[Cite as A&H Grocery, L.L.C. v. Ohio Dept. of Health, 2016-Ohio-7063.]



A&H GROCERY, LLC                                      Case No. 2015-00848

       Plaintiff                                      Judge Patrick M. McGrath
                                                      Magistrate Holly True Shaver
       v.
                                                      ENTRY GRANTING DEFENDANT’S
OHIO DEPARTMENT OF HEALTH                             MOTION FOR JUDGMENT ON THE
                                                      PLEADINGS
       Defendant



        {¶1} On July 20, 2016, defendant filed a motion for judgment on the pleadings
pursuant to Civ.R. 12(C). On August 4, 2016, plaintiff filed a response.
        {¶2} Civ.R. 12(C) states: “After the pleadings are closed but within such times as
not to delay the trial, any party may move for judgment on the pleadings.”
“Determination of a motion for judgment on the pleadings is restricted solely to the
allegations in the pleadings and any writings attached to the complaint.” Fontbank, Inc.
v. CompuServe, Inc., 138 Ohio App.3d 801, 807 (10th Dist.2000), citing Peterson v.
Teodosio, 34 Ohio St.2d 161, 165 (1973).                  “Civ.R. 12(C) may be employed by a
defendant as a vehicle for raising the several defenses contained in Civ.R. 12(B) after
the close of the pleadings. * * * Pursuant to Civ.R. 12(C), the pleadings must be
construed liberally and in a light most favorable to the party against whom the motion is
made along with the reasonable inferences drawn therefrom. * * * A Civ.R. 12(C) motion
presents only questions of law, and it may be granted only when no material factual
issues exist, and the movant is entitled to a judgment as a matter of law.” Burnside v.
Leimbach, 71 Ohio App.3d 399, 402-403 (10th Dist.1991).1 “The standard of review for


        1On August 12, 2016, defendant filed a reply to its motion and attached exhibits to support its
arguments. However, unlike a Civ.R. 12(B)(6) motion, a motion for judgment on the pleadings cannot be
converted to a motion for summary judgment. Piersant v. Bryngelson, 61 Ohio App. 3d 359 (8th
Dist.1989). Therefore, defendant’s reply and the exhibits attached thereto shall not be considered by the
court.
Case No. 2015-00848                          -2-                                    ENTRY


a dismissal pursuant to Civ.R. 12(B)(1) is whether any cause of action cognizable by the
forum has been raised in the complaint.” State ex rel. Bush v. Spurlock, 42 Ohio St.3d
77, 80 (1989). “In order for a court to dismiss a complaint for failure to state a claim
upon which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from
the complaint that the plaintiff can prove no set of facts entitling it to recovery.” O’Brien
v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus.
       {¶3} According to its complaint, plaintiff, A&H Grocery, LLC, owns and operates a
retail grocery store in Columbus, Ohio. In 2011, plaintiff became a Women, Infants, and
Children (WIC) authorized retail vendor pursuant to O.A.C. 3701-42-03. Under the WIC
program, authorized retail vendors purchase WIC-approved products, sell them to WIC
program consumers, and are reimbursed for those sales by defendant, Ohio
Department of Health.
       {¶4} On August 20, 2014, plaintiff initiated the renewal process of its WIC retail
vendor contract by submitting a renewal application to defendant for the contract term of
January 1, 2015 through December 31, 2017. On January 14, 2015, plaintiff received
notice that defendant had denied plaintiff’s application. Plaintiff then ceased all WIC
sales activities. However, from January 1 through January 14, 2015, plaintiff had sold
$10,190.12 of WIC products for which it was not reimbursed.
       {¶5} Plaintiff requested an administrative appeal of the application denial, and a
hearing was held on March 24, 2015 pursuant to O.A.C. 3701-42-09. On April 16,
2015, the hearing officer reversed the denial of plaintiff’s application, stating: “[t]he
decision of the Director to deny a WIC Retail Vendor application filed by A&H Grocery
Store/Hamarweyne Grocery Store is not valid, and therefore the application should be
granted for the period beginning January 1, 2015.” (Exhibit to Plaintiff’s complaint, p. 5.)
The administrative hearing is final and not subject to further administrative proceedings.
O.A.C. 3701-42-09(H).
Case No. 2015-00848                          -3-                                   ENTRY


