State Ex Rel. Hanson v. Guernsey County Board of Commissioners

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The State ex rel. Hanson, d.b.a. Franklin Excavating,

Inc., Appellant, v. Guernsey County Board of Commissioners,

Appellee.

[Cite as State ex rel. Hanson v. Guernsey Cty. Bd. of

Commrs. (1992), Ohio St.3d .]

Mandamus -- Civ.R. 12(B)(6) motion to dismiss improperly used

by court when court uses the motion to summarily review

the merits of relator's claim and to prematurely dispose

of the case.

(No. 91-2353 -- Submitted November 24, 1992 -- Decided

December 30, 1992.)

Appeal from the Court of Appeals for Guernsey County, No.

91-CA-08.

In December 1990, Steven Hanson, d.b.a. Franklin

Excavating, Inc. ("Hanson"), relator-appellant, submitted a bid

to the Guernsey County Board of County Commissioners ("board"),

appellee, to construct a sanitary sewer for a subdivision in

Cambridge, Ohio. On January 16, 1991, the board awarded the

sewer contract to Ms. Parsons Construction, Inc. ("Parsons").

Parsons' bid was approximately $5,000 higher than Hanson's, but

the board determined Parsons' bid to be the lowest and best.

Hanson filed a complaint in the Court of Appeals for

Guernsey County, seeking a writ of mandamus to compel the board

to either award his company the sewer contract, or pay the

company "wages, benefits, interest and/or profits" lost due to

the rejection of its bid. Hanson attached to his complaint the

board's notice to bidders, his bid, Parsons' bid, the criteria

used to evaluate the bids, and a letter advising him that

Parsons had been awarded the contract. His complaint alleged

that the board had failed to award the contract to the lowest

and best bidder pursuant to R.C. 307.90.

The court of appeals initially granted Hanson's request

for an alternative writ, ordering the board to show cause on

June 21, 1991 why the peremptory writ should not issue. In

lieu of an answer, the board filed a motion to dismiss the

complaint pursuant to Civ.R. 12(B)(6) (failure to state a claim

upon which relief can be granted), but argued that Hanson had

not proved the prerequisites for a writ of mandamus to issue.

The board submitted evidence with its motion, including an

affidavit explaining the board's review of the bids, the

resolution awarding the contract to Parsons, and minutes of a

meeting at which the board told Hanson why it rejected his bid.

Hanson opposed the motion to dismiss and filed an amended

complaint on July 31, 1991. His amended complaint contained

these new allegations, among others:

"Contrary to the fourteen (14) items listed by the [board]

as the criteria that [the board] would follow in making a

determination as to whether a bid was the 'lowest and best'

bid, [the board] considered other criteria without prior notice

to the bidders in reaching its decision not to grant the bid to

[Hanson], including, but not limited to, considerations of

[Hanson's] corporate or non-corporate status, whether [Hanson]

owned or rented his equipment, and whether [Hanson's] start-up

costs (though not total costs) were higher than other bidders."

The board responded to the amended complaint on August 27,

1991 by filing a second motion to dismiss that restated the

argument made in its first motion. Hanson represents that he

was not served with and did not know of this filing. On

September 26, 1991, the court of appeals granted the board's

first motion and dismissed the complaint as initially filed.

The court held, in part:

"Ohio law is well-settled that [the board] has discretion

to determine who is the lowest and best bidder. Mandamus does

not lie to reverse an administrative official's discretionary

decision, unless the facts demonstrate that the official abused

his discretion, see State ex rel. Board of Education v. State

Department of Education (1981), 67 Ohio St.2d 126 [21 O.O.3d

79, 423 N.E.2d 174].

"Our review of the record leads us to conclude that

[Hanson] has not alleged sufficient facts to demonstrate an

abuse of discretion."

