[Cite as Jacob v. Youngstown Ohio Hosp. Co., L.L.C., 2012-Ohio-1302.]




                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


LEON JACOB, M.D.,                                )
                                                 )        CASE NO.      11 MA 193
        PLAINTIFF-APPELLANT,                     )
                                                 )           OPINION
        - VS -                                   )             AND
                                                 )        JUDGMENT ENTRY
YOUNGSTOWN OHIO HOSPITAL                         )
COMPANY, LLC dba NORTHSIDE                       )
MEDICAL CENTER, et al.,                          )
                                                 )
        DEFENDANTS-APPELLEES.                    )



CHARACTER OF PROCEEDINGS:                             Civil Appeal from Common Pleas Court,
                                                      Case No. 11CV1568.

JUDGMENT:                                             Appeal dismissed.

APPEARANCES:
For Plaintiff-Appellant:                             Attorney Douglas Graff
                                                     Attorney Levi Tkach
                                                     604 East Rich Street
                                                     Columbus, Ohio 43215-5341

For Defendants-Appellees:                             Attorney David Moss
                                                      Attorney Frank Mazgaj
                                                      Attorney Michael Ockerman
                                                      3737 Embassy Parkway
                                                      P.O. Box 5521
                                                      Akron, Ohio 44334

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                      Dated: March 20, 2012
                                                                                    -2-




PER CURIAM.

      {¶1}    Plaintiff-appellant Dr. Leon Jacob appeals the decision of the Mahoning
County Common Pleas Court denying his motion for a preliminary injunction.
Defendant-appellees Youngstown Ohio Hospital Company, LLC, dba Northside
Medical Center, et al. (herein referred to as Northside), moves to dismiss the appeal
for a lack of a final appealable order. For the reasons expressed more fully below, the
appeal is hereby dismissed for lack of a final appealable order.
                      STATEMENT OF THE CASE AND FACTS
      {¶2}    Dr. Jacob was terminated from his employment at Northside as a Fourth
Year Surgical Resident in March 2011.          The magistrate’s findings of fact and
conclusions of law discuss at length the facts that lead up to Dr. Jacob’s dismissal. Dr.
Jacob initiated the due process appeal as outlined in Northside’s Resident House
Manual. In early April 2011 a five member due process panel heard the due process
appeal and unanimously upheld the termination decision. Thereafter, Dr. Jacob filed
an action in Mahoning County Common Pleas Court against Northside asserting
breach of contract, breach of implied covenant of good faith and fair dealing, and
tortious interference with contract and employment opportunities.          In addition to
seeking other relief, Dr. Jacob also requested a preliminary injunction.
      {¶3}    On June 16, 2011 Dr. Jacob filed a Motion for Preliminary Injunction
seeking placement back into the program at Northside. There was an extensive three
day hearing on the motion. Following the hearing, the magistrate denied the motion
and issued findings of fact and conclusions of law. 06/29/11 J.E. and 07/06/11 J.E. Dr.
Jacob objected to the findings of fact and conclusions of law and Northside filed
responses to those objections.         07/20/11 Objections, 08/12/11 Response in
Opposition, 09/09/11 Supplemental Objections, 09/12/11 Response in Opposition to
Supplemental Objections, and 09/20/11 Memorandum in Support of Supplement
Objections.
                                                                                    -3-


