[Cite as Puruczky v. Corsi, 2018-Ohio-1335.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


DALE PURUCZKY, et al.,                          :       OPINION

                 Plaintiffs-Appellees,          :
                                                        CASE NO. 2017-G-0110
        - vs -                                  :

EDMUND CORSI,                                   :

                 Defendant-Appellant.           :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2017 P
000046.

Judgment: Reversed, vacated, and remanded.


Patrick D. Quinn and Ronald A. Annotico, Quinn Legal Associates, 2802 SOM Center
Road, Suite 102, Willoughby Hills, OH 44094 (For Plaintiffs-Appellees).

Mark S. O’Brien, 2460 Fairmount Boulevard, Suite 301B, Cleveland Heights, OH
44106 (For Defendant-Appellant).


DIANE V. GRENDELL, J.

                 {¶1}    Defendant-appellant, Edmund Corsi, appeals from the judgment of

        the Geauga County Court of Common Pleas, granting plaintiff-appellee, Dale

        Puruczky, a preliminary injunction against Corsi. The issues to be determined in

        this case are whether an injunction prohibiting contact with various entities and

        the public as a whole acts as a prior restraint on free speech and whether service

        of the Complaint two business days before a preliminary injunction hearing

        constitutes notice to satisfy the requirements of due process. For the following
reasons, we reverse and vacate the February 15, 2017 Order of the Court and

remand for further proceedings consistent with this opinion.

       {¶2}   On January 18, 2017, Puruczky and Puruczky Wealth Management

LLC filed a Complaint for Injunctive Relief and Damages against Corsi. The

Complaint alleged that Corsi sold Puruczky supplements and treatment for his

wife’s various illnesses.   Puruczky alleged that Corsi had misrepresented his

products and that Puruczky “discontinued the business relationship with

Defendant, cancelled orders, and stopped payment on checks issued to

Defendant * * *.”    The Complaint contended that Corsi had written a letter

containing false, defamatory, libelous and slanderous statements to various

entities with which Puruczky did business as a financial planner.

       {¶3}   The Complaint raised claims for Defamation and Defamation Per

Se (Count One); Tortious Interference with Contract, based on the contention

that the letter authored by Corsi interfered with Puruczky’s business relationships

(Count Two); Unfair Business Practices (Count Three); and Preliminary

Injunction (Count Four).

       {¶4}   On the same date, Puruczky filed a Motion for Temporary

Restraining Order, requesting that Corsi be prohibited from making untruthful,

libelous, and slanderous statements about him. He attached an affidavit outlining

the various ways the letter would impact his career. Also attached was a copy of

the “Notice”/letter purported to be sent by Corsi, which stated that Puruczky failed

to pay for some products. It further stated: “After trusting this man, he has lied to

me, deceived me, stolen from me, and passed bad checks to me. * * * I will not




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stop exposing this man throughout the entire financial community in which I have

ties, through public media and the appropriate federal and state agencies until

justice is served. I hope there is no negative impact to your company as a result

of all the bad publicity Mr. Puruczky will cause.”

       {¶5}   A Temporary Restraining Order was issued on January 23, 2017. It

“restrained and enjoined” Corsi from contacting entities in relation to Puruczky

and “specifically restrains and enjoins defendant from engaging in malicious,

defamatory, libel and tortious conduct against Plaintiff.” It also set a hearing on

the request for a preliminary injunction for January 31, 2017, which was

continued at the plaintiffs’ request due to failure to obtain service of the

Complaint.

       {¶6}   After a request to renew, a second Temporary Restraining Order

was issued on January 30, 2017, which set the hearing on the preliminary

injunction for February 14, 2017.

       {¶7}   Puruczky requested an order designating a special process server

on February 8, 2017, which was granted on February 9, 2017. On the same

date, a document entitled “Instructions for Service” was filed, which stated that

pleadings to be served by the process server included the Complaint, Motion for

Temporary Restraining Order and the Journal Entry-Notice of Hearing.           On

February 13, 2017, a copy of a summons return was filed, which indicated that

Corsi had been served on February 10, 2017. It did not state which documents

were served and the docket states “Service: Summons with Complaint.”

       {¶8}   A hearing on the preliminary injunction was held on February 14,




                                      3
2017, at 9:00 a.m. Puruczky and his counsel were present, but Corsi and his

counsel did not appear.

