[Cite as Columbus v. State, 2023-Ohio-2858.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

City of Columbus, :

Plaintiff-Appellee, : No. 22AP-676

(C.P.C. No. 19CV-2281)

v. :

(REGULAR CALENDAR)

State of Ohio, :

Defendant-Appellant. :

D E C I S I O N

Rendered on August 15, 2023

On brief: Zack Klein, City Attorney, Richard N. Coglianese, 

and Matthew D. Sturtz, for appellee. Argued: Richard N. 

Coglianese.

On brief: Dave Yost, Attorney General, Heather L. 

Buchanan, and Andrew D. McCartney, for appellant. 

Argued: Benjamin M. Flowers.

On brief: Emily Smart Woerner, City Solicitor, and Shannon 

Price, for Amicus Curiae of the City of Cincinnati.

APPEAL from the Franklin County Court of Common Pleas

EDELSTEIN, J.

{¶ 1} The Ohio General Assembly modified the framework of Ohio’s firearms and 

self-defense laws when it enacted 2018 Am.Sub.H.B. No. 228 (“H.B. 228”). In addition to 

modifying existing R.C. 9.68 (the “Firearms-Uniformity Law”), H.B. 228 amended 12 other

existing statutes and created two new ones. Its effective date was March 28, 2019, but its 

amendment to R.C. 9.68 did not take effect until December 28, 2019.

{¶ 2} Before H.B. 228 went into effect, plaintiff-appellee, the City of Columbus 

(“City”), sought a preliminary and permanent injunction against the original and amended 
No. 22AP-676 2

versions of R.C. 9.68 by commencing a civil action against defendant-appellant, the State 

of Ohio (“State”), in the Franklin County Court of Common Pleas. The City also requested 

the trial court declare that both versions of R.C. 9.68 are unconstitutional. The trial court 

held a hearing on the City’s preliminary injunction motion in May 2019. On November 2, 

2022, it entered a judgment granting the City’s motion and ordering a preliminary 

injunction against the original and amended versions of R.C. 9.68, as well as H.B. 228 in 

its entirety without any time limitation.

{¶ 3} The State now appeals from this judgment. Because we find the preliminary 

injunction fails to satisfy the specificity requirements of Civ.R. 65(D), is overbroad, and was 

otherwise improperly granted under the standard for preliminary injunctions, we reverse

the November 2, 2022 judgment, vacate the preliminary injunction, and remand this 

matter to the trial court for further proceedings consistent with this decision.

I. FACTS AND PROCEDURAL OVERVIEW

{¶ 4} This case arises from the City’s constitutionality challenge to the original and 

amended versions of R.C. 9.68, Ohio’s Firearms-Uniformity Law.

{¶ 5} R.C. 9.68 was created in 2006 when the General Assembly enacted 2006 

Sub.H.B. No. 347. The “original version” of this statute took effect on March 14, 2007.

Beyond recognizing the “fundamental individual right” to “keep and bear arms” and 

expressing the legislature’s desire for uniform firearms laws across the state, R.C. 9.68(A)

generally prohibits municipalities from regulating the ownership, possession, purchase, 

sale, transfer, transport, storage, or keeping of a firearm. And, the original version of 

R.C. 9.68(B) authorizes the award of attorney fees and costs to a party “that prevails in a 

challenge to an ordinance, rule, or regulation as being in conflict with this section.”

{¶ 6} In 2018, the General Assembly enacted H.B. 228, which amended 13 existing 

statutes—including R.C. 9.68—and promulgated two new ones. Relatedly here, H.B. 228’s 

amendment to R.C. 9.68 (the “amended version”) broadened the scope of firearms-related 

conduct a municipality could not regulate in R.C. 9.68(A) and expanded the circumstances 

and types of expenses a party could recover from a municipality in a challenge to such 

regulation in R.C. 9.68(B). H.B. 228’s amendment to R.C. 9.68 went into effect on 

December 28, 2019. 
No. 22AP-676 3

{¶ 7} On March 19, 2019, the City challenged both the original and amended 

versions of R.C. 9.68 by commencing a civil action against the State. In addition to seeking 

a declaration from the trial court that both versions of R.C. 9.68 are unconstitutional, the 

City also sought preliminary and permanent injunctions against the State’s enforcement of 

both versions of the statute.1 (Mar. 19, 2019 Compl. at ¶ 106; Mar. 19, 2019 Mot. for Prelim. 

Inj.) In support of its requested relief, the City contended that both versions of R.C. 9.68 

(1) violate the separation of powers doctrine; (2) are an abuse of legislative power and 

violate Article II, Section 32 of the Ohio Constitution; and/or (3) unconstitutionally infringe 

on the City’s home rule powers under Article XVIII, Sections 3 and 7 of the Ohio 

Constitution. (Compl. at ¶ 106. See also May 17, 2019 Am. Compl. at ¶ 126.)

{¶ 8} The State filed its written opposition to the City’s motion for a preliminary 

injunction on April 19, 2019.2 It contended the City was not entitled to the preliminary 

injunction because the City could not satisfy its burden to prove that the four preliminaryinjunction factors weighed in favor of the City’s request for temporary relief. And, just as it 

argues now on appeal, the State relied on Ohio Supreme Court precedent to argue against 

the City’s constitutionality challenge to the original and amended versions of R.C. 9.68.

{¶ 9} The trial court held a hearing on the City’s motion for a preliminary 

injunction on May 13, 2019.

{¶ 10} On November 2, 2022—nearly three and one-half years after it held the 

hearing on the City’s motion for preliminary injunction—the trial court issued a decision 

and entry granting a preliminary injunction “against R.C. 9.68 both in its original and 

amended forms and Am Sub. H.B. [sic].” (Emphasis added.) (Nov. 2, 2022 Decision and 

Entry at 11.) Thus, the trial court enjoined the State from enforcing H.B. 228 in its entirety

and the original version of R.C. 9.68 without any time limitation. By the time the

preliminary injunction was issued, the original version of R.C. 9.68 had been repealed by 

H.B. 228 and its amendments to R.C. 9.68 had been in effect for nearly three years.

