Lamar Advantage GP Co. v. City of Cincinnati, No. A-18-04105 (consolidated with Case No. A-18-04125)

CourtCourt of Common Pleas of Ohio
Writing for the CourtCurt C. Hartman, Judge
Citation114 N.E.3d 831
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.
Decision Date09 November 2018
Docket NumberNo. A-18-04105 (consolidated with Case No. A-18-04125)

114 N.E.3d 831

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.

No. A-18-04105 (consolidated with Case No. A-18-04125)

COURT OF COMMON PLEAS OF OHIO, HAMILTON COUNTY

November 09, 2018


114 N.E.3d 833

ENTRY CONVERTING PRELIMINARY INJUNCTION INTO PERMANENT INJUNCTION

Curt C. Hartman, Judge

"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) ("permanent relief might be granted after a hearing upon a temporary injunction if no genuine issues of fact are found to be present").

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 (which was enacted by Ordinance No. 167-2018) 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

114 N.E.3d 834

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, "[t]he essential prerequisite to a permanent injunction is the unavailability of an adequate remedy at law. Irreparable injury is, however, one basis, and probably the major one, for showing the inadequacy of any legal remedy. Often times the concepts of ‘irreparable injury’ and ‘no adequate remedy at law’ are indistinguishable." 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

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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...

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