U.S. Corrections Corp. v. Ohio Dept. Indus. Relations - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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U.S. Corrections Corporation et al., Appellees, v. Ohio
Department of Industrial Relations et al., Appellants.
[Cite as U.S. Corrections Corp. v. Ohio Dept. Indus. Relations
(1995), Ohio St.3d .]
Public contracts -- Public improvements -- Agreement for lease
of correctional facilities must comply with R.C. 307.022,
including the requirements of competitive bidding and
prevailing wage laws.
---
An agreement entered into pursuant to R.C. 307.022 for the
lease of correctional facilities must require that either the
lessor or lessee contract for the construction, improvement,
furnishing, and equipping of the facility in accordance with
all the requirements of R.C. 307.022, including the
requirements of the competitive bidding and prevailing wage
laws. (R.C. 307.022[A], construed and applied.)
---
(No. 94-1290 -- Submitted June 6, 1995 -- Decided August
16, 1995.)
Appeals from the Court of Appeals for Hamilton County,
Nos. C-920814 and C-920820.
Appellee United States Corrections Corporation ("USCC") is
a private enterprise engaged in the business of leasing
correctional facilities to political subdivisions. In the
spring or summer of 1990, USCC began discussions with Hamilton
County officials regarding the county's need for additional
jail space. In July 1990, USCC presented a proposal to the
Hamilton County Commissioners to provide the county with a new
jail facility. In July or August 1990, USCC purchased, with
its own funds, the old Kruse Hardware Building in Cincinnati.
On March 29, April 5, and April 12, 1991, the Hamilton
County Board of County Commissioners, the second appellee,
published a notice in a newspaper of general circulation in the
county. The notice provided, in part:
"The Board of County Commissioners of Hamilton County,
Ohio, pursuant to the authority of Section 307.022 of the Ohio
Revised Code, proposes to enter into a lease for correction
facilities to be used by the County. Hamilton County is

seeking leased space suitable for housing 200 to 800 minimum
security prisoners. The facility must comply with proper
zoning, building permit and licensing requirements and may be
operated privately or publicly. The lease shall be for a
period of at least three years and proposals will be accepted
for a term of reasonable length up to twenty years. The
facility should be located in Hamilton County within reasonable
access to the Hamilton County Court House and Justice Center
and on or near public transportation. All proposals for such
leases shall be submitted on or before April 19, 1991 * * *.
The timing of the submittal is critical. The County is seeking
to have such facilities available by July 1, 1991 at the
latest. * * * Pursuant to section 307.022 O.R.C., the County
is not required to follow the competitive bidding requirements
of 307.86 of the Code in connection with entering into such
leases for correctional facilities."
On April 19, 1991, USCC responded to the notice by
submitting a proposal to lease the Kruse Hardware Building to
the county for use as a correctional facility. No other
proposals were received by the county. On May 1, 1991, the
board of commissioners passed a resolution approving a "Lease
and Correctional Housing Services Agreement" between the county
and USCC. The lease agreement provided that USCC was to
renovate the Kruse Hardware Building to make the facility
available for use as a minimum security correctional
institution.1 The terms of the lease required USCC to complete
the renovations in accordance with a timetable set forth in
Article VIII of the agreement.2 Rental payments were to be
made in accordance with Article XV of the agreement.3 Under
the terms of the contract, the county agreed to lease the
facility for an initial term of three years and ninety days,
with an option to renew the lease for two additional periods of
one year each.
After the lease agreement had been executed, USCC began
renovating the old Kruse Hardware Building to make it suitable
for use as a minimum security prison. USCC directly contracted
and paid for the improvement, furnishing, and equipping of the
building to meet the terms of the lease agreement.
During the renovation project, the Ohio Department of
Industrial Relations ("ODIR"), appellant, notified the county
that the work being performed on the project was subject to the
requirements of Ohio's prevailing wage law. Additionally,
appellant Jerry Monahan, a taxpayer, requested that the
Hamilton County Prosecuting Attorney apply to a court, pursuant
to R.C. 309.12, to enjoin the county from paying any funds to
USCC under the lease agreement. In a letter to the prosecuting
attorney, Monahan alleged that the agreement between the county
and USCC had been entered into in violation of the competitive
bidding requirements of R.C. 307.86. Monahan also asserted
that the county had violated the requirements of R.C.
307.022(A)(1) for publication of the requests for proposals.
Additionally, Monahan suggested that the lease agreement
violated R.C. 307.022(A) because it did not require the county
to contract, in accordance with the requirements of the
competitive bidding and prevailing wage laws, for the
construction, improvement, furnishing, and equipping of the
facility to be leased.

