State ex rel. The V Cos. v. Marshall

• Decision Date: 22 April 1998
• Docket Number: No. 97-726,97-726
• Citation: 81 Ohio St.3d 467,692 N.E.2d 198
• Parties: The STATE ex rel. THE V COMPANIES et al., Appellees, v. MARSHALL, Cty. Aud., Appellant.
• Court: Ohio Supreme Court

Page 467

81 Ohio St.3d 467

692 N.E.2d 198

The STATE ex rel. THE V COMPANIES et al., Appellees, v. MARSHALL, Cty. Aud., Appellant.

No. 97-726.

Supreme Court of Ohio.

Submitted Feb. 17, 1998.

Decided April 22, 1998.

In October 1995, appellees, The V Companies, f.k.a. The Voinovich Companies, and VS Architects, Inc., f.k.a. Voinovich-Sgro Architects, Inc. ("V Group"), entered into a contract with Jefferson County, in which V Group agreed to provide certain services in connection with the construction of a jail known as the Jefferson County Joint Justice Facility. The Jefferson County Board of Commissioners ("board") approved and executed the contract. Under the contract, the county agreed to pay the V Group a monthly amount of $26,714 for certain basic services, as well as an additional sum for other services.

The V Group provided the services specified in the contract in good faith and with the expectation that it would be compensated as provided by the contract. The V Group submitted invoices to Jefferson County for the services rendered by it under the contract for the months of June 1996 through December 1996. These invoices totaled $165,079.25. The board authorized payment of the invoices. Despite the board's authorization, appellant, Jefferson County Auditor John Patrick Marshall, refused to issue warrants to the Jefferson County Treasurer to pay the invoices.

In December 1996, the V Group filed a complaint in the Court of Appeals for Jefferson County. In its complaint, as subsequently amended, the V Group requested a writ of mandamus to compel Marshall to issue a warrant to the county treasurer for $165,079.25 plus interest for the funds owed by the county to the V Group.

A few days after being served with the V Group's complaint, Marshall filed a notice to take an oral deposition of Paul Voinovich, President and Chief Executive Officer of the V Group, in January 1997. The notice was served on the V Group's attorney. The V Group notified Marshall that Voinovich would not appear for the deposition because, among other reasons, his testimony was irrelevant and not reasonably calculated to lead to any relevant evidence in the mandamus action. Marshall filed a motion to compel the V Group to comply with the noticed deposition and also requested that the court of appeals stay further proceedings until the V Group complied with the deposition. The V Group filed a motion for an order quashing the notice of deposition or, in the alternative, for a protective order. The V Group argued, among other things, that Marshall had failed to issue a subpoena to Voinovich for his deposition. The court of appeals did not rule on these discovery motions.

In December 1996, the court of appeals issued an alternative writ of mandamus commanding Marshall to act on the claim or show cause why he had not acted. Marshall filed a "motion to dismiss and answer to [the] 'show cause' order." In Marshall's Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, he referred to documents attached to his motion that were not contained in the V Group's pleading. The attachments included two affidavits, a January 13, 1997 board resolution purporting to rescind any prior board resolutions authorizing payment to the V Group, and a January 10, 1997 complaint filed in the common pleas court by Jefferson County Prosecuting Attorney Stephen M. Stern, alleging that the contract between the V Group and Jefferson County was void and that the V Group had breached the contract. Neither the resolution nor the complaint was sworn, certified, or incorporated by reference in an affidavit.

In February 1997, the V Group filed a motion for summary judgment and memorandum in opposition to Marshall's motion to dismiss. The V Group supported its motion with affidavits and certified exhibits referenced in the affidavits. It also asserted that Marshall's motion must be treated as a Civ.R. 56 motion for summary judgment because it presented matters outside the V Group's pleading. Marshall then filed responses in which he stated that he did not object to his motion to dismiss being treated as a motion for summary judgment provided that he was first given the opportunity to conduct discovery pursuant to the Rules of Civil Procedure. The V Group asserted that the court of appeals could consider only the evidence specified in Civ.R. 56 and that Marshall had failed to support his motion or refute the V Group's motion for summary judgment with appropriate summary judgment evidence.

In April 1997, the court of appeals granted the V Group's motion for summary judgment and issued a writ of mandamus to compel Marshall to prepare and issue warrants to the county treasurer for payment of the invoices plus interest. The court of appeals also converted Marshall's Civ.R. 12(B)(6) motion to dismiss into a Civ.R. 56 motion for summary judgment and denied the motion. The court of appeals considered the exhibits attached to Marshall's dismissal motion in its summary judgment determination.

