[Cite as United Bhd. of Carpenters & Joiners of Am., Local Union No. 1581 v. Fitzenrider, 2012-Ohio-
4653.]




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




UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, LOCAL UNION
NO. 1581,                                                          CASE NO. 7-11-20

        PLAINTIFF-APPELLANT/
        CROSS-APPELLEE,

        v.
                                                                   OPINION
FITZENRIDER, INC.,

        DEFENDANT-APPELLEE/
        CROSS-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 03 CV 137

                                     Judgment Affirmed

                            Date of Decision: October 9, 2012




APPEARANCES:

        Joseph M. D’Angelo for Appellant/Cross-Appellee

        Alan G. Ross and Nick A. Nykulak for Appellee/Cross-Appellant
Case No. 7-11-20


SHAW, P.J.

           {¶1} Plaintiff-appellant-cross-appellee United Brotherhood of Carpenters &

Joiners of America, Local Union 1581 (“Local 1581”) appeals the October 13,

2011, judgment of the Henry County Common Pleas Court granting summary

judgment in favor of defendant-appellee-cross-appellant Fitzenrider, Inc.

(“Fitzenrider”). Fitzenrider also appeals the October 13, 2011, judgment of the

Henry County Common Pleas Court denying Fitzenrider’s request for attorneys’

fees.

           {¶2} The facts relevant to this appeal are as follows.                       Fitzenrider is a

“mechanical contractor” that performs heating, ventilation, air conditioning and

plumbing.1 Fitzenrider was one of multiple contractors that bid on a construction

contract for a public project known as the Liberty Township – Washington

Township Fire Station Project (“the project”). The project exceeded the statutory

threshold to require compliance with the prevailing wage law (R.C. 4115.03 et.

seq.). Ultimately Fitzenrider’s bid was selected and Fitzenrider was awarded a

contract to work on the project.

           {¶3} On July 30, 2003, Local 1581 filed a complaint to audit Fitzenrider’s

compliance with Ohio prevailing wage law pursuant to R.C. 4115.16(B). (Doc. 1).




1
    This is how Fitzenrider described itself in its motion for summary judgment. (Doc. 45).

                                                      -2-
Case No. 7-11-20


Local 1581 represented members who worked for unsuccessful bidders on the

project giving Local 1581 standing as an interested party pursuant to the statute.

       {¶4} The complaint alleged that Fitzenrider failed to pay the prevailing

wage, that Fitzenrider failed to properly prepare proper certified payroll reports,

that Fitzenrider failed to comply with the applicable journeyman to apprentice

ratio for the project, and that Fitzenrider’s violations were all intentional. (Doc.

1).

       {¶5} On August 27, 2003, Fitzenrider filed its answer, containing

affirmative defenses. (Doc. 10).

       {¶6} On November 29, 2004, Fitzenrider filed a motion to dismiss arguing,

inter alia, that Local 1581 was not an interested party. (Doc. 27). On January 7,

2005, Local 1581 filed a memorandum in opposition to the motion to dismiss.

(Doc. 33). On January 18, 2005, Fitzenrider filed a reply brief. (Doc. 34).

       {¶7} On February 16, 2005, the court filed a judgment entry denying

Fitzenrider’s motion to dismiss.

       {¶8} On March 29, 2005, Local 1581 filed a motion for summary

judgment. (Doc. 44). In its motion, Local 1581 alleged that Fitzenrider had

committed a variety of violations, many of which were not included in the

complaint. Local 1581 alleged that Fitzenrider violated R.C. 4115.05 by failing to

inform its employees of the identity of the prevailing wage coordinator, that


                                         -3-
Case No. 7-11-20


Fitzenrider violated O.A.C. 4101:9-4-13(A)(3) by failing to post its own notice of

the schedule of wage rates applicable to the project at the jobsite of the project;

that Fitzenrider violated R.C. 4115.05, 4115.06, and O.A.C. 4101:9-4-21 by

failing to maintain accurate records regarding its prevailing wage compliance; that

Fitzenrider violated R.C. 4115.10 by not paying prevailing wages for offsite

fabrication or “shop work” performed in relation to the project; that Fitzenrider

violated R.C. 4115.10 by failing to pay its employees the applicable “base rate” as

listed in the applicable prevailing wage schedule of wage rates; that Fitzenrider

failed to establish that any of its fringe benefit funds, plans and programs were

legitimate, and failed to substantiate any payments made to its fringe benefit

programs; that Fitzenrider unlawfully calculated its fringe benefit credits, and that

Fitzenrider failed to properly prepare its certified payroll reports in compliance

with R.C. 4115.071(C). Local 1581 also requested attorney’s fees and costs

expended in prosecuting the matter pursuant to R.C. 4115.16(D).

