State ex rel. The V Cos. v. Marshall

[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 467.]

THE STATE EX REL. THE V COMPANIES ET AL., APPELLEES, v. MARSHALL, CTY.

AUD., APPELLANT.

[Cite as State ex rel. The V Cos. v. Marshall, 1998-Ohio-329.]

Mandamus to compel Jefferson County Auditor to issue a warrant to the county

treasurer for funds owed by the county to relator for services in connection

with the construction of the Jefferson County Joint Justice Facility granted,

when—Civil procedure—Discovery improper when Rules of Civil

Procedure not complied with—Summary judgment—Civ.R. 56, applied.

(No. 97-726—Submitted February 17, 1998—Decided April 22, 1998.)

APPEAL from the Court of Appeals for Jefferson County, No. 96-JE-49.

__________________

{¶ 1} In October 1995, appellees, The V Companies, f.k.a. The Voinovich

Companies, and VS Architects, Inc., f.k.a. Voinovich-Sgro Architects, Inc. (“V

Group”), entered into a contract with Jefferson County, in which V Group agreed

to provide certain services in connection with the construction of a jail known as

the Jefferson County Joint Justice Facility. The Jefferson County Board of

Commissioners (“board”) approved and executed the contract. Under the contract,

the county agreed to pay the V Group a monthly amount of $26,714 for certain

basic services, as well as an additional sum for other services.

{¶ 2} The V Group provided the services specified in the contract in good

faith and with the expectation that it would be compensated as provided by the

contract. The V Group submitted invoices to Jefferson County for the services

rendered by it under the contract for the months of June 1996 through December

1996. These invoices totaled $165,079.25. The board authorized payment of the

invoices. Despite the board’s authorization, appellant, Jefferson County Auditor

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John Patrick Marshall, refused to issue warrants to the Jefferson County Treasurer

to pay the invoices.

{¶ 3} In December 1996, the V Group filed a complaint in the Court of

Appeals for Jefferson County. In its complaint, as subsequently amended, the V

Group requested a writ of mandamus to compel Marshall to issue a warrant to the

county treasurer for $165,079.25 plus interest for the funds owed by the county to

the V Group.

{¶ 4} A few days after being served with the V Group’s complaint, Marshall

filed a notice to take an oral deposition of Paul Voinovich, President and Chief

Executive Officer of the V Group, in January 1997. The notice was served on the

V Group’s attorney. The V Group notified Marshall that Voinovich would not

appear for the deposition because, among other reasons, his testimony was

irrelevant and not reasonably calculated to lead to any relevant evidence in the

mandamus action. Marshall filed a motion to compel the V Group to comply with

the noticed deposition and also requested that the court of appeals stay further

proceedings until the V Group complied with the deposition. The V Group filed a

motion for an order quashing the notice of deposition or, in the alternative, for a

protective order. The V Group argued, among other things, that Marshall had failed

to issue a subpoena to Voinovich for his deposition. The court of appeals did not

rule on these discovery motions.

{¶ 5} In December 1996, the court of appeals issued an alternative writ of

mandamus commanding Marshall to act on the claim or show cause why he had

not acted. Marshall filed a “motion to dismiss and answer to [the] ‘show cause’

order.” In Marshall’s Civ.R. 12(B)(6) motion to dismiss for failure to state a claim

upon which relief can be granted, he referred to documents attached to his motion

that were not contained in the V Group’s pleading. The attachments included two

affidavits, a January 13, 1997 board resolution purporting to rescind any prior board

resolutions authorizing payment to the V Group, and a January 10, 1997 complaint

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filed in the common pleas court by Jefferson County Prosecuting Attorney Stephen

M. Stern, alleging that the contract between the V Group and Jefferson County was

void and that the V Group had breached the contract. Neither the resolution nor the

complaint was sworn, certified, or incorporated by reference in an affidavit.

{¶ 6} In February 1997, the V Group filed a motion for summary judgment

and memorandum in opposition to Marshall’s motion to dismiss. The V Group

supported its motion with affidavits and certified exhibits referenced in the

affidavits. It also asserted that Marshall’s motion must be treated as a Civ.R. 56

motion for summary judgment because it presented matters outside the V Group’s

pleading. Marshall then filed responses in which he stated that he did not object to

his motion to dismiss being treated as a motion for summary judgment provided

that he was first given the opportunity to conduct discovery pursuant to the Rules

of Civil Procedure. The V Group asserted that the court of appeals could consider

only the evidence specified in Civ.R. 56 and that Marshall had failed to support his

motion or refute the V Group’s motion for summary judgment with appropriate

summary judgment evidence.

