James W. Harris, Director, Ohio Department of Industrial Relations, and Ohio Department of Industrial Relations v. City of Cincinnati, and Scott Johnson, City Manager, City of Cincinnati, and Tower Place Limited Partnership, and Henry J. Faison, General Partner, Tower Place Limited Partnership, and Turner Construction Co.
| Decision Date | 01 April 1992 |
| Docket Number | C-900607,92-LW-1245 |
| Parties | JAMES W. HARRIS, DIRECTOR, OHIO DEPARTMENT OF INDUSTRIAL RELATIONS, and OHIO DEPARTMENT OF INDUSTRIAL RELATIONS, Plaintiffs-Appellants, v. CITY OF CINCINNATI, and SCOTT JOHNSON, CITY MANAGER, CITY OF CINCINNATI, and TOWER PLACE LIMITED PARTNERSHIP, and HENRY J. FAISON, GENERAL PARTNER, TOWER PLACE LIMITED PARTNERSHIP, and TURNER CONSTRUCTION COMPANY, Defendants-Appellees APPEAL |
| Court | Ohio Court of Appeals |
Civil Appeal From Hamilton County Court of Common Pleas.
Lee Fisher, Attorney General, and Dan E. Belville, Esq., State Office Tower, 10th Floor, 30 East Broad Street, Columbus, Ohio 43266-0410, for Plaintiffs-Appellants James W. Harris, Director, Department of Industrial Relations and State of Ohio Department of Industrial Relations.
Fay D. DuPuis, Acting City Solicitor, No. 0020782, and James F. McCarthy, III, Esq., No. 0002245, Room 214, City Hall, 801 Plum Street, Cincinnati, Ohio 45202, for Defendants-Appellees City of Cincinnati and Scott Johnson, City Manager, City of Cincinnati.
Thompson, Hine and Flory, Jack F. Fuchs, Esq., No. 0014197, and Stacey L. Murphy, Esq., No. 0042537, Suite 1400, 312 Walnut Street, Cincinnati, Ohio 45202, for Defendant-Appellee Tower Pace Limited Partnership.
The Ohio Department of Industrial Relations (the "department") and its director filed a complaint for injunctive relief and for a declaratory judgment against the city of Cincinnati, Tower Place Limited Partnership (the "partnership") and Turner Construction Company. Following the presentation of the department's evidence at a hearing, the trial court directed a verdict in favor of the defendants and against the department. The department then filed this appeal. For the reasons which follow, the judgment of the trial court is reversed, and this cause is remanded for further proceedings.
The facts as stipulated by the parties indicate the following. In 1962, the city adopted the Central Business District Core Urban Renewal Plan. The plan provided for the clearance reconstruction and rehabilitation of slum, blighted and deteriorating areas within the core area of the central business district. That area included the tract of land bounded by Fourth Street on the south, Race Street on the West, and the Netherland Plaza on the north, known as the Fourth and Race side.
On August 4, 1988, the partnership purchased the fee to the property located at the Fourth and Race site from May Centers, Inc. May Centers, Inc., executed a limited (special) warranty deed to the partnership for that property. The partnership also purchased a 52.9% interest in the fee and a 100% interest in a long-term lease of a parking garage connected by a skywalk to the property at the Fourth and Race site.
On August 11, 1988, the city and the partnership entered into a "Contract for Sale and Lease of Land for Private Redevelopment" which involved the property located at the Fourth and Race site. Under the terms of that contract, the city agreed to purchase all of the partnership's right, title and interest in the property for $6.5 million less the city's actual site-preparation costs.
Pursuant to the contract entered into with the partnership, the city agreed to complete the site-preparation work on the property including the removal of asbestos, the disconnection or baling of sewers and utility lines, the demolition of buildings and other structures on the property, the removal of debris, the repair of any damage to adjacent structure's caused by the demolition, and the preparation of the site for delivery to the partnership for the commencement of construction. The partnership agreed to develop the property in accordance with the city's Central Business District Core Urban Renewal Plan. The partnership further agreed to construct certain improvements on the property after obtaining the city's approval on the Schematic plans, preliminary plans and construction plans. The improvements included a three-level retail specialty shopping mall; a five-level public parking garage; an enclosed, elevated pedestrian bridge; sidewalks, curbs and other external improvements; a double-level vehicular bridge; and continuous covered second-level pedestrian walkways through the improvements.
In accordance with the Contract for Sale and Lease of Land for Private Redevelopment, the partnership executed a limited (special) warranty deed to the city. The city then became the fee owner of the property at the Fourth and Race site.
Subsequently, the city and the partnership decided to have the site-preparation work done by the partnership rather than by the city as provided in their contract for redevelopment. The city and the partnership entered into a "Site preparation Work Agreement" to provide for this alteration of the original con-tract. The partnership agreed to perform the site-preparation work to achieve "cost efficiencies" for the city and to "ensure proper coordination" between the site-preparation work and the construction of the improvements on the property.
The partnership then entered into a contract with Turner Construction Company ("Turner"). Under that contract, Turner agreed to demolish the old buildings and construct certain improvements at the Fourth and Race site.
On October 30, 1989, Turner completed the site-preparation work at a cost of $1,354,990, which the city paid to the partnership. The city paid an additional $5,105,285 to the partnership for the right, title and fee-simple interest in the property located at the Fourth and Race site. The city then leased the property back to the partnership for construction of the Tower Place Project.
By letters dated July 3, 1989, and July 5, 1989, the department informed the city and the partnership that the department had determined that Ohio's prevailing-wage law applied to the Tower Place Project. The city and the partnership replied that the prevailing-wage law did not apply to this project. The city then passed Resolution R/85-1989, which provided as follows:
That, in order to ensure the prompt commencement and completion of the Tower Place Project, the City and -the developer [the partnership] will share equally the risk of increased project costs attributable to the court rulings on the prevailing wage issue, provided that under no circumstances would the City's contribution be in excess of $1,000,000.00.
The department filed a complaint against the city, the partnership and Turner which alleged violations of Ohio's prevailing wage law and which sought the following relief:
The department also filed a motion for a temporary restraining order and a motion for a preliminary injunction.
The trial court denied the department's motion for a temporary restraining order and set a hearing date for the department's motion for a preliminary injunction. By agreement of the parties, that hearing was merged with the hearing on the department's request for a permanent injunction.
At the hearing, the parties presented the trial court with a set of stipulated facts, and the department presented its evidence. The defendants then moved for an involuntary dismissal for Civ. R. 41(B) (2). The trial court treated the defendants' motion as a motion for a directed verdict under Civ. R. 50(A). Construing the evidence most strongly in favor of the department, the trial court held that reasonable minds could come to but one conclusion based upon the department's evidence, that conclusion being that under Ohio's prevailing-wage law did not apply to the Tower Place Project. The trial court, therefore, directed a verdict against the department in favor of the defendants. This appeal by the department followed.
On appeal, the department raises four assignments of error as follows:
Initially, we note that the trial court incorrectly utilized the standard provided in Civ. R. 50(A) (4) in ruling on the defendants' motion for an involuntary dismissal. The motion by the defendants should have been determined pursuant to the provisions of Civ. R. 41(B) (2), which is governed by a different standard. See McIntyre v. Northern Ohio Properties (1979), 64 Ohio App. 2d 179, 412 N.E.2d 434.
Civ. R. 41(B) (2) provides:
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render...
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