B&B Contrs. & Developers, Inc. v. Olsavsky Jaminet Architects, Inc.

[Cite as B&B Contrs. & Developers, Inc. v. Olsavsky Jaminet Architects, Inc., 2012-Ohio-5981.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
B&B CONTRACTORS & )
DEVELOPERS, INC., ) CASE NO. 12 MA 5
)
PLAINTIFF-APPELLANT/ )
CROSS-APPELLEE, )
)
VS. ) OPINION
)
OLSAVSKY JAMINET ARCHITECTS, )
INC., )
)
DEFENDANT-APPELLEE/ )
CROSS-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 09CV504.
JUDGMENT: Affirmed in part; Reversed in part;
Remanded.
APPEARANCES:
For Plaintiff-Appellant/ Attorney Christopher Opalinski
Cross-Appellee: Attorney Jacob McCrea
U.S. Steel Tower, 44th Floor
600 Grant Street
Pittsburgh, Ohio 15219-2788
For Defendant-Appellee/ Attorney John Cubar
Cross-Appellant: Attorney Brian Winchester
123 West Prospect Avenue, Suite 250
Cleveland, Ohio 44115
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 14, 2012
[Cite as B&B Contrs. & Developers, Inc. v. Olsavsky Jaminet Architects, Inc., 2012-Ohio-5981.]
VUKOVICH, J.
{¶1} This case presents cross-appeals by plaintiff B&B Contractors &
Developers, Inc. (B&B) and defendant Olsavsky Jaminet Architects, Inc. (OJA)
regarding a judgment for B&B that was entered after a jury trial in the Mahoning
County Common Pleas Court. B&B first argues that the trial court erred when it
granted a partial judgment on the pleadings and ruled that B&B could not seek
indemnification for attorney fees that B&B paid to its client under an arbitration award
resulting from OJA’s architectural negligence. We conclude that this argument has
merit as the trial court erroneously treated this portion of B&B’s damages as typical
attorney fees when it was actually just part of the damages B&B had suffered due to
OJA’s negligence. Therefore, the trial court’s decision barring evidence of the
attorney fees B&B paid to its client as a result of OJA’s negligence is reversed, and
this portion of the case is remanded for further proceedings.
{¶2} B&B also contends that the trial court erred in granting directed verdict
on its breach of contract claim and asks us to rule that the breach of contract claim
was not barred merely because the case contained a professional negligence claim
dealing with the same conduct. We advised that if we were to rule in favor of B&B on
this issue, we would reverse and remand for a new trial in toto because the two
claims are so intertwined. As a result, B&B withdrew this assignment of error from
our consideration at oral argument.
{¶3} In its cross-appeal, OJA claims that the trial court abused its discretion
in denying their request for various jury instructions and interrogatories. OJA also
alleges that the court erred in denying its motion for direct verdict, claiming that the
restoration costs were not shown to be reasonable by expert testimony, that there
was no evidence on diminution in value which should cap restoration costs, and that
B&B cannot make a claim for implied indemnification because B&B allegedly
admitted it was actively negligent. We conclude that the arguments presented in
OJA’s cross-appeal are without merit. The trial court’s judgment on these matters is
therefore affirmed.
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STATEMENT OF THE CASE
{¶4} B&B entered into an agreement to build an ice rink for the Gilmour
Academy in Gates Mills, Ohio. B&B was the general trades construction contractor,
which did not include the mechanical, electrical, or plumbing trades. B&B contracted
with OJA to provide the architectural design and to assist in coordinating with the
other engineering disciplines, those who were not working under B&B.
{¶5} After construction, Gilmour made a demand for arbitration under the
contract with B&B due to mold growth said to be the result of a design defect. The
arbitrator awarded Gilmour $700,902, which sum included $225,000 in attorney fees
incurred by Gilmour. Pursuant to a later settlement agreement, this total award
against B&B was reduced to $595,000, which amount B&B then paid to Gilmour.
{¶6} In 2009, B&B filed a complaint against OJA raising claims for breach of
contract, professional negligence, and indemnification. B&B sought to recover
damages equal to the amount it paid to Gilmour. Originally, B&B also sought to
recover the attorney fees it incurred in defending the arbitration suit, but B&B was
later reimbursed for these fees by its insurance carrier. B&B did not seek to recover
its attorney fees incurred in the current civil suit.
{¶7} OJA filed a motion for partial judgment on the pleadings solely
regarding B&B’s request for attorney fees, emphasizing that Ohio follows the
American rule which requires each party to pay their own attorney fees. OJA noted
that B&B was liable for attorney fees to Gilmour due to the contractual provisions
between those parties. OJA pointed out that there was no agreement for attorney
fees in the contract it entered with B&B and thus concluded that no exception to the
American rule applied.
{¶8} B&B responded by urging the application of the indemnification
exception to the American rule and alternatively stating that the rule requiring each
party to pay his own fees has no applicability where the fees sought are those paid
by one party to a third party. At the beginning of the December 2011 jury trial, the
trial court granted OJA’s motion for partial judgment on the pleadings, holding that
B&B cannot recover the amount B&B paid to Gilmour for Gilmour’s attorney fees.
(Tr. 20-21).
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{¶9} After B&B presented its evidence, OJA moved for directed verdict on
various grounds. The court granted directed verdict on B&B’s breach of contract
claim, finding it duplicative of their professional negligence claim. (Tr. 637-638). The
court denied the portion of OJA’s motion for directed verdict which claimed that B&B
admitted it was actively negligent and thus could not seek indemnification. (Tr. 645,
835). The court also denied OJA’s motion regarding damages, ruling that there was
evidence on the reasonableness of restoration costs and that the realty’s diminution
in value was not a required element of B&B’s damages. (Tr. 622, 645, 835).
{¶10} The jury returned a verdict in favor of B&B and against OJA. The jury
answered interrogatories, determining that: OJA was negligent in providing
architectural service; OJA’s negligence was the proximate cause of B&B’s damages;
B&B incurred $395,095.75 in damages as a result of the negligence of OJA and/or
anyone else’s negligence; B&B was not comparatively negligent; and OJA did not
prove that anyone else was negligent. Thus, on December 12, 2011, the trial court
entered judgment in favor of B&B for $395,095.75. Both parties filed timely cross-
appeals from this entry.
