Tiemann v. Univ. of Cincinnati, 97API10-1418

• Decision Date: 21 April 1998
• Docket Number: No. 97API10-1418,97API10-1418
• Citation: 127 Ohio App.3d 312,712 N.E.2d 1258
• Parties: TIEMANN et al., Appellees and Cross-Appellants, v. UNIVERSITY OF CINCINNATI, Appellant and Cross-Appellee. *
• Court: Ohio Court of Appeals

Page 312

127 Ohio App.3d 312

712 N.E.2d 1258

TIEMANN et al., Appellees and Cross-Appellants, v. UNIVERSITY OF CINCINNATI, Appellant and Cross-Appellee. ^*

No. 97API10-1418.

Court of Appeals of Ohio Tenth District, Franklin County.

Decided April 21, 1998.

Brickler & Eckler, L.L.P., Luther L. Liggett, Jr. and Elbert J. Kram, Columbus; Price Co., L.P.A., and Edwin C. Price, Jr., Cincinnati, for appellees and cross-appellants.

Betty D. Montgomery, Attorney General, and William C. Becker, Columbus, for appellant and cross-appellee.

JOHN C. YOUNG, Judge.

Defendant, University of Cincinnati, desiring to have a university conference center built on university land, entered into a "ground lease" and subsequent "lease agreement," on December 1, 1996, with Fifth Third Leasing Company, by which Fifth Third would cause a conference center to be constructed, and then sublease the project site and center back to the university in return for the university's payment of "rent" over a twenty-seven-year period, with resulting ownership of the project by the university. On December 1, 1996, Fifth Third entered into a "development agreement" with Walsh, Higgins & Company ("Walsh, Higgins") to construct the conference center. The university was to make its "rent" payments from a "general receipts" fund, which was to include student fees, revenues resulting from operation of the conference center, unrestricted grants, gifts, donations and pledges, but not "monies raised by state appropriations and taxation."

After receiving notice of the construction project, plaintiffs filed a complaint in the Court of Claims on June 30, 1997, seeking declaratory and injunctive relief, asserting standing as a taxpayer, contractors, and contractor associations. The suit sought to enjoin defendants, the state of Ohio and University of Cincinnati, from proceeding with the construction project on defendants' land and bypassing Ohio's public works and bidding requirements of R.C. Chapter 153 and other enumerated statutes. The university, an instrumentality of the state created by R.C. Chapter 3361, maintains that an exemption from the public works laws exists in this instance, based on the wording of R.C. 3345.12(Q).

The university filed a motion to dismiss for lack of jurisdiction, for failure to join indispensable parties, for lack of standing of plaintiffs to bring suit, and for failure of plaintiffs to bring its suit within the statute of limitations. Defendant's motion was overruled by the trial court on August 15, 1997. The university and Walsh, Higgins then filed complaints in prohibition with this court, each of which was dismissed on respondents' motions on September 4, 1997. On October 16, 1997, after a trial on the merits, the Court of Claims entered judgment as follows: (1) dismissing two plaintiff contractors and one plaintiff contractors' association (Cincinnati Chapter National Electrical Contractor's Association, Inc., Charles Randolph Company, and Village Building Services, Inc.) for failure to prosecute their claims; (2) declaring that defendant was not relieved from complying with Ohio law on public works, competitive bidding, and construction contracting; (3) permanently enjoining defendant from proceeding any further on the conference center project without complying with the public works and bidding laws; and (4) denying plaintiffs' requests for attorney fees. The university's motion for a stay of judgment, filed in the Court of Claims, was overruled by that court on October 22, 1997. A motion to stay the trial court's judgment pending appeal was filed with this court on October 28, 1997, and was granted on November 6, 1997. The university filed its notice of appeal with this court on October 28, 1997, and plaintiffs-appellees (Robert W. Tiemann, Fred DeBra Company, Greater Cincinnati Plumbing Contractors Association, Inc., and Mechanical Contractors Association of Cincinnati, Inc.) filed their notice of cross-appeal with the court on November 12, 1997.

Appellant and the remaining appellees appeal and cross-appeal to this court from the judgment of the Court of Claims.

Appellant states as its assignments of error from the trial court the following:

"First Assignment of Error

"The trial court erred in deciding it had jurisdiction to hear and determine claims for declaratory and injunctive relief when plaintiffs sought no money damages.

"Second Assignment of Error

"The trial court erred in deciding it could issue a declaratory judgment and injunction affecting the contract rights of private entities that were not, and could not be, joined as parties.

"Third Assignment of Error

"The trial court erred when it determined that plaintiff Tiemann has standing to bring a taxpayer suit to challenge activities that do not involve the expenditure of tax revenues.

