[Cite as Cargile v. Ohio Dept. of Adm. Servs., 2011-Ohio-2832.]

                                                           Court of Claims of Ohio
                                                                                          The Ohio Judicial Center
                                                                                  65 South Front Street, Third Floor
                                                                                             Columbus, OH 43215
                                                                                   614.387.9800 or 1.800.824.8263
                                                                                              www.cco.state.oh.us




WILLIAM CARGILE III, et al.

        Plaintiffs

        v.

OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES

        Defendant
        Case No. 2009-01140

Judge Alan C. Travis
Magistrate Holly True Shaver

MAGISTRATE DECISION




         {¶ 1} Plaintiffs brought this action alleging breach of contract. The issues of
liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
         {¶ 2} Plaintiff1 is an Ohio corporation engaged in the construction and general
contracting business with its principal place of business in Cincinnati, Ohio. Plaintiff is a
registered Minority Business Enterprise (MBE) within the meaning of R.C. 122.71(E)(1).
         {¶ 3} In 1996, plaintiff and defendant entered into a settlement agreement in an
action that plaintiff had filed in the United States District Court for the Southern District
of Ohio, Eastern Division. In the federal action, plaintiff asserted that defendant had
illegally expanded the eligibility criteria for MBE certification to include Asian-Indians.
The settlement agreement states, in relevant part:
         {¶ 4} “7. In consideration of the mutual covenants set forth herein, the parties
agree as follows:

1
 “Plaintiff” shall refer to William Cargile Contractor II, Inc., throughout this decision.
Case No. 2009-01140                          -2-                 MAGISTRATE DECISION

          {¶ 5} “A. DAS agrees that Plaintiffs will have full opportunity to compete for and
bid upon public projects, and that all DAS contracts let by bid will be awarded to the
lowest responsive and responsible bidder as required by R.C. 9.312.”
          {¶ 6} As a result of the settlement agreement, plaintiff dismissed its federal
action.
          {¶ 7} On January 7, 2009, plaintiff filed this action, asserting that defendant
committed a breach of the 1996 settlement agreement.2 Plaintiff asserts that defendant
has not awarded it any public improvement contracts since the date of the settlement
agreement, and that defendant’s failure to do so has resulted in substantial economic
loss. Defendant asserts that it has not committed a breach of the settlement agreement
and, moreover, that the majority of plaintiff’s claims are barred by the applicable statute
of limitations.
          {¶ 8} R.C. 2743.16(A) provides in relevant part:
          {¶ 9} “[C]ivil actions against the state permitted by sections 2743.01 to 2743.20
of the Revised Code shall be commenced no later than two years after the date of
accrual of the cause of action or within any shorter period that is applicable to similar
suits between private parties.”
          {¶ 10} Inasmuch as plaintiff filed its original complaint on February 21, 2007, the
court must limit its analysis to any claims that arose on or after February 21, 2005.
          {¶ 11} To enforce a settlement agreement, “[r]elief may be sought through the
filing of an independent action sounding in breach of contract * * *.” Bolen v. Young
(1982), 8 Ohio App.3d 36, 38. “Generally, a breach of contract occurs when a party
demonstrates the existence of a binding contract or agreement; the non-breaching party
performed its contractual obligations; the other party failed to fulfill its contractual
obligations without legal excuse; and the non-breaching party suffered damages as a
Case No. 2009-01140                               -3-                   MAGISTRATE DECISION

result of the breach.” Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App.3d 95,
108.
        {¶ 12} Patricia Cunningham testified that she has been employed as plaintiff’s
office manager since 2004.           Cunningham testified that Plaintiffs’ Exhibits M1-3 are
comprised of three bids that plaintiff submitted for state projects.3 The bids at issue
were for construction management services contracts dated August 4, August 14, and
November 17, 2008, respectively.             The bids for the two projects in August were
submitted to the owner, Ohio State University (OSU).                   The bid for the project in
November was submitted to the owner, Ohio School Facilities Commission/Forest Hills
Schools (OSFC). Cunningham testified that plaintiff did not make the “short list” for any
of these projects. Cunningham testified that plaintiff had submitted bids for other state
projects, including projects with Miami University and the University of Cincinnati, but
that she did not have copies of those bid documents.
        {¶ 13} William Cargile, III, testified that he had started his own business in 1956,
and that his company began to bid on state projects in the 1970s. Cargile testified that
in July 2008, he had a meeting with Lee Fisher, then Lieutenant Governor, wherein he
expressed his dissatisfaction with his treatment by the state since the 1996 settlement
agreement. According to Cargile, he discussed with Fisher two projects for construction
management services where plaintiff had been placed on the “short list” but ultimately
was not selected. Cargile could not specify which projects he discussed with Fisher.
Cargile also stated that he had a meeting with Sandra Drabik, Director of defendant, in
2008 regarding his complaints about not being selected for any state project.




