STATE, EX REL. TOLLIS, v. COURT OF APPEALS

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Docket Number

No. 88-1464

Attorney(S)

Kelley, McCann Livingstone, Stephen M. O'Bryan, Mark J. Valponi and Thomas J. Lee, for relators. John T. Corrigan, prosecuting attorney, and Patrick Murphy, for respondent.

Judges

Per Curiam.

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Smart Summary

Factual and Procedural Background

This case arises from a challenge to a preliminary injunction issued by the Court of Common Pleas of Cuyahoga County on July 18, 1988, which enjoined the city of Broadview Heights from proceeding with an assessment plan to fund a sewer system. Relators, including taxpayers and property owners Zane and Terry Tollis and Tolco Utilities, Inc., initiated declaratory judgment and injunctive relief actions contesting the legality of the city's assessment plan. The plaintiffs alleged that the assessment was illegal due to arbitrary exemptions and improper composition of the assessment equalization board, among other statutory violations. The common pleas court consolidated related actions and granted a preliminary injunction after hearings, finding a likelihood of success on the merits and irreparable harm. The city appealed the preliminary injunction to the Court of Appeals for Cuyahoga County on the same day it was issued. The appellate court partially stayed the injunction as to non-parties to the underlying suit but retained jurisdiction to consider class certification and the merits. Subsequently, the city passed an ordinance authorizing assessments on properties excluding those owned by the named plaintiffs but including others such as Terry Tollis. The city certified unpaid assessments to the county auditor. The Court of Appeals denied a motion to dismiss the appeal of the preliminary injunction but stayed further proceedings pending resolution of this prohibition action. The common pleas court also suspended proceedings but scheduled tentative dates for a merits hearing.

Legal Issues Presented

Whether the Court of Appeals for Cuyahoga County had jurisdiction to consider an appeal of the preliminary injunction issued by the Court of Common Pleas on July 18, 1988.
Whether a preliminary injunction in a suit seeking injunctive relief is a final appealable order under Ohio law.
Whether a writ of prohibition should issue to prevent the Court of Appeals from exercising jurisdiction over the appeal of the preliminary injunction.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State, ex rel. Johnson v. Perry County Court, 25 Ohio St.3d 53 (1986)	Requirements for issuance of writ of prohibition: unauthorized exercise of judicial power and lack of adequate remedy.	Used to establish the prerequisites for issuing a writ of prohibition to prevent unauthorized appellate jurisdiction.
State, ex rel. McGraw v. Gorman, 17 Ohio St.3d 147 (1985)	Supports the criteria for writs of prohibition against unauthorized judicial acts.	Referenced to reinforce the standards for prohibition writ issuance.
Bobb v. Marchant, 14 Ohio St.3d 1 (1984)	Further authority on writ of prohibition standards.	Used as corroborative precedent for the court’s jurisdictional analysis.
May Co. v. Bailey Co., 81 Ohio St. 471 (1910)	Preliminary injunctions in suits for injunctive relief are not final appealable orders.	Established the long-standing rule that preliminary injunctions are not subject to immediate appellate review.
Amalgamated Clothing Workers v. Richmond Bros. Co., 348 U.S. 511 (1955)	Federal recognition that temporary injunctions preserving status quo are not final appealable orders under Ohio law.	Supported the conclusion that the preliminary injunction was not appealable under Ohio statutory provisions.
State, ex rel. Ohio High School Athletic Assn. v. Judges, 173 Ohio St. 239 (1962)	Discretionary issuance of writ of prohibition even when an adequate remedy exists.	Justified issuing the writ despite possible alternative remedies.
State, ex rel. Smith v. Court, 70 Ohio St.2d 213 (1982)	Restriction on appellate jurisdiction over preliminary injunctions.	Confirmed the "patent and unambiguous restriction" on appellate jurisdiction in such cases.
State, ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326 (1972)	Writ of prohibition to correct jurisdictional excesses and restore parties to prior position.	Empowered the court to vacate the appellate court’s order and restore the status quo.

Court's Reasoning and Analysis

The court first identified the three prerequisites for issuing a writ of prohibition: the respondent must be about to exercise judicial power; that exercise must be unauthorized by law; and denial of the writ must cause injury without an adequate remedy. The parties agreed that the Court of Appeals was about to exercise judicial power by continuing the appeal. The court then analyzed whether this exercise was unauthorized, focusing on whether the preliminary injunction was a final appealable order. It reaffirmed the settled Ohio rule that preliminary injunctions in actions seeking injunctive relief are not final orders subject to immediate appeal, citing both Ohio and United States Supreme Court precedent. Because the Court of Appeals lacked jurisdiction to hear the appeal, its refusal to dismiss constituted an unauthorized exercise of judicial power. Regarding the third requirement, the court acknowledged that although ordinary remedies might exist, it may nonetheless exercise discretion to issue a writ of prohibition to prevent jurisdictional usurpation. The court emphasized that the restriction on appeals from preliminary injunctions is a clear limitation on appellate jurisdiction, and thus the appellate court’s action was a total lack of jurisdiction. Accordingly, the court exercised its plenary power to vacate the appellate court’s order and restore the parties to their prior positions.

