[Cite as State ex rel. Doran v. Preble Cty. Bd. of Commrs., 2013-Ohio-3579.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             PREBLE COUNTY




STATE EX REL. KELLY DORAN,                               :
Taxpayer, et al.,
                                                         :           CASE NO. CA2012-11-015
        Plaintiffs-Appellants,
                                                         :                     OPINION
    - vs -                                                                      8/19/2013
                                                         :
PREBLE COUNTY BOARD OF
COMMISSIONERS, et al.,                                   :

        Defendants-Appellees.                            :



             CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                                 Case No. 12CV29351



Frost Brown Todd LLC, Stephen N. Haughey, Thaddeus H. Driscoll, 3300 Great American
Tower, 301 East 4th Street, Cincinnati, Ohio 45202 and Frost Brown Todd LLC, Benjamin J.
Helwig, 9277 Centre Pointe Drive, Suite 300, West Chester, Ohio 45069, for plaintiffs-
appellants, Kelly Doran and Village of Camden, Ohio

Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for defendant-appellee, Preble
County Board of Commissioners

Augustus L. Ross III, 1614 U.S. 35 East, Eaton, Ohio 45320, for defendant-appellee,
Lakengren Water Authority

Garbig & Schmidt, LLC, Phillip R. Garbig, Caroline R. Schmidt, 2840 Alt. St. Rt. #49,
Arcanum, Ohio 45304, for defendant-appellee, Brumbaugh Construction



        RINGLAND, P.J.

        {¶ 1} Plaintiffs-appellants, Preble County taxpayer Kelly Doran and the village of
                                                                                 Preble CA2012-11-015

Camden (the "Village"),1 appeal a decision of the Preble County Common Pleas Court

awarding judgment to defendants-appellants, the Preble County Board of Commissioners

(the "Board"), Lakengren Water Authority ("Lakengren"), and Brumbaugh Construction

Company ("Brumbaugh") after a trial on the issues of Ohio's competitive bidding and ethics

statutes.2 For the reasons set forth below, we affirm the decision of the trial court.

        {¶ 2} In early 2008, the Board began exploring options for disposing of leachate
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generated at the county's landfill (the "leachate project").               Thus, the Board entered into

negotiations with the Village to discuss the option of transporting leachate through a force

main sewer line from the landfill to the Village's collection system. In a "cooperative

agreement" entered into by the Board and the Village in October 2008, the parties agreed to

share in the funding of the leachate project with the Board assuming responsibility for 70

percent of the funding and the Village responsible for 30 percent. However, in March 2009,

the Board terminated discussions with the Village regarding the leachate project and

subsequently published a Request for Proposals ("RFPs") that invited interested entities to

bid for the award of a 20-year contract to dispose of the leachate (the "leachate contract").

The RFPs indicated that interested offerors could obtain a "project description" from the

Board, which consisted of a written project description, a written scope of work, and a written

list factors and criteria to be used in the evaluation of the submitted proposals.

        {¶ 3} In order to review the submitted proposals, the Board appointed an RFP

selection committee.        The responsibility of the committee was to evaluate and score




1. The village of Camden is a municipality located in Preble County, Ohio.

2. Lakengren and Brumbaugh were named as indispensable parties in the action under Civ.R. 19 and Ohio's
declaratory judgment statute because they were parties to the contracts being challenged. Neither Lakengren nor
Brumbaugh actively participated in the trial other than to support the position taken by the Board.

3. Leachate consists of the soluble constituents derived from waste as it decomposes and enters into water by
percolating through a landfill.
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proposals, then submit recommendations to the Board regarding an award of the leachate

contract. The RFP selection committee, comprised of five total members, included County

Engineer Steve Simmons and Chief Deputy County Engineer Kyle Cross. Both Simmons

and Cross were residents of Lakengren, a private residential community whose residents

formed their own sewer utility for sewer collection and treatment.

