State ex rel. DeWine v. 333 Joseph, LLC
| Decision Date | 17 November 2014 |
| Docket Number | No. 9–13–71.,9–13–71. |
| Citation | 21 N.E.3d 1142 |
| Parties | STATE of Ohio ex rel. Michael DeWINE, Ohio Attorney General, Plaintiff–Appellee, v. 333 JOSEPH, LLC, et al., Defendants–Appellants, and Robert Cendol, et al., Defendants–Appellees. |
| Court | Ohio Court of Appeals |
Colin G. Skinner, Akron, for appellants.
Clint R. White, for appellee, Michael DeWine, Ohio Attorney General.
WILLAMOWSKI
, P.J.
{¶ 1} Defendants-appellants, a company known as 333 Joseph, LLC and its member, Stanley Rosenfeld (collectively referred to as “333 Joseph”), bring this appeal from the judgment of the Marion County Court of Common Pleas granting a preliminary injunction1 in favor of Plaintiff-appellee, State of Ohio ex rel. Michael DeWine, Ohio Attorney General (“the State”). For the reasons that follow, we reverse the trial court's judgment.
{¶ 2} The facts relevant to this appeal are as follows. On July 24, 2013, the State filed a Complaint for Injunctive Relief and Civil Penalties with the Marion County Court of Common Pleas (“the Complaint”). (R. at 2.) The Complaint alleged that 333 Joseph conducted illegal demolition activities at a construction site at 333 Joseph Street in Marion, Ohio. (Id. ) The eight counts of the Complaint included: air nuisance, statutory nuisance, failure to notify the Ohio Environmental Protection Agency (“Ohio EPA”) of a demolition operation, failure to remove asbestos-containing materials, shipping or removing asbestos-containing material without an authorized representative present at the operation, failure to keep all regulated asbestos-containing material adequately wet, failure to properly dispose of asbestos-containing waste material, and failure to comply with the final orders of the Director of the Ohio EPA. (Id. )
{¶ 3} Count Eight of the Complaint specifically alleged that on October 31, 2012, the Director of the Ohio EPA issued Director's Final Findings and Orders (“Director's Orders”) pursuant to R.C. 3704.03(R)
(). The Director's Orders allegedly required 333 Joseph to “remove all regulated asbestos containing material from the Joseph Street site, prevent public access to the site during removal through use of temporary fencing, and properly dispose of all regulated asbestos containing material in a properly licensed landfill by December 31, 2012.” (Id. ) The State claimed that 333 Joseph had failed to comply with the Director's Orders, violating R.C. 3704.05(G) (), and entitling the State to injunctive relief under R.C. 3704.06(B) ().
{¶ 4} Together with the Complaint, the State filed a motion for a preliminary injunction, pursuant to R.C. 3704.06
, 3767.03 (“Abatement of nuisance”), and Civ.R. 64 (“Injunctions”). (R. at 3.) In this motion, the State alleged that 333 Joseph created and maintained nuisance; “violated statutes and rules designed to protect public health, safety, and the environment”; and “refused to comply with orders from the Director of Ohio EPA to clean up the blighted property at 333 Joseph St.” (Id. ) The State further alleged that 333 Joseph “did not appeal the issuance of the Director's Orders as was its prerogative per R.C. 3745.04.” (Id. ).
{¶ 5} 333 Joseph filed an answer denying allegations in all counts of the Complaint. It then filed a brief in opposition to the State's motion, arguing that there was no evidence that the construction site posed any risks, that other parties were responsible for any potential violations, that 333 Joseph could not comply with the Director's Orders due to its limited means, and that no exigent circumstances existed to require a preliminary injunction, in place of the “normal litigation process.” (R. at 10.) 333 Joseph further alleged that the State must prove its right to the injunction by clear and convincing evidence.
{¶ 6} The trial court held a hearing on the State's motion. The hearing was largely focused on resolving the issue of whether 333 Joseph was in violation of the Director's Orders, but the trial court also heard arguments and reviewed other evidence of statutory violations that would warrant an injunction under R.C. 3704.06
.