       {¶9} On March 30, 2005, Fitzenrider filed a motion for summary judgment

asserting its compliance with Ohio’s Prevailing Wage Law.                (Doc. 45).

Fitzenrider also requested attorney’s fees and costs expended in defending this

matter pursuant to R.C. 4115.16(D).

       {¶10} On April 27, 2005, Local 1581 filed a brief in opposition to

Fitzenrider’s motion for summary judgment.         (Doc. 52).    On May 4, 2005,


                                         -4-
Case No. 7-11-20


Fitzenrider filed a brief in opposition to Local 1581’s motion for summary

judgment. (Doc. 53). In its brief in opposition, Fitzenrider adamantly opposed

Local 1581’s ability to raise several of the violations alleged by Local 1581 in

Local 1581’s motion for summary judgment as Fitzenrider claimed these issues

were not alleged in the complaint. (Id.)

         {¶11} On May 6, 2005, Fitzenrider filed a reply brief in support of

Fitzenrider’s motion for summary judgment. (Doc. 54). On May 24, 2005, Local

1581 filed a reply brief in support of its motion for summary judgment. (Doc. 58).

         {¶12} On August 26, 2011, the court filed its opinion granting Fitzenrider’s

motion for summary judgment, finding that Fitzenrider had not violated Ohio’s

prevailing wage law. (Doc. 75). In making this finding, the court held that several

of the issues raised by Local 1581 in its motion for summary judgment were not

alleged in the complaint and that Fitzenrider had not consented to litigate them.

(Id.) The court found that despite the fact this litigation had been ongoing for

eight years, Local 1581 made no attempt to amend the complaint to include the

new allegations.2          (Id.)    Therefore the court awarded summary judgment to

Fitzenrider.       However, the court declined to award Fitzenrider attorney’s fees,

finding that there was no lack of possible foundation to Local 1581’s claims.




2
  We note it appears from the record that more than one trial judge was involved in the course of this
litigation.

                                                    -5-
Case No. 7-11-20


      {¶13} On October 13, 2011 the court filed a judgment entry reflecting its

determinations from the August 26, 2011 opinion. (Doc. 81). It is from this

judgment that Local 1581 appeals asserting the following assignments of error for

our review.

                  ASSIGNMENT OF ERROR 1
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT GRANTED FITZENRIDER’S MOTION FOR
      SUMMARY JUDGMENT AND DISMISSED THIS ACTION.

                  ASSIGNMENT OF ERROR 2
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT FAILED TO APPLY A NOTICE PLEADING
      STANDARD TO PLAINTIFF’S COMPLAINT.

                  ASSIGNMENT OF ERROR 3
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT HELD THAT FITZENRIDER’S UNDERPAYMENT
      WAS NOT A VIOLATION OF R.C. 4115.10(A).

                   ASSIGNMENT OF ERROR 4
      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT HELD THAT FITZENRIDER’S INCOMPLETE
      CERTIFIED PAYROLL REPORTS DID NOT VIOLATE R.C.
      4115.071(C).

      {¶14} Fitzenrider also appeals the October 13, 2011 judgment of the Henry

County Common Pleas Court asserting the following assignment of error for our

review.

            FITZENRIDER’S ASSIGNMENT OF ERROR
      THE TRIAL COURT COMMITTED REVERSIBLE ERR[OR]
      AND ABUSED ITS DISCRETION BY DENYING
      FITZENRIDER’S REQUEST FOR ATTORNEYS’ FEES AND
      COSTS PURSUANT TO R.C. 4115.16(D).