1 The City filed an amended complaint against the State on May 17, 2019. 

2 The State also moved to dismiss the City’s complaint pursuant to Civ.R. 12(B)(6) on April 19, 2019, and 

restated those same arguments in its May 31, 2019 motion to dismiss the City’s amended complaint. Neither 

of the State’s motions were expressly addressed by the trial court. 
No. 22AP-676 4

{¶ 11} The State timely appealed from the November 2, 2022 decision. At the State’s 

request, the trial court stayed the preliminary injunction pending the resolution of this 

appeal. (See Nov. 10, 2022 Decision and Entry.)

{¶ 12} Before the record was filed, the City moved this court to dismiss this case

because, it argued, the November 2, 2022 decision on a preliminary injunction is not a final 

appealable order under R.C. 2505.02(B). (Dec. 8, 2022 Mot.) The City contended we did

not have jurisdiction over the State’s appeal because the trial court did not address the 

State’s pending motion to dismiss the amended complaint or issue any decisions on the 

City’s other requested relief (declaration and permanent injunction) in the judgment entry 

that is the subject of this appeal. On January 24, 2023, a three-judge panel of this court 

issued a written opinion and entry denying the City’s motion to dismiss. Columbus v. State, 

10th Dist. No. 22AP-676, 2023-Ohio-195. After that panel concluded the November 2, 

2022 decision was a final appealable order, briefing on the merits followed.

II. ASSIGNMENTS OF ERROR

{¶ 13} The State asserts the following three assignments of error for our review:

[I.] THE TRIAL COURT ERRED WHEN IT ENJOINED 

BOTH THE ORIGINAL AND 2018 VERSIONS OF R.C. 

9.68 (THE “FIREARMS-UNIFORMITY LAW”) ON THE 

GROUND[S] THAT THE LAW VIOLATES MUNICIPAL 

HOME-RULE AUTHORITY UNDER THE OHIO 

CONSTITUTION.

[II.] THE TRIAL COURT ERRED IN CONCLUDING 

THAT THE CITY OF COLUMBUS (THE “CITY”) WAS 

ENTITLED TO A PRELIMINARY INJUNCTION.

[III.] THE TRIAL COURT ERRED WHEN IT 

ENJOINED H.B. 228 IN ITS ENTIRETY. 

III. ANALYSIS

{¶ 14} Because the City concedes the trial court erred in enjoining H.B. 228 in its 

entirety and our resolution of the State’s third assignment of error narrows the scope of our 

review, we address it first. We next address the State’s second assignment of error, as our 

resolution of it controls our disposition of the State’s first assignment of error.
No. 22AP-676 5

A. Applicable Law

{¶ 15} “ ‘An injunction is an extraordinary remedy in equity where there is no 

adequate remedy available at law. It is not available as a right but may be granted by a court 

if it is necessary to prevent a future wrong that the law cannot.’ ” Toledo v. State, 154 Ohio 

St.3d 41, 2018-Ohio-2358, ¶ 15, quoting Garono v. State, 37 Ohio St.3d 171, 173 (1988). See 

also Mid-America Tire, Inc. v. PTZ Trading Ltd., 95 Ohio St.3d 367, 2002-Ohio-2427, ¶ 74.

“Thus, in determining the propriety of injunctive relief, adequate remedy at law ‘means that 

the legal remedy must be as efficient as the indicated equitable remedy would be; that such 

legal remedy must be presently available in a single action; and that such remedy must be 

certain and complete.’ ” Mid-America Tire, Inc. at ¶ 81, quoting Fuchs v. United Motor 

Stage Co., Inc., 135 Ohio St. 509 (1939), paragraph four of the syllabus.

{¶ 16} A preliminary injunction is a provisional remedy.

3 Thus, it is ancillary to a 

pending action. See R.C. 2505.02(A)(3). Its impact is temporary and it lasts no longer than 

the pendency of the action. See, e.g., Youngstown City School Dist. Bd. of Edn. v. State, 

10th Dist. No. 15AP-941, 2017-Ohio-555, ¶ 6, citing Wells Fargo Ins. Servs. USA v. 

Gingrich, 12th Dist. No. CA2011-05-085, 2012-Ohio-677, ¶ 5.

{¶ 17} In general, the purpose of a preliminary injunction is to preserve the status 

quo between the parties pending a trial and decision on the merits. See, e.g., Intralot, Inc. 

v. Blair, 10th Dist. No. 17AP-444, 2018-Ohio-3873, ¶ 31, citing P&G v. Stoneham, 140 Ohio 

App.3d 260, 267 (1st Dist.2000); Rock House Fitness, Inc. v. Himes, 11th Dist. No. 2020-

L-075, 2021-Ohio-245, ¶ 22; Neal v. Regina Manor, 6th Dist. No. L-07-1055, 2008-Ohio257, ¶ 11. “The primary function of an injunction is to restrain motion and to enforce 

inaction[;]” thus, it “ordinarily is employed to prevent future injury.” (Internal quotations 

omitted.) State ex rel. Great Lakes College, Inc. v. State Med. Bd., 29 Ohio St.2d 198, 201 

(1972), quoting State ex rel. Selected Properties, Inc. v. Gottfried, 163 Ohio St. 469, 475

3 See also Black’s Law Dictionary 1102 (5th Ed.1979) (defining “provisional remedy” as a “remedy provided 

for present need or for the immediate occasion; one adapted to meet a particular exigency”); Ballentine’s 

Law Dictionary 1016-17 (3d Ed.1969) (defining “provisional remedy” as “[a] remedy of a party to an action, 

not intended as a means of reaching a determination and adjudication of the issue or issues, but as a means 

whereby the party who invokes it successfully prevents the adverse party from taking steps during the 

course of the action which would thwart the enforcement of a judgment obtained in the action. Not a special 

proceeding, but a merely collateral proceeding permitted only in connection with a regular action, and as 

one of its incidents.”).
No. 22AP-676 6

(1955). See also State ex rel. Kilgore v. Cincinnati, 1st Dist. No. C-110007, 2012-Ohio4406, ¶ 21 (“An injunction granted before litigation is ordinarily limited to preserving the 

status quo ante litem so that the pending trial is not a hollow proceeding. The status quo 

ante litem is the last, uncontested status that preceded the litigation.”).