       {¶9}   Puruczky testified that his wife had received treatment and vitamins

from Corsi, which he described as similar to holistic treatment, although he did

not believe Corsi was licensed.      At some point, he and his wife decided to

discontinue her treatment since they were dissatisfied and stopped payment on a

check. Puruczky referenced the letter he believed to be written by Corsi, which

described him as passing a bad check, an allegation Puruczky denied. He also

denied lying, cheating Corsi out of money, or defrauding him, also referenced in

the letter which Puruczky believes was sent to various entities with which he

interacts as a wealth advisor, including boards and professional organizations.

Regarding the effect that the letter had on his business, Puruczky provided one

example, in which a prospective client stated that he had seen “some disturbing

information” in the newspaper, which related to this lawsuit, filed by Puruczky.

The client had called to discuss investing and Puruczky testified that he was

“very” concerned the client would no longer invest. He did not, however, testify

that the client made a decision to that effect.      Regarding any other loss of

potential clients or business, Puruczky testified “there is no way for me to know.”

       {¶10} On the afternoon of February 14, 2017, hours after the hearing,

counsel for Corsi filed a Motion to Dismiss Count for Preliminary Injunction and a

Motion to Vacate Temporary Restraining Order. On February 15, 2017, an Order

of the Court was filed, finding that the restraining order should be continued “until

further order of the Court” and making findings in favor of Puruczky on the




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        preliminary injunction, including that irreparable harm existed, he had a likelihood

        of success, the injunction was in the public interest, and the balance of hardships

        favored Puruczky. The same restrictions outlined above were set forth, including

        Corsi not being permitted to contact entities associated with Puruczky or to

        engage in “malicious, defamatory, libel, and tortious conduct” against him.

                 {¶11} Corsi filed his Notice of Appeal on February 24, 2017, and raises

        the following assignments of error:1

                 {¶12} “[1.]        The trial court erred in granting Appellees’ motion for

        temporary restraining order and preliminary injunction because the temporary

        restraining order and the preliminary injunction violate Appellant’s right to free

        speech.

                 {¶13} “[2.]        The trial court erred in granting Appellees’ motion for

        temporary restraining order and preliminary injunction because the temporary

        restraining order and the preliminary injunction were not supported by the

        evidence presented by Appellees at the preliminary injunction hearing.

                 {¶14} “[3.] The trial court erred in scheduling and holding the preliminary

        injunction hearing only four days (two business days) after Appellant was served

        with the summons and complaint and by failing to give Appellant clear notice of

        the fact that the hearing had been scheduled.”

                 {¶15} As an initial matter, we will address the finality of the trial court’s

        order, although it is not challenged by Puruczky. “[T]he 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.”                      (Citation
1
. Corsi filed a Motion to Vacate Preliminary Injunction in the trial court on the same date.


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omitted.) RKI, Inc. v. Tucker, 11th Dist. Lake No. 2017-L-004, 2017-Ohio-1516, ¶

10. However, in some scenarios, such orders are appealable. It has been held

that “a preliminary injunction that constitutes a prior restraint on speech requires

immediate appellate review.” Connor Group v. Raney, 2d Dist. Montgomery No.

26653, 2016-Ohio-2959, ¶ 1; Internatl. Diamond Exchange Jewelers, Inc. v. U.S.

Diamond & Gold Jewelers, Inc., 70 Ohio App.3d 667, 671, 591 N.E.2d 881 (2d

Dist.1991), citing Natl. Socialist Party of America v. Skokie, 432 U.S. 43, 44, 97

S.Ct. 2205, 53 L.Ed.2d 96 (1977) (where an injunction seeks to “impose a

restraint [on First Amendment rights],” there must be “strict procedural

safeguards * * *, including immediate appellate review”). This court has also

noted the exception that “the granting of a preliminary injunction is a final

appealable order when the court’s order constitutes an abuse of discretion

affecting a substantial right.”   Woodbridge Condominium Owners’ Assn. v.

Friedland, 11th Dist. Lake No. 2003-L-073, 2004-Ohio-14, ¶ 5.          Since Corsi

alleges that the injunction substantially impacts his rights and constitutes a prior

restraint on his speech, we will proceed to a review of the merits of his appeal.

       {¶16} In the third assignment of error, which is dispositive of the appeal,

Corsi argues that his right to due process was violated when the preliminary

injunction hearing was held “only two business days after service was perfected.”

