Ohio Valley Associated Builders & Contractors v. Industrial Power Systems, Inc.Ohio Valley Associated Builders & Contractors v. Industrial Power Systems, Inc.
{¶ 1} Plaintiff-appellant and cross-appellee, Ohio Valley Associated Builders and Contractors (“ABC”), appeals the Lucas County Court of Common Pleas’ grant of summary judgment in favor of defendant-appellee and cross-appellant, Industrial Power Systems, Inc. (“IPS”), on its complaint alleging that IPS violated Ohio’s prevailing-wage laws. Cross-appellant, IPS, appeals both the trial court’s grant of summary judgment and the trial court’s denial of its motion for attorney’s fees. For the reasons that follow, we reverse.
{¶ 2} The relevant facts of this case are not disputed. The University of Toledo planned two public-improvement
{¶ 3} After IPS began working on the projects, ABC suspected that IPS was in violation of Ohio’s prevailing-wage law. As a result, ABC filed two administrative complaints with the Ohio Department of Commerce, Division of Labor, Bureau of Wage and Hour on or about November 3, 2008.
{¶ 4} On March 19, 2009, IPS filed a motion to consolidate the cases. On March 30, 2009, the trial court ordered that both cases be consolidated under case No. CI09-1366 and dismissed case No. CI09-1367. That same day, IPS also filed a motion to dismiss and motion for a more definite statement in response to ABC’s complaint. On September 4, 2009, the trial court denied both of IPS’s motions.
{¶ 5} On November 5, 2009, IPS filed a motion for summary judgment, arguing that ABC lacked standing to pursue a prevailing-wage complaint against it, that ABC failed to identify any prevailing-wage violations, that ABC failed to exhaust its administrative remedies, and that it was entitled to attorney fees under
{¶ 6} On December 14, 2009, ABC filed its memorandum in opposition, arguing that it had standing as an interested party under
{¶ 7} On March 10, 2010, the trial court granted IPS’s motion for summary judgment, finding that ABC lacked standing, but the trial court denied IPS’s request for attorney fees, finding that issue moot in light of the dismissal.
{¶ 8} On April 7, 2010, ABC filed its notice of appeal. IPS filed its notice of cross-appeal on April 15, 2010. On June 25, 2010, this court granted the Ohio Institute for Fair Contracting (“OIFC”) leave to file an amicus brief.
{¶ 9} ABC appeals raising one assignment of error. IPS appeals raising two assignments of error. We will combine ABC’s assignment of error with IPS’s second assignment of error on cross-appeal for discussion.
ABC’s Assignment of Error
The trial court erred when it granted defendant/appellee IPS’s motion for summary judgment.
*277 Cross-Appellant IPS’s Assignment of Error No. II
The trial court erred by not holding that ABC lacks standing for failing to bid against IPS on its HVAC/plumbing bid, the very reason that ABC suffered no damages.
{¶ 10} In its sole assignment of error, ABC argues that the trial court erred in granting IPS’s motion for summary judgment on the basis of standing, since it was an “interested party” under
{¶ 11} Cross-appellant IPS, in its second assignment of error, argues that ABC lacks standing to pursue its prevailing-wage complaint because ABC’s member, Westfield Group, never bid on the HVAC and plumbing contracts from which the alleged prevailing-wage violations stem. Rather, Westfield Group was a successful bidder on electrical contracts for the public improvement. IPS argues that the phrase “a contract” in
{¶ 12} OIFC argues that ABC was an interested party under
{¶ 13} An appellate court reviews a lower court’s decision to grant summary judgment de novo. Doe v. Shaffer (2000),
{¶ 14} Ohio’s prevailing-wage laws are codified in R.C. Chapter 4115. These provisions generally require contractors and subcontractors for public-improvement projects to pay laborers and mechanics the prevailing wage in the locality where the project is to be performed. State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs.,
{¶ 15}
(1) Any person who submits a bid for the purpose of securing the award of a contract for construction of the public improvement;
(2) Any person acting as a subcontractor of a person mentioned in division (F)(1) of this section;
(3) Any bona fide organization of labor which has as members or is authorized to represent employees of a person mentioned in division (F)(1) or (2) of this section and which exists, in whole or in part, for the purpose of negotiating with employers concerning the wages, hours, or terms and conditions of employment of employees;
*279 (4) Any association having as members any of the persons mentioned in division (F)(1) or (2) of this section.
