DocketNumber: Nos. 95-L-060 and 95-L-062.
Citation Numbers: 670 N.E.2d 1042, 108 Ohio App. 3d 373
Judges: NADER, Judge.
Filed Date: 12/26/1995
Status: Precedential
Modified Date: 4/15/2017
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 375
This is an appeal and cross-appeal from two judgments of the Lake County Court of Common Pleas. Appellant and cross-appellee, the city of Mentor ("appellant" or "city"), appeals the decisions declaring its bid solicitation for a public works project to be improper and finding the action to be a taxpayer suit and subject to an award of attorney fees. Appellees and cross-appellants, the National Electrical Contractors Association, Inc. ("NECA"), the Ohio Mechanical Contracting Industry, Inc. ("OMCI"), Ralph Day, and Day Electric Company, Inc. (collectively, "appellees"), appeal from the decision of the court finding that appellant's charter conferred authority to deviate from the requirements of R.C.
Appellee Ralph Day is a resident and taxpayer in the city of Mentor. He is the President and CEO of appellee Day Electric Company, Inc., an electrical contractor, which pays corporate taxes to the city. Appellee NECA is an association of electrical contractors. OMCI is an association of skilled trades contractors which provide plumbing, heating, ventilating and air conditioning services.
In 1993, appellant solicited bids for two projects: the fire station and the senior center. For each project, appellant advertised that consideration would be given only to "prime aggregate bids," which required general contractors to submit a single bid for the entire project. This excluded contractors in specific trades from being considered separately for the projects.
Believing that the bidding procedure for the two projects violated state law, appellee Day sent letters to the city and the city law director, prior to the bid *Page 376
opening dates, requesting that the city accept separate bids from the individual trades. The letter addressed to the law director requested that a suit be filed pursuant to R.C.
On September 9, 1993, appellees filed a complaint for declaratory judgment and injunctive relief. The action was brought as a taxpayer's suit. The trial court denied temporary injunctive relief. However, appellant did not award a contract on either project. Early in 1994, appellant resolicited bids for the fire station project, once again requiring prime aggregate bids. On February 3, 1994, appellees filed an amended complaint. The trial court denied temporary and preliminary relief.
On February 8, 1994, appellant passed Ordinance No. 94-0-11, authorizing the advertising for and awarding of prime aggregate bids only. On this same date, appellant awarded the fire station project to a general contractor, who had submitted an aggregate bid, through the passage of Ordinance No. 94-0-12. Subsequently, bidding was reopened on the senior center project and a contract was awarded to an aggregate bidder.
Both parties filed motions for summary judgment. Following extensive briefing, judgment was filed on December 30, 1994. The court held that the city possessed the home rule authority under its charter to enact the ordinance restricting bids for public works to aggregate bids, thereby superseding the dictates of R.C.
On March 8, 1995, the trial court entered judgment finding the requirements for a statutory taxpayer action had been met, and awarding attorney fees in the amount of $34,439.17.
Appellant has filed a notice of appeal from these judgments, assigning the following as error:
"1. The trial court erred in finding the city of Mentor violated R.C.
"2. The trial court erred in sustaining the taxpayers action and awarding attorney fees in the amount of $34,439.197 [sic]."
Appellees have filed a cross-appeal from the judgments, and present two cross-assignments of error: *Page 377
"1. The trial court erred in failing to grant summary judgment or default judgment to Appellees/Cross-Appellants as a matter of law, and given the City of Mentor's failure to file an amended answer or a response.
"2. The trial court violated Appellees/Cross-Appellants' Constitutional right to due process by granting summary judgment to the City of Mentor thus denying a trial on the factual dispute raised by Appellees/Cross-Appellants."
For appellant's first assignment of error, it is argued that the trial court erred in concluding that the bidding procedure for the fire station project was in violation of R.C.
R.C.
"[A] municipal corporation * * * authorized to contract for the erection, repair, alteration, or rebuilding of a public building * * * or improvement and required by law to advertise and receive proposals for furnishing of materials and doing the work necessary for the erection thereof, shall require separate and distinct proposals to be made for furnishing such materials or doing such work, or both, in their discretion, for each separate and distinct trade or kind of mechanical labor, employment, or business entering into the improvement."
The trial court held that the Home Rule Amendment to the Ohio Constitution, found in Section 3, Article XVIII, permitted the city to provide in its charter for the solicitation of aggregate bids in public works projects in contravention of the mandates of R.C.
Section
"Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government."
Section 3, Article XVIII reads:
"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
It is well established that the words "as are not in conflict with general laws" modify the words "local police, sanitary and other similar regulations," but not the words "powers of local self-government." State ex rel. Canada v. Phillips (1958),
In Natl. Elec. Contrs. Assn., Inc. v. Painesville (Jan. 29, 1973), Lake App. No. 202, unreported, affirmed on other grounds (1973),
In Dies Elec. Co. v. Akron (1980),
"In Fitzgerald v. Cleveland [(1913),
In Dies Elec. Co.,
"A charter municipality, in the exercise of its powers of local self-government under Section
This court concludes, based upon Dies Elec. Co. and our prior decision in Natl. Elec. Contrs. Assn., that the decision to restrict bidding for public works projects to aggregate bids is a matter of local self-government. Accordingly, a charter provision authorizing the restricted bidding procedure prevails over *Page 379
R.C.