On October 21, 1991, USCC and the board of commissioners
(collectively, "appellees") filed a declaratory judgment action
in the Court of Common Pleas for Hamilton County, naming, as
defendants, Monahan, ODIR, and the Director of ODIR, John P.
Stozich (collectively, "appellants"). In the complaint,
appellees sought a determination that the lease agreement
between USCC and the county was valid and enforceable, that the
board of commissioners had complied with the publication
requirements of R.C. 307.022(A)(1), and that the Kruse
renovation project was not a "public improvement" subject to
the prevailing wage law. Accordingly, appellees sought to
enjoin ODIR and Stozich from seeking to compel USCC to comply
with the prevailing wage law on the Kruse renovation project.
Appellees also sought to enjoin Monahan from initiating
litigation (i.e., an R.C. 309.13 taxpayer's action) that could
interfere with completion of the project. Monahan answered the
complaint and asserted counterclaims against appellees. In a
counterclaim against the board of commissioners, Monahan
attempted to commence an R.C. 309.13 taxpayer's action,
asserting that the lease agreement did not comply with laws
relating to competitive bidding.
The case was eventually submitted to the court on
cross-motions for summary judgment. The trial court granted
appellees' joint motion for summary judgment, denied ODIR's and
Monahan's motions, and dismissed Monahan's counterclaims. The
trial court's decision contained findings of fact that were
stated separately from the court's conclusions of law.
Monahan, ODIR, and Stozich appealed to the court of
appeals. The court of appeals, in a split decision, reversed
the judgment of the trial court and remanded the cause for
further proceedings. The court of appeals' majority did not
address the merits of the appeals but, rather, determined that
the trial court had impermissibly weighed the evidence on
summary judgment.
The cause is now before this court pursuant to the
allowance of discretionary appeals.

Taft, Stettinius & Hollister, Robert G. Stachler and Mark
G. Kobasuk, for appellee USCC.
Joseph T. Deters, Hamilton County Prosecuting Attorney,
and James W. Harper, Assistant Prosecuting Attorney, for
appellee board of commissioners.
Betty D. Montgomery, Ohio Attorney General, Dan E.
Bellville and Katherine A. Francis, Assistant Attorneys
General, for appellants ODIR and Stozich.
Kircher, Robinson, Cook, Newman & Welch and Thomas J.
Kircher, for appellant Monahan.
Benesch, Friedlander, Coplan & Aronoff, N. Victor Goodman
and Mark D. Tucker, urging reversal for amicus curiae, Ohio
State Building and Construction Trades Council.

Douglas, J. The court of appeals' majority reversed
the judgment of the trial court, finding that the existence of
genuine issues of material fact precluded summary disposition
of the case. We agree that the trial court erred in granting
summary judgment in favor of appellees, but for different
reasons than stated by the court of appeals' majority.

