Rudzik Excavating, Inc. v. Mahoning Valley Sanitary Dist. , 101 N.E.3d 38 ( 2017 )

[Cite as Rudzik Excavating, Inc. v. Mahoning Valley Sanit. Dist., 2017-Ohio-8630.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
RUDZIK EXCAVATING, INC., : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0008
- vs - :
THE MAHONING VALLEY SANITARY :
DISTRICT,
:
Defendant-Appellant.
:
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV
01300.
Judgment: Affirmed.
Stuart A. Strasfeld and David S. Barbee, Roth, Blair, Roberts, Strasfeld & Lodge, 100
Federal Plaza East, Suite 600, Youngstown, OH 44503 (For Plaintiff-Appellee).
Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East,
#926, Youngstown, OH 44503 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, the Mahoning Valley Sanitary District (“the District”), appeals
the judgment of the Trumbull County Court of Common Pleas, following a jury trial,
awarding appellee, Rudzik Excavating, Inc., $525,210 in damages on Rudzik’s claim
against the District for breach of contract. At issue is whether the trial court erred in
denying the District’s motion for directed verdict. For the reasons that follow, we affirm.
{¶2} Rudzik filed a complaint against the District, seeking an unspecified
amount of damages for breach of contract. The District filed an answer and
counterclaim demanding repayment of an amount it claimed it had overpaid Rudzik. At
the District’s request, the case proceeded to trial by jury.
{¶3} The District sells water to its member cities, Youngstown, Niles, and
McDonald, which in turn sell water to residents of other jurisdictions. As part of the
process of making drinkable water, the District maintains lime-sludge lagoons. Lime is
a by-product of producing drinkable water. The lime settles at the bottom of storage
tanks and is pumped out to lime-sludge lagoons. Water is pumped from the lagoons,
which then become full of lime sludge, which must periodically be removed from the
lagoons.
{¶4} In December 2014, the District advertised for bids on Contract G-106 (“the
contract”), a lime-sludge removal contract. The advertisement said, “[t]he work for
which proposals are invited includes Removal and Land Application/Beneficial Reuse of
Lime Sludge from sludge lagoons, which * * * are located in Weathersfield Township * *
*. It is estimated that the amount of sludge to be removed and * * * reused from the Bid
for Lagoon G is * * * 50,000 cubic yards.”
{¶5} The District prepared Specifications and Instructions to Bidders. The Bid
Proposal Form prepared by the District showed the project had three parts: “Base Bid
1,” “Alternate Bid 2,” and “Alternate Bid 3.” According to the contract documents, Base
Bid 1 involved the removal of lime sludge from Lagoon G and land application/beneficial
reuse of the sludge; placement of sand in Lagoon G; and a couple of miles of road-
repair work around the lagoons. Alternate Bid 2 was for the placement of sand in
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another lagoon, Lagoon E (the sludge in that lagoon having previously been removed).
Finally, Alternate Bid 3 was for the installation of 24 new “sluice gates” to control the
flow of water in the lagoons.
{¶6} The District’s Bid Proposal Form included a section for bidders to insert a
total price for work to be performed under Base Bid 1. It also provided a space for the
cost to remove sludge per cubic yard from Lagoon G. The form said the total price was
to be determined by multiplying 50,000 cubic yards of sludge by the dollar amount (“unit
price”) to be proposed and inserted by the bidder. The form also included a section for
the total price for work under Alternate Bid 2 with a space for the price to install sand
per cubic yard. Alternate Bid 3 simply asked for the cost to replace 24 sluice gates.
{¶7} The District’s Instructions to Bidders provided that if any bidder was “in
doubt as to the * * * meaning of any part of the Contract Documents,” the bidder could
submit a written request to the District’s Chief Engineer for interpretation.” The Chief
Engineer would respond to a request for information by issuing an Addendum, a copy of
which would be provided to all bidders. Further, the contract defined the word “contract”
as including any Addenda.
{¶8} The District’s Chief Engineer testified that, in response to questions
bidders asked concerning the Instructions, he issued two Addenda to the contract
instructing bidders how to prepare their bids. He testified that Addendum 1 instructed
bidders “to include whatever was necessary for the contractor to complete that portion
of the work in the bid.” He instructed them to “add up their numbers for labor, material
costs, insurance, overhead and profit, to make a whole number.” He said their total bid
amount was to be the total of their costs for completing the work.