{¶ 18} In determining whether to grant a preliminary injunction, a court must 

consider four factors:

1) Whether there is a strong or a substantial likelihood the 

movant will prevail on the merits; 

2) Whether the movant will suffer irreparable injury if the 

injunction is not granted; 

3) Whether third parties will be unjustifiably harmed if the 

injunction is granted; and 

4) Whether the public interest will be served by the 

injunction.

See, e.g., Vanguard Transp. Sys., Inc. v. Edwards Transfer & Storage Co., 109 Ohio 

App.3d 786, 790 (10th Dist.1996), citing Valco Cincinnati, Inc. v. N & D Machining Serv., 

Inc., 24 Ohio St.3d 41 (1986) and Goodall v. Crofton, 33 Ohio St. 271 (1877). See also 

Escape Ents., Ltd. v. Gosh Ents., Inc., 10th Dist. No. 04AP-834, 2005-Ohio-2637, ¶ 22; 

Vineyard Christian Fellowship of Columbus v. Anderson, 10th Dist. No. 15AP-151, 2015-

Ohio-5083, ¶ 11, quoting P&G at 267.

{¶ 19} “Irreparable harm” is an injury for which, after its occurrence, there could be

no plain, adequate, and complete remedy at law, and for which money damages would be 

impossible, difficult, or incomplete. See, e.g., Dimension Serv. Corp. v. First Colonial Ins. 

Co., 10th Dist. No. 14AP-368, 2014-Ohio-5108, ¶ 12; Franks v. Rankin, 10th Dist. No. 11AP962, 2012-Ohio-1920, ¶ 36. A showing of irreparable harm requires proof of “actual 

irreparable harm or the existence of an actual threat of such injury.” Clark v. Mt. Carmel 

Health, 124 Ohio App.3d 308, 315 (10th Dist.1997). “ ‘Actual irreparable harm is usually 

not presumed, but instead must be proved[]’ ” by the movant. See, e.g., Hydrofarm, Inc. 

v. Orendorff, 180 Ohio App.3d 339, 2008-Ohio-6819, ¶ 25 (10th Dist.), quoting Levine v. 

Beckman, 48 Ohio App.3d 24 (10th Dist.1988), paragraph four of the syllabus; Redding v. 

United States Parachute Assn., 11th Dist. No. 2022-G-0024, 2023-Ohio-884, ¶ 50.
No. 22AP-676 7

{¶ 20} In determining whether to grant injunctive relief, Ohio courts have 

recognized that the four preliminary injunction factors must be weighed with the 

“ ‘flexibility which traditionally has characterized the law of equity.’ ” Cleveland v. 

Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 14 (8th Dist.1996), quoting Friendship 

Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.1982). Accordingly, to 

establish a right to a requested preliminary injunction, the movant must demonstrate clear 

and convincing evidence of each of these four factors. See, e.g., Vanguard Transp. Sys., 

Inc. at 790, citing Mead Corp. v. Lane, 54 Ohio App.3d 59 (4th Dist.1988). See also

Intralot, Inc. at ¶ 31; Ohio Democratic Party v. LaRose, 10th Dist. No. 20AP-421, 2020-

Ohio-4664, ¶ 32, citing Hydrofarm, Inc. at ¶ 18.

{¶ 21} The standard of “[c]lear and convincing evidence” is defined as “that measure 

or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to 

the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, 

and which will produce in the mind of the trier of facts a firm belief or conviction as to the 

facts sought to be established.” (Internal quotations omitted.) State ex rel. Doner v. Zody, 

130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54, quoting State ex rel. Husted v. Brunner, 123 

Ohio St.3d 288, 2009-Ohio-5327, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), 

paragraph three of the syllabus. “ ‘Where the proof required must be clear and convincing, 

a reviewing court will examine the record to determine whether the trier of facts had 

sufficient evidence before it to satisfy the requisite degree of proof.’ ” State v. Golden, 10th 

Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 10, quoting State v. Townsend, 10th Dist. No. 

08AP-371, 2008-Ohio-6518, ¶ 7, citing Ford v. Osborne, 45 Ohio St. 1 (1887), paragraph 

two of the syllabus.

{¶ 22} Furthermore, the Supreme Court of Ohio has advised courts to take 

“particular caution” in granting injunctions, particularly in cases where they are “asked to 

interfere with * * * the action of another department of government.” (Citations omitted.) 

Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 604

(1995). See also Cementech, Inc. v. Fairlawn, 109 Ohio St.3d 475, 2006-Ohio-2991, ¶ 10.

{¶ 23} Civ.R. 65 sets forth the procedures a court is to follow upon the filing of a 

complaint for injunctive relief. Relatedly, here, Civ.R. 65(D) dictates that “[e]very order 

granting an injunction” must “set forth the reasons for its issuance[,]” “be specific in 
No. 22AP-676 8

terms[,]” and “describe in reasonable detail, and not by reference to the complaint or other 

document, the act or acts sought to be restrained[.]” Ohio’s rule is identical to the federal 

rule, Fed.R.Civ.P. 65(d)(1). See, e.g., State ex rel. Fraternal Order of Police, Captain John 

C. Post Lodge No. 44 v. Dayton, 49 Ohio St.2d 219, 222-23 (1977). 

{¶ 24} “[T]he specificity provisions of [Civ.R. 65(D)] are no mere technical 

requirements.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam) (discussing

Fed.R.Civ.P. 65(d)(1)). They “are not merely directory, but are mandatory.” Back v. Faith 

Properties, LLC, 12th Dist. No. CA2001-12-285, 2002-Ohio-6107, ¶ 14, citing N. Elec. Co. 

v. United Steelworkers of Am., 28 Ohio App.2d 253, 259 (3d Dist.1971). The specificity 

requirements of Civ.R. 65(D) are designed to serve two important functions: (1) to “prevent 

uncertainty and confusion on the part of those faced with injunctive orders, and thus avoid 

[* * *] a contempt citation on a decree too vague to be understood[;]” and (2) to “enable an 

appellate tribunal to know precisely what it is reviewing.” (Internal citations omitted.) 

Union Home Mtge. Corp. v. Cromer, 31 F.4th 356, 362 (6th Cir.2022), quoting Schmidt at 

476-77. See also Mechanical Contrs. Assn. of Cincinnati, Inc. v. Univ. of Cincinnati, 141 

Ohio App.3d 333, 342 (10th Dist.2001).

