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Clean Energy Future, LLC v. Clean Energy Future-Lordstown, LLC

Court of Appeals of Ohio, Eleventh District, Trumbull

December 29, 2017

CLEAN ENERGY FUTURE, LLC, Plaintiff-Appellee,

         Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2017 CV 01636.

          Andrew C. Phelan, pro hac vice, Morgan Lewis & Bockius, LLP, One Federal Street, Boston, MA 02110; Andrew James Barber, Morgan Lewis & Bockius, LLP, One Oxford Centre, 32nd Floor, Pittsburgh, PA 15219 (For Plaintiff-Appellee).

          Scott Edward North and Kirsten Rene Fraser, Porter Wright Morris & Arthur, LLP, 41 South High Street, Suites 2800-3200, Columbus, OH 43215 (For Defendant-Appellant).


          TIMOTHY P. CANNON, J.

         {¶1} On November 30, 2017, Defendant-Appellant Clean Energy Future-Lordstown, LLC ("CEF-L"), filed a notice of appeal from the judgment of the Trumbull County Court of Common Pleas, which adopted the Magistrate's Decision and Recommendations of November 3, 2017. CEF-L filed a motion to stay the trial court's judgment, pending the outcome of this appeal, on December 15, 2017. This court granted a temporary stay on December 19, 2017. On December 28, 2017, Plaintiff-Appellee Clean Energy Future, LLC ("CEF") filed a response to the motion to stay and has argued, inter alia, that the appealed entry is not a final appealable order.

         {¶2} CEF commenced this action on September 20, 2017, for breach of contract, declaratory judgment, specific performance, and permanent injunctive relief regarding an Agreement for Option and Purchase of certain real property ("Option Agreement"). CEF also moved the trial court to enter a preliminary injunction requiring CEF-L to perform under the Option Agreement, including signing and consenting to the Fifth Addendum to the Declaration of Covenants and Restrictions for Lordstown Industrial Park. In an entry dated November 28, 2017, the trial court granted the preliminary injunction, stating:

Until further ORDER of this Court, Defendant, [CEF-L] is mandated to immediately sign the acknowledgment and consent to the Fifth Addendum To Declaration Of Covenants And Restrictions For Lordstown Industrial Park that CEF provided to CEF-L for such signature. CEF-L is further mandated to comply fully with the Agreement For Option And Purchase dated April 6, 2016, including its assistance and cooperation provisions in Sections 7 and 22, and so is barred from taking any action that delays or interferes with, or in any aspect of, any effort by CEF to develop and build any aspect of any energy facility within the Lordstown Industrial Park, including but not limited to, the transfer of the property upon exercise of the option on or after January 1, 2018 by CEF. Plaintiff shall post a bond in the amount of One Hundred Thousand Dollars ($100, 000.00).

         {¶3} Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order" in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶3. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989).

         {¶4} "A preliminary injunction is a provisional remedy that is considered interlocutory, tentative, and impermanent in nature. As such, an order granting or denying a preliminary injunction does not automatically qualify as a final appealable order." Wells Fargo Ins. Servs. USA, Inc. v. Gingrich, 12th Dist. Butler No. CA2011-05-085, 2012-Ohio-677, ¶5 (internal citations omitted). According to R.C. 2505.02(B)(4), a provisional remedy, such as an order granting a preliminary injunction, is a final appealable order only when 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.

         Whether the granting of a preliminary injunction is a final appealable order is, therefore, dependent on the circumstances of each case.

         {¶5} "The first of these requirements, R.C. 2505(B)(4)(a), has been deemed to be unmet where the trial court's order granting a preliminary injunction only serves to maintain the status quo pending litigation of the trial on the merits." Cleveland Clinic Found. v. Orange Techs., LLC, 8th Dist. Cuyahoga Nos. 100011 & 100059, 2014-Ohio- 211, ¶12, citing McHenry v. McHenry, 5th Dist. Stark No. 2013 CA 00001, 2013-Ohio- 3693, ¶17, Cleveland Firefighters, IAFF Local 500 v. E. Cleveland, 8th Dist. Cuyahoga No. 88273, 2007-Ohio-1447, ¶5; Hootman v. Zock, 11th Dist. Ashtabula No. 2007-A- 0063, 2007-Ohio-5619, ¶16; and Deyerle v. Perrysburg, 6th Dist. Wood No. WD-03-063, 2004-Ohio-4273, ¶15. "Status quo" has been defined as "'the last, actual, peaceable, uncontested status which preceded the pending controversy.'" Aquasea Group, LLC v. Singletary, 11th Dist. Trumbull No. 2013-T-0120, 2014-Ohio-1780, ¶11, quoting Obringer v. Wheeling & Lake Erie Ry. Co., 3rd Dist. Crawford No. 3-09-08, 2010-Ohio-601, ¶19; see also Quinlivan v. H.E.A.T. Total Facility Solutions, Inc., 6th Dist. Lucas No. L-10- 1058, 2010-Ohio-1603, ¶5.

         {¶6} CEF-L argues the trial court did not act to preserve the status quo because it orders CEF-L to take an affirmative action by signing the Fifth Addendum. The trial court explained that "preserving the status quo in this situation requires an affirmative action, because the 'status quo' is the parties' ...

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