[Cite as State ex rel. New Riegel Local School Dist. Bd. of Edn. v. Ohio School Facilities Comm., 2017-
Ohio-875.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE, EX REL. NEW RIEGEL
LOCAL SCHOOL DISTRICT BOARD
OF EDUCATION,
RELATOR-APPELLANT. CASE NO. 13-16-22
v.
OHIO SCHOOL FACILITIES OPINION
COMMISSION, ET AL.,
RESPONDENTS-APPELLEES.
Appeal from Seneca County Common Pleas Court
Trial Court No. 15-CV-0114
Judgment Affirmed
Date of Decision: March 13, 2017
APPEARANCES:
Christopher L. McCloskey for Appellant
Lee Ann Rabe for Appellees
Case No. 13-16-22
ZIMMERMAN, J.
{¶1} Plaintiff-appellant, the State of Ohio ex rel. New Riegel Local School
District Board of Education (“New Riegel”), appeals the judgment of the Seneca
County Court of Common Pleas dismissing its petition for a writ of
mandamus/complaint for declaratory judgment. On appeal, New Riegel asserts that
the trial court erred by granting the motion of the Ohio School Facilities
Commission and Ohio Facilities Construction Commission (“Commission”)
dismissing its mandamus and declaratory relief claims. Based upon the following,
we affirm the judgment of the trial court.
Facts and Statement of the Case
{¶2} This case stems from the construction of a K-12 school building in the
New Riegel School District. New Riegel entered into an agreement in December,
1999 with the Ohio Facilities Construction Commission to assist with the payment
and project management of a new school in its school district. The Commission is
an agency of the State of Ohio created under R.C. 3318.30(A) to “administer the
provision of financial assistance to school districts for the acquisition or
construction of classroom facilities in accordance with section 3318.01 to 3318.32
of the Revised Code.” R.C. 3318.30(A). The project agreement set forth the cost
of the project ($10,436,989) and the allocation of the financial responsibility
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between New Riegel (11% of project) and the Commission (89% of the project).
(Doc. No. 2, Ex. B).
{¶3} It is unclear from the record as to when the construction of the school
commenced and was completed, but ultimately a certificate of completion was
issued by the Commission to New Riegel thusly closing the project, in either 2002
or 2004.1
{¶4} In January, 2015 New Riegel requested the Commission to re-open the
school building project and provide funding to repair construction defects. (Doc.
No. 2 at ¶ 29). The Commission denied New Riegel’s request. (Id. at ¶ 31).
Procedural History
{¶5} New Riegel filed its lawsuit versus the Commission in the trial court on
April 30, 2015, requesting a writ of mandamus/complaint for declaratory judgment
to compel the Commission to re-open the New Riegel school project and compel it
to provide its share of funding to repair the construction defects. Thereafter, the
Commission filed its motion to dismiss New Riegel’s claims pursuant to Civ. R.
12(B)(6). The Commission further requested the dismissal of the complaint
asserting that the Court of Claims, not the trial court, was the proper court for New
Riegel to proceed.
1
At oral argument, counsel for the appellant advised that the certificate was issued in 2002, but counsel for
appellee stated such was issued in 2004.
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{¶6} On August 17, 2016, the trial court determined that New Riegel’s claim
was a claim for money damages and that the Ohio Court of Claims, not the Seneca
County Common Pleas Court, had exclusive jurisdiction to decide money damages.
The trial court further found that New Riegel failed to establish that the Commission
had a legal duty (to New Riegel) because the project was closed and because (New
Riegel) had an adequate remedy at law against the contractors involved in the
construction of the school. Lastly, the trial court found declaratory relief was not
proper since the facts alleged by New Riegel did not constitute a violation of law by
the Commission. Accordingly, the trial court granted the motion to dismiss from
which New Riegel filed its appeal. New Riegel presents the following five
assignments of error for our review:
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MANDAMUS CLAIM AND DETERMINING THAT
APPELLEES HAVE NO CURRENT LEGAL DUTY TO
APPELLANT.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MANDAMUS CLAIM AND RULING THAT APPELLANT
HAS A CLEAR AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW BY PURSUING CLAIMS
AGAINST THE CONTRACTORS INVOLVED IN THE
CONSTRUCTION OF THE BUILDING.