{¶ 25} To satisfy the form and scope requirements of Civ.R. 65(D), an entry 

imposing an injunction “must be couched in specific and unambiguous terms, such that ‘an 

ordinary person reading the court’s order [is] able to ascertain from the document itself 

exactly what conduct is proscribed.’ ” Union Home Mtge. Corp. at 362, quoting Scott v. 

Schedler, 826 F.3d 207, 211 (5th Cir.2016). See also Planned Parenthood Assn. of 

Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 60 (1990), quoting 11 Wright & Miller, 

Federal Practice and Procedure, Section 2955 at 536-37 (1973); Fraternal Order of Police, 

Captain John C. Post Lodge No. 44 at 222-23; Mechanical Contrs. Assn. of Cincinnati, Inc.

at 342; Schmidt at 476. An injunction order is typically vacated when it is impermissibly 

vague or overly broad—i.e., violates the specificity requirements of Civ.R. 65(D). See, e.g., 

Union Home Mtge. Corp. at 362; EEOC v. Wooster Brush Co. Emps. Relief Assn., 727 F.2d 

566, 576 (6th Cir.1984) (finding the term “discriminating” too general); Project Jericho at 

60-61; Fraternal Order of Police, Captain John C. Post Lodge No. 44 at 222-23; 

MetroHealth Med. Ctr. v. Kaiser Found. Hosp., 66 Ohio St.3d 1203, 1205 (1993) (Wright, 
No. 22AP-676 9

J., concurring in part and dissenting in part); Total Quality Logistics, LLC v. Traffic Tech, 

Inc., 6th Cir. No. 22-3148, 2023 U.S. App. LEXIS 2951, *14-15 (Feb. 6, 2023).

{¶ 26} “An injunction is overly broad when there is a risk that it restrains legal 

conduct, or the injunction prohibits illegal conduct that is not the subject of the litigation 

or is not closely related to the conduct found to justify injunctive relief.” (Citations 

omitted.) Union Home Mtge. Corp. at 364. For this reason, “[e]quity requires that any 

injunction be narrowly tailored to prohibit only complained-of activities.” Miami Twp. Bd. 

of Trustees v. Weinle, 1st Dist. No. C-200238, 2021-Ohio-2284, ¶ 50, citing Myers v. Wild 

Wilderness Raceway, L.L.C., 181 Ohio App.3d 221, 2009-Ohio-874, ¶ 28 (4th Dist.). See 

also Eastwood Mall, Inc. v. Slanco, 68 Ohio St.3d 221, 224 (1994); Adkins v. Boetcher, 4th 

Dist. No. 08CA3060, 2010-Ohio-554, ¶ 43.

B. Standard of Review

{¶ 27} We review legal determinations de novo, including the likelihood of success 

on the merits, but we review the trial court’s ultimate determination as to whether the four 

preliminary injunction factors weigh in favor of granting or denying a party’s request for 

preliminary injunctive relief for an abuse of discretion. See, e.g., Toledo, 2018-Ohio-2358

at ¶ 15. See also State ex rel. Bowling v. DeWine, 10th Dist. No. 21AP-380, 2021-Ohio2902, ¶ 30, citing Danis Clarkco Landfill Co., 73 Ohio St.3d at 591, paragraph three of the 

syllabus. 

{¶ 28} “[A]buse of discretion connotes that the court’s attitude is unreasonable, 

arbitrary, or unconscionable.” (Internal quotations omitted.) State v. Weaver, ___ Ohio 

St.3d ___, 2022-Ohio-4371, ¶ 24, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio6679, ¶ 60, quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). “A decision is 

unreasonable if there is no sound reasoning process that would support the decision.” 

(Internal quotations omitted.) Fernando v. Fernando, 10th Dist. No. 16AP-788, 2017-

Ohio-9323, ¶ 7, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment 

Corp., 50 Ohio St.3d 157, 161 (1990). A decision is arbitrary if it is made “without 

consideration of or regard for facts [or] circumstances.” (Internal quotations omitted.)

State v. Hill, ___ Ohio St.3d ___, 2022-Ohio-4544, ¶ 9, quoting State v. Beasley, 152 Ohio 

St.3d 470, 2018-Ohio-16, ¶ 12, quoting Black’s Law Dictionary 125 (10th Ed.2014). A 
No. 22AP-676 10

decision may also be arbitrary if it lacks any adequate determining principle and is not 

governed by any fixed rules or standards. See id., quoting Dayton ex rel. Scandrick v. 

McGee, 67 Ohio St.2d 356, 359 (1981), quoting Black’s Law Dictionary 96 (5th Ed.1979).

See also State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, ¶ 19. A decision is

unconscionable if it “affronts the sense of justice, decency, or reasonableness.” Fernando 

at ¶ 7, citing Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. 

No. 08AP-69, 2008-Ohio-3567, ¶ 11. An abuse of discretion may also be found where a trial 

court “applies the wrong legal standard, misapplies the correct legal standard, or relies on 

clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio1720, ¶ 15 (8th Dist.). See also New Asian Super Mkt. v. Jiahe Weng, 10th Dist. No. 17AP207, 2018-Ohio-1248, ¶ 16.

{¶ 29} Thus, while the standard is deferential, we are to consider whether the trial 

court improperly applied the governing law, used an erroneous legal standard, relied upon 

clearly erroneous findings of fact, or lacked a sound reasoning process in its ruling. See, 

e.g., Bellamy v. Montgomery, 10th Dist. No. 11AP-1059, 2012-Ohio-4304, ¶ 7; Trent v. 

Taylor, 10th Dist. No. 17AP-89, 2017-Ohio-7189, ¶ 34.

C. Legal Analysis

{¶ 30} The trial court’s November 2, 2022 decision and entry granted a preliminary 

injunction “against R.C. 9.68[,] both in its original and amended forms[,] and Am Sub. H.B. 

[sic].” (Decision and Entry at 11.) Although the trial court did not specify the bill number 

subject to the injunction in its entry, the parties interpret the preliminary injunction order

as prohibiting the State from enforcing the original version of R.C. 9.68, the version of R.C. 

