DocketNumber: No. 87365.
Citation Numbers: 2006 Ohio 5244
Judges: FRANK D. CELEBREZZE, JR., J.
Filed Date: 10/5/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} MetroHealth is a hospital owned by the state and county. In May 2004, MetroHealth acquired the Deaconess hospital facility. MetroHealth wished to renovate the facility, including its power plant. In renovating the power plant, MetroHealth wanted to employ energy conservation measures to decrease energy costs. MetroHealth needed to contract with a vendor who could implement these renovations within a specified budget. To that end, MetroHealth decided to seek proposals from contracting vendors for the project, pursuant to R.C.
{¶ 3} Between May and June 2004, MetroHealth initiated the proposal process of R.C.
{¶ 4} On July 6, 2004, appellants, Brewer-Garrett and Zellers, filed a complaint seeking declaratory judgment, injunctive relief, mandamus, attorney fees and costs. Hours before filing the complaint, appellants faxed a letter to the Cuyahoga County Prosecutor's office asking the prosecutor to also take action against MetroHealth on behalf of the taxpayers. The prosecutor's office refused, asserting that notice of only a few hours was an insufficient amount of time to properly investigate the matter. Appellants therefore filed suit on behalf of the state as taxpayers, pursuant to R.C.
{¶ 5} On July 7, 2004, the trial court issued a temporary restraining order ("TRO") enjoining MetroHealth from entering into or executing any form of contract with Reliance. This TRO was effective until July 12, 2004, at which time a hearing was held pursuant to appellants' motion for preliminary injunction. On July 21, 2004, the trial court issued a judgment entry granting the preliminary injunction.
{¶ 6} MetroHealth responded by filing a motion to set bond. MetroHealth's board also took collateral measures and, on July 28, 2004, rescinded its authorization to contract with Reliance pursuant to the R.C.
{¶ 7} On November 1, 2004, the trial court issued a journal entry granting in part appellees' motion for summary judgment, holding that neither Brewer-Garrett nor Zellers were valid taxpayers permitted to file public suit pursuant to R.C.
{¶ 8} On December 28, 2004, the trial court issued a judgment entry that proved fatal to appellants' complaint wherein the trial court denied a motion by appellants for leave to amend their complaint. It also denied their prior motion for summary judgment holding that it did not have the power to order the county to enter into a contract with Brewer-Garrett. Accordingly, the trial court dismissed appellants' claim for mandamus, leaving only the claims for declaratory judgment and injunctive relief.
{¶ 9} On February 18, 2005, appellees filed a motion for summary judgment on the remaining counts arguing that they were now moot since the R.C.
{¶ 11} "Plaintiff's motion for leave to file first amended complaint to add new party defendants, filed 10/20/04, is denied. Plaintiff's motion for summary judgment, filed 8/4/04, is denied. * * * For the energy conservation program to renovate the Deaconess Facility power plant MetroHealth chose to request proposals under O.R.C.
{¶ 12} Appellants also argue that the trial court erred in its November 1, 2004 judgment entry, which found that they are unable to bring a public suit as taxpayers pursuant to R.C.
{¶ 13} "* * * The court finds plaintiff's attempt to bring this action as a Cuyahoga county taxpayer is without merit. O.R.C.
{¶ 14} Lastly, appellants challenge the trial court's finding that the remaining claims are moot. They argue that MetroHealth was in violation of the court ordered preliminary injunction when it rejected all proposals and proceeded with a competitive bidding process. After review of the record and the arguments presented, we find no error in the trial court's rulings.
{¶ 16} An appellate court reviews a trial court's decision on a motion for leave to file an amended pleading under an abuse of discretion standard. Wilmington Steel Products, Inc. v.Cleveland Electric Illuminating Company (1991),
{¶ 17} "Where a Plaintiff fails to make a prima facie showing of support for new matters sought to be pleaded, a trial court acts within its discretion to deny a motion to amend the pleadings." Wilmington Steel Products, Inc., supra. Where an amendment to the complaint would have been futile, the trial court also does not abuse its discretion in denying the motion.Perrin v. Bishop (Dec. 2, 1993), Cuyahoga App. No. 64266.