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ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN DETERMINING THAT IT
LACKED JURISDICTION TO PROVIDE A REMEDY TO
APPELLANT.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED IN FAILING TO DECLARE
THAT APPELLEES HAVE ACTED UNLAWFULLY IN THIS
CASE.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED IN DISMISSING NEW
RIEGEL’S ENTIRE CAUSE OF ACTION FOR EQUITABLE
RESTITUTION.
First, Second, and Fourth Assignments of Error
{¶7} For the purpose of economy, we have chosen to discuss the assignments
of error in an order other than that presented by the parties in their briefs. In
addition, we have chosen to address together some of the common points raised by
the first, second, and fourth assignments of error while, collectively addressing the
premises underlying the trial court’s granting of the motion to dismiss under Civ. R.
12(B)(6).
Standard of Review
{¶8} A trial court’s order granting a Civ. R. 12(B)(6) motion to dismiss for
failure to state a claim upon which relief may be granted is subject to de novo review
on appeal. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480,
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768 N.E. 2d 1136, ¶¶ 4-5. In order to sustain the order of dismissal, “it must appear
beyond doubt that the plaintiff can prove no set of facts in support of the claim that
would entitle the plaintiff to relief.” LeRoy v. Allen, Yurasek & Merklin, 114 Ohio
St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶14. In our review of whether a
motion to dismiss was properly granted, we must construe all factual allegations in
the complaint to be true. See Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192,
532 N.E.2d 753, 756 (1988). In order to determine whether a mandamus petition
sets forth a cognizable claim, we must presume all factual allegations of the petition
are true and make all reasonable inferences in favor of the non-moving party. Id.
12(B)(6) Motion
{¶9} “A motion to dismiss for failure to state a claim upon which relief can
be granted is procedural and tests the sufficiency of the complaint.” State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73,
605 N.E.2d 378, 381 citing Assn. for the Defense of the Washington Local School
Dist. V. Kiger, 42 Ohio St.3d 116, 117, 537 N.E.2d 1292, 1293 (1989). For that
reason, a trial court may not rely upon evidence or allegations outside the complaint
when ruling on a Civ.R. 12(B)(6) motion. State ex rel. Fuqua v. Alexander, 79 Ohio
St.3d 206, 207, 1997-Ohio-169, 680 N.E.2d 985.
{¶10} In resolving a Civ.R. 12(B)(6) motion, a court’s factual review is
confined to the four corners of the complaint. Grady v. Lenders Interactive
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Services, 8th Dist. Cuyahoga No. 83966, 2004-Ohio-4239, ¶ 6. “[A]s long as there
is a set of facts, consistent with the plaintiff’s complaint, which would allow the
plaintiff to recover, the court may not grant a defendant’s motion to dismiss.” York
v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063, 1065 (1991).
{¶11} However, “[a] copy of any written instrument attached to a pleading
is a part of the pleading for all purposes”; and therefore, the trial court may consider
attached written instruments for purposes of a motion to dismiss. Civ.R. 10(C);
Davis v. Widman, 184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, ¶ 18
(3rd Dist.), citing Keenan v. Adecco Emp. Servs., Inc., 3d Dist. Allen No. 1-06-10,
2006-Ohio-3633, ¶¶ 8-9, citing Slife v. Kundtz Properties, Inc., 40 Ohio App.2d
179, 185-86, 318 N.E.2d 557, 562 (8th Dist. 1974). “If the plaintiff decides to attach
documents to his complaint, which he claims establish his case, such documents can
be used to his detriment to dismiss the case if they along with the complaint itself
establish a failure to state a claim.” Adlaka v. Giannini, 7th Dist. Mahoning No. 05
MA 105, 2006-Ohio-4611, ¶ 34, citing Aleman v. Ohio Adult Parole Auth., 4th Dist.
