Being unable to agree with the majority's disposition of the university's first and second assignments of error and the plaintiffs' assignments of error, I respectfully dissent.
According to the majority, the university is obligated to follow the competitive bidding rules found in R.C. Chapter 153. because the university, though a lessee, is really the intended owner of the conference center. I do not agree that the circumstances of the lease are dispositive of the issue. Under the plain, unambiguous language of the statute, R.C. Chapter 153. does not apply. Without legislation requiring it, the university was not required to engage in competitive bidding.
The Ohio Supreme Court has repeatedly stated that "[w]e start with the premise that a public entity is not required to engage in competitive bidding in the absence of legislation requiring it." Danis ClarkcoLandfill Co. v. Clark Cty. Solid Waste Mgt. Dist. (1995),73 Ohio St. 3d 590, 601. See Shafer v. Streicher (1922), 105 Ohio St. 528,534 (refusing to extend the competitive bidding statute to county road maintenance projects absent a clear legislative requirement). The conference center at issue does not fit within the definition of R.C.153.01. The project was not administered by the director of administrative services. The duty of constructing the conference center did not devolve to the university or to any other officer, board or authority of the state, nor is the university or any other state authority the owner of the conference center at the time of contracting. Pursuant to the terms of the ground lease, the lease agreement and the development agreement, Fifth Third Leasing is the owner of the conference center.
I do not agree that the terms of the lease or the university's probable ownership of the project at the expiration of the twenty-seven-year agreement transforms the university into the owner at the time of construction. "The principles of statutory construction require courts to first look at the specific language contained in the statute, and, if the language is unambiguous, to then apply the clear meaning of the words used." Roxane Laboratories, Inc. v. Tracy (1996), 75 Ohio St. 3d 125,127. "Courts do not have authority to ignore the plain and unambiguous language of a statute under the guise of statutory interpretation, but must give effect to the words used." In re Collier (1993),85 Ohio App. 3d 232, 237. I believe that the majority exceeded its authority by interpreting the word "owner," a plain and unambiguous term, to include a lessee. *Page 345
Moreover, I believe that the majority erroneously relies on U.S.Corrections Corp. v. Ohio Dept. Indus. Relations (1995), 73 Ohio St. 3d 210, in reaching its decision. In U.S. Corrections Corp., the Ohio Supreme Court interpreted R.C. 307.022(A), a statute that allows counties to lease correctional facilities from private parties. R.C. 307.022(A) expressly requires counties "to contract, in accordance with Chapter 153. * * * of the Revised Code, for the construction, improvement, furnishing, and equipping of correctional facilities to be leased pursuant to this section." The U.S. Corrections Corp. court concluded that construction of correctional facilities undertaken pursuant to R.C.307.022(A) required competitive bidding because the statute expressly incorporated the competitive bidding provisions. See U.S. CorrectionsCorp., at 216-217. In contrast to R.C. 307.022(A), the statutes that authorized the lease agreements at issue in the instant action, R.C.3345.11 and 3345.12(Q), do not incorporate R.C. Chapter 153. or make any reference to competitive bidding requirements. U.S. Corrections Corp. is, therefore, inapposite.
While the majority's decision is not without merit from a policy standpoint, I conclude that the General Assembly has not enacted a competitive bidding requirement that applies to a lease-back project such as the conference center project. Absent legislative authority, I would decline to impose the requirements in R.C. Chapter 153. upon the project at issue. See Danis Clarkco Landfill Co., at 602. Whether competitive bidding under these circumstances should be required is for the legislature to determine, not for this court. I would therefore sustain the university's first assignment of error.
I also disagree with the majority's conclusion that the trial court's injunction is not ambiguous. Civ.R. 65(D) provides the following:
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding upon the parties to the action, their officers, agents, servants, employees, attorneys and those persons in active concert or participation with them who receive actual notice of the order whether by personal service or otherwise.
"The rule requires that an injunctive order be `specific and detailed enough to give * * * adequate notice of the requirements imposed * * * and * * * not too vague to be understood.'" Superior Sav. Assn. v.Cleveland Council of Unemployed Workers (1986), 27 Ohio App. 3d 344, 348. "`[A]n ordinary person reading the court's order should be able to ascertain from the document itself exactly what conduct is proscribed.'"Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990),52 Ohio St. 3d 56, 60. *Page 346
I believe that the injunction at issue runs afoul of Civ.R. 65(D). The Court of Claims' order states that "defendant is enjoined from the date hereof from any action in furtherance of bidding of any contract, other than for the project in this action, that is not in compliance with R.C. Chapter 153." Particularly in light of my determination that the university did not violate R.C. Chapter 153., I would conclude that the injunction does not provide the university with notice as to the acts that the Court of Claims sought to restrain. I would therefore sustain the university's second assignment of error.
Because I believe that the university did not violate R.C. Chapter 153., I would overrule as moot the plaintiffs' assignments of error, which pertain to damages. I disagree with the majority for the additional reason, however, that I do not believe that money damages are an appropriate remedy for a violation of R.C. Chapter 153.
The intent of competitive bidding is not only to protect bidders, but also to protect the public. Cedar Bay Constr., Inc. v. Fremont (1990),50 Ohio St. 3d 19, 21. Ohio courts have recognized that, if unsuccessful bidders are allowed to recover money damages, the bidding laws would harm, rather than protect, the public interest, as "the public would have to pay the contract price of the successful bidder plus the lost profits of an aggrieved bidder." Hardrives Paving Constr., Inc. v. Niles (1994), 99 Ohio App. 3d 243, 247. See Cavanaugh Bldg. Corp. v. Bd. ofCuyahoga Cty. Commrs. (Jan. 27, 2000), Cuyahoga App. No. 75607, unreported. I would follow this reasoning and decline to award money damages as a matter of law.
Nor can I agree with the majority's decision to award monetary damages in addition to injunctive relief. Injunctive relief is an equitable remedy which lies only where there is no adequate remedy at law. Haig v.Ohio State Bd. of Edn. (1992), 62 Ohio St. 3d 507, 510. By definition, therefore, a court should not simultaneously award monetary damages and an injunction to remedy the same injury. See Cleveland v. ClevelandElec. Illum. Co. (1996), 115 Ohio App. 3d 1, 12.
For the foregoing reasons, I would sustain the university's first and second assignments of error, overrule the university's third assignment of error, overrule as moot the plaintiffs' first and second assignments of error and reverse the judgment of the Ohio Court of Claims. *Page 347