                                       -6-
Case No. 7-11-20



       {¶15} In the interest of clarity, we elect to address some of the assignments

of error out of the order in which they were raised.

                                Standard of Review

       {¶16} Initially, we note that an appellate court reviews a grant of summary

judgment de novo, without any deference to the trial court. Sheely v. Sheely, 3d.

Dist. No. 2-10-38, 2012-Ohio-43, ¶ 17, citing Conley-Slowinski v. Superior

Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (6th Dist.1998). A grant of

summary judgment will be affirmed only when the requirements of Civ.R. 56(C)

are met. This requires the moving party to establish: (1) that there are no genuine

issues of material fact, (2) that the moving party is entitled to judgment as a matter

of law, and (3) that reasonable minds can come to but one conclusion and that

conclusion is adverse to the non-moving party, said party being entitled to have

the evidence construed most strongly in his or her favor. Civ.R. 56; Horton v.

Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, at paragraph three of

the syllabus.

       {¶17} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112

(1988) at syllabus. The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

                                         -7-
Case No. 7-11-20


Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107. Once the moving party

demonstrates that it is entitled to summary judgment, the burden shifts to the non-

moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

       {¶18} In ruling on a summary judgment motion, a court is not permitted to

weigh evidence or choose among reasonable inferences, rather, the court must

evaluate evidence, taking all permissible inferences and resolving questions of

credibility in favor of the non-moving party. Jacobs v. Racevskis, 105 Ohio

App.3d 1, 7 (2nd Dist.1995). Additionally, Civ.R. 56(C) mandates that summary

judgment shall be rendered if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.

                     Local 1581’s Second Assignment of Error

       {¶19} In Local 1581’s second assignment of error, Local 1581 argues that

the trial court erred by “fail[ing] to apply a notice pleading standard” to Local

1581’s complaint. Specifically Local 1581 argues that the combination of two

statements made in Local 1581’s complaint should have been found sufficient to

put Fitzenrider on notice of various issues and therefore the trial court should not

have found that Local 1581 failed to allege these claims in its complaint.


                                            -8-
Case No. 7-11-20


       {¶20} Civil Rule 8(A), regarding what is required in a complaint to state a

claim, reads as follows:

       (A) Claims for relief

       A pleading that sets forth a claim for relief, whether an original
       claim, counterclaim, cross-claim, or third-party claim, shall
       contain (1) a short and plain statement of the claim showing that
       the party is entitled to relief, and (2) a demand for judgment for
       the relief to which the party claims to be entitled. If the party
       seeks more than twenty-five thousand dollars, the party shall so
       state in the pleading but shall not specify in the demand for
       judgment the amount of recovery sought, unless the claim is
       based upon an instrument required to be attached pursuant to
       Civ. R. 10. At any time after the pleading is filed and served, any
       party from whom monetary recovery is sought may request in
       writing that the party seeking recovery provide the requesting
       party a written statement of the amount of recovery sought.
       Upon motion, the court shall require the party to respond to the
       request. Relief in the alternative or of several different types
       may be demanded.

       {¶21} Under the Rule cited above, a complaint requires “a short and plain

statement of a claim showing that the party is entitled to relief.” Civ.R. 8(A). A

complaint need not state with precision all elements that give rise to a legal basis

for recovery as long as fair notice of the nature of the action is provided. Fancher

v. Fancher, 8 Ohio App.3d 79, 83 (1st Dist.1982). “Notice pleading” under Civ.R.

8(A) requires that a claim concisely set forth only those operative facts sufficient

to give “fair notice of the nature of the action.” DeVore v. Mutual of Omaha Ins.

Co., 32 Ohio App.2d 36, 38 (7th Dist.1972).



                                        -9-
Case No. 7-11-20


      {¶22} Local 1581 argues that the court did not apply this “notice pleading”

standard to its complaint. Relevant provisions of Local 1581’s complaint read as

follows:

      14. Pursuant to Ohio’s Prevailing Wage Law, R.C. 4115.03
      through R.C. 4115.16 and the applicable regulations, Defendant
      Fitzenrider was obligated to pay its employees the prevailing
      rate of wages for any work it suffered, permitted, or required
      any employee to perform on the project, and it was obligated to
      comply with the remainder of Ohio’s Prevailing Wage Law.

