COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68309 PENNY DIXON : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MITCHELL BROWN, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 24, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-210480 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: BRENT L. ENGLISH, ESQ. KRIS M. DAWLEY, ESQ. 310 Lakeside Ave. W. LISA WU FATE, ESQ. 795 Courthouse Square SCHOTTENSTEIN, ZOX & Cleveland, Ohio 44113-1021 DUNN CO., L.P.A. 41 South High Street Suite 2600 Columbus, Ohio 43215 - 2 - DYKE, J.: Appellee submitted a proposal in response to the State of Ohio's Bureau of Motor Vehicles' request for submissions to operate a deputy registrar agency in Parma, Ohio. Appellee had operated such an agency for the two-year period prior to the period covered by the new contract, July 1, 1991 to June 30, 1993. The proposals were rated on a point system. The two highest proposals were submitted by Patrick F. Roche, with scores of sixty-four points. Appellee's proposal received a score of sixty-two points. The State awarded the contract to Roche and appellee filed a motion with the lower court for a preliminary injunction. The trial court denied appellee's motion for preliminary injunctive relief in June of 1991. A trial was held on appellee's complaint for declaratory and injunctive relief in November 1992. In January 1994, the trial court issued its order granting appellee's requested relief and ruling against Roche on his counterclaim. On February 25, 1994 appellee filed a motion for attorney's fees and litigation expenses. After a hearing, the trial court granted appellee's motion. The trial court found that the State was the party who initiated the matter in controversy, as required by R.C. 2335.39, by: [A]rbitrarily, capriciously, unreasonably, and unlawfully applying the Bureau of Motor Vehicle's regulations pertaining to 1991 deputy registrar contracts and by further arbitrarily, capriciously, unreasonably and unlawfully applying the standards set forth in the Registrar's Request for Proposals (RFPs) in regard to the - 3 - 1991 Parma Deputy Registrar agency contract. (Dec. 7, 1994 Journal Entry, p.2). Appellants filed this timely notice of appeal from the trial court's ruling which granted fees and litigation costs to appellee. Appellants' motion to stay execution of judgment pending this appeal was granted by the trial court. Appellants assert three assignments of error. I THE TRIAL COURT ERRED IN AWARDING PLAINTIFF ATTORNEY'S FEES AND LITIGATION EXPENSES BECAUSE THE STATE OF OHIO DID NOT INITIATE THE MATTER IN CONTROVERSY. Appellants argue that R.C. 2335.39(B) and the cases interpreting this provision, with limited exceptions, require that the matter in controversy must have been initiated in court by the State before attorney's fees and litigation expenses can be awarded. We find appellants' argument well taken. This Court is compelled to find that the trial court erred. Having previously reversed an award of attorney's fees in a similar case, in Costa v. Ohio Bur. of Emp. Serv. (1989), 63 Ohio App.3d 315, motion to certify record overruled (1989), 46 Ohio St.3d 707, this Court held that a party is not eligible to collect attorney's fees unless the State initiated the lawsuit, forming the basis of that party's claim. Costa had appealed from the Unemployment Compensation Board of Review's decision to cancel his unemployment benefits. The trial court found that the decision of the board was "unlawful, unreasonable, and against the manifest weight of the evidence," and awarded attorney's fees upon Costa's motion. Costa, - 4 - supra, at 317. This Court reversed the award, finding "as a matter of law, appellee was not entitled to attorney fees pursuant to R.C. 2335.39 as a result of the non-initiation of the `matter in controversy' by the state." Costa, supra, at 319. See also, Highway Valets, Inc. v. Ohio Dept. of Transp. (1987), 38 Ohio App.3d 45. Appellee relies heavily upon the Franklin County Court of Appeals decision in Collyer v. Broadview Dev. Ctr. (1992), 81 Ohio App.3d 445. This case represents one of the limited exceptions to the interpretation of R.C. 2335.39, requiring the State to initiate the matter in controversy by initiating the action. The exception to this rule is raised by factual situations in which the State, by its actions, forces an individual to defend his or her rights in court. In Collyer the State removed the individual from his employment, forcing him to take action in the form of an appeal to the State Personnel Board of Review. The State appealed from the Board's decision to the Franklin County Court of Common Pleas. Collyer is therefore distinguishable from the facts of the present case on two grounds. First, appellee was not forced to defend her rights against the State action which denied her the deputy registrar contract. She chose to initiate the legal action. Also, appellee filed the action with the trial court, effectively initiating the action. In Collyer the Court of Appeals noted that "it was appellee [the State] who took the so-called appeal to the - 5 - common pleas court in this case." Collyer v. Broadview Dev. Ctr. (1992), 81 Ohio App.3d at 452. Because appellee initiated the litigation against the State in the present case, we find that she is not entitled to the award of attorney's fees and litigation costs under R.C. 2335.39. Appellant's first assignment of error is sustained. II THE TRIAL COURT ERRED IN AWARDING PLAINTIFF ATTORNEY'S FEES AND LITIGATION EXPENSES BECAUSE THE STATE OF OHIO OFFERED SUBSTANTIAL EVIDENCE TO ESTABLISH THAT ITS POSITION IN THE UNDERLYING LITIGATION WAS SUBSTANTIALLY JUSTIFIED. III THE TRIAL COURT ERRED IN AWARDING PLAINTIFF ATTORNEY'S FEES AND LITIGATION EXPENSES BECAUSE THE STATE OF OHIO DID NOT DEPRIVE THE PLAINTIFF OF HER CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW. Because we found the first assignment of error dispositive of the appeal, we will not review the second and third assignments of error. App.R. 12(A)(1)(c). The trial court's award of attorney's fees and litigation expenses to appellee is reversed and this cause is remanded for vacation of the award. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., AND KARPINSKI, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .