[Cite as Colosseo USA, Inc. v. Univ. of Cincinnati, 2019-Ohio-2026.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

COLOSSEO USA, INC., 

 Plaintiff-Appellant, 

 vs. 

UNIVERSITY OF CINCINNATI, 

 Defendant-Appellee. 

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APPEAL NO. C-180223 

TRIAL NO. A-1703142 

 

 O P I N I O N.

 

 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: May 24, 2019 

Stites & Harbison PLLC, William G. Geisen and Andrew J. Poltorak, for PlaintiffAppellant, 

Brickler & Eckler LLP, Jeffrey P. McSherry and Mark E. Evans, for DefendantAppellee. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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MYERS, Presiding Judge.

{¶1} Colosseo, USA, Inc., (“Colosseo”) appeals the trial court’s judgment 

granting the motion of the University of Cincinnati (“UC”) to dismiss for lack of 

subject-matter jurisdiction Colosseo’s claims for a declaratory judgment stemming 

from UC’s award of a contract for the replacement of a video scoreboard at UC’s 

Nippert Stadium to another bidder, and for other future projects. 

Background 

{¶2} In February 2017, UC issued a Request for Proposal (“RFP”) that 

sought proposals from vendors for an integrated videoboard and digital signage 

system for six of UC’s athletic facilities, including Nippert Stadium, Fifth Third 

Arena, Schott Stadium, Gettler Stadium, Keating Natatorium, and Sheakley Athletic 

Center. The RFP made clear that awards for each of the facilities would be made 

separately as funding became available. 

{¶3} Four vendors submitted responses to the RFP. On April 11, 2017, UC 

notified two of them, Colosseo and Daktronics, Inc., that they were the vendors 

under primary consideration and that UC would contact each of them to schedule a 

final interview. 

{¶4} Before the final interview, UC notified Colosseo and Daktronics that 

the interview would be focused solely on the replacement of the scoreboard for 

Nippert Stadium. Then UC asked them to submit supplemental proposals limited to 

that scoreboard. 

{¶5} Colosseo and Daktronics submitted supplemental proposals for only 

the replacement of the Nippert Stadium scoreboard. After reviewing both proposals, 

UC’s outside consultant and UC’s review committee recommended that the contract 

for the Nippert Stadium scoreboard project be awarded to Daktronics. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶6} On May 11, 2017, UC advised Colosseo and Daktronics that the 

contract for the replacement of the Nippert Stadium scoreboard was awarded to 

Daktronics. UC informed Colosseo that, even though it did not win the award for 

Nippert Stadium, Colosseo was selected as one of two firms qualified to bid on the 

remaining projects. 

{¶7} Accordingly, UC issued a term contract that identified Colosseo and 

Daktronics as approved vendors who were qualified to participate in the replacement 

of scoreboards for the facilities identified in the RFP. The term contract specified 

that each of the athletic-facility projects would “be individually bid, scored, and 

awarded.” The contract stated that it was not an “exclusive” commitment, and 

contemplated the possibility of “multiple awards.” In addition, the contract specified 

that “[c]ontractors may be added and assignments may be changed.” 

{¶8} On May 12, 2017, UC issued a purchase order to Daktronics for the 

Nippert Stadium scoreboard replacement, requiring installation to be completed by 

the end of August 2017, the date of the first home game for UC’s football team. 

{¶9} On June 12, 2017, Colosseo filed a complaint for a temporary 

restraining order, preliminary injunction, and permanent injunction to enjoin UC 

from proceeding on the Nippert Stadium scoreboard replacement project and on any 

other work related to the RFP. In addition, Colosseo sought a declaratory judgment 

that the Nippert Stadium contract with Daktronics was void because in awarding the 

contract to Daktronics, UC had violated Ohio’s competitive-bidding laws, UC’s 

competitive-bidding rules established by its board of trustees, and the standards set 

forth in the RFP. It argued that it was the lowest and best bidder for both the 

Nippert Stadium contract and for the contract awarded under the RFP, and that the 

contract for the RFP should be awarded solely to Colosseo. 

{¶10} Simultaneously, Colosseo moved for a temporary restraining order and 

a preliminary injunction to enjoin UC from continuing work related to the Nippert 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Stadium scoreboard project. UC responded that the contract for the procurement of 

the scoreboard involved the purchase of goods and services and was not a publicimprovement contract subject to competitive-bidding laws and rules. 

