Summary
In Valentine, this Court granted summary judgment in favor of the plaintiff because Valentine Concrete, Inc. proved that it was damaged by delays on the project and it was not the cause of said delays.
Summary of this case from Accurate Elec. Constr., Inc. v. Ohio State Univ.Opinion
Nos. 87-06987, 89-09550.
Decided May 17, 1991.
Joseph Blair Yanity, Jr., for plaintiff Biehl Safety Services, Inc.
Christopher J. Kempf and Matthew Yackshaw, for plaintiff Amelito Mirolo. Lee Fisher, Attorney General, George Lyons and Timothy J. Bojanowski, Assistant Attorneys General, for defendant Ohio Department of Administrative Services.
Jeffrey W. Hutson and Mary Barley-McBride, for third-party defendant Trautwein and Associates, Inc.
In the late 1970s, Ohio University ("OU"), began a space utilization study. Mr. Stocker, a famous and generous OU alumnus, made a very substantial gift to OU for the benefit of the engineering school. OU decided to renovate a building known as "Crooks Hall," which was a U-shaped structure, and then build an entire new building within the open space of the U. The two buildings were constructed so that they became a single building known as the "Stocker Engineering and Technology Center" ("Stocker").
OU proceeded with the design of Stocker by retaining the architectural services of Trautwein and Associates ("Trautwein"), for design before the necessary funds were appropriated by the Ohio General Assembly. This unusual procedure was followed because a new administration intended to put a freeze on all new capital expenditures and OU wanted Stocker completed for use in the fall term of 1985. OU, as a state-supported institution, later successfully had the General Assembly appropriate capital improvement funds for Stocker.
Since the Ohio Department of Administrative Services ("DAS") administers all contracts on state projects, a list to select an architect was sent from DAS to OU. Trautwein was included on this list of architects and OU selected Trautwein with DAS's approval. By this time, OU had already paid Trautwein $162,500 for the design, which was deducted from Trautwein's fee of $245,000 for design services.
The original opening of bids on Stocker was on March 3, 1983. To the disappointment of OU, DAS and Trautwein, the bids for the general contract, metal laboratory equipment, heating, ventilating, and air conditioning were in excess of ten percent of the estimate, thereby requiring a rebidding of those contracts.
Alan Geiger, Facilities Planning Director for OU, requested that Trautwein reduce the requirements for these contracts so that a bid would probably be received within the estimates. Specifically, as to the general contract, he suggested the elimination of an elevator and many of the finishes, and a reduction of the contingency fund. These suggestions were incorporated in the rebid documents sent out by Trautwein on March 17, 1983. The date for the opening of the rebids was April 5, 1983. Surprisingly, neither Trautwein nor OU's witnesses could remember specifically what items were eliminated and reduced from the general contract portion of the work on the rebid.
The reduction of the contingency fund from five percent in the original bid requirements to less than two percent in the rebid requirements was unrealistic. However, OU was so desperate to obtain the necessary funds and complete the construction by June 21, 1985, it was willing to take some risks. OU realized it might have to raise additional funds and also complete many finishes at a later date.
Valentine Concrete, Inc. ("Valentine") was the low bidder on the general contract on the rebid and was awarded the contract on or about June 10, 1983. Valentine was instructed to commence work on June 22, 1983. The contractual completion date for Stocker was June 21, 1985, but the project was not completed until approximately six months later.
Valentine filed a complaint alleging that DAS and OU breached the contract, causing it to suffer substantial damages. OU filed a counterclaim against Valentine, denying it breached the contract with Valentine, and filed a third-party complaint against Trautwein. Three final punch lists were submitted to Valentine. Each list was then completed by Valentine to the satisfaction of Trautwein. However, many of the claims stated by OU in its counterclaim were never mentioned in any of the so-called final punch lists. The counterclaim was primarily promoted by John Kotowski, who replaced Alan Geiger as Director of Planning Facilities at OU. For the convenience of Trautwein, the court bifurcated the third-party complaint. DAS denied any liability on the contract with Valentine.
The evidentiary part of this trial lasted a grueling sixty-two days. Thereafter, the parties filed proposed findings of fact and conclusions of law. The following findings are based on the greater weight of the evidence.
The construction contract forms used herein were developed by the architects' association and approved by the state of Ohio. Therefore, no one should be surprised that the contracts favor the architect and state, even to the extent of placing responsibility on the prime contractors for errors made by the architect. The testimony indicated that the state is now reviewing the language in these construction contracts, recognizing that contractors deserve fair treatment in the wording of contractual documents.
In order to address the voluminous issues raised at trial, it is necessary for the court to set forth the law as it applies to this case.
Plaintiff is entitled to any extra cost as a result of discrepancies between the plans and specifications. Backus Assoc., Inc. v. Ohio Dept. of Natural Resources (1976), 47 Ohio Misc. 11, 1 O.O.3d 211, 352 N.E.2d 663. It is well established that the owner is required to furnish sufficient plans and specifications to enable the contractor to perform. Bates Rogers Constr. Co. v. Cuyahoga Cty. Bd. of Commrs. (N.D. Ohio 1920), 274 F. 659. Defendants' assertion that it is not liable for the omissions caused by the architect is not viable. The architect is the agent of the owner and the owner is liable for any omissions that created extra cost. Mason Tire Rubber Co. v. Cummins-Blair Co. (1927), 116 Ohio St. 554, 157 N.E. 367. Thus, any extra cost Valentine alleges as a result of missing items in the drawings or specifications is compensable.
The drawings and specifications were very inadequate and created many problems and delays in the course of this project. Furthermore, Trautwein was unreasonably slow in responding to changes and communications from Valentine. Additionally, the contractors had to interpret between the different pages and schedules to determine what applied to each situation. The lack of clarity and drafting errors caused many problems in the construction of Stocker.
Moreover, Valentine raises numerous issues involving oral changes in the contract. Valentine has proven at trial that the written change-order procedure was not adhered to on this job. This court has recognized and the court of appeals has affirmed the finding that a "constructive change order" is viable. Gustav Hirsch Org., Inc. v. Ohio State Univ. (Oct. 6, 1977), Franklin App. No. 77AP-343, unreported. It is evident from the facts of this case that plaintiff has proven by clear and convincing evidence that verbal changes did occur.
Furthermore, OU signed various time and material tickets demanding that Valentine proceed with the job. The typical procedure followed by OU in making changes in the plans was to tell Valentine to "go ahead and we will fight later in an Article 8 hearing if necessary." This is just one example of how OU attempted to accelerate the project without following procedures established by the contract documents.
Valentine also claims that due to changes in the heating, ventilating, and air conditioning ("HVAC"), it was difficult, if not impossible, to install masonry as designed. The HVAC shop drawings were waived in order to speed the project. The court finds this waiver created many problems for Valentine.