This cause is now before the court upon Marshall's appeal as of right.

Synenberg & Marein, Roger M. Synenberg and Mary Jo Tipping, Cleveland; Sommer, Liberati, Shaheen & Hoffman and Michael J. Shaheen, Martins Ferry, for appellees.

Stephen M. Stern, Jefferson County Prosecuting Attorney, and Joshua J. Sacks, Assistant Prosecuting Attorney, for appellant.

PER CURIAM.

Discovery

Marshall asserts in his second proposition of law that the court of appeals committed reversible error by failing to make any rulings on discovery issues and by not permitting Marshall to proceed with discovery.

As the parties concede, the court of appeals did not expressly rule on Marshall's motion to compel the V Group to comply with the noticed deposition of Voinovich. Nevertheless, when a trial court fails to rule on a pretrial motion, it may ordinarily be presumed that the court overruled it. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223, 631 N.E.2d 150, 155; Newman v. Al Castrucci Ford Sales (1988), 54 Ohio App.3d 166, 561 N.E.2d 1001. From the court of appeals' judgment, it may be presumed that the court overruled Marshall's motion to compel Voinovich's deposition.

Marshall essentially contends that overruling his motion to compel constituted reversible error. But absent an abuse of discretion, an appellate court must affirm a trial court's disposition of discovery issues. Carpenter v. Reis (1996), 109 Ohio App.3d 499, 507, 672 N.E.2d 702, 707-708; Toney v. Berkemer (1983), 6 Ohio St.3d 455, 458, 6 OBR 496, 498, 453 N.E.2d 700, 702. An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable decision. State ex rel. Askew v. Goldhart (1996), 75 Ohio St.3d 608, 610, 665 N.E.2d 200, 202.

The court of appeals did not abuse its discretion by effectively overruling Marshall's motion to compel Voinovich's deposition and granting the V Group's motion to quash the notice of deposition. First, Marshall failed to subpoena Voinovich for the deposition. Civ.R. 30(A) provides that the attendance of a non-party witness deponent should be compelled by the use of subpoena as provided by Civ.R. 45. Fletcher v. Bolz (1987), 35 Ohio App.3d 129, 131, 520 N.E.2d 22, 24; Randle v. Gordon (Oct. 29, 1987), Cuyahoga App. No. 52961, unreported, 1987 WL 19275. Second, if Marshall's notice of deposition was actually for the V Group rather than Voinovich, then he had no right to designate Voinovich as the deponent to testify on the V Group's behalf. Civ.R. 30(B)(5) ("A party, in the party's notice, may name as the deponent a public or private corporation * * * and designate with reasonable particularity the matters on which examination is requested. The organization so named shall choose one or more of its proper employees, officers, agents, or other persons duly authorized to testify on its behalf."). Marshall's notice also did not designate with reasonable particularity the matters on which his examination was requested.

In addition, despite Marshall's contentions on appeal, the court of appeals did not prohibit him from conducting discovery pursuant to the Civil Rules. The record indicates that the only discovery attempted by Marshall was Voinovich's deposition. That discovery, however, was improper because Marshall did not comply with the Civil Rules, i.e., Civ.R. 30 and 45.

Therefore, Marshall's second proposition of law lacks merit and is overruled.

Notice of Conversion of Civ.R. 12(B)(6) Motion

Marshall asserts in his first proposition of law that the court of appeals erred by failing to give notice to the parties that it was converting his Civ.R. 12(B)(6) motion to dismiss into a Civ.R. 56 motion for summary judgment.

Civ.R. 12(B) provides:

"When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the matters shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56." (Emphasis added.)

Under Civ.R. 12(B) and 56(C), a court must notify all parties at least fourteen days before the time fixed for hearing when it converts a motion to dismiss for failure to state a claim into a motion for summary judgment. Petrey v. Simon (1983), 4 Ohio St.3d 154, 4 OBR 396, 447 N.E.2d 1285, paragraphs one and two of the syllabus; Civ.R. 56(C) ("The motion shall be served at least fourteen days before the time fixed for hearing."). " 'The primary vice of unexpected conversion to summary judgment is that it denies the surprised party sufficient opportunity to discover and bring forward factual matters [that] may become relevant only in...