Hocking No. 94CA17, 1995 WL 257833, *1 (Apr. 24, 1995). “Dismissals under
Civ.R. 12(B)(6) are proper where the language of the writing is clear and
unambiguous.” Keenan at ¶ 9.
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New Riegel’s Complaint
{¶12} As noted above, our de novo review is to test the sufficiency of the
complaint to determine whether the alleged facts set forth a claim that would entitle
New Riegel to relief. In its operative part, New Riegel’s complaint contains a series
of recitals from the Ohio Constitution and pronouncements of case law of the Ohio
Supreme Court, none of which we interpret as factual allegations. (Doc. No. 2 at ¶¶
6-8).
{¶13} The complaint then identifies the statutory framework of the
Classroom Facilities Assistance Program set forth in R.C. 3318 et seq. (Id. at ¶¶ 9-
22). With the exception of paragraphs 17, 20, and 22 in the complaint, which we
interpret as statements of opinion by New Riegel, paragraphs 9-16 and paragraph
21 do not contain factual allegations.
{¶14} Paragraphs 23-28 of the complaint identify the project agreement of
the parties, with paragraph 27 alleging the existence of defects in the metal roof and
through-wall flashing systems of the school. (Id. at ¶ 27, Ex. B). Even though the
metal roof and through-wall flashing systems are not directly identified as that of
the New Riegel school, we reasonably infer such to be the case. (Id.). From our
review of these paragraphs, we again find minimal factual allegations as compared
to statements of opinion. Thus, only paragraph 27 contains factual allegations that
certain defects are present in the New Riegel school.
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{¶15} Next, New Riegel’s complaint avers that on January 29, 2015 it,
through counsel, informed the Commission of the above defects and requested the
Commission to re-open the project and help fund the repairs, which request the
Commission denied. (Id. at ¶¶ 29, 31).
{¶16} Paragraphs 33-42 complete the factual allegations of New Riegel’s
complaint, wherein New Riegel alleges that the Commission failed to “properly
administer” the construction project; that the Commission violated Section 2 of
Article VI of the Ohio Constitution; that the Commission’s actions have resulted in
“disparate educational opportunities for pupils of New Riegel Local School
District”; that the Commission has prevented New Riegel from a “complete
educational program in violation of RC 3318.01(B) and 3318.03;” and that the
Commission’s failure to provide funding to correct the defects violates O.A.C §
3318:1-3-02(F). (Id. at ¶¶ 35-39).
{¶17} With that, paragraphs 43-57 of the complaint state New Riegel’s
claims for mandamus, declaratory judgment and/or equitable restitution. (Id. at ¶¶
43-57).
Mandamus/Declaratory Relief
{¶18} In its first, second, and fourth assignment of error, New Riegel
asserts that the trial court erred in granting the Commission’s motion to dismiss by
denying their writ of mandamus and complaint for declaratory relief. Specifically,
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New Riegel contends that the Commission owed it a clear legal duty to reopen the
project and assist it with funding to repair the project defects.
{¶19} We disagree.
{¶20} When analyzing a statute, our primary purpose must be to give effect
to the intention of the legislature. Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16, 20,
242 N.E.2d 342, 345 (1968). In doing so, we must give effect to the words used,
not to delete words or to insert words not used. See Cleveland Elec. Illum. Co. v.
City of Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441, 442 (1988). If the language
of a statute is plain and unambiguous and conveys a clear and definite meaning, then
no need exists for us to apply further rules of construction. State v. Siferd, 151 Ohio
App. 3d 103, 2002-Ohio-6801, 783 N.E.2d 591, ¶ 33 (3rd Dist.), aff’d 99 Ohio St.3d
145, 2003-Ohio-2765, 789 N.E.2d 237, ¶ 33. Words and phrases must be read in
context and given their usual, normal, and/or customary meanings. R.C. 1.42.
