Cleveland Constr., Inc. v. Ruscilli Constr. Co., Inc. , 2023 Ohio 363 ( 2023 )

[Cite as Cleveland Constr., Inc. v. Ruscilli Constr. Co., Inc., 2023-Ohio-363.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Cleveland Construction, Inc., :
Plaintiff-Appellant, :
No. 18AP-480
v. : and
No. 21AP-375
Ruscilli Construction Co., Inc. et al., : (C.P.C. No. 16CV-798)
Defendant-Appellee. : (REGULAR CALENDAR)
:
D E C I S I O N
Rendered on February 8, 2023
On brief: Daniel R. Wireman, Dinsmore & Shohl LLP, Peter
J. Georgiton, and Joshua M. Cartee, for appellant. Argued:
Peter J. Georgiton.
On brief: Ruscilli Construction Co., Inc., Andrew Fredelake,
Porter Wright, Morris & Arthur LLP, J. Thomas Nocar, and
Ryan Sherman, for appellee. Argued: J. Thomas Nocar.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Plaintiff-appellant, Cleveland Construction, Inc. ("Cleveland"), appeals from
the decisions of the Franklin County Court of Common Pleas denying Cleveland's motion
to partially vacate an arbitration award and granting post-judgment attorneys' fees, costs
and interests favor of defendant-appellee, Ruscilli Construction Co., Inc. ("Ruscilli"). For
the reasons that follow, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Nos. 18AP-480 & 21AP-375 2
{¶ 2} This appeal arises out of a subcontract for a construction project at the
Goodale Landing Building in Columbus, Ohio. The structure is owned by Ohio Presbyterian
Retirement Services Communities ("OPRS"). Ruscilli and Cleveland were hired as the
project's general contractor and metal stud and drywall subcontractor, respectively. On
February 17, 2014, Ruscilli and Cleveland entered into a subcontract for Cleveland's work.
During the course of the project, disputes about performance under the agreement arose
between Ruscilli and Cleveland.
{¶ 3} Eventually, Cleveland brought claims of breach of contract, violation of the
Ohio Prompt Payment Act, foreclosure, and unjust enrichment against Ruscilli. (Jan. 25,
2016 Compl.) Cleveland alleged that Ruscilli required Cleveland to perform "additional
work outside the scope" of the parties' agreement, "failed to properly manage the
construction schedule," and caused delays and inefficiencies on the project. Id. at ¶ 9-13.
Additionally, Cleveland alleged that Ruscilli did not pay Cleveland for all of its completed
work. Id. at ¶ 15. Consequently, Cleveland filed a mechanic's lien on the construction
project to protect its interests. Id. at ¶ 17.
{¶ 4} Pursuant to Article 6 of the parties' Subcontractor Agreement, which requires
arbitration of "[a]ny claim arising out of or related to" it, the parties submitted their claims
to binding arbitration before a three-arbitrator panel ("Panel"). Id., Ex. A at 8. After a nine-
day arbitration hearing from April 24 to May 5, 2017, the Panel issued an interim
arbitration award, disposing of all of Cleveland's claims and Ruscilli's counterclaims.
(Nov. 21, 2017 Mot. to Partially Vacate, Ex. 3 hereinafter "Interim Arbitration Award"). The
Panel concluded that Cleveland was entitled to an award of $102,271.59, inclusive of pre-
judgment interest as of June 12, 2017, with interest accruing at $10.82 per day thereafter
Nos. 18AP-480 & 21AP-375 3
until payment. Id. at 18. Additionally, the Panel directed Cleveland to release its
mechanic's lien and bond claim upon Ruscilli's payment of the interim award. Id.
{¶ 5} In addition to damages related to the contract balance, both Cleveland and
Ruscilli made claims for attorneys' fees and costs. For several reasons, the Panel
determined that Cleveland was not entitled to an award. The Panel noted that, based on its
findings, Ruscilli "had a good-faith basis to withhold funds from" Cleveland. Id. at 16. The
Panel also referenced its findings when rejecting Cleveland's assertion that Ruscilli had
been "vexatious and unreasonable in prosecuting its claims," while nevertheless stating
that:
the Panel acknowledges and agrees that some of the tactics
employed by [Ruscilli] and its counsel, specifically the late
detailing of its damages, caused problems for [Cleveland's]
legal team. The Panel has determined [that Cleveland] had the
ability and opportunity to ameliorate any problem created by
this late identification through a request for a continuance but
chose not to do so.
Id. at 16.
{¶ 6} Thus, the Panel concluded that Cleveland was "not entitled" to an attorney
fee award. Id.
{¶ 7} Regarding Ruscilli's claim for attorneys' fees and costs, the Panel found that
Section 4.6.3.2 of the parties' agreement supported an award. Id. at 17. The Panel stated
that "[t]he Parties are two sophisticated commercial entities that entered into a negotiated,
lengthy Subcontract agreement that included several specific provisions that shifted the
risk of [Ruscilli's] attorneys' fees and costs onto [Cleveland] in any dispute between the
Parties." Id. at 16. Accordingly, the Panel directed Ruscilli to file a petition for attorneys'
fees and costs and allowed Cleveland the opportunity to respond. Id. at 17.
Nos. 18AP-480 & 21AP-375 4
{¶ 8} After reviewing the parties' briefing on the issue, the Panel found that Ruscilli
was entitled to recover from Cleveland $624,087.45 in attorneys' fees, costs, and expenses.
(Nov. 21, 2017 Mot. to Partially Vacate, Ex. 5.) The combined effect of the interim
arbitration award and the final arbitration award was a net award to Ruscilli of
$521,885.34.
{¶ 9} On the same day the Panel issued the final arbitration award, Cleveland filed
suit against OPRS, asserting a claim of tortious interference with a contractual relationship.
Based on its finding that the "cases stem from the same construction project and involve
substantially similar parties and related issues," the trial court ordered the cases to be
consolidated. (Apr. 20, 2018 Decision & Entry.) The trial court also ordered "all future
filings" to "be filed in both cases," based on its Local Rule 31.02(E)(2). Id.
{¶ 10} Cleveland also filed a motion under R.C. 2711.10 in the trial court to partially
vacate the arbitration award, arguing that the Panel exceeded its authority by ignoring a
notice provision under Article 3.3.2.2 of the parties' subcontract. (Nov. 21, 2017 Mot. to
Partially Vacate Arbitration Award.) The trial court rejected Cleveland's argument and
denied the motion, noting that the language Cleveland had cited to support its argument
actually applied to the Panel's ruling on attorneys' fees. (May 15, 2018 Decision & Entry at
7.)
{¶ 11} As the litigation continued, Ruscilli filed several motions to increase its award
of post-judgment attorney fees, costs and interest. (June 1, 2018 Petition for Post-Jgmt.
Attorneys' Fees, Costs, and Interest; Oct. 14, 2019 Second Supp.; Mar. 18, 2020 Third
Supp.) Because Cleveland had not released its mechanic's lien as the arbitrators ordered,
Ruscilli claimed that it had incurred an additional $12,223 in bond premium payments per
Nos. 18AP-480 & 21AP-375 5
year. Id. at 3. Ruscilli also claimed additional attorneys' fees arising from Cleveland's filing
of the case against OPRS. Id. at 5.
{¶ 12} After a hearing, a magistrate concluded that Ruscilli was entitled to recover
the following from Cleveland: (1) post-judgment interest on the unpaid arbitration award
in the amount of $59,006.45 as of March 18, 2020; (2) post-judgment attorney fees in the
amount of $86,805.96 as of March 18, 2020; and (3) bond premium costs in the amount
of $36,669 for 2018, 2019, and 2020 on the unreleased mechanic's lien. (June 8, 2020
Mag.'s Decision at 27.) Cleveland filed objections to the decision, but the trial court
overruled them and adopted the magistrate's decision. (June 30, 2021 Jgmt. Entry.)
{¶ 13} Cleveland has appealed and asserts the following assignments of error:
[I.] THE TRIAL COURT ERRED IN FAILING TO VACATE
THE PORTION OF THE ARBITRATION AWARD IN FAVOR
OF RUSCILLI CONSTRUCTION, INC.
[II.] THE TRIAL COURT ERRED IN CONCLUDING THAT
RUSCILLI CONSTRUCTION IS ENTITLED TO ITS POST-
ARBITRATION ATTORNEYS' FEES.
[III.] THE TRIAL COURT ERRED IN CONCLUDING THAT
RUSCILLII CONSTRUCTION IS ENTITLED TO
ATTORNEYS' FEES FOR MONITORING ACTIVITY IN A
CASE TO WHICH IT WAS NOT A PARTY.
[IV.] THE TRIAL COURT ERRED IN CONCLUDING THAT
RUSCILLI CONSTRUCTION IS ENTITLED TO ITS BOND
PREMIUM PAYMENTS.
