OPINIONS OF THE SUPREME COURT OF OHIO 

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 The State ex rel. Hanson, d.b.a. Franklin Excavating, 

Inc., Appellant, v. Guernsey County Board of Commissioners, 

Appellee. 

 [Cite as State ex rel. Hanson v. Guernsey Cty. Bd. of 

Commrs. (1992), Ohio St.3d .] 

Mandamus -- Civ.R. 12(B)(6) motion to dismiss improperly used 

 by court when court uses the motion to summarily review 

 the merits of relator's claim and to prematurely dispose 

 of the case. 

 (No. 91-2353 -- Submitted November 24, 1992 -- Decided 

December 30, 1992.) 

 Appeal from the Court of Appeals for Guernsey County, No. 

91-CA-08. 

 In December 1990, Steven Hanson, d.b.a. Franklin 

Excavating, Inc. ("Hanson"), relator-appellant, submitted a bid 

to the Guernsey County Board of County Commissioners ("board"), 

appellee, to construct a sanitary sewer for a subdivision in 

Cambridge, Ohio. On January 16, 1991, the board awarded the 

sewer contract to Ms. Parsons Construction, Inc. ("Parsons"). 

Parsons' bid was approximately $5,000 higher than Hanson's, but 

the board determined Parsons' bid to be the lowest and best. 

 Hanson filed a complaint in the Court of Appeals for 

Guernsey County, seeking a writ of mandamus to compel the board 

to either award his company the sewer contract, or pay the 

company "wages, benefits, interest and/or profits" lost due to 

the rejection of its bid. Hanson attached to his complaint the 

board's notice to bidders, his bid, Parsons' bid, the criteria 

used to evaluate the bids, and a letter advising him that 

Parsons had been awarded the contract. His complaint alleged 

that the board had failed to award the contract to the lowest 

and best bidder pursuant to R.C. 307.90. 

 The court of appeals initially granted Hanson's request 

for an alternative writ, ordering the board to show cause on 

June 21, 1991 why the peremptory writ should not issue. In 

lieu of an answer, the board filed a motion to dismiss the 

complaint pursuant to Civ.R. 12(B)(6) (failure to state a claim 

upon which relief can be granted), but argued that Hanson had 

not proved the prerequisites for a writ of mandamus to issue. 
The board submitted evidence with its motion, including an 

affidavit explaining the board's review of the bids, the 

resolution awarding the contract to Parsons, and minutes of a 

meeting at which the board told Hanson why it rejected his bid. 

 Hanson opposed the motion to dismiss and filed an amended 

complaint on July 31, 1991. His amended complaint contained 

these new allegations, among others: 

 "Contrary to the fourteen (14) items listed by the [board] 

as the criteria that [the board] would follow in making a 

determination as to whether a bid was the 'lowest and best' 

bid, [the board] considered other criteria without prior notice 

to the bidders in reaching its decision not to grant the bid to 

[Hanson], including, but not limited to, considerations of 

[Hanson's] corporate or non-corporate status, whether [Hanson] 

owned or rented his equipment, and whether [Hanson's] start-up 

costs (though not total costs) were higher than other bidders." 

 The board responded to the amended complaint on August 27, 

1991 by filing a second motion to dismiss that restated the 

argument made in its first motion. Hanson represents that he 

was not served with and did not know of this filing. On 

September 26, 1991, the court of appeals granted the board's 

first motion and dismissed the complaint as initially filed. 

The court held, in part: 

 "Ohio law is well-settled that [the board] has discretion 

to determine who is the lowest and best bidder. Mandamus does 

not lie to reverse an administrative official's discretionary 

decision, unless the facts demonstrate that the official abused 

his discretion, see State ex rel. Board of Education v. State 

Department of Education (1981), 67 Ohio St.2d 126 [21 O.O.3d 

79, 423 N.E.2d 174]. 

 "Our review of the record leads us to conclude that 

[Hanson] has not alleged sufficient facts to demonstrate an 

abuse of discretion." 