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{¶9} Addendum I advised bidders that, as to Base Bid I, their bid amount
should be the total of the following costs: the cost of removing 50,000 cubic yards of
sludge from Lagoon G; the cost of placing six inches of sand in that lagoon; the cost of
labor, equipment, and materials; the cost to dig out pothole areas and fill them with six
inches of limestone and to lay three inches of limestone on the whole roadway; and the
cost of roadway repairs from Salt Springs Road to the lagoons.
{¶10} This Addendum contradicted the language of Base Bid 1 in the District’s
Bid Proposal Form, which simply instructed bidders to multiply 50,000 cubic yards of
sludge to be removed from Lagoon G by a dollar amount (“unit price”) to be proposed
by the bidder in arriving at the total bid amount of Base Bid 1.
{¶11} Addendum 1 also stated that “[a]ny unused item(s) in this contract will be
a credit back to the project,” meaning it would be a credit to the District. The Bid
Proposal Form did not mention anything about credits.
{¶12} After Addendum 1 was issued, bidders still had questions about the
contract, so the Chief Engineer issued Addendum 2. This Addendum explained that for
Base Bid 1 and Alternate Bid 2, bidders should make sure the “top line and dollar figure”
included their total cost for that part of the work. As to Alternate Bid 2, the “second line
per cubic yard” should show the cost of the sand delivered to the lagoon per cubic yard,
which indicated the District would receive a credit for sand it provided for the project.
{¶13} On January 13, 2015, James Tressa, Rudzik’s project manager, submitted
Rudzik’s proposal. The Base Bid 1 “top line” figure was the fixed amount of $1,260,000,
which was stated to be a product of 50,000 cubic yards times $16 per cubic yard of
sludge. However, $16 times 50,000 cubic yards only equals $800,000. The balance of
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the $1,260,000 bid included Rudzik’s other costs to complete Base Bid 1, as the Chief
Engineer had instructed the bidders to do in the Addenda.
{¶14} Rudzik’s Alternate Bid 2 was the fixed amount of $234,000 for sand
placement in Lagoon E. Alternate Bid 3 was the fixed amount of $200,000 to provide
and install 24 sluice gates.
{¶15} Of the three contractors who submitted bids, the Chief Engineer
determined that Rudzik submitted the lowest total bid ($1,694,000, based on the total
amounts of each of the three bid items).
{¶16} Before the contract was awarded, the Chief Engineer e-mailed Mr. Tressa,
asking him for a breakdown of Rudzik’s costs for sludge removal and sand placement.
He also asked for the cost of Base Bid 1 and Alternate Bid 2 if the District provided the
sand. Mr. Tressa provided a breakdown of all his costs that comprised Base Bid 1 in
the amount of $1,260,000. Of this amount, Mr. Tressa allocated $905,000 for lime-
sludge removal. The balance of the $1,260,000 total bid was comprised of Rudzik’s
other costs, including the costs for sand installation and road repair. At the Chief
Engineer’s request, the breakdown also showed that Rudzik would provide a lime-
sludge credit to the District of $16 per cubic yard under Base Bid 1 (for every cubic yard
removed less than 50,000 cubic yards) and a sand credit of $50 per cubic yard under
Alternate Bid 2 (for every cubic yard of sand provided by the District for the project).
{¶17} After the Chief Engineer received this breakdown, he awarded the
contract to Rudzik without changing Rudzik’s price to fit the formula set forth in the
contract. Further, the District Treasurer certified that the full contract price for all three
parts of the contract - $1,694,000 - had been appropriated by the District to meet its
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payment obligation under the contract. Thus, the Chief Engineer approved the
breakdown provided by Rudzik.
{¶18} As to the lime-sludge removal part of Base Bid 1, Rudzik subcontracted
that work to C. Crump & Associates, which had previously performed lime-sludge
removal work for the District. Crump’s crew removed lime sludge from February 2015
through May 2015. Crump removed the lime sludge and delivered it to area farmers to
be mixed with their soil for beneficial reuse.
{¶19} By March 9, 2015, one-half of the lime sludge in Lagoon G was removed.