B&B’S ASSIGNMENT OF ERROR NUMBER ONE
{¶11} B&B sets forth two assignments of error, the first of which alleges:
{¶12} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
RULED THAT THE ATTORNEYS’ FEES AWARDED AS DAMAGES AGAINST B&B
IN THE UNDERLYING ARBITRATION ARE NOT RECOVERABLE DAMAGES BY
B&B IN THIS CASE.”
{¶13} Pursuant to the American Rule, which is followed in Ohio, each party in
a lawsuit must generally bear its own attorney fees. Krasny-Kaplan Corp. v. Flo-
Tork, Inc., 66 Ohio St.3d 75, 77, 609 N.E.2d 152 (1993). Exceptions exist where
there is statutory authorization for attorney fees in a certain action, bad faith, or a
contractual fee-shifting agreement. Id. at 77-78. In discussing exceptions to the
American rule as relating to co-defendants, the Supreme Court outlined a fourth
exception, the implied obligation of indemnification. Id. at 78. The Court explained
that a situation may occur in which A must indemnify fault-free B for the costs of
mounting a defense where the fault of A has been imputed to B. Id. (also noting that
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indemnification requires the primarily liable party to reimburse another who has
discharged a liability for which that other is only secondarily liable). The Court
concluded that the indemnification exception did not apply in Krazny-Kaplan because
the jury found that neither the manufacturer nor the distributor was liable to the
plaintiff. Id. (distinguishing cases that allowed a retailer to be indemnified for his own
attorney fees where the manufacturer’s product was found to be defective). Id.
{¶14} The trial court ruled that B&B is barred by the American rule from
seeking attorney fees it paid to Gilmour. OJA urges that B&B contracted with
Gilmour to pay attorney fees if issues arose under that contract but did not enter a
fee-shifting contract with OJA. OJA relies on the statement that, without a
contractual fee-shifting agreement, attorney fees are the cost of doing business. See
id. at 79. OJA also insists that an Eighth District case is directly on point here and
should be applied against B&B. See Doyle v. Fisher Foods, Inc., 8th Dist. No. 43701
(Mar. 18, 1982). As to the latter argument, B&B contends that, if application of the
American rule even arises here, the indemnification exception would allow its claim
for attorney fees.
{¶15} Initially, we point out that, contrary to OJA’s contention, Doyle is not
persuasive or applicable. The Doyle court refused to create an indemnification
exception to the American rule so that a distributor could seek reimbursement from
the manufacturer where the distributor incurred attorney fees in defending itself in the
suit where the manufacturer was the negligent party. Thereafter, the Supreme Court
listed this type of indemnification as an exception to the American rule. Krasny-
Kaplan, 66 Ohio St.3d at 77 (but found that it did not apply in that case due to the fact
that the manufacturer had been found non-negligent). Thus, Doyle has been
abrogated.
{¶16} Moreover, the topic in Doyle was whether the secondarily liable party
can recover its own attorney fees incurred in defending the action. Our case deals
with the secondarily liable party paying a third party’s attorney fees. This is also why
our case would not fall under the Krasny-Kaplan indemnification exception (if the
American Rule and its exceptions were even applicable here). Krasny-Kaplan dealt
only with the requirements for one defendant’s recovery of its own attorney fees from
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the primarily liable co-defendant. It would be more applicable to B&B’s initial attempt
to recover some of the attorney fees B&B expended on its own defense of Gilmour’s
claim. However, as aforementioned, B&B withdrew its request for indemnification of
its own attorney fees spent defending the Gilmour claim because its insurance carrier
reimbursed it for those fees. (Tr. 39-40). As Krasny-Kaplan specifically refers to the
costs of mounting one’s own defense, the case is not directly on point here.
{¶17} Regardless, as B&B alternatively argues, the American Rule
concerning attorney fees and its accompanying exceptions are irrelevant here. The
Rule specifies that each party shall pay their own attorney fees, but B&B is seeking
reimbursement for its payment of a third party’s attorney fees. B&B is not seeking to
have OJA pay for B&B’s own attorney fees.
{¶18} Consequently, the answer to this assignment of error simply revolves
around basic tort law damage and indemnification principles. This is not an attorney
fees issue. This is a damage issue. B&B incurred its own damages as a result of
OJA’s negligence. That a portion of those compensatory damages can (for
clarification purposes) be labeled, “money paid to Gilmour for Gilmour’s attorney
fees” does not make those damages “attorney fees” for purposes of the particular
case at issue. In other words, a portion of the money B&B paid to Gilmour may have
been for Gilmour’s attorney fees at one point, but, between B&B and OJA, it is now
merely another element of the damages suffered by B&B as a proximate result of
OJA’s professional negligence.
{¶19} Accordingly, this assignment of error has merit. The trial court’s
decision granting OJA’s motion for partial judgment on the pleadings as to Gilmour’s
attorney fees is reversed and this portion of the case is remanded for further
proceedings on this component of damages only.
{¶20} Anticipating such a decision, OJA presents an alternative argument in
their response brief. OJA claims that any error of the trial court in holding that B&B
cannot be indemnified for the attorney fees it paid to Gilmour was harmless because
B&B proffered no evidence on attorney fees and failed to disclose an expert who
would testify to the reasonableness of the fees.
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{¶21} As this issue was presented before trial started and as the trial court
granted OJA’s motion for judgment on the pleadings as to this component of
damages, it is unknown how this issue would have played out during trial. Once the
court ruled for OJA, B&B was precluded from presenting any evidence on the
existence of the portion of its damages representing its payment of Gilmour’s
attorney fees. Thus, this argument is not ripe for review.
{¶22} We also note that B&B did disclose that Attorney Garea would testify
regarding his representation of B&B in connection with arbitration, the settlement of
the arbitration, and his attorney fees in that matter. Merely because the pretrial
statement did not specifically state that this attorney could also testify to other
matters, including Gilmour’s attorney fees, does not mean that the trial court would
have barred him from testifying on that subject. For these reasons, OJA’s alternative
argument is overruled.
B&B’s ASSIGNMENT OF ERROR NUMBER TWO
{¶23} B&B’s second assignment of error provides:
{¶24} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
RULED THAT B&B’S CLAIM FOR BREACH OF CONTRACT COULD NOT
COEXIST WITH ITS CLAIM FOR PROFESSIONAL NEGLIGENCE.”
