             OPINIONS OF THE SUPREME COURT OF OHIO
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     The State ex rel. Hanson, d.b.a. Franklin Excavating,
Inc., Appellant, v. Guernsey County Board of Commissioners,
Appellee.
     [Cite as State ex rel. Hanson v. Guernsey Cty. Bd. of
Commrs. (1992),     Ohio St.3d    .]
Mandamus -- Civ.R. 12(B)(6) motion to dismiss improperly used
     by court when court uses the motion to summarily review
     the merits of relator's claim and to prematurely dispose
     of the case.
     (No. 91-2353 -- Submitted November 24, 1992 -- Decided
December 30, 1992.)
     Appeal from the Court of Appeals for Guernsey County, No.
91-CA-08.
     In December 1990, Steven Hanson, d.b.a. Franklin
Excavating, Inc. ("Hanson"), relator-appellant, submitted a bid
to the Guernsey County Board of County Commissioners ("board"),
appellee, to construct a sanitary sewer for a subdivision in
Cambridge, Ohio. On January 16, 1991, the board awarded the
sewer contract to Ms. Parsons Construction, Inc. ("Parsons").
Parsons' bid was approximately $5,000 higher than Hanson's, but
the board determined Parsons' bid to be the lowest and best.
     Hanson filed a complaint in the Court of Appeals for
Guernsey County, seeking a writ of mandamus to compel the board
to either award his company the sewer contract, or pay the
company "wages, benefits, interest and/or profits" lost due to
the rejection of its bid. Hanson attached to his complaint the
board's notice to bidders, his bid, Parsons' bid, the criteria
used to evaluate the bids, and a letter advising him that
Parsons had been awarded the contract. His complaint alleged
that the board had failed to award the contract to the lowest
and best bidder pursuant to R.C. 307.90.
     The court of appeals initially granted Hanson's request
for an alternative writ, ordering the board to show cause on
June 21, 1991 why the peremptory writ should not issue. In
lieu of an answer, the board filed a motion to dismiss the
complaint pursuant to Civ.R. 12(B)(6) (failure to state a claim
upon which relief can be granted), but argued that Hanson had
not proved the prerequisites for a writ of mandamus to issue.
The board submitted evidence with its motion, including an
affidavit explaining the board's review of the bids, the
resolution awarding the contract to Parsons, and minutes of a
meeting at which the board told Hanson why it rejected his bid.
     Hanson opposed the motion to dismiss and filed an amended
complaint on July 31, 1991. His amended complaint contained
these new allegations, among others:
     "Contrary to the fourteen (14) items listed by the [board]
as the criteria that [the board] would follow in making a
determination as to whether a bid was the 'lowest and best'
bid, [the board] considered other criteria without prior notice
to the bidders in reaching its decision not to grant the bid to
[Hanson], including, but not limited to, considerations of
[Hanson's] corporate or non-corporate status, whether [Hanson]
owned or rented his equipment, and whether [Hanson's] start-up
costs (though not total costs) were higher than other bidders."
     The board responded to the amended complaint on August 27,
1991 by filing a second motion to dismiss that restated the
argument made in its first motion. Hanson represents that he
was not served with and did not know of this filing. On
September 26, 1991, the court of appeals granted the board's
first motion and dismissed the complaint as initially filed.
The court held, in part:
     "Ohio law is well-settled that [the board] has discretion
to determine who is the lowest and best bidder. Mandamus does
not lie to reverse an administrative official's discretionary
decision, unless the facts demonstrate that the official abused
his discretion, see State ex rel. Board of Education v. State
Department of Education (1981), 67 Ohio St.2d 126 [21 O.O.3d
79, 423 N.E.2d 174].
     "Our review of the record leads us to conclude that
[Hanson] has not alleged sufficient facts to demonstrate an
abuse of discretion."