       {¶4}   After reviewing the evidence, the trial court denied the objections,
affirmed the magistrate’s findings of fact and conclusions of law, and denied the
preliminary injunction. This appeal followed.
                                        ANALYSIS
       {¶5}   In general, an order denying a preliminary injunction does not qualify as
a final order because preliminary injunctions are considered interlocutory, tentative,
and impermanent in nature. N. Fairfield Baptist Church v. G129, L.L.C., 12 Dist. No.
CA2009-11-281, 2010-Ohio-2543, ¶ 16. However, it will be considered a final order if
it meets the requirements of the two-prong test established by R.C. 2505.02. Id. That
statute, in pertinent part, states:
       {¶6}   “(A) As used in this section:
       {¶7}   “* * *
       {¶8}   “(3) ‘Provisional remedy’ means a proceeding ancillary to an action,
including, but not limited to, a proceeding for a preliminary injunction * * *
       {¶9}   “(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
       {¶10} “* * *
       {¶11} “(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
       {¶12} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing
party with respect to the provisional remedy.
       {¶13} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims,
and parties in the action.” R.C. 2505.02.
       {¶14} Both parties concede that by denying the request for a preliminary
injunction subsection (4)(a) is met. Their concessions are correct.
       {¶15} The dispute in this case concerns the second element, subsection (4)(b),
whether Dr. Jacob would not be afforded a meaningful or effective remedy by an
appeal following final judgment.
                                                                                         -4-


       {¶16} Dr. Jacob argues that there are irreversible effects by his continued
preclusion from participation in the residency program that will be exceedingly difficult,
if not impossible, to correct by the time the Common Pleas Court renders a final
determination on the merits.      He contends that his preclusion from the residency
program will adversely affect his ability to get board certified. He contends that the
American Board of Surgery (Board) requires a resident to do the final two years of a
residency at the same accredited education program and that the Board can deny
certification based on unacceptable delay in education, if a resident takes an abnormal
amount of time to complete the traditional five year residency. It is approaching the
one year anniversary of Dr. Jacob’s alleged wrongful termination.                 Therefore,
according to him, the length of delay for the case to be decided decreases his chances
of board certification. He also contends that without board certification he would not
be eligible for staff privileges at a hospital. Thus, he asserts that the practical reality is
that he would not be able to be a practicing surgeon without first becoming board
certified.
       {¶17} Northside claims that the denial of the preliminary injunction does not
preclude a meaningful or effective remedy via appeal, following a final judgment. It
contends that if Dr. Jacob is unsuccessful at the trial court level, but wins on appeal,
reinstatement in the Northside’s program as a Fourth Year Resident is an effective
remedy.
       {¶18} In analyzing whether an appellant would be denied a meaningful or
effective remedy if the provisional remedy is not immediately reviewable, the Ohio
Supreme Court has explained:
       {¶19} “[R.C. 2505.02(B)(4)(b)] recognizes that in spite of courts' interest in
avoiding piecemeal litigation, occasions may arise in which a party seeking to appeal
from an interlocutory order would have no adequate remedy from the effects of that
order on appeal from final judgment. In some instances, ‘[t]he proverbial bell cannot
be unrung and an appeal after final judgment on the merits will not rectify the damage’
suffered by the appealing party.” State v. Muncie, 91 Ohio St. 3d 440, 451, 746
N.E.2d 1092 (2001).
                                                                                  -5-


       {¶20} Some instances where the provisional remedy has been deemed to be a
final order is in cases involving an order compelling the production of documents
containing trade secrets, an order compelling the production of privileged
communications, an order denying a request to enforce a covenant not to compete,
and an order compelling the administration of psychotropic medication to restore a
criminal defendant to competency. Id. (analyzing order compelling administration of
medication); Callahan v. Akron Gen. Med. Ctr., 9th Dist. No. 22387, 2005-Ohio-5103,
¶ 28 (discussing privileged material); LCP Holding Co. v. Taylor, 158 Ohio App.3d 546,
2004-Ohio-5324, 817 N.E.2d 439, ¶ 28 (11th Dist.) (discussing trade secrets); Premier
Health Care Serv., Inc. v. Schneiderman, 2d Dist. No. 18795, 2001 WL 1479241 (Aug.
21, 2001) (analyzing covenant not to compete, loss of market share and trade
secrets).
       {¶21} Conversely, the denial of a preliminary injunction has been held to be
nonfinal when the argument that there is no effective remedy via appeal, following a
final judgment is based on the claim that the company seeking the preliminary
injunction will be forced out of business if the injunction is not granted. Empower
Aviation, L.L.C., v. Butler Cty. Bd. of Commrs., 185 Ohio App.3d 477, 2009-Ohio-6331,
924 N.E.2d 862, ¶ 22-23 (1st Dist). The First Appellate District concluded as such
because, given the record, the argument was deemed too speculative. Id.
       {¶22} The situation before us is not akin to an order compelling the production
of documents containing trade secrets or privileged material, or an order compelling
the administration of a drug. As Northside states, there is an effective and meaningful
remedy by replacement in the program as a Fourth Year Resident following final
judgment in his favor. Likewise, monetary damages could also be given.
       {¶23} Dr. Jacob’s claim that reinstatement after successfully winning on appeal
is not an effective remedy because it delays his education and decreases his chances
of becoming board certified is too speculative given the record before us. He claims
that the Board “can” deny certification based on an unacceptable delay in education if
a resident takes an abnormal amount of time to compete the five year residency. While
the Board could deny the certification, it could also still certify him considering the
circumstances; there is nothing to suggest that it would automatically deny him
                                                                                       -6-


