Taxiputinbay, L.L.C. v. Put-In-Bay
Court of Appeals No. OT-20-021
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
January 14, 2021
2021-Ohio-191
ZAYAS, P.J.
Trial Court No. 2020-CV-H-192
DECISION AND JUDGMENT
Decided: January 14, 2021
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Andrew R. Mayle, for appellee.
Susan Keating Anderson, Mark S. Fusco, Sara Ravas Cooper and Zachary C. Maciaszek, for appellant.
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ZAYAS, P.J.
{¶ 1} Appellеe Taxiputinbay, LLC (“Taxiputinbay“) has filed a motion to dismiss the appeal filed by Appellant Village of Put-in-Bay (“Put-in-Bay“) in this case involving a preliminary injunction prohibiting Put-in-Bay from taking any action аgainst Taxiputinbay due to operating taxis in violation of a village ordinance. Taxiputinpay
I. Factual Background
{¶ 2} On March 4, 2020, Put-in-Bay amended its regulations for taxicabs to prohibit a taxicab from receiving a permit if the width exceeds 80 inches, including fender flare, but еxcluding mirrors. §866.01(a)(4). The prior version prohibited taxicabs from exceeding the width of 80 inches, excluding mirrors. Former §866.13(c). Only taxicabs are subject to the 80 inch width. All other vehicles may exceеd the 80 inch width limitation.
{¶ 3} Prior to the amendment, Taxiputinbay had been issued annual licenses that automatically expired on April 15, 2020 per §866.03(a). However, after the amended ordinancе became effective, Taxiputinbay was denied a permit because the width of its vehicle exceeded 80 inches.
{¶ 4} On June 13, 2020, Taxiputinbay filed a complaint against Put-in-Bay seeking a temporary restraining order, a preliminary injunction, and a permanent injunction. Taxiputinbay alleged that the ordinance was in conflict with
{¶ 5} The trial court granted the preliminary injunction finding that “in regard to the request for a preliminary injunction that there is a substantial likelihood that the
{¶ 6} Put-in-Bay appealed, and Taxiputinbay filed a motion to dismiss the appeal arguing that the order granting the preliminary injunction is not a final, appealable order.
II. Final Appealable Orders
{¶ 7} Under
{¶ 8}
An ordеr is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that grants or denies a provisional remedy and to which both of the following apрly:
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. - The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proсeedings, issues, claims, and parties in the action.
{¶ 9} A “provisional remedy” is defined as “a proceeding ancillary to an action, including, but not limited to, a proceeding for a рreliminary injunction.”
A. The order determines the action and prevents a judgment in favor of Put-in-Bay.
{¶ 10} Put-in-Bay first contends thаt the preliminary injunction order “granted the ultimate relief [Taxiputinbay] requested in its Complaint - a declaration that §866.01(a)(4) conflicts with a general law and therefore cannot be enforced.” In essence, Put-in-Bay argues that the order is a final decision on the merits that is immediately appealable. In making this argument, Put-in-Bay relies on Dandino v. Hoover, 6th Dist. Lucas No. L-91-078, 1991 WL 132466 (July 11, 1991), a case interpreting the version of
{¶ 11} In this case, the first prong is met because the trial court issued an order granting a preliminary injunction. That order determined the action with respect to the provisional remedy and prevented judgment in favor of Put-In-Bay regarding the provisional remedy.
B. Put-in-Bay would have a meaningful and effective remedy by аn appeal following final judgment.
{¶ 12} In order to satisfy the second prong, Put-in-Bay must establish that it “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.”
{¶ 13} Here, Taxiputinbay is ultimately seeking a permanent injunction to prevent Put-in-Bay from enforcing thе width requirements against it, withholding its permits based on the width requirement, and prosecuting them for alleged width violations. Put-in-Bay contends that it will suffer “permanent and incalculable” damage due to the
{¶ 14} Although Put-in-Bay alleges that over-wide taxicabs pose a safety threat to pedestrians, that harm is speсulative because there is nothing in this record to show that the Taxiputinbay vehicles have ever endangered any pedestrians. See Empower Aviation, L.L.C. v. Butler Cty. Bd. of Commrs., 1st Dist. Hamilton No. C-090616, 185 Ohio App.3d 477, 2009-Ohio-6331, 924 N.E.2d 862, ¶ 23, cause dismissed, 124 Ohio St.3d 1468, 2010-Ohio-374, 921 N.E.2d 241, ¶ 23 (2010) (conсluding that Empower‘s claim that it will be forced out of business was too speculative because Empower failed to present sufficient evidence of the percentagе of revenue it would lose.).
{¶ 15} Accordingly, Put-in-Bay would not be denied a meaningful or effective remedy by an appeal following final judgment as to all proceedings in this case. If a permanent injunction is granted, Put-in-Bay will have the ability to appeal the judgment at the conclusion of the proceedings. See Hootman, 2007-Ohio-5619 at ¶17.
C. The order is not final and appealable bеcause it maintains the status quo.
{¶ 16} Taxiputinbay argues that the order is not final and appealable because the order preserves the status quo while the litigation is pending. We аgree.
{¶ 18} Put-in-Bay contends that the order is final because Taxiputinbay‘s 2019 permits had already expired when its vehicle did not pass inspection due to its width, and therefore, рreserving the status quo would require honoring its decision not to renew the permit.
{¶ 19} However, Taxinputinbay‘s licenses had not expired when the amended ordinance became effective. Taxiputinbay did not pass inspection due to the new width requirements and filed the complaint to preserve its status quo as licensed taxicabs. Taxiputinbay‘s last uncontested status was its status as licensed taxicabs. The preliminary injunction allows Taxiputinbay to continue operating its taxicabs during the pendency of the litigation. See Hootman at ¶ 17 (finding that the trial court was mаintaining the status quo by ordering parties to remove an obstruction from a drainage
{¶ 20} We, therefore, find that the trial court‘s granting of the motion for a preliminary injunction does not satisfy the requirements of a final appealable order under
III. Conclusion
{¶ 21} Accordingly, we dismiss the case for lack of a final appealable order. Put-in-Bay is ordered to pay costs pursuant to
Appeal dismissed.
A certified copy of this entry shall constitute the mandate pursuant to
Marilyn Zayas, P.J. _______________________________
JUDGE
Pierre Bergeron, J. _______________________________
JUDGE
Candace Crouse, J. _______________________________
CONCUR JUDGE
Judges Marilyn Zayas, Pierre Bergeron and Candace Crouse, from the First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.