By Carol McIntire
December 21, 2012
Acting Judge Linton D. Lewis has denied a preliminary injunction that would have closed down Atwood Resort and Golf Club.
In a judgment entry filed Dec. 21 in Carroll County Common Pleas Court, Lewis said the plaintiffs, Don and Robin Warner, on behalf of the investors of Days Inn Carrollton and taxpayers of Carroll County, failed to meet the requirements for a preliminary injunction.
“A preliminary injunction is an extraordinary remedy that should only be granted if the movant carries his or her burden of persuasion,” Linton wrote.
The four requirements that must be shown by “clear and convincing evidence” include:
1. A substantial likelihood the plaintiff will prevail on the merits;
2. The plaintiff will suffer irreparable injury if the injunction is not granted;
3. No parties will be unjustifiably harmed if the injunction is granted; and
4. The public interest will be served by the injunction.
Lewis said the defendants, Carroll County Commissioners, Radius Hospitality and the Muskingum Watershed Conservancy District, rely on the Ohio Revised Code and Ohio Constitution for acceptance of the gift (Atwood Resort and nearly 500 acres of land) and the authority to operate it.
“This court finds said authority to be persuasive and does not find there is a substantial likelihood the plaintiffs (Warners) will prevail on the merits,” Lewis wrote.
He also noted the Warners failed to provide clear and convincing evidence they will suffer irreparable harm if the judgment is not granted, stating in fact, that the granting of the injunction would result in unjustifiable harm to Radius Hospitality.
He said the public interest would not be served by granting the injunction because the $2.2 million the county received is contingent upon those funds being used on the lodge properties and, if the facility was shut down, it would result in the loss of jobs and be detrimental to tourism and the local commerce.
Linton said he will address the other issues in the lawsuit; that county commissioners are not permitted to own and operate or lease a hotel; the agreement with the MWCD is illegal and commissioners are illegally spending taxpayer money to renovate the facility, in a separate judgment entry.