Specifically, we find that summary disposition of this case was
proper, but that the trial court entered judgment in favor of
the wrong parties. We also find that the court of appeals'
majority compounded the error by failing to address the merits
of appellants' appeals. Therefore, for the reasons that
follow, we reverse the judgment of the court of appeals, vacate
the judgment of the trial court, and enter final judgment in
favor of appellants.
I
This case involves two separate appeals from the judgment
of the court of appeals -- Monahan's appeal on the one hand and
ODIR and Stozich's appeal on the other hand.4 At the heart of
these appeals is the question whether the work performed on the
Kruse renovation project was subject to Ohio's competitive
bidding and prevailing wage laws. The lease agreement between
USCC and the county required neither competitive bidding nor
payment of the prevailing wage for the work performed on the
Kruse renovation project. ODIR and Stozich's appeal focuses on
issues concerning the prevailing wage law. Monahan's appeal
deals with issues concerning competitive bidding and the notice
requirements of R.C. 307.022(A).
II
Monahan's Appeal
The lease agreement between USCC and the county was
entered into pursuant to R.C. 307.022.5 R.C. 307.022 permits a
board of county commissioners to enter into a lease of
correctional facilities without competitive bidding. R.C.
307.022(A)(1) requires that before entering into the lease, the
board of county commissioners must publish a notice that the
board is accepting proposals for an R.C. 307.022(A)(1) lease of
correctional facilities. R.C. 307.022(A) requires that a lease
entered into under R.C. 307.022(A)(1) "shall require the county
to contract," in accordance with competitive bidding laws (R.C.
307.86 to 307.92) and the prevailing wage law (R.C. 4115.03 et
seq.), for the construction, improvement, furnishing, and
equipping of correctional facilities to be leased.
Monahan first suggests that the legal notice published by
the board of commissioners violated R.C. 307.022(A)(1).
However, we find that the notice published by the board of
commissioners satisfied the requirements of R.C.
307.022(A)(1). Therefore, we reject Monahan's contentions.
Next, Monahan argues that the lease agreement between USCC
and the county violated R.C. 307.022(A) because the lease did
not require the county to contract, in accordance with
competitive bidding laws, for the work performed on the Kruse
renovation project. We agree that the lease failed to comply
with the requirements of R.C. 307.022(A).
R.C. 307.022(A) requires that where, as here, a county
enters into a lease agreement for correctional facilities
pursuant to R.C. 307.022, the lease "shall require the county
to contract," in accordance with competitive bidding and
prevailing wage laws, for the construction, improvement,
furnishing, and equipping of facilities to be leased. The
lease between USCC and the county contained no requirement that
the renovation of the Kruse Hardware Building be subject to the
requirements of Ohio's competitive bidding and prevailing wage
laws. Thus, the lease violated the provisions of R.C.

307.022(A).
Nevertheless, appellees contend, and the trial court held,
that R.C. 307.022(A) requires competitive bidding and payment
of the prevailing wage only when the county performs any
"construction, improvement, furnishing, and equipping" of the
leased correctional facilities. Here, USCC directly contracted
for the work performed on the Kruse renovation project. Thus,
appellees contend that R.C. 307.022(A) is inapplicable.
However, we find that the requirements of R.C. 307.022 are
clearly applicable in the case at bar.
Again, R.C. 307.022(A) provides that a lease entered into
pursuant to R.C. 307.022 "shall require the county to contract"
in accordance with competitive bidding and prevailing wage laws
for the construction, improvement, furnishing, and equipping of
the facility to be leased. R.C. 307.022(A) does not require
that the county directly contract for the construction. Thus,
we interpret R.C. 307.022(A) as requiring a provision in the
lease that whoever does the contracting for the construction,
improvement, furnishing, and equipping of the facility to be
leased must do so in accordance with competitive bidding and
prevailing wage laws. In this regard, we agree with the
observations of Judge Marianna Brown Bettman in her dissenting
opinion in the court of appeals:
"The language of R.C. 307.022 says that 'the lease shall
require the county to contract' in accordance with
competitive-bidding and prevailing wage laws for the
construction of the correctional facility to be leased under
this statute. The language is mandatory and it does not, as
the trial court found, require the county to be doing the
constructing. It bears noting that a lease is a contract. I
read the statute to require a provision in the lease itself
stating that whoever does the contracting must comply with
these laws. The trial court erred as a matter of law in
holding otherwise."
Additionally, if we were to accept appellees' contentions,
a county would be able to avoid its obligations under R.C.
307.022(A) simply by having a private enterprise directly
contract for the construction, improvement, furnishing, and
equipping of the facility to be leased. In our judgment, such
a result would eviscerate R.C. 307.022(A).
Accordingly, we hold that an agreement entered into
pursuant to R.C. 307.022 for the lease of correctional
facilities must require that either the lessor or lessee
contract for the construction, improvement, furnishing, and
equipping of the facility in accordance with all the
requirements of R.C. 307.022, including the requirements of the
competitive bidding and prevailing wage laws.
Appellees protest that the renovation of the Kruse
Hardware Building was a privately funded project paid for by
USCC, and that the lease was a turnkey lease providing that the
lessee would take possession of a completely renovated
facility. Therefore, appellees urge that the renovation
project was not subject to competitive bidding and prevailing
wage requirements. However, we are not persuaded that either
of these matters affected the responsibility of the parties to
observe the requirements of competitive bidding and the
prevailing wage law for the work performed on the Kruse