On October 7, 1991, Hanson asked for leave to file a

second amended complaint, which contained additional

allegations discovered during depositions, and moved for

"reconsideration and/or reinstatement of the amended

pleadings." Hanson argued that the court had not applied the

proper standard of review for Civ.R. 12(B)(6) motions. On

October 28, 1991, he filed notice of his appeal to this court.

Nearly two months later, the court of appeals overruled his

motion, holding:

"This action was commenced as an original action in this

court, and the civil rules do not permit motions for

reconsideration of a final judgment of a trial court * * *.

[Citations omitted.]

"[Hanson] alternatively requests that we clarify our entry

of September 26, 1991 so that it is clear that only his

original pleadings were dismissed, and not his first amended

complaint. This court actually dismissed the action in toto.

"Finally, [Hanson] moved this court for leave to file his

second amended complaint, alleging new evidence and a new cause

of action. Because we have previously dismissed this cause, no

amended complaint can be filed herein."

The cause is before this court upon an appeal as of right.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A.,

Ronald G. Macala and Randall Vehar, for appellant.

C. Keith Plummer, Prosecuting Attorney, for appellee.

Per Curiam. Two questions are presented for our review.

First, did the court of appeals err by denying the writ of

mandamus on the board's Civ.R. 12(B)(6) motion? Second, should

a writ of mandamus be granted? For the reasons that follow, we

hold that the court of appeals improperly used the motion to

dismiss to summarily review the merits of Hanson's claim and to

prematurely dispose of this case. Moreover, to resolve whether

Hanson has sustained his burden of proof on this record would

compound the court's error. Accordingly, we reverse and remand.

Motion to Dismiss

A motion to dismiss for failure to state a claim upon

which relief can be granted is procedural and tests the

sufficiency of the complaint. Assn. for the Defense of the

Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d

116, 117, 537 N.E.2d 1292, 1293. Thus, the movant may not rely

on allegations or evidence outside the complaint; otherwise,

the motion must be treated, with reasonable notice, as a Civ.R.

56 motion for summary judgment. Civ.R. 12(B); State ex rel.

Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio

St.3d 98, 99, 562 N.E.2d 1383, 1384. Even then, only certain

forms of evidence may be submitted to support the motion. Civ.

R. 56(C).

The standard for reviewing the sufficiency of a mandamus

complaint was stated in State ex rel. Alford v. Willoughby

(1979), 58 Ohio St.2d 221, 223, 12 O.O.3d 229, 230, 390 N.E.2d

782, 785:

"In construing a complaint upon a motion to dismiss for

failure to state a claim, the material allegations of the

complaint are taken as admitted. Jenkins v. McKeithen (1969),

395 U.S. 411, 421 [89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416].

[All reasonable inferences must also be drawn in favor of the

nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio

St.3d 190, 192, 532 N.E.2d 753, 756; Byrd v. Faber (1991), 57

Ohio St.3d 56, 60, 565 N.E.2d 584, 589.] Then, before the

court may dismiss the complaint, '* * * it must appear beyond

doubt from the complaint that the plaintiff can prove no set of

facts entitling him to recovery. * * *' O'Brien v. University

Community Tenants Union (1975), 42 Ohio St.2d 242 [71 O.O.2d

223, 327 N.E.2d 753].

"In order to establish a claim in mandamus, it must be

proved that there exists a clear legal duty plain and to act on

the part of a public officer or agency, and that the relator

has no adequate remedy in the ordinary course of the law.

State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d

141 [40 O.O.2d 141, 228 N.E.2d 631], paragraph one of the

syllabus. A complaint in mandamus states a claim if it alleges

the existence of the legal duty and the want of an adequate

remedy at law with sufficient particularity so that the

respondent is given reasonable notice of the claim asserted."

Accord State ex rel. Bush v. Spurlock (1989), 42 Ohio

St.3d 77, 80-81, 537 N.E.2d 641, 644-645, and State ex rel.

Baran v. Fuerst (1990), 55 Ohio St.3d 94, 96-97, 563 N.E.2d

713, 715-716.

