[Cite as United Assn. of Journeymen & Apprentices of the Plumbing & Pipefitting Indus., Local Union
No. 776 v. Jack's Heating, Air Conditioning, & Plumbing, 2011-Ohio-167.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY


UNITED ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY,
LOCAL UNION NO. 776,
                                                                  CASE NO. 6-10-11
        PLAINTIFF-APPELLANT,
        CROSS-APPELLEE,

        v.

JACK’S HEATING, AIR                                               OPINION
CONDITIONING & PLUMBING, INC.,

        DEFENDANT-APPELLEE,
        CROSS-APPELLANT.



                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. CVH 20081164

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: January 18, 2011




APPEARANCES:

        William E. Clark for Cross-Appellant

        Joseph M. D’Angelos for Cross-Appellee
Case No. 6-10-11



PRESTON, J.

       {¶1} Cross-appellant, Jack’s Heating, Air Conditioning, and Plumbing,

Inc. (hereinafter “Jack’s”), appeals the Hardin County Court of Common Pleas’

grant of summary judgment in favor of Appellant/cross-appellee, United

Association of Journeymen and Apprentices of the Plumbing and Pipefitting

Industry, Local Union No. 776 (hereinafter “Local 776”), on its prevailing wage

complaint.   Plaintiff-appellant, Local 776, appeals the decision of the Hardin

County Court of Common Pleas not to award it reasonable attorney fees and costs

after successfully bringing its prevailing wage complaint. For the reasons that

follow, we affirm the trial court’s grant of summary judgment in favor of Local

776 and reverse the trial court’s decision not to award Local 776 reasonable

attorney fees and costs for bringing the action.

       {¶2} The Hardin County Commissioners awarded Jack’s with a contract

for the Hardin County Jacob Parrott Safety and Security Center Project, a project

for which contractors were required to pay prevailing wages pursuant to R.C.

4115.03 to 4115.16 and O.A.C. 4101:9-4-01 to 4101:9-4-28. (See Complaint, Doc.

No. 1).

       {¶3} On or about March 25, 2008, Local 776 filed an interested party

administrative complaint under R.C. 4115.16(A) with the Director of the Ohio

Department of Commerce, Division of Labor and Workers’ Safety, Bureau of


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Wage and Hour (hereinafter “Director”) asserting that Jack’s violated the

prevailing wage laws. (Id., Ex. 1, attached). The Director failed to make a final

ruling on the merits of the administrative complaint within sixty (60) days, so

Local 776 filed a complaint in the Hardin County Court of Common Pleas on May

28, 2008. (Doc. No. 1).

       {¶4} On June 20, 2008, Jack’s filed a motion for an extension to answer

or otherwise plead in the case, which the trial court granted. (Doc. Nos. 5-6). On

July 22, 2008, Jack’s filed an answer denying the complaint’s allegations and

asserting several affirmative defenses. (Doc. No. 7).

       {¶5} On November 25, 2009, after discovery, Local 776 filed a motion

for summary judgment asserting that Jacks had violated: (1) R.C. 4115.05 and

O.A.C. 4101:9-4-14 by subcontracting portions of its contract without

contractually binding the subcontractors to comply with the prevailing wage laws;

(2) R.C. 4115.05 and O.A.C. 4101:9-4-13(A)(4) by failing to timely provide its

employees with written notice of their job classifications and wage rates; (3) R.C.

4115.05 and O.A.C. 4101:9-3-13 by failing to provide its employees with written

notice of the identity of the prevailing wage coordinator; (4) R.C. 4115.07 and

O.A.C. 4101:9-4-13(A)(3) by failing to post a schedule of the prevailing wage

rates at the job site; (5) R.C. 4115.07(C) and O.A.C. 4101:9-4-13 by failing to

deliver a schedule of its pay rates to the public authority; (6) R.C. 4115.071(C)



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and O.A.C. 4101:9-4-06(B) by failing to exhibit on their certified payroll reports

employee job classifications, employee fringe benefit deductions, and the

employee’s total hours worked on all projects; (7) R.C. 4115.07 and O.A.C.