{¶25} OJA moved for directed verdict on B&B’s breach of contract claim. OJA
argued that although there was a written agreement that was alleged to have been
breached, the claim for breach of contract was duplicative of the professional
negligence claim as all allegations dealt with breach of the standard of care for an
architect. (Tr. 628, 634). B&B had two main factual complaints set forth in both the
breach of contract claim and the professional negligence claim: (1) negligent design
and (2) failure to coordinate with other trades, specifically a failure to review the
mechanical drawings to make sure they worked with OJA’s design of the partition
walls. (Tr. 630, 632, 633).
{¶26} B&B acknowledged that its breach of contract claim for negligent design
could be merged with its professional negligence claim. (Tr. 632). However, B&B
urged that because OJA’s duty to coordinate with other trades was a specific term of
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the contract, that particular breach of contract would not merge with the professional
negligence cause of action.
{¶27} The trial court noted that B&B’s case showed that architects have a
duty to coordinate regardless of the contract. (Tr. 632). B&B agreed that the duty to
coordinate was part of an architect’s standard of care. (Tr. 634). Still, B&B did not
want the breach of contract claim to merge with the professional negligence claim
because OJA planned to present a contributory negligence defense in the tort action
which would not constitute a defense in the contract action. (Tr. 632-635).
{¶28} The trial court concluded that “the duty of coordination is part and
parcel of professional duties as an architect” and thus the claims would merge as
there was nothing extra or specific involved in this contract that would not already be
covered by the professional standard of care for architects. (Tr. 637-638). On this
basis, the court granted OJA’s motion and eliminated the contract claim. (Tr. 638).
{¶29} On appeal, B&B first argues that the breach of the obligation to
coordinate with other disciplines is different than a breach of the architectural duty of
care. However, B&B admitted below that the standard of care encompassed this
obligation to coordinate. Therefore, B&B cannot now argue the opposite. (Tr. 634).
B&B also essentially admitted that merger of claims is permissible in certain
situations as it agreed that the negligent design portion of the breach of contract
cause of action merged with professional negligence cause of action. Thus, B&B’s
main argument here is that a breach of contract action for failure to coordinate can be
maintained even if the contract does not impose an obligation different than the
professional standard of care for architects.
{¶30} Before reaching this argument, we address OJA’s contention that any
error in eliminating the breach of contract claim would be harmless because B&B
pointed to no damages that arose separately from the breach of contract. See
Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 151, 684
N.E.2d 1261 (8th Dist.2005) (even if a duty independent of contract exists, an action
arising out of a contract which is also based on tortious conduct must include
damages attributable to the tortfeasor in addition to those attributable to the breach of
contract).
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{¶31} B&B explained below that the breach of contract claim would not be
susceptible to OJA’s defense that others were negligent as the tort claim would be.
Since the jury ruled against OJA on that defense, the concern previously expressed
by B&B would now be moot. However, as B&B points out, had their contract claim
succeeded, they would have automatically received prejudgment interest. See R.C.
1343.03(A); Royal Elec. Constr. Corp. v. Ohio State Univ., 73 Ohio St.3d 110, 116,
652 N.E.2d 687 (1995). Whereas, B&B currently has to prove that OJA failed to
make a good faith effort to settle in order recover prejudgment interest (on its stayed
motion that is pending before the trial court). See R.C. 1343.03(C). Consequently, if
the trial court erred in eliminating B&B’s contract claim, the error would not be
considered harmless.
{¶32} We thus proceed with the arguments presented on whether the trial
court erred in eliminating the contract claim from the jury’s consideration. B&B
reviews cases that successfully proceeded on contract claims against architects.
See First Natl. Bank of Akron v. Cann, 503 F.Supp. 419 (N.D.Ohio 1980) (where
court found plaintiff failed to prove professional negligence but did prove breach of
contract against architect); South Union Ltd. v. George Parker & Assocs., AIA, Inc.,
29 Ohio App.3d 197, 504 N.E.2d 1131 (10th Dist.1985) (architect liable for breach of
contractual duties); Elizabeth Gamble v. Turner Constr. Co., 14 Ohio App.3d 281,
470 N.E.2d 950 (1st Dist.1984) (tort claim was barred by statute but contract claim
was not). Although these cases show that suits do often proceed on alternative
theories, these cases do not directly answer the question of whether a court errs in
eliminating a contract claim because it is based upon the same facts as a
professional negligence claim.
{¶33} In support of its contention that a tort claim and a contract claim based
upon the same set of facts cannot coexist, OJA cites two Eighth District cases which
held that a contract claim precludes the presentation of a tort claim on the same facts
unless the tort claim would exist even if no contract existed. See Jain v. Omni
Publishing, Inc., 8th Dist. No. 92121, 2009-Ohio-5221, ¶ 27; Textron, 115 Ohio
App.3d at 151. But, this law does not support OJA.
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{¶34} These cases stand for the basic principle that merely because there is a
breach of contract does not mean that a tort has been committed. See Jain, 8th Dist.
No. 92121 at ¶ 27; Textron, 115 Ohio App.3d at 151. They then provide that a tort
claim can coexist if the defendant “breaches a duty owed separately from the duty
created by the contract, that is, a duty owed even if no contract existed.” Id. See
also Evans Landscaping, Inc. v. Stenger, 1st Dist. No. C-110104, 2011-Ohio-6033, ¶
16; Gold Craft v. Ebert’s Contracting & Remodeling, LLC, 10th Dist. No. 09AP-448,
2010-Ohio-3741, ¶ 21. As B&B points out, it is undisputed that the architect’s
professional duties existed even if there had been no contract. And, these cases
involve the barring of a tort action, not the barring of a contract action (which was the
case here).
{¶35} OJA continues by urging that architectural negligence, in the absence
of a special agreement outlining duties different than those already existing, is a tort
claim, citing Crowninshield v. Old Town Apts., LTD., 1st Dist. Nos. C-940731, C-
940748 (Apr. 17, 1996). In that case, the complaint alleged that the defendant
breached contractual obligations and warranties when designing a building
renovation. The trial court concluded that the contract claim was actually a tort claim
(barred by the shorter statute of limitations for torts).
{¶36} The appellate court stated that an architect is not liable for
unsatisfactory results unless there was a failure to exercise reasonable care and skill
or “a special agreement.” Id. As the architectural contract only generally required the
architect to design the project and did not contain special provisions which gave rise
to express or implied warranties of workmanship, the court refused to find an implied
contractual warranty of workmanship. Id. The court concluded that the gist of the
claims asserted against the architect sounded in tort, as the underlying nature of the
claims alleged negligent design. Id. (finding the cause of action to be time-barred).