       {¶ 4} Both the Village and Lakengren submitted proposals to the Board that were

reviewed by the selection committee in October 2009. After the proposals had been

submitted and opened for review, the selection committee prepared a detailed scoring sheet

and scored the proposals before concluding that Lakengren's proposal scored higher than

the Village's.   Thus, the selection committee voted to recommend to the Board that

Lakengren be awarded the leachate contract. The Board adopted the recommendation and

entered into a contract with Lakengren on January 25, 2010.

       {¶ 5} In December 2010, 11 months after the award of the contract to Lakengren, the

Village filed a federal lawsuit in the United States District Court for the Southern District of

Ohio. The suit alleged a Section 1983 federal civil rights claim arising from the Board's

award of the leachate contract to Lakengren. The suit also sought supplemental federal

jurisdiction over state law claims including alleged violations of Ohio's competitive bidding

statutes under R.C. 307.86, et seq. However, the lawsuit was dismissed in April 2011 for

lack of federal jurisdiction.

       {¶ 6} Following dismissal of the federal suit, the Board requested public bids for a

contract to construct a pressure force main sewer line and appurtenances from Preble

County's landfill to Lakengren. In November 2011, Brumbaugh was awarded the contract to

construct the sewer line and construction of the line began in January 2012.

       {¶ 7} On March 19, 2012, approximately 27 months after the leachate contract had

been awarded to Lakengren, the Village, along with taxpayer Kelly Doran (collectively,
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"appellants"), filed suit in the Preble County Common Pleas Court against the Board,

Lakengren, and Brumbaugh. The complaint alleged violations of Ohio's competitive bidding

statutes (R.C. 307.86 and R.C. 307.862), Ohio's conflict of interest and public ethics statutes

(R.C. 305.27 and R.C. 102.03), and Ohio's taxpayer statutes (R.C. 309.12 and R.C. 209.13),

as well as a claim that the Village was entitled to a writ of mandamus pursuant to R.C.

2731.02, asserting a clear legal right to the award of the leachate contract to the Village.

       {¶ 8} By the time the present suit was initiated, 79 percent of the force main sewer

line construction had been completed and $240,125 had already been spent by Preble

County on the sewer line alone, as distinguished from the construction of the pumping and

retention facilities.   In addition, $871,167.85 of the $1,490,670.50 contract had been

submitted to Preble County by Brumbaugh for payment.

       {¶ 9} A trial was held May 7, 2012, at which point the force main had been

completed, pressure-tested, and was ready for service, $333,799 had been spent by Preble

County on the force main portion of the project, and the contract with Brumbaugh was within

one month of completion. Testimony at trial revealed that awarding the contract to the

Village at this time would cost Preble County taxpayers, at minimum, an additional $381,355

in the construction of a new sewer line to the Village. On October 30, 2012, based upon

these facts, the trial court issued a decision granting the Board's motion to dismiss

appellants' claims under Ohio's competitive bidding statutes and ruling that appellants'

remaining claims were barred by the equitable doctrine of laches.

       {¶ 10} From the trial court's decision, appellants appeal, raising two assignments of

error. Appellants do not appeal the trial court's dismissal of their claims under Ohio's

competitive bidding statutes but appeal those claims barred by the doctrine of laches.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE TRIAL COURT ERRED BY HOLDING THAT THE EQUITABLE
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                                                                   Preble CA2012-11-015

DOCTRINE OF LACHES BARRED PLAINTIFFS-APPELLANTS' CLAIMS.

      {¶ 13} In their first assignment of error, appellants raise several issues: (1) laches

does not apply to a taxpayer suit under R.C. 309.12 or R.C. 309.13; (2) laches does not

apply to the claims of a local government against another local government for violation of

the public's rights; (3) laches does not apply when the party asserting the defense has

unclean hands; and (4) even if laches applied, the Board failed to introduce evidence to

support a finding of laches. In essence, appellants contend the trial court improperly found

that their claims were barred by the doctrine of laches.

      {¶ 14} "'Laches is an omission to assert a right for an unreasonable and unexplained

length of time, under circumstances prejudicial to the adverse party. It signifies delay

independent of limitations in statutes.'" Merchants Bank & Trust Co. v. Kelly, 12th Dist.