4101:9-4-21(A)(c) by failing to maintain full and accurate payroll records

demonstrating vacation, sick, and holiday pay; (8) R.C. 4115.07 by failing to file a

final affidavit of compliance with the contracting public authority; and (9) R.C.

4115.10 and associated regulations by failing to pay prevailing wages. (Doc. No.

33).

       {¶6} On December 30, 2009, Jack’s filed its response to Local 776’s

motion for summary judgment generally denying Local 776’s allegations that it

had violated the prevailing wage laws and challenging the accuracy of Local 776’s

exhibits in support of its motion for summary judgment. (Doc. No. 37). Jack’s

also alleged in its conclusion paragraph that the trial court should not consider

evidence regarding payroll after the date Local 776 filed its original complaint

(March 25, 2008) pursuant to Civ.R. 15(E). On January 29, 2010, Local 776 filed

its reply to Jack’s response. (Doc. No. 38).

       {¶7} On July 9, 2010, the trial court granted Local 776’s motion for

summary judgment finding first that it had jurisdiction to hear and decide all of

Local 776’s alleged violations, even those occurring subsequent to the filing of the

complaint. (Doc. No. 39). The trial court found that Local 776 met its burden of



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demonstrating that Jack’s committed eight (8) prevailing wage law violations, and

the trial court found that Jack’s failed to meet its reciprocal burden of

demonstrating a genuine issue for trial. (Id.). The trial court found that Jack’s

“generally asserted, without any evidence to support the assertions, that its

violations were harmless and that it intended to comply with the Prevailing Wage

law.” (Id.). The trial court then stated that Local 776 was entitled to reasonable

attorney fees and costs in bringing the action; however, the trial court struck

language appearing later in the judgment entry requiring Jack’s to pay attorney

fees and costs. (Id.).

       {¶8} On July 28, 2010, Local 776 filed its notice of appeal. (Doc. No. 40).

On August 9, 2010, Jack’s filed a notice of cross-appeal.         The matter was

originally assigned to this Court’s accelerated calendar until we received notice

that Jack’s filed a cross-appeal. (Aug. 5, 2010 JE); (Aug. 23, 2010 JE). The matter

has been reassigned to this Court’s regular calendar. (Aug. 23, 2010 JE). For ease

of our discussion, we elect to address Jack’s cross-appeal first, beginning with

Jack’s third assignment of error. We also elect to combine Jack’s first and second

assignments of error.

                  JACK’S ASSIGNMENT OF ERROR NO. III

       THE   TRIAL   COURT     ERRED   IN  EXERCISING
       JURISDICTION OVER ISSUES THAT AROSE FOLLOWING
       THE SUBMISSION OF THE COMPLAINST [SIC] AGAINST
       JACK’S HEATING AND AIR.


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      {¶9} In its third assignment of error, Jack’s argues that the trial court

erred by finding that Local 776’s civil complaint was filed after the completion of

the project. Jack’s further argues that the trial court lacked jurisdiction over

claims that occurred subsequent to May 28, 2008, the date Local 776 filed its civil

complaint, since Local 776 failed to file a supplemental pleading pursuant to

Civ.R. 15(E) alleging the additional prevailing wage law violations.

      {¶10} As an initial matter, Jack’s argued in its response to the motion for

summary judgment that Civ.R. 15(E) was applicable to the administrative

complaint, not the civil complaint, as they now argue on appeal; and therefore,

Jack’s has waived any argument relative to the civil complaint on appeal. Maust v.

Meyers Products, Inc. (1989), 64 Ohio App.3d 310, 313, 581 N.E.2d 589. With

respect to Jack’s argument in the trial court, the Court of Appeals for the Sixth

Appellate District has found that the Ohio Rules of Civil Procedure do not apply to

prevailing wage complaints filed with the director of commerce under R.C.