{¶ 7} In April 1997, the court of appeals granted the V Group’s motion for

summary judgment and issued a writ of mandamus to compel Marshall to prepare

and issue warrants to the county treasurer for payment of the invoices plus interest.

The court of appeals also converted Marshall’s Civ.R. 12(B)(6) motion to dismiss

into a Civ.R. 56 motion for summary judgment and denied the motion. The court

of appeals considered the exhibits attached to Marshall’s dismissal motion in its

summary judgment determination.

{¶ 8} This cause is now before the court upon Marshall’s appeal as of right.

__________________

Synenberg & Marein, Roger M. Synenberg and Mary Jo Tipping; Sommer,

Liberati, Shaheen & Hoffman and Michael J. Shaheen, for appellees.

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Stephen M. Stern, Jefferson County Prosecuting Attorney, and Joshua J.

Sacks, Assistant Prosecuting Attorney, for appellant.

__________________

Per Curiam.

Discovery

{¶ 9} Marshall asserts in his second proposition of law that the court of

appeals committed reversible error by failing to make any rulings on discovery

issues and by not permitting Marshall to proceed with discovery.

{¶ 10} As the parties concede, the court of appeals did not expressly rule on

Marshall’s motion to compel the V Group to comply with the noticed deposition of

Voinovich. Nevertheless, when a trial court fails to rule on a pretrial motion, it may

ordinarily be presumed that the court overruled it. State ex rel. Cassels v. Dayton

City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223, 631 N.E.2d 150, 155;

Newman v. Al Castrucci Ford Sales (1988), 54 Ohio App.3d 166, 561 N.E.2d 1001.

From the court of appeals’ judgment, it may be presumed that the court overruled

Marshall’s motion to compel Voinovich’s deposition.

{¶ 11} Marshall essentially contends that overruling his motion to compel

constituted reversible error. But absent an abuse of discretion, an appellate court

must affirm a trial court’s disposition of discovery issues. Carpenter v. Reis (1996),

109 Ohio App.3d 499, 507, 672 N.E.2d 702, 707-708; Toney v. Berkemer (1983),

6 Ohio St.3d 455, 458, 6 OBR 496, 498, 453 N.E.2d 700, 702. An abuse of

discretion connotes an unreasonable, arbitrary, or unconscionable decision. State

ex rel. Askew v. Goldhart (1996), 75 Ohio St.3d 608, 610, 665 N.E.2d 200, 202.

{¶ 12} The court of appeals did not abuse its discretion by effectively

overruling Marshall’s motion to compel Voinovich’s deposition and granting the V

Group’s motion to quash the notice of deposition. First, Marshall failed to

subpoena Voinovich for the deposition. Civ.R. 30(A) provides that the attendance

of a non-party witness deponent should be compelled by the use of subpoena as

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provided by Civ.R. 45. Fletcher v. Bolz (1987), 35 Ohio App.3d 129, 131, 520

N.E.2d 22, 24; Randle v. Gordon (Oct. 29, 1987), Cuyahoga App. No. 52961,

unreported, 1987 WL 19275. Second, if Marshall’s notice of deposition was

actually for the V Group rather than Voinovich, then he had no right to designate

Voinovich as the deponent to testify on the V Group’s behalf. Civ.R. 30(B)(5) (“A

party, in the party’s notice, may name as the deponent a public or private

corporation * * * and designate with reasonable particularity the matters on which

examination is requested. The organization so named shall choose one or more of

its proper employees, officers, agents, or other persons duly authorized to testify on

its behalf.”). Marshall’s notice also did not designate with reasonable particularity

the matters on which his examination was requested.

{¶ 13} In addition, despite Marshall’s contentions on appeal, the court of

appeals did not prohibit him from conducting discovery pursuant to the Civil Rules.

The record indicates that the only discovery attempted by Marshall was

Voinovich’s deposition. That discovery, however, was improper because Marshall

did not comply with the Civil Rules, i.e., Civ.R. 30 and 45.

{¶ 14} Therefore, Marshall’s second proposition of law lacks merit and is

overruled.

Notice of Conversion of Civ.R. 12(B)(6) Motion

{¶ 15} Marshall asserts in his first proposition of law that the court of

appeals erred by failing to give notice to the parties that it was converting his Civ.R.

12(B)(6) motion to dismiss into a Civ.R. 56 motion for summary judgment.

