All Foils, Inc. v. Kulik

• Court: Ohio Court of Appeals
• Decided: July 2, 2026
• Docket: 115306
• Status: Published

Opinion

[Cite as All Foils, Inc. v. Kulik, 2026-Ohio-2534.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ALL FOILS, INC., :

Plaintiff-Appellee, : No. 115306 v. :

MICHAEL KULIK, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: July 2, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-104554

Appearances:

Weston Hurd LLP, Scott Khan, and Matthew K. Seeley, for appellee.

Greenberg Traurig, LLP, Alicia M. Chiu, and Jake Evans, pro hac vice, for appellants Prosvic Sales, Inc., and Jodi Lunar.

SEAN C. GALLAGHER, J.:

Jodi Lunar (“Lunar”) and Prosvic Sales, Inc. (“Prosvic”) (collectively,

“Appellants”) appeal the judgment granting All Foils, Inc., preliminary injunctive

relief, which was superseded by a modified preliminary injunction issued a month later. Because this court improvidently denied All Foils’ motion to dismiss this

appeal based on preliminary arguments presented by Appellants in support of

jurisdiction, which omitted important context, we sua sponte reconsider that

motion. In general, the granting of a preliminary injunction that maintains the

status quo until the merits of a permanent injunction are considered is not a final

appealable order. We must adhere to that general proposition. Because this court

lacks jurisdiction over nonfinal, interlocutory orders, this appeal is dismissed.

All Foils filed suit against Michael Kulik (“Kulik”), and in the first

amended complaint, Lunar and “Dingsheng Aluminum Industries d/b/a Prosvic

Sales, Inc.,” were included as new party defendants. All Foils alleged that its former

sales representative, Lunar, left the company and thereafter contacted Kulik, then

still working for All Foils, to request confidential information related to All Foils’

business: All Foils’ customer database and contact information. Kulik complied.

There is no dispute at this stage that Prosvic hired Lunar, who is bound by the terms

of a two-year noncompete agreement with All Foils. All Foils presented evidence

that Lunar requested and received All Foils’ trade secrets after her departure, and

All Foils’ clients indicated solicitation was occurring by Prosvic based on

information directly attributed to the purloined information.

Based on these allegations, All Foils raised breach-of-contract and

misappropriation-of-trade-secrets claims against both Kulik and Lunar. All Foils

also alleged misappropriation of trade secrets against Prosvic. Pertinent here,

among requests for various damages and litigation costs, All Foils sought “[o]n all counts, injunctive relief enjoining Defendants from their continuing use, disclosure,

possession, maintenance or other misappropriation of All Foils’ Confidential Trade

Secrets and requiring destruction of all Confidential Trade Secrets in their

possession.” It is under this framework that injunctive relief was preliminarily

granted.

There was no bond requirement imposed in the preliminary

injunction.

The preliminary injunction precluded Appellants from contacting any

current or former customers of All Foils. Appellants, in this appeal, primarily argue

that condition is “overly broad” or vague because there is a possibility that the

injunction impedes Prosvic from selling to customers it retained before its alleged

theft of All Foils’ customer database. This argument ignores the appointment of a

special master to compare All Foils’ customer list with Prosvic’s list for the purpose

of enforcing the injunction during the ongoing litigation without impeding Prosvic’s

vested interest in existing clients, an issue that had further been resolved in the trial

court’s modification expressly excepting Prosvic’s current customers, which would

have been in effect but for Appellants’ appeal. In fact, Appellants altogether failed

to acknowledge the appointment of the special master in claiming that they had the

right to immediately appeal because, in their words, “enforcement of the

Preliminary Injunction will cause Prosvic to lose customers who pre-existed the

alleged misappropriation and will prevent solicitation of shared customers who

were acquired prior to Lunar’s employment.” Even if the special master’s appointment to protect both parties’

interest in their respective customer bases were ignored, Appellants’ base argument

relies on mere speculation as to whether Prosvic’s and All Foils’ shared customers

before Prosvic’s engagement with Lunar and the alleged theft of All Foils’ trade

secrets. In fact, Appellants’ argument directly conflicts with their representation to

this panel that they are not aware of which customers are on the disputed list.

Appellants’ brief at p. 18 (“Here, the Preliminary Injunction prohibits Appellants

from contacting or soliciting any customer on the ‘misappropriated customer list.’