 On October 7, 1991, Hanson asked for leave to file a 

second amended complaint, which contained additional 

allegations discovered during depositions, and moved for 

"reconsideration and/or reinstatement of the amended 

pleadings." Hanson argued that the court had not applied the 

proper standard of review for Civ.R. 12(B)(6) motions. On 

October 28, 1991, he filed notice of his appeal to this court. 

Nearly two months later, the court of appeals overruled his 

motion, holding: 

 "This action was commenced as an original action in this 

court, and the civil rules do not permit motions for 

reconsideration of a final judgment of a trial court * * *. 

[Citations omitted.] 

 "[Hanson] alternatively requests that we clarify our entry 

of September 26, 1991 so that it is clear that only his 

original pleadings were dismissed, and not his first amended 

complaint. This court actually dismissed the action in toto. 

 "Finally, [Hanson] moved this court for leave to file his 

second amended complaint, alleging new evidence and a new cause 

of action. Because we have previously dismissed this cause, no 

amended complaint can be filed herein." 

 The cause is before this court upon an appeal as of right. 

 

 Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., 
Ronald G. Macala and Randall Vehar, for appellant. 

 C. Keith Plummer, Prosecuting Attorney, for appellee. 

 

 Per Curiam. Two questions are presented for our review. 

First, did the court of appeals err by denying the writ of 

mandamus on the board's Civ.R. 12(B)(6) motion? Second, should 

a writ of mandamus be granted? For the reasons that follow, we 

hold that the court of appeals improperly used the motion to 

dismiss to summarily review the merits of Hanson's claim and to 

prematurely dispose of this case. Moreover, to resolve whether 

Hanson has sustained his burden of proof on this record would 

compound the court's error. Accordingly, we reverse and remand. 

 Motion to Dismiss 

 A motion to dismiss for failure to state a claim upon 

which relief can be granted is procedural and tests the 

sufficiency of the complaint. Assn. for the Defense of the 

Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d 

116, 117, 537 N.E.2d 1292, 1293. Thus, the movant may not rely 

on allegations or evidence outside the complaint; otherwise, 

the motion must be treated, with reasonable notice, as a Civ.R. 

56 motion for summary judgment. Civ.R. 12(B); State ex rel. 

Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio 

St.3d 98, 99, 562 N.E.2d 1383, 1384. Even then, only certain 

forms of evidence may be submitted to support the motion. Civ. 

R. 56(C). 

 The standard for reviewing the sufficiency of a mandamus 

complaint was stated in State ex rel. Alford v. Willoughby 

(1979), 58 Ohio St.2d 221, 223, 12 O.O.3d 229, 230, 390 N.E.2d 

782, 785: 

 "In construing a complaint upon a motion to dismiss for 

failure to state a claim, the material allegations of the 

complaint are taken as admitted. Jenkins v. McKeithen (1969), 

395 U.S. 411, 421 [89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416]. 

[All reasonable inferences must also be drawn in favor of the 

nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio 

St.3d 190, 192, 532 N.E.2d 753, 756; Byrd v. Faber (1991), 57 

Ohio St.3d 56, 60, 565 N.E.2d 584, 589.] Then, before the 

court may dismiss the complaint, '* * * it must appear beyond 

doubt from the complaint that the plaintiff can prove no set of 

facts entitling him to recovery. * * *' O'Brien v. University 

Community Tenants Union (1975), 42 Ohio St.2d 242 [71 O.O.2d 

223, 327 N.E.2d 753]. 

 "In order to establish a claim in mandamus, it must be 

proved that there exists a clear legal duty plain and to act on 

the part of a public officer or agency, and that the relator 

has no adequate remedy in the ordinary course of the law. 

State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 

141 [40 O.O.2d 141, 228 N.E.2d 631], paragraph one of the 

syllabus. A complaint in mandamus states a claim if it alleges 

the existence of the legal duty and the want of an adequate 

remedy at law with sufficient particularity so that the 

respondent is given reasonable notice of the claim asserted." 

 Accord State ex rel. Bush v. Spurlock (1989), 42 Ohio 

St.3d 77, 80-81, 537 N.E.2d 641, 644-645, and State ex rel. 

Baran v. Fuerst (1990), 55 Ohio St.3d 94, 96-97, 563 N.E.2d 

713, 715-716. 