{¶ 16} Civ.R. 12(B) provides:

“When a motion to dismiss for failure to state a claim upon which relief can

be granted presents matters outside the pleading and such matters are not excluded

by the court, the matters shall be treated as a motion for summary judgment and

disposed of as provided in Rule 56. Provided, however, that the court shall consider

only such matters outside the pleadings as are specifically enumerated in Rule 56.

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All parties shall be given reasonable opportunity to present all materials made

pertinent to such a motion by Rule 56.” (Emphasis added.)

{¶ 17} Under Civ.R. 12(B) and 56(C), a court must notify all parties at least

fourteen days before the time fixed for hearing when it converts a motion to dismiss

for failure to state a claim into a motion for summary judgment. Petrey v. Simon

(1983), 4 Ohio St.3d 154, 4 OBR 396, 447 N.E.2d 1285, paragraphs one and two

of the syllabus; Civ.R. 56(C) (“The motion shall be served at least fourteen days

before the time fixed for hearing.”). “ ‘The primary vice of unexpected conversion

to summary judgment is that it denies the surprised party sufficient opportunity to

discover and bring forward factual matters [that] may become relevant only in the

summary judgment, and not the dismissal, context.’ ” Petrey, 4 Ohio St.3d at 155,

4 OBR at 398, 447 N.E.2d at 1287, quoting Portland Retail Druggists Assn. v.

Kaiser Found. Health Plan (C.A.9, 1981), 662 F.2d 641, 645, analyzing

comparable provisions of Fed.R.Civ.P. 12(b). The surprised party is generally the

nonmoving party. Id. at 155, 4 OBR at 397-398, 447 N.E.2d at 1286-1287.

{¶ 18} Based on Petrey, the court of appeals erred in converting Marshall’s

Civ.R. 12(B)(6) motion to dismiss into a Civ.R. 56 motion for summary judgment

without notifying the parties. See, also, State ex rel. Boggs v. Springfield Local

School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 96, 647 N.E.2d 788, 791.

{¶ 19} Nevertheless, for the reasons that follow, this error was harmless.

First, Marshall invited any error by the court of appeals. Under the invited-error

doctrine, a party will not be permitted to take advantage of an error that he himself

invited or induced the trial court to make. State ex rel. Fuqua v. Alexander (1997),

79 Ohio St.3d 206, 208, 680 N.E.2d 985, 987; see, also, Levesque v. Miles

(D.N.H.1993), 816 F.Supp. 61, 63 (Conversion of motion to dismiss without notice

was appropriate because “plaintiffs * * * appeared to invite the defendants to submit

information outside the pleadings * * *.”). In his brief in response to the V Group’s

motion for summary judgment, Marshall stated that he did not object to his motion

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to dismiss being treated as a motion for summary judgment if he was “first provided

the opportunity to conduct discovery as authorized by the Civil Rules.” But, as

previously noted, the court of appeals did not deny Marshall the right to conduct

appropriate discovery. Instead, the only discovery the court precluded,

Voinovich’s deposition, was not authorized by the Civil Rules because Marshall’s

notice of deposition did not comply with Civ.R. 30 and 45. Because the court of

appeals did not preclude Marshall’s opportunity to conduct discovery, Marshall

invited the court to convert the motion to dismiss to a motion for summary

judgment.

{¶ 20} More important, the V Group timely served its own motion for

summary judgment, which was dispositive of the case. Marshall had more than

two months until the court’s decision to respond to the V Group’s summary

judgment motion with appropriate evidence. See Bohac v. West (C.A.7, 1996), 85

F.3d 306, and Goyette v. DCA Advertising, Inc. (S.D.N.Y.1993), 830 F.Supp. 737,

both holding that, under certain circumstances, the failure to provide parties with

prior notice and a reasonable opportunity to present evidence when a court converts

a motion to dismiss to a motion for summary judgment does not constitute

prejudicial error; see, generally, 5A Wright & Miller, Federal Practice and

Procedure (1990) 506, Section 1366 (“[T]here is authority for the notion that the

absence of formal notice will be excused when it is harmless or the parties were

otherwise apprised of the conversion.”); cf. State ex rel. Baran v. Fuerst (1990), 55

Ohio St.3d 94, 97, 563 N.E.2d 713, 716-717 (failure to notify parties of conversion

was not harmless because summary judgment was inappropriate when genuine

issues of material fact still existed).