9.68 amended in 2018 by H.B. 228, and H.B. 228 in its entirety.4

1. Third Assignment of Error

{¶ 31} In its third assignment of error, the State attributes error to the trial court’s 

imposition of a preliminary injunction against H.B. 228 in its entirety. (Appellant’s Brief 

4 We agree. Because the trial court specifically referred to “Am. Sub. H.B. 228” throughout its decision, we 

construe its use of “Am[.] Sub. H.B.” to mean and refer to the 14 statutes affected by H.B. 228’s enactment 

other than R.C. 9.68.
No. 22AP-676 11

at 46-47.) Construing this assignment of error as relating to all statutes affected by H.B. 

228’s enactment except R.C. 9.68, we agree.

{¶ 32} At oral argument before this court, the City conceded it did not intend to 

request a preliminary injunction against the two statutory provisions created by H.B. 228 

or the 12 existing statutes other than R.C. 9.68 that were amended by H.B. 228’s enactment. 

Because the City only sought to enjoin the State from enforcing the original version of R.C. 

9.68 and H.B. 228’s amendments to that statute, the trial court’s issuance of a preliminary 

injunction against the other 14 statutes impacted by H.B. 228 was improper.

{¶ 33} We recognize the City’s admittedly inartful drafting of pleadings filed in the 

trial court precipitated this error. The City nomenclated the amended version of R.C. 9.68

as “Am. Sub. H.B. 228” in its trial court pleadings. But, H.B. 228 did not just amend 

R.C. 9.68; it modified or created 14 other statutes. In its relief-seeking pleadings—e.g., 

complaint, amended complaint, and motion for preliminary injunction—however, the City 

did not convey that its use of “Am. Sub. H.B. 228” was meant for the limited capacity it 

intended. As a result, the State argued against enjoining H.B. 228 in its entirety in the trial 

court. (May 31, 2019 Mot. to Dismiss at 4-5.) In a responsive pleading filed in the trial 

court, the City clarified the scope of its requested relief: its constitutional challenge 

concerned only the original version of R.C. 9.68 and H.B. 228’s amendments to that 

statute. (See June 13, 2019 Memo Contra at 1.) Notwithstanding this clarification by the 

City, the trial court enjoined H.B. 228 in its entirety.

{¶ 34} Based on the foregoing, we find the trial court abused its discretion when it 

issued, sua sponte, a preliminary injunction against H.B. 228 in its entirety. Accordingly, 

we sustain the State’s third assignment of error. 

2. Second Assignment of Error

{¶ 35} In its second assignment of error, the State contends the trial court erred in 

finding the City was entitled to a preliminary injunction.It argues the City failed to establish 

the four preliminary injunction factors by clear and convincing evidence. (See Appellant’s 

Brief at 15-46.) Given our resolution of the third assignment of error, we limit our analysis 

of this assignment of error to the preliminary injunction imposed against the original and 

amended versions of R.C. 9.68. 
No. 22AP-676 12

a. The preliminary injunction against R.C. 9.68 is impermissibly 

overbroad and violates Civ.R. 65(D)’s specificity requirements.

{¶ 36} We first find the trial court failed to follow the form and specificity 

requirements of Civ.R. 65(D) when it preliminarily enjoined the State from enforcing both 

the original and amended versions of R.C. 9.68.

{¶ 37} The trial court’s consideration of the first factor—likelihood of success on the 

merits—mostly concerned the 2018 amendment’s addition of “manufacture” to R.C. 

9.68(A) as a type of firearms-related activity about which municipalities cannot regulate 

beyond federal and state law. Taken with R.C. 9.68(D)—which permits municipalities to 

regulate commercial sale zoning in limited circumstances and was not altered by H.B. 228—

the trial court found H.B. 228’s addition of “manufacture” in R.C. 9.68(A) foreclosed a

municipality’s ability to pass zoning ordinances that relate, even incidentally, to “gun 

manufacturing in areas zoned residential and agricultural.” (Decision and Entry at 10-11.) 

Thus, it determined that amended R.C. 9.68 “unconstitutionally infringe[d] upon the 

[City’s] right to exercise its zoning powers.” (Id. at 10.) 

{¶ 38} The trial court also analyzed the merits of the City’s constitutionality 

challenge to the original and amended versions of R.C. 9.68(B). (Decision and Entry at 9-

10.) In both versions, R.C. 9.68(B) describes the circumstances and types of recovery 

authorized against a municipality for violating R.C. 9.68(A). But H.B. 228 expanded the 

scope of this provision. Without reference to any particular language or version of R.C. 

9.68(B), the trial court opined that “[l]anguage imposing liability on a municipality for 

passing a law which was later determined to conflict with state law would effectively end 

home rule as the threat of litigation from third parties would always be present.” (Id. at 

10.) Based on that finding, it declared, without distinction: “Clearly this section of R.C. 9.68 

is an unconstitutional infringement upon municipal home-rule authority.” (Id.) 

{¶ 39} The trial court’s analysis of R.C. 9.68(B) lacks clarity in an important respect. 

That is, whether it found the City proved, by clear and convincing evidence, a strong

likelihood of success on the merits of its constitutional challenge to original R.C. 9.68(B), 

amended R.C. 9.68(B), or both. This is particularly significant because the Supreme Court 

of Ohio held in Cleveland v. State, 128 Ohio St.3d 135, 2010-Ohio-6318 that the original 

version of R.C. 9.68(B) was constitutional. Despite acknowledging that decision, the trial 
No. 22AP-676 13

court offered no explanation as to whether it is bound by that precedent. Accordingly, we 

must presume the trial court’s analysis of “R.C. 9.68(B)” and finding of 

unconstitutionality—or, more precisely, the City’s likelihood of success on the merits of its 

challenge to that provision under home rule authority—pertains only to the amended 

version of the statute.

{¶ 40} Significantly, too, we note the trial court did not address in its decision the 

City’s likelihood of success on the merits of its challenge with respect to R.C. 9.68(A), either 

in its original form or as amended. Nor did it analyze the City’s contention that amended 

R.C. 9.68(B)(2) violates the separation of powers doctrine.