This standard is consistent with Civ.R. 8(A), which

provides for notice pleading and requires only (1) "a short and

plain statement of the claim showing that the pleader is

entitled to relief, and (2) a demand for judgment for the

relief to which he deems himself entitled." Thus, to survive a

motion to dismiss for failure to state a claim upon which

relief can be granted, a pleader is ordinarily not required to

allege in the complaint every fact he or she intends to prove;

such facts may not be available until after discovery. York v.

Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144-145,

573 N.E.2d 1063, 1065.

The standard of review for Civ.R. 12(B)(6) motions is also

consistent with Civ.R. 15(A), which allows a pleader to rectify

a poorly pleaded complaint. If a motion for failure to state a

claim is sustained, "leave to amend the pleading should be

granted unless the court determines that allegations of other

statements or facts consistent with the challenged pleading

could not possibly cure the defect." McCormac, Ohio Civil

Rules of Practice (2 Ed.1992) 150, Section 6.20. Civ.R. 15(A)

provides:

"A party may amend his pleading once as a matter of course

at any time before a responsive pleading is served or, if the

pleading is one to which no responsive pleading is permitted

and the action has not been placed upon the trial calendar, he

may so amend it at any time within twenty-eight days after it

is served. Otherwise a party may amend his pleading only by

leave of court or by written consent of the adverse party."

Hanson asserts that he was entitled under this rule to

amend his complaint because a motion to dismiss is not a

responsive pleading. We agree. Under Civ.R. 7(A), only

complaints, answers and replies constitute pleadings.

Moreover, the provisions for amending are complemented by

Civ.R. 12(A)(2)(b), which states:

"* * * The service of a motion permitted under this rule

alters * * * [the twenty-eight day answer and reply periods] as

follows, unless a different time is fixed by order of the

court: * * * if the court grants a motion, a responsive

pleading, delayed because of service of the motion, shall be

served within fourteen days after service of the pleading which

complies with the court's order." (Emphasis added.)

The court of appeals' dismissal of Hanson's complaint and

refusal to consider his attempts to file an amended complaint

that conformed to the court's initial ruling cannot be

reconciled with the preceding authority. Contrary to Civ.R.

12(B), the court apparently did not exclude the board's

evidence in sustaining the motion to dismiss, which was held to

be error in Natalina Food Co., supra, at 99, 562 N.E.2d at

1384. Moreover, contrary to Alford, supra, and Civ.R. 15(A)

and 12(A)(2)(b), the court apparently viewed its decision as

substantive, i.e., as a decision on the merits of Hanson's

claim, because the court would entertain no further filings in

the matter.

In addition to its evidence, the board relied on State ex

rel. Executone of Northwest Ohio, Inc. v. Commrs. of Lucas Cty.

(1984), 12 Ohio St.3d 60, 12 OBR 51 465 N.E.2d 416, before the

court of appeals. In Executone, we affirmed the dismissal of a

complaint in mandamus because it alleged nothing more than that

a board of county commissioners had not awarded a government

contract to the lowest and best bidder. We explained:

"Appellant's complaint does not allege, nor does appellant

argue herein, the utilization of unannounced criteria by the

board of county commissioners. Nor does the complaint allege

bad faith, fraudulent conduct or any other allegation which

could be construed to constitute an abuse of discretion.

Instead, the complaint simply alleges that appellant submitted

the 'lowest and best bid.' Since under R.C. 307.90 the

determination of which bid constituted the 'lowest and best

bid' involved the exercise of a certain degree of discretion by

appellees, appellant's complaint merely asked the court of

appeals to substitute its discretion for that which was

exercised by appellees. Under such circumstances, mandmaus

will not lie, and the court of appeals correctly dismissed the

complaint. Cf. State, ex rel. Britton, v. Scott (1983), 6 Ohio

St.3d 268 [6 OBR 334, 452 N.E.2d 1312]." Id. at 61-62, 12 OBR

at 53, 465 N.E.2d at 417-418.