(Emphasis added.)
{¶ 16} The trial court here granted IPS’s motion for summary judgment, finding that ABC lacked standing to file a prevailing-wage complaint against IPS. Although the trial court found that ABC had exhausted its administrative remedies and that “it is arguable that ABC technically qualifies as an ‘interested party' under
{¶ 17} First, we must determine whether the trial court’s reliance upon common-law standing was appropriate in this case. This court’s opinion in United Brotherhood of Carpenters & Joiners of Am., Local Union No. 1581 v. Edgerton Hardware Co., Inc., d.b.a. JMS Mechanical Co., 6th Dist. No. WM-06-17,
{¶ 18} On appeal, this court found that the trial court “interpreted ‘interested party’ as it relates to
In the case before us,R.C. 4115.03 , et seq, is determinative of the question of whether Local 1581 has standing to bring an action based upon appellee’s alleged failure to pay a prevailing wage to its employees who worked on the construction of the public improvement, a city hall. Thus, this cause involves a question of statutory interpretation.
* * *
In order to have standing to institute a claim founded on JMS’ failure to pay a prevailing wage, Local 1581 must be an “interested party” within the meaning ofR.C. 4115.03 * * *.
(Emphasis added.) Id. at ¶ 12-14. Thereafter, this court examined
Words used in a statute are to be taken in their usual, normal, and customary meaning.R.C. 1.42. If those words are plain and unambiguous, we cannot engage in statutory interpretation. Sears v. Weimer (1944),143 Ohio St. 312 [,28 O.O. 270 ],55 N.E.2d 413 , paragraph five of the syllabus. “Any” is defined as “one or some indiscriminately of whatever kind” and is “used to indicate one selected without restriction.” Merriam-Webster’s Collegiate Dictionary (10 Ed.1996) 53. As applied to the present case, and keeping in mind the legislative intent in enacting prevailing wage law, the uncontroverted evidence offered by Local 1581, which is any (of whatever kind) labor organization, establishes that its members work for Duerk Construction Company, that is, any (of whatever kind) person. Duerk Construction Company submitted a bid on a contract for the construction of a city hall in Holiday City, Williams County, Ohio. Consequently, Local 1581 is an “interested party” within the meaning ofR.C. 4115.03(F) and has the standing required to pursue administrative and civil remedies underR.C. 4115.16.
(Emphasis sic.) Id. at ¶ 19. Therefore, it is clear that this court’s standing analysis in Edgerton focused exclusively on whether Local 1581 was an interested party as defined in
{¶ 19} The trial court here acknowledged this court’s opinion in Edgerton, noting that “[p]ursuant to Local 1581 v. JMS, the fact that ABC’s member (Westfield Group) bid only on electrical contracts for the project, while IPS bid
{¶ 20} Specifically, the trial court found the Ohio Supreme Court’s decision in Ohio Constrs. Assn. v. Bicking,
{¶ 21} We must also reject the trial court’s incorporation of common-law standing principles for a far more fundamental reason. As the Ohio Supreme Court has noted:
Standing does not flow from the common-law “personal stake” doctrine alone. As the United States Supreme Court has recognized, standing may also be conferred by a specific statutory grant of authority:
“Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends on whether the party has alleged * * * a ‘personal stake in the outcome of the controversy’ [citation omitted] * * *.*282 Where, however, * * * [a legislative authority] has * * * provided by statute for judicial review * * *, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.” Sierra Club v. Morton (1972),405 U.S. 727 , 731-732,92 S.Ct. 1361 , 1364,31 L.Ed.2d 636 .