{¶21} To be entitled to a writ of mandamus, New Riegel must establish by
clear and convincing evidence a clear legal right to the requested relief, a clear legal
duty on the part of the Commission to provide it, and the lack of an adequate remedy
in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio S.3d 55,
2012-Ohio-69, 960 N.E. 2d 452, ¶ 6. The facts and proof submitted to establish
these criteria must be “plain, clear, and convincing before a court is justified in using
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the strong arm of the law by way of granting the writ.” State ex rel. Pressley v.
Indus. Commission, 11 Ohio St.2d 141, 161, 228 N.E.2d 631, 647 (1967).
{¶22} When deciding whether the extraordinary writ of mandamus is
appropriate, a court may consider the facts and circumstances of the particular case,
such as (1) the applicant’s rights, (2) the interests of third persons, (3) the importance
or unimportance of the case, (4) the applicant’s conduct, (5) the equity and justice
of the relator’s case, (6) public policy and the public’s interest, (7) whether the
performance of the act by the respondent would give the relator any effective relief,
and (8) whether such an act would be impossible, illegal, or useless. Id. at 162-164.
{¶23} The Ohio Supreme Court determined long ago in Davis v. State ex rel.
Pecsok:
In proceedings in mandamus a court cannot create a legal duty. The
creation of a legal duty is a distinctive function of the legislative
branch of government. The most that a court can do in mandamus is
to command the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station, when a clear
right to such performance is presented.
Davis v. State ex rel. Pecsok, 130 Ohio St. 411, 200 N.E. 181 (1936).
{¶24} “When an asserted legal right is based on a statutory provision, the
relator must demonstrate that the statute, as applied and interpreted, gives rise to the
requisite clear legal right.” State ex rel. Deters v. Wilkinson, 72 Ohio St.3d 54, 56,
1995-Ohio-79, 647 N.E.2d 480, 482.
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{¶25} A declaratory judgment claim allows a court of record to declare the
rights, status, and other legal relations of the parties whether or not any further relief
is or could be claimed. Civ.R. 57 and R.C. 2721.01 et seq. “The declaration may
be either affirmative or negative in form and effect.” R.C. 2721.02. Courts may
refrain from entertaining an action for declaratory judgment that depends largely on
a determination of facts. Smith v. Mun. Civ. Sew. Commission, City of Columbus,
158 Ohio St. 401, 403, 109 N.E. 2d 507 (1952).
Analysis
{¶26} Since the declaratory relief requested by New Riegel parallels the
mandamus relief requested, the matters are intertwined and we will analyze them
together.
{¶27} Resolution of the legal issues presented requires interpretation of the
cited Ohio Constitutional sections and the laws granting authority to the
Commission pursuant to R.C. 3318 et seq. The constitutional provisions and
statutes raised by New Riegel are clear and unambiguous and need no construction
or interpretation beyond their plain meaning. Additionally, “’[c]onstitutional
questions will not be decided until the necessity for a decision arises on the record
before the court.’” Christensen v. Bd. of Commrs. on Grievances & Discipline, 61
Ohio St.3d 534, 535, 575 N.E.2d 790, 791 (1991), quoting State ex rel. Herbert v.
Ferguson, 142 Ohio St. 496, 503, 52 N.E.2d 980, 981 (1944), paragraph two of the
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syllabus. The facts set forth in New Riegel’s complaint are entirely silent as to any
circumstance, event, act or failure to act on the part of the Commission giving rise
to a constitutional question. We cannot infer, from the facts before us, that the
alleged construction defects have resulted in New Riegel being deprived of a
fundamental right under the Ohio Constitution. Thus, there is not a constitutional
issue for us to resolve.