4115.16(A). Internatl. Bhd. of Electrical Workers, Local Union No. 8 v. Vaugh

Industries, Inc., 156 Ohio App.3d 644, 2004-Ohio-1655, 808 N.E.2d 434, ¶43.

Neither can we find plain error with the trial court ruling on all of the alleged

prevailing wage law violations since Local 776’s complaint provided Jack’s with

fair notice that Local 776 was pursuing all the prevailing wage law violations it

discovered. See DeVore v. Mutual of Omaha Ins. Co. (1972), 32 Ohio App.2d 36,


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38, 288 N.E.2d 202. See, also, Civ.R. 8(A)(1) (requiring “a short and plain

statement of the claim showing that the party is entitled to relief”). Local 776

alleged in its complaint “* * * that [Jack’s] failed to strictly comply with the

requirements of R.C. 4115.03 to R.C. 4115.16 and O.A.C. 4101:9-4-01 to O.A.C.

4101:9-4-28 during its work on the Project, including but not limited to * * *”

underpayments, misclassifications, and reporting violations in its certified payroll

reports. (Doc. No. 1, ¶19) (emphasis added). Although the trial court incorrectly

noted that Local 776’s civil complaint was filed after the completion of the project

when Local 776’s civil complaint was actually filed during the project, we find

this factual error to be harmless in light of the fact that Jack’s had fair notice that

Local 776 was pursuing all prevailing wage law violations. (July 9, 2010 JE, Doc.

No. 39); (P’s Ex. D). Therefore, we find Jack’s argument regarding the trial

court’s ruling on all of Local 776’s alleged violations meritless.

       {¶11} Jack’s third assignment of error is overruled.

                   JACK’S ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN FINDING THE
       APPELLANTS    [SIC] SUBMITTED  EVIDENCE  AS
       INSUFFICIENT TO CREATE AN ISSUE OF MATERIAL
       FACT.

                  JACK’S ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN GRANTING THE
       APPELLEE’S MOTION FOR SUMMARY JUDGMENT.



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         {¶12} In Jack’s first assignment of error, it argues that the evidence it

submitted in response to Local 776’s motion for summary judgment created a

genuine issue of material fact as to whether Jack’s paid its employees prevailing

wages.

         {¶13} In its second assignment of error, Jack’s argues that the trial court

failed to construe the evidence in its favor and acknowledge conflicting evidence

within the record. Jack’s further argues that the trial court made findings of fact

when it determined the amount of damages.

         {¶14} We review a decision to grant summary judgment de novo. Doe v.

Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Summary judgment is

proper where there is no genuine issue of material fact, the moving party is

entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the nonmoving party, and the

conclusion is adverse to the nonmoving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631

N.E.2d 150.

         {¶15} A party seeking summary judgment under Civ.R. 56(C) bears the

initial burden of informing the trial court of the basis for the motion and

identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact on the essential element(s) of the nonmoving party’s claims.



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Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving

party’s initial burden is not met by making a conclusory assertion that the

nonmoving party has no evidence to prove its case. Id. Rather, the moving party

must specifically point to some evidence of the type listed in Civ.R. 56(C) that

affirmatively demonstrates the nonmoving party has no evidence to support the

nonmoving party’s claims. Id. If the moving party fails to satisfy its initial burden,

the motion for summary judgment must be denied. Id. “[A]n adverse party may

not rest upon the mere allegations or denials of his pleadings, but his response, by

affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be entered against him.” Id., quoting Civ.R. 56(E).