{¶37} B&B states that cases characterizing a claim as tort or contract for
purposes of a statute of limitations are not relevant when no statute of limitations
issue exists. B&B alternatively states that Crowninshield supports its position, rather
than OJA’s position, because the contract here does contain an express promise: to
coordinate with other engineering disciplines. OJA responds by reiterating that the
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contractual promise to coordinate was admitted to be part of the standard of care for
architects and thus is not separately actionable, comparing the situation to that of
malpractice.
{¶38} An action against one's attorney for damages resulting from the manner
of representation is an action for malpractice regardless of whether based upon
contract or tort or whether for indemnification or for direct damages. Pierson v. Rion,
2d Dist. No. CA23498, 2010-Ohio-1793, ¶ 14. Hence, when the gist of a complaint is
malpractice, other duplicative claims are subsumed in the malpractice claim and the
court can construe the complaint as only presenting a malpractice claim. Estate v.
Barney v. Manning, 8th Dist. No.94947, 2011-Ohio-480, fn.2 (breach of fiduciary duty
and negligence claims are embodied in and thus subsumed within their legal
malpractice claim); Illinois Natl. Ins. Co. v. Wiles, Boyle, Burkholder & Bringardner
Co., L.P.A., 10th Dist. No. 10AP-290, 2010-Ohio-5872, ¶ 15-17; Pierson, 2d Dist. No.
CA23498 at ¶ 13-14; Knepler v. Cowden, 2d Dist. No. 17473 (Dec. 23, 1999) (trial
court properly removed breach of contract claim from jury because claim sounded in
professional negligence rather than contract as all acts were medical malpractice).
{¶39} Accordingly, a separate claim for a contract can only proceed where the
alleged conduct to support that claim is distinct from the conduct underlying the
malpractice claim. Illinois Natl., 10th Dist. No. 10AP-290 at ¶ 17 (breach of contract
and breach of fiduciary duty claims were subsumed within its legal malpractice claim
because no conduct occurred except that which already constituted the malpractice
claim). Pierson, 2d Dist. No. CA23498 at ¶ 14 (claims for fraud, breach of contract,
and misrepresentation were not founded upon conduct distinct from that supporting
legal malpractice claim but rather were duplicative claims concerning same
omissions).
{¶40} As discussed at oral argument, this leaves the court with two options.
Our first option would be to rule in favor of OJA by extending the above malpractice
premises to professional negligence claims so that where a breach of contract is also
a breach of the standard of care, the contract claim is subsumed by the professional
negligence action unless there is distinct conduct to support the contract claim that is
not used to support the negligence claim. This was the option essentially chosen by
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the trial court when it stated that if the contract contained specific obligations that
were not part of the standard of care for architects, then the contract claim could
remain as the acts or omissions used to support the contract claim would be distinct
from the acts or omissions used to support the professional negligence claim. This
option would entail a holding that, although there was a specific contract claim said to
be violated, the conduct utilized to support the professional negligence claim was not
different than the conduct used to support the breach of contract claim.
{¶41} Our other option would be to point out that the cases ruling that contract
claims are subsumed by a malpractice claim all deal with legal or medical
malpractice. For purposes of the one-year malpractice statute of limitations, the
common law definition of malpractice pertains only to legal and medical negligence,
not other types of professional negligence. Hocking Conservancy Dist. v. Dodson-
Lindblom Assoc., 62 Ohio St.2d 195, 198, 404 N.E.2d 164 (1980) (professional
engineer is not considered to have committed “malpractice”); Richardson v. Doe
(1964), 176 Ohio St. 370, 372, 199 N.E.2d 878. This option would entail a refusal to
extend the rule that a contract claim is subsumed by a malpractice claim and thus a
refusal to create a new rule that a contract claim is subsumed by a professional
negligence claim. B&B would have us conclude that, except for this particular rule in
medical and legal malpractice cases, a plaintiff can generally set forth whatever
theories of legal recovery that he has against a defendant because, although he
cannot recover duplicative damages, the case can proceed on both contract and tort
theories. See D.A.N. Joint Venture III LP v. Med X-S Solutions, Inc., 11th Dist. No.
2011-L-056, 2012-Ohio-980 (noting that duplicative damages are prohibited but
recognizing that a plaintiff can have separate and independent causes of action in
tort and contract).
{¶42} However, if we were to rule in favor of B&B on this issue, we would end
up reversing and remanding for a new trial on the entire case. As can be seen from
the above analysis, the tort and contract claims are extremely intertwined, and thus,
we would not be comfortable remanding for a new trial on only the contract claim.1
1
The appellate court has discretion to determine the scope of the remand. State ex rel. Smith
v. O’Connor, 71 Ohio St.3d 660, 662, 646 N.E.2d 1115 (1995) (court of appeals is not required to
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When advised of this result at oral argument, B&B effectively withdrew this
assignment of error from our consideration as they did not wish to risk losing the tort
judgment they already possess. As such, we proceed no further on this matter and
leave intact the trial court’s judgment precluding the breach of contract claim.
OJA’S FIRST ASSIGNMENT OF ERROR IN THE CROSS-APPEAL
{¶43} OJA’s first of four assignments of error set forth in its cross-appeal
alleges:
{¶44} “THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY
AND TEST ITS DECISION ON THE NEGLIGENCE OF CERTAIN NON-PARTIES.”
{¶45} OJA begins by asserting that B&B acknowledged that the following third
parties were partially responsible for the mold problems: Northshore Mechanical
(who was responsible for mechanical and HVAC), Panzica (who was involved in
pouring the floor under the ice rink), and Gilmour Academy. OJA asserts that this
acknowledgment can be found in statements made by B&B’s counsel, B&B’s project
manager, and B&B’s expert witness. Based upon these alleged acknowledgements,
OJA argues that the trial court erred in failing to submit to the jury its proposed jury
interrogatories to test the jury’s findings on the negligence and liability of these third
parties.
