State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.

• Decision Date: 30 December 1992
• Docket Number: No. 91-2353,91-2353
• Citation: 605 N.E.2d 378,65 Ohio St.3d 545
• Parties: The STATE ex rel. HANSON, d.b.a. Franklin Excavating, Inc., Appellant, v. GUERNSEY COUNTY BOARD OF COMMISSIONERS, Appellee.
• Court: Ohio Supreme Court

Page 545

65 Ohio St.3d 545

605 N.E.2d 378

The STATE ex rel. HANSON, d.b.a. Franklin Excavating, Inc., Appellant, v. GUERNSEY COUNTY BOARD OF COMMISSIONERS, Appellee.

No. 91-2353.

Supreme Court of Ohio.

Submitted Nov. 24, 1992.

Decided Dec. 30, 1992.

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, Canton, for appellant.

C. Keith Plummer, Pros. Atty., 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, 223-224, 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 to act on the part of a public officer or agency, and that the relator has no plain and 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...