Based on Crump’s daily logs, Crump had removed 25,040 cubic yards of lime sludge
from Lagoon G. The contract provided that Rudzik could request periodic payments as
work progressed. Thus, on March 16, 2015, Rudzik submitted its first application for
payment based on the percentage of work completed and the fixed prices shown in the
contract. Since the work under Base Bid 1 was 35 per cent completed, the gross
amount of the application was for $441,000 (35% x $1,260,000). Rudzik’s application
for payment was also consistent with the price breakdown Mr. Tressa gave the Chief
Engineer before the contract was awarded.
{¶20} However, the Chief Engineer objected to the application because, he said,
the application did not comply with the contract. The Chief Engineer told Mr. Tressa
that the District was only required to pay the unit price of $16 per cubic yard of sludge
actually removed. The Chief Engineer said that Rudzik was not entitled to payment for
a percentage of the total cost of removal of the sludge or a percentage of any of
Rudzik’s other costs, such as its cost of labor, equipment, materials, and road-repair
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work (although the Chief Engineer had specifically instructed bidders in the Addenda to
add those costs in arriving at their “total” contract prices).
{¶21} Mr. Tressa told the Chief Engineer that the contract was a fixed-price or
lump-sum contract, not based on unit prices. Thus, the amount of the contract was the
total amount of Base Bid 1 in the amount of $1,260,000, to be paid in increments as the
work progressed based on the percentage of work done.
{¶22} Mr. Tressa testified that Rudzik had to revise its payment application five
times before the District agreed to make any payment. Finally, Rudzik issued an
application for $470,517. This amount included a charge of $400,640 for the removal of
25,040 cubic yards of lime sludge at $16 per cubic yard, with the balance being the
percentage of other contract work performed and costs incurred.
{¶23} However, the District only paid Rudzik $400,640 for the sludge removal,
and refused to pay anything toward Rudzik’s other costs. Mr. Tressa accepted this
partial payment on the understanding that such acceptance would not constitute a
waiver of any of Rudzik’s rights. Despite this dispute, Mr. Tressa said Rudzik continued
its excavation work, hoping that after Rudzik had fully performed the sludge-removal
work, the District would pay the full amount owed under the contract.
{¶24} After Rudzik removed the remaining 22,460 cubic yards of lime sludge
from Lagoon G, on or about May 20, 2015, Rudzik sent the District a second application
for payment of the balance owed for the sludge-removal work.
{¶25} However, on July 9, 2015, the District’s attorney sent a letter to Rudzik,
refusing to pay any part of the work covered in Rudzik’s second application and, in fact,
demanding Rudzik repay part of the funds the District had paid under Rudzik’s first
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application for payment. Per the contract, the District had hired a surveyor to estimate
the amount of lime sludge removed from Lagoon G. The surveyor concluded that only
22,630 cubic yards had been removed. For this reason, the District’s attorney advised
Rudzik it had been overpaid for the lime sludge removed. The District’s attorney said
that, at $16 per cubic yard of sludge removed, the District only owed Rudzik $362,080
for all the work Rudzik had done and, in light of the amount previously paid to Rudzik,
the District demanded that Rudzik repay it $39,560. The District’s attorney also advised
Rudzik to stop performing any further work under the contract, and Rudzik was thus
prevented from completing the other work under Base Bid 1 or any work under Alternate
Bid 2 and Alternate Bid 3.
{¶26} Mr. Tressa testified that, based on Crump’s determination that it had
removed 47,500 cubic yards of sludge, Rudzik was entitled to an additional $496,987
for the completed work on Base Bid 1 ($496,987 = $1,260,000 minus the $400,640 the
District had already paid and minus a credit of $362,372 for sludge not removed and
sand provided by the District). In addition, Mr. Tressa said that Rudzik calculated its
lost profit on the contracted work the District prevented it from performing under Base
Bid 1, Alternate Bid 2, and Alternate Bid 3 in the amount of $71,677. However, the trial
court only allowed the jury to consider the lost profit Rudzik would have earned had it
been permitted to perform the remaining work allocated to Base Bid 1 (sand placement
in Lagoon G and road-repair work) in the amount of $28,223.
{¶27} After Rudzik presented its case, and again at the close of the evidence,
the District moved for a directed verdict, arguing that Rudzik could not prevail on its
breach-of-contract claim because the contract was clearly and unambiguously a unit-
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price contract. In opposition, Rudzik argued that, according to the contract documents,
reasonable minds could reach different conclusions as to whether this was a unit-price
or a fixed-price contract, as a result of which, Rudzik argued, the District was not
entitled to a directed verdict. In denying the District’s motions, the trial court implicitly
found that the contract was ambiguous as to whether it was a unit-price or a fixed-price
contract.