     On October 7, 1991, Hanson asked for leave to file a
second amended complaint, which contained additional
allegations discovered during depositions, and moved for
"reconsideration and/or reinstatement of the amended
pleadings." Hanson argued that the court had not applied the
proper standard of review for Civ.R. 12(B)(6) motions. On
October 28, 1991, he filed notice of his appeal to this court.
Nearly two months later, the court of appeals overruled his
motion, holding:
     "This action was commenced as an original action in this
court, and the civil rules do not permit motions for
reconsideration of a final judgment of a trial court * * *.
[Citations omitted.]
     "[Hanson] alternatively requests that we clarify our entry
of September 26, 1991 so that it is clear that only his
original pleadings were dismissed, and not his first amended
complaint. This court actually dismissed the action in toto.
     "Finally, [Hanson] moved this court for leave to file his
second amended complaint, alleging new evidence and a new cause
of action. Because we have previously dismissed this cause, no
amended complaint can be filed herein."
     The cause is before this court upon an appeal as of right.

     Green, Haines, Sgambati, Murphy & Macala Co., L.P.A.,
Ronald G. Macala and Randall Vehar, for appellant.
     C. Keith Plummer, Prosecuting Attorney, for appellee.

     Per Curiam.   Two questions are presented for our review.
First, did the court of appeals err by denying the writ of
mandamus on the board's Civ.R. 12(B)(6) motion? Second, should
a writ of mandamus be granted? For the reasons that follow, we
hold that the court of appeals improperly used the motion to
dismiss to summarily review the merits of Hanson's claim and to
prematurely dispose of this case. Moreover, to resolve whether
Hanson has sustained his burden of proof on this record would
compound the court's error. Accordingly, we reverse and remand.
                       Motion to Dismiss
     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. Assn. for the Defense of the
Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d
116, 117, 537 N.E.2d 1292, 1293. Thus, the movant may not rely
on allegations or evidence outside the complaint; otherwise,
the motion must be treated, with reasonable notice, as a Civ.R.
56 motion for summary judgment. Civ.R. 12(B); State ex rel.
Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio
St.3d 98, 99, 562 N.E.2d 1383, 1384. Even then, only certain
forms of evidence may be submitted to support the motion. Civ.
R. 56(C).
     The standard for reviewing the sufficiency of a mandamus
complaint was stated in State ex rel. Alford v. Willoughby
(1979), 58 Ohio St.2d 221, 223, 12 O.O.3d 229, 230, 390 N.E.2d
782, 785:
     "In construing a complaint upon a motion to dismiss for
failure to state a claim, the material allegations of the
complaint are taken as admitted. Jenkins v. McKeithen (1969),
395 U.S. 411, 421 [89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416].
[All reasonable inferences must also be drawn in favor of the
nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio
St.3d 190, 192, 532 N.E.2d 753, 756; Byrd v. Faber (1991), 57
Ohio St.3d 56, 60, 565 N.E.2d 584, 589.] Then, before the
court may dismiss the complaint, '* * * it must appear beyond
doubt from the complaint that the plaintiff can prove no set of
facts entitling him to recovery. * * *' O'Brien v. University
Community Tenants Union (1975), 42 Ohio St.2d 242 [71 O.O.2d
223, 327 N.E.2d 753].
     "In order to establish a claim in mandamus, it must be
proved that there exists a clear legal duty plain and to act on
the part of a public officer or agency, and that the relator
has no adequate remedy in the ordinary course of the law.
State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d
141 [40 O.O.2d 141, 228 N.E.2d 631], paragraph one of the
syllabus. A complaint in mandamus states a claim if it alleges
the existence of the legal duty and the want of an adequate
remedy at law with sufficient particularity so that the
respondent is given reasonable notice of the claim asserted."
     Accord State ex rel. Bush v. Spurlock (1989), 42 Ohio
St.3d 77, 80-81, 537 N.E.2d 641, 644-645, and State ex rel.
Baran v. Fuerst (1990), 55 Ohio St.3d 94, 96-97, 563 N.E.2d
713, 715-716.
