of evidence under an abuse of discretion standard. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22. Presuming that the trial
{¶25} As its first argument against the admissibility of Exhibit 6, 333 Joseph asserts that the State lacked proper foundation for its introduction because Exhibit 6 was not properly authenticated. We have previously noted that “the thrеshold standard for authenticating evidence is low as it does not require conclusive proof of authenticity.” Smith at ¶ 16. A proponent of the evidence satisfies the requirement of authentication by providing “evidence sufficient to support a finding that the matter in question is what its proponent claims.”
{¶26} Exhibit 6 appears to be a photocopy of a certified photocopy of the purported Director‘s Orders. (See Ex. P-6.) The original document seems to have born a seal of the “Ohio E.P.A.” from October 31, 2012, stating “ENTERED DIRECTOR‘S JOURNAL,” and it appears to have been signed by “Scott J. Nally, Director.” (Id.) Additionally, the exhibit includes the following photocopied language, “I certify this to be a true and accurate copy of the official documents as filed in the records of the Ohio Environmental Protection Agency,” and an
{¶27} At the hearing, the State offered testimony of one witness, Tom Sattler (“Sattler“), from the Ohio EPA, to authenticate Exhibit 6. Sattler testified that he was one of the first people to start the investigation at the site in question. (Tr. at 123.) When 333 Joseph failed to take action upon multiple notices of violation that were sent by his office to Stanley Rosenfeld prior to October 31, 2012, Sattler contacted his “central office” and “someone came up with the idea of a Unilateral Order to the company ordering them to immediаtely do clean up and take that route.” (Tr. at 135.) Sattler identified Exhibit 6 as “the Unilateral Findings and Orders from our -- (inaudible) – Director.” (Id.) When he was asked whether he was involved in the preparation of the document, he responded “I would have reviewed it.” (Id.) On cross-examination, Sattler admitted that he did not prepare the Director‘s Orders. (Tr. at 142.) Furthermore, Sattler admitted that he did not send the Director‘s Orders to 333 Joseph. (Id.) He admitted that the trial court has to “rely upon the certification” for the authenticity of the Director‘s Orders. (Id.) As we noted above, the certification itself is merely a рhotocopy of what purports to be a certification.
{¶29} The rules of evidence provide several alternative methods to authenticate documents. Smith, 197 Ohio App.3d 742, 2012-Ohio-532, 968 N.E.2d 625, at ¶ 16. “Testimony of witness with knowledge * * * that a matter is what it is claimed to be” is one of the examples of satisfying the authentication requirement.
{¶30} On appeal, the State defends the trial court‘s decision by arguing that the Director‘s Orders are “self-authenticating” as “domestic public documents” and as such, they do not need “[e]xtrinsic evidence of authenticity.” (App‘ee Br. at 20.) Under
[a] document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(Emphasis added.)
{¶31} The State cites
[t]he contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902, Civ. R. 44, Crim. R. 27 or testified to be correct by a witness who has compared it with the original.
(Emphasis added.)
{¶32} The facts before us resemble those in Coon, wherе we recognized that “[a]lthough couched in terms of a certification,” a document offered in evidence was “not signed except in copy, i.e. the certifying signature [was] a copy.” Coon at *3. We held that this official record was not properly certified
{¶33} While we acknowledge that under
{¶34} As a result of this finding, we need not address 333 Joseph‘s alternative argument against admissibility, which stated that the trial court improperly admitted Exhibit 6 where there was no evidence that the Director‘s Orders had been served upon 333 Joseph. We note, however, thаt 333 Joseph cites no law in support of his claim that failure to prove service would require the trial court to exclude Exhibit 6 from evidence.
{¶35} For the foregoing reasons, the fourth assignment of error is sustained.
Third Assignment of Error—
Manifest Weight of the Evidence
{¶36} Based on our decision that the Director‘s Orders were not properly admitted, we hold that the remaining evidence presented at the injunction hearing did not prove statutory violations by clear and convincing evidence, especially
{¶37} Accordingly, the trial court‘s grant of preliminary injunction was in error and the third assignment of error is sustained.
First Assignment of Error—Compliance with Civ.R.
56 in Issuing an Injunction Order
{¶38} Our decision results in vacation of the Injunction Order. Therefore, the first assignment of error is moot.
Conclusion
{¶39} Having reviewed the arguments, the briefs, and the record in this case, we find errors prejudicial to Appellants, in the particulars assigned and argued. The judgment of the Marion County Court of Common Pleas is therefore revеrsed. We remand the matter to the trial court for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW and PRESTON, J.J., concur.
/jlr