{¶ 21} Contrary to Marshall’s contention on appeal, the court of appeals

was not required to give him fourteen days notice of the date it would rule on the

V Group’s summary judgment motion. State ex rel. Freeman v. Morris (1992), 65

Ohio St.3d 458, 460-461, 605 N.E.2d 27, 29; Gates Mills Invest. Co. v. Pepper Pike

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(1978), 59 Ohio App.2d 155, 164, 13 O.O.3d 191, 196, 392 N.E.2d 1316, 1322-

1323. Marshall was properly served with a copy of the V Group’s motion more

than fourteen days before the date that the court issued the entry granting the

motion. Marshall does not claim that the V Group’s summary judgment motion

was improperly converted from a motion to dismiss. In fact, there was no V Group

motion to dismiss to convert.

{¶ 22} Finally, the preeminent purpose behind the conversion-notification

requirement, i.e., permitting the nonmoving party sufficient opportunity to respond

to a converted summary judgment motion, is satisfied by the court of appeals’

judgment. Petrey, 4 Ohio St.3d at 155, 4 OBR at 398, 447 N.E.2d at 1287.

Marshall had sufficient notice and opportunity to respond to the V Group’s

summary judgment motion, which disposed of the case. Marshall did not

effectively object to the court of appeals’ converting his own motion to dismiss into

a motion for summary judgment.

{¶ 23} Therefore, we overrule Marshall’s first proposition of law.

Mandamus: Adequate Remedy

{¶ 24} Marshall asserts in his third proposition of law that the court of

appeals erred in granting the writ of mandamus because the V Group had an

adequate remedy in the ordinary course of law by a civil action alleging breach of

contract, like the pending action brought by the Jefferson County Prosecuting

Attorney against the V Group in common pleas court. A writ of mandamus will

not be issued if there exists a plain and adequate remedy in the ordinary course of

law. R.C. 2731.05; State ex rel. Toledo Metro Fed. Credit Union v. Ohio Civ.

Rights Comm. (1997), 78 Ohio St.3d 529, 530, 678 N.E.2d 1396, 1397.

{¶ 25} Marshall’s assertion is meritless. The V Group’s mandamus action

was not premised solely on a breach of contract. Instead, it was premised on

Marshall’s duty under R.C. 319.16 as a county auditor to issue warrants on the

county treasurer for payment of claims against the county. Underlying public duties

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having their basis in law may be compelled by a writ of mandamus. State ex rel.

Levin v. Schremp (1995), 73 Ohio St.3d 733, 735, 654 N.E.2d 1258, 1260. A breach

of contract action is not a plain and adequate remedy in the ordinary course of law

that precludes issuance of a writ of mandamus if relator is being damaged not solely

by a breach of contract, but also by a failure of public officers to perform official

acts that they are under a clear legal duty to perform. State ex rel. Ms. Parsons

Constr., Inc. v. Moyer (1995), 72 Ohio St.3d 404, 406-407, 650 N.E.2d 472, 474;

State ex rel. Montrie Nursing Home, Inc. v. Aggrey (1978), 54 Ohio St.2d 394, 397,

8 O.O.3d 401, 403, 377 N.E.2d 497, 499.

{¶ 26} Thus, we overrule Marshall’s third proposition of law.

Summary Judgment

{¶ 27} In Marshall’s fourth and final proposition of law, he asserts that the

court of appeals erred in granting summary judgment in favor of the V Group and

issuing the writ of mandamus because the submitted materials establish genuine

issues of material fact.

{¶ 28} Before summary judgment may be granted, it must be determined

that (1) no genuine issue as to any material fact remains to be litigated, (2) the

moving party is entitled to judgment as a matter of law, and (3) it appears from the

evidence that reasonable minds can come to but one conclusion, and viewing that

evidence most strongly in favor of the nonmoving party, that conclusion is adverse

to the party against whom the motion for summary judgment is made. Mootispaw

v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197, 1199.

{¶ 29} Marshall contends that the January 13, 1997 board resolution

purporting to rescind any prior board resolutions authorizing payment of the V

Group invoices and the prosecuting attorney’s January 10, 1997 complaint filed in

common pleas court, both of which were attached to Marshall’s motion to dismiss,

created genuine issues of material fact that precluded the entry of summary

judgment in favor of the V Group.

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{¶ 30} As noted by the V Group, however, these documents could not be

considered by the court of appeals in its Civ.R. 56 determination. After converting

a motion to dismiss into a motion for summary judgment, the court is required under

Civ.R. 12(B) to consider “only such matters outside the pleadings as are specifically

enumerated in Rule 56.” State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d

107, 109, 579 N.E.2d 702, 703. Under Civ.R. 56(C), a court determining a

summary judgment motion must consider only “the pleadings, depositions, answers

to interrogatories, written admissions, affidavits, transcripts of evidence in the

pending case, and written stipulations of fact, if any, timely filed in the action * *

*.” Boggs, 72 Ohio St.3d at 97, 647 N.E.2d at 792. The V Group specifically

objected to the court of appeals considering anything other than the evidence

specified in Civ.R. 56(C). Cf. State ex rel. Spencer v. E. Liverpool Planning Comm.