 This standard is consistent with Civ.R. 8(A), which 
provides for notice pleading and requires only (1) "a short and 

plain statement of the claim showing that the pleader is 

entitled to relief, and (2) a demand for judgment for the 

relief to which he deems himself entitled." Thus, to survive a 

motion to dismiss for failure to state a claim upon which 

relief can be granted, a pleader is ordinarily not required to 

allege in the complaint every fact he or she intends to prove; 

such facts may not be available until after discovery. York v. 

Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144-145, 

573 N.E.2d 1063, 1065. 

 The standard of review for Civ.R. 12(B)(6) motions is also 

consistent with Civ.R. 15(A), which allows a pleader to rectify 

a poorly pleaded complaint. If a motion for failure to state a 

claim is sustained, "leave to amend the pleading should be 

granted unless the court determines that allegations of other 

statements or facts consistent with the challenged pleading 

could not possibly cure the defect." McCormac, Ohio Civil 

Rules of Practice (2 Ed.1992) 150, Section 6.20. Civ.R. 15(A) 

provides: 

 "A party may amend his pleading once as a matter of course 

at any time before a responsive pleading is served or, if the 

pleading is one to which no responsive pleading is permitted 

and the action has not been placed upon the trial calendar, he 

may so amend it at any time within twenty-eight days after it 

is served. Otherwise a party may amend his pleading only by 

leave of court or by written consent of the adverse party." 

 Hanson asserts that he was entitled under this rule to 

amend his complaint because a motion to dismiss is not a 

responsive pleading. We agree. Under Civ.R. 7(A), only 

complaints, answers and replies constitute pleadings. 

Moreover, the provisions for amending are complemented by 

Civ.R. 12(A)(2)(b), which states: 

 "* * * The service of a motion permitted under this rule 

alters * * * [the twenty-eight day answer and reply periods] as 

follows, unless a different time is fixed by order of the 

court: * * * if the court grants a motion, a responsive 

pleading, delayed because of service of the motion, shall be 

served within fourteen days after service of the pleading which 

complies with the court's order." (Emphasis added.) 

 The court of appeals' dismissal of Hanson's complaint and 

refusal to consider his attempts to file an amended complaint 

that conformed to the court's initial ruling cannot be 

reconciled with the preceding authority. Contrary to Civ.R. 

12(B), the court apparently did not exclude the board's 

evidence in sustaining the motion to dismiss, which was held to 

be error in Natalina Food Co., supra, at 99, 562 N.E.2d at 

1384. Moreover, contrary to Alford, supra, and Civ.R. 15(A) 

and 12(A)(2)(b), the court apparently viewed its decision as 

substantive, i.e., as a decision on the merits of Hanson's 

claim, because the court would entertain no further filings in 

the matter. 

 In addition to its evidence, the board relied on State ex 

rel. Executone of Northwest Ohio, Inc. v. Commrs. of Lucas Cty. 

(1984), 12 Ohio St.3d 60, 12 OBR 51 465 N.E.2d 416, before the 

court of appeals. In Executone, we affirmed the dismissal of a 

complaint in mandamus because it alleged nothing more than that 

a board of county commissioners had not awarded a government 
contract to the lowest and best bidder. We explained: 

 "Appellant's complaint does not allege, nor does appellant 

argue herein, the utilization of unannounced criteria by the 

board of county commissioners. Nor does the complaint allege 

bad faith, fraudulent conduct or any other allegation which 

could be construed to constitute an abuse of discretion. 

Instead, the complaint simply alleges that appellant submitted 

the 'lowest and best bid.' Since under R.C. 307.90 the 

determination of which bid constituted the 'lowest and best 

bid' involved the exercise of a certain degree of discretion by 

appellees, appellant's complaint merely asked the court of 

appeals to substitute its discretion for that which was 

exercised by appellees. Under such circumstances, mandmaus 

will not lie, and the court of appeals correctly dismissed the 

complaint. Cf. State, ex rel. Britton, v. Scott (1983), 6 Ohio 

St.3d 268 [6 OBR 334, 452 N.E.2d 1312]." Id. at 61-62, 12 OBR 

at 53, 465 N.E.2d at 417-418. 