{¶11} Following a hearing on June 16, 2017, the trial court denied Colosseo’s 

motion for a temporary restraining order and a preliminary injunction. The court 

reasoned that Colosseo was unlikely to succeed on the merits because the contract 

for the Nippert Stadium project was a goods and services contract not subject to 

competitive-bidding laws and rules. In addition, the court found that Colosseo had 

not demonstrated that it would suffer irreparable harm if the requested relief was 

denied because it was still an approved vendor for the other five projects. The court 

also found that any injury suffered by Colosseo would not outweigh the potential 

harm to UC, and that the public interest would not be served by an award of 

injunctive relief. Colosseo did not appeal the denial of its motion for a temporary 

restraining order and a preliminary injunction. 

{¶12} In mid-July 2017, UC filed an answer, a motion to stay discovery, and 

a motion for judgment on the pleadings. After an August hearing, the trial court 

issued a written decision in September denying both motions. 

{¶13} The case progressed and the parties proceeded with written discovery. 

In January 2018, UC filed a motion to dismiss for lack of subject-matter jurisdiction, 

or, in the alternative, for reconsideration of its earlier motion for judgment on the 

pleadings, arguing that the Nippert Stadium scoreboard replacement was now 

complete and contracts for the remaining projects had not yet been awarded. 

{¶14} The trial court granted UC’s motion and dismissed the action. The 

court determined that, with respect to the Nippert Stadium scoreboard replacement 

project, no further controversy existed for the court to decide, and no meaningful 

relief could be granted to Colosseo. The court dismissed Colosseo’s claims relating to 

the remaining athletic facilities for lack of subject-matter jurisdiction, concluding 
OHIO FIRST DISTRICT COURT OF APPEALS 

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that they were not ripe for review and that no justiciable controversy existed. 

Colosseo appeals the trial court’s judgment. 

1. Dismissal of the Action 

{¶15} In its first assignment of error, Colosseo argues that the trial court 

erred by granting UC’s motion to dismiss for lack of subject-matter jurisdiction. 

{¶16} Where a trial court has resolved a declaratory-judgment action by 

determining that no justiciable controversy exists, we review the determination for 

an abuse of discretion. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 

N.E.2d 586, ¶ 13; Waldman v. Pitcher, 2016-Ohio-5909, 70 N.E.3d 1025, ¶ 17 (1st 

Dist.). Reversal is therefore warranted only if the trial court’s decision regarding 

justiciability was unreasonable, arbitrary, or unconscionable. Waldman at ¶ 17. A 

decision is unreasonable where it is not supported by a sound reasoning process. Id. 

{¶17} A common pleas court’s subject-matter jurisdiction is constitutionally 

limited to “justiciable matters.” Ohio Constitution, Article IV, Section 4(B). A 

justiciable matter exists for purposes of a declaratory-judgment action where a real 

controversy exists between adverse parties and speedy relief is necessary to preserve 

the parties’ rights. Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 

N.E.2d 977, ¶ 49. A declaratory-judgment action does not authorize a court to 

render an advisory opinion. See Arnott at ¶ 10, quoting Mid-American Fire & Cas. 

Co. v. Healey, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9. 

{¶18} To be justiciable, the danger or dilemma to a party’s position must be 

present, and not merely possible or remote. Arnott at ¶ 10. The controversy must be 

ripe for judicial review, so it “cannot be dependent on the occurrence or 

nonoccurrence of future events.” William Powell Co. v. Onebeacon Ins. Co., 2016-

Ohio-8124, 75 N.E.3d 909, ¶ 47 (1st Dist.); Keller v. Columbus, 100 Ohio St.3d 192, 
OHIO FIRST DISTRICT COURT OF APPEALS 

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2003-Ohio-5599, 797 N.E.2d 964, ¶ 26. A case is not yet ripe if “it rests on 

contingent future events that may not occur as anticipated or may never occur at all.” 

Ohio Renal Assn. v. Kidney Dialysis Patient Protection Amendment Comm., 154 

Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶ 12, citing State v. Loving, 180 

Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234 (10th Dist.). 

{¶19} It is well settled that a court’s role is to “decide actual controversies by 

a judgment which can be carried into effect.” Cyran v. Cyran, 152 Ohio St.3d 484, 

2018-Ohio-24, 97 N.E.3d 487, ¶ 12, quoting Miner v. Witt, 82 Ohio St. 237, 238, 92 

N.E. 21 (1910). A case becomes moot when an event occurs that renders it 

impossible for the court to grant the requested relief; “under such circumstances, 

there is no longer a ‘live’ issue that demands resolution.” Ohio Renal Assn. at ¶ 12, 

citing State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, 

928 N.E.2d 728, ¶ 11. “In a construction-related case, if an unsuccessful bidder 

seeking to enjoin the construction of a public-works project fails to obtain a stay of 

the construction pending judicial resolution of its claims challenging the decision, 

and construction commences, the unsuccessful bidder’s action will be dismissed as 

moot.” Gaylor at ¶ 11.