Butler No. CA2003-09-229, 2004-Ohio-3913, ¶ 20, quoting Connin v. Bailey, 15 Ohio St.3d

34, 35 (1984); Smith v. Smith, 107 Ohio App. 440, 443-444 (8th Dist.1957). In order to

successfully invoke the equitable doctrine of laches, "it must be shown that the person for

whose benefit the doctrine will operate has been materially prejudiced by the delay of the

person asserting his claim." Id., citing Connin at 35-36; Smith v. Smith, 168 Ohio St. 447

(1959), paragraph three of the syllabus.

                                     Taxpayer Claims

      {¶ 15} Appellants first argue that Doran's claims under R.C. 309.12 and R.C. 309.13

cannot be barred by the doctrine of laches. Specifically, appellants contend that, because

taxpayer suits serve a vital interest to guard against improper public expenditures, Ohio

courts have consistently held that taxpayer suits cannot be barred by laches. The issue is

whether Ohio law permits the equitable application of the doctrine of laches to claims

regarding the rights of taxpayers. As this is a question of law, we review appellants'

contention under a de novo standard of review. Wilson v. AC&S, Inc., 169 Ohio App.3d 720,
                                            -5-
                                                                         Preble CA2012-11-015

2006-Ohio-6704, ¶ 61 (12th Dist.) ("Questions of law are reviewed de novo, independently,

and without deference to the trial court's decision"); Chirco v. Crosswinds Communities, Inc.,

474 F.3d 227, 231 (6th Cir.2007) ("[W]hen a reviewing court is presented with a threshold

question of law as to whether the laches doctrine is even applicable in a particular situation,

as we are here, our review is de novo").

       {¶ 16} A taxpayer suit is a unique type of "derivative action, created by statute, that is

brought on behalf of the municipality to ensure that its officers comply with the law, do not

misapply funds, or do not abuse the municipality's corporate powers." Cincinnati ex rel. Ritter

v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728, 2002-Ohio-7078, ¶ 20 (1st Dist.), citing

Columbus ex rel. Willits v. Cremean, 27 Ohio App.2d 137, 149 (10th Dist.1971).

       {¶ 17} There is extremely limited case law on the application of laches to a taxpayer

lawsuit and the majority of these cases date back to 1980 or earlier. Nevertheless, in

reviewing the cases relied upon by appellants, we find there is no outright "maxim" declaring

that the doctrine of laches cannot be applied to bar the suit of an Ohio taxpayer. See State

ex rel. Scobie v. Cass, 22 Ohio C.D. 208, 213, 32 Ohio C.C. 208, 1910 WL 639 (Oct. 28,

1910) (holding that laches did not apply due to the plaintiff's reasonable diligence and finding

that the court "would hardly be warranted, in a suit begun on behalf of the taxpayers of the

county, to protect their interests against the illegal expenditure of public funds, in finding that

the plaintiff was guilty of laches, unless such clearly appeared to be the case"); Pincelli v.

The Ohio Bridge Corp., 5 Ohio St.2d 41 (1966) (addressing injunctive relief under R.C.

309.13 rather than laches); Yoder v. Williams Cty., 48 Ohio App.2d 36, 42 (6th Dist.1976)

(finding the doctrine of laches inapplicable in this case "where the plaintiff used reasonable

diligence in prosecuting the action"); State of Ohio ex rel. Crown Controls Corp. v. Reinhart,

3d Dist. Auglaize No. 2-78-6, 1978 WL 215789, *4 (July 25, 1978) (finding that the doctrine of

laches may apply in certain cases but is inapplicable in the case at hand, where the action
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was "not personal but on behalf of the public, is barred by no specific statute of limitations

and involves a void contract, not simply voidable"); Takacs v. City of Euclid, Ohio, 8th Dist.

Cuyahoga Nos. 40978 & 41113, 1980 WL 354795, *5 (Aug. 14, 1980) (holding that laches

did not apply due to the plaintiff's reasonable diligence and quoting Scobie for the proposition

that application of the doctrine of laches is not applicable in a suit brought by a taxpayer to

protect the public "unless such clearly appeared to be the case").