       {¶17} “The question of whether the due process requirements have been

satisfied presents a legal question we review de novo.” McRae v. State Med.

Bd., 2014-Ohio-667, 9 N.E.3d 398, ¶ 36 (10th Dist.); see Gemmell v. Anthony,

2016-Ohio-2686, 51 N.E.3d 663, ¶ 27 (4th Dist.). See also In re Foreclosure of




                                      6
Liens, 11th Dist. Lake No. 2014-L-012, 2015-Ohio-1258, ¶ 15 (questions of law

are reviewed de novo).

         {¶18} Puruczky’s main argument as to this issue is that it was waived by

Corsi below, since it was not raised in his February 14, 2017 motions. We find

this argument unpersuasive.      Those motions were filed just hours after the

hearing that Corsi’s counsel did not attend, presumably because he was

unaware of the hearing or lacked sufficient notice to attend, as will be addressed

below.     Regardless, these filings related to vacating the previously-issued

temporary restraining order and dismissal of the preliminary injunction count.

The preliminary injunction had not yet been ruled upon by the trial court, which

was granted a day later. The due process argument raised here relates solely to

the contention that it was improper to grant a preliminary injunction without Corsi

being able to attend the hearing. It would be illogical to raise such an argument

before the injunction was even ruled upon, especially considering it would be

moot if the ruling was favorable to Corsi. After the injunction was granted, Corsi

immediately appealed, raising the due process argument. Although not presently

before this court for review, Corsi filed a Motion to Vacate on the same date, also

raising the due process argument. Since Corsi raised this argument at the first

relevant opportunity, it was not waived and we will consider whether he was

denied due process.

         {¶19} “[T]he fundamental requisite of due process of law is the

opportunity to be heard.” (Citation omitted.) Ohio Valley Radiology Assoc., Inc.

v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 124, 502 N.E.2d 599 (1986). In




                                     7
relation to preliminary injunctions, this court has found “Civ.R. 65 strongly implies

that a hearing must be held before a preliminary injunction can be granted,” also

noting that an injunction cannot be granted without reasonable notice to the

adverse party under Civ.R. 65(B)(1). Sea Lakes, Inc. v. Sea Lakes Camping,

Inc., 78 Ohio App.3d 472, 476, 605 N.E.2d 422 (11th Dist.1992); State ex rel.

Fisher v. Nacelle Land and Mgt. Corp., 90 Ohio App.3d 93, 99, 628 N.E.2d 67

(11th Dist.1993) (“[i]t is generally held that a hearing must be conducted prior to

the issuance of a preliminary injunction”).      This is due to the “fundamental

constitutional principle” of providing the opposing party an opportunity to present

evidence. (Citation omitted.) Sea Lakes at 476. “Since the opposing party will

be enjoined from performing certain acts for a period usually much longer than

that associated with a temporary restraining order, that party must be accorded a

legitimate opportunity to oppose the injunction.” Id. at 477. Federal courts have

interpreted the similar federal rule to also require notice and a hearing for a

preliminary injunction. Cty. Sec. Agency v. Ohio Dept. of Commerce, 296 F.3d

477, 484 (6th Cir.2002).

       {¶20} “An elementary and fundamental requirement of due process in any

proceeding * * * is notice reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections. * * *” Ohio Valley at 124, citing Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed.

865 (1950).    “[T]he right to notice and an opportunity to be heard ‘must be

granted at a meaningful time and in a meaningful manner.’” (Citation omitted.)




                                      8
Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). “The

determination of whether a certain form of notice violates due process must be

made on a case-by-case basis.” Nalbach v. Cacioppo, 11th Dist. Trumbull No.

2001-T-0062, 2002 WL 32704, *4 (Jan. 11, 2002).

      {¶21} In the present matter, a consideration of all of the circumstances

leads to the conclusion that Corsi was not given a reasonable notice of the

hearing date which would provide him with meaningful time to prepare for the

hearing. Corsi was not served with any notice of the present proceedings, even

the Complaint, until four days, and only two business days, before the hearing for

the preliminary injunction.   The record also does not clearly indicate what

documents were served on Corsi on that date and whether such documents

included the notice of the hearing. There is no way of knowing what documents

were served, aside from the Complaint. The service return does not specify what

was served, with the summons stating only that the defendant was being served

with a Complaint and had 28 days to respond with an answer.            While the

instructions for service filed separately do specify that the notice of hearing

should be served, it is unclear whether this occurred, and the docket states only

that the Complaint was served.       Defense counsel’s actions seemed to be

consistent with the contention that he was unaware of the hearing, as he filed

several motions on the date of the hearing, which did not acknowledge the

hearing, and he did not appear.

