[Cite as Fabrizi Recycling, Inc. v. Cleveland, 2022-Ohio-1395.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

FABRIZI RECYCLING, INC., :

Plaintiff-Appellee, :

No. 110548

v. :

CITY OF CLEVELAND, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED

RELEASED AND JOURNALIZED: April 28, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-945381

Appearances:

Frantz Ward LLP and Nora E. Loftus; Audra J. Zarlenga,

for appellee. 

Mark Griffin, Cleveland Director Law, Craig J. Morice and 

Amy K. Hough, Assistant Directors of Law, for appellant. 

LISA B. FORBES, J.:

The city of Cleveland (“Cleveland”) appeals from the trial court’s 

judgment granting Fabrizi Recycling, Inc.’s (“Fabrizi”) request for declaratory 

judgment and injunctive relief. After reviewing the facts of the case and pertinent 
law, we vacate the lower court’s judgment and order that the complaint be dismissed

for lack of subject-matter jurisdiction unless all necessary parties are joined.

I. Facts and Procedural History

In November 2020, Cleveland solicited contractors to submit bids for 

two construction projects (the “Cleveland Project” and the “Parma Project”; 

collectively, the “Projects”). The solicitations called for bidders to use their “best 

efforts” to ensure that at least 30 percent of the Projects were performed by entities 

certified as Cleveland Area Small Businesses, Minority Business Enterprises, or 

Female Business Enterprises (collectively “CASB”) under Cleveland Codified 

Ordinances (“C.C.O.”) 187.03.

Fabrizi and another contractor, the Vallejo Company (“Vallejo”), 

submitted bids for the Projects. It was later determined that Fabrizi’s bids were the 

lowest bids for each Project. Fabrizi’s bids identified Sydby Enterprises, L.L.C., 

(“Sydby”) as a subcontractor providing “Hauling/Deliveries,” “Pipe/Fittings,” and 

“Hydrants/Valves.” Sydby is a certified CASB subcontractor under C.C.O. 187.03. 

Sydby’s subcontract value amounted to at least 30 percent of Fabrizi’s respective 

bids for the Projects. 

According to C.C.O. 185.01, Cleveland shall award public contracts 

“only to the lowest responsible bidder.” Furthermore, pursuant to C.C.O. 185.12, 

Cleveland 

shall reserve the right to reject any or all bids, and any part of any bid, 

and also the right to waive any informalities in the bid. In awarding a 

contract, [Cleveland] shall reserve the right to consider all elements 

entering into the question of determining the responsibility of the 
bidder. Any bid which is incomplete, conditional, obscure or which 

contains additions not called for or irregularities of any kind, may be 

cause for rejection of such bid.

On January 29, 2021, Cleveland allegedly approved Vallejo’s bid for 

the Parma Project, which was allegedly higher than Fabrizi’s bid, and authorized 

entering into a contract with Vallejo. 

On February 10, 2021, Cleveland notified Fabrizi that its bids 

regarding the Projects were “non-responsive.” Specifically, Cleveland determined 

that Sydby was not certified to provide “Pipe, Fittings, Hydrants and Materials,” and 

declined to give Fabrizi credit for Sydby as a subcontractor. 

On March 12, 2021, Cleveland allegedly approved Vallejo’s bid for the 

Cleveland Project, which was allegedly higher than Fabrizi’s bid, and authorized 

entering into a contract with Vallejo. 

On March 22, 2021, Fabrizi filed a complaint against Cleveland 

requesting declaratory judgment and injunctive relief. It is undisputed that Vallejo 

was not named as a party to these proceedings.

Fabrizi’s first claim requests that the trial court declare that Cleveland 

violated C.C.O. 185.01 and 187.01, improperly rejected Fabrizi’s bids for the projects, 

and unlawfully awarded both contracts to Vallejo. Fabrizi further requested the 

court to declare that the Vallejo contracts were void ab initio.

Fabrizi’s second claim requests that the court issue a “temporary, 

preliminary, and permanent mandatory injunction” to enjoin Cleveland from: 

“entering into contracts with Vallejo for the Projects”; “authorizing Vallejo to 
perform any work on the Projects”; “issuing a notice to proceed to Vallejo on either 

Project”; and “making any payment to Vallejo for work performed on the Projects.” 

Fabrizi also requested that the court “issue an Order awarding the contracts to 

Fabrizi.”

That same day, the court issued an ex parte temporary restraining 

order (“TRO”) in favor of Fabrizi prohibiting Cleveland from entering into contracts 

and doing business with Vallejo regarding the Projects.