{¶46} OJA asked for six separate interrogatories asking if the jury found that
Gilmour Academy, Panzica, or Northshore Mechanical was negligent and if their
negligence was the proximate cause of the damages. See Proposed Jury
Interrogatories 5-10. If the jury answered yes to all or any of these parties, another
proposed interrogatory asked the jury to assign the percentage of negligence of OJA
and the other party or parties. See Proposed Jury Interrogatory 11. Instead of the
proposed six, the court submitted one interrogatory that stated:
{¶47} “As part of its defense, OJA claims that others were comparatively
negligent. Has OJA proven by a preponderance of the evidence that others were
issue limited remand only on damages and could choose to remand for whole new trial). Where the
issues are much intertwined, courts are generally inclined to remand for a new trial in toto rather than
just a new trial on the specific issue raised. See, e.g., World Metals, Inc. v. AGA Gas, Inc., 142 Ohio
App.3d 283, 290, 755 N.E.2d 434 (2001).
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negligent and that such negligence was the proximate cause of damages incurred by
B&B.” Jury Interrogatory 5.
{¶48} The next interrogatory stated, “If you answered yes to number five,
please identify each such parties percentage of negligence.” It then listed B&B, OJA,
and Northshore Mechanical with blanks for the percentages next to each. Jury
Interrogatory 6.
{¶49} We conclude that Interrogatory 5 was a reasonable substitution for
proposed Jury Interrogatories 5-10. It was within the trial court’s sound discretion to
submit one interrogatory on the negligence and proximate cause of any other entity
instead of separate interrogatories on each entity and separate interrogatories on
negligence and proximate cause regarding each entity. See, e.g., Ramage v. Cent.
Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 107, 592 N.E.2d 828, ¶3 of syllabus
(1992) (discretion to combine redundant interrogatories); Nolan v. Conseco Health
Ins. Co., 7th Dist. Nos. 07JE30, 07JE31, 2008-Ohio-3332, ¶ 85. Contrary to OJA’s
assertion, the trial court did not ignore its request to test whether the jury found that
third parties were also negligent and whether that negligent proximately caused the
damages at issue.
{¶50} OJA believes that the trial court violated R.C. 2307.23, which provides:
{¶51} “(A) In determining the percentage of tortious conduct attributable to a
party in a tort action under section 2307.22 or sections 2315.32 to 2315.36 [relevant
to the contributory negligence of the plaintiff] of the Revised Code, the court in a
nonjury action shall make findings of fact, and the jury in a jury action shall return a
general verdict accompanied by answers to interrogatories, that shall specify all of
the following:
{¶52} “(1) The percentage of tortious conduct that proximately caused the
injury or loss to person or property or the wrongful death that is attributable to the
plaintiff and to each party to the tort action from whom the plaintiff seeks recovery in
this action;
{¶53} “(2) The percentage of tortious conduct that proximately caused the
injury or loss to person or property or the wrongful death that is attributable to each
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person from whom the plaintiff does not seek recovery in this action.” (Emphasis
added).
{¶54} It is important to note the statutory language establishing the
requirements of R.C. 2307.23(A)(2) regarding comparative negligence is effective
only when determining the percentage attributable to each person under R.C.
2307.22. This latter section deals with joint and several tort liability. Where a jury
has expressly found that no other person was negligent, R.C. 2307.23 is essentially
not activated.
{¶55} In any event, as aforementioned, the court did provide an interrogatory
specifically asking the jury to assign the percentage of liability to B&B, OJA, and
Northshore. As such, OJA’s appellate arguments regarding Northshore are wholly
without merit. Regarding Gilmour and Panzica, the jury answered Interrogatory 5 in
the negative, and thus, they never had to reach Interrogatory 6. Accordingly, it was
not prejudicial that Gilmour and Panzica were not listed in Interrogatory 6. That is,
the jury had already specifically found that no others were negligent or that the
negligence of others was not the proximate cause of the damages here. Thus, the
presence or absence of certain names on Interrogatory 6 was without effect.
{¶56} And, as B&B points out, besides a citation in its statement of facts to
the project manager’s testimony, OJA fails to cite where in the record B&B
“acknowledged” that some negligence should be attributed to Panzica and Gilmour
(who was the injured client). See OJA’s Brief at 1, 10. B&B also notes that OJA
presented no evidence on the liability of these other parties. Furthermore, as B&B
notes, merely because its project manager originally believed OJA when it claimed
that the mechanical trade, the client, and the client’s representative were negligent
due to an HVAC decision, does not mean that B&B cannot now claim that all of the
negligence was that of OJA. (Tr. 338, 345). In other words, after all of the facts and
opinions came out during arbitration, B&B was disabused of the OJA-induced notion
that other entities besides OJA were at fault. For all of these reasons, this
assignment of error is overruled.
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OJA’S THIRD ASSIGNMENT OF ERROR IN ITS CROSS-APPEAL
{¶57} The third assignment of error presented by OJA will be addressed prior
to its second assignment of error as the second assignment deals with a jury
interrogatory which is dependent on the merits of an argument presented here. The
third assignment contends:
{¶58} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING THE MOTIONS FOR DIRECTED VERDICT OF DEFENDANT-
APPELLEE/CROSS-APPELLANT.”
{¶59} A motion for directed verdict tests the sufficiency of the evidence at trial,
not the weight of such evidence or the credibility of witnesses. Carter v. R&B Pizza
Co., Inc., 7th Dist. No. 09JE34, 2010-Ohio-5937, ¶ 13, citing Strother v. Hutchinson,
67 Ohio St.2d 282, 284, 423 N.E.2d 467 (1981). A motion for directed verdict can be
granted only if the trial court has construed the evidence most strongly in favor of the
non-movant and still finds that reasonable minds could come to but one conclusion
upon the evidence submitted and that conclusion is adverse to the non-movant.
Civ.R. 50(A)(4).
{¶60} OJA divides this assignment of error into three parts. First, OJA
contends that the trial court erred in denying the branch of their directed verdict
motion which alleged that B&B failed to present expert testimony that the cost to
restore the property was reasonable, i.e. that the fees charged by the restorers were
not unreasonable. (Tr. 619-620). OJA states that the absence of expert testimony
on restoration costs is fatal to a claim for property damage.
{¶61} The cases OJA’s cites here are not supportive of their position. For
instance, in Hopkins, the court limited its holding to cases involving future repairs that
had not yet been conducted and specifically distinguished its holding from cases
where repairs had already been conducted. Hopkins v. Mason, 9th Dist. No.