II. STANDARD OF REVIEW
{¶ 14} A mixed standard of review applies to appellate review of a trial court's
decision review of an arbitration award under R.C. 2711.10: "when reviewing a decision of
a common pleas court confirming, modifying, vacating, or correcting an arbitration award,
an appellate court should accept findings of fact that are not clearly erroneous but decide
Nos. 18AP-480 & 21AP-375 6
questions of law de novo." Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators'
Assn. for Dev. Disabilities, 153 Ohio St.3d 219, 2018-Ohio-1590, ¶ 26. Furthermore, "[t]he
question whether an arbitrator has exceeded his authority is a question of law." Id. at ¶ 25,
quoting Green v. Ameritech Corp., 200 F.3d 967, 974 (6th Cir.2000).
{¶ 15} The trial court's decision to award post-arbitration attorney fees will be
reviewed under an abuse of discretion standard. Bittner v. Tri-County Toyota, Inc., 58
Ohio St.3d 143, 146 (1991). However, its interpretation of the parties' contract as the basis
for awarding fees and bond payments is reviewed de novo. EAC Properties, L.L.C. v.
Brightwell, 10th Dist. No. 13AP-773, 2014-Ohio-2078, ¶ 9, citing Long Beach Assn. v.
Jones, 82 Ohio St.3d 574, 576 (1998).
III. ANALYSIS
{¶ 16} "Because Ohio law favors and encourages arbitration, courts only have
limited authority to vacate an arbitrator's award." Fraternal Order of Police Capital City
Lodge No. 9 v. Reynoldsburg, 10th Dist. No. 12AP-451, 2013-Ohio-1057, ¶ 22, citing Assn.
of Cleveland Fire Fighters, Local 93 v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278 ¶ 13.
See also Bd. of Trustees v. FOP, Ohio Labor Council, 81 Ohio St.3d 269, 273 (1998) ("Once
the arbitrator has made an award, that award will not be easily overturned or modified.").
R.C. 2711.10 defines the limited authority courts have for vacating an arbitration award.
Goodyear Tire & Rubber Co. v. Local Union No. 220, United Rubber, Cork, Linoleum &
Plastic Workers of Am., 42 Ohio St.2d 516 (1975), paragraph two of the syllabus (stating
that the statute "limits judicial review of arbitration to claims of fraud, corruption,
misconduct, an imperfect award, or that the arbitrator exceeded his authority").
{¶ 17} Relevant here is the ground set forth in R.C. 2711.10(D), under which a court
must vacate an arbitration award if "[t]he arbitrators exceeded their powers, or so
Nos. 18AP-480 & 21AP-375 7
imperfectly executed them that a mutual, final, and definite award upon the subject matter
submitted was not made." "An arbitrator derives his power from the parties' contract."
Professionals Guild of Ohio v. Franklin Cty. Children Servs., 180 Ohio App.3d 91, 2008-
Ohio-6682, ¶ 13 (10th Dist.). Thus, "an arbitrator exceeds his powers when the award
conflicts with the express terms of the agreement or cannot be derived rationally from the
terms of the agreement." Summit Cty. Children Servs. Bd. v. Community Workers, Local
4546, 113 Ohio St.3d 291, 2007-Ohio-1949, ¶ 13, citing Ohio Office of Collective Bargaining
v. Ohio Civ. Serv. Emp. Assn., Local 11, 59 Ohio St.3d 177 (1991), syllabus. On the other
hand, where "there is a rational nexus between the agreement and the award, and where
the award is not arbitrary, capricious or unlawful," the arbitrator's award draws its essence
from the parties' agreement and will not be vacated under R.C. 2711.10(D). Mahoning Cty.
Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio
St.3d 80 (1986), paragraph one of the syllabus.
A. First Assignment of Error
{¶ 18} In the first assignment of error, Cleveland contends that the arbitrators
exceeded their authority by not recognizing the materiality of Article 3.3.2.2 of the parties'
agreement, which required Ruscilli to provide "a written compilation -- in other words,
backup documentation" to support any claim for costs arising from Cleveland's alleged
failure to perform. (Brief of Plaintiff-Appellant at 28.) Article 3.3.2 states:
[Ruscilli's] claims for the costs of services or materials provided
due to [Cleveland's] failure to execute the Work shall require:
1. seven days' written notice prior t0 [Ruscilli] providing
services or materials, except in an emergency; and
2. written compilations to [Cleveland] of services and
materials provided by [Ruscilli] and charges for such
services and materials no later than the fifteenth day of the
Nos. 18AP-480 & 21AP-375 8
month following [Ruscilli] providing such services or
materials.
(Jan. 25, 2016 Compl., Ex. A at 5.)
{¶ 19} According to Cleveland, it is "undisputed" that Ruscilli did not comply with
this provision, which Cleveland claims was "a material term" of the parties' agreement
under IPS Elec. Servs., LLC v. Univ. of Toledo, 10th Dist. No. 15AP-207, 2016-Ohio-361.
(Brief of Plaintiff-Appellant at 28.) Citing page 16 of the Panel's decision, Cleveland states:
"The arbitration panel acknowledged that documentation detailing Ruscilli's alleged
damages was not provided until just before the hearing – long after the time required under
the subcontract." Id. at 28-29.
{¶ 20} The Panel's award provides no support for Cleveland's assertion that Ruscilli
ignored any material notice provision of the parties' agreement. The Panel stated that
Ruscilli "submitted documentation, including numerous notices of default, many of which
detailed specific defective conditions." (Interim Arbitration Award at 4.) The Panel stated
that Cleveland "provided little, if any, evidence addressing its responses to the various
[Ruscilli] notices of default which would demonstrate why those contemporaneous notices
were somehow incorrect." Id. With regard to Ruscilli's claim for nonconforming drywall,
the Panel specifically found that Ruscilli "gave proper notice entitling it to repair defective
work, complete incomplete work, and pay other trades for repairing their work caused by
[Cleveland's] actions." Id. at 6. The Panel's findings flatly contradict Cleveland's assertion
that it was "undisputed" that Ruscilli had ignored its obligation to provide notice. The
findings also demonstrate that the Panel considered such notice requirements integral to
Ruscilli's claims, thereby undermining Cleveland's argument that the Panel ignored a
Nos. 18AP-480 & 21AP-375 9
material provision of the parties' agreement, which is the entire premise of its position that
the Panel exceeded its authority under R.C. 2711.10.
{¶ 21} Moreover, the portion of the Panel's award cited by Cleveland to support its
claim that the Panel had "acknowledged" that Ruscilli had failed to comply with the notice
provision appears to refer to the activity of Ruscilli's counsel during discovery or in
preparation for the hearing, well after the period of time when Ruscilli's claims and
obligations of notice under the agreement had passed. The Panel recognized that "some of
the tactics employed by [Ruscilli] and its counsel, specifically the late detailing of its
damages, caused problems for [Cleveland's] legal team," but concluded that Cleveland
nevertheless "had the ability and opportunity to ameliorate any problem created by this late
identification through a request for a continuance but chose not to do so." (Interim
Arbitration Award at 16.) The Panel also stated that it relied on the foregoing findings to
reject Cleveland's argument that Ruscilli "was vexatious and unreasonable in prosecuting
its claims." Id. The only plausible interpretation of these events is that they occurred
during litigation, not during the construction project.
{¶ 22} Finally, as the trial court noted, this discussion appears in the context of the
Panel's analysis of whether Ruscilli was entitled to attorneys' fees, not the substance of the
parties' claims. (May 15, 2018 Decision & Entry at 7.) After its "review of the arbitrators'
award," the trial court concluded that "it did not depart from the essence of the
subcontract." Id. at 5. In this appeal, Cleveland has presented no compelling challenge to
the trial court's conclusion that the award draws its essence from the parties' agreement.
Furthermore, Cleveland has failed to identify the absence of a rational nexus between the
agreement and the award or any basis to indicate that the award was arbitrary, capricious,
Nos. 18AP-480 & 21AP-375 10
or unlawful. Accordingly, the trial court did not err by refusing to vacate the award under
R.C. 2711.10(D). The first assignment of error is overruled.
B. Second & Third Assignments of Error
{¶ 23} In its second assignment of error, Cleveland contends that the trial court
erred in concluding that Ruscilli is entitled to its post-arbitration attorneys' fees. When
awarding post-arbitration attorneys' fees to Ruscilli, the trial court relied on Article 4.6.3.2
of the Supplementary Conditions to the parties' subcontract. Article 4.6.3.2 provides:
4.6.3 To the fullest extent permitted by law, [Cleveland] shall
indemnify and hold harmless [Ruscilli] from and against
claims, damages, losses and expenses, including but not
limited to its actual attorneys' fees incurred, arising out of or
resulting from performance of Subcontract. This indemnity
shall include, but not be limited to the following:
***
4.6.3.2. The prosecution of any claim by [Ruscilli] against
[Cleveland] or an[y] of its subcontractors or suppliers for
breach of contract, negligence or defective work.