{¶ 18} Appellants' motion for leave to amend does not make a sufficient showing of support for the amendments. In addition, there is evidence of futility in the proposed amendments. Appellants did not provide sufficient support for the addition of the newly named defendants to the complaint. The record demonstrates that there was no significant explanation given for the need to add John Carroll or the Cuyahoga County Commissioners to the litigation. An amended pleading is designed to include matters occurring before the filing of the complaint, but were either overlooked or not known at the time. Meyer v. WabashAlloys, LLC, Cuyahoga App. No. 80884, 2003-Ohio-4400. Here, appellants knew of these parties and their significance prior to filing their original complaint. It therefore was not an abuse of discretion to find that it was not appropriate to grant appellants' attempt to add these parties through an amended complaint well into the litigation.
{¶ 19} As for their attempt to add a claim for damages, the law is clear that such a claim is not permitted in this type of case. The courts of Ohio have consistently held that monetary damages are not remedies available to unsuccessful bidders in a public bidding situation. Cavanaugh Bldg. Corp. v. Bd. CuyahogaCty. Comm'rs (Jan. 27, 2000), Cuyahoga App. No. 75607; MidwestServ. Mgmt. v. Local Bd. of Edn. (2001),
{¶ 20} The court in Hardrives, supra, clearly stated its reasons for not allowing monetary damages to be awarded in these cases:
{¶ 21} "[I]f monetary damages for lost profits were an available remedy, damages would provide an adequate remedy at law and injunction would not be appropriate. Thus, the fact that injunctive relief is available generally indicates that a monetary award is not available for lost profits.
{¶ 22} "* * *
{¶ 23} "The intent of competitive bidding [or an RFP process] is to protect both the public and the bidders themselves. SeeCedar Bay Constr.,
{¶ 24} The only case appellants cite in refuting the barring of damage awards in these cases is Cementech, Inc. v. Fairlawn
(2005),
{¶ 25} With no genuine support for the naming of new defendants, and by proposing the addition of a claim not permitted by law, we cannot find an abuse of discretion by the trial court in denying appellants' motion for leave to amend the complaint. Thus the trial court did not err in so ruling.
{¶ 27} To be entitled to a writ of mandamus, one must establish: "1) that he has a clear legal right to the relief prayed for, 2) that respondents are under a clear legal duty to perform the acts, and 3) that the [moving party] has no plain and adequate remedy in the ordinary course of the law." Goudlock v.State, Cuyahoga App. No. 84135,
{¶ 28} MetroHealth decided to find a vendor to implement energy conservation measures via a RFP process pursuant to R.C.
{¶ 29} "(C) A county desiring to implement energy conservation measures may proceed under either of the following methods:
{¶ 30} "(1) Using a report of any part of a report prepared under division (B) of this section, advertise for bids and comply with sections
{¶ 31} "(2) Notwithstanding sections
{¶ 32} "Upon receiving the proposals, the county shall analyze them and select the proposal or proposals most likely to result in the greatest energy savings considering the cost of the project and the county's ability to pay for the improvements with current revenues or by financing the improvements. The awarding of a contract to install energy conservation measures under division (C)(2) of this section shall be conditioned upon a finding by the contracting authority that the amount of money spent on energy savings measures is not likely to exceed the amount of money the county would save in energy and operating costs over ten years or a lesser period as determined by the contracting authority or, in the case of contacts of conservation systems, over five years or a lesser period as determined by the contracting authority. Nothing in this section prohibits a county from rejecting all proposals or from selecting more than one proposal."
{¶ 33} Nothing in this statute dictates that the acceptance of a proposal definitively leads to a contract. There are still hurdles to overcome to be awarded a contract once a proposal is accepted. The contracting authority can also choose more than one proposal, which further indicates that negotiations may continue even after a proposal is accepted. Thus, appellants cannot survive the first prong of the mandamus test since there is no clear legal right to the relief prayed for in that there is no absolute right to a contract pursuant to R.C.