Valentine also claims extra expense as a result of unknown conditions of the job site and contends that OU was in a superior position as to the site conditions. OU asserts that the contractor was to visit the site and examine it prior to bidding. In this case, OU's assertion must fail. Pitt Constr. Co. v. Alliance (C.A. 6, 1926), 12 F.2d 28.
Valentine shall be compensated for any extra expenses as a result of omissions in the drawings, verbal change orders, items that had to be changed due to the change in the HVAC duct work and conditions that could not have been discovered upon a reasonable site inspection. The court will address each issue to determine if it is an allowed extra item.
ISSUE: SIDEWALK PAVERS
Valentine contends a design problem caused a change in the setting of the brick sidewalk pavers from mortar to sand. Valentine maintains that this change and the extending of the sidewalk resulted in an extra $422.18. Defendants contend that the cost of labor should be reduced since it is easier to put in sand than mortar. Defendants further contend that since a plastic drain was installed, instead of the more expensive trench drain, the difference should result in a credit. The court finds that the redesign drawing represented a change in the scope of the work to be done by Valentine, and the evidence failed to prove defendants are entitled to a credit. Thus, the court finds that Valentine is entitled to $422.18 on this issue.
ISSUE: MECHANICAL PLATFORM ROOM 404
Valentine contends that the mechanical platform in Room 404 was not on the drawings and it should be given an extra $3,057. Defendants contend that the mechanical platform was shown on various sheets of the drawings. Defendants further contend that the contractor must examine all of the documents. The court finds that sheet 7.24 states "platform above similar to 5.13." Sheet 5.13 shows a platform cross-section. This platform was not listed on any of the room details shown on sheet 3.5 or 3.7 that details what is to be installed in Room 404. Therefore, the court finds that there is ambiguity in the drawings which should be construed in favor of Valentine, and Valentine is entitled to an extra $3,057 on this issue.
ISSUE: ROOM 191 STAIR
Valentine contends no details were shown in the original drawings for a stair in Room 191, and that Trautwein had admitted this was an extra. Kotowski testified he intended to pay this item, but he had not received a change order. Valentine contends that this resulted in an extra $768. Defendants contend that any cost for the steel should come out of the steel allowance and that exact details are not needed. The court finds the drawings should have been more specific and Valentine is entitled to an extra $768 for this item.
ISSUE: CEILING ROOM 404
Valentine contends that there is a conflict in the drawings on this issue. Sheet 3.7 indicates that the ceiling is to be installed in Room 404, and sheet 3.14, the reflective ceiling plan, does not call for a ceiling. Valentine contends this resulted in an extra cost of $458.54. Defendants contend that this is a greater quantity/quality issue and that this is not an extra. The court finds that there is a conflict between the drawings, and the drawing with the greater detail should control. Drawing 3.14, which has the greater detail, states no ceiling. Therefore, no ceiling was called for in the drawing. The court finds that Valentine is entitled to an extra $458.54 on this issue.
ISSUE: LECTURE HALL REDESIGN
Valentine contends that the redesign of the lecture hall, caused by errors in the drawings, resulted in a six-week delay and therefore required the concrete to be poured in the winter months. Valentine further contends it could not work efficiently due to this problem. Valentine claims an extra $8,310.57. Defendants contend that Valentine had intended to pour concrete into the winter months. Defendants further contend that the additional shoring rental is the only cost recoverable. The court finds that the lecture hall problem was caused by the architect and discovered by Valentine. Valentine could work in other areas, but not efficiently or as planned and scheduled, and this had an adverse long-term effect on the project. The court finds for Valentine on this issue. However, the court will reduce the amount claimed by Valentine by $500 for the extra winter protection. The court finds that Valentine is entitled to $7,810.57 on this issue.
ISSUE: SEATING MARK-UP IN AUDITORIUM
Valentine contends that both Irwin and American Seating were named manufacturers in the specifications for the seating in the lecture hall. Valentine further contends the rejection of Irwin seating by defendants caused an increase in price. A change order was issued for this and $6,005 was charged against the sound allowance. Valentine contends it is due an extra $983, which represents the overhead and profit on this item. Defendants contend there is no overhead and profit for this item. The court finds Irwin was approved, and that Valentine followed procedures. The court further finds an extra is due which should be adjusted by a charge for overhead and profit. The court finds that the defendants cannot charge such an expense against a sound allowance and therefore avoid paying overhead and profit. The court finds that Valentine is entitled to $983 on this issue.
ISSUE: ROOF DECK
Valentine contends both Clarklite and J-Deck were approved manufacturers for the roof deck. Valentine further contends that the defendants' rejection of Clarklite resulted in an additional cost of $20,444.60. Defendants contend that the products installed must meet the specification requirements. The court finds that Valentine had submitted a preapproved product and that Valentine should be able to rely on the prequalified materials established by the architect. The court finds that Valentine is entitled to an extra $20,444.60 on this item.
ISSUE: HANDRAILS
Valentine contends it is due an extra $1,993.33 for handrails not shown on the drawings. Defendants contend that the handrails in the lecture hall were traded off and any handrails removed during the demolition had to be reused. The court finds that the handrails were not indicated on the drawings. The handrails are an extra item not in the original contract documents. The court finds that Valentine is entitled to an extra $1,993.33 for this item.
ISSUE: UNDERCUTTING WOOD DOORS
Valentine contends it was not provided with accurate carpet thicknesses, and that the doors ordered were approved through the shop-drawing process. Valentine further contends that the doors ordered had to be undercut to allow sufficient clearance of the carpet. Valentine claims an extra $11,603.94 for this item. Defendants contend that OU does not use gluedown carpet and that it is the general contractor's responsibility to give the door manufacturers information on carpet thickness. The court finds the door schedule provides for the size of the doors. The architect had the responsibility to show on the drawings the carpet thickness and whether the carpet was to be glued down. Valentine did question OU and was told the carpet thickness but not how the carpet was to be installed: glue or nail strips with a pad.
Additionally, the drawings do not specify what is considered "finished floor." OU never notified Valentine that there was a problem until the wood doors were ordered and installed. Valentine was not provided with the information necessary to order the wood doors to the proper size. The court finds that Valentine is entitled to an extra $11,603.94.
ISSUE: RESIZING CLOSET DOORS
Valentine claims a problem in the drawings and door schedule resulted in inaccuracies in the closet doors which had to be resized at an additional cost of $707.78. Valentine worked from the door schedule provided by Trautwein, and had defendants approve the shop drawings. Defendants contend that it is the general contractor's responsibility to double-check shop drawings and the door schedule, and that Valentine is responsible for one half of the error. The court finds that there was an error in the door schedule and the approval process. Valentine had a right to rely on the door schedule provided and the defendants' approved shop drawings. The court finds that Valentine is entitled to an extra $707.78 on this issue.