 Executone is authority for the dismissal of a complaint 

that attacks the decision of a board of county commissioners to 

award a contract, but does not allege an abuse of discretion. 

However, unlike the court of appeals in this case, the trial 

court in Executone sustained the motion to dismiss on the basis 

of the complaint alone. Moreover, even if the court of appeals 

here did not consider the evidence submitted with the board's 

motion to dismiss, Executone, coupled with Civ.R. 15 and 

12(A)(2)(b), establishes that the court's rejection of Hanson's 

first amended complaint was error. This amended complaint 

contained the precise allegations that the Executone court 

would have found sufficient to withstand the motion to dismiss 

-- "the utilization of unannounced criteria by the board of 

county commissioners." Executone, at 62, 12 OBR at 53, 465 

N.E.2d at 417-418. 

 In essence, the court of appeals here did not specifically 

exclude evidence attached to Hanson's complaint and the board's 

motion to dismiss. The court also did not advise the parties 

that it was going to reach a final disposition by converting 

the motion to dismiss into a motion for summary judgment. 

Moreover, when the court sustained the motion to dismiss and 

refused to consider Hanson's amended complaint, the court 

essentially denied him the opportunity to prove his case after 

completing discovery. Under the cited Civil Rules and 

precedent, however, Hanson properly responded to the motion to 

dismiss by shoring up his initial complaint. 

 Mandamus 

 Hanson next argues that he should be granted a writ of 

mandamus to remedy the board's abuse of discretion. However, 

like the court of appeals' disposition in this case, Hanson's 

argument is premature. At present, the only matters properly 

before us are pleadings and the motions to dismiss, which do 

not constitute evidence. Thus, this record will not sustain a 

substantive decision on the merits of this controversy. 

 Accordingly, the decision sustaining the motion to dismiss 

is reversed, and the cause is remanded to the court of appeals 

for further proceedings. 

 Judgment reversed 

 and cause remanded. 

 Moyer, C.J., Sweeney, Douglas, H. Brown and Resnick, JJ., 
concur. 

 Holmes and Wright, JJ., dissent. 

 Holmes, J., dissenting. I respectfully dissent because I 

believe that the court of appeals was without jurisdiction to 

consider appellant's complaint seeking a writ of mandamus. 

 Before a writ of mandamus will be granted by the court, 

the relator must establish three essential elements: "(1) that 

[he has] a clear legal right to the relief prayed for, (2) that 

respondents are under a clear legal duty to perform the acts, 

and (3) that [relator has] no plain and adequate remedy in the 

ordinary course of the law." (Emphasis added.) State ex rel. 

Natl. City Bank v. Cleveland Bd. of Edn. (1977), 52 Ohio St.2d 

81, 84, 6 O.O.3d 288, 290, 369 N.E.2d 1200, 1202. "A complaint 

in mandamus states a claim if it alleges the existence of the 

legal duty and the want of an adequate remedy at law with 

sufficient particularity so that the respondent is given 

reasonable notice of the claim asserted." State ex rel. Alford 

v. Willoughby Civ. Serv. Comm. (1979), 58 Ohio St.2d 221, 224, 

12 O.O.3d 229, 230, 390 N.E.2d 782, 785. 

 In reaching its decision, the majority failed to 

appreciate the significance of the prerequisite to mandamus 

that the relator have no plain and adequate remedy in the 

ordinary course of law.1 Under the facts of the instant case, 

appellant clearly had available to him other adequate means of 

relief in the court of common pleas. Suits are commonly 

brought there by vendors who seek to overturn the bidding 

process of a public authority, and this they seek to do through 

the mechanisms of temporary and permanent injunctive relief. 

 In his original complaint filed in the court of appeals, 

appellant sought alternative forms of relief: (1) a court order 

causing the Guernsey County Board of Commissioners to award his 

business the construction contract, or (2) a court order "to 

make [him] whole for all wages, benefits, interest and/or 

profits thereon that he has lost as a result of [the] Board's 

refusal to award him * * * [that contract]." The plain thrust 

of appellant's first claim for relief, stripped of artful 

framing, was in the nature of injunctive relief. An injunction 

provides a party with equitable relief under extraordinary 

circumstances where there exists no adequate remedy at law. 