4.6.3.3. Any action, whether in prosecution or defense, relating
to or arising from the filing or removal of any mechanic's lien
filed by [Cleveland] or any of its subcontractors, suppliers, or
laborers.
4.6.3.4. The defense of any claim asserted by [Cleveland]
against [Ruscilli] whether for additional compensation, breach
of contract, negligence, or any other cause.
(June 30, 2021 Jgmt. Entry at 5.)
{¶ 24} Cleveland argues that "post-arbitration proceedings do not 'arise out of or
result from performance of the Subcontract' " as stated in Section 4.6.3, and that the
provision does not specifically "provide for the recovery of fees in post-judgment
proceedings." (Brief of Plaintiff-Appellant at 35.) Cleveland also argues that the
description of "any claim * * * for breach of contract, negligence, or defective work" limits
Nos. 18AP-480 & 21AP-375 11
the indemnification the fee-shifting clause otherwise provides. Id. at 37. Cleveland does
not challenge the reasonableness of the fee amount as calculated, but whether the
agreement itself authorizes them.
{¶ 25} The default "American Rule" requires each party to pay its own attorney fees
in litigation, but three exceptions to the rule exist: a statute authorizing attorney fees, a
finding of bad faith conduct by one party, or a fee-shifting provision in the parties'
agreement. Orth v. State, 10th Dist. No. 14AP-937, 2015-Ohio-3977, ¶ 12. In this case, the
parties' agreement contains a fee-shifting provision in favor of Ruscilli.
{¶ 26} When applying this provision, the trial court did not abuse its discretion by
awarding Ruscilli attorney fees in post-arbitration proceedings challenging the arbitrator's
award. The agreement broadly required Cleveland to indemnify Ruscilli "from and against
claims, damages, losses and expenses, including but not limited to its actual attorneys' fees
incurred, arising out of or resulting from performance of Subcontract." This language does
not limit the indemnification to arbitration proceedings. Parties may expressly contract to
limit attorney fees to arbitration, but that is not the case here. For example, in Handel's
Ent. v. Wood, 7th Dist. No. 04 MA 238, 2005-Ohio-6922, ¶ 106, a party unsuccessfully
moved the trial court for attorney fees incurred during the post-arbitration confirmation
proceeding, citing a fee-shifting provision stating that the "costs and expenses of
arbitration, including the fees of the arbitrators, shall be borne by the losing party or in such
proportions as the arbitrators shall determine." The Seventh District affirmed the decision
refusing to award attorney fees, noting that "the words 'costs and expenses of arbitration'
only address the arbitration and not the confirming of that arbitration award." Id. at ¶ 107.
Here, the parties' agreement placed no similar limitation on Cleveland's obligation to
indemnify Ruscilli.
Nos. 18AP-480 & 21AP-375 12
{¶ 27} Nor do the subsections following the main indemnification clause limit its
scope, as Cleveland suggests. They are introduced by stating that Cleveland's "indemnity
shall include, but not be limited to," the examples provided, which do not limit the scope of
indemnity. Cleveland believes they should be limited, citing the "principle of construction
known as ejusdem generis [that] requires that a general phrase following an enumeration
of specific items includes only things of the same nature as those items which were
specified." Direct Carpet Mills Outlet, Inc. v. Amalgamated Realty Co., 10th Dist. No.
87AP-101, 1988 Ohio App. LEXIS 3349, *8 (Aug. 11, 1988). However, "while firmly
established as an interpretive rule, the ejusdem generis rule 'is only an instrumentality for
ascertaining the correct meaning of words when there is uncertainty.' " Gabbard v.
Madison Local School Dist. Bd. of Edn., 165 Ohio St.3d 390, 2021-Ohio-2067, ¶ 27, quoting
United States v. Powell, 423 U.S. 87, 91 (1975). Cleveland does not argue that the language
is ambiguous. Like the trial court, we consider it clear.