ISSUE: PATCHING FLOORS
Valentine contends that all of the prime contractors were to patch their own holes made in the floors. Valentine further contends that all the other primes, except Jess Howard Electric Co., had paid Valentine to patch their floors. When a problem arose as to who was responsible for floor patching, OU directed Valentine to patch the floors and guaranteed payment. Valentine patched the necessary areas and claims the extra expense of $509.40. Defendants contend that each prime is responsible to patch its own holes or pay for the patching done by the general contractor. The court finds that Valentine is entitled to an extra $509.40 on this item since defendants directed Valentine to patch the floors which were the contractual responsibility of Jess Howard Electric Co. Failure of timely patching was a very real problem on this job and caused many problems.
ISSUE: UNDERCUTTING OF DRIVEWAY
Valentine contends unknown soil conditions are the owner's responsibility and that a driveway had to be undercut after it failed the soil compaction test. Valentine claims an extra $2,177 is due on this item. Defendants contend that they were never notified of the differing site conditions and were not provided with a cost breakdown on this item. The court finds that this is an unknown condition for which the general contractor is not responsible. The court finds that Valentine is entitled to $2,177 on this item.
ISSUE: THIRD-FLOOR ATTIC WALLS
Valentine contends that the original drawings specified that masonry was to be utilized in the third-floor attic walls. A redesign in the HVAC resulted in the impracticability of using masonry for third-floor attic walls. Valentine installed metal studs with drywall and claims an additional $12,053.74. Defendants contend that this was a coordination problem and that sleeves should have been put in the blocks to allow the HVAC duct work to be installed through the masonry walls. The court finds that since there were no HVAC shop drawings, and Valentine had originally bid to install masonry, this resulted in a change in the scope of work. The court further finds that Valentine is entitled to the $12,053.74 extra expense claimed.
ISSUE: ADDITIONAL ACOUSTICAL AND DRYWALL SOFFITS
Valentine contends that the redesign of the HVAC necessitated additional acoustical and drywall soffits at a cost of $7,577.59. Defendants contend there was no evidence presented on this item and that there is no cost breakdown room by room. The court finds that this is another area that the redesign of the HVAC caused the general contractor, Valentine, to incur additional expense. The court further finds that the combination of all paper work submitted to the state on this project shows a cost breakdown. The court finds that Valentine is entitled to an additional $7,577.59 on this item.
ISSUE: ACOUSTICAL CEILING IN ROOM 191F
Valentine contends that under the original contract it was not required to put in an acoustical ceiling in Room 191F. Valentine further contends that this is an additional expense of $127.05. Defendants contend that Trautwein admitted that this was an omitted item in the drawings and that Trautwein is responsible for payment. The court finds that Valentine is entitled to an extra $127.05 on this item since Trautwein is an agent of defendants.
ISSUE: INTEREST ON THE ILLEGAL RETAINAGE
Valentine contends that it is due an extra $5,564 in interest on illegal retainage above what is specified in the contract documents. Defendants contend that this is a prejudgment interest issue and Valentine is not entitled to any interest. This issue will be addressed under interest at the end of the claim.
ISSUE: ADDITIONAL SOFFITS IN HALLWAY
Valentine contends that the additional soffits were not in the original drawings and they incurred an additional $1,397 to install the soffits. Defendants contend this was a trade-off item between Hammond and Trautwein. The court finds that these items were not listed as a trade-off item and Valentine is entitled to $1,397 on this issue.
ISSUE: LIGHT BOX ENCLOSURES — FOURTH FLOOR
Valentine contends the shop drawings, approved by the defendant, also approved the light boxes ordered for the fourth floor. A change in the design of the ceiling to enclose the light boxes so that they would have a two-hour fire rating caused an extra cost of $4,911.06. Defendants contend that the light boxes were put in before the ceiling and that was a sequencing problem. The court finds that the shop drawings were approved and Valentine had ordered and installed the approved light-box enclosures. Any changes resulting in additional work by Valentine to make the two-hour fire-rated light boxes is compensable. The court finds that Valentine is entitled to the extra expense of $4,911.06.
ISSUE: PIPE CHASE AND DUCT ENCLOSURES
Valentine contends the redesigning of the HVAC to enclose pipes and ducts caused an additional cost of $10,341.71. Defendants contends that Valentine is due some extra allowance, but not what Valentine requested. The court finds that Valentine is entitled an additional $10,341.71 on this item.
ISSUE: ADDITIONAL TIME AND MATERIAL TICKETS
Valentine contends that it was directed by defendants to install extra access panels and acoustical drops that resulted in an extra $167.97. Defendants contend that Valentine provided no evidence of this additional expense. The court finds that the additional work tickets were signed for and approved by the defendants or their agents. Therefore, the court finds that Valentine is entitled to an extra $167.97 on this issue.
ISSUE: REPAIR OF DAMAGE DONE TO FINISHED WORK
Valentine contends that ceiling tile was damaged which caused an additional expense of $442.01 to repair. Defendants contend that the damage was caused by the electrical prime contractor and that the electrical prime contractor is responsible. The court finds that Valentine is entitled to an additional $442.01 on this item. Valentine did not have a contract with the other prime contractors and had no way of charging or enforcing collection of monies from other prime contractors. Furthermore, defendants permitted the electrical and HVAC contractors to waive shop drawings as required by the contract and to delay the performance of the contract.
EXTRA WORK BY ARTHUR PAINTING
Valentine's submission of various painting claims requires a determination of what is required according to the drawings and specifications. The specifications are in conflict and the court has determined that an interpretation is necessary. Under extent of work specifications, Section 2.2 states:
"Except as otherwise specified hereinafter, where indicated in `finish schedule' include all necessary preparation in the complete finishing of all wood and metal parts and services, exterior and interior, that are not specified to be completely finished by others as installed, also all concrete block masonry, concrete, stucco, plaster and wallboard surfaces exposed to view at completion of the project, either on the exterior of the building or in the finished areas of its interior or requiring treatment for appearance or protection."
This section basically defines the extent of work as everything unless specified differently. However, this general section should be compared to the more specific section in specifications Section 14.2, which states:
"Refer to finish schedule and architectural drawings for the extent of wall and ceiling surfaces, wood or metal doors, sash, frames, trim, etc., requiring finish, and to plans and specifications * * *."
This section refers the contractor to the drawings which include the finish schedule at the upper right-hand corner. Sheet 3.1 of the drawings contains the general notes. Note 12 states: "finishes are as scheduled on plan sheets, refer also to sheet 6.1."
The finish schedule has an "A" designation, which indicates no paint. This "A" designation was used on Sheet 3.2. "B" or "C" designation indicates an epoxy-type paint according to the finish schedule. However, these designations were not used on the drawings. The elevations in sheet 6.1 et seq. show how the first floor classrooms are to be finished. Sheet 6.1 general finish note 1 states: "some materials are duplicated in the drawings and specifications. The drawings will prevail as final authority."