However, neither Prosvic nor Lunar possesses this list, making compliance

impossible.”). If they were unaware of which clients are on the list as represented in

their appellate briefing, neither Lunar nor Prosvic could possibly produce evidence

of a preexisting relationship without speculating that it would be possible. Although

there is some indication in the record that Prosvic has an existing relationship with

one parent company of a subsidiary that is a former client of All Foils, Prosvic was

unable to offer any clarity or specificity as to the scope of their existing relationship

or the interplay between the distinct corporate entities. Again, and despite

belaboring this point, that issue would have been addressed by the special master,

the appointment of whom Appellants do not challenge in this appeal.

Regardless, it appears the challenges Appellants assert in this appeal

would have been settled by the trial court. In fact, the relief requested — to nullify

the preliminary injunction because it lacked a bond requirement and lacked

specificity with respect to the scope of the enforced prohibition against contacting All Foils’ customers — was already resolved by the trial court on agreement of the

parties to modify the original preliminary injunction. This appeal was filed a day

before the trial court issued the agreed-upon modification.

This procedural history is important. Two days after conferencing

with the trial court and agreeing to submit proposed revisions to the preliminary

injunction at the heart of this appeal, Appellants filed this appeal instead of

submitting a proposed entry as they agreed to with the trial court. Appellants then

used this appeal to claim that the modified preliminary injunction was a nullity

because the trial court issued the injunction a day after Appellants filed the notice of

appeal. As expressly noted by the trial court, Appellants had agreed to submit

proposed revisions to the injunction:

COUNSEL FOR ALL PARTIES AGREED TO SUBMIT PROPOSED REVISIONS TO THE EXISTING PRELIMINARY INJUNCTION ORDER AT THE PHONE CONFERENCE HELD WITH THE COURT ON 7/8/2025. PLAINTIFF SUBMITTED PROPOSED REVISIONS TO EXISTING PRELIMINARY INJUNCTION ORDER. DEFENDANT FILED A NOTICE OF APPEAL.

In the modified injunction, the trial court imposed a bond requirement and also

limited application to

[c]ontacting, soliciting, or selling to any current or former customer of All Foils, Inc., but for those customers with whom Prosvic has had an existing business/commercial relationship on and prior to July 18, 2024 (“Existing Customers”), subject to the conditions set forth in Paragraph B below.

Instead of allowing the modified entry to be issued remedying a majority of

Appellants’ immediate concerns raised in this appeal, the Appellants used the appeal

as a delaying tactic to preclude enforcement of the injunction, which would have prevented them from benefiting from the alleged ill-gotten gains. Importantly, the

Appellants also failed to convey this context in opposing the motion to dismiss and

failed to mention their involvement in, and agreement to, the modification process.

There are two issues depriving this court of jurisdiction to review this

appeal: (1) the granting of a preliminary injunction is not generally deemed a final

appealable order under R.C. 2505.02(B)(4); and (2) the injunction order appealed

is not operative by its own terms, meaning there is no justiciable controversy in need

of resolution.

The failure to impose a bond requirement, even if a nominal or zero

sum, does not impact the validity of the preliminary injunction issued. It affects

enforceability of the injunction. See, e.g., Skiles v. Bellevue Hosp., 2006-Ohio-5361,

¶ 16 (6th Dist.) (Because no bond was posted on the preliminary injunction, and no

contempt for a violation could be imposed, the injunction was not operative.); see

also Vanguard Transp. Sys. v. Edwards Transfer & Storage Co. Gen. Commodities

Div., 109 Ohio App.3d 786 (10th Dist. 1996) (the imposition of a no-bond

requirement was sufficient to render the preliminary injunction enforceable). Civ.R.

65(C), in pertinent part, provides that “[n]o temporary restraining order or

preliminary injunction is operative until the party obtaining it gives a bond executed

by sufficient surety . . . in an amount fixed by the court or judge allowing it . . . .” The

appeal in this case challenges the imposition of the preliminary injunction, not its

enforcement. The lack of a bond requirement does not convert the preliminary

injunction into a final appealable order; it simply, and at best, renders the order inoperative by rule. If the preliminary injunction is not operative, we have no

justiciable controversy — the order is a nullity.