Executone is authority for the dismissal of a complaint

that attacks the decision of a board of county commissioners to

award a contract, but does not allege an abuse of discretion.

However, unlike the court of appeals in this case, the trial

court in Executone sustained the motion to dismiss on the basis

of the complaint alone. Moreover, even if the court of appeals

here did not consider the evidence submitted with the board's

motion to dismiss, Executone, coupled with Civ.R. 15 and

12(A)(2)(b), establishes that the court's rejection of Hanson's

first amended complaint was error. This amended complaint

contained the precise allegations that the Executone court

would have found sufficient to withstand the motion to dismiss

-- "the utilization of unannounced criteria by the board of

county commissioners." Executone, at 62, 12 OBR at 53, 465

N.E.2d at 417-418.

In essence, the court of appeals here did not specifically

exclude evidence attached to Hanson's complaint and the board's

motion to dismiss. The court also did not advise the parties

that it was going to reach a final disposition by converting

the motion to dismiss into a motion for summary judgment.

Moreover, when the court sustained the motion to dismiss and

refused to consider Hanson's amended complaint, the court

essentially denied him the opportunity to prove his case after

completing discovery. Under the cited Civil Rules and

precedent, however, Hanson properly responded to the motion to

dismiss by shoring up his initial complaint.

Mandamus

Hanson next argues that he should be granted a writ of

mandamus to remedy the board's abuse of discretion. However,

like the court of appeals' disposition in this case, Hanson's

argument is premature. At present, the only matters properly

before us are pleadings and the motions to dismiss, which do

not constitute evidence. Thus, this record will not sustain a

substantive decision on the merits of this controversy.

Accordingly, the decision sustaining the motion to dismiss

is reversed, and the cause is remanded to the court of appeals

for further proceedings.

Judgment reversed

and cause remanded.

Moyer, C.J., Sweeney, Douglas, H. Brown and Resnick, JJ.,

concur.

Holmes and Wright, JJ., dissent.

Holmes, J., dissenting. I respectfully dissent because I

believe that the court of appeals was without jurisdiction to

consider appellant's complaint seeking a writ of mandamus.

Before a writ of mandamus will be granted by the court,

the relator must establish three essential elements: "(1) that

[he has] a clear legal right to the relief prayed for, (2) that

respondents are under a clear legal duty to perform the acts,

and (3) that [relator has] no plain and adequate remedy in the

ordinary course of the law." (Emphasis added.) State ex rel.

Natl. City Bank v. Cleveland Bd. of Edn. (1977), 52 Ohio St.2d

81, 84, 6 O.O.3d 288, 290, 369 N.E.2d 1200, 1202. "A complaint

in mandamus states a claim if it alleges the existence of the

legal duty and the want of an adequate remedy at law with

sufficient particularity so that the respondent is given

reasonable notice of the claim asserted." State ex rel. Alford

v. Willoughby Civ. Serv. Comm. (1979), 58 Ohio St.2d 221, 224,

12 O.O.3d 229, 230, 390 N.E.2d 782, 785.

In reaching its decision, the majority failed to

appreciate the significance of the prerequisite to mandamus

that the relator have no plain and adequate remedy in the

ordinary course of law.1 Under the facts of the instant case,

appellant clearly had available to him other adequate means of

relief in the court of common pleas. Suits are commonly

brought there by vendors who seek to overturn the bidding

process of a public authority, and this they seek to do through

the mechanisms of temporary and permanent injunctive relief.

In his original complaint filed in the court of appeals,

appellant sought alternative forms of relief: (1) a court order

causing the Guernsey County Board of Commissioners to award his

business the construction contract, or (2) a court order "to

make [him] whole for all wages, benefits, interest and/or

profits thereon that he has lost as a result of [the] Board's

refusal to award him * * * [that contract]." The plain thrust

of appellant's first claim for relief, stripped of artful

framing, was in the nature of injunctive relief. An injunction

provides a party with equitable relief under extraordinary

circumstances where there exists no adequate remedy at law.