       {¶ 18} Thus, Ohio case law does not prohibit the application of laches as a defense to

a taxpayer suit under R.C. 309.12 and R.C. 309.13. Rather, the application of the doctrine of

laches in a taxpayer suit brought to protect the public's interest is permissible where it "clearly

appear[s] to be the case." Scobie at 213; Takacs at *5. As such, we find that the doctrine of

laches may be used as a defense in a taxpayer lawsuit where it is shown "that the person for

whose benefit the doctrine will operate has been materially prejudiced by the delay of the

person asserting his claim." Kelly, 2004-Ohio-3913 at ¶ 20.

                         Local Government v. Local Government

       {¶ 19} Appellants next argue that the doctrine of laches cannot be applied to claims of

a local government (the Village) against another local government (Preble County) for

violations of public rights. Specifically, appellants contend the trial court erred as a matter of

law in applying the doctrine of laches to the case at hand, as "courts across Ohio have

continued to apply the deeply-rooted maxim that laches does not apply to state and local

governments when they bring claims to protect the public's rights." We review appellants'

argument that application of the doctrine of laches is impermissible to all lawsuits involving

local government de novo. Wilson, 2006-Ohio-6704 at ¶ 61; Chirco, 474 F.3d at 231.

       {¶ 20} Appellants are correct that "laches is generally no defense to a suit by the

government to enforce a public right or to protect a public interest."       (Emphasis added.)

Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143 (1990), paragraph three of the
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syllabus; Ohio Dept. of Transp. v. Sullivan, 38 Ohio St.3d 137, 139 (1988); Portage Cty. Bd.

of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, ¶ 82. "The rationale behind this

rule is one of public policy; the public should not suffer due to the inaction of public officials."

Still v. Hayman, 153 Ohio App.3d 487, 2003-Ohio-4113, ¶ 11 (7th Dist.); Frantz at 146, citing

Lee v. Sturges, 46 Ohio St. 153, 176 (1889). "To impute laches to the government would be

to erroneously impede it in the exercise of its duty to enforce the law and protect the public

interest." Frantz at 146.

       {¶ 21} Despite this general principle, "the imposition of an absolute bar to the

availability of laches as a legal defense against the state has never been held by the Ohio

Supreme Court." Still at ¶ 8, citing Adams Cty. Child Support Enforcement Agency v.

Osborne, 4th Dist. Adams No. 95CA592, 1996 WL 230038 (May 3, 1996). The "true reason

[behind this general rule] is to be found in the great public policy of preserving the public

rights, revenues, and property from injury and loss, by the negligence of public officers."

Sullivan at 138.

       {¶ 22} A case between two public bodies does not present the same concerns of

protecting the public interest as does a case between a public body and a private citizen or

private entity. Therefore, we find the doctrine of laches may be imputed upon a unit of

government serving one public constituency which is suing another unit of government

serving a different public constituency, as both parties have a duty to enforce the law and

preserve the public rights, revenues, and property from injury and loss. While "estoppel and

laches rarely lie against government bodies" due to the "principle that public rights generally

should not yield to those of private parties," there is "little or no such concern in this dispute

between public bodies."       State ex rel. City of Monett v. Lawrence Cty., Mo.App. No.

SD31500, 2013 WL 1952537, *4 (May 13, 2013); see also Munn v. Horvitz Co., 175 Ohio St.

521, 529 (1964). Accordingly, laches may be applied in cases involving disputes between
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public bodies.

                                      Unclean Hands

       {¶ 23} Appellants additionally argue the doctrine of laches cannot apply specifically to

this case because the Board does not have clean hands. Appellants argue the Board cannot

assert laches because it failed to act in good faith when it executed a cooperative agreement

with the Village, used the agreement to obtain a loan from the Ohio Public Works

Commission ("OPWC"), and then ignored the agreement and awarded the leachate contract

to Lakengren. Additionally, appellants argue the Board has unclean hands because it

allowed Simmons and Cross, both residents of Lakengren, to organize and sit on the RFP

selection committee and recommend to the Board that Lakengren be given the leachate

contract.