renovation project.
Monahan also contends that the trial court erred in
dismissing his counterclaim against the board of commissioners,
wherein he attempted to initiate an R.C. 309.13 taxpayer's
action to enjoin the county from honoring the terms of the
lease agreement. The trial court found that Monahan was not
entitled to maintain a taxpayer's action and that, therefore,
he was not entitled to an award of attorney fees. However, we
find that Monahan has met the jurisdictional and procedural
prerequisites for maintaining an R.C. 309.13 taxpayer's
action. Prior to the commencement of this litigation, Monahan
requested, in writing, that the Hamilton County Prosecuting
Attorney apply to a court, pursuant to R.C. 309.12, to enjoin
the county from paying any funds to USCC under the lease
agreement. The prosecuting attorney never made such an
application or otherwise initiated a civil action contemplated
by R.C. 309.12. Rather, the prosecutor, representing the board
of commissioners, joined forces with counsel for USCC and
commenced the present litigation, naming Monahan as a
party-defendant, and seeking to preclude Monahan from
initiating litigation concerning the validity of the lease
agreement. Under these circumstances, we find that Monahan
was clearly entitled to initiate an R.C. 309.13 taxpayer's
action in his counterclaim against the board of commissioners.
III
ODIR and Stozich's Appeal
ODIR and Stozich contend that the county, in entering into
the lease agreement with USCC, violated its obligation under
R.C. 307.022(A) to contract, in accordance with the
requirements of the prevailing wage law, for the construction,
improvement, furnishing, and equipping of the facility to be
leased. ODIR and Stozich suggest that the county's obligation
under R.C. 307.022(A) "would have been met by including a
notice provision and attaching a list of applicable prevailing
wage rates to the lease contract." For the reasons stated in
our discussion in Part II, supra, we agree that the county
violated its obligations under R.C. 307.022(A). We also agree
that the requirements of the statute could have been satisfied
had the lease contained a provision to ensure that the
construction, improvement, furnishing, and equipping of the
facility be accomplished in accordance with the competitive
bidding and prevailing wage laws.
ODIR and Stozich also contend that, in addition to the
requirements of R.C. 307.022, the obligation to pay prevailing
wage rates for the work performed on the Kruse renovation
project was triggered by the general provisions of R.C. Chapter
4115. Specifically, ODIR and Stozich maintain that the Kruse
renovation project was a "public improvement" to which Ohio's
prevailing wage law applies. R.C. 4115.03(C)6 defines "public
improvement" as follows:
"'Public improvement' includes all buildings, roads,
streets, alleys, sewers, ditches, sewage disposal plants, water
works, and all other structures or works constructed by a
public authority of the state or any political subdivision
thereof or by any person who, pursuant to a contract with a
public authority, constructs any structure for a public
authority of the state or a political subdivision thereof.