Up to this point, the court could agree with Valentine on the painting issues. However, when the court examines the finish schedule, the "A," "B," and "C" designations indicate special, other-than-normal finishes. Section 9.2 of the specification subsection 2.2 refers to epoxy as "special paint." Thus, the court interprets the finish schedule to vary what was specified as basically painting everything.
The court fully understands how the painting subcontractor interpreted the drawings and specifications, as the drawings and specifications were not clear. However, the painting subcontractor obviously painted other portions.
The court will now address the individual issues raised regarding alleged extra work by the painting subcontractor.
ISSUE: GROUND FLOOR ROOMS REQUIRING GRAPHICS
Valentine contends that several ground floor rooms required only graphics. Defendants contend that the rooms were also to be painted, since there was not an "A" designation. The court finds that the rooms did not have an "A" designation. The court finds for the defendants on this issue.
ISSUE: EXTRA PAINTING OF ROOMS WITH SCORED BLOCK
Valentine contends that there is no finish key for these rooms; thus, they were not required to be painted. Defendants contend that the rooms were to be painted as there was no "A" designation. The court finds that scored block is not concrete block masonry with integral color which would have no finish as set forth in Section 14.9 of the specifications. Therefore, the rooms were to be painted since no "A" designation appears in these rooms and this claim is not an extra.
ISSUE: GROUND FLOOR ROOMS NOT EXPOSED TO VIEW
Valentine contends that there are several rooms not exposed to view, which would not require painting as required by the specifications. Defendants contend that "exposed to view" means an area that cannot be seen and there is no "A" designation. The court finds that the rooms indicated were not exposed to view and defines "exposed to view" as rooms not seen by the general public. The court finds that Valentine is entitled to $18,955.39 on this issue.
ISSUE: PAINT ROOMS WITHOUT FINISH KEY
Valentine contends that some of the rooms without a finish key were not to be painted. Defendants contend there is no "A" designation noted for these rooms and they are to be painted. The court finds that Rooms 146, 156A, 191F, 134, 231, 231A, 234G, and 205, and stairs one through six did not include the "A" designation. Therefore, the rooms were to be painted according to what is called for in the specifications for that type of wall finish, e.g., masonry wall, plaster board.
ISSUE: PAINTING STONE AND BRICK ON EXISTING SURFACES OF THE GROUND FLOOR
Valentine contends that some existing exterior walls became interior walls and the limestone or brick was not specified to be painted. Defendants contend that the limestone and brick or masonry is called for in the specifications to be painted under masonry. The court finds that these areas were not specified to be painted. Accordingly, the court finds that Valentine is entitled to $9,764.95 on this issue.
ISSUE: SEVEN ROOMS WITHOUT FINISH KEY
Valentine contends Rooms 200, 211, 298, 294, 334, 346, and 365 were not to be painted as there is no finish key designation. Defendants contend there is no letter "A" designation and the rooms were to be painted. The court finds that since there is no "A" designation, the rooms are to be painted and therefore finds for defendants.
ISSUE: ROOMS NOT EXPOSED TO VIEW
Valentine contends that Rooms 112, 144, 158, 204, 242, 258, 316, 332, 350, 380, 382, and 415 are janitor closets and are not exposed to view; thus, they are not required to be painted. Defendants contend that there is no "A" designation for these rooms. Therefore, the rooms are required to be painted. The court finds that these rooms are not exposed to the general public. Valentine is entitled to $3,612.84 on this issue.
ISSUE: REJECTION OF SHERWIN WILLIAMS
Valentine asserts that it submitted a lower quote using Sherwin Williams products and that Sherwin Williams was approved on Forms 26 and 27. Defendants contend that Sherwin Williams is not a named supplier and that Valentine did not follow the proper substitution process. Defendants admit that Sherwin Williams was to be used as a material for stainless steel. However, Sherwin Williams was not one of the named specified products to be used for other painting surfaces. The court finds that, according to the specifications, Sherwin Williams was not listed as a preapproved product. Although Glidden or Sherwin Williams appeared on Valentine's Form 26 of products to be used, Sherwin Williams could properly have been specified for the stainless steel coating. The court further finds that Valentine did not submit Sherwin Williams in the proper procedure, and defendants are correct on this issue. The court further notes that if Sherwin Williams had been specified through the proper procedures, Valentine would have been able to use its products. Trautwein had approved Sherwin Williams, but OU made it known that due to prior problems with Sherwin Williams products, it did not want Sherwin Williams to be used, even though Sherwin Williams guaranteed the performance of its products on this job. There was no proof that Sherwin Williams products are not comparable to PPG and Glidden, just the opinion of university employees.
ISSUE: EXTRA COAT OF PAINT OF EXISTING EXTERIOR SURFACES
Valentine contends that it was required to spot and touch-up the paint only on the exterior surfaces. Valentine further contends that defendants wanted a spot prime coat of paint with two finish coats. Defendants contend that this was a verbal change and, according to the specifications, verbal changes would not be honored. The court finds for Valentine on this issue in the sum of $11,171.74. As earlier noted, the change order process was not followed on this project and Valentine has proven by a clear and convincing standard that defendants waived the change order procedure and allowed the contractors to proceed on verbal orders.
ISSUE: INCREASED COST DUE TO UNTIMELY VINYL SELECTIONS IN THE LECTURE HALL
Valentine contends that it incurred a material cost increase due to defendants' untimely selection of vinyl wall coverings. OU contends that the selection was delayed because it needed a sample book from which to make the selections. The court finds that Valentine has proven by a preponderance of the evidence that it timely submitted samples to defendants and that the defendants took an unreasonable time to make their selection. Furthermore, it would be unreasonable for suppliers to hold their prices open for such long periods of time and the court finds that OU took an unreasonable amount of time to make the selections. The court finds that Valentine is entitled to $1,055.09 on this issue.
ISSUE: PAINTING OF STYROFOAM
Valentine contends that there was no finish prescribed in the specifications for styrofoam. Moreover, due to the stopping of the painting of the styrofoam by the state office of factory and building and conflicting directions on how to proceed, the delay resulted in an extra $13,360.20. Defendants contend that the contractor or the associate architect should have seen these conditions and notified OU of the problem. The court finds that this was a hidden condition and the party that should have been aware of this condition was OU. Testimony revealed that OU was aware that styrofoam was on various ceilings on its campus. Accordingly, the court finds for Valentine in the amount of $13,360.20 on this issue.
ISSUE: REPAINT AND CLEAN AREAS DIRTIED OR REVISED
Valentine contends that it incurred an extra expense of $3,912.56 in repainting and cleaning areas dirtied or revised by defendants. Defendants contend that these areas were the responsibility of the contractor and that Valentine provided no cost breakdown on this issue. The court finds that Valentine is entitled to an extra expense of $3,912.56. Although the contractor would be responsible for general cleaning of the premises, the contractor is not responsible for cleaning areas dirtied by others or redoing areas that had been revised by defendants.