     This standard is consistent with Civ.R. 8(A), which
provides for notice pleading and requires only (1) "a short and
plain statement of the claim showing that the pleader is
entitled to relief, and (2) a demand for judgment for the
relief to which he deems himself entitled." Thus, to survive a
motion to dismiss for failure to state a claim upon which
relief can be granted, a pleader is ordinarily not required to
allege in the complaint every fact he or she intends to prove;
such facts may not be available until after discovery. York v.
Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144-145,
573 N.E.2d 1063, 1065.
     The standard of review for Civ.R. 12(B)(6) motions is also
consistent with Civ.R. 15(A), which allows a pleader to rectify
a poorly pleaded complaint. If a motion for failure to state a
claim is sustained, "leave to amend the pleading should be
granted unless the court determines that allegations of other
statements or facts consistent with the challenged pleading
could not possibly cure the defect." McCormac, Ohio Civil
Rules of Practice (2 Ed.1992) 150, Section 6.20. Civ.R. 15(A)
provides:
     "A party may amend his pleading once as a matter of course
at any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted
and the action has not been placed upon the trial calendar, he
may so amend it at any time within twenty-eight days after it
is served. Otherwise a party may amend his pleading only by
leave of court or by written consent of the adverse party."
     Hanson asserts that he was entitled under this rule to
amend his complaint because a motion to dismiss is not a
responsive pleading. We agree. Under Civ.R. 7(A), only
complaints, answers and replies constitute pleadings.
Moreover, the provisions for amending are complemented by
Civ.R. 12(A)(2)(b), which states:
     "* * * The service of a motion permitted under this rule
alters * * * [the twenty-eight day answer and reply periods] as
follows, unless a different time is fixed by order of the
court: * * * if the court grants a motion, a responsive
pleading, delayed because of service of the motion, shall be
served within fourteen days after service of the pleading which
complies with the court's order." (Emphasis added.)
     The court of appeals' dismissal of Hanson's complaint and
refusal to consider his attempts to file an amended complaint
that conformed to the court's initial ruling cannot be
reconciled with the preceding authority. Contrary to Civ.R.
12(B), the court apparently did not exclude the board's
evidence in sustaining the motion to dismiss, which was held to
be error in Natalina Food Co., supra, at 99, 562 N.E.2d at
1384. Moreover, contrary to Alford, supra, and Civ.R. 15(A)
and 12(A)(2)(b), the court apparently viewed its decision as
substantive, i.e., as a decision on the merits of Hanson's
claim, because the court would entertain no further filings in
the matter.
     In addition to its evidence, the board relied on State ex
rel. Executone of Northwest Ohio, Inc. v. Commrs. of Lucas Cty.
(1984), 12 Ohio St.3d 60, 12 OBR 51 465 N.E.2d 416, before the
court of appeals. In Executone, we affirmed the dismissal of a
complaint in mandamus because it alleged nothing more than that
a board of county commissioners had not awarded a government
contract to the lowest and best bidder. We explained:
     "Appellant's complaint does not allege, nor does appellant
argue herein, the utilization of unannounced criteria by the
board of county commissioners. Nor does the complaint allege
bad faith, fraudulent conduct or any other allegation which
could be construed to constitute an abuse of discretion.
Instead, the complaint simply alleges that appellant submitted
the 'lowest and best bid.' Since under R.C. 307.90 the
determination of which bid constituted the 'lowest and best
bid' involved the exercise of a certain degree of discretion by
appellees, appellant's complaint merely asked the court of
appeals to substitute its discretion for that which was
exercised by appellees. Under such circumstances, mandmaus
will not lie, and the court of appeals correctly dismissed the
complaint. Cf. State, ex rel. Britton, v. Scott (1983), 6 Ohio
St.3d 268 [6 OBR 334, 452 N.E.2d 1312]." Id. at 61-62, 12 OBR
at 53, 465 N.E.2d at 417-418.
