Jenkins v. Eberhart

• Court: Ohio Court of Appeals
• Writing for the Court: STEPHENSON; HARSHA
• Citation: Jenkins v. Eberhart, 71 Ohio App.3d 351, 594 N.E.2d 29 (Ohio App. 1991)
• Decision Date: 06 March 1991
• Docket Number: No. 90CA1878,90CA1878
• Parties: JENKINS et al., Appellants, v. EBERHART et al., Appellees.

Page 351

71 Ohio App.3d 351

594 N.E.2d 29

JENKINS et al., Appellants, v. EBERHART et al., Appellees.

No. 90CA1878.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided March 6, 1991.

Wolery, Price & Hoover and Mark W. Price, Portsmouth, for appellants.

Mowery, Brown & Blume, J. Rick Brown and T. Kevin Blume, Portsmouth, for appellee Robert Eberhart.

STEPHENSON, Judge.

This is an appeal from a judgment entered by the Scioto County Court of Common Pleas dismissing the complaint filed by Rickey A. Jenkins and Harald R. Daub (on their own behalf and as taxpayers of the city of Portsmouth, Ohio), plaintiffs below and appellants herein, against Robert Eberhart ("Eberhart"), and the Council of the city of Portsmouth ("city council"), defendants below and appellees herein. ¹ Appellants assign the following error:

"The trial court should not have dismissed this case for lack of jurisdiction."

The record reveals the following facts pertinent to this appeal. On June 2, 1987, Eberhart was hired by the city of Portsmouth, Ohio ("the city") to serve as city manager pursuant to an employment agreement. In the elections of November, 1987, the position of city manager was abolished as the city's charter was amended to provide for the election of a mayor beginning January 1, 1990. Nevertheless, Eberhart was to retain his position until the end of 1989 at which time he would resign his employment and begin work in Fairfield, Ohio.

On December 12, 1989, city council passed ordinance No. 115 which specified that Eberhart was to be paid for all "unused vacation time" as of the end of that year and declared that Eberhart was to be paid a bonus in the amount of $10,542.75. The ordinance further specified that the bonus was being paid under authority of the previously mentioned employment agreement and in consideration of Eberhart's aid in assisting the city's transformation to a mayor and city council form of government.

On December 18, 1989, appellants commenced the action below alleging that they were residents and taxpayers of the city. The complaint further alleged, inter alia, that Eberhart was not entitled to such a bonus because he was already working in Fairfield, Ohio, thus not aiding in the transition of government, and because the employment agreement did not authorize any such bonus. In addition, appellants averred that Eberhart should not be paid for unused vacation time as such action would violate the city's codified ordinance that vacation time was non-cumulative. Appellants demanded judgment for, among other things, preliminary and permanent injunctions against these amounts being paid to Eberhart as well as declaratory judgments that he was not entitled to such amounts.

Contemporaneously, appellants moved for a temporary restraining order to block payment of these amounts to Eberhart. On December 28, 1989, such order was granted. At that time, appellants were also granted leave of court to amend their complaint in order to include an additional cause of action. ² On January 3, 1990, the amended complaint was filed below repeating the same allegations as were in the original and further averring that Eberhart was not entitled to the payments because no auditor's certificate of availability had been obtained.

On January 10, 1990, the cause below came on for hearing on appellants' request for a preliminary injunction. At that time, appellees moved to dismiss the action on the grounds that appellants had not complied with the requirements of R.C. 733.59 in that they had failed to make a written request upon the city solicitor to bring the action before bringing it themselves. The court below then determined that such a written request to the city solicitor was a jurisdictional prerequisite before such action could be entertained and, in its absence, the complaint must be dismissed. The judgment entry dismissing the action was filed the same day and this appeal follows. ³

While the court below did not explicitly state its authority for dismissing appellant's action, a "pre-responsive pleading" motion to dismiss for lack of subject matter jurisdiction is sanctioned under Civ.R. 12(B)(1). The Ohio Supreme Court does not appear to have set a definitive standard for appellate review of such dismissals although several courts of appeal have employed a standard of inquiring as to whether the complaint dismissed alleged any cause of action cognizable by the forum. See Steffen v. Gen. Tel. Co. (1978), 60 Ohio App.2d 144, 145, 14 O.O.3d 111, 112, 395 N.E.2d 1346, 1348; Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio App.3d 65, 67, 520 N.E.2d 1378, 1380. The court in Steffen determined this standard of review by comparison of such motions to those made under Civ.R. 12(B)(6).