      15. Plaintiff is informed and believes, and on the basis of such
      information and belief alleges that Defendant Fitzenrider failed
      to strictly comply with the wage provisions of the contract
      executed between it and the public authority to pay a rate of
      wages not less than the rate of wages so fixed, as required by
      R.C. 4115.06.

      16. Defendant Fitzenrider failed to prepare certified payroll
      reports enumerating each employee’s fringe benefit payments,
      as required by R.C. 4115.071(C).

      17. Defendant Fitzenrider failed to prepare certified payroll
      reports exhibiting each employee’s job classification.

      18. Defendant Fitzenrider compensated its employees at a rate
      less than the fixed prevailing rate of wages applicable to
      employees working in Henry County, Ohio for their work on the
      Project in violation of R.C. 4115.10.

      19. Defendant Fitzenrider failed to supply certified payroll
      reports exhibiting for each employee the employee’s job
      classification.

      20. Defendant Fitzenrider’s prevailing wage violations with
      regard to the Project were intentional in that Defendant
      Fitzenrider knowingly submitted false inaccurate and/or
      incomplete or erroneous certified payroll reports.

                                      -10-
Case No. 7-11-20



      ***

      25. To date, Defendant has not paid the prevailing rate of wages
      for the work performed on the Project, nor has the Defendant
      remedied its other violations of Ohio’s Prevailing Wage Law.

(Doc. 1).

      {¶23} On appeal Local 1581 claims that provisions 14 and 25, when read

together, were sufficient to put Fitzenrider on notice that claims other than those

specifically enumerated in provisions 15-20 of the complaint would be litigated.

      {¶24} On this issue, the trial court conducted the following analysis in its

opinion:

      A review of the complaint filed in 2003 makes no direct mention
      of the following violations alleged in Plaintiff’s Motion for
      Summary Judgment filed March 29, 2005: (1) a violation of
      4115.05 of the Ohio Revised Code of failing to provide written
      notification of the identity of the prevailing wage coordinator;
      (2) a violation of O.A.C. 4101:9-4-13(A)(3) failing to post a
      schedule of the prevailing wage rates in a prominent and
      accessible place at the project job site; (3) a violation of O.A.C.
      4101:9-4-14(A) of failing to notify the public authority of a
      subcontract; (4) a violation of 4115.05 Ohio Revised Code of
      failing to maintain payroll records. None of these violations
      were directly raised in the complaint except that paragraph 25
      of Plaintiff’s Complaint asserts that “… Defendant has not paid
      the prevailing wage rate for the work performed on the project,
      nor has the defendant remedied its other violations of Ohio’s
      Prevailing Wage Law.” Defendant could have reasonably
      assumed the reference to “other violations” were the allegations
      contained in paragraphs 16 and 17 regarding the certified
      payroll reports.



                                       -11-
Case No. 7-11-20


(Doc. 75). The court went on to conclude that the complaint was filed over eight

years prior to the court’s decision, that substantial discovery had been conducted

giving Local 1581 ample time to amend its complaint, but still Local 1581 failed

to amend the complaint. (Id.) The court also found that Fitzenrider had not

consented to litigate the issues and that Fitzenrider expressly requested that the

issues not be considered. (Id.) Therefore, the court found that the issues were not

raised in the complaint and would not be considered. (Id.)

       {¶25} Upon our own analysis of provisions 14 and 25 of the complaint, we

agree with the trial court’s conclusion. Even when analyzing provisions 14 and 25

of the complaint together, the provisions appear to be statements rather than

allegations. Provisions 15-20 of the complaint contain specific allegations that put

Fitzenrider on notice of prevailing wage claims that it must defend against.

Provisions 14 and 25 do not put Fitzenrider on notice of any other violations of

prevailing wage law aside from the ones cited in provisions 15-20 of the

complaint.

       {¶26} Moreover, despite ample opportunity, Local 1581 did not, at any

time during this 8 year litigation, move to amend the complaint. Local 1581

argued in its brief that the “vast majority” of violations in a prevailing wage

compliance case are undetectable until a case has progressed through discovery

and deposition and therefore it is basically impossible to plead with particularity


                                       -12-
Case No. 7-11-20


all violations. Without discounting this assertion, it was certainly possible upon

discovery of the purported violations for Local 1581 to make use of the liberal

amendment rules for pleadings under Civ.R. 15.