The court held a combined hearing and a trial on the merits, via 

Zoom, on Fabrizi’s complaint on April 21, 2021, and April 23, 2021. At the close of 

the case, the court ordered the parties to submit proposed findings of fact and 

conclusions of law, which the parties did on April 30, 2021. 

On May 6, 2021, the court issued a journal entry, which mirrored 

Fabrizi’s findings of fact and conclusions of law, and granted Fabrizi’s requests for 

preliminary and permanent injunction, as well as declaratory relief. Specifically, the 

court stated as follows: 

The Court finds by clear and convincing evidence that [Cleveland’s] 

rejection of Fabrizi’s initial bids in both [Projects] was an abuse of 

discretion.

* * * Cleveland is permanently enjoined and restrained from granting 

the [Projects] to any contractor, person, or entity other than Fabrizi 

* * *.

The Court declares any contracts for the [Projects] between [Cleveland] 

and The Vallejo Group or any other contractor beside Fabrizi are void 

ab initio.

* * * Cleveland is directed to award the contracts for the [Projects] to 

Fabrizi * * * under the terms of its initial bids.
Itis from this order that Cleveland appeals, raising the following three 

assignments of error for our review:

The trial court erred in its opinion and order as it is predicated upon 

insufficient evidence.

The trial court erred in its opinion and order as it was against the 

manifest weight of the evidence.

The trial court erred as a matter of fact and law in its ordering the city 

to award both contracts at issue to [Fabrizi], said order constituting an 

abuse of discretion under controlling Ohio precedent.

After oral argument, this court sua sponte ordered the parties, 

pursuant to State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 21, to file briefs 

regarding the following issue:

Whether the trial court had the authority to declare that “any contracts 

for the [Projects] between the City and The Vallejo Group or any other 

contractor beside Fabrizi are void ab initio,” taking into consideration:

* * * R.C. 2721.12(A) * * * and Portage Cty. Bd. of Commrs. v. Akron, 

109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 99 * * *.

II. Standard of Review 

A. Competitive Bidding Litigation — Abuse of Discretion

The legislative intent behind requiring competitive bidding of

government entity contracts is “to provide for open and honest competition in 

bidding for public contracts and to save the public harmless, as well as bidders 

themselves, from any kind of favoritism or fraud in its varied forms.” Chillicothe Bd. 

of Edn. v. Sever-Williams Co., 22 Ohio St.2d 107, 115, 258 N.E.2d 605 (1970). 

“Generally, courts in this state should be reluctant to substitute their 

judgment for that of city officials in determining which party is the ‘lowest and best 
bidder.”’ Cedar Bay Constr. v. Fremont, 50 Ohio St.3d 19, 21, 552 N.E.2d 202 

(1990). 

The rule is generally accepted that, in the absence of evidence to the 

contrary, public officers, administrative officers and public boards, 

within the limits of the jurisdiction conferred by law, will be presumed 

to have properly performed their duties and not to have acted illegally 

but regularly and in a lawful manner. All legal intendments are in favor 

of the administrative action.

State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 590, 113 N.E.2d 14 

(1953). See also Lewis & Michael, Inc. v. Ohio Dept. of Admin. Servs., 103 Ohio 

Misc.2d 29, 31, 724 N.E.2d 885 (Ct. of Cl.1999) (“A statute that confers upon a 

governmental body the authority to make a contract with the lowest responsible 

bidder confers upon the governmental authority discretion with respect to the 

contract.”).

The discretion to determine who is the lowest responsible bidder “‘is 

not vested in the courts and the courts cannot interfere in the exercise of this 

discretion unless it clearly appears that the city authorities in whom such discretion 

has been vested are abusing the discretion so vested in them.’” Cedar Bay Constr.,

at ¶ 21, quoting Altschul v. Springfield, 48 Ohio App. 356, 362, 193 N.E. 788 (2d 

Dist.1933).

In determining the best bidder for a local public works contract, a 

public authority has considerable latitude in making its decision. As 

part of this broad discretion, a public authority may consider all 

relevant factors in its evaluation of which submitted bid is best. This 

discretion is not vested in the courts, and the courts cannot interfere 

unless it clearly appears that the public authority is abusing the 

discretion so vested in it. * * * Accordingly, a disappointed bidder must 
present clear and convincing evidence to demonstrate that the public 

authority abused its discretion in awarding a contract. 

State ex rel. Associated Builders v. Franklin Cty. Bd. of Commrs., 125 Ohio St.3d 

112, 2010-Ohio-1199, 926 N.E.2d 600, ¶ 22-24. There is a presumption that 

Cleveland “performed its duties in a regular and lawful manner.” Id. at ¶ 24. 