ISSUE: ADDITIONAL BASEMENT CORRIDOR GRAPHICS
Valentine contends that there was no painting called for in the corridors. Defendants contend that the corridors were specified to have six hundred lineal feet of graphics, and only four hundred thirty-five feet were actually painted. Defendants further contend that they changed the striping from three stripes to one, and the paint from epoxy to enamel to facilitate the finishing of the corridors. The court finds for the defendants on this issue.
ISSUE: EXTRA LABOR TO CUT VINYL AROUND CASE WORK
Valentine contends that the defendants permitted case work to be installed and, as a result, it incurred an expense of $1,801.80 to cut around the case work. Defendants contend that this problem occurred as a result of improper sequencing and coordination by Valentine. OU wanted the case work installed out of sequence because there was no place to store it. The court finds that Valentine is entitled to $1,801.80 on this issue.
ISSUE: EXTRA LABOR TO PAINT AROUND CASE WORK
Valentine contends it is due an extra $1,501.50 for this issue. Defendants contend that Valentine should have coordinated and sequenced the work. The court finds that Valentine is entitled $1,501.50 on this issue.
ISSUE: MATCH AND LAYOUT VINYL
Valentine contends that defendant selected random pattern vinyl wall covering in the specifications. When defendants finally made their actual selections, they chose a pattern-type wall covering which required more labor to match and lay out. Defendants contend that this was within the scope of Valentine's contract. The court finds that Valentine had a right to rely on what was called for in the specifications, and changes in the specifications that require extra work are to be compensated. The court finds that Valentine is entitled to an extra $5,667.59 on this issue.
ISSUE: PAINTING OF EXISTING HEAT CONDUCTOR COVERS
Valentine contends that inasmuch as the heat conductor covers were already covered, it painted one coat without charge. Defendants, however, wanted a second coat. Defendants contend that these items were to be painted according to specifications. The court finds that according to the specifications, Valentine was required to paint only the covers not previously painted. Thus, the units with a factory finish were not required to be painted. The court finds that Valentine is entitled to an extra $5,738.04 for this issue, since these existing heat conductors had a paint finish.
ISSUE: PAINTING OF SECOND COAT OF INTERIOR OF EXISTING WINDOWS
Valentine contends that it was directed by defendants to paint a second coat of paint on existing interior windows and that it incurred an additional expense of $8,067.10. Defendants contend that only one coat was applied and the specifications required two. The court finds that Valentine has proven by a preponderance of the evidence that two coats of paint were applied to this area, which is an interior area. The specifications for interior work required only one coat. The court finds that Valentine is entitled to the amount of $8,067.10 on this issue.
ISSUE: REMOVAL OF BRACKETS AND PATCH HOLES ON EXISTING WINDOWS
Valentine contends defendants chose not to reuse brackets and it was not required to patch holes, which resulted in an additional cost of $1,247.40. Defendants contend that this work was in the scope of Valentine's contract and the holes were not patched. The court finds that Valentine has not proven by a preponderance of the evidence that the patching was outside the scope of the contract.
ISSUE: ADDITIONAL COST FOR UNTIMELY AND MULTIPLE SELECTIONS OF VINYL, PAINT AND ADHESIVE
Valentine contends that it incurred an extra $7,307.48, since defendants requested different door colors, multiple selections for vinyl, and it had to use a different adhesive than was specified. Valentine further contends that the untimely selections resulted in delays in ordering, which incurred increased cost for the material. Defendants contend that out of the five hundred doors, nineteen colors were not excessive and the additional labor is unjustified. The court finds that although the selections were untimely, this expense was allowed under the increased-cost-of-materials issue. Furthermore, the selections were not multiple considering the number of doors.
ISSUE: EXTRA PAINTING OR VINYL IN FIVE ROOMS
Valentine contends that Rooms 102, 107, 191, 365A, and 408 were required by defendants to either have extra painting and/or vinyl. The court finds that defendants directed that these rooms have additional painting or vinyl wall covering. The court finds that Valentine is entitled to the amount of $1,099.13.
ISSUE: REPAINTING EXISTING WINDOW FRAMES
Valentine contends that when defendants removed frosted glass and installed clear glass in windows, which had previously been bathroom windows, this change resulted in Valentine's incurring an extra expense of $2,663.20 to repaint the existing window frames. Defendants contend that there is no evidence that this was requested by defendants. The court finds that Valentine is entitled to an extra $2,663.20 on this issue as the work was directed to be done by the defendants or their agents.
ISSUE: REPAINT/REPAIR VINYL
Valentine contends that damage to walls required repainting or repairing of the vinyl at an additional expense of $7,023.08. Defendants contend that it was other prime contractors that damaged the walls and defendants are not responsible. The court finds that the repainting and repairing was at defendants' direction, and it was beyond Valentine's contract to control the other contractors or charge them for damage. The court finds that Valentine is entitled to $7,023.08 on this issue.
ISSUE: WALL REPAIRS WHERE DRYWALL REMOVED
Valentine contends it incurred an extra expense of $544.29 at defendants' direction to repair the walls where drywall was removed. Defendants contend Valentine presented no evidence on this issue. The court finds that the Valentine has not proven that the defendants issued such a directive.
ISSUE: CONCRETE TESTING ALLOWANCE
Valentine contends that it is due $4,058.16. Defendants assert that Valentine is owed only $3,513.73, since no overhead and profit is allowed on this issue. The court finds that Valentine is due $4,058.16 on this item.
ISSUE: MONORAILS AND HOIST
Valentine contends only $8,000 was allowed for this allowance. Since it did not know the extent of what was to be installed, Valentine was unable to figure in the cost of labor. Valentine contends it is due $6,030.45. Defendants contend that Valentine is not due overhead and profit on labor and that it is entitled only to overhead and profit of any material ordered. The court finds that the contract documents were lacking specificity to determine what was to be installed for the monorail and hoist. Valentine had no basis on which to estimate labor costs. The court finds that Valentine is entitled to $6,030.45 on this issue.
ISSUE: SHELVING AND PAINTING IN THE CHEMICAL BUNKER
Valentine contends no details were provided on the shelving in the chemical bunker and no indication was given as to the painting of the chemical bunker. Defendants contend that the drawings were sufficiently detailed that Valentine should have installed the shelves. Defendants further contend that specifications require the chemical bunker to be painted. The court finds that the drawings did not detail what shelves were to be in the chemical bunker. The court finds for Valentine on this issue in the amount of $489.