Haig v. Ohio State Bd. of Edn. (1992), 62 Ohio St.3d 507, 510, 

584 N.E.2d 704, 707. "It is not available as a right but may 

be granted by a court if it is necessary to prevent a future 

wrong that the law cannot." Garono v. State (1988), 37 Ohio 

St.3d 171, 173, 524 N.E.2d 496, 498. Mandamus, a coercive 

writ, which compels performance of a duty, is distinguishable 

from the equitable relief of an injunction: 

 "There is a substantial difference between commanding and 

forbidding action. It has been well stated that the important 

feature of the writ of mandamus which distinguishes it from any 

other remedial writ is that it is used merely to compel action 

and to coerce the performance of a pre-existing duty. The 

functions of an injunction are ordinarily to restrain motion 

and enforce inaction, while those of mandamus are to set in 

motion and compel action." State ex rel. Smith v. Indus. Comm. 

(1942), 139 Ohio St. 303, 306, 22 O.O. 349, 351, 39 N.E.2d 838, 

839. 

 What appellant actually sought was to contest a contract 
already awarded to a successful bidder. His action was not 

merely one claiming a legal right; it sought rescission of a 

prior agreement. As this court previously stated in State ex 

rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 

O.O.2d 141, 228 N.E.2d 631, paragraph four of the syllabus: 

 "Where a petition filed in the Supreme Court or in the 

Court of Appeals is in the form of a proceeding in mandamus but 

the substance of the allegations makes it manifest that the 

real object of the relator is for an injunction, such a 

petition does not state a cause of action in mandamus and since 

neither the Supreme Court nor the Court of Appeals has original 

jurisdiction in injunction the action must be dismissed for 

want of jurisdiction." 

 In cases factually similar to the instant appeal, this 

court has held that mandamus will not lie to control the 

exercise of discretion of a board of county commissioners in 

awarding construction contracts because the relator has an 

adequate remedy by way of injunction. State ex rel. Roger J. 

Au & Son, Inc. v. Studebaker (1963), 175 Ohio St. 222, 24 

O.O.2d 309, 193 N.E.2d 84 ("This court will ordinarily, in the 

exercise of its discretion, deny a writ of mandamus where the 

relator has a plain and adequate remedy in the ordinary course 

of law, including an equitable remedy." Id.) State ex rel. Al 

Monzo Construction Co., Inc. v. Warren Bd. of Control (1961), 

172 Ohio St. 370, 16 O.O.2d 220, 176 N.E.2d 427. Accord State 

ex rel. Cotleur v. Cleveland Hts. Bd. of Edn. (1960), 171 Ohio 

St. 335, 14 O.O.2d 7, 170 N.E.2d 845. 

 Since appellant's complaint sought to prevent an action 

rather than compel performance of a legal duty, the court of 

appeals was without jurisdiction to rule on the merits of the 

action. Accordingly, because appellant could have brought his 

action in the court of common pleas as an action seeking 

temporary and permanent injunctive relief, appellant had a 

plain and adequate remedy in the ordinary course of law. A 

court presented with a complaint in mandamus errs when it 

premises jurisdiction on the relator's designation of the 

action without examining the essence of the demand. 

 Moreover, it is evident from even a very cursory review of 

appellant's second claim for relief that it was a claim for 

damages and thus outside the appellate court's limited 

jurisdiction in mandamus. Such claim was more properly the 

concern of a trial court where a factfinder could weigh the 

evidence and credibility of witnesses in arriving at a monetary 

award. It is plain from the record that all of the issues 

raised are controverted and require weighing of credibility and 

evidence. The basic issue is whether and to what extent 

appellant is owed any duty whatsoever. This being so, the 

matters raised were properly the province of a court of common 

pleas. 

 Accordingly, I would affirm the court of appeals' 

dismissal of the action. 

 Wright, J., concurs in the foregoing dissenting opinion. 

 

FOOTNOTE: 

 1 See R.C. 2731.05: "The writ of mandamus must not be 

issued when there is a plain and adequate remedy in the 

ordinary course of the law."