State ex rel. Ferguson v. Shoemaker

• Decision Date: 21 May 1975
• Parties: , 74 O.O.2d 109 The STAE ex rel. FERGUSON v. SHOEMAKER. *
• Court: Ohio Court of Appeals

Page 83

45 Ohio App.2d 83

341 N.E.2d 311, 74 O.O.2d 109

The STAE ex rel. FERGUSON v. SHOEMAKER. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

May 21, 1975.

Syllabus by the Court

1. A direct action seeking monetary relief under a contract between a plaintiff and the state must be commenced and prosecuted in the Court of Claims.

2. An action brought in a Court of Common Pleas to enjoin a state officer from interfering with the payment of money due under a state contract is not per se precluded by R.C. Chapter 2743, where it appears that the plaintiff has no adequate remedy at law.

William J. Brown, Atty. Gen., Robert H. Stromberg and Terry Tataru, Columbus, for relator.

George C. Smith, Pros. Atty., William B. Shimp, Dennis Pines, Columbus, and Charles Cohen, Cleveland, for respondent.

WHITESIDE, Judge.

By this original action in this court, relator, the Auditor of Ohio, seeks a writ of prohibition prohibiting the respondent, Judge Fred J. Shoemaker of the Court of Common Pleas of Franklin County, from hearing and determining the case of Ronald F. Riviere, D. D. S., Inc., v. State of Ohio, et al., No. 75CV-03-1292, pending in the Franklin County Court of Common Pleas. This cause has been submitted to this court, on the pleadings, stipulations of fact, and the briefs and oral arguments of counsel, for a determination on the merits. The state of Ohio and the Ohio department of public welfare are joined as defendants with relator in the action pending in the Court of Common Pleas. The stipulation of the parties states:

'1. On March 28, 1975, Ronald F. Riviere, D. D. S., Inc., as plaintiff, filed a Complaint, in the Franklin County, Ohio, Common Pleas Court against the State of Ohio, the Ohio Department of Public Welfare and Thomas E. Ferguson, Auditor of the State of Ohio, as defendants, being Case No. 75CV-03-1292. Said Complaint is attached hereto and made a part hereof as Exhibit A. An Affidavit of plaintiff's attorney is attached hereto and made a part hereof as Exhibit M.

'2. On March 28, 1975, plaintiff, in the above-mentioned case, filed a Motion requesting a temporary restraining order against all defendants. Said Motion is attached hereto and made a part hereof as Exhibit B.

'3. On March 31, 1975, said Common Pleas Court held a hearing on plaintiff's aforementioned Motion. The Transcript of Proceedings is attached hereto and made a part hereof as Exhibit L.

'4. On April 1, 1975, defendants, in the abovementioned case, filed a Motion to Dismiss the Complaint. Said Motion is attached hereto and made a part hereof as Exhibit C.

'5. On April 1, 1975, plaintiff filed a Memorandum. Said Memorandum is attached hereto and made a part hereof as Exhibit D.

'6. On April 1, 1975, defendnat Ohio Department of Public Welfare filed a Counterclaim. Said Counterclaim is attached hereto and made a part hereof as Exhibit E.

'7. On April 1, 1975, the Common Pleas Court issued a Temporary Restraining Order against all defendants. Said Order is attached hereto and made a part hereof as Exhibit F.

'8. On April 10, 1975, plaintiff filed a Reply to Counterclaim. Said Reply is attached hereto and made a part hereof as Exhibit G '9. On or about April 10, 1975, plaintiff filed a Motion for a permanent injunction to be advanced and consolidated. Said Motion is attached hereto and made a part hereof as Exhibit H.

'10. On April 14, 1975, the Common Pleas Court issued an Entry extending the Temporary Restraining Order. Said Entry is attached hereto and made a part hereof as Exhibit I.

'11. On April 28, 1975, the Common Pleas Court overruled defendants' Motion to Dismiss. Said Decision and Entry is attached hereto and made a part hereof as Exhibit J.

'12. On May 6, 1975, defendants herein filed an Answer to the Complaint. Said Answer is attached hereto and made a part hereof as Exhibit K.

'13. On May 22, 1975, the Common Pleas Court has scheduled a trial on the Counterclaim; but only in regard to whether or not there is liability to the Ohio Department of Public Welfare, not on the amount of that liability; and on the Permanent Injunction. The issue of the amount of liability will be determined at a later trial.'

In its brief, relator states the issue before the court to be:

'Whether an action on contract, seeking monetary relief from the State of Ohio, must be commenced and prosecuted in the Court of Claims.'