       {¶27} Although only a short and plain statement showing entitlement to

relief is required to satisfy the “notice pleading” standard in Ohio, Ohio courts

have held that an award of summary judgment cannot be granted on claims not

alleged in the complaint. See L.P Cavett Co. v. Bd. Of Twp. Trs., 12th Dist. No.

CA2000-08-010, (July 30, 2001).         It is possible that Fitzenrider could have

impliedly consented to the new issues raised by Local 1581 in its motion for

summary judgment.       See McGinnis, Inc. v. Lawrence Economic Development

Corporation, et al., 4th Dist. No. 02CA33, 2003-Ohio-6552 ¶¶ 25-26. However,

the first time Local 1581 raised these issues in its motion for summary judgment,

Fitzenrider adamantly objected to Local 1581’s ability to argue the additional

claims in its brief in opposition. Thus Fitzenrider did not expressly or impliedly

consent to litigating the claims. Id.

       {¶28} In sum, we find that the provisions cited by Local 1581 were not

sufficient to put Fitzenrider on notice of the specific claims it sought summary

judgment on its motion. In addition, Local 1581 had ample time to amend its

complaint, an avenue which it chose not to pursue. Furthermore, Fitzenrider never




                                        -13-
Case No. 7-11-20


consented to litigate the other issues raised in Local 1581’s motion for summary

judgment. Accordingly, Local 1581’s second assignment of error is overruled.

                    Local 1581’s Fourth Assignment of Error

       {¶29} In Local 1581’s fourth assignment of error, Local 1581 alleges that

the trial court erred when it concluded that Fitzenrider’s certified payroll reports

did not violate R.C. 4115.071(C). Specifically Local 1581 argues that Fitzenrider

was required under the Ohio Revised Code to put each employee’s job

classification and the total hours worked by employees on all jobs during the pay

period.

       {¶30} R.C. 4115.071(C) sets forth the items that must be enumerated on an

employer’s certified payroll reports. In pertinent part, R.C. 4115.07(C) reads,


       * * * The contractor or subcontractor shall also deliver to the
       prevailing wage coordinator a certified copy of the contractor's
       or subcontractor's payroll, within two weeks after the initial pay
       date, and supplemental reports for each month thereafter which
       shall exhibit for each employee paid any wages, the employee's
       name, current address, social security number, number of hours
       worked during each day of the pay periods covered and the total
       for each week, the employee's hourly rate of pay, the employee's
       job classification, fringe payments, and deductions from the
       employee's wages. If the life of the contract is expected to be no
       more than four months from the beginning of performance by
       the contractor or subcontractor, such supplemental reports shall
       be filed each week after the initial report. The certification of
       each payroll shall be executed by the contractor, subcontractor,
       or duly appointed agent thereof and shall recite that the payroll
       is correct and complete and that the wage rates shown are not
       less than those required by the contract.

                                        -14-
Case No. 7-11-20



      {¶31} It is undisputed in this case that Fitzenrider did not include each

employee’s job classification and the total hours worked by employees on all jobs

during the pay period. In addition, it is undisputed that Fitzenrider maintained

certified payroll reports which were provided to the Ohio Department of

Commerce with a signed affidavit of John Jacob, Fitzenrider’s President, attesting

that wages were paid in accordance with the prevailing wage as prescribed by the

contract. (Doc. 45, Ex. D). Furthermore, the information omitted on the face of

the certified payroll reports was otherwise submitted to the Ohio Department of

Commerce.

      {¶32} In Vaughn Industries, Inc. v. Dimech Services, 167 Ohio App.3d 634

(6th Dist.2006) (hereinafter “Vaughn 1”) and IBEW Local 8 v. Vaughn Industries,

Inc., 6th Dist. No. WD-07-026, 2008-Ohio-2992 (hereinafter “Vaughn 2”), the

Sixth District Court of appeals addressed the issue of whether failing to include

one of the enumerated items in R.C. 4115.071(C) in a payroll report was a

violation of the statute’s requirements. Ultimately, in the Vaughn cases, the Sixth

District found that the contractor’s inclusion of a signed “statement of

compliance” attesting that the contractor “had paid or would be paying the fringe

benefits required under the contract” with the payroll reports was sufficient to

satisfy the revised code when a contractor neglected to include one of the

enumerated items of R.C. 4115.071(C). Vaughn 1, at ¶ 28.

