[Cite as Sheet Metal Workers Internatl. Assn. Local Union No. 33 v. Courtad, Inc., 2012-Ohio-4812.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                     :       JUDGES:
SHEET METAL WORKERS                                  :       W. Scott Gwin, P.J.
INTERNATIONAL ASSOCIATION                            :       William B. Hoffman, J.
LOCAL UNION NO. 33                                   :       Julie A. Edwards, J.
                                                     :
                        Plaintiff-Appellant          :       Case No. 2012CA00080
                                                     :
-vs-                                                 :
                                                     :       OPINION

COURTAD, INC.

                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                      Civil Appeal from Stark County
                                                              Court of Common Pleas Case No.
                                                              2012CV00168

JUDGMENT:                                                     Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                       October 9, 2012

APPEARANCES:

For Plaintiff-Appellant                                       For Defendant-Appellee

DIANA M. ROBINSON                                             DAVID M. LENEGHAN, ESQ.
MARILYN L. WIDMAN                                             K. SCOTT CARTER, ESQ.
Allotta, Farley & Widman Co. LPA                              200 Treeworth Blvd., Suite 200
2222 Centennial Road                                          Broadview Heights, Ohio 44147
Toledo, Ohio 43617
[Cite as Sheet Metal Workers Internatl. Assn. Local Union No. 33 v. Courtad, Inc., 2012-Ohio-4812.]


Edwards, J.

        {¶1}     Plaintiff-appellant, Sheet Metal Workers International Association Local

Union No. 33, appeals from the April 10, 2012, Judgment Entry of the Stark County

Court of Common Pleas granting the Motion for Judgment on the Pleadings filed by

defendant-appellee Courtad, Inc.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On January 17, 2012, appellant Sheet Metal Workers International

Association Local Union No. 33 filed a complaint in the Stark County Court of Common

Pleas against appellee Courtad, Inc. pursuant to R.C. 4115.03 ct. seq. Appellant, in its

complaint, alleged that appellee had violated Ohio’s prevailing wage laws. Appellant

alleged in its complaint that previously, on September 28, 2011, it had filed a prevailing

wage complaint against appellee with the director of the Ohio Department of

Commerce, Division of Labor and Workers’ Safety, Bureau of Wage and Hour and that

such complaint had not been ruled on. A copy of the prevailing wage complaint was

attached as Exhibit A to the complaint filed in the Stark County Court of Common Pleas.

The prevailing wage complaint lists David Coleman as the complainant.

        {¶3}     On February 21, 2012, appellee filed an answer to the complaint.

Subsequently, on March 26, 2012, appellee filed a Motion for Judgment on the

Pleadings pursuant to Civ.R. 12(C) and (H). Appellee, alleged in its motion, that

appellant was not the real party in interest because the pleadings and exhibits showed

that David Coleman, rather than appellant, had filed the prevailing wage complaint with

the Department of Commerce. Appellee argued that appellant, therefore, lacked

standing to file its complaint in the trial court under R.C. 4115.16(B). Appellant, on April
Stark County App. Case No. 2012CA00080                                                  3


4, 2012, filed a memorandum in response to such motion.                   Attached to the

memorandum was a letter dated September 26, 2011, from David Coleman to the

Department of Commerce on union letterhead. Coleman, in such letter, indicated that

he was filing the prevailing wage complaint on behalf of the appellant.

      {¶4}   Pursuant to a Judgment Entry filed on April 10, 2012, the trial court

granted appellee’s Motion for Judgment on the Pleadings.

      {¶5}   Appellant now raises the following assignment of error on appeal:

      {¶6}   “THE TRIAL COURT ERRED IN GRANTING JUDGMENT ON THE

PLEADINGS IN FAVOR OF DEFENDANT-APPELLEE, COURTAD, INC.”

                                                I

      {¶7}   Appellant, in its sole assignment of error, argues that the trial court erred

in granting appellee’s Motion for Judgment on the Pleadings.

      {¶8}   A motion for judgment on the pleadings presents only questions of law.

Luthy v. Dover, 5th Dist. No. 2011AP030011, 2011–Ohio–4604, ¶ 13, citing Dearth v.

Stanley, 2nd Dist. No. 22180, 2008–Ohio–487. In ruling on a motion for judgment on the

pleadings, the trial court must construe the material allegations in the complaint and any

reasonable inferences drawn therefrom in favor of the plaintiff. If it finds plaintiff can

prove no set of facts entitling plaintiff to relief, the court must sustain a motion for

judgment on the pleadings. Boske v. Massillon City School Dist., 5th Dist. No. 2010–

CA–00120, 2011–Ohio–580, ¶ 12, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 2000–

Ohio–230, 733 N.E.2d 1161. However, the complaint must allege sufficient facts to

support any conclusions, and unsupported conclusions are not presumed to be true. Id.
Stark County App. Case No. 2012CA00080                                                  4


       {¶9}   Judgment on the pleadings may be granted where no material factual

issue exists. However, it is axiomatic that a motion for judgment on the pleadings is

restricted solely to the allegations contained in those pleadings. Giesberger v. Alliance

Police Department, 5th Dist. No. 2011 CA00070, 2011–Ohio–5940, at ¶ 18, citing

Flanagan v. Williams, 87 Ohio App.3d 768, 623 N.E.2d 185 (4th Dist.1993).