     Executone is authority for the dismissal of a complaint
that attacks the decision of a board of county commissioners to
award a contract, but does not allege an abuse of discretion.
However, unlike the court of appeals in this case, the trial
court in Executone sustained the motion to dismiss on the basis
of the complaint alone. Moreover, even if the court of appeals
here did not consider the evidence submitted with the board's
motion to dismiss, Executone, coupled with Civ.R. 15 and
12(A)(2)(b), establishes that the court's rejection of Hanson's
first amended complaint was error. This amended complaint
contained the precise allegations that the Executone court
would have found sufficient to withstand the motion to dismiss
-- "the utilization of unannounced criteria by the board of
county commissioners." Executone, at 62, 12 OBR at 53, 465
N.E.2d at 417-418.
     In essence, the court of appeals here did not specifically
exclude evidence attached to Hanson's complaint and the board's
motion to dismiss. The court also did not advise the parties
that it was going to reach a final disposition by converting
the motion to dismiss into a motion for summary judgment.
Moreover, when the court sustained the motion to dismiss and
refused to consider Hanson's amended complaint, the court
essentially denied him the opportunity to prove his case after
completing discovery. Under the cited Civil Rules and
precedent, however, Hanson properly responded to the motion to
dismiss by shoring up his initial complaint.
                            Mandamus
     Hanson next argues that he should be granted a writ of
mandamus to remedy the board's abuse of discretion. However,
like the court of appeals' disposition in this case, Hanson's
argument is premature. At present, the only matters properly
before us are pleadings and the motions to dismiss, which do
not constitute evidence. Thus, this record will not sustain a
substantive decision on the merits of this controversy.
     Accordingly, the decision sustaining the motion to dismiss
is reversed, and the cause is remanded to the court of appeals
for further proceedings.
                                     Judgment reversed
                                     and cause remanded.
     Moyer, C.J., Sweeney, Douglas, H. Brown and Resnick, JJ.,
concur.
     Holmes and Wright, JJ., dissent.
     Holmes, J., dissenting.   I respectfully dissent because I
believe that the court of appeals was without jurisdiction to
consider appellant's complaint seeking a writ of mandamus.
     Before a writ of mandamus will be granted by the court,
the relator must establish three essential elements: "(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 [relator has] no plain and adequate remedy in the
ordinary course of the law." (Emphasis added.) State ex rel.
Natl. City Bank v. Cleveland Bd. of Edn. (1977), 52 Ohio St.2d
81, 84, 6 O.O.3d 288, 290, 369 N.E.2d 1200, 1202. "A complaint
in mandamus states a claim if it alleges the existence of the
legal duty and the want of an adequate remedy at law with
sufficient particularity so that the respondent is given
reasonable notice of the claim asserted." State ex rel. Alford
v. Willoughby Civ. Serv. Comm. (1979), 58 Ohio St.2d 221, 224,
12 O.O.3d 229, 230, 390 N.E.2d 782, 785.
     In reaching its decision, the majority failed to
appreciate the significance of the prerequisite to mandamus
that the relator have no plain and adequate remedy in the
ordinary course of law.1 Under the facts of the instant case,
appellant clearly had available to him other adequate means of
relief in the court of common pleas. Suits are commonly
brought there by vendors who seek to overturn the bidding
process of a public authority, and this they seek to do through
the mechanisms of temporary and permanent injunctive relief.
     In his original complaint filed in the court of appeals,
appellant sought alternative forms of relief: (1) a court order
causing the Guernsey County Board of Commissioners to award his
business the construction contract, or (2) a court order "to
make [him] whole for all wages, benefits, interest and/or
profits thereon that he has lost as a result of [the] Board's
refusal to award him * * * [that contract]." The plain thrust
of appellant's first claim for relief, stripped of artful
framing, was in the nature of injunctive relief. An injunction
provides a party with equitable relief under extraordinary
circumstances where there exists no adequate remedy at law.
