[Cite as Suburban Maintenance & Constr. v. Ohio Dept. of Transp., 2016-Ohio-7060.]



SUBURBAN MAINTENANCE AND                             Case No. 2014-00506
CONSTRUCTION, INC.
                                                     Judge Patrick M. McGrath
       Plaintiff                                     Referee Brian L. Buzby

       v.                                            JUDGMENT ENTRY

OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} On February 16, 2016, the referee issued a decision recommending
judgment in favor of plaintiff in the amount of $84,949.16 with prejudgment interest
beginning March 31, 2015. Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written
objections to a magistrate’s decision within fourteen days of the filing of the decision,
whether or not the court has adopted the decision during that fourteen-day period as
permitted by Civ.R. 53(D)(4)(d)(i).”
        {¶2} On March 1, 2016, defendant, Ohio Department of Transportation (ODOT),
filed its objections, and on March 11, 2016, plaintiff, Suburban Maintenance and
Construction, Inc. (Suburban), filed its objection. On March 15, 2016, Suburban filed a
memorandum in opposition to ODOT’s objections.
        {¶3} When ruling on objections to a referee’s decision, a “court shall undertake
an independent review as to the objected matters to ascertain that the [referee] has
properly determined the            factual issues and           appropriately applied   the   law.”
Civ.R. 53(D)(4)(d). Additionally, when a party objects to a magistrate’s factual findings,
“whether or not specifically designated as a finding of fact * * * [it] shall be supported by
a transcript of all the evidence submitted to the [referee] relevant to that finding or an
affidavit of that evidence if a transcript is not available.” Civ.R. 53(D)(3)(b)(iii). “If an
objecting party fails to submit a transcript or affidavit, the trial court must accept the
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[referee’s] factual findings and limit its review to the [referee’s] legal conclusions.”
Triplett v. Warren Corr. Inst., 10th Dist. Franklin No. 12AP-728, 2013-Ohio-2743, ¶ 13.
       {¶4} A review of defendant’s objections reveals citations to portions of the trial
transcript in support of their objections, specifically with regard to defendant’s
objections 1, 4, 5, and 6. A review of plaintiff’s objection reveals that plaintiff also cited
to portions of the trial transcript in support of their objections. However, neither party
submitted the trial transcript reflecting those portions of the trial testimony in support of
their objections for the court to review.           See Civ.R. 53(D)(3)(b)(iii) (“[i]t shall be
supported by a transcript of all the evidence submitted to the [referee] relevant to that
finding”). (Emphasis added.) While Civ.R. 53 does not require the parties to file the
entire trial transcript it does require the parties to file the portions of the transcript
relevant to their objections, not merely cite to a transcript that the court does not have
the ability to review. Accordingly, the court accepts the referee’s factual findings, and
limits its review to the referee’s legal conclusions.

       {¶5} Defendant raises the following seven objections:

       Objection 1: ODOT, not the Contractor Company, Always Decides what is
       to be Patched or Repaired.

       {¶6} ODOT argues that “[t]he construction of this contract by this Referee would
be a complete aberration in ODOT bridge repair work contracts if a contractor’s
engineer was charged with full discretion to determine whether any of sixteen pier
columns should be touched for any repairs.” (Def. Objections, Pg. 3). Defendant does
not identify any part of the referee’s decision that it specifically objects to, and it appears
to the court to be a general objection to the referee’s contract interpretation.
       {¶7} Suburban argues that the contract documents dictate the scope of the work,
and it never suggested that it had “full discretion” to decide what columns “should be
touched.” (Plt. Response, Pg. 11). Both ODOT and Suburban cite to portions of the
Case No. 2014-00506                         -3-                      JUDGMENT ENTRY


trial transcript, however a copy was not provided to the court and it is unable to review
the cited material.   Moreover, the court agrees with the referee’s legal conclusions
regarding the contract interpretation and the ambiguities in the contract. Without any
specificity from defendant or trial transcript, defendant’s first objection is OVERRULED.
See Civ.R. 53(D)(3)(b)(ii).

       Objection 2: The Contractor Waived any Ambiguity.

       {¶8} ODOT argues that “the contractor should have sought clarification pre-bid
and failed to observe Section 102.05 and 102.07 of the General Conditions,” and the
referee “ignores this requirement by mistakenly concluding that the requirement for
seeking clarification pre-bid only exists if the contractor subjectively says it needs
clarification, leaving it to the contractor’s subjective evaluation as to whether or not a
matter needs explanation pre-bid.” (Def. Objections, Pg. 3).
       {¶9} Suburban argues that it is not burdened with asking questions it does not
know exist, and that requiring Suburban “to clarify that its reasonable interpretation of
the scope of work is the same interpretation that ODOT assigned would be to convert
Suburban into an insurer of ODOT’s Contract Documents.” (Plt. Response, Pgs 11-12);
Salem Eng’g & Const. Corp. v. United States, 2 Cl. Ct. 803, 807 (1983).
       {¶10} While ODOT does not specifically cite to a portion of the referee’s decision,
the court identified pages 9-10 of the referee’s decision as pertinent to this objection.
The referee determined that “no one knew the ambiguity existed until the differing
positions were revealed based on the differing interpretation of the contract
requirements.”   (Decision, Pg. 9).   A review of Sections 102.05 and 102.07 of the
General Conditions leads the court to agree with the referee and plaintiff. While plaintiff
had a duty, pursuant to 102.07, to notify ODOT of errors and omissions in the bid
documents, any error or omission with the bid documents did not emerge until the
project was well underway. As such, defendant’s second objection is OVERRULED.
Case No. 2014-00506                        -4-                      JUDGMENT ENTRY