2
 The parties do not dispute that plaintiff originally filed Case No. 2007-02173 on February 21, 2007,
which was voluntarily dismissed on August 11, 2008, and that this action was timely filed within one year
of the dismissal pursuant to R.C. 2305.19(A).
3
 Plaintiff attempted to show that it submitted a bid for a project on June 1, 2001, to the Ohio School
Facilities Commission/Cincinnati Public Schools, however that exhibit (Plaintiffs’ Exhibit M-4) was not
admitted inasmuch as any claim regarding that project arose prior to February 21, 2005.
Case No. 2009-01140                          -4-                  MAGISTRATE DECISION

       {¶ 14} In addition, Cargile testified that at some point after the 1996 settlement
agreement, he collaborated with both Heery and Turner Construction Companies on
different occasions to submit bids for public projects but that, even in combination with
those companies, plaintiff did not make the short list. In addition, Cargile also stated
that Messer Company informed him at some point after 1996 that it would no longer
enter into contracts with plaintiff because of the federal lawsuit that plaintiff had filed.
       {¶ 15} Cargile explained that from 2005 to the present, plaintiff had submitted
bids for state projects. However, Cargile was uncertain whether plaintiff had submitted
any bids directly to defendant during that time. With regard to the bids represented in
Plaintiffs’ Exhibits M1-3, Cargile testified that his company sent those bids directly to
either OSU or OSFC. Cargile admitted that he did not have any documentation to show
that his company sent any bids directly to defendant from 2005 forward. Cargile also
admitted that he did not know which companies were awarded the contracts for any of
the projects referenced in Plaintiffs’ Exhibits M1-3.
       {¶ 16} Lane Beougher testified that he works in the state architect’s office in
defendant’s general services division. Beougher explained that his office prepares the
bids for construction contracts for state agencies. Beougher stated that both OSU and
OSFC administer their own projects; that defendant has not administered projects for
OSU since 1999; and that defendant has never administered any project for OSFC.
       {¶ 17} Kathleen Stewart testified that she is employed as a construction project
coordinator for defendant through the state architect’s office. Stewart testified that her
office processes contractor’s and architect’s documents for bid openings, and that
records are kept of all the unsuccessful bidders on state projects. Stewart testified that
after searching through hundreds of unsuccessful bidder documents, she found no bids
submitted to defendant from plaintiff from 2001 through 2009.
       {¶ 18} Upon review of the evidence, the court finds that plaintiff has failed to
prove by a preponderance of the evidence that defendant committed a breach of the
Case No. 2009-01140                        -5-                MAGISTRATE DECISION

1996 settlement agreement. Although plaintiff provided evidence that it submitted bids
for projects managed by OSU and OSFC, plaintiff brought forth no evidence that it
submitted any bids to defendant or that defendant rejected any of plaintiff’s bids from
February 21, 2005, to the date of trial. Moreover, plaintiff presented no evidence to
support a claim that it was prevented from bidding on any of the projects shown in
Plaintiffs’ Exhibits M1-3, or that any of those projects were not awarded to the lowest
responsive and responsible bidder. In short, plaintiff has failed to prove a prima facie
case of breach of contract. For the foregoing reasons, the court finds that plaintiff has
failed to prove any of its claims by a preponderance of the evidence and, accordingly,
judgment is recommended in favor of defendant.
       A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).



                                         _____________________________________
                                         HOLLY TRUE SHAVER
                                         Magistrate

cc:
Case No. 2009-01140               -6-             MAGISTRATE DECISION


Christopher P. Conomy              Percy Squire
Assistant Attorney General         514 South High Street
150 East Gay Street, 18th Floor    Columbus, Ohio 43215
Columbus, Ohio 43215-3130

HTS/cmd
Filed May 27, 2011
To S.C. reporter June 7, 2011
