Wells Fargo Ins. USA Servs., Inc. v. GingrichWells Fargo Ins. USA Servs., Inc. v. Gingrich
Denlinger, Rosenthal & Greenberg, Mark E. Lutz, 425 Walnut Street, Suite 2300, Cincinnati, Ohio 45202, for defendants-appellants, Michael P. Gingrich, Todd A. Smittle, Shirley M. Nixon, Neace Lukens Insurance Agency, LLC, Nease & Associates Insurance Agency of Ohio, Inc.
O P I N I O N
RINGLAND, J.
{¶ 1} Plaintiff-appellant, Wells Fargo Insurance Services USA, Inc. (Wells Fargo), appeals from a Butler County Court of Common Pleas decision denying its motion for preliminary injunction against defendants-appellees, Michael P. Gingrich, Todd A. Smittle, and Shirley M. Nixon. For the reasons outlined below, we dismiss this appeal for lack of a
{¶ 2} On August 25, 2010, Gingrich, Smittle, and Nixon resigned from their respective positions at Wells Fargo and immediately began working for Neace Lukens Insurance Agency, LLC, Neace & Associates Insurance Agency of Ohio, Inc. (Neace-Lukens). It is undisputed that Wells Fargo and Neace-Lukens are competitors in the local insurance industry.
{¶ 3} Shortly after their resignations, Wells Fargo brought suit against its three former employees alleging, among other things, that they had breached certain covenants found in their individual employment agreements and that they had misappropriated its trade secrets. Wells Fargo also moved for preliminary injunctive relief seeking to enjoin Gingrich, Smittle, and Nixon from soliciting business from a select group of its customers. After holding a hearing on the matter, the trial court issued an order denying Wells Fargo‘s request.
{¶ 4} Wells Fargo subsequently appealed from the trial court‘s decision denying its request for preliminary injunctive relief. However, before the matter was submitted for review, this court requested additional briefing on the issue of whether the trial court‘s order denying Wells Fargo‘s request for preliminary injunctive relief was a final appealable order. After a thorough review of the record and without making any determination on the merits of Wells Fargo‘s single assignment of error raised in its original brief, we find Wells Fargo has not established its right to immediately appeal from the trial court‘s decision as that order is not a final appealable order.
{¶ 5} A preliminary injunction is a provisional remedy that is considered interlocutory, tentative, and impermanent in nature. N. Fairfield Baptist Church v. G129, L.L.C., 12th Dist. No. CA2009-11-281, 2010-Ohio-2543, ¶ 16; Quinlivan v. H.E.A.T. Total Facility Solutions, Inc., 6th Dist. No. L-10-1058, 2010-Ohio-1603, ¶ 3. As such, an order granting or denying a preliminary injunction does not automatically qualify as a final appealable order. See
{¶ 6} According to
{¶ 7} “(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; [and]
{¶ 8} “(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 applying the two-pronged test, we find the first prong provided for by
{¶ 10} Of more concern, however, is the second prong of
{¶ 11} Ohio Courts, including this court, have found the absence of an adequate remedy following a final judgment in cases involving possible trade-secret misappropriation and the request to enforce covenants not to compete.1 For example, in Premier Health Care Services, Inc. v. Schneiderman, 2nd Dist. No. 18795, 2001 WL 1479241 (Aug. 21, 2001), the plaintiffs filed a complaint and a motion for a preliminary injunction against several of their former employees seeking to enforce the non-competition covenants found in their respective employment contracts. Id. at *1. In its decision finding the trial court‘s order was a final
{¶ 12} In addition, in LCP Holding Co. v. Taylor, 158 Ohio App.3d 546, 2004-Ohio-5324 (11th Dist.), plaintiff filed a complaint against its former employee seeking a preliminary injunction to enforce the non-competition, nondisclosure, and noninterference covenants found in his security holders agreement. Id. at ¶ 5-10. In its decision finding the trial court‘s order was a final appealable order, the Eleventh District Court of Appeals determined that a reversal following a final judgment would not compensate the plaintiff for damages arising from its potential lost market share, forced competition with a former employee, and possible dissemination of trade secrets. Id. at ¶ 28. In so holding, the court, quoting the Second District‘s decision in Premier Health, found that the plaintiff “would essentially be deprived of a remedy because the passage of time would render moot any review sought.” Id.
{¶ 13} Although factually similar, we find these cases distinguishable for there is simply nothing in the record to indicate money damages would not sufficiently compensate Wells Fargo for any determined loss. See N. Fairfield Baptist Church, 2010-Ohio-2543 at 24 (finding denial of preliminary injunction not a final appealable order where defendant failed to prove monetary damages would not sufficiently compensate it for any determined loss); see
{¶ 14} Here, unlike the plaintiffs in Premier Health and LCP Holding, Wells Fargo is only seeking to enjoin Gingrich, Smittle, and Nixon from soliciting business from a limited number of select customers for which they acted as brokers, or, as Wells Fargo stated at the preliminary injunction hearing, “a very specific discreet book of business.” In turn, while its managing director did testify that there was no way to quantify its losses for it has “no idea how many of [these customers] they are calling on today” and are unable to determine “what that business will evolve to,” the lost revenue resulting from the departure of any one these customers is easily calculable by using a standard industry multiplier. As a result, because any losses to Wells Fargo can be remedied by money damages at the conclusion of the case, so too can any losses that it may incur during the pendency of the case. See Cooper v. Cleveland Boat Club Ltd. Partnership, 8th Dist. No. 81995, 2003-Ohio-2874, ¶ 18. Therefore, unlike the plaintiffs in Premier Health and LCP Holding, we find Wells Fargo has not established its right to immediately appeal from the trial court‘s order denying its request for a preliminary injunction. See
{¶ 15} Appeal dismissed.
POWELL, P.J., and YOUNG, J., concur.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.