{¶28} New Riegel further asserts that the Commission has a clear legal duty
to reopen the school construction project (of 1999) and provide its share of funding
to correct the defects identified to it in 2015. In reliance thereof, New Riegel asserts
that R.C. 3318.08 and O.A.C. section 3318:1-3-02(F) require the Commission to
establish a construction fund (R.C. 3318.08) and keep it funded (O.A.C. 3318:1-3-
02) until all repairs of the project are completed due to the improper issuance of the
certificate of completion. In essence, New Riegel argues it has a legal right to that
construction fund in order to repair the metal roof and through-wall flashing systems
defects revealed to the Commission in 2015. We find no merit in this contention.
{¶29} Under R.C. 3318.48, the Commission issued a certificate of
completion of the construction project in either 2002 or 2004. Such certificate is to
be issued when a construction project is “complete.” R.C. 3318.48(A). New
Riegel’s complaint is silent as to whether it did not voluntarily participate in that
process, which is crucial to its argument because if the certificate was “improperly”
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or “prematurely” issued, then New Riegel was in the position (in 2002 or 2004) to
oppose the issuance of the certificate. Otherwise, pursuant to R.C. 3318.48(D),
“[u]pon issuance of the certification of completion * * * the commission’s
ownership of and interest in the project, as specified in division (F) of section
3318.08 of the Revised Code, shall cease.” Id. When the Commission issued its
certificate of completion, its involvement in the project terminated.
{¶30} Further, New Riegel has not directed us to any statutory language that
establishes a duty for the Commission to create and fund a project construction fund
after the issuance of a certificate of completion. Nor can we create such a duty.
Where the law does not create duty, a court cannot be called upon to create it and
compel its performance by mandamus. State ex rel. White v. Cleveland, 42 Ohio
App. 72, 74, 181 N.E. 545, 546 (8th Dist.1932). Our plain reading of the statutory
provisions supplied by New Riegel supplies no such responsibility on the
Commission after the certificate of completion was issued.
{¶31} Moreover, the legislature created a corrective action program, under
R.C. 3318.49, “to provide funding for the correction of work * * * that is found after
occupancy of the facility to be defective…” R.C 3318.49(A). As such, a statutory
process exists for New Riegel to use in order to repair construction defects.
{¶32} Assuming arguendo, that the Commission may exercise its discretion
and reopen a given project, which New Riegel argues the Commission has done in
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the Valley Local School District, it is a well-established principle that a writ of
mandamus may issue only to require the performance of an act specially enjoined
by law, and may not be employed to control the discretion lodged by statute in a
public board or officer. (Doc. No. 2, Ex. C); See State ex rel. Brophy v. Crawford,
127 Ohio St. 580, 190 N.E. 221, 222 (1934). Hence, we reject this comparison and
argument by New Riegel.
{¶33} Thus, New Riegel has failed to demonstrate that the cited Ohio
constitutional and statutory provisions, as applied and interpreted herein, gives rise
to its clear legal right requiring the Commission to reopen the project agreement and
assist with the payment of construction defects.
{¶34} In sum, the factual allegations in New Riegel’s complaint are void of
any circumstance, event, act or failed act occurring after the issuance of the
certificate of completion by the Commission and prior to New Riegel’s January,
2015 letter which mandates a clear legal duty on behalf of the Commission to re-
open the project to address the defective systems in the school. Accordingly, New
Riegel’s writ of mandamus and complaint for declaratory relief do not present
cognizable claims that factually gives rise to a clear legal duty on behalf of the
Commission. Thus the trial court properly dismissed New Riegel’s writ of
mandamus and complaint for declaratory relief. New Riegel’s first, second, and
fourth assignments of error are overruled.
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Third and Fifth Assignments of Error
{¶35} Having decided the action of the trial court was proper by overruling
the first, second, and fourth assignment of error, the Court declines to address the
third and fifth assignments of error, which are rendered moot by this decision.
{¶36} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/jlr
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