       {¶ 24} "The most memorable equitable maxim learned by every first year law student

is 'he who comes seeking equity must come with clean hands.'" City of Kettering v. Berger, 4

Ohio App.3d 254, 261 (2d Dist.1982). "In order to have any standing to successfully assert

an equitable defense, i.e., laches, one must come with clean hands, and if he has violated

conscience or good faith or has acted fraudulently, equitable release in defenses are not

available to him." Id. at 261-262. "[U]nclean hands are not to be lightly inferred. They must

be established by clear, unequivocal and convincing evidence." Hoover Transp. Services,

Inc. v. Frye, 77 Fed.Appx. 776, 784 (6th Cir.2003), quoting Kearney & Trecker Corp. v.

Cincinnati Milacron, Inc., 562 F.2d 365, 371 (6th Cir.1977). Appellants' allegations of

unclean hands are supported by little, if any, evidence.

       {¶ 25} Testimony at trial revealed that Simmons, on behalf of the Board, began

exclusive negotiations with the Village regarding the leachate project in 2008. Based, in part,

upon these negotiations, Simmons prepared an OPWC loan application listing the Village as

the destination of the force main sewer line where the leachate would be treated. As part of
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the loan application, Simmons included the October 2008 "cooperative agreement" entered

into by the Village and the Board. Doran admits that the cooperative agreement was not a

contract and Simmons explained that attaching the cooperative agreement to the loan

application was "kind of moot," as the OPWC "couldn't spend [loan money] fast enough" and

had not turned down a loan in the last 20 years. OPWC eventually approved the loan

including the Village as the end location of the force main sewer line. Simmons explained,

however, that negotiations between the Village and the Board ultimately broke down over the

issue of cost and, therefore, the Board sought bids elsewhere. After Lakengren secured the

leachate project contract, the Board amended the OPWC application to list Lakengren as the

destination of the force main.

       {¶ 26} Furthermore, Simmons and Doran testified regarding the Board's earnest desire

to partner with the Village regarding the leachate project. Though Simmons is a resident of

Lakengren, Doran testified about Simmons's repeated statements that the Board "always"

had an intent to use the Village for the leachate project and that the Board showed "goodwill"

and "interest" in entering into a leachate contract with the Village.

       {¶ 27} The Village has failed to present evidence that the Board's negotiations with the

Village and appointment of the selection committee were done in bad faith, without good

conscience, or were fraudulent in nature. No contract was agreed to by the Board and the

Village and, thus, no breach of contract has occurred. Furthermore, negotiations break down

between parties regularly and, without more, we do not find that the Board's eventual

decision to request bids from other entities was an indication of unclean hands. Finally, even

had Simmons or Cross sought to influence the selection committee to side in favor of

Lakengren, the Board made the final decision as to who would be awarded the leachate

contract. The selection committee's responsibility was simply to recommend an offeror to the

Board and it was the Board who made the determination to offer the contract to Lakengren,

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not Simmons or Cross. Based upon our review of the record, we find that the trial court did

not err in applying the doctrine of laches to the case at hand, as there is no evidence that the

Board acted with unclean hands.

                                     Sufficient Evidence

       {¶ 28} Finally, appellants contend that, even if the doctrine of laches is applicable to

taxpayer and local government actions, the doctrine should not be applied in this case, as the

Board failed to present sufficient evidence for a finding of laches.

       {¶ 29} The party invoking the doctrine of laches "must establish, by a preponderance

of the evidence, the following four elements: (1) unreasonable delay or lapse of time in

asserting a right; (2) absence of an excuse for the delay; (3) knowledge, actual or

constructive, of the injury or wrong; and (4) prejudice to the other party." Dyrdek v. Dyrdek,

4th Dist. Washington No. 09CA29, 2010-Ohio-2329, ¶18, citing State ex rel. Meyers v.

Columbus, 71 Ohio St.3d 603, 605 (1995); Pavkov v. Time Warner Cable, 9th Dist. Wayne

No. 99CA0025, 2000 WL 354163, *4-5 (Apr. 5, 2000).

       {¶ 30} "What constitutes material prejudice is primarily a question of fact to be

resolved through a consideration of the special circumstances of each case." Shockey v.