                                       -15-
Case No. 7-11-20


       {¶33} In this case, Fitzenrider submitted an affidavit by its president with

its payroll reports containing the following language:

       I, John F. Jacob President of the Fitzenrider, Inc., do hereby
       certify that the wages paid to all employees for the full number
       of hours worked in connection with the Contract to the
       Improvement, Repair and Construction of: Liberty-Washington
       Twp. New Fire Station, Liberty Center, OH during the following
       period from May 22, 2002 to January 24, 2003 is in accordance
       with the prevailing wage prescribed by the contract document.

       I further certify that no rebates of deductions for any wages due
       any person have been directly or indirectly made other than
       those provided by law.

(Doc. 45 Ex. D). The affidavit submitted by Fitzenrider along with the payroll

reports contains similar language to the “statements of compliance” that were cited

in both Vaughn cases. Although the item not listed on the payroll reports in

Vaughn 1 was fringe benefit payments, we find the Vaughn analysis persuasive

and applicable here.

       {¶34} However, even if Fitzenrider did fail to meet the requirements of

R.C. 4115.071(C) on the face of its certified payroll reports, the information that

was omitted on the reports was otherwise submitted to the Ohio Department of

Commerce.     See (Exs. C, E, O).     Thus there was no failure on the part of

Fitzenrider to make sure the Department of Commerce had this information.




                                        -16-
Case No. 7-11-20


       {¶35} For the foregoing reasons we find that summary judgment was

properly granted to Fitzenrider on this issue and Local 1581’s fourth assignment of

error is overruled.

                      Local 1581’s Third Assignment of Error

       {¶36} In Local 1581’s third assignment of error, Local 1581 argues that the

trial court erred by allowing Fitzenrider to “deviate” from the formula for

calculating fringe benefit credits in Ohio Administrative Code 4101:9-4-06(E) and

that such a deviation resulted in an underpayment that the trial court should have

found violated R.C. 4115.10(A). Specifically, Local 1581 argues that according to

the Ohio Administrative Code, Fitzenrider was required to use the denominator of

2080 as the default ‘hours worked’ in the absence of the actual number of hours

worked.

       {¶37} Ohio Administrative Code 4101:9-4-06, which relates to calculating

fringe benefit credits, reads as follows:

       (A) It is the duty of each employer to calculate the amount of
       credit it seeks for fringe benefits in accordance with Chapter
       4101:9-4 of the Administrative Code.

       (B) Each employer shall submit a certified payroll report to the
       prevailing wage coordinator. This report shall include at a
       minimum the basic hourly rate, calculated hourly rate of fringe
       benefits credited, all permissible payroll deductions.

       (C) The employer shall submit detailed calculations showing
       the calculations used in determining any of the information


                                            -17-
Case No. 7-11-20


      contained on the certified payroll report upon request by
      commerce.

      (D) Where      the    employer     provides    commerce    with
      substantiating documentation concerning the amount
      contributed to the fringe benefit and the total number of hours
      worked by the employee on all projects deemed relevant by the
      director for the purposes of this calculation, hourly fringe
      benefit credit shall be calculated by dividing the total
      contribution of the employer applicable to the employee by the
      total number of hours worked by the employee.

      (E) Where      the   employer     provides     commerce     with
      substantiating documentation concerning only the amount
      contributed to the fringe benefit, hourly fringe benefit credit
      shall be calculated by dividing the total yearly contribution by
      2080.

      (F) Commerce may reject any credits sought by an employer
      which are not substantiated by adequate records.

      (G) Falsification of any information provided to commerce
      pursuant to this rule is a violation of section 2921.13 of the
      Revised Code.