A. Nippert Stadium 

{¶20} After the trial court denied Colosseo’s request for a temporary 

restraining order and a preliminary injunction, Colosseo did not appeal the denial of 

its motion for injunctive relief.1 And UC moved forward on the Nippert Stadium 

project. When UC filed its January 2018 motion to dismiss for lack of subject-matter 

jurisdiction or, in the alternative, for reconsideration of its motion for judgment on 

the pleadings, UC had completed the Nippert Stadium project. 

 

1 We make no determination as to whether the trial court’s order was immediately appealable. 

Rather, we point out that as a factual matter, no appeal was taken. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶21} Ohio law is clear that the only remedy generally available to a rejected 

bidder under a public contract situation is injunctive relief. Cementech, Inc. v. 

Fairlawn, 109 Ohio St.3d 475, 2006-Ohio-2991, 849 N.E.2d 24, ¶ 10. This is 

because the rejected bidder cannot recover lost profits as damages. Id. at ¶ 14. 

{¶22} In some circumstances, the rejected bidder may, however, be able to 

recover reasonable bid-preparation costs in the Court of Claims, which has exclusive, 

original jurisdiction over civil suits seeking money damages against the state even 

where injunctive or declaratory relief is also sought. See Meccon, Inc. v. Univ. of 

Akron, 126 Ohio St.3d 231, 2010-Ohio-3297, 933 N.E.2d 231, ¶ 18-19. To recover its 

bid-preparation costs, the rejected bidder must establish that a public authority 

violated state competitive-bidding laws in awarding a public-improvement contract, 

and that the bidder promptly sought, but was denied, injunctive relief and it is later 

determined that the bidder was wrongfully rejected and injunctive relief is no longer 

available. Id. at ¶ 13. 

{¶23} But, once a rejected bidder’s request for preliminary injunctive relief 

has been denied and work begins on a public-improvement project, “the rejected 

bidder will not be able to perform the public contract even if the bidder demonstrates 

that its bid was wrongfully rejected.” Id. at ¶ 12, citing Cementech at ¶ 13. In those 

circumstances, “the wrongfully rejected bidder is left with no remedy for the public 

authority's unlawful conduct, and injunctive relief will no longer serve to deter the 

public authority’s unlawful conduct.” Id. at ¶ 13. 

{¶24} In this case, therefore, even if UC violated state competitive-bidding 

laws in awarding the Nippert Stadium scoreboard contract, once Colosseo’s request 

for injunctive relief was denied and the work on the project commenced or was 

completed, there was no longer any remedy or injunctive relief that the trial court 

could have awarded to Colosseo. Accordingly, we hold that the trial court did not 

abuse its discretion in determining that there was no further controversy to decide 
OHIO FIRST DISTRICT COURT OF APPEALS 

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and no meaningful relief that the court could have granted to Colosseo with respect 

to the Nippert Stadium project. 

B. The Remaining Athletic Facilities 

{¶25} The RFP made clear that awards for each of the athletic facilities would 

be made separately as funding became available. Because a declaratory judgment as 

to the remaining facilities was contingent upon the occurrence of future events, i.e., 

the securing of funding for each award for each facility, the actual award of the work, 

and the possibility of future agreements, the action was not ripe for judicial review. 

{¶26} Accordingly, we hold that the trial court did not abuse its discretion in 

determining that no justiciable controversy yet existed as to the remaining projects. 

Therefore, the trial court did not err by dismissing the action. We overrule the first 

assignment of error. 

2. Reconsideration of Trial Court’s Earlier Ruling 

{¶27} In its second assignment of error, Colosseo argues that the trial court 

erred to the extent that it reconsidered or modified its earlier decision denying UC’s 

motion for judgment on the pleadings. The denial of the original motion for 

judgment on the pleadings was a not a final order,2 so the trial court retained 

jurisdiction to reconsider its earlier ruling. See Othman v. Bd. of Edn., 1st Dist. 

Hamilton Nos. C-160878 and C-170187, 2017-Ohio-9115, ¶ 12. We overrule the 

second assignment of error. 

 

2 Generally, the denial of a motion for judgment on the pleadings is not a final, appealable order. 

See Buchanan v. Ohio Dept. of Rehab. and Corr., 10th Dist. Franklin No. 18AP-970, 2019-Ohio1423, ¶ 8; Steinbrink v. Greenon Local School Dist., 2d Dist. Clark No. 11CA0050, 2012-Ohio1438, ¶ 16. An exception exists if the denial is based on political-subdivision immunity. See

Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-

Ohio-2410, 997 N.E.2d 490, ¶ 14. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Conclusion 

{¶28} Having overruled both assignments of error, we affirm the judgment of 

the trial court.

Judgment affirmed. 

CROUSE and WINKLER, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.