Holding and Implications

The court held that the Court of Appeals for Cuyahoga County lacked jurisdiction to consider the appeal of the preliminary injunction issued on July 18, 1988, and granted a writ of prohibition to prevent further consideration of that appeal.

The direct effect of this decision is to vacate the appellate court’s order modifying the preliminary injunction and to bar the appeal from proceeding. No broader precedent was established beyond reaffirming the well-settled principle that preliminary injunctions in injunctive relief actions are not final appealable orders under Ohio law. The parties are thereby restored to the status quo pending a final determination on the merits in the common pleas court.

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THE STATE, EX REL. TOLLIS ET AL., v. COURT OF APPEALS FOR CUYAHOGA COUNTY.

Appellate procedure — Final appealable orders — Preliminary injunction not appealable — Writ of prohibition granted.

Per Curiam.

For a writ of prohibition to issue, this court must find (1) that the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying the writ would cause injury for which there is no other adequate remedy in the ordinary course of law. State, ex rel. Johnson, v. Perry County Court (1986), 25 Ohio St.3d 53, 58, 25 OBR 77, 81, 495 N.E.2d 16, 21, citing State, ex rel. McGraw, v. Gorman (1985), 17 Ohio St.3d 147, 150, 17 OBR 350, 353, 478 N.E.2d 770, 773; Bobb v. Marchant (1984), 14 Ohio St.3d 1, 3, 14 OBR 1, 2, 469 N.E.2d 847, 849. According to their briefs, the parties agree that respondent's refusal to dismiss the preliminary injunction appeal signifies that it is about to exercise judicial power. Thus, we must first decide whether respondent will exercise unauthorized judicial power by considering the appeal further.

Relators argue that the instant preliminary injunction was not a proper subject for respondent's immediate review because it was not a final appealable order. We agree.

The action underlying the preliminary injunction of July 18 is one for injunctive relief. It has long been the rule that:

"An order of the court of common pleas granting a temporary injunction in a suit in which the ultimate relief sought is an injunction, is not either a judgment or a final order which may be reviewed by the circuit court on a petition in error." May Co. v. Bailey Co. (1910), 81 Ohio St. 471, 91 N.E. 183, syllabus.

Indeed, even the United States Supreme Court has recognized that, in Ohio:

"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 §§ 2505.02, 2505.03 of Page's Ohio Rev. Code (1954). * * * [Citations omitted.]" Amalgamated Clothing Workers v. Richmond Bros. Co. (1955), 348 U.S. 511, 517-518, at fn. 3.

Accordingly, no authority exists for respondent to hear an appeal of or to modify that order.

As for the third prerequisite to the issuance of the writ, it may be, as respondent claims, that any injury caused by not granting prohibition in this case could be remedied through ordinary legal measures. However, this court has acknowledged that it may exercise discretion to issue a writ of prohibition even where an adequate remedy in the ordinary course of law is available. State, ex rel. Ohio High School Athletic Assn., v. Judges (1962), 173 Ohio St. 239, 249, 19 O.O. 2d 52, 58, 181 N.E.2d 261, 267. We reaffirmed this principle in State, ex rel. Johnson, v. Perry County Court, supra, at 58, 25 OBR at 81, 495 N.E.2d at 21:

"`[I]f an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy * * * to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court.' * * * [Citations omitted.]"

The rule prohibiting appeal of preliminary injunctions like the one at bar places a "patent and unambiguous restriction" on the jurisdiction of a court of appeals. See State, ex rel. Smith, v. Court (1982), 70 Ohio St.2d 213, 24 O.O. 3d 320, 436 N.E.2d 1005. It also establishes that there was a "total and complete want of jurisdiction" on the lower court's part. See State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326, 59 O.O. 2d 387, 285 N.E.2d 22. In such a situation, this court has plenary power "not only to prevent excesses of lower tribunals, but to correct the results thereof and to restore the parties to the same position they occupied before the excesses occurred." Id. at 330, 59 O.O. 2d at 389, 285 N.E.2d at 24.

Accordingly, respondent's order modifying the preliminary injunction issued on July 18, 1988 is vacated and the writ prayed for is allowed.

Order vacated and writ allowed.

MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.