(1997), 80 Ohio St.3d 297, 301, 685 N.E.2d 1251, 1254-1255, citing Bowmer v.

Dettelbach (1996), 109 Ohio App.3d 680, 684, 672 N.E.2d 1081, 1084 (“While the

court of appeals may consider evidence other than that listed in Civ.R. 56 when

there is no objection, it need not do so.”). (Emphasis added.) Neither the January

13, 1997 resolution nor the January 10, 1997 common pleas court complaint was

sworn or certified and incorporated into an attached affidavit filed in the court of

appeals.1 Freeman, 62 Ohio St.3d at 109, 579 N.E.2d at 703; Boggs, 72 Ohio St.3d

at 97, 647 N.E.2d at 792; Wall v. Firelands Radiology, Inc. (1995), 106 Ohio

App.3d 313, 336, 666 N.E.2d 235, 250 (“Civ.R. 56[E] requires the attachment to

the affidavit of an exhibit ‘referenced’ by an affidavit.”).

1. Although the court of appeals erroneously considered these documents in its Civ.R. 56

determination, it did not err in entering summary judgment. See, e.g., State ex rel. Athens Cty. Bd.

of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors (1996),

75 Ohio St.3d 611, 616, 665 N.E.2d 202, 207 (“A reviewing court is not authorized to reverse a

correct judgment merely because erroneous reasons were assigned as a basis thereof.”).

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{¶ 31} The evidence that was properly before the court of appeals in its

summary judgment determination established the V Group’s entitlement to the

preparation and issuance of the requested warrant.

{¶ 32} R.C. 319.16 provides:

“The county auditor shall issue warrants on the county treasurer for all

moneys payable from the county treasury, upon presentation of the proper order or

voucher and evidentiary matter for the moneys, and keep a record of all such

warrants showing the number, date of issue, amount for which drawn, in whose

favor, for what purpose, and on what fund. The auditor shall not issue a warrant

for the payment of any claim against the county, unless it is allowed by the board

of county commissioners * * *. If the auditor questions the validity of an

expenditure that is within the available appropriations and for which a proper

order or voucher and evidentiary matter is presented, the auditor shall notify the

board, officer, or tribunal who presented the voucher. If the board, officer, or

tribunal determines that the expenditure is valid and the auditor continues to refuse

to issue the appropriate warrant on the county treasury, a writ of mandamus may be

sought. The court shall issue a writ of mandamus for issuance of the warrant if the

court determines that the claim is valid.” (Emphasis added.)

{¶ 33} Marshall introduced no Civ.R. 56 evidence that he invoked his

limited statutory authority to question the validity of the board’s orders authorizing

payment of the V Group’s invoices by notifying the board.2 Marshall lacked

authority to simply refuse to follow the board’s orders because of his own belief

that the contract was void or had been breached. Cf. State ex rel. Ms. Parsons

2. Marshall did file two affidavits that asserted that the V Group never submitted one of the invoices

to the county for payment and that the specific fund for payment of jail construction expenses had

no money as of January 1997. But after the V Group introduced Civ.R. 56 evidence establishing

that the board approved the subject invoice for payment, Marshall abandoned his first contention.

In addition, Marshall does not specifically assert on appeal that the fund is still exhausted or that

any exhaustion of the fund creates a genuine issue of material fact. Therefore, the court need not

consider these issues on appeal.

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Constr., Inc. (city auditor had duty to make payment approved by appropriate city

officials for claim on a public contract because auditor did not invoke her limited

statutory discretion to obtain evidence); State ex rel. Tele-Communications, Inc. v.

McCormack (1988), 44 Ohio App.3d 49, 50, 541 N.E.2d 483, 484 (“[T]he county

auditor is not called to pass upon the merits or the appropriateness of the awards

made by the board of county commissioners.”); State ex rel. Bitucote Hartex Co. v.

Westenbaker (App.1937), 26 Ohio Law Abs. 564, 565 (“No claim could be made

that the County Auditor, in the first instance, independent of the Board of

Commissioners, could either allow or reject any claim founded upon contracts.”).

{¶ 34} Accordingly, we overrule Marshall’s fourth proposition of law.

{¶ 35} Based on the foregoing, the court of appeals did not err in entering

summary judgment in favor of the V Group and issuing the writ of mandamus.

Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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