ISSUE: EXTENDED CONDITIONS, DELAYS, PAY INCREASES
Valentine contends that this is a coordination issue and the state was to coordinate the project. Valentine asserts that it requested extensions of time on the project. Valentine further contends that the drawings had omissions of dimension, conflicts and errors which caused delays in the project. Valentine also contends that delays were caused by the other primes having a shortage of manpower, problems with cleanup, temporary lighting, delayed color selections, and poor coordination in administration of the contract by the defendants.
Valentine finally asserts that the defendants controlled the money, and only they had the authority to keep the project progressing as scheduled.
Defendants contend that these delays were caused by Valentine, who had the responsibility to coordinate the project.
The court finds that Valentine scheduled the contract to be completed within approximately eighteen months. All of the prime contractors agreed to this progress schedule. The defendants wanted possession as soon as possible and were very pleased with the proposed progress schedule. Furthermore, such a progress schedule would permit time to handle delays and problems that would undoubtedly develop on such a substantial job. A responsible contractor should never schedule a contract to be completed on the final month when the contract calls for a penalty if the job is not completed within the contract's completion date. However, problems resulting from the drawings, lack of job drawings, inadequate manpower by some of the prime contractors, failure to timely produce a color schedule, as well as many changes, caused substantial delay in this project.
Regular progress meetings were held biweekly. The purpose of these meetings was to coordinate and plan the progress of the job and resolve developing problems. These meetings were chaired by Trautwein. He was responsible for producing the minutes of each meeting. Unfortunately, the minutes were very sketchy, incomplete and sometimes not accurate. Trautwein refused to use a recording device, as requested by Valentine, because of the opposition of some of the other prime contractors.
Lack of coordination and cooperation between prime contractors was a constant problem that was never resolved. Trautwein's position was that the contractors had a responsibility to work out their own problems. The net result was that little was accomplished and the job was delayed.
While Valentine had a responsibility to coordinate the activities between the prime contractors, Valentine had no authority to enforce compliance. Only OU and DAS had the authority to take decisive action to correct problems resulting from the failure of other prime contractors to keep their work up-to-date. For example, the electrical contractor constantly failed to man the job properly, and all of the other contractors were adversely affected. However, Trautwein and DAS failed to terminate the electrical contractor or order him to staff the job with proper manpower and enforce compliance. Also, Trautwein and DAS realized a termination of a prime contractor may result in a lawsuit being filed against the state of Ohio, which they wanted to avoid. However, by not taking decisive action, DAS and Trautwein caused substantial damage to Valentine and the other contractors.
The funds for Stocker were appropriated by the General Assembly for OU. Representatives of OU were on the job on a daily basis. OU selected the architect from a list provided by DAS, and even recommended the on-site representative for the architect. The color schedule for the interiors was prepared by OU. All plans and changes were reviewed by OU, and it issued orders on the job to Valentine.
Trautwein had approved Sherwin Williams Paint Products, but at the request of OU, such approval was withdrawn. As Trautwein testified, he considered OU to be his client and he did whatever OU requested. Additionally, the contract documents for the Stocker project provide that OU's Facilities Planning Office was to be the construction coordinator.
This court has previously held that the state has no absolute duty to terminate a construction contract. States Elec. Co. v. Ohio Dept. Adm. Serv. (June 2, 1978), Ct. of Cl. No. 86-0525, unreported; Nova v. State (July 27, 1977), Franklin App. No. 76AP-221, unreported. However, other decisions have indicated that the state is responsible to provide the contractor with the site. Visintine Co. v. New York, Chicago St. Louis Rd. Co. (1959), 169 Ohio St. 505, 9 O.O.2d 4, 160 N.E.2d 311. Thus, a contractor can recover against the state for the state's failure to coordinate the project if this failure amounts to the state's inability to provide the contractor with a building site.
The state was the only party that could force contractors to clean up, provide temporary lighting, direct the architect to provide timely answers to questions, and force contractors to add more manpower to the job. All of this can be construed as the state's duty to provide Valentine with a site in which it could work.
It has been recognized that the contractor must prove a delay, that the delay was caused by the state, and that damage resulted. Backus Assoc., Inc. v. Ohio Dept. of Natural Resources, (1976), 47 Ohio Misc. 11, 1 O.O.3d 211, 352 N.E.2d 663. In the case at bar, Valentine has clearly proven that it was not the cause of any delay. DAS and OU were the only ones in control who could have prevented the delay. Certainly, this delay was beyond Valentine's control and the state's inaction was the direct and proximate cause of the resulting damages to Valentine. The state had representatives on the site daily and the contract documents gave it the authority to act when problems developed. The state chose not to act and this decision resulted in the job's going past the completion date. This resulted in an expense that should not be the responsibility of Valentine. Valentine timely sought extensions on the contract completion date which were never responded to by the defendants.
The amount of $75,028.45 represents Valentine's extended job conditions and pay increases for its workers. Extended job conditions costs include job supervision cost, insurance cost, lodging for Valentine's employees, telephone bills, and other office administration costs as a result of Valentine's being on the job after the contract completion date.
The amount of $51,074.99 represents the amount Arthur Painting incurred as a result of extended job conditions and pay increases. Finally, the amount of $80,150 represents the amount that Hammond Construction incurred as a result of extended job conditions and pay increases. All of these costs were incurred by Valentine and its subcontractors as a direct result of the contract's going beyond the contract completion date. Therefore, the court finds for Valentine on the delay issue in the amount of $206,253.44.
Valentine has proven by a preponderance of the evidence that it is entitled to a judgment in the amount of $400,118.73 plus interest. Of this amount, $193,865.29 represents the amount Valentine has proven it is due for extras on the job and $206,253.44 represents the amount Valentine is due for extended job conditions and pay increases.
As to the apportioning of the judgment between the two state defendants, R.C. 2743.19(A) states:
"In rendering a judgment against the state, the court of claims shall determine and specify in the judgment the department, office, commission, board, agency, institution, or other instrumentality of the state against which a determination of liability has been made."
Therefore, the court must determine and apportion liability between the two state defendants, DAS and OU.
DAS's supervision and involvement in state projects is set forth in R.C. 123.01, which states in part:
"(2) To have general supervision over the construction of any projects, improvements or public buildings constructed for a state agency * * *;
"(3) To make contracts for and supervise the construction of any projects and improvements or the construction and repair of buildings under the control of a state agency * * *."
OU controlled the Stocker project as the sponsoring agency and owner. OU selected the architect, had a coordinator on the project and made selections of necessary items.
The Tenth District Court of Appeals has recognized that the Director of DAS could be acting as an agent for the board of trustees of a university in the supervision and construction of a building in which the university would be the owner. John P. Novatny Elec. Co. v. State (1975), 46 Ohio App.2d 255, 258, 75 O.O.2d 412, 414, 349 N.E.2d 328, 330-331. In the case at bar, DAS was acting as the statutory agent for OU. Therefore, the court finds OU is responsible for the entire judgment amount and judgment will be granted in favor of DAS.