       {¶10} Our review of the trial court's decision granting judgment on the pleadings

is de novo. See, Hignite v. Glick, Layman & Assoc., Inc., 8th Dist. No. 95782, 2011-

Ohio-1698. When reviewing a matter de novo, this Court does not give deference to the

trial court's decision. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 809 N.E.2d

1161, 2004–Ohio–829, ¶ 11 (9th Dist.). “Under Civ.R. 12(C), dismissal is appropriate

where a court (1) construes the material allegations in the complaint, with all reasonable

inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds

beyond doubt, that the plaintiff could prove no set of facts in support of his claim that

would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio

St.3d 565, 570, 664 N.E.2d 931 (1996). In considering such a motion, one must look

only to the face of the complaint. Nelson v. Pleasant, 73 Ohio App.3d 479, 597 N.E.2d

1137 (4th Dist. 1991).

       {¶11} At issue in the case sub judice is whether or not the trial court erred in

granting appellee’s Motion for Judgment on the Pleadings on the grounds that appellant

lacked standing to file a complaint in the Stark County Court of Common Pleas. R.C.

4115.16(A) authorizes an “interested party” to file a complaint with the director of

commerce alleging a prevailing-wage violation. If the director has not ruled on the merits

of the complaint within 60 days, the interested party may file a complaint in the court of
Stark County App. Case No. 2012CA00080                                                                    5


common pleas of the county in which the violation allegedly occurred pursuant to R.C.

4115.16(B).

        {¶12} The trial court, in its April 10, 2012, Judgment Entry, stated, in relevant

part, as follows:

        {¶13} “In this matter, the Court finds that the complaint filed with the director was

done in the name of ‘David Coleman.’ While David Coleman may be the organizer of

the Union, it does not appear that he filed the complaint with the director in his official

capacity.     Specifically, the complaint filed with the director, and attached to the

complaint filed in this Court, lists him as ‘David Coleman,’ without a designation as to

capacity within the Union. Further, he signed the complaint without such designation.1

As such, this Court finds that the ‘interested party’ that filed the complaint with the

director was David Coleman.             As such, the proper plaintiff in this matter is David

Coleman, not the Union.

        {¶14} “Further, while the Union alleges in the complaint filed in this Court that it

filed the complaint with the director (notably, without mention of David Coleman’s

involvement), such allegation is clearly contradicted by the attachment to the complaint,

and insufficient to support a finding as to its standing. Accordingly, the Court finds that,

while the Union may be an ‘interested party’ under R.C. 4115.16, it is not the proper

party, with standing, to maintain the instant action.”

        {¶15} However, appellant specifically alleged in paragraph 21 of its complaint

that, on September 28, 2011, it had filed a prevailing wage complaint against appellee

1
 “Although David Coleman, in his letter to the director of the Department of Commerce that accompanied
his complaint, indicates that he is filing ‘as interested party’ on behalf of [the Union], such material was
not attached to the pleadings and cannot be considered by the Court in its analysis of the instant motion.
Further, even if such statement was considered, it is clear by the complaint filed with the director that he
did not file it in such capacity.” (Footnote from April 10, 2012, Judgment Entry).
Stark County App. Case No. 2012CA00080                                                   6


with the Department of Commerce. A copy of the prevailing wage complaint attached as

Exhibit A to the complaint filed in the Stark County Court of Common Pleas lists David

Coleman was the complainant. The address listed for David Coleman on the prevailing

wage complaint is the same as the address listed for appellant on the complaint filed in

the trial court. Thus, construing the allegations in appellant’s favor, there is a question

of fact as to whether or not the prevailing wage complaint filed with the director of the

Department of Commerce would be treated by the director as having been filed by

David Coleman on behalf of appellant union or by David Coleman on his own behalf.

      {¶16} Based on the foregoing, we find that the trial court erred in granting

appellee’s Motion for Judgment on the Pleadings.

      {¶17} Appellant’s sole assignment of error is, therefore, sustained.

      {¶18} Accordingly, the judgment of the Stark County Court of Common Pleas is

reversed and this matter is remanded for further proceedings.

By: Edwards, J.

Gwin, P.J. concurs and

Hoffman, J. dissents

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                JUDGES

JAE/d0619
Stark County App. Case No. 2012CA00080                                                                     7



Hoffman, J., dissenting

        {¶19} I respectfully dissent from the majority opinion.

        {¶20} “Where an instrument attached to a complaint is inconsistent with the

language in the complaint, the document, rather than the language of the complaint, will

control.” Williams and Co., Inc. v. Allied Sales of Columbus, 1975 Ohio App. Lexis

8559, at p.7.2

        {¶21} Based on the foregoing authority, I believe the trial court correctly

determined although the Union may be an “interested party” under R.C. 4115.16, it was

not the proper party, with standing, to maintain the action. I would affirm the trial court’s

judgment.



                                                          ________________________________
                                                          HON. WILLIAM B. HOFFMAN




2
  Although this language is found in Judge Whitesides’s dissenting opinion such proposition is not refuted
in the majority opinion. Judge Whiteside’s dissent in Williams & Co. is premised upon the proper
application of Civ.R. 10(D) as it relates to the sufficiency of a complaint to state a claim upon an account.
Neither the majority nor Judge Whiteside’s dissent involved a challenge to standing as presented in the
case sub judice.
[Cite as Sheet Metal Workers Internatl. Assn. Local Union No. 33 v. Courtad, Inc., 2012-Ohio-4812.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


SHEET METAL WORKERS                  :
INTERNATIONAL ASSOCIATION LOCAL :
UNION NO. 33                         :
                                     :
                 Plaintiff-Appellant :
                                     :
                                     :
-vs-                                 :                         JUDGMENT ENTRY
                                     :
COURTAD, INC.                        :
                                     :
               Defendant-Appellee    :                         CASE NO. 2012CA00080




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is reversed and remanded to the

trial court for further proceedings. Costs assessed to appellee.




                                                        _________________________________


                                                        _________________________________


                                                        _________________________________

                                                                             JUDGES
