[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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