Lamar Advantage GP Co. v. City of Cincinnati
| Citation | 114 N.E.3d 831 |
| Decision Date | 09 November 2018 |
| Docket Number | No. A-18-04105 (consolidated with Case No. A-18-04125),A-18-04105 (consolidated with Case No. A-18-04125) |
| Parties | LAMAR ADVANTAGE GP CO., LLC, dba Lamar Advertising of Cincinnati, OH, Plaintiff, and State of Ohio ex rel. Lamar Advantage GP Co., LLC, Relator, v. CITY OF CINCINNATI, et al., Defendants-Respondents. Norton Outdoor Advertising, Inc., Plaintiff, v. City of Cincinnati, et al., Defendants. |
| Court | Court of Common Pleas of Ohio |
ENTRY CONVERTING PRELIMINARY INJUNCTION INTO PERMANENT INJUNCTION
"It is generally improper for a court to dispose of a case on the merits following a hearing for preliminary injunction without consolidating that hearing with a hearing on the merits or otherwise giving notice to counsel that the merits would be considered." George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio App.3d 71, 449 N.E.2d 503 (6th Dist. 1982). Nonetheless, because Rule 65(B)(2) of the Ohio Rules of Civil Procedure"provides that consolidation may be ordered ‘before or after beginning the hearing,’ the trial court can transform a preliminary injunction hearing into a consolidated hearing at any time and may do so on its own motion." 11A Wright, Miller & Kane, Federal Practice and Procedure § 2950 (2d ed. 1995). However, "[t]his power must be tempered by the due process principle that fair notice and an opportunity to be heard must be given the litigants before the disposition of a case on the merits." Id. But "when the parties in fact presented their entire cases and no evidence of significance would be forthcoming at trial, then [a] trial court's consolidation will not be considered to have been improper." Id.; accord Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. 1967) ().
In the case sub judice , prior to the commencement of the hearing on the Motions for Preliminary Injunctions , the parties conducted significant discovery, including depositions. Then, following several days of testimony and extensive argument by counsel, the Court issued a Preliminary Injunction precluding Defendants from undertaking any action to implement or enforce any and all provisions of Chapter 313 of the Cincinnati Municipal Code, including, without limitation, the outdoor advertising tax provided for therein. During this entire process, all parties acknowledged that the issues sub judice concerning Chapter 313 () involved predominately legal issues. And this proposition was reiterated by the parties dining oral argument held on October 23, 2018, at which time the parties specifically addressed whether the Preliminary Injunction should be converted to a permanent injunction and, if so, whether language should be included finding no just reason for delay pursuant to Rule 54(B) of the Ohio Rules of Civil Procedure.
Additionally, the Court apprized the parties formally on November 1, 2018, of its sua sponte consideration of whether to convert the Preliminary Injunction into a permanent injunction. In response thereto, Plaintiff LAMAR ADVANTAGE GP CO., LLC, dba LAMAR ADVERTISING OF CINCINNATI, OH, and Defendants CITY OF CINCINNATI and its officials tendered additional written responses to such potential action by the Court, indicating no substantive objection to the conversion.
While LAMAR and Plaintiff NORTON OUTDOOR ADVERTISING, INC., filed Amended Complaints since the issuance of the Preliminary Injunction, the Amended Complaints make no new substantive allegations concerning the issues underlying the scope of the Preliminary Injunction, i.e., the constitutionality of Chapter 313 of the Cincinnati Municipal Code as adopted through Ordinance No. 167. Thus, the Amended Complaints do not alter the evidence or issues presented to the Court as it relates to Chapter 313.
