Opinion
No. 88-1464
Submitted November 14, 1988 —
Decided December 28, 1988.
Appellate procedure — Final appealable orders — Preliminary injunction not appealable — Writ of prohibition granted.
IN PROHIBITION.
This action challenges the jurisdiction of respondent, the Court of Appeals for Cuyahoga County, to consider an appeal of a preliminary injunction issued by the Court of Common Pleas of Cuyahoga County on July 18, 1988. Relators, Zane R. Tollis, Terry Tollis, and Tolco Utilities, Inc., seek an order preventing respondent from further considering the appeal of the July 18 order on the ground that it was neither final nor appealable. They also request that this court correct the result of respondent's having exercised jurisdiction in the appeal.
According to the parties' stipulations, Zane and Terry Tollis are taxpayers and owners of property in Broadview Heights, Ohio ("city"), which is subject to the assessment plan set forth in Broadview Heights Resolution No. 84-12. The assessment is to pay for the construction of a sewer system and is to be imposed in proportion to the benefits received from the improvement on all properties located in the serviced area. Tolco Utilities, Inc. ("Tolco") is the independent sewer company that supplies various properties in that vicinity, including those belonging to Zane and Terry Tollis.
Zane Tollis is a named plaintiff in two actions for declaratory judgment and injunctive relief brought in the Court of Common Pleas of Cuyahoga County to contest the city's assessment. Both actions request that affected landowners, including Terry Tollis, be certified as a class under Civ. R. 23. Together, the actions generally allege that the city's assessment plan is illegal and void because (1) some properties that benefit from the improvement were arbitrarily exempted from assessment or were assessed a reduced amount, (2) the assessment equalization board that denied objections to the assessment was not composed of three "disinterested freeholders" as required by R.C. 727.16, and (3) the city failed to apply for a jury's determination in response to Tolco's damage claim as required by Section 3 of Broadview Heights Ordinance No. 27-84 and R.C. 727.18 et seq. In light of the issues common to the cases, the common pleas court consolidated them on May 28, 1987.
After conducting hearings on June 30, July 1, 6, and 7, 1988, the common pleas court granted Zane Tollis and others the aforementioned preliminary injunction because they had "demonstrated a likelihood of success on the merits of their claim that the assessment program established by * * * Broadview Heights * * * under Resolution No. 84-12 is illegal * * *." Finding that the assessment program would cause irreparable harm if the city were permitted to proceed with it, the court enjoined the city from passing, enacting, or otherwise acting upon an ordinance of assessment pursuant to Resolution No. 84-12 until the dispute had been finally heard on the merits. This order was to become effective upon the posting of a $100,000 bond. The court also denied the city's request for a stay of the preliminary injunction pending an appeal and it set a hearing on the merits in the matter for September 26, 1988.
The city appealed the preliminary injunction to the Court of Appeals for Cuyahoga County on the day it was issued, July 18, 1988. The city also filed a motion for a partial stay of the preliminary injunction and an affidavit stating that Broadview Heights would probably default on its contractual obligations if the assessment plan were to be enjoined. In response, the common pleas court plaintiffs filed a motion to dismiss on the ground that the preliminary injunction was not a final appealable order.
The court of appeals granted the city's motion for a partial stay on July 18, but only with respect to those plaintiffs who were not specifically named in the common pleas court action. In other words, the appellate court's order lifted the injunction insofar as it prevented the city from proceeding to assess property owned by persons who may have been part of the class alleged, but who were not technically parties to the action since the class had not yet been formally certified. The appellate court explained that its stay would terminate upon its disposition of the matter, whether by dismissal for lack of jurisdiction or by a decision on the merits, unless the stay was otherwise terminated or extended. However, the court of appeals also declared that the common pleas court retained authority to consider the propriety of class certification in, and to decide the merits of, the declaratory judgment and permanent injunction suit pending below.
Later, on the evening of July 18, 1988, the city passed Broadview Heights Ordinance No. 88-106, authorizing the assessment of properties located in the area that the now completed sewer system would service. In compliance with the court of appeals' order, the ordinance specifically exempted property owned by plaintiffs in the common pleas action against the city. However, the ordinance applied to Terry Tollis and others similarly situated because they were not named plaintiffs in that suit.
Thereafter, the city notified Terry Tollis, among others, of his assessment charge and gave him the option of either paying the charge in cash by September 1, 1988, or having the assessment certified to the Cuyahoga County Auditor for collection. Because Terry Tollis did not pay his assessment charge, it was certified, with interest, for placement on the tax duplicate on September 12, 1988. On the same day, this court granted relators' request for an alternative writ.
Four days before the alternative writ was granted, on September 8, 1988, the court of appeals denied the motion to dismiss the appeal of the preliminary injunction as well as a motion for reconsideration. However, the appellate court stayed further consideration in that appeal until this prohibition action was resolved. On or about September 21, 1988, the common pleas court also suspended pertinent proceedings, but it scheduled December 5 through 7, 1988 as tentative dates for hearing the merits of the claims opposing the assessment.
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.
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.