06CA0103-M, 2007-Ohio-4345. And, the unpersuasive trial court case cited by OJA
actually relies on an appellate case which notes that evidence of reasonableness is
often not required where there is bill for services actually rendered. Seaboard’s
Restoration Co., Inc. v. Loyer, 9th Dist. No. 1179 (Mar. 2, 1983).
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{¶62} As urged by B&B below, Ohio law does not require expert testimony on
all damages involving cost to repair. See Evans Landscaping, Inc. v. Stenger, 1st
Dist. No. C-110104, 2011-Ohio-6033, ¶ 24. Moreover, the witnesses need not
specifically use the word “reasonable” in order to satisfy the plaintiff’s burden on
damages. Russell v. Turner, 12th Dist. No. CA87-08-063 (Feb. 1, 1988), citing
Wagner v. McDaniels, 9 Ohio St.3d 184, 459 N.E.2d 561 (1984) (requiring one to
utter words on whether a fee is reasonable constitutes empty ceremony). B&B
alternatively posits that they did provide expert testimony that the repair costs were
reasonable. B&B also urges that, since this case involved indemnification as well, it
only had to show that its settlement offer to Gilmour was fair and reasonable. As
reasonableness is involved either way, we proceed in the analysis regarding whether
B&B presented sufficient evidence that the repair costs were reasonable.
{¶63} The director of maintenance at Gilmour testified as to his coordination
on the mold abatement project, and he introduced paid invoices related to this
project, invoices whose payment he approved. (Tr. 385, 404, 423-427). He stated
that laboratory results showed that a deep-rooted mold had settled itself in a way that
required the removal of drywall. (Tr. 395). He testified that a plan was created by an
engineering consultant. (Tr. 397). They then solicited bids from contractors who had
done similar work and who had a proven track record. (Tr. 401). He testified that the
contractors viewed the site and that some did not end up submitting bids. (Tr. 402).
{¶64} As to the first phase of repair involving demolition and mold
remediation, he testified that they received bids for $104,527 and $94,000, and they
went with the lowest bidder. (Tr. 405, 411). As to the next phase, he testified they
accepted a bid for $49,000 for one job, stating that the chosen company was the
lowest bidder and had a proven track record. (Tr. 409-410). They accepted the bid
from the same company for $143,000 for the main reconstruction. (Tr. 410-411).
This company was responsible for electrical relocation, building a metal double stud
wall, installing a vapor barrier, insulation, and drywall, and painting. (Tr. 411-412).
The director of maintenance also explained the change orders. (Tr. 419-420).
Finally, he testified that they have had no complaints about the work done and that
the mold has not returned in the six years since the project. (Tr. 421-426).
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{¶65} Testimony was then presented by the registered professional engineer
whose architectural engineering firm was hired to design and coordinate the repair.
His expertise on the matters at hand was established. (Tr. 488). He testified to the
facts of the situation and the issues that needed to be corrected and why. (Tr. 488-
502). He stated that his firm was paid for the project, that his fees charged were in
line with standard rates, and that standard rates are 6-8% of the cost of construction.
(Tr. 504). He also testified that his opinions were held by a reasonable degree of
scientific certainty as a professional engineer. (Tr. 505-506).
{¶66} An architect, who worked for the architectural engineering firm, was
also established as an expert. (Tr. 534). She testified that she agreed with the
remediation plan drafted by the engineer and opined that it was the most cost-
effective fix for the situation. (Tr. 536, 541). She stated that she was involved in
competitively bidding the work in order to solicit the lowest possible bid. (Tr. 541).
She answered that her firm had no incentive to solicit high bids as they were paid by
the hour. (Tr. 541-542).
{¶67} She identified the bids received. (Tr. 542). She stated that she was
satisfied with the bids received and that the low bids were accepted. (Tr. 543). She
explained that when the bids are reasonably close together it tends to show the
prices are reasonably fair and cover the proper scope of the project. (Tr. 543). This
architect reviewed and approved the payment applications and certified that the bills
were appropriate to be paid. (Tr. 544). She confirmed that her firm billed Gilmour at
their standard rates and that they did not unnecessarily increase costs in any way.
(Tr. 545.). Finally, she opined that their fix solved the problem as no mold has been
seen in the six years since the repair. (Tr. 545-546).
{¶68} Considering all of this in the light most favorable to B&B, some
reasonable person could find that there was sufficient evidence that the bills paid for
repairs represented reasonable fees for the services rendered. As such, the trial
court properly refused to grant directed verdict on this issue.
{¶69} The second issue presented here is whether the absence of evidence
on diminution in value bars a claim for damage to commercial real property. OJA
insists that even if there is testimony that the repair costs paid were reasonable, there
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must be evidence that the repair costs did not exceed the diminution in value. Thus,
OJA contends that B&B was required to present evidence on the fair market value of
the ice rink facility immediately before the injury and the fair market value
immediately after the injury. OJA relies upon the following rule:
{¶70} “If the injury is of a permanent or irreparable nature, the measure of
damages is the difference in the market value of the property as a whole, including
the improvements thereon, before and after the injury. If the injury is susceptible of
repair, the measure of damages is the reasonable cost of restoration, plus
reasonable compensation for the loss of the use of the property between the time of
the injury and the restoration, unless such cost of restoration exceeds the difference
in the market value of the property before and after the injury, in which case the
difference in market value becomes the measure.” Ohio Collieries Co. v. Cocke, 107
Ohio St. 238, 248-249, 140 N.E. 356 (1923) (a residential property case).
{¶71} Ohio Collieries is no longer good law, but OJA believes that it
represented the damage formula for commercial and non-commercial realty and that
later law changed the formula only with regards to non-commercial property. In
Martin, the Supreme Court explained that it had previously excised the diminution in
value requirement for proving whether repair costs are reasonable. Martin v. Design
Constr. Servs., Inc., 121 Ohio St.3d 66, 2009-Ohio-1, 902 N.E.2d 10, ¶ 19, citing
Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo (1933),
126 Ohio St. 140, 184 N.E. 512 (1933) (a case that was not residential property but
was also not commercial property). The Martin Court expressed: “First
Congregational signaled a shift from a diminution-of-market-value approach to a
reasonable-cost-of-repair approach when deciding the measure of compensation for
temporary damage to noncommercial real property.” Id. at ¶ 21. The Court
concluded:
{¶72} “The rule expressed in Ohio Collieries, that damages for temporary
injury to property cannot exceed the difference between market value immediately
before and after the injury, is limited. In an action based on temporary injury to
noncommercial real estate, a plaintiff need not prove diminution in the market value
of the property in order to recover the reasonable costs of restoration, but either party
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may offer evidence of diminution of the market value of the property as a factor
bearing on the reasonableness of the cost of restoration.”