      {¶38} Revised code 4115.03(E) defines prevailing wages as the sum of the

following:

      (1) The basic hourly rate of pay;

      (2) The rate of contribution irrevocably made by a contractor
      or subcontractor to a trustee or to a third person pursuant to a
      fund, plan, or program;

      (3) The rate of costs to the contractor or subcontractor which
      may be reasonably anticipated in providing the following fringe
      benefits to laborers and mechanics pursuant to an enforceable
      commitment to carry out a financially responsible plan or


                                    -18-
Case No. 7-11-20


      program which was communicated in writing to the laborers
      and mechanics affected:

      (a) Medical or hospital care or insurance to provide such;

      (b) Pensions on retirement or death or insurance to provide
      such;

      (c) Compensation for injuries or illnesses resulting from
      occupational activities if it is in addition to that coverage
      required by Chapters 4121. and 4123. of the Revised Code;

      (d) Supplemental unemployment benefits that are in addition
      to those required by Chapter 4141. of the Revised Code;

      (e) Life insurance;

      (f)   Disability and sickness insurance;

      (g) Accident insurance;

      (h) Vacation and holiday pay;

      (i) Defraying of costs for apprenticeship or other similar
      training programs which are beneficial only to the laborers and
      mechanics affected;

      (j)   Other bona fide fringe benefits.

      None of the benefits enumerated in division (E)(3) of this section
      may be considered in the determination of prevailing wages if
      federal, state, or local law requires contractors or
      subcontractors to provide any of such benefits.

      {¶39} In this case, it is undisputed that in calculating fringe benefit credit,

Fitzenrider used the divisors of 1908 and 1948. Fitzenrider came to these figures

by beginning with the idea that employees would work 52 weeks per year at 40


                                       -19-
Case No. 7-11-20


hours per week for a total of 2080 hours. Then, Fitzenrider subtracted from the

2080 hours the number of hours that employees would be on paid holiday or on

paid vacation. Fitzenrider’s employees received 52 hours of paid holidays each

year, and either 80 or 120 hours of paid vacation depending upon the employees’

hire date and years of service. Adding the hours the employees would not be

working while on holiday to hours the employees would be on paid vacation there

were either 132 hours or 172 hours per year that a given employee would not be

working.     Fitzenrider took these numbers and subtracted them from the base

number of hours, 2080, to get the divisors of 1948 and 1908—Fitzenrider’s

estimated amount of hours worked for each employee for the given year.

Fitzenrider then used these two numbers as the divisors for calculating its fringe

benefits credit.

       {¶40} Local 1581 argues that pursuant to the Ohio Administrative Code,

Fitzenrider either had to use the number of hours actually worked by the

employees (O.A.C. 4101:9-4-06(D)) or what Local 1581 claims is the default

divisor of 2080 hours for the “annual” method (O.A.C. 4101:9-4-06(E)). Local

1581 claims that Ohio Administrative Code provision 4101:9-4-06 cited above

does not allow for Fitzenrider’s estimation of total hours worked for the

employees.




                                      -20-
Case No. 7-11-20


       {¶41} An argument similar to Local 1581’s claim was made in Vaughn 2,

supra. In Vaughn 2, the Sixth District Court of Appeals conducted the following

analysis:

       * * * IBEW claims that this court must adopt one of its methods
       of calculation per Ohio Adm.Code 4101:9-4-06(D) or Ohio
       Adm.Code 4101:9-4-06(E). We disagree.

       To repeat, in IBEW I, this court determined that to be in
       “compliance with Ohio’s Prevailing Wage Law, and unless
       otherwise modified by the administrator, fringe benefits credit
       must be calculated on the hour-for hour-basis by dividing the
       total contribution to fringe benefits on public projects by the
       total number of hours worked by the employee on public
       projects.” A thorough review of the trial testimony given by
       Vaughn’s President Matthew Plotts, and Chief Financial
       Officer, Jennifer Smalley, as well as the voluminous records
       related to the calculation of the fringe benefits credit that were
       entered into evidence at trial, reveals some competent credible
       evidence that this credit was calculated properly.

Vaughn 2, 2008-Ohio-2992 ¶¶ 44-45. The Sixth District’s analysis illustrates that

contrary to Local 1581’s position, there are more than two permissible methods of

calculating fringe benefit credits pursuant to the Ohio Administrative Code.