Even if we ignored the lack of a justiciable controversy, “[a]

preliminary injunction is a provisional remedy that generally is considered

interlocutory and temporary in nature.” Agency Collective, L.L.C. v. Hines, 2025-

Ohio-5864, ¶ 7 (11th Dist.), citing Madison Twp. Bd. of Trustees v. Hambden

Sportsman Inc., 2023-Ohio-3304, ¶ 5 (11th Dist.). Thus, “an order granting or

denying a preliminary injunction does not automatically qualify it as final and

appealable.” Id. In Ohio, “[w]here the ultimate relief sought is a permanent

injunction, courts have held that an appeal at the conclusion of the proceedings will

ordinarily provide a meaningful and effective remedy.” Columbus v. State, 2023-

Ohio-195, ¶ 12 (10th Dist.), citing Taxiputinbay, LLC v. Put-In-Bay, 2021-Ohio-191,

¶ 12 (6th Dist.) (stating 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”). The pleadings in this case

sought preliminary and permanent injunctive relief, and appellants have never

addressed, much less distinguished, that prevailing jurisdictional law.

“[I]n order for the preliminary injunction . . . to be considered a final,

appealable order, it must fall within the confines of R.C. 2505.02(B)(4).” Cleveland

Hous. Renewal Project v. Wells Fargo Bank, N.A., 2010-Ohio-2351, ¶ 17 (8th Dist.),

citing Sinnott v. Aqua-Chem, Inc., 2007-Ohio-5584, ¶ 16, and State v. Muncie, 91

Ohio St.3d 440, 446 (2001). Appellants failed to demonstrate that the preliminary injunction issued determines the action with respect to the provisional remedy and

prevents a judgment in their favor in the action. The permanent injunctive relief

requested in the amended complaint remains pending. See E. Cleveland

Firefighters IAFF 500, AFL-CIO v. E. Cleveland, 2017-Ohio-1558, ¶ 9 (8th Dist.)

(reflecting on the procedural history in which it was concluded that “generally a

preliminary injunction maintaining the status quo is an interlocutory order until all

issues are resolved in the case”); Cleveland Clinic Found. v. Orange Technologies,

2014-Ohio-211, ¶ 12 (8th Dist.) (noting that a preliminary injunction is not a final

appealable order when it merely maintains the status quo pending the litigation on

the merits and dismissing the appeal); State ex rel. Pearson v. Moore, 48 Ohio St.3d

37, 38 (1990) (stating the general principle that ordinarily a preliminary injunction

cannot be appealed until the injunction becomes permanent).

Appellants represented a potential harm from imposing the

preliminary injunction, as contemplated under subdivision (B)(4)(b) (appealing

party would not be afforded a meaningful or effective remedy following a final

appeal) because the injunction could prevent Prosvic from contacting current

customers — the issue left for the special master to address in the original

preliminary injunction and an issue further remedied in the modified preliminary

injunction by clarifying that Prosvic could contact existing customers. Appellants

thus have not addressed the impact of the permanent injunction sought in the

amended pleading. Ohio Atty. Gen. v. Lager, 2025-Ohio-5649, ¶ 21 (10th Dist.)

(reiterating that “‘the second prong of R.C. 2505.02(B)(4) cannot be met when the provisional remedy is a preliminary injunction and the ultimate relief sought in the

lawsuit is a permanent injunction’”), quoting Preterm-Cleveland v. Yost, 2022-

Ohio-4540, ¶ 18 (1st Dist.), and Clean Energy Future, L.L.C. v. Clean Energy

Future-Lordstown, L.L.C., 2017-Ohio-9350, ¶ 7 (11th Dist.). Appellants’ arguments

in support of our jurisdiction fail. This appeal should have been dismissed for lack

of appellate jurisdiction. The lack of appellate jurisdiction cannot be ignored solely

based on a preliminary review. In this respect, we are required to revisit the denial

of the appellee’s motion to dismiss, which should have been granted based on

prevailing and controlling authority.

All Foils’ motion to dismiss is reconsidered and granted. This court

never obtained jurisdiction over the matter. That being the case, the trial court’s

modified preliminary injunction, issued the day after this appeal was filed (July 11,

2026), was within the scope of the trial court’s ongoing jurisdiction despite any

preliminary determinations by this court to the contrary.

Dismissed. Absent the granting of a stay of execution, if even

requested, this judgment is to take immediate effect.

It is ordered that appellee recover of appellants cost herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, J., CONCURS; LISA B. FORBES, P.J., DISSENTS WITH SEPARATE OPINION

LISA B. FORBES, P.J., DISSENTING:

Respectfully, I dissent.