There remains the issue of interest to be awarded. R.C. 2743.18(B) indicates that interest upon a judgment rendered is provided in R.C. 1343.03, i.e., ten percent. Valentine has sought prejudgment interest and the provision for prejudgment interest as set forth in R.C. 2743.18(A) is not nearly as precise. That provision states merely that "judgment interest shall be allowed with respect to any civil action on which a judgment or determination is rendered against the state for the same period of time and at the same rate as allowed between private parties to a suit." This subsection is sufficiently broad as to allow an award of prejudgment interest based upon whatever rate the parties may have agreed to by contract or otherwise. Where, as here, interest was neither calculated nor charged, the court must determine the rate of interest that prevailed among "private parties to a suit."
R.C. 126.30(A) and (E) require that whenever an agency fails to make payments on its obligations, it shall be required to pay interest from the time of default as calculated pursuant to R.C. 5703.47. That provision states as follows:
"(B) On the fifteenth day of October of each year, the tax commissioner shall determine the federal short-term rate. For purposes of any section of the Revised Code requiring interest to be computed at the rate per annum required by this section, the rate determined by the commissioner under this section, rounded to the nearest whole number per cent, plus three per cent shall be the interest rate per annum used in making the computation for interest that accrues during the following calendar year."
The rates established by the Tax Commissioner on October 15 of each year, plus three percent, are as follows: 1985 — nine percent; 1986 — eight percent; 1987 — ten percent; 1988 — ten percent; 1989 — eleven percent; 1990 — eleven percent; and 1991 — eleven percent. Therefore, the amount of prejudgment interest applicable in this case shall be calculated, and will be awarded pursuant to these rates for each period, beginning and ending on October 15. Valentine will be granted a judgment in the amount of $710,252.36.
OU COUNTERCLAIMS ISSUE: UTILITIES
Defendants contend the specifications required the general contractor to pay for the utilities and Valentine owes $97,152.45. Additionally, defendants contend that Valentine is not being billed beyond July 1, 1985. However, Valentine contends it is liable for $23,569.43 for the utilities. Valentine further contends that it is not liable for any of the utilities used beyond the completion date and that OU had agreed to the $23,569.43.
The court finds that the documentation entered at trial proves that OU had agreed to settle this dispute for $23,569.43 well before the completion of the project. After the completion of the project and as disputes arose, defendants claimed that Valentine owed more for the utilities. The court further finds that not all the utilities could be metered as required by the specifications. Thus, it would be difficult to assess exactly what Valentine owed.
Furthermore, Valentine had no control over the utilities and testimony proved the heat was both excessive and wasted. It would therefore be improper to assess the entire cost of the utilities to Valentine. The court finds for the defendants in the amount of $23,569.43.
ISSUE: FACE BRICK ALLOWANCE
The parties agree that defendants are due a $598 credit. Therefore, the court finds defendants are entitled to $598 on this issue.
ISSUE: REINFORCING STEEL ALLOWANCE
The parties agree that defendants are due $3,000 on this credit on this issue. Therefore, the court finds that defendants are entitled to a $1,000 credit on this issue.
ISSUE: T-BAR CREDIT
Defendants contend that there was a problem between Hammond and Jess Howard Electric Co., and that OU is due a credit, but $1,500 is inadequate. Valentine contends that since the electrician installed unistrut supports for the light fixtures, it will credit defendants with $1,500 on this item. The court finds that defendants are entitled to a $1,500 credit on this issue.
ISSUE: THREE DOGWOOD TREES
The parties agree that defendants are due $300. The court finds defendants are entitled to a $300 credit.
ISSUE: DRYWALL IN DISTILLATION TOWER
Defendants contend that Trautwein gave the instructions on how to hang the drywall. Defendants further contend that the credit offered from Valentine of $2,631 is too low and they want replacement costs. Valentine contends there was no support shown on the drawings to hand the drywall in Room 018A, the distillation tower. Valentine further contends that the credit it offered defendants is adequate. The court finds that defendants are entitled to a credit of $2,631 on this item.
ISSUE: TOPSOIL TESTING
Defendants contend they are due a credit of $133 and they did not waive the need for the topsoil testing. Valentine contends that there was no need to test the soil, since the existing topsoil was stripped at the beginning of the project and later reused. Valentine further contends that this issue was raised only after the close of the project and it was not on the punch list. The court finds that defendants are not entitled to a credit for this item. Defendants offered no evidence to indicate they were damaged by the omission of the topsoil testing.
ISSUE: TREE GRATES AND GUARDS
Defendants contend that there were still two grates and guards to be installed and that they are entitled to the replacement cost of $4,218. Valentine contends a drawing which was issued on March 15, 1988, eliminated two tree grates and guards. A subsequent addendum was issued on March 17, 1988, also eliminating two additional tree grates and guards. The court finds that defendants have not proven by a preponderance of the evidence that they are entitled to $4,218 on this issue and that the conflicting drawings and addendums should be construed in the light most favorable to Valentine.
ISSUE: REPLACEMENT OF DAMAGED LIMESTONE COLUMNS
Defendants contend that the columns were delivered defective and the chips are between one and two inches and they are due at least $7,387. Valentine contends that some of the chipping of the limestone columns occurred after it had left the building and therefore it is not responsible for the chipping of the limestone columns. Valentine asserts that it does not know who chipped the columns and it would be absurd to replace the columns with only minor defects. The court finds that defendants have not proven by a preponderance of the evidence that the columns were delivered in a defective condition or improperly installed.
ISSUE: TRIM FOR METAL DECKING
Defendants contend the specifications include the trim and they are due $636. Valentine contends that the trim for the metal decking was not included in the contract. The court finds that the trim for the metal decking had to be installed during the concrete pour. The defendants and the associate architect had representatives on site during the concrete pour and never made any complaint or request any trim to be included when it was possible to include at a very low cost. It is not clear from the specification that the trim is required. The court finds that Valentine is not responsible for the omission.
ISSUE: LINSEED OIL TREATMENT OF COOPER GUTTERS
Defendants contend that they are entitled to $36,876 on this issue. Valentine contends that it treated the copper gutters as specified in the specifications. Witnesses testified that the copper was treated and the price submitted to treat the copper was more than the cost to replace it. The court finds that the copper gutters were treated and the coloration of the copper is as specified. The court finds that defendants failed to prove this claim.
ISSUE: SPRAY-ON FIREPROOFING
Defendants contend that the structural steel and the distillation tower are not fireproofed, and that all exposed steel was to be fireproofed according to the specifications. Valentine contends an addendum reduced the spray-on fireproofing to bar joists only. The court finds that defendants are entitled to $2,651 on this issue.