"Fourth Assignment of Error

"The trial court erred in determining that plaintiffs Fred B. DeBra Company, Greater Cincinnati Plumbing Contractors Association, Inc., and Mechanical Contractors Association of Cincinnati, Inc., have standing, when none of these parties presented evidence of injury in fact to a legally protected interest.

"Fifth Assignment of Error

"The trial court erred in holding that plaintiffs-appellees' claims were not barred by the Statute of Limitations, despite their receipt more than two years prior to commencement of the action of written notice of appellant's intention to proceed without complying with the public works statutes.

"Sixth Assignment of Error

"The trial court erred when it held that the Ohio public works statutes apply to construction by private entities of facilities that are to be leased to the University of Cincinnati pursuant to R.C. § 3345.12(Q)."

Cross-appellants (plaintiffs-appellees) state as their assignments of error from the trial court the following:

"First Assignment of Error:

"The trial court erred by failing to declare the illegal public contracts void ab initio.

"Second Assignment of Error:

"The trial court erred as a matter of law by applying the incorrect standard for consideration of an award of attorney fees to the prevailing parties."

In appellant's first assignment of error, appellant contends that the Court of Claims has no jurisdiction over appellees' claims for declaratory judgment and injunctive relief. R.C. 2743.03(A)(1) provides for the creation of the Ohio Court of Claims to hear civil actions permitted by the waiver of immunity contained in R.C. 2743.02 and further provides that the Court of Claims shall have full equity powers in all actions within its jurisdiction. R.C. 2743.02(A)(1) states:

"The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter and in accordance with the same rules of law applicable to suits between private parties * * *."

This section goes on to state that "[t]o the extent that the state has previously consented to be sued, this chapter has no applicability." Thus, "the Court of Claims was not to have exclusive, original jurisdiction over claims from which the state was not immune prior to the effective date of the Act." Friedman v. Johnson (1985), 18 Ohio St.3d 85, 86, 18 OBR 122, 123, 480 N.E.2d 82, 83.

Claims for declaratory and injunctive relief were permitted against state agencies prior to the enactment of the Court of Claims Act. Racing Guild of Ohio, Local 304 v. State Racing Comm. (1986), 28 Ohio St.3d 317, 28 OBR 386, 503 N.E.2d 1025. However, R.C. 2743.03(A)(2) provides that when a claimant in a civil suit against the state "files a claim for a declaratory judgment, injunctive relief, or other equitable relief against the state that arises out of the same circumstances that gave rise to the civil action described in division (A)(1) of [the] section, the court of claims has exclusive, original jurisdiction to hear and determine that claim in that civil action." In Upjohn Co. v. Ohio Dept. of Human Serv. (1991), 77 Ohio App.3d 827, 603 N.E.2d 1089, this court found that, arguably, claims for declaratory and injunctive relief may be properly brought before the Court of Claims "only if (1) they arise out of the same circumstances as plaintiffs' claim for money damages, and (2) plaintiffs' claim for money damages is permitted by the state's waiver of immunity." Id. at 834, 603 N.E.2d at 1094.

Although appellees state in their complaint that their suit for relief against appellant is "without a claim for monetary damages," this court finds that appellees do allege some form of money damage in paragraphs 57 and 60 of their complaint arising out of appellant's actions, that damage being "not possible to calculate" at the time the complaint was filed. ¹ The Ohio Supreme Court held in Friedman that jurisdiction is proper in the Court of Claims when "appellees sought injunctive, declaratory, and other necessary and proper relief." Id., 18 Ohio St.3d at 87, 18 OBR at 123,, 480 N.E.2d at 83. In their prayer for relief, appellees seek declaratory judgment, injunctive relief, and "any further relief" from the Court of Claims.

This court held in Am. Fedn. of State, Cty. & Mun. Emp. v. Blue Cross of Cent. Ohio (1979), 64 Ohio App.2d 262, 18 O.O.3d 227, 414 N.E.2d 435, that the Court of Claims has jurisdiction to render a declaratory judgment and to provide other equitable relief appropriate and that "[p]laintiffs' failure to expressly pray for monetary damages is not a defect in their complaint for which the complaint should be dismissed." Id. at 267, 18 O.O.3d at 230, 414 N.E.2d at 439. The court also held:

"To require plaintiffs to set forth the calculated amount [of damages] due * * * before determining that the state owes them anything would seem to subvert one of the purposes for which the Declaratory Judgment Act was adopted." Id. See, also, Plastic Surgery Associates, Inc. v. Ratchford (1982), 7 Ohio App.3d 118, 7 OBR 151, 454 N.E.2d 567.

The court...