In State ex rel. Bardo v. Lyndhurst (1988),
"* * * Although the Constitution gives municipalities the authority to adopt home rule, local self-government, the exercise of those powers by the adoption of a charter should clearly and expressly state the areas where the municipality intends to supersede and override general state statutes." See, also, State ex rel. Regetz v. Cleveland Civ. Serv. Comm. (1995),
An examination of appellant's charter reveals an intent to exercise home rule powers to the fullest extent, as well as a clear and express authorization for the city council to supersede state law in the areas of bid solicitations and public works contract awards.
Section 2.02, Article II of the charter provides:
"The municipality shall have all the powers, general or special, governmental or proprietary, that may now or hereafter lawfully be possessed or exercised by municipal corporations under the Constitution and general laws of the State of Ohio. The powers of this municipality shall be exercised in the manner prescribed in this Charter, or, to the extent that the manner is not prescribed herein, in such manner as the Council may determine. The powers of the municipality may also be exercised, except as a contrary intent or implication in this Charter or in the enactments of the Council, in such manner as may now or hereafter be provided by the general laws of the State of Ohio."
Section
"All the legislative power of the municipality and the determination of all matters of policy shall be vested in the Council. Without limitation of the foregoing, the Council may by ordinance make provisions differing from the general law with respect to:
"* * *
"(E) The making, advertising and awarding of contracts, except as provided in Section 7.03 of this Charter * * *."1 *Page 380
The trial court in the case sub judice held, however, that R.C.
It has been held that:
"`A charter is not power. It is the symbol of power. It provides the means and the methods to exercise powers.* * *'"Dies Elec. Co.,
Section
For the foregoing reasons, appellant's first assignment of error is without merit.
For its second assignment of error, appellant argues that the court erred in awarding attorney fees to appellee Day. This court agrees as appellees failed to deposit security for the costs of the action.
In Creed v. Sauline (Aug. 12, 1994), Trumbull App. No. 93-T-4977, unreported, 1994 WL 587389, at 6-7, it was stated: *Page 381
"R.C.
"In this case, Sauline and the other defendants presented evidence indicating that although appellant had paid the initial fee for filing the action, she never filed any security covering the costs of the action with the clerk of courts. Thus, underSydnor, the trial court did not err in determining that she was not entitled to recover attorney fees. * * *"
This court questions the precise nature of the "security" requirement of R.C.
Accordingly, the trial court in the present action incorrectly determined that it possessed jurisdiction to award attorney fees on the ground that the payment of the initial fee for the filing of the action satisfied the security requirement of R.C.
The second assignment of error has merit.
Under the "first issue presented for review and argument" contained in appellees' first cross-assignment of error, it is argued that the requirements of R.C.
Under appellees' second proposition in their first cross-assignment of error, it is argued that the trial court erred in denying their motion for default judgment because of appellant's failure to file an answer to appellees' amended complaint, and that the trial court was required to enter summary judgment in their favor as a matter of law due to the absence of evidence contradicting the evidence contained in the "supplement" to appellees' motion for summary judgment. *Page 382
Civ.R. 55(D) provides:
"No judgment by default shall be entered against this state, a political subdivision, or officer in his representative capacity or agency of either unless the claimant establishes his claim or right to relief by evidence satisfactory to the court."
Appellees claim that the "supplement" to their motion for summary judgment provided sufficient evidence requiring either the entry of default judgment or summary judgment. Assumingarguendo that the "supplement" was properly before the trial court, we conclude that the evidence offered therein did not require the entry of default judgment or summary judgment in appellees' favor.
The evidence submitted in the "supplement" was introduced to demonstrate that, as a consequence of the aggregate bidding procedure by appellant, the general contractor who had been awarded the fire station contract engaged in "bid shopping" to increase its own profit and discriminated against individual trade contractors in awarding subcontracting work. This evidence reflected upon the wisdom of the city in restricting bidding to aggregate bids. It was not, however, relevant to the issue of whether the city was authorized by the Home Rule Amendment to the Ohio Constitution and its own charter to supersede the provisions of R.C.
The question of whether a particular action by a municipality is an exercise of the powers of local self-government, and the construction of a municipal charter are matters of law for a court to decide. See State ex rel. Paluf v. Feneli (1994),
The first cross-assignment of error is without merit.
For their second cross-assignment of error, appellees contend that there exist genuine issues of material fact which require a trial. The factual issues which are alleged to exist relate to whether the city's actions were an exercise of local self-government or local police power, and whether R.C.
The second cross-assignment of error is without merit.
In accordance with the foregoing, the second assignment of error has merit and the March 8, 1995 judgment awarding attorney fees is reversed. Appellant's first assignment of error and appellees' cross-assignments of error are without merit and the December 30, 1994 judgment is affirmed.
Judgment accordingly.
CHRISTLEY, P.J., and JOSEPH E. MAHONEY, J., concur.
"The Manager may, within the amounts and items appropriated by Council, make purchases and enter into contracts on behalf of the City involving expenditures less than the amount for which bids are required pursuant to Section