I would find that the preliminary-injunction order is final and

appealable under R.C. 2505.03 (authorizing appellate courts to review final orders).

We look to R.C. 2505.02 to ascertain whether an order is final. Pertinent here, “[a]n

order is a final order that may be [appealed] when it is . . . [a]n order that grants or

denies a provisional remedy and to which both of the following apply:

(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.

(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(B)(4).

As an initial matter, we note that “a preliminary injunction is a

provisional remedy.” Doe v. Columbus, 2026-Ohio-1095, ¶ 12, citing

R.C. 2505.02(A)(3) (defining a provisional remedy in part as “a proceeding ancillary

to an action, including, but not limited to, a proceeding for a preliminary injunction.”) In Doe, the Ohio Supreme Court found a preliminary injunction met

both conditions set forth in R.C. 2505.02(B)(4) and was a final, appealable order.

This court has also reviewed appeals from preliminary-injunction orders.

MetroHealth Sys. v. Khandelwal, 2022-Ohio-77 (8th Dist.) (affirming partial grant

of preliminary injunction arising from alleged violation of a contractual noncompete

clause); accord Clifton Steel Co. v. Trinity Equip. Co., 2018-Ohio-2186, ¶ 35 (8th

Dist.) (affirming grant of preliminary injunction arising from alleged violation of a

contractual noncompete clause).

A. Application of the Final Order Statute to this Preliminary Injunction

I would find that this appeal arose from a final order. Regarding the

first prong of the final-order test, under R.C. 2505.02(B)(4)(a), I would find that the

preliminary-injunction order in this case “in effect determines this action” and

“prevents a judgment . . . in favor of the appealing party,” with respect to the

preliminary injunction. In support of its contrary conclusion, the majority cites

cases in which no final order existed because a preliminary injunction merely

maintained the status quo pending litigation on the merits. See, e.g., Orange

Technologies, 2014-Ohio-211, at ¶ 12 (8th Dist.). That is not so here.

The injunction order at issue barred Prosvic from “contacting,

soliciting, or selling to any current or former customer of All Foils, Inc. as identified

on the misappropriated customer list.” (Emphasis added.) Witness testimony

indicated that the All Foils customer list included information about businesses,

including at least Berry Global, with whom Prosvic had a relationship before the list was allegedly misappropriated. The injunction order effectively prevents Prosvic

from contacting its preexisting customers, if those customers happen to be on the

All Foils list. Accordingly, I would find that the injunction order goes beyond

maintaining or restoring the parties to the status quo pending further litigation of

this case.

The majority disputes this conclusion, asserting that it “ignores the

appointment of a special master to compare All Foils’ customer list with Prosvic’s

list for the purpose of enforcing the injunction during the ongoing litigation without

impeding Prosvic’s vested interest in existing clients.” The majority overstates the

special master’s authority under the order. The trial court mandated that the special

master “conduct a forensic comparison of the customer and sales records of Prosvic

and All Foils” and discern what information therein “is relevant to this lawsuit” and

“should be shared between the parties.” The order does not give the special master

any discretion, based on his or her forensic review of customer and sales records, to

affect the blanket prohibitions the court imposed on Prosvic. That is, the order does

not authorize the special master to permit Prosvic to do business with a customer

with whom Prosvic had a relationship and means of contacting before the All Foils

list was allegedly misappropriated, if that customer appears on the list.

I would also find that the second prong of the final-order test was

satisfied here, that is, that Appellants are not afforded a meaningful or effective

remedy by an appeal following final judgment, under R.C. 2505.02(B)(4)(b). In

Doe, the Court found this criterion of the final appealable order test to be satisfied “[c]onsidering the irreparable harm that is inflicted when a court wrongly enjoins”

certain actions.1 Doe, 2026-Ohio-1095 at ¶ 16. (Emphasis added.) Ohio courts have

found irreparable harm to support a grant of injunctive relief based on the threat of

lost customers and customer goodwill. See ITS Fin., L.L.C. v. Gebre, 2014-Ohio-

2205, ¶ 26 (2d Dist.) (Court did not abuse its discretion in finding irreparable harm

to support preliminary injunction order, in part because “there is a difference

between the ability to calculate the amount of payments” a plaintiff was due and “the

unquantifiable damages resulting from loss of customers, goodwill and trade

secrets.”).2 See also Alan v. Andrews, 2007-Ohio-2608, ¶ 53 (7th Dist.) (“A

company is also irreparably harmed when an employee attempts to start his own

business by taking away the customers he serviced while employed by the employer

and by using the employer’s own customer lists to build that new business.”).