Haig v. Ohio State Bd. of Edn. (1992), 62 Ohio St.3d 507, 510,
584 N.E.2d 704, 707. "It is not available as a right but may
be granted by a court if it is necessary to prevent a future
wrong that the law cannot." Garono v. State (1988), 37 Ohio
St.3d 171, 173, 524 N.E.2d 496, 498. Mandamus, a coercive
writ, which compels performance of a duty, is distinguishable
from the equitable relief of an injunction:
     "There is a substantial difference between commanding and
forbidding action. It has been well stated that the important
feature of the writ of mandamus which distinguishes it from any
other remedial writ is that it is used merely to compel action
and to coerce the performance of a pre-existing duty. The
functions of an injunction are ordinarily to restrain motion
and enforce inaction, while those of mandamus are to set in
motion and compel action." State ex rel. Smith v. Indus. Comm.
(1942), 139 Ohio St. 303, 306, 22 O.O. 349, 351, 39 N.E.2d 838,
839.
     What appellant actually sought was to contest a contract
already awarded to a successful bidder. His action was not
merely one claiming a legal right; it sought rescission of a
prior agreement. As this court previously stated in State ex
rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40
O.O.2d 141, 228 N.E.2d 631, paragraph four of the syllabus:
     "Where a petition filed in the Supreme Court or in the
Court of Appeals is in the form of a proceeding in mandamus but
the substance of the allegations makes it manifest that the
real object of the relator is for an injunction, such a
petition does not state a cause of action in mandamus and since
neither the Supreme Court nor the Court of Appeals has original
jurisdiction in injunction the action must be dismissed for
want of jurisdiction."
     In cases factually similar to the instant appeal, this
court has held that mandamus will not lie to control the
exercise of discretion of a board of county commissioners in
awarding construction contracts because the relator has an
adequate remedy by way of injunction. State ex rel. Roger J.
Au & Son, Inc. v. Studebaker (1963), 175 Ohio St. 222, 24
O.O.2d 309, 193 N.E.2d 84 ("This court will ordinarily, in the
exercise of its discretion, deny a writ of mandamus where the
relator has a plain and adequate remedy in the ordinary course
of law, including an equitable remedy." Id.) State ex rel. Al
Monzo Construction Co., Inc. v. Warren Bd. of Control (1961),
172 Ohio St. 370, 16 O.O.2d 220, 176 N.E.2d 427. Accord State
ex rel. Cotleur v. Cleveland Hts. Bd. of Edn. (1960), 171 Ohio
St. 335, 14 O.O.2d 7, 170 N.E.2d 845.
     Since appellant's complaint sought to prevent an action
rather than compel performance of a legal duty, the court of
appeals was without jurisdiction to rule on the merits of the
action. Accordingly, because appellant could have brought his
action in the court of common pleas as an action seeking
temporary and permanent injunctive relief, appellant had a
plain and adequate remedy in the ordinary course of law. A
court presented with a complaint in mandamus errs when it
premises jurisdiction on the relator's designation of the
action without examining the essence of the demand.
     Moreover, it is evident from even a very cursory review of
appellant's second claim for relief that it was a claim for
damages and thus outside the appellate court's limited
jurisdiction in mandamus. Such claim was more properly the
concern of a trial court where a factfinder could weigh the
evidence and credibility of witnesses in arriving at a monetary
award. It is plain from the record that all of the issues
raised are controverted and require weighing of credibility and
evidence. The basic issue is whether and to what extent
appellant is owed any duty whatsoever. This being so, the
matters raised were properly the province of a court of common
pleas.
     Accordingly, I would affirm the court of appeals'
dismissal of the action.
     Wright, J., concurs in the foregoing dissenting opinion.

FOOTNOTE:
     1 See R.C. 2731.05: "The writ of mandamus must not be
issued when there is a plain and adequate remedy in the
ordinary course of the law."