{¶73} “While evidence of loss in market value of the property may be relevant,
the essential inquiry is whether the damages sought are reasonable. Either party may
introduce evidence to support or refute claims of reasonableness, including evidence
of the change in market value attributable to the temporary injury. But proof of
diminution in value is not a required element of the injured party's case.” Id. at ¶ 24.
{¶74} OJA recognizes that the Supreme Court has excised the diminution
requirement of Ohio Collieries but claims that such excision was only relevant to
cases involving non-commercial property because the Court specified non-
commercial property in proclaiming its rule. However, one could conclude that the
reason the Martin Court mentioned non-commercial property in its holding was
because that was the certified question presented to it. Id. at ¶ 1. In fact, the Martin
Court pointed out that other courts have applied Ohio Collieries in the way the Ninth
District did in the case the Supreme Court was reversing. Id. at ¶ 16. One of the
examples the Supreme Court provided was a commercial property case. Id., citing
Shell Oil Co. v. Huttenbauer Land Co., 118 Ohio App.3d 714, 722, 693 N.E.2d 1168(1st Dist.1997) (holding that while the defendant did present evidence of the cost to
repair its property, the failure to present any evidence of the fair market value of the
property before and after it was damaged by the plaintiff was fatal). (Also note that
Westlaw’s Keycite program “red flags” the commercial Shell case and explains that it
was abrogated by the non-commercial Martin case).
{¶75} After Martin, courts addressing the issue have concluded that there is
no reason to distinguish between commercial and non-commercial property for
purposes of proving that repair costs are reasonable and have thus refused to
require diminution in value evidence as a mandatory element of damages for
temporary damage to commercial realty. Northpoint Properties v. Charter One Bank,
8th Dist. No. 94020, 2011-Ohio-2512, ¶ 31, 37; Monroe v. Steen, 9th Dist. No. 24342,
2009–Ohio–5163, ¶ 22-23. See also Case Leasing & Rental, Inc. v. Ohio Dept. of
Natural Resources, 10th Dist. No. 09AP-498, 2009–Ohio–6573, ¶ 28, 41 (suggesting
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Martin applies in a case involving temporary damage to a commercial sports complex
and that restoration is no longer capped by diminution in value)
{¶76} OJA cites a Ninth District case applying the diminution requirement in a
commercial property case. Bohaty v. Centerpointe Plaza Associates Ltd.
Partnership, 9th DIst. No. 3143-M, 2002-Ohio-749 (also stating that the only
exception to the general damages cap is when real estate is held for non-commercial
use, when there are reasons personal to the owner for seeking restoration, and when
the diminution in fair market value does not adequately compensate the owner for the
harm done). However, the Ninth District case relied upon by OJA is a pre-Martin
decision.
{¶77} The Ninth District has since altered its precedent and has specifically
applied Martin to commercial realty. See Monroe, 9th Dist. No. 24342 at ¶ 22-23. In
Monroe, the Ninth District announced: “Although Martin involved residential property,
we find that the concepts enunciated in Martin apply equally to injury to commercial
property and thus, we cannot discern a meaningful distinction between commercial
and residential property that would limit the Supreme Court's holding in Martin to
residential property.” Id. at ¶ 22.
{¶78} We hereby adopt the Eighth, Ninth, and Tenth District’s holdings finding
Martin applicable to commercial cases so that a plaintiff’s failure to present evidence
on diminution in value does not destroy its entire case. As the Martin court stated,
the defendant can choose to present evidence on the fair market value prior to the
injury and the fair market value after the injury if it believes that such amount is less
than the restoration cost and if it believes it would help show that the repair was not
reasonable. Martin, 121 Ohio St.3d 66 at ¶ 24. The following holding is just as
applicable to the case at hand as it would be to damages to a church or other non-
commercial land:
{¶79} “While evidence of loss in market value of the property may be relevant,
the essential inquiry is whether the damages sought are reasonable. Either party may
introduce evidence to support or refute claims of reasonableness, including evidence
of the change in market value attributable to the temporary injury. But proof of
diminution in value is not a required element of the injured party's case.” Id. at ¶ 25.
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{¶80} We agree that there is no meaningful distinction between commercial
and non-commercial property that would require an ice rink to accept a damage
award that would not fix the injury and would require it to maintain its condition of a
deep-rooted and proliferating mold but a church or home can be fixed without being
required to show evidence of diminution.
{¶81} The third argument OJA presents here is that B&B’s implied
indemnification claim is prohibited, claiming that B&B admitted it was actively
negligent. See Reynolds v. Physicians Ins. Co. of Ohio, 68 Ohio St.3d 14, 623
N.E.2d 30 (1993) (indemnification applies when secondary party was liable for acts
committed solely by primarily liable party), citing Globe Indemnity Co. v. Schmitt, 142
Ohio St. 595, 603, 53 N.E.2d 790 (1944) (when a person is secondarily liable due to
his relationship to the other party, and is compelled to pay damages to an injured
party, he may recoup his loss for the entire amount of damages paid from the one
who is actually at fault, and who, in fact, caused the injuries); Mahathiraj v. Columbia
Gas of Ohio, Inc., 84 Ohio App.3d 554, 565, 617 N.E.2d 737 (10th Dist.1992) (thus,
where a party is actively negligent, they have no right of indemnity as a matter of
law).2 OJA raised this issue at trial as well. (Tr. 642-643).
{¶82} B&B points out that OJA does not argue that damages would not have
been permissible on the malpractice claim even without the indemnification claim. In
any event, B&B urges that there existed no admission that the minor roof issue was
related to the mold damage issue that resulted from design malpractice.
{¶83} OJA fails to provide citations to the record on this topic within the
argument section as required by appellate rule. See App.R. 16(A) (“The appellant
shall include in its brief, under the headings and in the order indicated, all of the
following: * * * An argument containing the contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
2
We note that OJA also cites Ohio’s Anti-Indemnity Statute as an analogy in support of their
claim that indemnification is prohibited where the party seeking indemnification was actively negligent.