{¶ 34} While it is apparent that the rulings in this matter are to follow the interpretations of R.C.
{¶ 35} "Anything to be purchased, leased, leased with an option or agreement to purchase, or constructed, including, by not limited to, any product, structure, construction, reconstruction, improvement, maintenance, repair, or service, except the services of an accountant, architect, attorney at law, physician, professional engineer, construction project manager, consultant, surveyor, or appraiser, by or on behalf of the county or contracting authority, as defined in section
{¶ 36} Even using this standard in finding a vendor does not allow for the trial court to grant appellants' writ of mandamus. No contract was entered into, so no legal duty ever existed. Therefore, appellants are not entitled to mandamus, and the trial court did not err in rejecting their request for a writ ordering the award of the renovation contract.
{¶ 38} "Upon being satisfied that funds of the county, or public moneys in the hands of the county treasurer or belonging to the county, are about to be or have been misapplied, * * * orthat a contract, in contravention of the law, has been executedor is about to be entered into, or that such contract wasprocured by fraud or corruption, * * *, the prosecuting attorney may, by civil action in the name of the state, apply to a court of competent jurisdiction, to restrain such contemplated misapplication of funds, or the completion of such illegal contract, or to recover, for the use of the county, all public moneys so misapplied or illegally drawn or withheld from the county treasury, or to recover damages, for the benefit of the county, resulting from the execution of such illegal contract, * * * or to recover for the benefit of the county, damages resulting from the nonperformance of the terms of such contract, or to otherwise enforce it, or to recover such money as is due the county." (Emphasis added.)
{¶ 39} A taxpayer may file such a public lawsuit on behalf of the state if the following requirements of R.C.
{¶ 40} "If the prosecuting attorney fails, upon the written request of a taxpayer of the county, to make the application or institute the civil action contemplated in section
{¶ 41} "If such prosecuting attorney fails upon the written request of a taxpayer of the county, to bring such suit or institute such proceedings, or if for any reason the prosecuting attorney cannot bring such action, or if he has received and unlawfully withheld moneys belonging to the county, or has received or drawn public moneys out of the county treasury which he is not lawfully entitled to demand and receive, a taxpayer, upon securing the costs, may bring such suit or institute such proceedings, in the name of the state. Such action shall be for the benefit of the county, as if brought by the prosecuting attorney.
{¶ 42} "If the court hearing such case is satisfied that such taxpayer is entitled to the relief prayed for in his petition, and judgment is ordered in his favor, he shall be allowed his costs, including a reasonable compensation to his attorney."
{¶ 43} Appellants contend that they validly filed public suit as taxpayers pursuant to R.C.
{¶ 44} In rejecting appellants' status as a valid taxpayer for the purposes of filing a public lawsuit on behalf of the state, the trial court stated a couple of reasons. First, the trial court noted that appellants did not give the prosecutor's office sufficient time to file the suit before filing the suit themselves. Second, the trial court asserted that since appellants were merely filing the taxpayer suit for their own personal benefit rather than for the benefit of the general public, they were not allowed taxpayer status by law. We concur with the logic and decision of the trial court.
{¶ 45} A party must allow a meaningful opportunity for the prosecuting attorney to file a public civil suit. Not only must a taxpayer provide a written request to the prosecuting attorney to bring a public suit, a taxpayer must also allow the prosecuting attorney a reasonable amount of time to comply with that request.Mulder v. Village of Amherst (1962),
{¶ 46} Appellants provided the prosecutor's office with only approximately three to four hours to comply with its request for a public suit. While there is no bright-line test for what is or is not a reasonable amount of time, we do not find a few hours to be reasonable.