B. Permanent Injunctions — Clear and Convincing Evidence that 

the Court Abused its Discretion

“[T]o prevail on a complaint seeking injunctive relief with respect to 

the award of a public contract, [a plaintiff] must prove by clear and convincing 

evidence that the award constituted an abuse of discretion and resulted in some 

tangible harm to the public in general, or to [the plaintiff] individually.” Cleveland 

Constr. v. Ohio Dept. of Admin. Servs., GSA, 121 Ohio App.3d 372, 384, 700 N.E.2d 

54 (10th Dist.1997).

“Injunctive relief is the proper remedy for an unsuccessful bidder to 

bring against a contracting authority where it is alleged that a contract was 

unlawfully awarded to another bidder.” Wilson Bennett, Inc. v. Greater Cleveland 

Regional Transit Auth., 67 Ohio App.3d 812, 821, 588 N.E.2d 920 (8th Dist.1990). 

The party seeking a permanent injunction must demonstrate by clear 

and convincing evidence that (1) they are entitled to relief under 

applicable statutory law, (2) an injunction is necessary to prevent 

irreparable harm, and (3) no adequate remedy at law exists. * * * 

Irreparable harm is an injury for which there is no plain, adequate, and 

complete remedy at law and for which money damages would be 

impossible, difficult, or incomplete.

* * * 

The Ohio Supreme Court has defined clear and convincing evidence as 

that measure or degree of proof that will produce in the mind of the 
trier of facts a firm belief or conviction as to the allegations sought to 

be established. 

Mangano v. 1033 Water St., L.L.C., 8th Dist. Cuyahoga No. 106861, 2018-Ohio5349, ¶ 13-14.

C. Declaratory Judgment — De Novo

The Ohio Supreme Court has held that “the de novo standard of 

review is the proper standard for appellate review of purely legal issues that must be 

resolved after the trial court has decided that a complaint for declaratory judgment 

presents a justiciable question under R.C. Chapter 2721.” Arnott v. Arnott, 132 Ohio 

St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 17.

Pursuant to R.C. 2721.12(A), “when declaratory relief is sought under 

this chapter in an action or proceeding all persons who have or claim any interest 

that would be affected by the declaration shall be made parties to the action or 

proceeding.” See also Civ.R. 19.

“A party’s failure to join an interested and necessary party constitutes 

a jurisdictional defect that precludes the court from rendering a declaratory 

judgment.” Portage Cty. Bd. of Commrs., 109 Ohio St.3d 106, 2006-Ohio-954, 846 

N.E.2d 478, at ¶ 99. This court has held that “subject matter jurisdiction is never 

waived and can be raised at any time. * * * Indeed, an appellate court may sua sponte 

consider subject matter jurisdiction even if it was not raised below.” State v. Pruitt, 

8th Dist. Cuyahoga No. 91205, 2010-Ohio-1573, ¶ 6.
III. Analysis

Upon review, we find that the failure to join Vallejo to this action, as 

a necessary and interested party who has or claims “any interest that would be 

affected by the declaration” sought, is dispositive of the instant appeal. 

A. The Trial Court’s Judgment Entry Declaring the Vallejo 

Contracts Void Ab Initio

As alleged by Fabrizi in its complaint, Cleveland approved Vallejo’s 

bids and authorized entering into contracts with Vallejo for both Projects. In turn, 

the trial court declared void any contracts with Vallejo, “or any other contractor 

beside Fabrizi,” who entered into a contract with Cleveland for the Projects.

It is axiomatic that Vallejo has, or claims, an interest in any contract 

to which it is a party. “In actions at law, upon written contracts, the party to sue is 

the one in whom the contract vests the legal interest; and the parties to be sued are 

those upon whom it imposes the legal liability. The contract itself determines the 

legal rights and liabilities of the parties, and confers the legal right of recovery.” 

Moore v. Gano, 1843 Ohio LEXIS 87, 7 (Dec. 1843). Compare with Young v. Wells, 

4th Dist. Gallia Nos. 06CA6 and 06CA7, 2007-Ohio-4568, ¶ 20 (“Titled owners of 

real property, or persons with some purported interest in real property, are 

necessary and indispensable parties to litigation seeking to divest those owners of 

their interest therein.”). In summary, Vallejo has an interest in its own contract.

Under R.C. 2721.12(A), all persons with an interest that “would be 

affected by the declaration shall be made parties to the action * * *.” Vallejo should 

have been made a party to this action, to the extent Fabrizi requested a declaration 
that Vallejo’s alleged contracts with Cleveland for the Projects were void ab initio. 