{¶ 41} For the second factor—irreparable harm to the City without the injunction—

the trial court found the City would “suffer irreparable harm because of the ambiguity in 

the statute [amended R.C. 9.68(D)] that does not specifically exclude zoning for 

manufacturing.” (Decision and Entry at 11.) In connection with R.C. 9.68(B), then, the trial 

court noted the City could be subjected “to litigation by a person, group[,] or entity 

adversely affected by the zoning ordinance and could [be forced to] spend significant 

resources defending such a suit even if successful.” (Id.) Thus, the trial court only found

“irreparable injury” from the impact amended R.C. 9.68(B)’s civil liability provision might 

have on the City’s exercise of its zoning powers in relation to manufacturing. (See id.) The 

decision provides no discussion of what irreparable harm the trial court believed the City 

would likely suffer in 2022 from original R.C. 9.68—which had been in effect since 2007

and was repealed in 2019 when H.B. 228’s amendments to R.C. 9.68 took effect.

{¶ 42} Although the trial court only found it was likely some provisions of amended 

R.C. 9.68 would be found unconstitutional, it enjoined both amended and original 

R.C. 9.68 in their entirety. We reiterate that Civ.R. 65(D) requires “[e]very order granting 

an injunction” to “set forth the reasons for its issuance” and “be specific in terms.” To 

comply with Civ.R. 65(D)’s specificity requirements, the trial court should have specifically 

enjoined only the provisions it found to be problematic, or, if not practical, explained why 

these provisions were not severable. See, e.g., R.C. 1.50; Geiger v. Geiger, 117 Ohio St. 451, 

465-66 (1927) (setting forth the test for determining whether an unconstitutional provision 

may be severed from a statute). But, it did neither. Thus, even before addressing the merits 

of the trial court’s preliminary injunction findings, we find the injunction is impermissibly 
No. 22AP-676 14

overbroad.

{¶ 43} Regarding original R.C. 9.68, the trial court did not engage in any factorspecific analysis to support the preliminary injunction against the statute in its original 

form. Because the trial court did not make any of the necessary findings to support its 

issuance, in violation of Civ.R. 65(D)’s mandates, we find the trial court abused its 

discretion by enjoining original R.C. 9.68. Thus, our review of the propriety of the 

preliminary injunction order in this case is ultimately limited to the trial court’s decision to 

enjoin amended R.C. 9.68 in its entirety.

{¶ 44} When it analyzed amended R.C. 9.68, the trial court acknowledged the 

Supreme Court of Ohio precedent finding the original version of R.C. 9.68 to be a general 

law that displaces municipal firearm ordinances and does not unconstitutionally infringe 

on municipal home rule authority. (See Decision and Entry at 6, citing Cleveland, 2010-

Ohio-6318 at ¶ 13.) But, the trial court enjoined amended R.C. 9.68 in its entirety without 

determining whether amended R.C. 9.68 remains a general law or reconciling its own 

finding that amended R.C. 9.68 is unconstitutional with the holding of Cleveland. (See id.

at 10-11.) Moreover, the trial court did not make any findings on the City’s likelihood of 

success on the merits of its home rule arguments against amended R.C. 9.68(A) or its 

separation of powers challenge to amended R.C. 9.68(B)(2).

{¶ 45} In the absence of such analysis, we must conclude, for the limited purposes 

of this case, that the preliminary injunction against amended R.C. 9.68 in its entirety is 

impermissibly overbroad. The problem is the mismatch between the breadth of the 

injunction and the narrow “likelihood of success on the merits” and “irreparable harm”

findings the trial court relied on to justify this injunctive relief. See, e.g., Union Home Mtge.

Corp., 31 F.4th at 364-65. But even setting these deficiencies aside, we would still find the 

preliminary injunction against amended R.C. 9.68 was improper, as described below.

b.The City was not entitled to a preliminary injunction against amended 

R.C. 9.68 because the second, third, and fourth preliminary 

injunction factors are not supported by clear and convincing evidence

in the current record.

{¶ 46} Despite its overbreadth, indefiniteness, and failure to comply with Civ.R. 

65(D)’s specificity requirements, it is possible to review one fatal legal error relevant to the 
No. 22AP-676 15

trial court’s preliminary injunction against amended R.C. 9.68. That is, the trial court’s 

analysis of the second, third, and fourth preliminary injunction factors: the City’s 

irreparable injury if the injunction is not granted, whether third parties will be unjustifiably 

harmed if it is, and whether its issuance would serve the public interest. 

{¶ 47} We acknowledge the parties’ principal arguments on appeal primarily 

concern whether amended R.C. 9.68 is a general law that unconstitutionally infringes on 

home rule authority and/or violates the separation of powers doctrine. (See, e.g., 

Appellant’s Brief at 15-39; Appellant’s Reply Brief at 2-14; Appellee’s Brief at 10-45; Amicus 

Brief at 13-37.) And we recognize these arguments pertain to the first preliminary 

injunction factor: the City’s substantial likelihood of success on the merits of its 

constitutional challenge to the amended statute. But, given the record before us, such 

analysis would be merely advisory or dicta because we conclude, for other reasons, the trial 

court erred in ordering a preliminary injunction against amended R.C. 9.68. 

{¶ 48} In addition to failing to satisfy Civ.R. 65(D)’s specificity requirements, we find

the trial court abused its discretion in granting the City’s preliminary injunction against 

amended R.C. 9.68 because, as described below, the three other preliminary injunction 

factors—namely, irreparable harm—are not supported by clear and convincing evidence in 

the record presently before us. Since we ultimately conclude the preliminary injunction 

against amended R.C. 9.68 was unwarranted and must be vacated irrespective of the City’s 

likelihood of success on the merits, we do not believe it would be appropriate to rule on the 

merits of the parties’ constitutionality arguments at this time. See, e.g., Greenhills Home 

Owners Corp. v. Greenhills, 5 Ohio St.2d 207, 212 (1966) (Internal citations omitted) (“[A] 

court will not exercise its power to determine the constitutionality of a legislative enactment 

unless it is absolutely necessary to do so. And, such necessity is absent where other issues 

are apparent in the record which will dispose of the case on its merits.”). See also Interstate 

Motor Freight Sys. v. Bowers, 164 Ohio St. 122, 134 (1955); Ahrns v. SBA Communications

Corp., 3d Dist. No. 2-01-13, 2001 Ohio App. LEXIS 4394, *5-6 (Sept. 28, 2001); Watson v. 