      {¶22} While in some instances constructive notice is considered sufficient

by virtue of the hearing being included on the court docket, see Ohio Valley, 28




                                    9
Ohio St.3d at 124, 502 N.E.2d 599, that principle would not apply here. Corsi

could not be construed to have constructive notice in advance at the time of the

docketing of the hearing date when he had not been served with the Complaint

and thus was not yet an active participant in the proceedings. Again, even if he

is considered to have had constructive notice as of the date of the service, this

provided him only a few days to obtain counsel and prepare for the hearing.

       {¶23} Even assuming Corsi was served with the notice of hearing, the

summons document stated that he had 28 days to file an answer. As a non-

lawyer, he would be placed in the unfair position of having to evaluate multiple

documents and determine a hearing was set for only a few days in the future,

while not yet having obtained the assistance of counsel. It is also unreasonable

to believe that a client and counsel would be adequately prepared to appear at a

hearing on an injunction within only two business days. A similar holding was

reached by the Eighth District, where the court found that a notice of a dispositive

hearing to modify an arbitrator’s award totaling only two business days “was not

‘reasonably calculated under the circumstances’ to apprise appellant * * * of the

pendency of the hearing so as to afford them ample opportunity to present their

objections.” (Emphasis omitted.) Cleveland Firefighters Local 93 v. Cleveland,

8th Dist. Cuyahoga No. 59319, 1991 WL 263713, *2 (Dec. 12, 1991).

       {¶24} Any contention that two business days’ notice was reasonable

because this was a preliminary injunction hearing also lacks merit. As explained

above, this court has emphasized the necessity of holding a hearing prior to

granting a preliminary injunction. Sea Lakes, 78 Ohio App.3d at 476, 605 N.E.2d




                                     10
        422. A hearing for which a party is unprepared is meaningless. Further, the

        evidence also does not show that a delay of a few days would have harmed

        Puruczky, who presented no evidence that the letter at issue was actually sent to

        anyone other than himself.             Importantly, Puruczky had received a temporary

        restraining order and an extension of such order, protecting him from alleged

        harm.      Civ.R. 65 allows for a 14-day temporary restraining order and an

        additional extension “for one like period.” The first temporary restraining order in

        this case was granted on January 23, 2017, and, thus, could have been

        extended until February 20, 2017, providing Corsi additional time to prepare

        while still protecting Puruczky.2

                 {¶25} Given the significance of the injunction, which Corsi asserts acts as

        a prior restraint on his speech in violation of the First Amendment by essentially

        banning him from communicating with all entities that interact with Puruczky, as

        well as the public, allowing Corsi to appear and provide a defense was especially

        important and necessary. See State ex rel. Toledo Blade Co. v. Henry Cty. Court

        of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d 634, ¶ 21

        (there is a “heavy presumption” against the constitutional validity of prior

        restraints).

                 {¶26} The third assignment of error is with merit.

                 {¶27} While the disposition of the third assignment of error requires

        remand, we will briefly address the first assignment of error for purposes of

        judicial economy. In the first assignment of error, Corsi alleges that the injunction

2
 . We note that the second temporary restraining order was actually issued by the court on January 30, 2017.
Regardless, Corsi should not be subjected to a violation of his due process rights when there are mechanisms in
place to protect his rights as well as those of the party seeking an injunction.


                                                      11
acts as a prior restraint on his speech and, thus, violates his First Amendment

rights.

          {¶28} Generally, a “trial court’s decision to grant or deny a preliminary

injunction is reviewed for abuse of discretion.” Avery Dennison Corp. v. TransAct

Technologies, Inc., 11th Dist. Lake No. 2012-L-132, 2013-Ohio-4551, ¶ 13.

Constitutional questions, including the application of the First Amendment,

however, are reviewed under a de novo standard. Bose Corp. v. Consumers

Union of U.S., Inc., 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984);

State v. Baranski, 173 Ohio App.3d 410, 2007-Ohio-4072, 878 N.E.2d 1058, ¶ 6

(4th Dist.).

          {¶29} “The term prior restraint is used ‘to describe administrative and

judicial orders forbidding certain communications when issued in advance of the

time that such communications are to occur.’” (Citation omitted.) Seven Hills v.

Aryan Nations, 76 Ohio St.3d 304, 307, 667 N.E.2d 942 (1996).

          {¶30} “Although prior restraints are not unconstitutional per se, there is a

heavy presumption against their constitutional validity.” Toledo Blade, 125 Ohio

St.3d 149, 2010-Ohio-1533, 926 N.E.2d 634, at ¶ 21.             “[P]rior restraints on

speech and publication are the most serious and least tolerable infringement on

First Amendment rights.” Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539,

559, 96 S.Ct. 2791, 49 L.Ed.2d 683. “‘Prior restraints are simply repugnant to the

basic values of an open society’ in that they ‘tend to encourage indiscriminate

censorship in a way that subsequent punishments do not.’” (Citation omitted.)

Toledo Blade at ¶ 21.




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       {¶31} In the present case, the trial court’s order prevents Corsi from

“contacting in any manner any of the various businesses, individuals, charities,

social organizations, clients, prospective clients, employers, government

agencies, FINRA, State of Ohio, business partners, associates of Plaintiff and the

general public until further order of this court.” (Emphasis added.) Following that

provision, the order states that it “specifically restrains and enjoins Defendant

from engaging in malicious, defamatory, libel and tortious conduct against

Plaintiff” within the United States. It appears that, at the least, Corsi cannot

contact anyone about or in relation to Puruczky, although the order also prevents

him from contacting “the general public,” without specific reference to whether

this relates to Puruczky. Either way, Corsi is totally prevented from exercising his

right to free speech, without regard for what this speech may be.

       {¶32} While Puruczky argues that libelous and false speech are not

protected, it bears repeating that the order also prevents him from “contacting”

various individuals, separate from the specific requirements preventing certain

types of speech. Regardless, while it is accurate that some types of speech are

not protected, prevention of such speech typically is permissible after the court

has “regularly conducted an independent review of the record both to be sure

that the speech in question actually falls within the unprotected category and to

confine the perimeters of any unprotected category within acceptably narrow

limits in an effort to ensure that protected expression will not be inhibited.” Bose,

466 U.S. at 505, 104 S.Ct. 1949, 80 L.Ed.2d 502. As the Ohio Supreme Court

has emphasized, “[t]he judicial determination that specific speech is defamatory




                                     13
must be made prior to any restraint.”      (Emphasis added.)      O’Brien v. Univ.

Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

Here, the trial court did not make a specific finding that speech which had already

taken place constituted libel or defamation and cannot assume that future speech

will fall into such a category. Corsi is being improperly deprived of the right to

speak before a substantive determination of the permissibility of his speech on

the merits has been made by the court. The likelihood of success determination

for a preliminary injunction does not meet that standard. Id.

       {¶33} To the extent the lower court granted preliminary, injunctive relief

prior to a final determination that Corsi’s alleged letter is defamatory, the relief

granted is improper. See O’Brien, supra.

       {¶34} Further, the injunction prevents Corsi from essentially interacting

with not only various entities but the public as a whole in relation to Puruczky.

This is not a minor restriction on his speech but an all encompassing prohibition

on expressing concerns “to the public” on a matter which Corsi views as of

significant interest, Puruczky’s alleged dishonest and improper conduct. It has

been noted that an individual does not have an interest “in being free from public

criticism of his business practices” by obtaining an injunction against an

individual distributing leaflets or pamphlets criticizing the business. Org. for a

Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971).

Here, the broad limitations contained in the injunction would prohibit such

conduct by Corsi.

       {¶35} Since the trial court’s order acts as a broad, prior restriction on




                                     14
      Corsi’s speech to the public and private entities, that portion of the injunction

      violates his First Amendment rights.

            {¶36} The first assignment of error is with merit to the extent discussed

      above.

            {¶37} In light of our ruling on assignments of error one and three, the

      second assignment of error is moot.

            {¶38} Given the foregoing, the February 15, 2017 Order of the Court is

      reversed and this matter is remanded for the lower court to hold a hearing,

      pursuant to O’Brien, supra, on an injunction, excepting public speech, with proper

      and adequate notice of the hearing date to be provided to all parties.

            {¶39} For the foregoing reasons, the February 15, 2017 Order of the

      Geauga County Court of Common Pleas is reversed and vacated. This matter is

      remanded for further proceedings consistent with this decision.          Costs to be

      taxed against appellees.



THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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