Haig v. Ohio State Bd. of Edn. (1992), 62 Ohio St.3d 507, 510,

584 N.E.2d 704, 707. "It is not available as a right but may

be granted by a court if it is necessary to prevent a future

wrong that the law cannot." Garono v. State (1988), 37 Ohio

St.3d 171, 173, 524 N.E.2d 496, 498. Mandamus, a coercive

writ, which compels performance of a duty, is distinguishable

from the equitable relief of an injunction:

"There is a substantial difference between commanding and

forbidding action. It has been well stated that the important

feature of the writ of mandamus which distinguishes it from any

other remedial writ is that it is used merely to compel action

and to coerce the performance of a pre-existing duty. The

functions of an injunction are ordinarily to restrain motion

and enforce inaction, while those of mandamus are to set in

motion and compel action." State ex rel. Smith v. Indus. Comm.

(1942), 139 Ohio St. 303, 306, 22 O.O. 349, 351, 39 N.E.2d 838,

839.

What appellant actually sought was to contest a contract

already awarded to a successful bidder. His action was not

merely one claiming a legal right; it sought rescission of a

prior agreement. As this court previously stated in State ex

rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40

O.O.2d 141, 228 N.E.2d 631, paragraph four of the syllabus:

"Where a petition filed in the Supreme Court or in the

Court of Appeals is in the form of a proceeding in mandamus but

the substance of the allegations makes it manifest that the

real object of the relator is for an injunction, such a

petition does not state a cause of action in mandamus and since

neither the Supreme Court nor the Court of Appeals has original

jurisdiction in injunction the action must be dismissed for

want of jurisdiction."

In cases factually similar to the instant appeal, this

court has held that mandamus will not lie to control the

exercise of discretion of a board of county commissioners in

awarding construction contracts because the relator has an

adequate remedy by way of injunction. State ex rel. Roger J.

Au & Son, Inc. v. Studebaker (1963), 175 Ohio St. 222, 24

O.O.2d 309, 193 N.E.2d 84 ("This court will ordinarily, in the

exercise of its discretion, deny a writ of mandamus where the

relator has a plain and adequate remedy in the ordinary course

of law, including an equitable remedy." Id.) State ex rel. Al

Monzo Construction Co., Inc. v. Warren Bd. of Control (1961),

172 Ohio St. 370, 16 O.O.2d 220, 176 N.E.2d 427. Accord State

ex rel. Cotleur v. Cleveland Hts. Bd. of Edn. (1960), 171 Ohio

St. 335, 14 O.O.2d 7, 170 N.E.2d 845.

Since appellant's complaint sought to prevent an action

rather than compel performance of a legal duty, the court of

appeals was without jurisdiction to rule on the merits of the

action. Accordingly, because appellant could have brought his

action in the court of common pleas as an action seeking

temporary and permanent injunctive relief, appellant had a

plain and adequate remedy in the ordinary course of law. A

court presented with a complaint in mandamus errs when it

premises jurisdiction on the relator's designation of the

action without examining the essence of the demand.

Moreover, it is evident from even a very cursory review of

appellant's second claim for relief that it was a claim for

damages and thus outside the appellate court's limited

jurisdiction in mandamus. Such claim was more properly the

concern of a trial court where a factfinder could weigh the

evidence and credibility of witnesses in arriving at a monetary

award. It is plain from the record that all of the issues

raised are controverted and require weighing of credibility and

evidence. The basic issue is whether and to what extent

appellant is owed any duty whatsoever. This being so, the

matters raised were properly the province of a court of common

pleas.

Accordingly, I would affirm the court of appeals'

dismissal of the action.

Wright, J., concurs in the foregoing dissenting opinion.

FOOTNOTE:

1 See R.C. 2731.05: "The writ of mandamus must not be

issued when there is a plain and adequate remedy in the

ordinary course of the law."