{¶28} Following the presentation of the evidence, the jury returned a verdict in
favor of Rudzik and against the District on Rudzik’s breach-of-contract claim and on the
District’s counterclaim. The jury also made findings in response to a series of jury
interrogatories. At the District’s request, the trial court submitted an interrogatory asking
the jury to find whether the contract between Rudzik and the District was clear and
unambiguous. In response, the jury answered, “no.” Also, at the District’s request, the
trial court submitted interrogatories asking the jury to find whether the contract was “a
unit priced contract,” as the District had maintained, or a “fixed price or lump sum
contract,” as Rudzik had argued. The jury found the contract was not a unit-price
contract, but, rather, was a fixed-price or lump-sum contract.
{¶29} In response to other interrogatories, the jury set forth the dollar amount of
the damages due to Rudzik from the District under the terms of the contract as
$496,987 for unpaid completed work and $28,223 for lost profits, for a total of $525,210.
{¶30} The court entered judgment on the jury’s verdict. Subsequently, the
District filed a motion for new trial, or in the alternative, to reduce the jury’s verdict. The
trial court denied the motion.
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{¶31} The District appeals the trial court’s judgment on the jury’s verdict,
asserting two assignments of error. For its first, it alleges:
{¶32} “The trial court erred as a matter of law when it overruled the District’s
motion for directed verdict.”
{¶33} A motion for directed verdict should be granted when the trial court, after
construing the evidence most strongly in favor of the party against whom the motion is
directed, finds that upon any determinative issue reasonable minds could reach only
one conclusion on the evidence and that conclusion is adverse to such party. Civ.R.
50(A)(4). Under this test, if the adverse party presents any probative evidence to
support his or her claim, the motion for directed verdict must be denied. Ruta v.
Breckenridge-Remy Co., 69 Ohio St.2d 66, 69 (1982). A trial court’s ruling on a motion
for directed verdict presents a question of law, which we review de novo. Kelsh v. WCI
Steel, Inc., 11th Dist. Trumbull No. 2011-T-0006, 2012-Ohio-403, ¶19.
{¶34} In order to prevail on its claim for breach of contract, Rudzik was required
to demonstrate the existence of a contract, its performance, the District’s breach, and
damages as a result of the breach. Byers Dipaola Castle, LLC v. Portage County Bd.
Of Comm’rs., 11th Dist. Portage No. 2014-P-0047, 2015-Ohio-3089, ¶23.
{¶35} Here, the existence of the contract is undisputed. It is also undisputed
that Rudzik performed under the contract, at least until the District’s attorney ordered
Rudzik to stop its performance – after Rudzik completed removal of the lime sludge
from Lagoon G. The parties disputed the last two elements, i.e., whether the District
breached the contract and the amount of Rudzik’s damages. The determination of
these two issues was dependent on whether the contract was a unit-price contract or a
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fixed-price contract. Rudzik argued that it should be paid for sludge removal and reuse,
sand placement, and road repairs on the basis of its lump-sum price. In contrast, the
District argued that payment should be based on a unit price of $16 per cubic yard of
sludge removed.
{¶36} The first issue raised by the District under this assigned error is whether
the trial court erred by allowing the jury to determine whether the contract was a unit-
price or fixed-price contract.
{¶37} “A contract can only be interpreted if the provisions are ambiguous or
uncertain.” Career & Technical Assn. v. Auburn Vocational School Dist. Bd. Of Edn.,
11th Dist. Lake No. 2013-L-010, 2014-Ohio-1572, ¶18. “Contract language is
ambiguous if it is susceptible to two or more reasonable interpretations.” Id. “The
determination of whether provisions in a contract are ambiguous is a legal issue that we
review de novo.” Id. Further, “if the contract language is capable of two reasonable
interpretations, there is an issue of fact [for the jury] as to the parties’ intent.” Id. “When
a contract term is ambiguous, the [jury] must examine parol or extrinsic evidence to
determine the parties’ intent.” Id.{¶38} In the area of public construction projects, a fixed-price contract sets one
price for the project as a whole, while a unit-price contract sets the price per unit, but
does not set the number of units. Seneca Valley, Inc. v. Caldwell, 156 Ohio App.3d
628, 2004-Ohio-1730, ¶32 (7th Dist.). The unit price set forth in such contract is a pre-
negotiated price. Id. at ¶98.