       {¶42} Moreover, in R.C. 4115.03(E)(3), supra, the legislature inserted

language that the rate of costs “may be reasonably anticipated.” Reading the

corresponding O.A.C. provision, 4101:9-4-06, with the idea that costs may be

“reasonably anticipated” and factoring in the Sixth District’s interpretation in

Vaughn 2 that there are more than the two methods for calculating fringe benefit



                                       -21-
Case No. 7-11-20


credits, we find that Fitzenrider was not required to use the “default” devisor of

2080 if Fitzenrider could “reasonably anticipate” its costs.

       {¶43} The record demonstrates just such a reasonable anticipation. Here

we have a detailed accounting for how Fitzenrider calculated its fringe benefit

credits and came up with the divisors of 1908 and 1948. These calculations were

based on actual hours the employees would work in the year after their vacation

and holiday hours were subtracted from the base amount of 2080. Accordingly,

we find no error in Fitzenrider’s calculations and therefore Fitzenrider was entitled

to summary judgment. Thus Local 1581’s third assignment of error is overruled.

                      Local 1581’s First Assignment of Error

       {¶44} In Local 1581’s first assignment of error, Local 1581 argues

generally that the trial court erred in granting summary judgment to Fitzenrider.

In Local 1581’s brief to this court, under the “Statement of the Assignments of

Error”, Local 1581 lists this as a separate assignment of error. However, in the

“argument” portion of Local 1581’s brief, Local 1581 lists assignments of error 2,

3, and 4 as subparts of Local 1581’s first assignment of error. Local 1581 does not

make a separate argument under this assignment of error, other than to generally

say summary judgment was improperly awarded to Fitzenrider. Having found no

errors with the trial court’s judgment herein, and finding that summary judgment




                                        -22-
Case No. 7-11-20


was properly awarded to Fitzenrider in this case, Local 1581’s first assignment of

error is overruled.

                         Fitzenrider’s Assignment of Error

       {¶45} In Fitzenrider’s sole assignment of error Fitzenrider argues that the

trial court erred in failing to award Fitzenrider attorney’s fees.      Specifically

Fitzenrider argues that Local 1581’s complaint was unreasonable and without

foundation and therefore Fitzenrider was entitled to attorney’s fees.

       {¶46} When a trial court is empowered to award attorneys’ fees by statute,

the decision to award such fees and the amount of such fees is within the sound

discretion of the trial court. Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc, 23

Ohio App.3d 85, 91 (12th Dist.1985). See also Bittner v. Tri County Toyota, Inc,

58 Ohio St.3d 143, 145-146 (1991). That decision will not be overturned absent

an abuse of discretion. An abuse of discretion connotes more than an error of law

or judgment.     An abuse of discretion implies that the court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶47} The statute governing attorney’s fees in this case is R.C. 4115.16(D),

which reads:

       (D) Where, 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. In
       the event the court finds that no violation has occurred, the

                                        -23-
Case No. 7-11-20


       court may award court costs and fees to the prevailing party,
       other than to the director or the public authority, where the
       court finds the action brought was unreasonable or without
       foundation, even though not brought in subjective bad faith.

       {¶48} In its opinion, the trial court denied Fitzenrider attorney’s fees,

holding “[r]egarding [Fitzenrider’s] request for attorney fees against [Local 1581

the court] has found that [Local 1581] was in fact an “interested party” and that

there was no lack of possible foundation or subjective bad faith on the part of

[Local 1581]. Thus, no attorney fees would be awarded [to Fitzenrider].” (Doc.

75).

       {¶49} As many of the cases we relied upon in this decision were decided

after the inception of this case, and as there were some technical irregularities

here, we do not find that the trial court abused its discretion in denying Fitzenrider

attorney’s fees. Importantly we emphasize that we may not simply substitute our

judgment for the trial court’s. Finding nothing unconscionable or arbitrary in the

trial court’s decision, Fitzenrider’s assignment of error is overruled.

       {¶50} For the foregoing reasons, the assignments of error are overruled and

the judgment of the Henry County Court of Common Pleas is affirmed.

                                                                 Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr



                                         -24-