Cleaners Hanger Co., 8th Dist. No. 74314, 1998 Ohio App. LEXIS 4989, *8-9 (Oct. 22, 

1998); Gessford v. Jomidge Ents., Inc., 9th Dist. No. 13004, 1987 Ohio App. LEXIS 8652, 

*4-5 (Sept. 3, 1987); Fitzpatrick v. Wallick Properties, Inc., 6th Dist. No. L-83-036, 1983 

Ohio App. LEXIS 13607, *6 (June 3, 1983); Jackson v. Bartec, Inc., 10th Dist. No. 10AP-
No. 22AP-676 16

173, 2010-Ohio-5558, ¶ 12.

{¶ 49} Turning to the second preliminary injunction factor, we do not find the 

evidence in the record before us clearly and convincingly established the City would suffer 

imminent and irreparable injury in 2022 if the trial court did not temporarily enjoin the 

State from enforcing a statute that had, at that point, been in effect for almost four years.

In analyzing the irreparable harm factor, the trial court found the City “could be subject to 

litigation” and “could spend significant resources defending such a suit even if successful”

without an injunction against amended R.C. 9.68. (Decision and Entry at 11.) The trial 

court also summarily concluded, without explanation, that the City “will suffer irreparable 

harm because of the ambiguity in [amended R.C. 9.68(D)] that does not specifically exclude 

zoning for manufacturing.” (Id.) 

{¶ 50} It is true that “[w]hen constitutional rights are threatened or impaired, 

irreparable injury is presumed.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 

2012). See also Ohio Democratic Party, 2020-Ohio-4664 at ¶ 60-64. But, that presumption 

of irreparability does not change the fact that the party seeking preliminary injunctive relief

must still demonstrate imminence in order to warrant this extraordinary relief. See, e.g., 

Sommer v. Mt. Carmel Health, 10th Dist. No. 94APE07-1087, 1995 Ohio App. LEXIS 1300, 

*5-6 (Mar. 28, 1995), citing Dayton Metro. Hous. Auth. v. Dayton Human Relations 

Council, 81 Ohio App.3d 436 (2d Dist.1992); Total Quality Logistics, LLC, 2022-Ohio-1802

at ¶ 27; Rock House Fitness, Inc., 2021-Ohio-245 at ¶ 34. See also Kohler v. Cincinnati, 6th 

Cir. No. 21-3466, 2021 U.S. App. LEXIS 32574, *5-6 (Nov. 1, 2021). 

{¶ 51} We emphasize that a preliminary injunction is an “ ‘extraordinary remedy’ ”

never awarded as of right, and only granted “ ‘if it is necessary to prevent a future wrong 

that the law cannot.’ ” Toledo, 2018-Ohio-2358 at ¶ 15, quoting Garono, 37 Ohio St.3d at 

173. See also Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008); 

Mitchell v. Cincinnati, 6th Cir. No. 21-4061, 2022 U.S. App. LEXIS 27444, *6-12 (Sept. 29, 

2022). It follows, then, that a lack of imminence does not justify such an “extraordinary 

remedy” when adequate relief can otherwise be granted—e.g., permanent injunction or 

declaratory relief, as also sought by the City here—at the close of litigation and following a 

trial on the merits. 
No. 22AP-676 17

{¶ 52} For these reasons, a movant’s failure to show it is facing imminent and

irreparable harm can, by itself, justify the denial of injunctive relief without consideration

of the other three factors. See, e.g., Total Quality Logistics, LLC at ¶ 27; Winter at 22-24;

A.R.D. v. St. Paul Catholic School, N.D.Ohio No. 5:13 CV 0307, 2013 U.S. Dist. LEXIS 

61588, *3-4 (Apr. 30, 2013); Mitchell at *6-12. This is because “[t]he gravamen of the 

remedy * * * is that a defendant is about to commit an act which will produce immediate 

and irreparable harm for which no adequate legal remedy exists.” Hack v. Sand Beach 

Conservancy Dist., 176 Ohio App.3d 309, 2008-Ohio-1858, ¶ 24 (6th Dist.). As such, “even 

the strongest showing on the other three factors cannot ‘eliminate the irreparable harm 

requirement[]’ ” that gives rise to preliminary injunctive relief. See, e.g., D.T. v. Sumner 

Cty. Schools, 942 F.3d 324, 326-27 (6th Cir.2019), quoting Friendship Materials, Inc., 679 

F.2d at 105. See also Union Home Mtge. Corp., 31 F.4th at 366; Bowling, 2021-Ohio-2902 

at ¶ 56-60. “Thus, although the extent of an injury may be balanced against other factors, 

the existence of an irreparable injury is mandatory[]” for a preliminary injunction’s 

issuance. (Emphasis sic.) D.T. at 327.

{¶ 53} In this case, the trial court issued a preliminary injunction order years after 

the City requested it. While this delay, alone, certainly undercuts the notion of imminent, 

irreparable harm, its more pertinent effect is that it rendered stale most of the City’s 

evidence and arguments in support of this factor. After holding a hearing on the City’s 

preliminary injunction motion in May 2019, the trial court deferred its decision on that 

motion for nearly four years. It was not until November 2022—almost three years after 

H.B. 228’s amendment to R.C. 9.68 went into effect on December 28, 2019—that the trial 

court enjoined the State from enforcing amended R.C. 9.68. Had the preliminary 

injunction been issued before December 28, 2019, the preliminary injunction would have 

served its purpose by preserving the status quo. But because the trial court enjoined the 

State from enforcing amended R.C. 9.68 years after that statute became controlling law, the

preliminary injunction instead contravened the status quo. 

{¶ 54} The changed circumstances since the 2019 hearing bore on the issue of

whether there remained, in 2022, a risk of irreparable harm to the City if the injunction

against a then-in effect statute was not imposed, the harm to third parties if it was imposed, 

and whether the public interest would be served by the injunction. (See, e.g., May 13, 2019 
No. 22AP-676 18

Tr. at 35-37.) Thus, it is probable much of the evidence offered by the parties in 2019—

before H.B. 228’s amendment to R.C. 9.68 took effect—concerning these three factors has 

become stale by sheer virtue of such delay, and certain arguments based thereon may no 

longer be valid. See, e.g., Pearle Vision, Inc. v. Adler, S.D.Ohio No. 1:07CV321, 2008 U.S. 