When a public authority rents or leases a newly constructed
structure within six months after completion of such structure,
all work performed on such structure to suit it for occupancy
by a public authority is a 'public improvement.' * * *"
Ohio's prevailing wage law applies to all construction
projects that are "public improvements." R.C. 4115.03(C)
defines "public improvement" in two separate ways. The first
sentence of R.C. 4115.03(C) defines a "public improvement" as
one that is constructed by a public authority or pursuant to a
contract with a public authority. The second sentence of R.C.
4115.03(C) provides that where a public authority rents or
leases a "newly constructed structure" within six months after
construction is completed, the structure is a "public
improvement." The trial court held that neither of these two
alternative definitions of "public improvement" applied to the
Kruse renovation project.
We find that the renovation of the old Kruse Hardware
Building fits squarely within the definition of "public
improvement" as that term is defined in the first sentence of
R.C. 4115.03(C). In Episcopal Retirement Homes, Inc. v. Ohio
Dept. of Indus. Relations (1991), 61 Ohio St.3d 366, 369, 575
N.E.2d 134, 137, a majority of this court interpreted the first
sentence of R.C. 4115.03(C) as requiring that "a project must
be constructed 'pursuant to a contract with a public authority'
and 'for a public authority' in order for the prevailing wage
statutes to apply." The majority in Episcopal Homes held that
where a lease between a county and a private entity is not the
"animating force" for a construction and renovation project,
the project is not being constructed "pursuant to a contract
with a public authority." Id. Further, the majority in
Episcopal Homes determined that construction of a project "for
a public authority" necessitates that "the public authority
receive the benefit of the construction, either through
maintaining a possessory or property interest in the completed
project or through the use of public funds in the construction
of the project." Id. at 370, 575 N.E.2d at 137.
Here, the lease between the county and USCC was the
"animating force" behind the renovation of the old Kruse
Hardware Building. The terms of the lease contemplated that
USCC would renovate the building to make it suitable for the
county to use as a correctional facility. USCC renovated the
building to meet the terms of the lease agreement. The
agreement outlined a number of specifications for the
correctional facility, including the requirement that the
facility comply with applicable mandates governing minimum
security jails. The terms of the lease set forth a timetable
for completion of the renovations and a schedule for occupancy
by the county. Therefore, we find that the correctional
facilities leased by the county were constructed "pursuant to a
contract with a public authority." Moreover, there is no
dispute that the county has a possessory interest in the
completed facility -- a right to occupancy for a period of
years with two one-year options to renew the lease. Thus, we
also find that the correctional facilities leased by the county
were constructed "for a public authority." Hence, the Kruse
renovation project was a "public improvement" under the test
applied by this court in Episcopal Homes.

We next consider whether the renovation of the Kruse
Hardware Building was a "public improvement" as that term is
defined in the second sentence of R.C. 4115.03(C). The second
sentence of R.C. 4115.03(C) provides that when a public
authority rents or leases a newly constructed structure within
six months after completion of the structure, all work
performed on the structure to suit it for occupancy by a public
authority is a "public improvement."
Appellees contend that the definition of "public
improvement" set forth in the second sentence of R.C.
4115.03(C) is inapplicable because the lease agreement between
USCC and the county was executed approximately thirteen months
before the completion of construction.7 Thus, appellees urge
that the county did not lease or rent the facility within six
months after completion of construction as required by R.C.
4115.03(C). However, it is undisputed that the county was to
lease the old Kruse Hardware Building within six months after
completion of the renovation project. Therefore, we find that
the requirement in the second sentence of R.C. 4115.03(C) that
a newly constructed structure be leased or rented by a public
authority within six months after the completion of
construction has been satisfied in the case at bar.
Further, appellees contend that the correctional facility
leased by the county was not a "newly constructed structure"
within the meaning of R.C. 4115.03(C). In this regard,
appellees suggest that "newly constructed structure" means a
brand new structure -- not a newly renovated structure.
However, appellees' arguments cannot be reconciled with the
definition of "construction" that applies in the case at bar.
Specifically, former R.C. 4115.03(B) defined "construction" as
"any construction, reconstruction, improvement, enlargement,
alteration, repair, painting, or decorating, of any public
improvement the total overall project cost of which is fairly
estimated to be more than four thousand dollars * * *." 137
Ohio Laws, Part II, 3851. Therefore, the term "constructed" in
the phrase "newly constructed structure" included any newly
reconstructed structure. The transformation of the Kruse
Hardware Building into a completed correctional facility
clearly constituted a "newly constructed structure" within the
meaning of R.C. 4115.03(C).
Accordingly, we find that the Kruse renovation project was
a "public improvement" within the meaning of the first and
second sentences of R.C. 4115.03(C) and, thus, the Kruse
renovation project was subject to the requirements of the
prevailing wage law for this reason as well as the reason that
appellees failed to adhere to the specific provisions of R.C.
307.022. The trial court erred in holding otherwise.
IV
Remedies
Having considered the merits of these appeals, we must now
face the difficult task of fashioning a remedy for appellants.
The parties have provided us with no help in this regard.
Monahan has suggested no specific remedy for the violations of
R.C. 307.022(A). ODIR and Stozich have requested that we
simply "reverse the lower courts' decisions, and grant
Defendants-Appellants' Motion for Summary Judgment." In their
motion for summary judgment in the trial court, ODIR and

