State ex rel. Boccuzzi v. Cuyahoga Cty. Commrs., 2006 Ohio 1835 (OH 4/11/2006), 86333.

Citation2006 Ohio 1835
Decision Date11 April 2006
Docket NumberNo. 86333.,86333.
PartiesState of Ohio, ex rel., Angela Boccuzzi, et al., Relators, v. Cuyahoga County Commissioners, et al., Respondents.
CourtUnited States State Supreme Court of Ohio

William D. Mason, Cuyahoga County Prosecutor, By: Charles E. Hannan, Jr., Assistant County Prosecutor, Justice Center — 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, for Respondents.

ORIGINAL ACTION JOURNAL ENTRY AND OPINION

JUDGE MARY EILEEN KILBANE:

{¶ 1} The relators — Angela Boccuzzi, Dominic Boccuzzi, James Freitag, Carolyn Freitag, and the Pleasant Valley Property Owners Association — commenced this mandamus action as a taxpayer action against the respondents — the Cuyahoga County Commissioners, Cuyahoga County Treasurer James Rokakis and the Cuyahoga County Office of Budget and Management (hereinafter "the County") — to compel the county to refund to the City of Parma any amounts in excess of approximately $200,000 for a sanitary sewer improvement. The gravamen of this action is that Parma would have saved this money, had the County awarded the sanitary sewer portion of an improvement to West Pleasant Valley Road to a specific subcontractor instead of awarding the sanitary sewer portion as part of the overall project.

{¶ 2} On July 19, 2005, the County filed a motion to dismiss. In response on August 15, 2005, the relators filed a second amended complaint, and the County moved to strike that pleading. On August 26, 2005, this court denied the motion to strike and ordered the relators to file their brief in opposition to the County's dispositive motion within three weeks. The relators never filed a response. For the following reasons, this court grants the County's motion to dismiss.

{¶ 3} As gleaned from the pleadings and their attachments, in 1980, Parma and the County agreed to improve West Pleasant Valley Road from York Road to State Road. In 1989, the parties added a sanitary sewer to the project. In late 2003, the County sought bids for the entire project and in January 2004, awarded the project to Blaze Construction, Inc. (hereinafter "Blaze") for $14.8 million, which was the lowest bid. Of this amount, $1.9 million was for the sanitary sewer, and Fabrizi Trucking and Paving Company (hereinafter "Fabrizi") was the subcontractor. Fabrizi submitted its own bid for the entire contract at $14.9 million; however, the cost for the sanitary sewer was only $1.346 million.

{¶ 4} In December 2003, Parma enacted Resolution 307-03, by which its cost for the sanitary sewer would be assessed by the front footage of the property bounding and abutting the improvement on West Pleasant Valley Road. The relators, including the members of the Pleasant Valley Owners Association, live along West Pleasant Valley Road and, thus, bear the cost of this assessment. They assert two claims for mandamus. First, pursuant to the Project Agreement, the First Supplement to the Agreement and R.C. 153.61, they claim that the County had the duty to award the bid for the sanitary sewer separately to the lowest and best bidder, which would have been Fabrizi at $1.346 million. Second, they allege the County "abused its discretion, acted in bad faith, acted in conflict of interest and self dealing, acted arbitrarily, and acted capriciously" in awarding the bid to Blaze instead of Fabrizi to shift the burden of the cost of the entire project from the County to the relators. (Paragraph 28 of the second amended complaint.) Therefore, they maintain the amount of the assessment should be $199,527.50 ($1,346,527.50 minus $1,000,000 minus $147,000.)1 Instead, Parma and the relators are paying $797,909 ($1,944,909 minus $1,000,000 minus $147,000.) Therefore, as relief, the relators seek to compel the County to charge Parma only $199,527 plus or minus any cost changes to reflect the actual final cost for the sanitary sewer and refund any excess.2

{¶ 5} However, the relators have failed to establish their claims for mandamus. First, their failure to respond to the motion to dismiss leaves the County's arguments unrebutted and persuasive. Indeed, the failure to respond is sufficient grounds for dismissal. State ex rel. White v. Enright (1992), 65 Ohio St.3d 481, 605 N.E.2d 44; State ex rel. Mancini v. Ohio Bureau of Motor Vehicles (1994), 69 Ohio St.3d 486, 633 N.E.2d 1126; State ex rel. Elgin v. Watzek (1961), 172 Ohio St. 199, 174 N.E.2d 261; and State ex rel. Crow v. Baynes (1962), 173 Ohio St. 311, 181 N.E.2d 804.

{¶ 6} Moreover, the requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914 and State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 374 N.E.2d 641. Furthermore, if the relator had an adequate remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108 and State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564 N.E.2d 86. Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308.

{¶ 7} The relators' attachments, including the agreement and the supplemental agreement, do not establish a clear, legal duty to bid the sanitary sewer portion as a separate element. Indeed, Parma Resolution No. 395-89 requested that the sanitary sewer improvement be included in the West Pleasant Valley Road improvement. Parma reiterated this intention in Ordinance No. 74-04: "Whereas the Cuyahoga County Engineer's Office has committed to the widening and reconstruction of West Pleasant Valley Road (hereinafter the `Road Project') located between York and State Roads; and, Whereas, the City of Parma, by Ordinance 395-89, has requested that Cuyahoga County also include sanitary sewers (hereinafter `Sanitary Sewer Project') as part of the Road Project; ***." Furthermore, the First Supplemental Agreement, executed in May 2004, in Section One specifically ratified the award of the entire project, including the sanitary sewer improvement, to Blaze.

{¶ 8} R.C. 153.61, entitled "Agreement for Joint Construction," the legal authority upon which the relators rely, does not support their position. A review of the statute does not reveal a provision requiring a separate bid for any portion of a joint construction project, much less a specific provision requiring separate bids for a sanitary sewer. In the motion to dismiss, the County generously ascribed that the relators meant to rely on R.C. 153.51, and that the failure to cite to that section was a typographical error. When the County filed its dispositive motion on July 19, 2005, it was responding to the first amended complaint, in which the relators cited to R.C. 163.51, which provides definitions relating to appropriation of property and relocation assistance. When the relators filed their second amended complaint approximately one month later, they did not cite to R.C. 153.51 or its companion provision, R.C. 153.50.3 Instead, the relators repeatedly referred to R.C. 153.61. Thus, this court concludes that the relators do not rely on R.C. 153.50 and 153.51 for the proposition that they create a clear, legal duty to seek separate bids and award a separate contract for a sanitary sewer improvement. Accordingly, the relators' complaint and its attachments on their face do not show a clear, legal duty on the part of the County to seek a separate bid for the sanitary sewer, and their claim for mandamus fails.

{¶ 9} Additionally, the relators claim that the County abused its discretion in awarding the contract to Blaze because that decision allowed the County to pass approximately $600,000 of the entire cost of the project to the relators when the County should have borne that cost and because Blaze has a poor reputation for shoddy work and political collusion. To support these latter allegations, the relators attached a news article from Cleveland Scene Magazine. The court gives no weight to such proffers. "A newspaper article cannot be accepted as evidence; it is `hearsay' of the remotest character." Heyman v. City of Bellevue (1951), 91 Ohio App. 321, 326, 108 N.E.2d 161; and City of Cleveland v. Division 268, Amalgmated Assn. of Street Electric Railway & Motor Coach Employees of America (1948), 84 Ohio App. 43, 81 N.E.2d 310; Salem v....

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