Dugan & Meyers Construction Co. v. State Department of Administrative Services ( 2005 )

{¶ 59} In addressing the first assignment of error, the majority finds that appellee is not entitled to delay damages because the Spearin doctrine, set forth in United States v.Spearin (1918), 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166, could not be applied based upon the record in this case, and, therefore, the remaining assignments regarding delay damages are rendered moot. The trier of fact found that "as a result of incomplete, inaccurate, and unconstructable plans and specifications, Dugan Meyers suffered damages for which it has not been compensated." The trier of fact heard the testimony of Fredelake and several others regarding the effect of the numerous changes upon the general conditions. The referee found that the state failed to present evidence to refute the evidence of Dugan Meyers ("D M") on this issue. Based upon a review of the record and the referee's findings adopted by the trial court, I would overrule the assignments of error relating to delay damages and affirm the lower court on this issue.

{¶ 60} The majority's opinion next discusses appellants' seventh assignment of error regarding assessment of liquidated damages by the Ohio State University ("OSU"). I respectfully disagree with the majority's ruling and would overrule the seventh assignment of error, as I believe the trier of fact appropriately addressed the issue of liquidated damages finding that OSU did not objectively evaluate the project delays in assessing $325,500 in liquidated damages but, rather, based its assessment on a "gut feeling," as revealed by the testimony of Carol Benkert.

{¶ 61} In its ninth assignment of error, appellants argue that the trial court erred in awarding D M the full balance of the contract price. In applying Allen, Heaton McDonald, Inc.v. Castle Farm Amusement Co. (1949), 151 Ohio St. 522, 39 O.O. 330, 86 N.E.2d 782, the majority finds that D M has not met its burden in showing entitlement to the full balance of the contract price. I would agree. However, there is no dispute that $602,745 is the contract balance that D M would have received had it been permitted to complete the contract. Gilbane was compensated in the amount of $264,340, which includes costs D M was not required to incur.

{¶ 62} As noted in the syllabus of Allen, a "plaintiff is entitled only to recover damages for defendant's breach of contract. Such damages may include the further compensation plaintiff would have received under the contract if it had been performed, less the value to plaintiff of his being relieved of the obligation of completing performance." Therefore, D M is entitled to a portion of the contract price in the amount of $338,405 as damages for the breach of contract by appellants. Additionally, D M continued as the prime contractor after having been replaced as lead contractor. Nevertheless, the amount of $338,405 represents the minimum profit appellants' breach prevented D M from earning, since profit also would have been included in the $264,340 paid to Gilbane.

{¶ 63} Regarding the tenth assignment of error, I would concur with the majority in overruling this assignment of error.

{¶ 64} Therefore, I would affirm the judgment of the Court of Claims with a modification of the amount awarded on the balance of the contract.