       {¶16} The trial court in this case found that Local 776 had “met its burden

under Civ.R. 56(C) by adequately supporting its motion with evidence showing

that Jack’s violated Ohio’s Prevailing Wage Law by failing to comply with its

minimum wage, reporting, posting, and notice requirements.” (July 9, 2010 JE,

Doc. No. 39). On the other hand, the trial court found that Jack’s had failed to

meet its reciprocal burden of presenting affirmative evidence that it had complied

with the prevailing wage laws. (Id.). The trial court found that Jack’s asserted,

without any evidentiary support, that its violations were harmless and that it

intended to comply with the prevailing wage laws. (Id.). The trial court concluded



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that summary judgment in Local 776’s favor was appropriate since Jack’s failed to

meet its reciprocal summary judgment burden. We agree with the trial court that

Jack’s failed to meet its reciprocal summary judgment burden; and therefore,

summary judgment in Local 776’s favor was appropriate.

       {¶17} In support of its motion for summary judgment, Local 776 pointed to

several exhibits, including Jack’s employee time sheets, prevailing wage

notifications, certified payroll reports, a letter evidencing a subcontract between

Jack’s and Vulcan Enterprises, Inc., as well as the deposition of Steve Wenner, the

president and owner of Jack’s. Local 776 also noted in its motion for summary

judgment that Wenner admitted to several prevailing wage law violations during

his deposition, including: failing to properly and timely notify his employees of

the identity of the prevailing wage coordinator in violation of R.C. 4115.05 and

O.A.C. 4101:9-4-13 (Wenner Depo. at 16-17); failing to post a schedule of the

prevailing wage rates at the job site in violation of R.C. 4115.07 and O.A.C.

4101:9-4-13(A)(3) (Id. at 18); failing to provide the required information on the

certified payroll reports in violation of 4115.071(C) and O.A.C. 4101:9-4-06(B)

(Id. at 23, 37); and failing to file a schedule of pay dates with the public authority

in violation of R.C. 4115.071(C) and O.A.C. 4101:9-4-13 (Id. at 40-41). Aside

from that, the record indicates that Jack’s failed to provide its employees with

timely written notification of their job classifications and prevailing wage rate in



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violation of R.C. 4115.05 and O.A.C. 4101:9-4-13(A)(4). (P’s Exs. A, 1, 2). Local

776 pointed out that Jack’s repeatedly failed to produce during discovery any

evidence that it had provided a final affidavit of compliance with the public

authority as required by R.C. 4115.07. Local 776 also argued that Jack’s failed to

maintain records demonstrating that it had, in fact, paid fringe benefits, vacation

pay, sick pay, or holiday pay as required by R.C. 4115.07 and O.A.C. 4101:9-4-

21. Finally, Local 776 attached to its motion for summary judgment a table

evidencing $6,881.17 in underpayments to Jack’s employees in violation of R.C.

4115.10. (Doc. No. 33).

       {¶18} In its response to the motion for summary judgment, Jack’s, without

pointing to evidence in the record, generally denied Local 776’s allegation that it

had not paid prevailing wages. (Doc. No. 37).         Jack’s president and owner,

Wenner, averred in an attached affidavit that Local 776’s table calculating

underpayments was inaccurate since Local 776 only subtracted the health

insurance fringe benefit, but did not subtract holiday, sick, and vacation pay. (Doc.

No. 37, attached). Wenner further averred that Local 776’s table did not account

for work that was done off-site for which prevailing wages are not required. (Id.).

With regard to Local 776’s remaining allegations, Jack’s argued that the trial court

should not rule upon these issues since Local 776 had not supplemented its

original administrative complaint. (Doc. No. 37). Jack’s did refute Local 776’s



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allegation that the prevailing wage laws require any subcontracts to have a specific

contract provision charging the subcontractor to comply with the prevailing wage

laws. (Id). However, Jack’s admitted that it had made a “clerical mistake” and

failed to provide the correct identity of the prevailing wage coordinator for the

first two weeks of work. (Id.). Jack’s further admitted that it had failed to post a

schedule of the prevailing wage rates at the jobsite, though it claimed that the

employees suffered no harm from this oversight. (Id.). Jack’s also maintained that

it thought it was complying with all the reporting requirements on its certified

payroll reports. (Id.).