Dist. LEXIS 57153, *6-7 (July 3, 2008); CFTC v. Monex Credit Co., C.D.Cal. No. SACV 17-

1868 JVS (DFMx), 2020 U.S. Dist. LEXIS 221777, *8-10 (Nov. 4, 2020). And, because 

amended R.C. 9.68 has been in effect for over three years, we recognize the City may have 

new or different evidence of irreparable harm now that it has been subject to the statute’s 

provisions. 

{¶ 55} In its preliminary injunction order, the trial court bypassed this critical 

question—namely, whether the arguments and evidence presented by the City at the May 

2019 hearing supported the issuance of a preliminary injunction against amended 

R.C. 9.68 in November 2022. Because this is a court of review—not a de novo trier of 

fact—that question was for the trial court to address in the first instance. See, e.g., State v. 

Atchley, 10th Dist. No. 07AP-412, 2007-Ohio-7009, ¶ 9 (“To address [these] argument[s] 

for the first time at this stage of the proceedings would be for this court to act as the trial 

court rather than as an appellate court.”); O’Brien v. Ohio State Univ., 10th Dist. No. 06AP946, 2007-Ohio-4833, ¶ 10, citing Hardy v. Fell, 8th Dist. No. 88063, 2007-Ohio-1287, 

¶ 29 (“This court * * * is not a trial court, and we cannot be the de novo trier of fact.”).

{¶ 56} In light of the changed circumstances after the preliminary injunction 

hearing was held and significant delay in the trial court’s issuance of the preliminary 

injunction, we find the record before us cannot provide clear and convincing proof that the 

City would face imminent, irreparable harm in 2022 (when the trial court issued its 

decision) without the preliminary injunction against amended R.C. 9.68. And, for the 

reasons that follow, we also find the trial court’s analysis of the third and fourth factors to 

be insufficient.

{¶ 57} In analyzing the third factor—whether third parties would be unjustifiably 

harmed if the injunction against amended R.C. 9.68 is granted—the trial court erroneously 

tasked the State with proving such harm would result. (Decision and Entry at 11.) But, the 

burden of disproving any such harm lay instead with the City. See, e.g., Intralot, Inc., 2018-

Ohio-3873 at ¶ 31. Thus, we find the trial court abused its discretion when it considered 
No. 22AP-676 19

the third factor under the wrong legal framework. See, e.g., Bellamy, 2012-Ohio-4304 at

¶ 7, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720,¶ 15 (8th Dist.), 

citing Berger v. Mayfield Hts., 265 F.3d 399, 402 (6th Cir.2001) (“An appellate court may 

find an abuse of discretion when the trial court ‘applies the wrong legal standard, 

misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’ ”).

{¶ 58} Furthermore, we find the City failed to satisfy its burden of proof as to the 

third factor, as no evidence in the current record supports finding that third parties, 

including the State, would not be unjustifiably harmed in 2022 by an injunction against 

the enforcement of a statute currently in effect. (Compare with May 13, 2019 Tr. at 34-37.) 

Although the City sought in 2019 a remedy that would have maintained the status quo at 

that time, the trial court instead rendered an order in 2022 that prohibited the State from 

enforcing a controlling Ohio statute due to constitutional deficiencies yet to be proven. This

order went beyond the scope and purpose of preliminary injunctive relief—“to preserve the 

relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. 

Camenisch, 451 U.S. 390, 395 (1981). See also Dimension Serv. Corp., 2014-Ohio-5108 at 

¶ 18; Neal, 2008-Ohio-257 at ¶ 11. When a preliminary injunction “goes beyond a 

restoration of the status quo and imposes new obligations[,]” that purpose is not served. 

(Emphasis sic.) Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir.1976). See also

Carter v. United States, S.D.Ohio No. 1:17-cv-248, 2017 U.S. Dist. LEXIS 205303, *6-7

(Dec. 13, 2017), citing Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 102 (6th Cir.1991).

{¶ 59} As to the fourth factor—whether the public interest will be served by the 

injunction—the trial court did not analyze it. Rather, it merely recited that factor before 

summarily concluding that the public interest “would be better served by granting the 

injunction” because “there is nothing in this record that would establish that an injunction 

would cause harm to the interest of the public.” (Decision and Entry at 11.) Again, the trial 

court mischaracterized the burden of proof associated with that factor. And even assuming 

evidence presented by the City in 2019 clearly and convincingly proved the public interest 

would be served by enjoining the State from enforcing amended R.C. 9.68 before H.B. 228

took effect, the trial court’s decision contains no explanation as to how changed 

circumstances—i.e., amended R.C. 9.68 going into effect in December 2019—did not 

impact its analysis of this factor in 2022 after amended R.C. 9.68 went into effect. 
No. 22AP-676 20

{¶ 60} Accordingly, we find the trial court’s November 2, 2022 judgment entry 

granting a preliminary injunction against amended R.C. 9.68 in its entirety was an abuse 

of discretion. In addition to its impermissible overbreadth, the second, third, and fourth

preliminary injunction factors are not supported by clear and convincing evidence in the 

record due to the staleness of the information presented in 2019 and the change in status 

quo since that time. The arguments and evidence presented by the City in 2019 in support 

of its motion for a preliminary injunction against amended R.C. 9.68 did not clearly and 

convincingly warrant its issuance in 2022. And the trial court did not address that passage 

of time in its decision or otherwise address the effect significantly changed circumstances 

had on its analysis of the evidence and arguments presented in 2019. Furthermore, we find 

the trial court misstated the burden of proof associated with the third and fourth factors.

And, most critically, we find an adequate remedy at law—in the form of a permanent 

injunction against amended R.C. 9.68 or a declaration of its unconstitutionality following a 

trial on the merits—was available to the City when the preliminary injunction was issued, 

especially because the amended version of R.C. 9.68 has already been in effect for three and 

one-half years. For these reasons, the State’s second assignment of error is sustained. 

{¶ 61} Given our disposition of the State’s second assignment of error, the State’s 

first assignment of error is thus rendered moot. 

IV. CONCLUSION

{¶ 62} Having sustained the State’s second and third assignments of error, and 

rendered the State’s first assignment of error moot, we reverse the November 2, 2022 

judgment of the trial court, vacate the preliminary injunction, and remand this matter to 

the trial court for further proceedings consistent with this decision.

Judgment reversed; 

preliminary injunction vacated;

case remanded. 

LUPER SCHUSTER and MENTEL, JJ., concur.