However, as pointed out in the brief of respondent, the plaintiff in the action pending in the Court of Common Pleas seeks equitable relief by way of injunction. The Complaint filed in the Court of Common Pleas reads as follows:

'First Claim

'1. Plaintiff is an Ohio corporation duly authorized to do business in the State of Ohio.

'2. On or about the 26th day of October, 1972, plaintiff and defendant Ohio Department of Public Welfare entered into a written agreement which is attached hereto as Exhibit 'A.'

'3. Plaintiff has performed his obligations thereunder.

'4. Plaintiff has provided dental services to recipients of medicaid and other medical assistance programs of and administered by the State of Ohio through the Ohio Department of Public Welfare.

'5. Although plaintiff has provided dental services to such recipients, defendant has failed and refused to pay plaintiff the amounts due and owing him under said contract.

'6. On March 20, 1975, plaintiff was informed by a representative of Defendant Thomas Ferguson, Auditor of the State of Ohio, that said payment would not be made though said services were performed and payment demanded.

'7. As a result of said breach of contract, plaintiff has been damaged in the amount of Seventy Thousand Dollars ($70,000.00).

'Second Claim

'8. Plaintiff incorporates by reference herein each and every allegation contained in the First Claim above.

'9. If Defendants are allowed to continue to deny payment which has been due and demanded, irreparable damage will be done to plaintiff's professional practice and cause it to cease operation, thereby denying qualified recipients the benefit of medical assistance programs provided by and administered by the State of Ohio and the Ohio Department of Public Welfare, pursuant to State and Federal law.

'Wherefore, Plaintiff demands judgment as follows:

'I. That Defendant State of Ohio, through its officers, agents, servants and employees be restrained and enjoined by preliminary injunction and permanent injunction from withholding the payment due and demanded, and future payments due under the aforestated contract;

'II. That Defendant Ohio Department of Public Welfare, through its officers, agents, servants and employees be restrained and enjoined by preliminary injunction and permanent injunction from withholding the payment due and demanded, and future payments due under the aforestated contract 'III. That Defendant Thomas Ferguson, Auditor of the State of Ohio, through his officers, agents, servants and employees be restrained and enjoined by preliminary injunction and permanent injunction from withholding the payment due and demanded, and future payments due under the aforestated contract;

'IV. For the sum of Seventy-Thousand Dollars ($70,000.00), plus interest;

'V. For costs.'

As to the joinder of the state of Ohio as a party to the action pending in the Court of Common Pleas, it is well established that the state is not subject to suit in the courts of this state without the express consent of the General Assembly. Raudabaugh v. Ohio (1917), 96 Ohio St. 513; State, ex rel. Williams v. Glander (1947), 148 Ohio St. 188, 74 N.E.2d 82; Krause v. State (1972), 31 Ohio St.2d 132, 285 N.E.2d 736; and Thacker v. Bd. of Trustees (1973), 35 Ohio St.2d 49, 298 N.E.2d 542. The latter two cases dealt with suits in tort rather than contract. However, the principle is clear that the state cannot be sued without its consent expressed by an action of the General Assembly.

Such consent has recently been given by the General Assembly through R.C. 2743.02(A), which provides, as follows:

'The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. To the extent that the state has previously consented to be sued, this chapter has no applicability.'

However, in waiving the state's immunity from liability and consenting to be sued and having the state's liability determined, the General Assembly limited jurisdiction in such matters to the Court of Claims, which is created by R.C. 2743.03(A). This section provides:

'There is hereby created a court of claims. The court of claims is a court of record and has exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 of the Revised Code, and exclusive jurisdiction of the claims of all parties in actions which are removed to the court of claims and determinations pursuant to sections 5315.04 and 5315.05 of the Revised Code. The court shall have full equity powers in all actions within its jurisdiction and may entertain and determine all counterclaims, cross-claims, and third-party claims.'

However, an action against a public officer to compel him to perform a public duty or to enjoin him from performing an act contrary to law is not an action against the state precluded by the doctrine of sovereign immunity. In Life Ins. Co. v. Hess (1926), 28 Ohio App. 107, at page 115, 162 N.E. 466, at page 468 (affirmed 116 Ohio St. 416, 156 N.E. 504), it is stated:

'It will not be questioned that equity will enjoin an illegal act on the part of an individual holding a state or county office. A suit against an individual for the purpose of preventing him, as such officer, from performing an act contrary to a statute, is not an action against the state or the county,...