       {¶19} Upon review of the record, we conclude that the trial court did not

err in granting summary judgment in Local 776’s favor. To begin with, Jack’s

admitted to several prevailing wage law violations. Furthermore, Jack’s response

to Local 776’s motion for summary judgment was essentially a general denial of

Local 776’s allegations, which is insufficient to create a question of material fact

for trial. Burt, 75 Ohio St.3d at 293, quoting Civ.R. 56(E). Finally, several of

Jack’s prevailing wage violations are evident from the documents in the record,

while other violations are evident from the fact that Jack’s failed to provide

documents during discovery demonstrating compliance with the prevailing wage

law. Since Jack’s failed to meet its reciprocal Civ.R. 56(E) summary judgment

burden, the trial court did not err in granting Local 776 summary judgment.



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       {¶20} Jack’s first and second assignments of error are, therefore, overruled.

                   LOCAL 776’S ASSIGNMENT OF ERROR

       IN AN R.C. 4115.16(B) INTERESTED PARTY PREVAILING
       WAGE ENFORCEMENT ACTION, A TRIAL COURT
       COMMITS REVERSIBLE ERROR WHEN IT REFUSES TO
       AWARD COSTS AND ATTORNEYS’ FEES TO THE
       PLAINTIFF UPON FINDING VIOLATIONS OF THE
       PREVAILING WAGE LAW PURSUANT TO R.C. 4115.16(D).

       {¶21} In its sole assignment of error, Local 776 argues that the trial court

erred by refusing to grant it costs and reasonable attorney fees after it found that

Jack’s had violated the prevailing wage laws. We agree.

       {¶22} R.C. 4115.16(D) provides, in pertinent part, “[w]here, pursuant to

this section, a court finds a violation of sections 4115.03 to 4115.16 of the Revised

Code, the court shall award attorney fees and court costs to the prevailing party.”

(Emphasis added). In Internatl. Bhd. of Elec. Workers v. Stollsteimer Elec., Inc.,

we interpreted this portion of R.C. 4115.16(D) as follows:

       The language of the statute is unambiguous providing for an
       award of attorney fees and court costs following judgment of
       violations of the prevailing wage laws. If an interested party,
       such as the Union, brings a complaint to enforce the wage laws
       and the court finds a violation occurred, the court is mandated
       to award attorney fees and court costs to the prevailing party.
       The statute does not differentiate whether the violations were
       intentional or unintentional. Instead, it just states that if a
       violation is found, court costs and attorney fees SHALL be
       awarded. Thus the trial court has no discretion in this matter.

3d Dist. No. 4-05-29, 2005-Ohio-6866, ¶3 (emphasis in original).



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       {¶23} Here, the trial court’s opinion acknowledged our decision in

Stollsteimer and stated that Local 776 was entitled to attorney fees and costs in the

matter. (July 9, 2010 JE, Doc. No. 39). However, the trial court struck from its

judgment entry the order language stating that Jack’s shall pay Local 776’s

reasonable attorney fees and costs. (Id.). Therefore, the trial court erred by failing

to actually award Local 776 its reasonable attorney fees and costs as it was

required to do under R.C. 4115.16(D). Stollsteimer, 2005-Ohio-6866.

       {¶24} Local 776’s assignment of error is, therefore, sustained.

       {¶25} Having found no error prejudicial to the defendant-appellee/cross-

appellant herein in the particulars assigned and argued, we affirm the judgment of

the trial court with regard to Jack’s assignments of error. However, having found

error prejudicial to the plaintiff-appellant/cross-appellee herein in the particulars

assigned and argued, we reverse the judgment of the trial court with regard to

Local 776’s assignment of error and remand for further proceedings consistent

with this opinion.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                 Cause Remanded

ROGERS, P.J., and WILLAMOWSKI, J., concur.

/jlr




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