Blackburn, 12th Dist. Warren No. CA98-07-085, 1999 WL 326174, *4 (May 17, 1999), citing

Bitonte v. Tiffin Savings Bank, 65 Ohio App.3d 734, 739 (3d Dist.1989). "An appellate court

will not reverse the decision of a trial court regarding the application of the doctrine of laches

unless there is a showing of an abuse of discretion." Id., citing Payne v. Cartee, 111 Ohio

App.3d 580, 590 (4th Dist.1996); see also State ex rel. Choices for South–Western City

Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, ¶ 27. An abuse of discretion is more

than an error of law or judgment; it involves a determination that the trial court's decision is

arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).
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       {¶ 31} We find the case at hand analogous to the Eighth Appellate District's case of

Ormond v. City of Solon, 8th Dist. Cuyahoga No. 79223, 2001 WL 1243959 (Oct. 18, 2001).

In Ormond, the Eighth District addressed the dispute between a resident property owner and

the city of Solon concerning the development of a residential subdivision within the city limits.

Id. at *1. The resident asserted that the city, in contravention of the city charter, changed the

zoning classification of the land which was to be used for the subdivision. Id. The resident,

therefore, sought a preliminary injunction enjoining the construction of the subdivision. Id.

The trial court found that the resident "waited too long after the * * * construction on the

project had started to seek a temporary restraining order and/or preliminary injunction to

enjoin the construction efforts." Id. at *2.

       {¶ 32} On appeal, the Eighth District found that the doctrine of laches applied to bar

the resident's claims. Id. The court determined that "ample documentation" demonstrated

"the material prejudice which would have inured to the detriment of the city and the

developers had the trial court granted the [resident's] untimely request for injunctive relief."

Specifically, the Eighth District quoted the finding of the trial court:

              Notwithstanding the fact that [the resident] had notice that
              construction would start shortly after the January 18, 2000
              approval of the preliminary plat, [the resident] did not move for a
              Temporary Restraining Order or Preliminary Injunction under
              June 28, 2000. * * * By that time, the construction of [the
              subdivision] had completed over seven major steps out of a total
              of ten steps in the development. * * * Thus, for almost seven
              months, [the resident] did not actively pursue an injunction until
              much of the construction had already been completed. To halt
              the construction now would certainly harm the developers more
              than [the resident] would be harmed without the injunction.
              Moreover, [the resident] should not be permitted to delay seeking
              an injunction thereby increasing the harm [the city] would suffer
              from such an injunction when the degree of harm would have
              been less severe had [the resident] actively sought an injunction
              sooner.

Id. at *3. With that, the Eighth District concurred with the trial court's application of the


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doctrine of laches and conclusion that it would have been inequitable to have granted

injunctive relief after the resident's delayed request for relief. Id.

       {¶ 33} Just as in Ormond, ample evidence was presented before the trial court that

appellants waited 27 months after the leachate contract was awarded to Lakengren before

filing suit. Even if we discount, as appellants propose, the time between the leachate

contract being awarded to Lakengren (January 2010) and when Brumbaugh was hired to

build the sewer line (November 2011), appellants still waited an unreasonable four months

before filing suit in state court. See Jefferson Regional Water Auth. v. Montgomery Cty., 161

Ohio App.3d 310, 2005-Ohio-2755, ¶ 8 (2d Dist.) (plaintiff who waited seven months after

knowing about a construction contract to file a claim was barred by the doctrine of laches).

By the time appellants filed their March 19, 2012 complaint, 79 percent of the force main

construction was complete and Preble County had already expended $240,125 to

Brumbaugh. In addition, by the time of trial, $333,799 had already been spent by Preble

County on the force main portion of the project alone, and the construction performed by

Brumbaugh was within one month of completion. Finally, testimony at the trial revealed, and

Doran confirmed, that Preble County's taxpayers would have been required to pay, at

minimum, an additional $381,355 for the construction of a new sewer line to the Village had

appellants' prevailed in the suit.

