Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas. Case
No. 2017 CV 01636.
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).
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.
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
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
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).
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).
"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
(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.
the granting of a preliminary injunction is a final
appealable order is, therefore, dependent on the
circumstances of each case.
"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.
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' ...