because of the length of delay. In addition to the possibility that the Board could certify
despite any delay in his completion of the residency program, there is a possibility that
the Board could deny certification for reasons not related to any delay. For instance
the Board may not look favorably on the fact that his surgical residency was not
renewed at the University of Texas and Northside’s program sought to terminate him
(either justly or wrongly) based on certain documented incidents.          Therefore, any
alleged decreased chance of certification is too speculative to support a finding that he
would be denied an effective remedy.
       {¶24} In addition to the above, it is noted that courts have found that “[i]t is well
established that the granting of a temporary or preliminary injunction, in a suit in which
the ultimate relief sought is a permanent injunction, is generally not a final appealable
order.“ Obringer v. Wheeling & Lake Erie Ry. Co., 3d Dist. No. 3-09-08, 2010-Ohio-
601, ¶ 18, citing Hootman v. Zock, 11th Dist. No. 2007-A-0063, 2007-Ohio-5619, ¶ 15,
quoting Woodbridge Condominium Owners' Assn. v. Friedland, 11th Dist. No.2003-L-
072, 2004-Ohio-14, ¶ 4. In the case sub judice, the complaint seeks a permanent
injunction.   Thus, this fact also weighs against finding that the trial court’s order
denying the preliminary injunction is a final appealable order.
       {¶25} That said, it is acknowledged that the Sixth Appellate District has
reviewed an order granting a preliminary injunction in favor of a surgical resident.
Grudzinski v. Medical College of Ohio, 6th Dist. No. L-00-1098, 2000 WL 376401 (Apr.
12, 2000). In that decision, our sister district does not discuss the finality of the order
and it does not indicate whether it had already in a previous order determined that the
granting of the preliminary injunction was a final appealable order under R.C. 2505.02.
We do not know the arguments that might have been presented by the Medical
College of Ohio as to why it would not be afforded an effective remedy via appeal,
following a final judgment.     Furthermore, what justifies a finding for the medical
institution that the granting of preliminary injunction for the resident is immediately
reviewable, may not justify a finding that the denial of a resident’s request for a
preliminary injunction is also immediately reviewable.       Each party is in a different
position. Thus, what supports their respective positions and constitutes a denial of an
effective remedy is going to be different. Therefore, the Grudzinski opinion does not
                                                                                     -7-


provide guidance on the issue of whether the order before us is a final appealable
order.
         {¶26} In conclusion, considering all of the above, we find that the order denying
the preliminary injunction does not meet the qualifications in R.C. 2505.02 to be a final
appealable order. In our opinion, Dr. Jacob has an effective remedy following a final
order; he can be reinstated into the residency program at Northside and monetary
damages are an option. The position that he may be denied Board certification is too
speculative of a claim and does not indicate that he would be denied an effective
remedy. DeGenaro, J., dissents.

Vukovich, J., concurs.
Waite, P.J., concurs.
DeGenaro, J., dissents.