Appellants presented evidence that they would suffer irreparable harm from lost

customers and customer goodwill absent appeal from the preliminary injunction

order. Again, the order barred Prosvic from contacting customers that, according to

testimony, the company had relationships with before the alleged misappropriation

of the customer list.

1 The injunction in Doe prevented a municipality from enforcing a municipal

ordinance and did not pertain to misuse of a trade secret. 2 These findings concerned the merits of an injunction order and did not directly

address whether the order was final and appealable. I also disagree with the majority’s conclusion, citing Lager, 2025-

Ohio-5649 (10th Dist.), that a preliminary injunction is not a final order where the

ultimate relief sought in the lawsuit is a permanent injunction. That case

acknowledged “three different ‘strands of Ohio caselaw’ addressing the

R.C. 2505.02(B)(4)(b) requirement” with regard to provisional remedies. Id. at

¶ 21. Among them was the “status quo” test, which this district has employed, and

which, as discussed above, was not satisfied here. A blanket prohibition on

appealing a preliminary injunction that does not preserve the status quo, where

permanent injunction is also sought, creates the risk that a wrongfully enjoined

party will suffer unreviewable and irreparable harm while awaiting the trial court’s

ultimate decision. I would not adopt such a prohibition.

B. The Preliminary Injunction Order’s Lack of a Surety Bond

The majority concludes that the trial court’s failure to impose a surety

bond under Civ.R. 65(C) renders this case nonjusticiable on appeal. I disagree.

Citing to cases involving contempt proceedings, the majority asserts that the

absence of a surety bond is pertinent to the enforcement of a preliminary injunction.

On this basis, the majority concludes that, since this proceeding arises from the

imposition of the order, rather than from an attempt to enforce it, the surety bond

issue is not ripe for review. But, Ohio courts, including this one, have considered

the absence of a surety bond from an injunction order within a challenge to the

imposition of the order, rather than to its enforcement. See Kyrkos v. Superior

Beverage Group, Ltd., 2013-Ohio-4597, ¶ 26, 32 (8th Dist.) (finding trial court abused its discretion in granting preliminary injunction absent evidence of

irreparable harm and where adequate legal remedy existed; finding no abuse of

discretion in denial of request for $500,000 bond, where the court set a bond

amount only after it issued the injunction order that was the subject of the appeal).

See also Back v. Faith Props., LLC, 2002-Ohio-6107, ¶ 21, 23-25, 36 (12th Dist.) (no

error regarding surety bond where the court did not specifically state that “$500

posted by appellees with respect to [a temporary restraining order] would carry over

to the preliminary injunction”; applying four-factor preliminary injunction standard

and finding no error in grant of Appellees’ motion for injunction order).

C. The Trial Court’s Attempt to Modify the Preliminary Injunction Order After the Initiation of This Appeal

Finally, I would find that the original preliminary injunction order

remained final and appealable despite the trial court’s attempt to modify that order

by issuing a journal entry after the notice of appeal was filed. I would find that the

trial court lost jurisdiction over this case once Appellants filed the notice of appeal

of the preliminary injunction order that did not simply maintain the status quo. It

is well settled that “[o]nce an appeal is perfected, the trial court is divested of

jurisdiction over matters that are inconsistent with the reviewing court’s jurisdiction

to reverse, modify, or affirm the judgment.” State ex rel. Electronic Classroom of

Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 2011-Ohio-626; accord

Brisbane v. Swagelok Co., 2025-Ohio-1450, ¶ 30 (8th Dist.) (“The filing of a notice

of appeal divests a trial court of jurisdiction.”). When a trial court enters a judgment

without jurisdiction, the judgment is void. State v. Hudson, 2020-Ohio-3849, ¶ 11. The trial court attempted to revise its injunction order by journal

entry issued on July 11, 2025. Appellants had filed a notice of appeal on July 10,

2025, making the journal entry purporting to revise the injunction order a nullity. I

would find that the July 11, 2025 journal entry has no bearing on whether the

original preliminary-injunction order is a final order or on our ability to consider

this appeal.

In light of the foregoing, I dissent from the majority’s dismissal of this

case for lacking a final appealable order. I would address the merits of Appellants’

assignments of error.