       {¶6} After the hearing officer’s decision, plaintiff requested reimbursement for the
WIC sales that it incurred from January 1-14, 2015.            Defendant has refused to
reimburse plaintiff. Plaintiff seeks either a judgment against defendant in the amount of
$10,190.12, or an order from this court compelling defendant to abide by the hearing
officer’s April 16, 2015 decision, plus attorney fees and costs.
       {¶7} In its answer, defendant admits that on January 14, 2015, plaintiff received
notice that defendant had denied plaintiff’s WIC retail vendor application for the period
commencing January 1, 2015.            Defendant also admits that plaintiff requested
reimbursement of the $10,190.12, and that defendant has refused to reimburse plaintiff
for its January 1-14, 2015 WIC sales. In its motion, defendant asserts that this court
lacks jurisdiction over plaintiff’s claim. The court agrees.
       {¶8} “‘R.C. 2743.02(A)(1) makes clear that the Court of Claims has jurisdiction to
render judgment only as to those complaints which, prior to the enactment of the Court
of Claims Act, were precluded by state immunity.’” Interim Health Care of Columbus,
Inc. v. Ohio Dept. of Admin. Servs., 10th Dist. Franklin No. 07AP-747, 2008-Ohio-2286,
¶ 12, quoting Stauffer v. Ohio Dept. of Transp., 63 Ohio App.3d 248, 251 (10th
Dist.1989).
       {¶9} “Actions in mandamus or for injunctive or declaratory relief were
maintainable against the state prior to the adoption of the Court of Claims Act.
Therefore, such actions for equitable relief are not affected by the Court of Claims Act
and may be brought in the court of common pleas.” Ohio Edison Co. v. Ohio Dept. of
Transp., 86 Ohio App.3d189, 192 (10th Dist.1993). A claim for equitable relief may be
brought before the Court of Claims only if it arises out of the same circumstances as a
claim for money damages which is permitted by the state's waiver of immunity. Upjohn
Co. v. Ohio Dept. of Human Servs., 77 Ohio App.3d 827,834 (10th Dist.1991).
       {¶10} “Not every claim for monetary relief constitutes ‘money damages.’ * * *
Unlike a claim for money damages where a plaintiff recovers damages to compensate,
Case No. 2015-00848                          -4-                                   ENTRY


or substitute, for a suffered loss, equitable remedies are not substitute remedies, but an
attempt to give the plaintiff the very thing to which it was entitled. Such remedies
represent a particular privilege or entitlement, rather than general substitute
compensation.” Interim Healthcare, supra, at ¶ 15. (Internal citations omitted.) “A suit
that seeks the return of specific funds wrongfully collected or held by the state is
brought in equity. Thus, a court of common pleas may properly exercise jurisdiction
over the matter as provided in R.C. 2743.03(A)(2).” Santos v. Ohio Bur. of Workers’
Comp., 101 Ohio St.3d 74, 2004-Ohio-28, at syllabus. “([T]he mere title given to an
action is not dispositive of where the action is properly commenced.” Swaney v. Bur. of
Workers’ Comp., 10th Dist. Franklin No. 98AP-299, 1998 Ohio App. LEXIS 5415, at 4
(Nov. 10, 1998).
       {¶11} The gravamen of plaintiff’s complaint is that it is entitled to reimbursement
for the WIC product sales it incurred from January 1-14, 2015, before it received notice
that its renewal application had been denied. Pursuant to the hearing officer’s decision,
plaintiff asserts that defendant should have reimbursed it for the WIC sales during that
period of time.    Plaintiff essentially argues that defendant has wrongfully withheld
moneys to which it was entitled. Although it couches its complaint in a claim for money
damages, the court finds that plaintiff’s claim is equitable in nature.
       {¶12} Moreover, “[a]n action in the Court of Claims cannot become a substitute
for a statutorily created right of appeal in a different court.” Swaney, supra, at 3. “To
hold otherwise would allow the Court of Claims to function as a court of review with the
power to overrule an administrative decision by collateral attack. * * * The Court of
Claims lacks such appellate jurisdiction.” George v. Dept. of Human Servs., 10th Dist.
Franklin No. 04AP-351, 2005-Ohio-2292, ¶ 35.
       {¶13} Based upon the foregoing, the court concludes that plaintiff’s claim is one
for equitable relief over which this court lacks jurisdiction. Accordingly, defendant’s July
20, 2016 motion for judgment on the pleadings is GRANTED and plaintiff’s complaint is
Case No. 2015-00848                        -5-                                    ENTRY


DISMISSED.         All previously scheduled events are VACATED.         Court costs are
assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.




                                                 PATRICK M. MCGRATH
                                                 Judge
cc:
John A. Yaklevich                           Frank S. Carson
100 East Main Street                        Assistant Attorney General
Columbus, Ohio 43215                        150 East Gay Street, 18th Floor
                                            Columbus, Ohio 43215-3130

Filed August 16, 2016
Sent To S.C. Reporter 9/29/16