{¶39} The District argues the trial court erred by allowing the jury to decide
whether the contract was clear and unambiguous with respect to whether the contract
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was a unit-price contract or a fixed-price contract because, in its view, the contract was
clearly and unambiguously a unit-price contract. However, the District is barred by the
invited-error rule from making this argument because the interrogatory asking the jury to
decide whether the contract was clear and unambiguous was submitted by the District.
“Any error in relation to a jury instruction specifically requested by the defense is invited,
and, in order to prevent a party from inducing the trial court to commit an error and later
take advantage of it on appeal, we deem any error that may have resulted from a
requested instruction as being waived.” State v. Beaver, 119 Ohio App.3d 385, 395
(11th Dist.1997). Accord Machnics v. Sloe, 11th Dist. Geauga No. 2004-G-2554, 2005-
Ohio-935, ¶36.
{¶40} In any event, the contract documents as a whole demonstrate the contract
is ambiguous. In support of its position that the contract was a unit-price contract, the
District relies on the Instructions to Bidders and its Bid Proposal Form, which indicated
that unit prices were controlling. However, on its face, the amount of Rudzik’s Base Bid
1, $1,260,000, was obviously not the product of $16 x 50,000, which equals $800,000.
The District’s assertion that this contract was not ambiguous is belied by the face sheet
of the bid. The math simply did not add up to the District’s version of a unit price
contract. Thus, the District accepted the bid knowing it did not comply with the unit-
price formula in the Bid Proposal Form, militating against a unit-price interpretation.
{¶41} Further, the Bid Form had no place to insert a unit price for the sand
placement or road work, which, according to Addendum 1, were also part of Base Bid 1.
This omission in the Bid Form could reasonably be interpreted to indicate the costs of
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this work were to be added to the costs of sludge removal, supporting a fixed-price
interpretation.
{¶42} Moreover, the two Addenda instructed bidders to add all necessary costs
to arrive at Base Bid 1 and Alternate Bid 2. Addendum 1 instructed bidders to include
whatever was necessary for the contractor to complete that portion of the work in the
bid, which, as to Base Bid 1, included sludge removal, sand placement, and road repair.
The Chief Engineer testified this Addendum instructed bidders to add up their cost for
labor, materials, insurance, overhead, and profit to arrive at their total cost. He said
their total bid amount was to be the total of their costs for completing the work. The
foregoing further supported a fixed-price interpretation.
{¶43} Specifically, Addendum 1 advised bidders that, as to Base Bid 1, their bid
amount should be the total of the following costs: the cost of removing 50,000 cubic
yards of sludge from Lagoon G; the cost of placing six inches of sand in that lagoon; the
cost of labor, equipment, and materials; the cost to dig out low pothole areas and fill
them with six inches of limestone and to lay three inches of limestone on the whole
roadway; and the cost of roadway repairs from Salt Springs Road to the lagoons.
{¶44} In addition, Addendum 2 explained that for Base Bid 1 and Alternative Bid
2, bidders should make sure “the top line and dollar figure” included their total cost for
that part of the work.
{¶45} Further, the Addenda provided for credits to the District for work not
performed or materials not used, which, again, signaled a fixed-price contract.
Addendum 1 provided that any unused items in the contract would be a credit to the
District. Addendum 2 provided that, as to Alternate Bid 2, the “second line per cubic
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yard” should be the cost of the sand delivered to the lagoon per cubic yard, so that the
District would receive a credit for sand it provided for the project. It is worth noting the
District does not dispute Rudzik’s argument that unit-price contracts do not provide for
credits, while fixed-price contracts do. Rudzik argues that credits may be necessary
with fixed-price contracts to reduce the agreed price for work that is removed from the
project, but credits are not necessary with unit-price contracts because the contractor is
only paid as units are completed.
