This article highlights new developments on the subject of a former Ohio Appellate Insights post considering the authority of appellate courts to immediately review appeals from provisional orders.

In that prior post, the blog addressed the First District’s decision in Preterm-Cleveland et al. v. Yost, Atty Gen., et al., in which the First District held that it lacked jurisdiction to hear an appeal from what it characterized as a non-final order granting a preliminary injunction and enjoining enforcement of the “Heartbeat Act.”

Although that decision by the First District was appealed to the Ohio Supreme Court, the Supreme Court ultimately dismissed the appeal due to the change in law effected by the General Assembly’s passage of Issue 1. As such, the Supreme Court did not decide the merits of whether or not the First District’s interpretation of Ohio’s final order statute in Preterm-Cleveland was correct.

Understanding whether the interlocutory order in your case is final and appealable is important – it can be both a shield and a sword. Understanding whether an enforceable order is not yet appealable can be hugely beneficial depending on the case. On the other hand, if you want an immediate appeal, you need to be able to explain to the court of appeals why the order is final. As with everything in litigation, there are tactical opportunities here that are especially nuanced.

Deciphering Ohio’s final appealable order statute

Unless the order is a final judgment, it is generally only reviewable under Ohio’s final appealable order statute, R.C. 2505.02. Under this statute, an appellate court can only review provisional orders like preliminary injunctions if the order:

  • Grants or denies a provisional remedy;
  • Resolves the provisional remedy dispute and prevents judgment on that remedy in favor of the appealing party; and
  • Deprives the appealing party of a “meaningful or effective remedy” if the appeal were considered after a final judgment on the entire case.

It is this “meaningful remedy” element on which courts tend to focus when they accept or deny appellate review of preliminary injunction orders. (See the First District’s denial of interlocutory appellate review compared with the Tenth District’s grant of interlocutory appellate review).

The reason for this difference in treatment results from the circumstances specific to each case. Ohio appellate courts tend to decline review of preliminary injunction appeals when the trial court’s order would merely “maintain the status quo” until a final judgment can be rendered. (Dunkelman v. Cincinnati Bengals, Inc., (First District); Quinlivan v. H.E.A.T. Total Facility Solutions, Inc., (Sixth District); East Cleveland Firefighters, IAFF Local 500 v. City of E. Cleveland, (Eighth District); City of Columbus v. State of Ohio, (Tenth District)). If a trial court’s ruling would merely preserve that status quo, appellate courts will typically disclaim jurisdiction to question it on the merits.

Provisional remedy

The First District Court of Appeals recently took this procedural question a step further in its Medpace decision, when it considered whether a trial court judge’s sua sponte order was immediately appealable as a grant of preliminary injunction. In a status conference for a dispute over employee non-solicitation agreements, the trial judge issued an oral order preventing a number of the defendants from “hiring, soliciting, and/or recruiting” the Plaintiff’s employees until the entire matter was decided.

No party had previously requested that precise form of interim relief – the Plaintiff sought a permanent, not preliminary, injunction in its complaint. The defendants unsuccessfully sought reconsideration of the trial court judge’s oral order as a “de facto preliminary injunction.” After the trial judge denied reconsideration of the order and memorialized it as a written “cease and desist” order, the defendants appealed to the First District for relief. The First District held that the written order was functionally a preliminary injunction, because “[w]hen something looks like a duck and quacks like a duck, it usually isa duck.”

After finding that the trial judge’s “cease and desist” order was a preliminary injunction, the First Circuit determined that the order merely enforced the employee solicitation agreement, which (in the court’s view) maintained the status quo between the parties while the dispute was ongoing. Because the order would not “irreparably change the party’s position between provisional remedy and final judgment,” it denied immediate appellate review.

Key takeaways

A review in your favorite legal research service will show that Ohio appellate courts address the interpretation of R.C. 2505.02 over 100 times a year in published decisions (and probably hundreds more in unpublished orders). For practitioners and parties, it is important to have a thorough understanding of what may constitute a final appealable order to maximize opportunities for success. It is yet unclear whether the First District’s Medpace ruling will be appealed, but this decision is another data point for counsel to consider when seeking to characterize an interlocutory “cease and desist” order as either final or non-final.