[Cite as R.E. Schweitzer Constr. Co. v. Univ. of Cincinnati, 2010-Ohio-4339.]

                                                         Court of Claims of Ohio
                                                                                        The Ohio Judicial Center
                                                                                65 South Front Street, Third Floor
                                                                                           Columbus, OH 43215
                                                                                 614.387.9800 or 1.800.824.8263
                                                                                            www.cco.state.oh.us




R.E. SCHWEITZER CONSTRUCTION CO.

        Plaintiff

        v.

UNIVERSITY OF CINCINNATI

        Defendant
        Case No. 2007-02114

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




        {¶ 1} On May 18, 2010, the court rendered judgment in favor of plaintiff in the
amount of $67,731.82. The court further found that plaintiff was entitled to prejudgment
interest and the case was subsequently set for hearing to allow the parties to present
evidence pursuant to General Condition section 8.9.1 of the contract, which provides
that “[t]he rate of any prejudgment interest shall be at the average of the prime rate
established at the commercial banks in the City of Cincinnati.”
        {¶ 2} Defendant asserts that plaintiff has waived its right to prejudgment interest
inasmuch as it failed to present any evidence at trial regarding the average of the prime
rate for the period of time at issue. However, the court notes that plaintiff made a
demand for prejudgment interest in its complaint and it again raised the issue in its post-
trial brief.   See Masterclean, Inc. v. Ohio Dept. of Admin. Servs. (May 13, 1999),
Franklin App. No. 98AP-727 (finding that plaintiff had not waived its right to prejudgment
interest where the issue was properly raised in both the complaint and proposed
findings of fact and conclusions of law). Thus, the claim for prejudgment interest has
not been waived.
Case No. 2007-02114                           -2-                         JUDGMENT ENTRY

       {¶ 3} At the evidentiary hearing, the court admitted, without objection,
documents that were prepared by Cynthia Foy, Vice President of Commercial Lending
at the North Side Bank and Trust Company, which show the history of the U.S. Prime
Rate for all times relevant.     (Plaintiff’s Exhibits A and B.)       In a letter contained in
Plaintiff’s Exhibit A, Foy explains that her bank uses the “Wall Street Journal U.S. Prime
Rate” as the index found on most commercial loan transactions.
       {¶ 4} A government contractor’s money becomes due and payable when the
contractor substantially completes its work on the project. Royal Electric Const. Corp. v.
The Ohio State University, 73 Ohio St.3d 110, 117, 1995-Ohio-131.                  In the liability
decision, the court determined that the money owed to plaintiff became due and
payable on November 24, 2004, the date that the change order at issue was approved
by defendant. (Liability Decision, Page 9.) Although defendant asserts that plaintiff’s
work on the project was not substantially completed by that date, the evidence clearly
supports the court’s determination. See Plaintiff’s Exhibits 26, 28, and 29.
       {¶ 5} Pursuant to R.C. 2743.18(A)(2), the court “may deny prejudgment interest
for any period of undue delay between the commencement of the civil action and the
entry of a judgment or determination against the state, for which it finds the claimant to
have been responsible.” Inasmuch as the average of the prime rate established at the
commercial banks in the City of Cincinnati was ascertainable at the time of the trial, the
court finds that plaintiff is not entitled to prejudgment interest beyond the date of the
liability decision.   Consequently, under Royal Electric, supra, plaintiff is entitled to
prejudgment interest on the award of damages from November 24, 2004, to May 18,
2010, as follows:

       $67,731.82       damages award
                x
        2001 days
                x
            5.88%       (average of the monthly prime rates from November 24, 2004 to May 18, 2010)
Case No. 2007-02114                                -3-                   JUDGMENT ENTRY

          $21,833.55       prejudgment interest
                   +
          $67,731.82
          $89,565.37       Total Damages

          {¶ 6} Accordingly, judgment is rendered in favor of plaintiff in the amount of
$89,590.37 which includes the filing fee paid by plaintiff. 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.




                                                  _____________________________________
                                                  CLARK B. WEAVER SR.
                                                  Judge

cc:


Barry A. Rudell                                     Gregory Mohar
2368 Victory Parkway, Suite 200                     Special Counsel to Attorney General
P.O. Box 6491                                       University of Cincinnati
Cincinnati, Ohio 45206                              650 University Pavilion
                                                    P.O. Box 210623
                                                    Cincinnati, Ohio 45221-0623

William C. Becker
Assistant Attorney General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

AMR/cmd
Filed September 2, 2010
To S.C. reporter September 14, 2010
