State v. Alexander Brothers, Inc.

No. 74-CA-6 (Ohio Ct. App. November 1, 1974)

The court reverses a lower court and holds that plaintiff need not show irreparable harm in order to obtain injunctive relief against an unlicensed stripmining operation. Injunctive relief is a statutorily authorized remedy under the state law prohibiting stripmining without a license, and therefore is not subject to the general principles governing equitable jurisdiction. The statute itself imposes no limitation on the injunctive remedy, and an award of injunctive relief under the law thus cannot be conditioned on a showing of irreparable harm.

Counsel for Plaintiff
William J. Brown Attorney General
Jay McKirahan
Bruce E. Cryder Asst. Attorneys General
1930 Belcher Drive, Building D
Columbus, Ohio 43224

Counsel for Defendants
Ralph L. Kinsey
Robert J. Shedlarz
16 East Wooster Street
Navarre, Ohio 44662

[5 ELR 20030]

Holmes, J.

This matter is an appeal of a judgment in case #74-C1-26 in the Common Pleas Court of Coshocton County, Ohio, which judgment dated February 25, 1974, dismissed the complaint as filed by the state of Ohio division of forestry and reclamation, seeking a temporary restraining order and preliminary and permanent injunction as against these defendants in their continued alleged unlicensed strip mining operation on lots #23 and #24 in Monroe Township, Coshocton County, Ohio, in violation of R.C. 1513.17(A).

It should be noted that this is a companion appeal to case #73-C1-279 in the Common Pleas Court of Coshocton County, which case has the appeal designation of 74-CA-3 within the Court of Appeals of such county.

After a hearing in the trial court on a motion for summary judgment, the trial court rendered its decision from the bench, denying such motion "on the grounds that you have failed to submit evidence sufficient to show that by denial of the injunction the State of Ohio will suffer irreparable damage."

The court then stated "This completes our hearing and your motion for a permanent and preliminary injunction and temporary restraining order is denied."

Subsequent to that statement, however, appellant was given an opportunity to present to the court any evidence of irreparable harm. At that time, counsel for appellant argued that R.C. 1513.15(A) replaces any need to show irreparable harm to obtain an injunction if it is shown that there is a violation of any section of Chapter 1513. Nevertheless, at the conclusion of the hearing, the trial court denied appellant's complaint for a permanent and preliminary injunction and temporary restraining order.

The appellant appeals, setting forth the following assignment of error:

"The Coshocton County of Court of Common Pleas erred in its determination that Appellant's right to injunctive relief pursuant to Section 1513.15(A), Revised Code of Ohio, is conditioned upon a showing of irreparable harm to Appellant."

We are in agreement with the appellant herein and believe the law on this appeal to be governed by the principle as quoted at 42 American Jurisprudence 2d, Injunctions, § 38, as follows:

"A positive duty may be imposed by statute upon the court to grant injunctive relief where certain specified conditions are made to appear. Where an injunction is authorized by statute and the statutory conditions are satisfied, the usual grounds for injunctive relief need not be established. For example, where a statute regulates a certain business and provides that an injunction may be granted to enforce the law, the party who seeks an injunction need not show irreparable injury or that he has no adequate remedy at law, where the statute authorizing an injunction does not place such limitations upon the granting of relief."

Such stated rule is also set forth at 29 Ohio Jurisprudence 2d, Injunctions, at § 13, as follows:

"Maxims for invoking equity jurisdiction may not apply if the remedy of injunction is given by statute, in view of the general rule that where a statute creates a new statutory right of action, equitable principles may not be applicable."

The particular § 1513.15(A) is quite specific as to the relief provided in the event of violation of such chapter of law. It provides as follows:

"(A) In addition to any other remedy under Chapter 1513. of the Revised Code, the attorney general or any other person adversely affected or about to be adversely affected by an operation may apply to the court of common pleas of the county wherein the operation is situated to enforce compliance with, or to restrain violation of, any requirement of Chapter 1513. of the Revised Code, a rule adopted thereunder, or an order of the chief. The remedy prescribed in this division is cumulative and concurrent with any other remedy, and the existence or exercise of one remedy does not prevent the exercise of any other remedy."

Such section specifically authorizes the attorney general or [5 ELR 20031] other person adversely affected by a strip mining operation to apply to the appropriate court for an injunction to enforce compliance with, or restrain violations of, any requirement of Chapter 1513.

R.C. 1513.17 provides in pertinent part that: "No person shall: (A) Engage in strip mining without a license; . . ."

At the hearing of this matter, appellees stipulated that they were in fact at such time operating a strip mining project on lot #23 in Monroe Township, Coshocton County, and that they were so operating under a license from the state of Ohio which had expired.

We hold that under such facts, with no further evidence being adduced to show any reasonable basis for the noncompliance of these defendants, the trial courtneed not require a showing of irreparable harm as a condition of granting the injunctive relief sought.

We therefore hold that, based upon what was before the trial court, such injunctive relief should have been granted upon such reasonable terms as might be ordered by the trial court.

Concluding, we hereby reverse the judgment of the trial court and remand this matter to the Common Pleas Court of Coshocton County for further proceedings that would accomplish the purposes of Chapter 1513 of the laws of the state of Ohio.

Reversed and remanded.