      Objection 3: ODOT has no Duty/Right to Fix a Low Bid in the Competitive
      Bidding Process.

      {¶11} ODOT argues that “the Referee mistakenly holds that ODOT had a duty to
somehow correct the low bid on these specific Sellars Road line items. ODOT has no
such requirement in the law particularly in this competitively bid situation where bidders
frequently move dollars around specific items within the bid to secure the bid.” (Def.
Objections, Pg. 3).
      {¶12} Suburban argues that the referee did not hold that ODOT had a duty to
correct Suburban’s bid, rather “[t]he Referee simply recognized that, of the two parties,
ODOT was in a better position to be the first to realize that Suburban did not share
ODOT’s interpretation of the scope of work.” (Plt. Response, Pg. 12).
      {¶13} The court is unclear how this objection would cause the court to change the
referee’s decision. First, a review of the referee’s decision shows that the referee did
not hold that ODOT had a duty/right to fix low bids in the competitive bidding process.
Rather, after determining that the “contested provision of the contract about the need to
remove eight cubic yards of concrete is unclear, ambiguous, and subject to various
interpretations when read together with the balance of the contract,” the referee
determined that, as the drafter of the contract, it must be construed against ODOT.
(Decision, Pg. 9). The referee then continues to discuss ODOT’s other arguments
defending its position, specifically waiver, and discusses various reasons why waiver is
not applicable in this case. This includes the referee’s discussion of the bid process,
including the discrepancies in bids that only ODOT could have known about. (Decision,
Pgs. 10-11). The court cannot find any merit in this objection, and it is OVERRULED.
Case No. 2014-00506                         -5-                       JUDGMENT ENTRY


       Objection 4: The Referee Improperly Allow Suburban’s Witness, Engineer
       Jeffery R. Spangler, to Give Expert Witness Testimony at Trial Despite not
       being Identified as an Expert Witness in Pretrial Filings and Despite
       having Provided no Expert Report in the Pretrial Process.

       {¶14} ODOT argues that the Referee “permitted Spangler to testify as an expert
witness over objection in blatant disregard for the rules of this Court, then relied on that
‘expert’ as the only ‘expert’ he cites in his opinion.”         (Def. Objections, Pg. 4).
Furthermore, ODOT argues that the referee ignored the testimony of plaintiff’s only
identified expert, Byron Willoughby.
       {¶15} Suburban informs the court that Jeffrey R. Spangler was the engineer that
it hired to perform a structural assessment, per the requirement of the Contract
Documents. Suburban argues that Spangler testified based on the personal knowledge
he obtained from his contractually-required assessment, that the concrete was, for the
most part, sound. (Plt. Response, Pg. 12). Further, Suburban argues that this supports
its assertion that the work ODOT required was unnecessary, but the referee did not rely
upon it to determine that the contract documents were ambiguous.
       {¶16} First, neither party submitted a transcript of the evidence, so the court
cannot determine if Spangler was permitted to testify as an expert witness or if
defendant objected to having Spangler testify as an expert. Additionally, the court is
unable to ascertain the reason offered for overruling any objection to Spangler’s
testimony.   Further, “[i]t is well established that the decision to admit or exclude
evidence is within the sound discretion of the trial court and that an appellate court will
not disturb that decision absent an abuse of discretion.” America’s Floor Source, L.L.C.
v. Joshua Homes, 191 Ohio App.3d 493, 2010-Ohio-6296, ¶ 27 (10th Dist.). Upon
review, the court finds no such abuse of discretion, defendant’s fourth objection without
merit, and it is OVERRULED.
Case No. 2014-00506                          -6-                      JUDGMENT ENTRY


       Objection 5: Line Item Pricing in the Project Fully Support the Clarity of
       the Contract Requirements.

       {¶17} ODOT argues that the referee ignored the “line item pricing in this contract
particularly the specific line item pricing for removing and replacing concrete in this
Sellers Road bridge.” (Def. Objections, Pg. 5). A review of the Referee’s decision,
specifically pages 6-8, show that the referee extensively discussed this issue, and the
court finds no error with the referee’s application of the law with regard to this objection.
As such, defendant’s fifth objection is OVERRULED.

       Objection 6: The Preconstruction Meeting Minutes Fully Support that
       Neither ODOT nor Suburban were Confused about the Requirements of
       Removing these Column Tops on Sellars Road.