And while the parties have generally acknowledged the appropriateness to issue a permanent injunction, the Court still has undertaken an independent assessment of the factors for issuance of a permanent injunction. "The test for granting a permanent injunction is similar to the test used for granting a preliminary injunction." West Branch Local School Dist. Bd. of Ed. v. West Branch Ed. Ass'n , 2015-Ohio-2753, 35 N.E.3d 551, ¶ 15 (7th Dist.). However, certain distinctions do exists. Whereas "[t]he preliminary injunction test requires the moving party to prove a substantial likelihood of success on the merits," a permanent injunction test requires "the party seeking it to demonstrate a right to relief under the applicable substantive law." Id. And in addition to demonstrating irreparable injury, a complaining party seeking a permanent injunction must also demonstrate the lack of an adequate remedy at law. Ohio Hosp. Ass'n v. Ohio Bur. of Workers' Comp., 2007-Ohio-1499, 2007 WL 949468, ¶ 24 (10th Dist.). But ultimately, Lewis v. S. S. Baune, 534 F.2d 1115, 1123-24 (5th Cir. 1976) (internal citation omitted) ). Based upon the Court's independent assessment of these factors,1 the Court finds the analysis supporting the issuance of the Preliminary Injunction clearly supports the issuance of a permanent injunction.
Because the issuance of a permanent injunction as it relates to Chapter 313 of the Cincinnati Municipal Code will not resolve all the claims sub judice, the Court must consider whether to make the determination that there is no just reason for delay pursuant to Ohio R. Civ. P. 54(B).
In deciding that there is no just reason for delay, the trial judge makes what is essentially a factual determination – whether an interlocutory appeal is consistent with the interests of sound judicial administration, i.e. , whether it leads to judicial economy. Trial judges are granted the discretion to make such a determination because they stand in an unmatched position to determine whether an appeal of a final order dealing with [multiple-claim or multiple-party actions] is most efficiently heard prior to trial on the merits. The trial court can best determine how the court's and the parties' resources may most effectively be utilized. The trial court is most capable of ascertaining whether not granting a final order might result in the case being tried twice. The trial court has seen the development of the case, is familiar with much of the evidence, is most familiar with the trial court calendar, and can best determine any likely detrimental effect of piecemeal litigation.
Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989).
The CITY OF CINCINNATI objects to the inclusion of Rule 54(B) language "at this point" of the proceedings, maintaining that the inclusion of such language would bifurcate the issues sub judice and preclude appellate review of all issues at one time. While " Rule 54(B)'s general purpose is to accommodate the strong policy against piecemeal litigation with the possible injustice of delayed appeals in special situations," Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989), the raison d'être for Ohio R. Civ. P. 54(B) supports allowing, inter alia , separate and discrete claims to proceed forward on appeal apart from unrelated claims even when all claims are against the same parties.
"In the ordinary case, Civ.R. 54(B) certification demonstrates that the trial court has determined that an order, albeit interlocutory, should be immediately appealable, in order to further the efficient administration of justice and to avoid piecemeal litigation or injustice attributable to delayed appeals." Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 11. In the case sub judice, two ordinances passed by the Cincinnati City Council are at issue, viz., Ordinance No. 167-2018 () and Ordinance No. 163-2018 (). And while the budgetary process in the City of Cincinnati brought about the passage of both ordinances, the factual and legal issues involved between the two are separate and distinct. Furthermore, legal issues dominate with respect to Ordinance No. 167, i.e., the target of the forthcoming permanent injunction. And finally, the interest of justice militates in minimizing the period that implementation of Ordinance No. 167 is enjoined by this Court should appellate review ultimately uphold its constitutionality. Thus, the Court finds, in its discretion, that the issuance of a permanent injunction should include language declaring that there is no just reason for delay.
For the foregoing reason, a permanent injunction will issue consistent with the foregoing, as well as the analysis set forth in the Entry Granting in Part and Denying in Part Motions for Preliminary Injunction.
1 In support of the issuance of the Preliminary Injunction, the Court addressed, inter alia, the decision in Clear Channel Outdoor, Inc. v. Department of Finance of Baltimore City , 2018 WL 1178952 (Md. Tax Feb. 27, 2018), wherein the Maryland Tax Court upheld a billboard tax in Baltimore. See Entry Granting in Part and Denying in Part Motions for Preliminary Injunction, at 20 n.10. Since the issuance of the Preliminary Injunction, the decision of the Maryland Tax Court was affirmed by the Baltimore City Circuit Court. Clear Channel Outdoor, Inc. v. Director, Department of Finance of Baltimore City, Case No. 24-C-18-001778 (Baltimore City Cir. Ct. Oct. 22, 2018).
As part of the present consideration of the merits on the issuance vel non of...
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