Fabrizi’s failure to join Vallejo as a necessary and interested party is a “jurisdictional 

defect that precludes the court from rendering a declaratory judgment” voiding 

Vallejo’s alleged contracts. See Portage Cty. Bd. of Commrs, 109 Ohio St.3d 106, 

2006-Ohio-954, 846 N.E.2d 478, at ¶ 99.

The Ohio Supreme Court has held that “a judgment rendered by a 

court lacking subject-matter jurisdiction is void ab initio. Consequently, the 

authority to vacate a void judgment is * * * an inherent power possessed by Ohio 

courts.” Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941 (1988).

Accordingly, because Vallejo was not a named defendant in the 

action, the court was without jurisdiction to declare “any” Vallejo contracts, as well 

as contracts with “any other contractor beside Fabrizi,” void. This part of the trial 

court’s journal entry is vacated for lack of jurisdiction.

B. The Remainder of the Trial Court’s Judgment Entry

Similar to Vallejo’s interest in its own contracts, Vallejo has, or may 

claim, an interest in the declaration of rights regarding Fabrizi’s contracts with 

Cleveland, because the subject matter of Fabrizi’s contracts and Vallejo’s contracts 

is one and the same — the Projects. 

This court has held that the trial court lacked jurisdiction to render a 

declaratory judgment for failure to join necessary parties when the plaintiff and the 

necessary entities had competing interests. In Pilch v. Cleveland, 8th Dist. 

Cuyahoga No. 48163, 1984 Ohio App. LEXIS 12740 (Oct. 22, 1984), the plaintiff 
claimed a right to lease space at the West Side Market, which is a public market 

owned by the city of Cleveland. However, “an established tenant had assigned [this 

particular space] to a new tenant with the city’s approval.” Id. The trial court 

declared that the established tenant’s assignment to the new tenant was invalid and 

“ordered the city to lease the available market stand to plaintiff.” Id. 

It is undisputed that the established tenant and the new tenant were 

not parties to Pilch case. This court recognized that when competing entities claim 

the same interests, but they are not parties to the case, it is proper to vacate both the 

declaration of the entities’ interests and the order requiring a new agreement be 

executed. 

Similar to Pilch, the remainder of the trial court’s journal entry in the 

case at hand disposes of Fabrizi’s claims for injunctive and declaratory relief as 

follows: 1) The court found that Cleveland’s rejection of Fabrizi’s bids for the 

Projects was an abuse of discretion; 2) The court enjoined Cleveland from “granting” 

the Projects “to any contractor, person, or entity other than Fabrizi * * *”; and 3) The 

court directed Cleveland to award the contracts for the Projects to Fabrizi. 

Upon review, we find that Vallejo and any other contractor awarded 

either of the Projects have a legal interest in the outcome of the instant case. These 

remaining dispositional orders are intertwined with the improper declaration that 

Vallejo’s contracts are void because which contractor is awarded the Projects is a 

mutually exclusive determination. Fabrizi’s claim that it should be awarded the 

contracts for the Projects is incompatible with anyone else’s claim to contracts for 
the same Projects. Because this is a zero-sum game, Fabrizi’s complaint cannot be 

litigated without joining Vallejo as party to this case. 

Cleveland’s assignments of error are made moot by our finding that 

the trial court lacked jurisdiction to render its decision. See App.R. 12(A)(1)(c). The 

trial court’s judgment is vacated, and this case is remanded to the trial court with an 

order that the complaint should be dismissed for lack of subject-matter jurisdiction 

unless all necessary parties are joined. See Cerio v. Hilroc Condo. Unitowners 

Assn., 8th Dist. Cuyahoga No. 83309, 2004-Ohio-1254, ¶ 13-14 (holding that 

“because all necessary parties were not named, the trial court was without 

jurisdiction to award declaratory judgment, and such judgment is void,” mooting 

the remaining assignment of error, and ordering that “the complaint should be 

dismissed unless all necessary parties are joined”); Young, 4th Dist. Gallia

Nos. 06CA6 and 06CA7, 2007-Ohio-4568, at ¶ 24 (sustaining an assignment of 

error regarding failure to join a necessary party under R.C. 2721.12(A), finding the 

remaining assignments of error moot, vacating the entire judgment entry, and 

remanding the case “to the trial court with the instruction to dismiss this action for 

lack of subject matter jurisdiction”).

Judgment vacated and remanded to the trial court for further 

proceedings consistent with this opinion. 

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.
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.

LISA B. FORBES, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and

MARY J. BOYLE, J., CONCUR