{¶46} Finally, Rudzik’s breakdown, which the District approved, also indicated a
fixed-price contract. After the District received Rudzik’s bid, the District, in an e-mail,
dated January 14, 2015, at 9:26 a.m., asked Rudzik for a breakdown of its bid. Rudzik
responded later that same date with the following detail:
UNIT
TOTAL
Base Bid 1 PRICE
ITEM DESCRIPTION QTY UNIT AMOUNT
TOTAL
Mob/Demob, Bond, Survey Etc. 1 LS $ 30,500.00 $ 30,500.00
Removal of Lime Sludge 50,000 CY $ 18.10 $ 905,000.00
Installation of Silica Sand @ Lagoon G 5,647 CY $ 49.93 $ 281,954.71
MVSD Drive Repair & Upgrade 1 LS $ 42,545.29 $ 42,545.29
*Lime Sludge Credit of $16/CY Base Bid Total $ 1,260,000.00
{¶47} Thus, Rudzik’s breakdown for Base Bid 1 showed the total cost of that bid
($1,260,000) was comprised of the cost of sludge removal, sand placement, and road
repairs.
{¶48} One week later, after receiving this clarification, the contract was awarded
to Rudzik. In reality, the effect of this correspondence was to remove any ambiguity
whatsoever about the nature of Rudzik’s bid. It is difficult to understand why the District
continues to assert this was simply a unit-price contract in the face of this detailed
breakdown.
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{¶49} The District concedes that “Base Bid 1 of Addendum 1” is arguably
ambiguous, but argues the trial court should have interpreted that ambiguity in light of
other contract documents indicating this was a unit-price contract. In other words, the
District argues the court should have ignored this ambiguity in ruling on its motion for
directed verdict. However, the Addenda were issued by the Chief Engineer in order to
explain the other contract documents and were at least as important as the other parts
of the contract.
{¶50} When considering the contract documents as a whole, including the two
Addenda, it is unclear whether the parties intended the contract to be a unit-price or
fixed-price contract. As a result, the contract was ambiguous, and the trial court did not
err in finding that a question of fact existed as to the parties’ intent and in denying the
District’s motion for directed verdict.
{¶51} For its second issue under this assigned error, the District argues the trial
court erred in allowing the jury to determine the amount of Rudzik’s damages because,
according to the contract documents, the District’s hired surveyor was to determine the
amount of sludge removed, which, in turn, would determine the final contract price.
{¶52} However, according to the contract, “[a]ll work necessary for removing the
lime sludge * * * shall be done to the satisfaction of the [Chief] Engineer, who shall * * *
determine the amount of the sludge which is to be paid for hereunder, and shall decide
all questions which may arise as to measurement of quantities * * * and his * * * decision
shall be a condition precedent to the right of the Contractor to receive any money
hereunder.”
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{¶53} “Contract clauses which make the duty of performance of one of the
parties conditional upon his satisfaction are referred to as ‘satisfaction clauses.’” Hutton
v. Monograms Plus, Inc., 78 Ohio App.3d 176, 181 (2d Dist.1992). Where the
satisfaction clause requires satisfaction as to such matters as commercial value or
quality, rather than personal taste, dissatisfaction cannot be claimed unreasonably. Id.“In these contracts, an objective standard is applied to the satisfaction clause and the
test is whether the performance would satisfy a reasonable person.” Id.{¶54} Construing the evidence in favor of Rudzik, the trial court did not err in
denying the District’s motion for directed verdict because an issue of fact was created
as to whether the Engineer’s determination was objectively reasonable.
{¶55} The District’s surveyor estimated that only 22,630 cubic yards had been
removed, in contrast to the 47,500 cubic yards calculated by Rudzik’s subcontractor, C.
Crump & Associates. The District’s surveyor testified his calculation was based on two
surveys, one before the sludge was removed, and, the other, afterwards. He took the
data from those surveys and used an Auto CAD program to estimate the volume of
sludge removed. However, he admitted there were flaws with this method, which
undermined the reliability of his estimate. He admitted that Auto CAD surveys are “not
always accepted” for field survey work, such as was involved here. Further, he did not
participate or even attend either the before or after survey; instead, the surveys were
performed by assistants. Further, he admitted these assistants used benchmarks that
were ten years old and were taken from another lagoon. Also, for the before survey, the
assistants did not enter the lagoon, and, thus, they did not determine the depth of the
water in the lagoon or the density of the sludge.
