State ex rel. v. Cuyahoga Cty. Commrs.

• Decision Date: 07 February 2007
• Docket Number: No. 2006-1038.,2006-1038.
• Parties: The STATE ex rel. BOCCUZZI et al., Appellants, v. CUYAHOGA COUNTY BOARD OF COMMISSIONERS et al., Appellees.
• Court: Ohio Supreme Court

860 N.E.2d 749

112 Ohio St.3d 438

2007-Ohio-323

The STATE ex rel. BOCCUZZI et al., Appellants, v. CUYAHOGA COUNTY BOARD OF COMMISSIONERS et al., Appellees.

No. 2006-1038.

Supreme Court of Ohio.

Submitted January 10, 2007.

Decided February 7, 2007.

COPYRIGHT MATERIAL OMITTED

Phillips & Co., L.P.A. and Gerald W. Phillips, for appellants.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for appellees.

PER CURIAM.

{¶ 1} This is an appeal from a judgment dismissing an amended complaint for a writ of mandamus to compel county commissioners to award the sanitary-sewer portion of a joint construction project between the county and a city separately from the rest of the project and to refund the amount paid by the city in excess of the amount it would have paid if the sanitary-sewer project had been awarded separately. Because the county commissioners had no legal duty to separately award the sanitary-sewer portion of the project, we affirm.

Joint Construction Project: Bidding and Award

{¶ 2} In 1980, Cuyahoga County and the city of Parma entered into an agreement to improve Pleasant Valley Road from York Road to State Road. In 1989, the Parma City Council adopted Resolution No. 395-89, which requested that the Cuyahoga County Engineer include the installation of sanitary sewers in the joint construction project. In the resolution, the city agreed to assume a share of the cost of the sanitary sewers. In 2003, the Parma City Council passed Resolution No. 307-03, which assessed the cost of constructing sanitary sewers on the property bounding and abutting the improvement.

{¶ 3} Appellees Cuyahoga County Commissioners requested bids for the entire construction project, which included the sanitary-sewer improvement requested by Parma. The low bidder was Blaze Construction, Inc., which bid a total of $14,884,892.80, including $1,944,909 for the sanitary-sewer portion of the project. The next lowest bidder was Fabrizi Trucking & Paving Co., Inc., which bid $14,917,044.50, including $1,346,527.50 for the sanitary-sewer improvement. On January 20, 2004, the county awarded the contract for the entire construction project to Blaze. Blaze subcontracted the sanitary-sewer work to Fabrizi and reduced its charge for that portion of the project by $147,000. Parma later agreed to contribute an additional $250,000 towards the cost of the sanitary-sewer improvement, thereby reducing the assessment on the lands abutting the improvement.

{¶ 4} In May 2004, the county and the city amended their project agreement to provide that Parma's portion of the sanitary-sewer improvement costs would be that amount in excess of $1 million. The city acknowledged in the supplemental agreement with the county that Blaze had been awarded the construction contract. The city thereafter approved the supplemental agreement.

Taxpayer Demands

{¶ 5} Appellant Pleasant Valley Property Owners Association is an unincorporated association of property owners and taxpayers who own property located on West Pleasant Valley Road in Parma. Appellants Dominic and Angela Boccuzzi and James and Carolyn Fraetig are members of the association. Appellants own land that bounds, abuts, and is specially benefited by the sanitary-sewer improvement project.

{¶ 6} Appellants made a taxpayer demand on the Parma Law Director to bring an action to compel the performance of duties enjoined by law under the contract regarding the award and bidding process. Appellants claimed that the sanitary-sewer portion of the construction contract should have been awarded separately from the rest of the contract. Appellants made an identical taxpayer demand on the Cuyahoga County Prosecuting Attorney. Appellants' demands were either rejected or ignored.

Mandamus Case

{¶ 7} On April 29, 2005, appellants filed a complaint in the Court of Appeals for Cuyahoga County for a writ of mandamus against appellees, Cuyahoga County Commissioners, the county treasurer, and the director of the county office of budget and management. Appellants subsequently filed an amended complaint, to which appellees filed a motion to dismiss for failure to state a claim upon which relief in mandamus could be granted.

{¶ 8} Instead of filing a timely memorandum in response to the motion to dismiss, appellants filed a second amended complaint. In their second amended complaint, as in their previous complaints, appellants requested a writ of mandamus (1) to compel the county commissioners to award the project to Blaze as the general overall contractor in the amount of $14,844,892.80 and to Fabrizi as the contractor of the sanitary-sewer improvement in the amount of $1,346,527.50, (2) to compel appellees to charge Parma an estimated cost of $199,527.50 for the sanitary-sewer improvement, and (3) to compel appellees to refund to Parma any amounts paid for the sanitary-sewer improvement in excess of the estimated cost of $199,527.50. Appellants alleged that the county commissioners "abused [their] discretion, acted in bad faith, acted in conflict of interest and self dealing, acted arbitrarily, and acted capriciously in awarding the bid for the Project and Sanitary Sewer Improvement solely to Blaze Construction, Inc."

{¶ 9} More specifically, appellants claimed that the commissioners had a duty to award the sanitary-sewer portion of the project separately to the lowest bidder, Fabrizi, pursuant to R.C. 307.90 and 153.61, which govern the joint-construction agreements between the county and the city. The court of appeals subsequently ordered appellants to file a brief in opposition to appellees' motion to dismiss, but appellants did not file any brief.

{¶ 10} On April 11, 2006, the court of appeals granted appellees' motion and dismissed appellants' second amended mandamus complaint.

{¶ 11} This cause is now before the court upon appellants' appeal as of right.

Mandamus: Separate Awards of Construction Contract

{¶ 12} Appellants assert that the court of appeals erred in dismissing their second amended complaint for a writ of mandamus. "Under Civ.R. 12(B)(6), dismissal for failure to state a claim upon which relief can be granted is proper if, after all material factual allegations of the complaint are presumed true and all reasonable inferences are made in appellants' favor, it appears beyond doubt that they could prove no set of facts warranting the requested extraordinary relief in mandamus." State ex rel. MetroHealth Med. Ctr. v. Sutula, 110 Ohio St.3d 201, 2006-Ohio-4249, 852 N.E.2d 722, ¶ 7.

{¶ 13} In order to be entitled to the requested writ of mandamus, appellants had to establish a clear legal right to a separate award of the contract for the sanitary-sewer improvement, a corresponding clear legal duty on the part of the county commissioners to make the separate award, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Dayton Law Library Assn. v. White, 110 Ohio St.3d 335, 2006-Ohio-4573, 853 N.E.2d 651, ¶ 18.

{¶ 14} Appellants claim that they are entitled to the writ based upon R.C. 307.90 and 153.61. Under R.C. 307.90(A), with respect to boards of county commissioners, the "award of all contracts subject to sections 307.86 to 307.92 of the Revised Code shall be made to the lowest and best bidder." Pursuant to R.C. 153.61, "[a]ny county or counties and any municipal corporation or municipal corporations may enter into an agreement providing for the joint construction, acquisition, or improvement of any public work, public building, or other permanent improvement benefiting the parties thereto and providing for the joint management, occupancy, maintenance, and repair thereof."

{¶ 15} In construing a comparable...