{¶ 28} In addition, the language of the indemnification does not contain a general
phrase following an enumeration of specific items such as the language discussed in Direct
Carpet Mills Outlet, Inc., which concerned an insurance exclusion defined as "damages for
water, fire, explosion, wind or accident of any kind" and limited the exclusion to " things
similar in nature to fire, explosion, and wind," excluding negligence. Direct Carpet Mills
Outlet, Inc. at *8. In contrast, the first paragraph of the parties' indemnification provision
expressly states that "indemnity shall include, but not be limited to" the examples that
follow. Brown v. Creative Restaurants, Inc., W.D.Tenn. No. 11-2710-STA-cgc, 2013 U.S.
Dist. LEXIS 189927, *15 (Feb. 19, 2013) (holding that esjudem generis did not apply where
unambiguous statute prefaced examples with the phrase "including without limitation").
Nos. 18AP-480 & 21AP-375 13
Thus, even if the agreement were ambiguous, we are not convinced that the canon of
construction Cleveland points to would apply.
{¶ 29} As the trial court noted, once Cleveland filed the motion to vacate the
arbitration award, "Ruscilli necessarily needed to defend the[] claims by Cleveland" to
defend the award. (June 30, 2021 Jgmt. Entry at 6.) The trial court did not err when
concluding that the provision required it to indemnify Ruscilli for attorneys' fees incurred
in the post-arbitration proceeding.
{¶ 30} Finally, the trial court did not abuse its discretion when awarding attorney
fees to Ruscilli's attorneys when performing work on the consolidated case. When arguing
for consolidation of the cases, ORPS argued that both actions arose out of the parties'
subcontract and Cleveland's "filing of a second action, even under a different legal theory,
[was] improper claim splitting." (Sept. 20, 2017 Mot. to Consolidate Cases at 2.) Cleveland
did not oppose the motion. When ordering consolidation, the trial court ruled that the cases
"stem from the same construction project and involve substantially similar parties and
related issues." (Apr. 20, 2018 Decision & Entry at 2.) Because of breadth of the
indemnification provision, once the consolidation was in effect, Cleveland should have been
aware that it was potentially liable for any of Ruscilli's attorney fees in the consolidated
case. Even before initiating the ancillary litigation with OPRS, this potential liability was
clear. The second and third assignments of error are overruled.
C. Fourth Assignment of Error
{¶ 31} In the final assignment of error, Cleveland contends the trial court erred in
concluding that Ruscilli is entitled to its bond premium payments. Cleveland asserts that
it has a right to file a lien to protect its interests, pursuant to R.C. 1311.01, et seq., Ohio's
mechanic's lien law. (Brief of Plaintiff-Appellant at 42. ) According to Cleveland, because
Nos. 18AP-480 & 21AP-375 14
there is no "statutory authority for assessing bond premium payment as costs," the trial
court erred by awarding them to Ruscilli.
{¶ 32} The trial court did not rely on any statutory authority when ordering the
payment of Ruscilli's bond premium payments. Rather, it relied upon Section 4.6.3 of the
parties' agreement, which required Cleveland to indemnify Ruscilli for any "claims,
damages, losses and expenses" that included "[a]ny action, whether in prosecution or
defense, relating to or arising from the filing or removal of any mechanic's lien filed by
[Cleveland] or any of its subcontractors, suppliers, or laborers." (June 30, 2021 Jgmt. Entry
at 5.)
{¶ 33} Cleveland's sole argument against the trial court's decision to enforce this
language is that the Panel chose not to order it to reimburse Ruscilli for bond premium
payments in the original arbitration award. (Brief of Plaintiff-Appellant at 41.) This
argument does not address the language of the indemnification provision itself, which
expressly recognizes Ruscilli's entitlement to compensation. Furthermore, it is doubtful
that the Panel could have foreseen Cleveland's refusal to not comply with its order to release
the lien for years after issuing its award. As the trial court noted, timely compliance with
the Panel's order "would have prevented Ruscilli from continuing to incur the bond
premium payments," but it made "the conscious choice not to release the mechanic's lien."
(June 30, 2021 Jgmt. Entry at 7.) By choosing not to release the mechanic's lien, Cleveland
caused Ruscilli to continue incurring bond claim premiums beyond September 6, 2017. The
trial court's award limits Ruscilli's recovery to the bond premiums incurred after Cleveland
consciously chose to ignore the arbitration panel's orders. These additional costs are a
direct result of Cleveland's decision to ignore the Panel's orders. The fourth assignment of
error is overruled.
Nos. 18AP-480 & 21AP-375 15
IV. CONCLUSION
{¶ 34} Having overruled Cleveland's four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J. and KLATT, J., concur.
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