{¶ 47} In addition, there are real questions as to appellants' true motivation in filing a public suit. It is clear from the statute that the purpose of a public suit is to protect the public. It is not to be used for personal benefit. This court has held that a taxpayer action of this type may not be filed strictly for personal benefit. City of Cleveland ex rel.O'Malley v. White, supra; See, also, State ex rel. Fisher v.City of Cleveland, Cuyahoga App. No. 83945,
{¶ 48} Appellants contend that although they would clearly benefit from a public suit decision in their favor, there is still a public benefit in that the state would, allegedly, be receiving lower energy costs with their renovation proposal. It appears from the record that the true intent is the recoupment of costs and damages and for the award of a contract. This court is hard pressed to find any concern with the public welfare; rather, it seems clear that this suit is for the benefit of appellants. Thus, we do not find error in the trial court's decision to reject appellants' taxpayer status to file a public suit pursuant to R.C.
{¶ 50} The preliminary injunction issued by the trial court on July 21, 2004, enjoined MetroHealth from contracting with Reliance pursuant to the R.C.
{¶ 51} "The defendant MetroHealth System is enjoined frompresenting Reliance's proposal to the County Commissioners for approval until further order of the court." (Emphasis added.)
{¶ 52} It is clear from the record that the trial court's concern in granting the preliminary injunction was the propriety of the proposal process that took place; however, the trial court was silent as to whether MetroHealth was enjoined from terminating the process at issue and choosing another process to find a vendor capable of implementing the energy conservation measures.
{¶ 53} A plain reading of R.C.
{¶ 54} Since the proposal process that was enjoined by the trial court's preliminary injunction had been terminated, the trial court was correct in finding that any ruling as to declaratory or injunctive relief would be moot. "The duty of an appellate court, as of every judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." BECDIRConstr. Co. v. Proctor (2001),
{¶ 55} We find no error in the decision of the trial court to grant appellees' motion for summary judgment after finding appellants' remaining claims moot.
{¶ 57} In their first assignment of error, appellees challenge the initial granting of a preliminary injunction enjoining them from acting until further order of the court. After ordering the preliminary injunction in a complaint that ultimately prayed for permanent injunction, the trial court dismissed the entire complaint through summary judgment and a finding of mootness. "An order of a court of common pleas granting a temporary injunction in a suit in which the ultimate relief sought is an injunction is not either a judgment or a final order which may be reviewed by a circuit court on petition in error." Sports Unlimited of N. Ohio v. Kanner Indus., Inc. (1980), Cuyahoga App. No. 42417, syllabus. We, therefore, decline to rule on the veracity of the preliminary injunction.
{¶ 58} In their remaining assignments of error, appellees challenge various denials of motions for summary judgment; however, the "denial of a motion for summary judgment does not constitute a final appealable order." Oliver v. Phelps,
Trumbull App. No. T-0184,
Judgment affirmed as to appeal; cross-appeal dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Ann Dyke, A.J., and Joseph J. Nahra, J.,* concur.
I. The trial court erred as a matter of law in determining that, although appellants were awarded a preliminary injunction because MetroHealth did not conduct the request for proposal (`RFP') process in a manner that was fair and open, and although plaintiffs posted a bond in the amount of $267,000 in accordance with the preliminary injunction, no permanent injunction or other equitable relief was necessary, and that appellants are valid taxpayers entitled to further relief.
II. The trial court erred as a matter of law in denying plaintiffs' motion for leave to file a first amended complaint to add new party defendants, and barring plaintiffs from a trial on the merits.
Appellees'/Cross-Appellants' Assignments of Error:
I. The trial court erred in finding an abuse of discretion, and in applying an incorrect standard to determine whether the MetroHealth system ("MetroHealth") abused its discretion under Ohio Revised Code ("R.C.") §
II. The trial court erred in denying appellees MetroHealth and Mr. Sideras summary judgment on appellants' The Brewer-Garrett Company ("Brewer-Garrett") and Mr. Zellers claim for permanent injunctive relief.
III. The trial court erred in denying appellees summary judgment on appellants' claim for declaratory relief.
IV. The trial court erred in denying appellees summary judgment on appellant Zellers' claims.