Board of Education Ironton City Schools v. Ohio Department of Education, 93-LW-2404

• Decision Date: 29 June 1993
• Docket Number: 93-LW-2404,CA92-39
• Parties: Board of Education Ironton City Schools, Plaintiff-Appellee v. Ohio Department of Education, et al., Defendants-Appellants Case
• Court: Ohio Court of Appeals

Board of Education Ironton City Schools Plaintiff-Appellee v. Ohio Department of Education, et al Defendants-Appellants

No. CA92-39.

93-LW-2404 (4th)

Court of Appeals of Ohio, Fourth District Lawrence

June 29, 1993

Lee Fisher, Ohio Attorney General, and Karin E. Wilson, Assistant Attorney General, Columbus, Ohio, for Appellant Ohio Department of Education.

Lee Fisher, Ohio Attorney General, David B. Clouston and Gary D Andorka, Assistant Attorneys General, Columbus, Ohio, for Appellants Charles D. Shiplevy, Director, Dept. of Highway Safety, State Highway Patrol Division, Dept. of Highway Safety, and Lt. James Coleman, State Highway Patrol.

Kennedy & Kennedy, Richard D. Kennedy, Ironton, Ohio, for Appellee.

DECISION

Harsha P.J.

The Ohio Department of Education, Charles D. Shiplevy, Director, Department of Highway Safety, State Highway Patrol Division, Department of Highway Safety, and Lieutenant James Coleman, State Highway Patrol, appeal from a judgment entered by the Lawrence County Court of Common Pleas permanently en joining them from interfering with the Board of Education of the Ironton City School District's use of a 1954 GMC Motor Coach for the transportation of school children to and from school functions.

Appellant Ohio Dept. of Education assigns the following errors:

I. The Trial Court Erred In Enterring [sic] Judgment On The Merits of Appellee's Claims, Immediately Following A Hearing For A Temportary [sic] Restraining Order, Without Providing Appellants Any Opportunity To Defend Against The Substantive Legal Claims.

II. The Trial Court Erred In Issuing A Permanent Injunction In The Absence Of Any Clear And Convincing Evidence To Show That Appellee Was Entitled To Such Relief.

III. The Trial Court Erred In Not Dismissing Appellee's Complaint When The Only Legal Basis Identified In The Complaint For The Relief Sought Was That Department of Education Rules Which Prohibited The Use Of Appellee's 1954 GMC Motor Coach Are "Invalid."

IV. The Trial Court Erred In Declaring That The Ohio Department Of Education Regulations, As Applied To TheAppellee School District Are Arbitrary And Discriminatory.

V. The Trial Court Erred In Reviewing The Validity Of The School Bus Statutes And Regulations In The Absence Of A Request For Declaratory Judgment.

The remaining appellants assign the following errors:

I. THE LAWRENCE COUNTY COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT ISSUED A PERMANENT RESTRAINING ORDER IN CONTRAVENTION OF CLEAR STATUTORY REQUIREMENTS.

II. THE LAWRENCE COUNTY COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT ISSUED A PERMANENT RESTRAINING ORDER IN CONTRAVENTION OF THE CRITERIA USED TO DETERMINE THE APPROPRIATENESS OF SUCH INJUNCTIVE RELIEF.

III. THE LAWRENCE COUNTY COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT DETERMINED THE VALIDITY OF THESE REGULATIONS, WHEN NO REQUEST FOR A DECLARATORY JUDGMENT HAD BEEN MADE.

On November 4, 1992, appellee filed a complaint which set forth the following allegations. Appellee owned a 1954 GMC Motor Coach which it used to transport students and others to various activities. The vehicle met the safety standards required by the Public Utilities Commission of Ohio (PUCO) for common passenger carriers, but did not meet the standards required by various statutes and regulations for school buses. Those same statutes and regulations expressly permit common passenger carriers to transport children in vehicles which do not meet the regulations for school buses. Appellee was informed by appellant, the State Highway Patrol Division of the Department of Highway Safety, that if the GMC Motor Coach was operated while transporting students, it would be stopped and cited for violation of the law. Ohio Department of Education's regulations prohibiting appellee's use of its 1954 GMC Motor Coach to be invalid; and (2) a "temporary and permanent Restraining Order" enjoining appellants from interfering with appellee's use of the vehicle for the transportation of students for school activities. Appellee's complaint contained a "NOTICE OF HEARING" which stated that the "foregoing demand for a temporary restraining order" would be the subject of a hearing on November 6, 1992.

At the November 6, 1992 hearing, the parties' counsel presented arguments and evidence concerning the propriety of a temporary restraining order. David Lawless, a certified master technician, testified that appellee's bus was in excellent condition and that it was safer than any school bus. Trooper Dean S. Cheadle, a motor vehicle inspector who regularly performed school bus inspections, testified that appellee's 1954 GMC Motor Coach did not meet the legal specifications for a school bus. Nevertheless, Trooper Cheadle admitted that schools all over thestate rented similar vehicles from private bus companies to transport students and that Lawless, who was responsible for maintenance of the 1954 GMC Motor Coach, was one of the top mechanics in the area. Sergeant Elbert W. Kelly of the State Highway Patrol testified that if he was travelling from Ironton to another city, he would feel safer in a bus similar to the one owned by appellee than a regular school bus.

At the conclusion of the testimonial evidence, appellants' attorney reiterated that appellee's motion for a temporary restraining order should be denied. The trial court then announced that it was going to grant appellee a permanent injunction "until the Court of Appeals rules." On November 9, 1992, i.e., only five days after the complaint was filed and only three days following the hearing on appellee's request for a temporary restraining order, the trial court entered judgment permanently enjoining appellants from interfering with appellee's use of the 1954 GMC Motor Coach for the transportation of school children to and from school activities.Appellant Ohio Department of Education's first assignment of error asserts that the trial court erred in entering judgment on the merits of appellee's claims immediately following a hearing for a temporary restraining order, without providing appellants any opportunity to defend against the substantive legal claims.

In Ohio, injunctions are separated into three categories: (1) the temporary restraining order, which is issued ex parte without notice in an emergency situation to last only until a hearing can be set; (2) the preliminary injunction issued with notice and after a hearing to maintain the status quo until there can be a full trial on the merits; and, (3) the permanent injunction issued after a trial on the merits. 2 McCormac, Anderson's Ohio Civil Practice (1991) 842, Section 75.01.

Civ.R. 65 governs the general procedure for injunctions. Civ.R. 65(B)(2) provides that a hearing on a preliminary injunction may also be consolidated with a trial on the merits. There is no provision that allows a court to consolidate a hearing on the merits with an application for a temporary restraining order.^[1] However, when all of the parties had notice of, were present at, and participated in the hearing, the court may treat the application for a temporary restraining order as one for a preliminary injunction. Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 228; Frank v. Meigs Cty. Sheriff's Dept. (Dec. 5, 1986), Meigs App. No. 372-373, unreported. Therefore, the trial court could have properly treated the hearing on appellee's motion for a temporary restraining order as one for a preliminary injunction.

Civ.R 65(B)(2) and Fed.R.Civ.P. 65(a)(2) require that a court order the consolidation of a hearing on the application for a preliminary injunction with a trial on the merits, thus providing the parties with notice that the case is, in fact, being heard on the merits. Turoff, supra, at 228; Seasonings Etcetera, Inc. v. May (Feb. 23, 1993), Franklin App. No. 92AP-1056, unreported;Makro, Inc. v. United Food & Comm. Workers Local 880 (Oct. 25,...