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{¶56} In contrast, C. Crump & Associates, Rudzik’s subcontractor, used daily
tickets and truck counts to determine the amount of lime sludge they removed. Crump
tracked the quantities by counting cubic yards of sludge for each bucket. They then
counted the number of buckets used to fill each truck and then counted and weighed
the loaded trucks. When the lagoon was half empty, Crump’s records showed they had
removed 25,040 cubic yards of sludge. They subsequently removed another 22,460
cubic yards from the lagoon.
{¶57} In light of the issues raised concerning the reliability of the District’s
survey, the trial court did not err in finding that a question of fact existed concerning
whether it was objectively reasonable for the Engineer to determine, based on the
estimate of the District’s hired surveyor, that only 22,630 yards of sludge had been
removed. Contrary to the District’s argument, the issue here was not whether the
contract provision regarding the surveyor was clear and ambiguous; rather, the issue
was whether the Engineer’s determination was objectively reasonable. Further, since
the jury obviously found the District’s surveyor was not credible (as noted by the trial
court in its entry denying the District a new trial), the jury was entitled to rely on Crump’s
calculations regarding the amount of sludge his employees removed. For this additional
reason, the court did not err in denying the District’s motion for directed verdict.
{¶58} For its second and last assignment of error, the District alleges:
{¶59} “The trial court abused its discretion by admitting Rudzik’s Exhibits 29, 30,
and 31.”
{¶60} We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion, and we will not disturb the trial court’s ruling without a clear showing
17
that the court abused its discretion in a manner that materially prejudices a party.
Capital One Bank (USA) NA v. Reese, 11th Dist. Portage No. 2014-P-0034, 2015-Ohio-
4023, ¶95. The term “abuse of discretion” is one of art, connoting judgment exercised
by a court, which does not comport with reason or the record. Id. This court has stated:
“‘a trial court is vested with broad discretion in determining the admissibility of evidence
in any particular case, so long as such discretion is exercised in line with the rules of
procedure and evidence.” State v. Dyer, 11th Dist. Lake No. 2015-L-121, 2017-Ohio-
426, ¶40, quoting Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991).
{¶61} Evid.R. 1006 provides: “The contents of voluminous writings, recordings,
or photographs which cannot conveniently be examined in court may be presented in
the form of a chart, summary, or calculation.”
{¶62} Mr. Tressa testified regarding two categories of damages sustained by
Rudzik: (1) the balance owed for work completed by Rudzik for which the District
refused to pay; and (2) lost profits. Mr. Tressa testified that he prepared these exhibits
and that each contained calculations based on summaries of testimony and other
exhibits in evidence. He said that Exhibit 29 calculated the amount owed for unpaid
work based on Crump’s testimony that 47,500 cubic yards of lime sludge had been
removed from Lagoon G. Alternatively, Exhibit 30 calculated the amount owed for
unpaid work based on the District’s claim that only 22,630 cubic yards of lime sludge
had been removed. At trial, Rudzik offered pay applications, invoices, and other
exhibits that documented what payments were made and what credits were warranted.
Exhibits 29 and 30 summarized and calculated the amounts shown in those records.
Exhibit 31 showed Rudzik’s calculation of lost profit incurred due to the District’s refusal
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to allow Rudzik to complete the remainder of Base Bid 1. The lost profit was calculated
based on the average profit Rudzik’s accountant reported for all jobs Rudzik performed
in 2015. Rudzik’s project manager, bookkeeper, and accountant verified the process by
which the calculations were made.
{¶63} The District does not dispute that Exhibits 29, 30, and 31 were based on
testimony and exhibits in evidence and that they were summaries of that evidence.
{¶64} This court considered similar exhibits in Avery Dennison Corp. v. Con-
Way Transp. Serv., Inc., 11th Dist. Lake No. 2005-L-218, 2006-Ohio-6106. In that case,
the plaintiff offered two separate damages summaries, one based on Avery’s
calculations and one based on Con-Way’s. Id. at ¶51. This court held that these
alternate calculations were admissible pursuant to Evid.R. 1006 and that the trial court
did not abuse its discretion in admitting the exhibits. Id. at ¶53.
{¶65} Because the subject exhibits were summaries of testimony and numerous
exhibits in evidence, which could not conveniently be examined in court while Mr.
Tressa and Rudzik’s bookkeeper and accountant were testifying, the trial court did not
abuse its discretion in admitting them.
{¶66} For the reasons stated in this opinion, the assignments of error are
overruled. It is the order and judgment of this court that the judgment of the Trumbull
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
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