[Cite as Jutte Elec., Ltd. v. Ohio Facilities Constr. Comm., 2017-Ohio-2697.]




JUTTE ELECTRIC, LTD., et al.                            Case No. 2014-00318

        Plaintiffs/Counter Defendants                   Judge Patrick M. McGrath
                                                        Referee Dale A. Crawford
        v.
                                                        JUDGMENT ENTRY
OHIO FACILITIES CONSTRUCTION
COMMISSION

        Defendant/Counter
        Plaintiff/Third-Party Plaintiff

        v.

STEED HAMMOND PAUL, INC., etc.

        Third-Party Defendant/Fourth Party
        Plaintiff

        v.

BERARDI PARTNERS, INC.

        Fourth-Party Defendant



        {¶1} On December 13, 2016, the referee issued a decision recommending
judgment in favor of defendant, Ohio School Facilities Commission (OSFC).
Additionally, as the third-party claims and counterclaims were based solely on
indemnity, the other claims, damages, and costs were denied as not supported by the
greater weight of the evidence. 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)(e)(i).” After receiving two extensions of time,
plaintiffs, Jutte Electric, LTD. (Jutte) and Southwest Marine and General Insurance
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Company (Surety), filed their objections on January 17, 2017.         All defendants filed
responses or memorandum contra in opposition to plaintiffs’ objections on February 2,
2017. Plaintiffs raise the following five objections:

          a. Objection 1: The referee’s determination that plaintiffs failed to
             prove that their damages resulted from the acts and omissions of
             the OSFC is erroneous.

       {¶2} Plaintiffs assert that the referee misapplied the concept of “reasonable
certainty” as it applies to damages. The referee determined that plaintiffs “failed to
prove by a preponderance of the evidence within a reasonable degree of certainty that
their damages were proximately caused by the OSFC.” (Objections, p. 2). Plaintiffs
argue that pursuant to the holding in Tri-State Asphalt Corp. v. Ohio Dept. of Transp.,
10th Dist. Franklin No. 94API07-987, 1995 Ohio App. LEXIS 1554 (April 11, 1995), it is
the amount of damages that needs to be proved within a reasonable degree of
certainty. Therefore, according to plaintiffs, under Ohio law a plaintiff need not prove
within a reasonable degree of certainty that its damages were proximately caused by
defendant.
       {¶3} Plaintiffs also contend that their expert, Timothy Calvey, testified that
plaintiffs’ damages were caused by OSFC. Specifically, plaintiffs state that Mr. Calvey
testified that plaintiffs’ damages resulted from: 1) design delays, late drawings, and an
incomplete and erroneous design; 2) delayed and incomplete responses to Requests
for Information (RFI); 3) dimensional issues; 4) design changes; 5) issues with
schedules; and 6) late award of campus-wide bid packages for casework, technology,
security, and fire alarm systems.
       {¶4} The court finds that the referee accurately applied the law as it pertains to
plaintiffs’ burden of proof and the court does not agree with plaintiffs’ interpretation of
the law. Assuming plaintiffs’ representation of the law is true, it does not change the
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referee’s decision since he clearly held that plaintiffs failed to meet their burden of
proving that OSFC proximately caused plaintiffs’ damages.
          {¶5} In determining the proximate cause of alleged damages to a prime
contractor on a multi-million dollar construction project that spans a substantial amount
of time, a trial court must rely heavily on expert testimony. The types of claims alleged
by plaintiffs involve complex scheduling issues, and is therefore outside the purview of a
lay person’s knowledge. Therefore, the testimony of an expert is particularly crucial in
determining proximate causation.
          {¶6} The referee found that plaintiffs’ expert testimony lacked credibility. The
credibility of witnesses and the weight attributable to their testimony are primarily
matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E. 2d 212
(1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all or
any part of each witness’s testimony. State v. Antill, 176 Ohio St. 61, 197 N.E. 2d 548
(1964). While the court’s review of the referee’s decision is de novo, it gives great
deference to the referee’s opinion regarding the credibility of trial testimony.
          {¶7} Accordingly, plaintiffs’ first objection is OVERRULED.

             b. Objection 2: The referee erred in determining that “all claims before
                August 31, 2011 were settled and should not have been included
                as damages.”

          {¶8} Plaintiffs contend that the referee erred in concluding that issues arising
prior to the execution of the Memorandum of Understanding (MOU) were settled and
should not have been included as damages. They argue that the August 31, 2011 MOU
does not reference a settlement of any or all claims existing as of the date of its
execution. In fact, plaintiffs assert that the MOU contains specific language expressly
reserving their rights with respect to any and all claims. Paragraph six of the MOU
states:
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      In the event that the Obligee [the OFSC] fails to perform the obligation set
      out in this agreement or in the Contract, the Principal [Jutte] and the
      Surety [Southwest] by execution of this Agreement do not waive or in any
      way forfeit or relinquish any legal rights they may have to assert claims
      against the Obligee under the Contract or Bond or waive any defenses
      which may have which are inconsistent with the terms of this Agreement.