       {¶ 34} Appellants assert the Board was put on notice of the potential lawsuit in

October 2011 when appellants' trial counsel called Preble County's prosecutor, asking that

the prosecutor discuss with the Board the leachate project, as Doran personally wished to

avoid litigation if the Village was not awarded the leachate contract. However, beyond the

testimony of Doran that his attorney said he made a telephone call to the prosecutor, there is

no evidence in the record that such a conversation took place or that the Board was aware of

any such communication. Rather, the testimony reveals, at best, that Doran's attorney
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contacted the Preble County prosecutor's office regarding the leachate contract and was told

"that ship has sailed." Without more, we cannot say that the Board had notice of the potential

for suit in state court prior to the March 2012 filing of appellants' complaint.

       {¶ 35} Appellants further claim that their reason for any delay in filing suit was due to

the fact that the Village is a "small community" and too "poor" to file a lawsuit, as they did not

"really budget for something like this." Appellants also allege that an Ohio EPA water supply

emergency in the Village prevented the filing of the lawsuit in a more timely fashion.

However, Doran testified that the water supply emergency which occurred in the Village did

not affect funding for the lawsuit, as the emergency issue was funded by a low-interest loan

which had no bearing on the Village's general fund. In addition, Doran testified that, although

the water emergency occurred at the same time as the leachate project, the Village "never

lost [their] focus" on the leachate project and that the project was "something that [the

Village] always worked on, even in the midst of [the water emergency]." Finally, Doran

testified that the Village has annual gross receipts of approximately $1,000,000 and was able

to hire an attorney to represent the Board in federal court just one year prior to the state suit.

Accordingly, we find that appellants failed to present a just reason for their delay in filing suit

against the Board.

       {¶ 36} Based upon our review of the record, we find evidence supporting the trial

court's determination that there was an unreasonable delay between appellants' learning of

the leachate contract and appellants' filing suit, there was no excuse for such a delay, and

the Board, as well as the taxpayers of Preble County, were materially prejudiced by the

delay. If appellants had filed suit sooner, prior to the commencement of construction or the

award of a construction contract, their claims could have been addressed without harm to

Preble County's taxpayers. We agree with the trial court that awarding the contract to the

Village or requiring the Board to rebid the leachate project at this time would result in the

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substantial waste of taxpayer funds in an already completed project. Appellants should not

be permitted to delay filing their suit when such a delay causes a degree of harm that would

have been less severe had appellants actively sought relief sooner. Consequently, we find

that the trial court did not abuse its discretion in applying the doctrine of laches to the case at

hand. It would have been inequitable to award judgment in favor of appellants after they

delayed requesting relief for such an extended period of time.

       {¶ 37} For the foregoing reasons, appellants' first assignment of error is overruled.

       {¶ 38} Assignment of Error No. 2:

       {¶ 39} THE TRIAL COURT ERRED BY HOLDING THAT OHIO'S ETHICS STATUTES

WERE NOT VIOLATED WHEN COUNTY-APPOINTED COMMITTEE MEMBERS LIVING IN

THE PRIVATE LAKENGREN COMMUNITY VOTED TO AWARD A 20-YEAR LEACHATE

CONTRACT TO THE COMMUNITY.

       {¶ 40} In their second assignment of error, appellants contend the Board violated R.C.

102.03 and R.C. 305.27 by including Lakengren residents as members of the leachate

project selection committee. Specifically, appellants argue that Simmons and Cross had

improper personal and pecuniary interests (1) when they developed scoring criteria for

scoring the proposals after receiving Lakengren's proposal, (2) when they gave a higher

score to Lakengren's proposal, and (3) when they voted to recommend to the Board that

Lakengren receive the leachate project contract.

       {¶ 41} Although the trial court addressed the merits of appellants' ethics claims relating

to Simmons and Cross, the court ultimately dismissed these claims on the basis of laches, as

discussed above. As our finding that laches applies in this case resolves the issue raised

here, we decline to address appellants' second assignment of error. See App.R. 12(A)(1)(c);

Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 9th Dist. Summit No. 26200, 2012-

Ohio-5647, ¶ 23.
                                               - 15 -
                                         Preble CA2012-11-015

{¶ 42} Judgment affirmed.


S. POWELL and PIPER, JJ., concur.




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