Stozich sought a determination that USCC and the county were
liable for such amounts as should have been paid as prevailing
wages on the Kruse renovation project. Further, ODIR and
Stozich had requested that USCC and the county be ordered to
retain all pay records for the work performed on the project.
However, there is no indication that any pay records for the
work performed on the Kruse renovation project currently exist,
and it is entirely unclear how the prevailing wage could now be
calculated and paid for the work performed on a public
improvement project that was completed several years ago.
In fashioning a remedy for Monahan, we find that Monahan
was clearly entitled to maintain a taxpayer's action in his
counterclaim against the board of commissioners and that,
therefore, he is entitled to an award of his costs in this
litigation, including reasonable attorney fees. See R.C.
309.13. We find that appellees were obligated to follow the
requirements of the competitive bidding laws for the work
performed on the Kruse renovation project. However, we have no
means of requiring competitive bidding on a project that has
long since been completed. Further, we issue no ruling that
would in any way prohibit the county from making rental
payments under the terms of the lease with USCC.8
With respect to ODIR and Stozich's appeal, we determine
that the prevailing wage law applied to the Kruse renovation
project pursuant to R.C. 307.022 and, in addition, pursuant to
the general provisions of Ohio's prevailing wage law. However,
while the prevailing wage should have been paid on the Kruse
renovation project, we decline to order payment at this late
date.
While these might appear to be empty victories for ODIR,
its director, and Monahan, we hasten to add that our decision
provides a basis for ODIR and its director to strictly enforce
the prevailing wage law in all future cases involving an R.C.
307.022 lease agreement like the one at issue herein and that
such leases covering construction must contain a provision
whereby the construction is subject to competitive bidding.
V
Conclusion
For the foregoing reasons, we reverse the judgment of the
court of appeals, vacate the judgment of the trial court, enter
final judgment in favor of appellants, grant relief as outlined
supra, and, specifically, we order the board of commissioners
to pay and/or reimburse Monahan for all of his costs and
attorney fees incurred during the course of this litigation.
Judgment reversed.
Moyer, C.J., Wright, Resnick, F.E. Sweeney, Pfeifer and
Cook, JJ., concur.
FOOTNOTES:
1 The description of the "Institution" to be leased to the
county provided that:
"The Institution is located on the corner of Sixth and
Linn Streets in the Queensgate area of downtown Cincinnati.
"The Institution owned by U.S. Corrections Corporation,
incorporates a 3 acre site, * * * easily accessible to the
Hamilton County Justice Center and to the major highways and
thoroughfares in and around the City of Cincinnati.
"The Institution consists of a 135,000 square foot complex

of buildings which can provide more than adequate areas for all
housing, program, service and administrative needs required for
the successful operation of an 800 prisoner, minimum security,
correctional facility by the County.
"* * *
"U.S. Corrections Corporation will renovate the
Institution into a 800 bed, minimum security, correctional
facility in accordance with all local, state and national
building codes and in close adherence to the Minimum Standards
for Jails in Ohio. The lower floors will be renovated for use
as service and program areas for the inmate population. These
areas will include a kitchen, dining room, indoor recreation
areas, visitation space, classrooms, library, counseling rooms,
staff training and locker [rooms] and an inmate admission
area. The third through eighth floors will be used for inmate
housing. These housing floors will contain large dormitories
providing sleeping quarters, shower, toilet and laundry areas,
security stations and recreation areas. All floors will be
renovated so as to allow close supervision by trained security
personnel on a 24 hour basis each day. The facility will be
designed so as to provide for strict security procedures
implemented for careful screening of all persons entering and
[exiting] the facility.
"U.S.C.C. will also provide an initial outlay of facility
furnishings including beds, mattresses and pillows for 800
Inmates, lockers and partial room partitions for up to 800
inmates, along with tables and chairs in the Dining Area
sufficient to feed 225 Inmates at each sitting."
2 Article VIII of the lease agreement provided that:
"Upon contract signature and issuance of required building
permits, U.S.C.C. shall use its best efforts to provide
correctional housing for Inmates from the County on the
following schedule:
"Housing for 200 Inmates within 90 days ('Initial
Occupancy');
"Housing for 400 Inmates within 120 days;
"Housing for 600 Inmates within 150 days;
"Housing for 800 Inmates within 180 days ('Final
Occupancy')[.]
"The facility is now and has been for at least six (6)
months prior to the date hereof suitable for use and occupancy
as a manufacturing/warehouse facility. U.S.C.C. will perform
renovations necessary to suit the facility for use as the
Institution per the above timetable."
3 Article XV of the lease agreement provided:
"The County shall pay U.S.C.C. as rent for the use of the
Institution, as follows:
"A. Commencing with the first full month after U.S.C.C.
has made available to the County beds for 800 Inmates (the
'First Fully-Available Month'), the County shall pay as rent *
* *($170, 333.34) per month.
"B. Prior to the First Fully-Available Month, the County
shall pay to U.S.C.C. Seven Dollars and Ten Cents ($7.10) per
bed per day for each bed made available to the County on each
day in that month, assuming a thirty day month. * * *"
4 We are aware, of course, of the unique procedural posture
of this case. Monahan, ODIR and Stozich (appellants) seemingly

