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Common Misconceptions under Ohio Injunction Law – Part III

November 15, 2021 | Daniel J. Donnellon

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A trial court must entertain live testimony before granting Preliminary Injunctive Relief

This particular erroneous perception applies not only to lawyers, but also to Common Pleas Court Judges; it is addressed in the Frequently Asked Questions Chapter in my most recent book, Donnellon, D.J., Injunctions and Restraining Orders in Ohio, 2020 Ed., (Amazon KDP, June 2020)(available HERE). A trial court may grant a Preliminary Injunction based solely on Affidavits if both parties are allowed the opportunity to submit them. The decision to hear live testimony is left to the sound discretion of the trial court. The trial court may consider affidavits only or affidavits with one or more live witnesses for the preliminary injunction. However, affidavits are not permitted for the trial on the merits addressing permanent injunctive relief.

Prior to the adoption of the Ohio Rules of Civil Procedure, the issuance of injunctive relief was authorized by statutes in Chapter 2727 of the Ohio Revised Code. Several of the statutes specifically addressed the use of affidavits. See 2727.03, 2727.04, and 2727.05. And the Ohio Supreme Court, again prior to Rule 65, addressed the issue:

“The general rule is stated in 3 American Jurisprudence (2d), 403 and 404, Sections 28 and 29, and is to the effect that by statutory provisions affidavits may be used to obtain a provisional remedy such as a temporary injunction [now known as a “preliminary injunction”], but they may not be admitted as evidence at a trial on the merits where a permanent injunction is sought. There the adverse party has a right to be confronted by the witnesses against him and, as to affidavits, may invoke the rule which excludes hearsay evidence. Consequently, affidavits are not generally admissible over objection at the trial to establish facts material to the issue being tried. See, also, 2 Ohio Jurisprudence (2d), 23, Section 17, and 2 C.J.S. Affidavits § 28, p. 984 et seq.”

Nat’l City Bank v. Nat’l City Window Cleaning Co., 174 Ohio St. 510, 515–16, 190 N.E.2d 437, 440 (1963).

However, neither Ohio Rule 65, nor its federal counterpart, specifically address the use of affidavits at the preliminary injunction level. Nonetheless, the Staff Notes to Ohio Rule 65(B), recognize that the practice of using affidavits should continue. Indeed, Federal Courts have explicitly recognized, “The federal rules of evidence do not apply at preliminary injunction hearings generally.” U.S. v. O’Brien, 836 F. Supp. 438, 441 (S.D. Ohio 1993) (citing University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981)).

The Supreme Court pronouncement in Nat’l City Bank continues to apply to Rule 65(B) hearings. And the Staff Note specifically advised, “if it would be in the interests of justice to have oral testimony without affidavits, the trial on the merits may be consolidated with the hearing on preliminary injunction.” However, the trial court should give sufficient notice of consolidation.

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Daniel J. DonnellonOf Counsel