ISSUE: VINYL STAIR TREADS AND RISERS
Defendants contend that they requested samples for rubber treads and risers and the omission of this item should result in a credit of $19,909. Valentine contends that the vinyl treads and risers were not on the drawings and that specifications for vinyl stair treads and risers refer to drawings. The court finds that a request for samples of something not clearly specified in the drawings comes after the fact and bears no weight on the resolution of the issue. This is another example of the specifications and the drawings being in conflict. When the specifications state "refer to drawings," the court will look to the drawings. The stair treads and risers were not shown on the drawings. Therefore, the court finds Valentine was not required to install the stair treads and risers.
ISSUE: TACK BOARD IN ROOM 163
Defendants contend that they are due the cost of labor and the cost of a tack board in Room 163. Valentine contends it turned over to OU at the completion of the project all items not installed. The court finds that Valentine turned over the tack boards at the end of the project. However, defendants are entitled to $76 for labor costs on this issue.
ISSUE: ACCENT TILE ON SECOND- AND THIRD-FLOOR LABORATORIES
Defendants contend that the only tile turned over was ground floor tile, and they request replacement cost to install accent tile on the second- and third-floor laboratories. Valentine contends that the color schedule issued showed no accent tile on the second- and third-floor laboratories. Valentine further contends that any accent tile was turned over to OU. The court finds that defendants have not proven by a preponderance of the evidence that Valentine did not comply with the drawings and specifications on this issue. Furthermore, the court finds that Valentine had turned over accent tile and it would be absurd to allow replacement cost on this issue.
ISSUE: EXPANSION JOINT COVERS
Defendants contend that they did not approve of the repair of the terrazzo floor and that they are due a credit for the missing expansion covers. Valentine contends that the installation of a cove base on the terrazzo floor was at the direction of Trautwein. Valentine further contends any area where expansion joint covers were omitted was also at the direction of Trautwein. Valentine maintains that it installed expansion joints and covers in doorways and in hallways as directed. The court finds that the drawings are in conflict as to whether a straight base or a cove base should be installed along the terrazzo floor. The court further finds that Valentine is not responsible for the conflicts in the drawings and Valentine performed as directed by Trautwein. Thus, defendants are not entitled to any credit on this item. As to the expansion joint covers, testimony revealed that Valentine omitted these at the direction of defendants or their agents.
ISSUE: PLASTERBOARD SOFFIT BACKS
Defendants contend they are due a credit for the omission of plasterboard soffit backs and that the drawings specify drywall on the back of these soffits. Valentine contends that defendants authorized the omission of the soffit backs and this is a trade-off item. The court finds for Valentine on this issue.
ISSUE: CEILING IN ROOM 031A
Defendants contend that Room 031A was specified to receive a ceiling. Valentine contends that no ceiling was specified on the drawings in Room 031A. The court finds that on the reflective ceiling plan, no ceiling is called for in Room 031A. Thus, Valentine was not required to install a ceiling in Room 031A.
ISSUE: BATT INSULATION IN ATTIC
Defendants contend that the drawings specified that the batt installation was to be installed in the attic. Valentine contends that this was a trade-off item and, alternatively, defendants are not entitled to the cost asserted but only the actual cost of installation. The court finds that defendants are entitled to $.50 per square foot on this item. Thus, 23,788 square feet times .50 = $11,194.00, which is the amount due OU.
ISSUE: REPAIR CRACK IN ROOM 294
Defendants contend that the cracking was caused by faulty workmanship in the installation of expansion joints. Valentine contends that this is a preexisting wall and they are not responsible for the crack in Room 294. The court finds that defendants have not proven by a preponderance of the evidence that the cracking was caused by faulty workmanship.
ISSUE: FIRE-RATED PARTITIONS ABOVE GROUND FLOOR CEILING
Defendants contend that they are entitled to credit of $1,621 on this issue. Valentine contends that the plans specify masonry for this area and that a change in the scope of work made it impossible to install as shown in the plans. The court finds that Valentine complied with the drawings and it is not responsible for impossibilities. The change in the HVAC, at the direction of defendants and their agents, caused this problem and this was beyond Valentine's control.
ISSUE: RELAYING MARBLE CORNERS IN MAIN HALL
Defendants contend that this issue falls under the warranty. Valentine contends that defendants had not given it an opportunity to respond, and that OU tried to correct a lamination problem which caused the marble corner problem. The court finds that defendants have failed to prove that Valentine was responsible for this problem.
ISSUE: OMISSION OF CAULKING BETWEEN PLUMBING FIXTURES, ADJACENT WALLS AND COUNTER TOPS
Defendants contend that caulking was omitted between plumbing fixtures, adjacent walls and counter tops. Valentine contends that its supervisor personally performed this task and that this item was not omitted nor was the item on the punch list. The court finds that defendants have not proven by a preponderance of the evidence that this item was omitted.
ISSUE: OMISSION OF OVERHEAD DOOR STOPS
Defendants contend that overhead door stops were omitted. Valentine contends that its supervisor personally performed this task and it was not on the punch list. The court finds that defendants have not proven by a preponderance of the evidence that this item was omitted.
ISSUE: CREDIT FOR OMISSION OF LIFTING EYE
Defendants contend that they are due a credit for the omission of lifting eye. Valentine contends no details were shown on how to install the lifting eye and that it was not on the final punch list. The court finds that since this item was not on the final punch list, this item would have been waived. Furthermore, this $50 item should have been installed at the time of the project and was not brought up until after the project was completed.
ISSUE: TREE PROTECTION
Defendants contend that snow fencing should have been provided to protect the trees. Valentine contends there were no damaged or killed trees. The court finds that any omissions should have been brought up at the time of the project and that defendants have not proven by a preponderance of the evidence that they have suffered any loss due to any alleged omission.
ISSUE: HERBICIDE
Defendants contend they are entitled to a credit for this item. Valentine contends that this issue was not raised until after the close of the project. The court finds that defendants have not proven by the preponderance of the evidence that this item was omitted, and, if omitted, this item would have been waived since it should have been raised at the time of the project.
Defendants have failed to prove by a preponderance of the evidence that they are entitled to anything in excess of $68,953.83 plus interest on their counterclaims. Defendants will be granted judgment in the amount of $122,433.20, which includes prejudgment interest pursuant to R.C. 1343.03.
The $167,506.95 held in escrow shall be released to satisfy the judgments in this case.
JUDGMENT ENTRY
This action came on for trial between September 24, 1990 and January 29, 1991. Upon consideration of all the evidence and for the reasons set forth in the decision rendered concurrently herewith, it is ORDERED and ADJUDGED that plaintiff recover $710,252.36 from the defendant Ohio University.
Judgment is hereby GRANTED in favor of DAS on the plaintiff's complaint.
Defendant Ohio University shall recover $122,433.54 on its counterclaim. The $167,506.95 held in escrow shall be released to satisfy the judgments in this case. Court costs are assessed against defendant, Ohio University. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
So ordered.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.