prevailed in the court of appeals since the appellate court
reversed the judgment of the trial court. However, appellants
raised issues in the court of appeals which, if accepted, would
have entitled them to final judgment. The court of appeals
never addressed these issues. Therefore, it is perfectly
proper that appellants now seek a determination on the merits
of their appeals.
5 R.C. 307.022 provides that:
"(A) The board of county commissioners of any county may
do both of the following without following the competitive
bidding requirements of section 307.86 of the Revised Code:
"(1) Enter into a lease, including a lease with an option
to purchase, of correctional facilities for a term not in
excess of forty years. Before entering into the lease, the
board shall publish, once a week for three consecutive weeks in
a newspaper of general circulation in the county, a notice that
the board is accepting proposals for a lease pursuant to this
division. The notice shall state the date before which the
proposals are required to be submitted in order to be
considered by the board.
"(2) Subject to compliance with this section, grant
leases, easements, and licenses with respect to, or sell, real
property owned by the county if the real property is to be
leased back by the county for use as correctional facilities.
"The lease under division (A)(1) of this section shall
require the county to contract, in accordance with Chapter
153., sections 307.86 to 307.92 [competitive bidding laws], and
Chapter 4115. [ the prevailing wage law] of the Revised Code,
for the construction, improvement, furnishing, and equipping of
correctional facilities to be leased pursuant to this section.
* * *
"* * *
"(C) As used in this section:
"* * *
"(2) 'Construction' has the same meaning as in division
(B) of section 4115.03 of the Revised Code."
6 Although a former version of R.C. 4115.03(C) applies in
this case (137 Ohio Laws, Part II, 3851-3852), we consider the
current version of the statute, since the changes in the law do
not affect the issues in these appeals.
7 The lease agreement was executed on May 1, 1991. The
construction was apparently not completed until approximately
June 1992, at which time the county took occupancy of the
completed facility.
8 The only remedy Monahan requested from the trial court was
set forth in his motion for summary judgment. Therein, Monahan
requested that the trial court enter the following findings:
"a. This court [the trial court] declares the Lease
between the County and U.S.C.C. invalid and void;
"b. This Court declares that competitive bidding was
required pursuant to {307.022(A)(2);
"c. This court declares that the Board failed to comply
with {307.022(A)(1) with respect to publication;
"d. This Court denies the Plaintiffs' requests for a
Declaratory Judgment and Injunction;
"e. This Court grants Defendant taxpayers attorney fees
and costs.

"f. This Court finds that permanent injunction would lie
here in the circumstances of this case and as a remedy for
taxpayer Monahan. However, in recognition of the crisis
existing for additional jail space in Hamilton County,
Defendant Monahan in his commitment to this community has
waived the issuance of this remedy. This Court will on this
basis not impose such relief at this time." (Emphasis added.)
Section "a" of Monahan's request for relief clearly
conflicted with section "f." A possible explanation for the
conflict is that if the lease agreement was found to be "void,"
USCC would be entitled to immediate possession of the
facility. If that occurred, the county would either have to
find new accommodations for the prisoners housed in the
facility, or would have to negotiate a new lease with USCC on
USCC's terms. In either event, a declaration that the lease is
"void" would place the county in an untenable situation.
Recognizing this, Monahan, a concerned and conscientious member
of the community, "waived" the issuance of such a remedy.
Thus, the only affirmative relief Monahan requested was an
award of costs and attorney fees, which we have awarded to him.