      {¶9} Upon review, the court finds the referee’s analysis of the effect of the MOU
on plaintiffs’ claims to be an accurate interpretation. By executing the MOU, plaintiffs
agreed to remedy several workmanship and scheduling issues. By agreeing to resolve
these issues, thereby admitting that there were issues that needed to be addressed and
remedied by plaintiffs, and not by OSFC or a supplementary contractor, plaintiffs
effectively waived the right for claims related to that unresolved work. The referee did
not state that plaintiffs agreed to waive their rights to pursue claims. If he had done so,
the claims would not have survived summary judgment and proceed to a full trial on the
merits. Specifically, the referee stated that all of the claims before August 31, 2011
should not have been included in plaintiffs’ damages. Plaintiffs had every right to bring
a claim for something that occurred before August 31, 2011, but not as it pertains to the
specific enumerated items in the MOU.             Considering this was very early in the
construction of the project and buildings were not yet out of the ground, the court is
dealing with a relatively small amount of plaintiffs’ alleged damages; damages which
were not proved to be caused by OSFC.
      {¶10} Accordingly, plaintiffs’ second objection is OVERRULED.

          c. Objection 3: The referee incorrectly analyzed the bases for
             Southwest’s rights to assert claims against the OSFC.

      {¶11} Upon thorough review, the court finds that the referee’s analysis of the
Surety’s rights is consistent with the law. Even if the referee was mistaken, his opinion
on pages 18-22 regarding the relationship between the Surety, OSFC, and Jutte is
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essentially dicta. In no way does the referee’s analysis of the Surety’s rights affect the
outcome of this case.
       {¶12} Accordingly, plaintiffs’ third objection is OVERRULED.

          d. Objection 4: The referee incorrectly analyzed the sufficiency and
             legal ramifications of Southwest’s investigation and decision
             regarding how to complete Jutte’s work on the project.

       {¶13} Plaintiffs contend that the referee was highly critical of the investigation
conducted by the Surety, through Ray Zetts and Anne Meyers, without any reference to
legal authority which supports the criticism. They also assert that the referee based his
criticism on various factors that were unknown to the Surety at the time it made its
decision and other factors that the Surety justifiably deemed insignificant or irrelevant to
completing a thorough investigation.
       {¶14} The court thoroughly reviewed the evidence, trial testimony, and
depositions and finds that the referee’s recommendation is strongly supported by the
evidence. The Surety believed that it could “beat the spread,” a position it later learned
was unrealistic. Even if the Surety completed the most thorough investigation possible,
and made a sound business decision based on all of the information available to it at
the time, the end result was a substantial loss to the Surety. The referee was not
inclined to pass that loss along to OSFC, and the court agrees.
       {¶15} Accordingly, plaintiffs’ fourth objection is OVERRULED.

          e. Objection 5: The referee erred in determining that plaintiffs’ claims
             against the OSFC were barred by Article 8 of the General
             Conditions.

       {¶16} Plaintiffs assert that Article 8 does not apply to plaintiffs’ supplemental
claim and delay/impact claims, and even if Article 8 does apply to plaintiffs’ claims, its
application in this case is void and unenforceable as against public policy pursuant to
R.C. 4113.62. If Article 8 is not void and unenforceable here, plaintiffs’ argue that
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OSFC waived its right to insist upon strict compliance with Article 8 and OSFC cannot
insist on strict compliance when it was the first to breach the contract. Finally, plaintiffs’
claim that they satisfactorily and substantially complied with the provisions of Article 8.
       {¶17} The referee determined that on December 30, 2011, Anne Meyers sent
what appeared to be a first certified Article 8 claim that took issue with the
supplementation of Jutte’s work by Accurate Electric. The referee found that these
issues relate to matters before the MOU, and, as discussed in Objection 2 above, were
effectively settled.   Next, the referee determined that on December 12, 2012, the
second Article 8 claim was filed on behalf of the Surety and Jutte, and it was clearly late
as it was filed approximately four months after the project was substantially completed.
       {¶18} Upon review, the court finds that the issues discussed in the December 30,
2011 letter related to matters before the MOU, and for reasons discussed in Objection 2
above, the court agrees with the referee. The court also agrees that the December 12,
2012 Article 8 claim was untimely.
       {¶19} Accordingly, plaintiffs’ fifth objection is OVERRULED.
       {¶20} Upon review of the record, the referee’s decision, plaintiffs’ objections, and
defendants’ responses, the court finds that the referee properly determined the factual
issues and appropriately applied the law.             Therefore, plaintiffs’ 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 defendant. Court costs are assessed against plaintiffs. 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. 2014-00318                -7-                    JUDGMENT ENTRY


cc:
Bradley J. Barmen                   David M. Rickert
1375 East 9th Street, 16th Floor    110 North Main Street, Suite 1000
Cleveland, Ohio 44114               Dayton, Ohio 45402

Craig D. Barclay                    Debra Jean Horn
David A. Beals                      Ronald P. Friedberg
William C. Becker                   28601 Chagrin Boulevard, Suite 500
Assistant Attorneys General         Cleveland, Ohio 44122
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Filed April 3, 2017
Sent to S.C. Reporter 5/5/17