       {¶18} ODOT argues that “the parties discussed the need for the contractor’s
engineer to provide temporary support plans, and there was no discussion whatsoever
about what would have been a much more critical issue concerning whether or not any
of those tops were to be touched.” (Def. Objections, Pg. 6) (emphasis in original).
Suburban argues that the preconstruction meeting minutes demonstrate that Suburban
did not know that ODOT had a different interpretation of the scope of work, and there
was no discussion of the structural assessment at the meeting because there were not
any known questions at that time. (Plt. Response, Pg. 14). Further, plaintiff argues that
“[t]he preconstruction meeting minutes have no bearing on whether an ambiguity exists
in the Contract Documents, and the lack of questions at the preconstruction meeting
only demonstrates that neither party was aware of the other’s interpretation.” Id. The
court agrees with plaintiff, and adopts the magistrate’s findings. Neither party knew that
there was an ambiguity until the differing positions were revealed based on the differing
interpretation of the contract requirements. (Decision, Pg. 9). As such, defendant’s
sixth objection is OVERRULED.
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       Objection 7: The Referee Erred in Admitting Plaintiff’s Ex. 24, a Summary
       Without Backup from which the Referee Allowed the $84,949.16 in
       Damages.

       {¶19} ODOT argues that the referee erred in admitting plaintiff’s exhibit 24, no
backup to that number was provided, and the referee accepted that number and exhibit
over ODOT’s objection. (Def. Objections, Pg. 6). Suburban argues that the exhibit was
correctly offered and admitted pursuant to Evid.R. 1006, and ODOT did not challenge
any of Suburban’s claimed dollar amounts.
       {¶20} As there is no trial transcript, the court is unable to evaluate any objection
ODOT made to the exhibit at trial. Additionally, “the extent of damages suffered by a
plaintiff is a factual issue, it is within the jury’s [or fact finder’s] province to determine the
amount of damages to be awarded.” Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468
(Ohio 2007). Further, “[j]udgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence.”              C.E. Morris Co. v. Foley
Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).              Questions of fact are
best left to the trier of fact. Complete Gen. Constr. Co. v. Ohio Dept. of Trans., 94 Ohio
St.3d 54, 2002-Ohio-59, 760 N.E.2d 364. As damages are a question of fact for the
factfinder, and there is no transcript to evaluate the factual claims relating to ODOT’s
objection, defendant’s seventh, and final objection is OVERRULED.
       {¶21} Plaintiff raised the following objection: “the Referee erred in denying
Suburban any of the costs it incurred in demobilizing and remobilizing, which are
compensable costs proximately caused by ODOT’s breach of the contract.”                      (Plt.
Objections, Pg. 1).      Plaintiff makes the following arguments in supports of their
objection. First, “the Referee erroneously concluded that ‘there was no evidence as to
how and why mobilizing for the entire project was somehow comparable to mobilizing to
return to just one bridge to finish this one item of work.’”          Id. at 2.    Second, “the
Referee’s decision ignores ODOT’s contribution to the delay * * *.” Id.
Case No. 2014-00506                         -8-                       JUDGMENT ENTRY


       {¶22} As discussed in ODOT’s seventh objection, damages are a question of fact
for the factfinder, here the referee. The referee determined that the evidence Suburban
offered at trial to support damages in the about of $59,000 for remobilization was wholly
inadequate. (Decision, Pg. 12). The referee based this determination on evidence
presented at trial. As there is no transcript filed in this case, the court accepts the
referee’s factual determination of damages with respect to remobilization, and
Suburban’s objection is OVERRULED.
       {¶23} Furthermore, the referee recommended that prejudgment interest be
awarded beginning on March 31, 2015. The court adopts that finding and prejudgment
interest is calculated as follows:
             276 Days (03/31/2015 to 12/31/2015) @ 3% of $84,949.16 = $1,927.07
             216 Days (01/01/2016 to 08/03/2016) @ 3% of $84,949.16 = $1,508.14
              Total Prejudgment Interest = $3,435.21
       {¶24} Upon review of the record, the referee’s decision, and both parties’
objections, the court finds that the referee has properly determined the factual issues
and appropriately applied the law. Therefore, both plaintiff’s and defendant’s objections
are OVERRULED and the court adopts the referee’s decision and recommendation as
its own, including findings of fact and conclusions of law contained therein. Judgment is
rendered in favor of plaintiff in the amount of $84,949.16 plus $3,435.21 for prejudgment
interest, a total of $88,384.37. Court costs are assessed against defendant. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                                  PATRICK M. MCGRATH
                                                  Judge
Case No. 2014-00506             -9-                    JUDGMENT ENTRY


cc:
Jason R. Harley                  Craig D. Barclay
Michael D. Tarullo               William C. Becker
250 West Street, Suite 550       Assistant Attorneys General
Columbus, Ohio 43215             150 East Gay Street, 18th Floor
                                 Columbus, Ohio 43215-3130

Filed August 3, 2016
Sent To S.C. Reporter 9/29/16