However, in resolving a Civ.R. 12(B)(6) motion, a court is confined to the averments set forth in the complaint and cannot consider outside evidentiary materials unless the motion is converted into one for summary judgment under Civ.R. 56. See State ex rel. Alford v. Willoughby Civil Service Comm. (1979), 58 Ohio St.2d 221, 223, 12 O.O.3d 229, 230, 390 N.E.2d 782, 785. By contrast, the Supreme Court has stated that a trial court is not confined to the allegations of the complaint when determining jurisdiction under a Civ.R. 12(B)(1) motion but may consider outside materials pertinent to such inquiry. Southgate Dev. Corp. v. Columbia Gas Transm. Corp. (1976), 48 Ohio St.2d 211, 2 O.O.3d 393, 358 N.E.2d 526, at paragraph one of the syllabus. By analogy to the federal rules, we also note that this has been deemed a "crucial distinction" between Fed.R.Civ.P. 12(b)(1) and 12(b)(6). 2 A Moore's, Federal Practice (1990) 12-48, Paragraph 12.07[2.-1]. Thus, we decline to follow the standard employed in Steffen.

In that Civ.R. 12(B)(1) and Fed.R.Civ.P. 12(b)(1) are like provisions, See 4 Anderson, Ohio Civil Practice (1989) 333, Section 152.08, it is appropriate to inquire as to the standard of review employed by the federal courts. Under Fed.R.Civ.P. 12(b)(1), a court may dismiss a complaint for lack of jurisdiction over subject matter on the basis of "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Williamson v. Tucker (C.A.5, 1981), 645 F.2d 404, 413. Thus, a distinction is drawn between an attack on the factual basis of the court's jurisdiction and an attack on the facial sufficiency of the complaint. Id.; see, also, Eaton v. Dorchester Dev., Inc. (C.A.11, 1982), 692 F.2d 727, 731.

In the cause sub judice, there does not appear to have been any resolution of disputed material issues of fact in dismissing appellants' action. Rather, the court below relied on the face of the amended complaint and, of particular significance, appellants' admissions at the hearing that there had not been a written request made of the city solicitor to commence such an action prior to commencing one themselves. Where a trial court resolves an attack on the facial sufficiency of a complaint and does not make any determinations with regard to disputed factual issues, our review is limited to determining whether the court's application of the law is correct. Williamson, supra, at 413.

In support of their assignment of error, appellants advance two separate arguments that the trial court incorrectly applied the law. First, appellants contend that a written demand upon the city solicitor to commence the action, as required by R.C. 733.59, "would have been to no avail" and, therefore, the court erred in dismissing the action. We disagree.

The provisions of R.C. 733.59 state, in pertinent part, as follows:

"If the village solicitor or city director of law fails, upon the written request of any taxpayer of the municipal corporation, to make any application provided for in sections 733.56 to 733.58 of the Revised Code, the taxpayer may institute suit in his own name, on behalf of the municipal corporation. * * * No such suit or proceeding shall be entertained by any court until the taxpayer given security for the cost of the proceeding." (Emphasis added.)

The statutory requirement of a written request upon a city solicitor or law director to commence a civil action has been characterized as a jurisdictional prerequisite before any right to bring the action accrues to the taxpayer. Popson v. Henn (1984), 17 Ohio App.3d 1, 3, 17 OBR 47, 49, 477 N.E.2d 465, 468; Thelander v. Cleveland (1981), 3 Ohio App.3d 86, 95, 3 OBR 100, 109, 444 N.E.2d 414, 423. As they did at the hearing below, appellants concede in their brief that no such request had been made upon the city solicitor prior to their commencement of the action below. However, appellants cite us to several Supreme Court decisions for the proposition that such requirement is excused where it appears that the request would have been futile.

In State ex rel. Nimon v. Springdale (1966), 6 Ohio St.2d 1, 35 O.O.2d 1, 215 N.E.2d 592, at paragraph three of the syllabus, the Supreme Court held as follows:

"Where a solicitor of a municipal corporation transmits a written opinion advising its council to refrain from acting on a pending matter and the council, in reliance upon the opinion, refrains from acting, a request upon the solicitor to institute suit to compel the council to act on the matter would be unavailing * * * and a taxpayer's noncompliance with the condition of Section 733.59, Revised Code, requiring a written request to, and failure by, the solicitor to institute suit, is excused." (Emphasis added.)

The court further expanded this exception in State ex rel. White v. Cleveland (1973), 34 Ohio St.2d 37, 63 O.O.2d 79, 295 N.E.2d 665, at paragraph two of the syllabus by stating, in pertinent part, as follows:

"Where a taxpayer requests the Law Director of a municipality to advise the Commissioner of the Division of Building to permit...