Members of our firm’s Appellate Practice Group are consulted regularly by our colleagues about procedural issues arising from so-called interlocutory appeals. In other words, appeals taken (or attempted to be taken) from decisions by trial courts at some point before final judgment.

These issues can arise in a wide variety of contexts because the universe of interlocutory decisions from which someone may wish to immediately appeal is so broad, and the primarily applicable Ohio statute (R.C. 2505.02) can be challenging to apply. Ohio’s final order statute clocks in at over 500 words, with an eye-popping Flesch-Kincaid Grade Level of 24.1 (or very difficult to understand), reflecting its wordiness and complexity.  

Blurry judge using gavel in court room representing interlocutory appeals, or preliminary injunctive relief.

Near the end of 2022, Ohio’s First Appellate District wrestled with a recurring interlocutory appeal issue in the context of a very hot-button topic: restrictions on abortion access. In Preterm-Cleveland v. Yost, the First District dismissed the State of Ohio’s interlocutory appeal from the trial court’s preliminary injunction temporarily enjoining the enforcement of Ohio’s so-called “Heartbeat Act,” which generally prohibits abortions after a fetal heartbeat is detected. In its decision, the Court of Appeals provided a helpful summary of the scenarios when one may or may not appeal from orders granting temporary injunctive relief.

Cincinnati trial court temporarily enjoins enforcement of Heartbeat Act

On Sept. 2, 2022, several abortion clinics and a doctor filed suit in Hamilton County seeking to prevent enforcement of the Heartbeat Act. Twelve days later, the trial court issued a temporary restraining order. Then, after an expedited evidentiary hearing, the trial court issued a preliminary injunction enjoining enforcement of the Act. The trial court’s order emphasized the provisional nature of the injunction, saying:

The Court’s findings at this stage are based on the limited record before the Court. This matter shall be set for a case management conference at which time the Court shall issue a scheduling order providing the parties adequate time to conduct full discovery in preparation for trial.

The State tried to immediately appeal, but it’s dismissed

Although the trial court noted the temporary nature of its injunction, the State immediately appealed the order granting it. But on Oct. 28, 2022, the court of appeals sua sponte ordered the parties to submit briefs addressing whether the trial court’s preliminary injunction constitutes a final, appealable order under Ohio law. In Ohio, this type of “show cause” procedure in the court of appeals is relatively common when the court of appeals wants to make sure that it actually has a final, appealable order before it to review. Under the Ohio Constitution, Ohio courts of appeals lack jurisdiction to review any order that isn’t final and appealable.

Sometimes, the parties to appeals in Ohio don’t get the answer to this threshold question of appellate jurisdiction until there has already been briefing and argument on the merits. Other times, though — as here — the separate briefing and early decision on this issue can prevent wasted time and effort on merit briefs and preparations for oral argument about non-final (and thus non-appealable) orders.

Two months after it ordered briefing in Preterm-Cleveland, the First District issued its unanimous decision holding that it lacked jurisdiction to hear the State’s appeal from the trial court’s preliminary injunction. First, the court of appeals noted that all parties agreed that the only subsection of Ohio’s final-order statute at issue was R.C. 2505.02(B)(4), which provides:

(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:


(4) An order that grants or denies a provisional remedy and to which 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.

The First District noted that this provision “on its face gives courts little guidance” with respect to subsection (B)(4)(a) but cited Ohio Supreme Court precedent for the proposition that an order satisfies this prong if there is nothing left for the trial court to decide with respect to the provisional remedy. As for (B)(4)(b), the appealing party must show that waiting for an appeal after final judgment would deprive it of a meaningful remedy — for example, “the proverbial bell cannot be unrung.”

The State tried to convince the First District that it would not have an effective remedy if it could not immediately appeal from the trial court’s preliminary injunction, but the First District disagreed. For one, Ohio courts generally hold that subsection (B)(4)(b) cannot be met when the order being appealed from is a preliminary injunction, and the ultimate relief sought in the lawsuit is a permanent one. After all, in such circumstances, an appeal from the permanent injunction usually suffices as an effective remedy for the party opposing injunctive relief. Moreover, the First District noted that Ohio courts have found that preliminary injunctions preserving the status quo are not final and appealable, because preservation of the status quo prevents changes in circumstances that would cause the loss of an adequate remedy for the appellant. Finally, the First District distinguished the scenario in Preterm-Cleveland from scenarios in which the proverbial bell cannot be unrung — thus justifying immediate appeal — such as the compelled disclosure of privileged information or the forced administration of psychotropic medication.

The State tried to argue that every day the trial court’s preliminary injunction remained in force caused irreparable harm to Ohio’s efforts to protect its citizens through enforcement of the Heartbeat Act. But the First District noted that this alleged harm to third parties did not equate to a denial of a meaningful or effective remedy to the appellant. As the First District noted:

Indeed, the state’s argument is tantamount to a conclusion that any preliminary injunction of a state statute warrants an immediate appeal. We are unwilling to go that far, nor does extant Ohio law.

The court of appeals also noted that a federal district court had previously enjoined the Heartbeat Act for nearly three years, which undermined “the alarmist claims in the state’s jurisdictional brief” regarding an additional and temporary stay on enforcement. In sum, the three-judge panel of the First District unanimously dismissed the State’s appeal.   

What will the Supreme Court of Ohio say?

Dissatisfied with the First District’s decision, the State filed a Notice of Appeal in the Ohio Supreme Court on Jan. 4, 2022. The State’s appeal in this case was assigned one of the very first case numbers for the 2023 Supreme Court — number 2023-0004. In its Memorandum in Support of Jurisdiction, the State urges the Supreme Court to accept discretionary review by saying, in part:

If allowed to stand, the First District’s ruling will leave the State with no way to protect legislation from egregiously wrong preliminary injunctions. Trial courts that issue such injunctions have every incentive to drag out lower-court proceedings, ensuring their orders remain in effect — and that state laws with which they disagree remain unenforceable — for as long as possible. Nothing in Ohio law requires that result. To the contrary, Ohio law permits the State to immediately appeal orders preliminarily enjoining state laws. The Court should grant review to say so. And, in the interest of resolving the important merits issues presented, the Court should also grant review to decide whether there is a right to abortion and, if there is, whether abortion providers rather than women seeking abortions may sue to enforce it.

As of this writing, the plaintiffs’ response to the State’s Memorandum is not yet due. However, on Jan. 11, 2023, counsel for Preterm-Cleveland filed a letter on the Ohio Supreme Court docket requesting the recusal of newly seated Justice Deters. The basis for the recusal request is that Justice Deters, in his former position as Hamilton County Prosecutor, was a named Defendant in the underlying challenge to the Heartbeat Act, calling his impartiality into question. On Jan. 25, 2023, Justice Deters agreed to recuse himself. Stay tuned to the Ohio Appellate Insights blog for further developments.