Middletown v. Ferguson (1986),
{¶ 22} Second, we must reject IPS’s argument that
{¶ 23} Likewise, the court in Ohio State Assn, of United Assn, of Journeymen & Apprentices of Plumbing & Pipefitting Industry v. Johnson Controls found that the Ohio State Association of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (“Pipefitters’ Union”), a labor organization representing unions of pipefitters, could bring an interested-party prevailing-wage action on behalf of nonunion laborers because members of the Pipefitters’ Union were employed by subcontractors who performed work on the public improvement.
A labor organization is given standing to bring a complaint on behalf of any person who is not paid the prevailing wage. To accept [the contractor’s] position would limit a labor organization’s standing to only complain where its membership were not paid the prevailing wage. This position is antithetical to the purpose of the prevailing wage law as well as to the plain meaning ofR.C. 4115.03(F) . In this case, [Pipefitters’ Union’s] membership was employed by subcontractors who performed work at Gateway. Accordingly, pursuant toR.C. 4115.03(F) , [the Pipefitters’ Union] was an interested party entitled to bring a complaint to the Administrator of the Bureau of Employment Services and subsequently had standing to initiate this lawsuit. SeeR.C. 4115.16(B) .
Id. at 195,
The record in this case indicates that the city provided a' series of bid packages for the project, including the general contract for which Kokosing was the successful bidder. Members of the pipe fitters union were loorking on the project for successful bidders on the other bid packages.
*284 Although the work which is the subject matter of the litigation herein, the process piping, was included in the general contract work as bid upon by Kokosing and was not in any separate specific bid package, we hold that the pipe fitters union was an interested party as defined byR.C. 4115.03(F) . The pipe fitters union is a “bona fide organization of labor” that is authorized to represent employees of a person “who submitted] a bid for the purpose of securing the award of a contract for construction of the public improvement.” The definition of “interested party” is broad enough to include a labor organization whose members worked on the construction of the public improvement even though those members were working for a contractor who bid on a bid package that did not include the work in dispute.
Because the pipe fitters union was an interested party, we hold that it had standing to file this complaint.
(Emphasis added.) Id. at *2. Finally, the court in Sunesis found that Local 372 was an interested party under
{¶ 24} We see no legally valid reason to interpret an association’s interested-party status pursuant to
{¶ 25} As a final matter, we note that the trial court’s observations that ABC was not a labor union, that no IPS employees were members of ABC, and
{¶ 26} To conclude, ABC is an interested party under the plain language of
{¶ 27} For these reasons, ABC’s assignment of error is sustained, and IPS’s second assignment of error is overruled.
*286 Cross-Appellant IPS’s Assignment of Error No. I
The trial court erred by denying IPS any consideration of attorney fees, both underR.C. 4115.16 and underCiv.R. 11 .
{¶ 28} In its first assignment of error on cross-appeal, IPS argues that the trial court erred by failing to consider its motion for attorney fees under both
{¶ 29} Since we have found that the trial court erred in granting summary judgment based on ABC’s purported lack of standing, we find that IPS’s first assignment of error dealing with attorney fees is now moot, and we decline to address it.
{¶ 30} Cross-appellant IPS’s first assignment of error is, therefore, overruled.
(¶ 31} Having found error prejudicial to the appellant and cross-appellee, ABC, in the particulars assigned and argued, we reverse the judgment of the trial court, and we remand the cause for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Notes
. The parties do not dispute that the projects were public improvements within the meaning of Ohio’s prevailing-wage law,
. The filing date of the two administrative complaints is not clear from the record. The administrative complaints were signed on October 29, 2008, but both civil complaints filed in the trial court and ABC's memo in opposition to the motion for summary judgment claim that the administrative complaints were filed on or about November 6, 2008. In their appellate briefs, however, ABC, along with amicus curiae, Ohio Institute for Fair Contracting (“OIFC”), stated that the administrative complaints were filed on or about November 3, 2008. Likewise, the record contains a letter dated November 3, 2008, from the Ohio Department of Commerce acknowledging receipt of ABC’s complaint. The trial court did not specifically find on which
. The operative language triggering an association’s interested-party standing requires its members to be persons who submitted a bid for the purpose of securing the award of a contract for construction of the public improvement.
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