(See Tr. at 5:6–7, 9:19–10:2.) 333 Joseph argued that the Director's Orders did not sufficiently establish violations of the Ohio Administrative Code and that the testimony presented at the hearing did not prove that there was any asbestos on the site or that it was hazardous. (Tr. at 226.) It argued that the site was not dangerous and all the required cleanup procedures were thus, unnecessary and too burdensome. (Id. ) 333 Joseph further contended that a preliminary injunction was not proper at this point in the proceedings, asking for an opportunity to have a full trial on the merits. (Tr. at 226–228.) 333 Joseph attempted to challenge findings made by the Ohio EPA Director in the Director's Orders, as well as the specificity of the orders, but it did not dispute its failure to appeal the Director's Orders. (See Tr. at 7:23–24, 14:16–22, 15:1–5.) 333 Joseph also objected to the admission into evidence of Exhibit 6, which appears to be a photocopy of a certified photocopy of the purported Director's Orders. (See Tr. Ex. P–6.) 333 Joseph argued that the document was not properly authenticated. (Tr. at 165.) The trial court admitted Exhibit 6 over 333 Joseph's objections. (Tr. at 167.) The parties also presented arguments concerning the standard of proof applicable to the preliminary injunction action at issue.
{¶ 7} After the hearing and additional briefing, the trial court determined that the applicable standard of proof was the preponderance of the evidence. The trial court found that this standard was satisfied in this case and issued its judgment entry granting the preliminary injunction. The trial court's findings and the order of injunction were largely based on the Director's Orders. In particular, the trial court found that the Director of the Ohio EPA “issued an order directed to [333 Joseph]” on October 31, 2012, which ordered certain removal and clean-up activities to “be conducted in full compliance with applicable asbestos regulations and laws (see OAC Chapters 3745–20 and 40 CFR Part 61, Subpart M), * * * no later than December 31, 2012,” while precluding public access “with the use of temporary fencing,” and the disposal of the asbestos-containing materials “in a properly licensed landfill.” (R. at 21, J. Entry at 5.) The trial court further found that 333 Joseph failed to comply with the Director's Orders. (Id. ) The trial court concluded that as a result of 333 Joseph's failure to comply with the Director's Orders, “[r]egulated asbestos-containing materials remain on the premises.” (Id. ) Therefore, it held that the State “has met its burden to obtain a preliminary injunction against [333 Joseph] for failure to comply with an order issued by the EPA director as well as administrative rules issued by the director.” (Id. at 7.) Of note, the trial court did not find that the property constituted a nuisance and it found only “minimal evidence that the property constituted a health hazard.” (Id. at 6.) The preliminary injunction order repeated much of the language of the Director's Orders. (See id. at 7–8.)
{¶ 8} 333 Joseph filed this timely appeal, in which it raises four assignments of error.
{¶ 9} We elect to address the assignments of error out of order.
Second Assignment of Error—Standard of Proof for Statutory Injunction
{¶ 10} In the trial court, 333 Joseph argued that the State must prove the elements necessary for a preliminary injunction by “clear and convincing” evidence. The trial court rejected this assertion and applied the preponderance of the evidence standard to the action, reasoning that a statutory injunction does not require the higher burden of proof.
{¶ 11} In this case, determination of the proper standard of proof is complicated by the nature of the action, which is an injunction based upon a violation of a statute, a so-called statutory injunction. Furthermore, while “[t]he purpose of a preliminary injunction is to preserve the status quo of the parties pending a decision on the merits,” Davis v. Widman, 184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, ¶ 29 (3d Dist.)
, here, compliance with the preliminary injunction order results in a permanent solution, thereby allowing the State to avoid a full trial on the merits.
{¶ 12} Generally, a preliminary injunction will not be granted unless the party seeking injunction proves by clear and convincing evidence that (1) there is a substantial likelihood of prevailing on the merits, (2) there is a risk of irreparable injury if the injunction is not granted, (3) the injunction...
To continue reading
Request your trial
-
Ohio Dep't of Nat. Res. v. Big Sky Energy, Inc, Case No. CT2019-0086
...be classified as a "statutory injunction," as opposed to the common law equitable remedy of injunction. State ex rel. DeWine v. 333 Joseph, L.L.C., 2014-Ohio-5090, 21 N.E.3d 1142, ¶ 11, 19 (3rd Dist.). {¶33} When a trial court grants injunctive relief, the typical standard of review for thi......
-
Vill. of New Holland v. Murphy
...distinguishable from the present case. Appellees further argue that its holding was since "disavowed" in State ex rel. Dewine v. 333 Joseph, LLC, 2014-Ohio-5090, 21 N.E.3d 1142. However, we reject Appellees' arguments. The 333 Joseph court did not disavow our prior holding in Ashworth. Rath......