See R.C. 2305.31. As B&B points out, the statute is inapplicable here as it deals with express
contracts for indemnification and it involves situations where the promisee is seeking indemnification
for its own negligence, which is not the situation here. See Hopkins v. Babcock & Wilson Co., 19 Ohio
App.3d 291, 484 N.E.2d 271 (10th Dist.).
-22-
which appellant relies.”). See also App.R. 12(A)(2) (“The court may disregard an
assignment of error presented for review if the party raising it fails to identify in the
record the error on which the assignment of error is based or fails to argue the
assignment separately in the brief, as required under App.R. 16(A).”)
{¶84} We do notice that OJA’s statement of facts cites to the purported
admissions of B&B. For instance, OJA states that Gilmour’s director of maintenance
testified that B&B’s project manager acknowledged B&B was responsible for defects
at the peak of the building. (Tr. 430-431). The testimony of Gilmour’s employee is
evidence, but it does not constitute a binding and irrefutable admission on behalf of
B&B. Moreover, he did not testify that the issue was related to the mold restoration
project.
{¶85} OJA then cites to the testimony of the architect involved in Gilmour’s
repair, who acted as B&B’s expert at trial and who acknowledged issues with B&B’s
performance on the eaves. (Tr. 556). However, the architect testified that the eaves
were not related to moisture or mold but involved only air infiltration. (Tr. 556).
{¶86} And, as B&B responds, the cited examples were instances of
discussions regarding an irrelevant issue with the roof eaves, which was described
as a separate issue unrelated to the mold problems caused by OJA’s design defects.
Contrary to OJA’s contention, B&B’s attorney did not stipulate that B&B was actively
negligent regarding the development of mold. (Tr. 643). In responding to OJA’s
arguments on this topic at trial, counsel stated that any negligence of B&B regarding
roof gables was a distinct matter from OJA’s partition wall design defect. Counsel
stated that the roof item was a $6,400 issue that is completely separable and not part
of the suit. (Tr. 643). Counsel explained this to the jury in opening and closing. (Tr.
125, 863-864).
{¶87} The matter raised by OJA here may have created an issue for the jury
(who specifically answered that neither B&B itself nor others were negligent or their
negligence did not proximately cause the damages at issue), but it did not constitute
an admission that B&B was actively negligent as to the claimed damages. Thus,
indemnification was not prohibited on this basis. This assignment of error is
overruled.
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OJA’S SECOND ASSIGNMENT OF ERROR IN ITS CROSS-APPEAL
{¶88} The second assignment of error presented by OJA contends:
{¶89} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FAILING TO CHARGE THE JURY AND TEST ITS DECISION ON THE ISSUE OF
DIMUNTION IN VALUE OF THE PROPERTY.”
{¶90} OJA asked the court to provide a jury interrogatory asking the jury what
the fair market value of the property was before the injury and another jury
interrogatory asking the jury what the fair market value of the property was after the
injury. (Tr. 811-813). See also Proposed Jury Instructions and Proposed Jury
Interrogatories. Additionally, OJA asked for an instruction that the restoration costs
are limited by the diminution in value. The court refused. OJA now briefly argues
that the failure to place this issue before the jury constituted reversible error.
{¶91} This assignment of error is dependent on our resolution of the second
part of assignment of error number three. Since diminution in value is not a required
element of the plaintiff’s case, this assignment is without merit. That is, the court
need not instruct that diminution limits the repair costs if this limit is no longer
required to prove damages in Ohio. And, the jury interrogatories on fair market value
before and after would not be required in this event because OJA apparently did not
set forth evidence on this topic. Rather, they were maintaining that the burden was
on the plaintiff to set forth diminution in value. For the above reasons, this
assignment of error is overruled.
OJA’S FOURTH ASSIGNMENT OF ERROR IN ITS CROSS-APPEAL
{¶92} The final argument set forth by OJA is as follows:
{¶93} “THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT
THE JURY REGARDING IMPLIED INDEMNIFICATION.”
{¶94} In their pretrial filing of proposed jury instructions, OJA sought the
following lengthy instruction on indemnity:
{¶95} “Indemnity is available only to one who, because of a relationship to
another whose acts or omissions give rise to an action, is vicariously or secondarily
liable to the person injured as a consequence of those acts or omissions.
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{¶96} “The rule of indemnity provides that ‘where a person is chargeable with
another’s wrongful act and pays damages to the injured party as a result thereof, he
has a right of indemnity from the person committing the wrongful act, the party paying
the damages being only secondarily liable; whereas, the person committing the
wrongful act is primarily liable.’ When a person is secondarily liable due to his
relationship to the other party, and is compelled to pay damages to an injured party,
he may recoup his loss for the entire amount of damages paid from the one who is
actually at fault, and who, in fact, caused the injuries.
{¶97} “An implied contract of indemnity should be recognized in situations
involving related tortfeasors, where the one committing the wrong is so related to a
secondary party as to make the secondary party liable for the wrongs committed
solely by the joint or concurrent tortfeasors and are both chargeable with actual
negligence. Absent fault, there is no basis for indemnification under Ohio law since
one party must be chargeable for wrongful conduct of another as a prerequisite for
indemnity.”
{¶98} In charging the jury, the court explained the architect-client relationship,
architectural negligence, the standard of care, causation, and other pertinent
concepts. On the specific topic of indemnity, the court instructed:
{¶99} “The Plaintiff, B&B, alleges that Defendant, Olsavsky Jaminet
Architects, Inc., known as OJA, committed negligence in its design services as a
subcontractor, as a result of which and by virtue of contracts between Gilmour and
B&B, B&B was held to answer to Gilmour in the amount of restoration costs
contested between the parties. Under the legal doctrine known as common law
indemnity, B&B is entitled to recoup its financial losses to Gilmour, provided B&B
meets its burden of proof both that OJA was negligent, and that such negligence was
a direct and proximate cause of the damages sustained by Gilmour and B&B. * * * In
order to recover against OJA the Plaintiff must prove by the greater weight of the
evidence that OJA was primarily negligent, and that such negligence was a direct
and proximate cause of Plaintiff’s losses, and that Plaintiff was damaged by this
negligence.” (Tr. 894-895).
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{¶100} On appeal, a party may not assign as error the giving or the failure to
give any instruction unless the party objected before the jury retired to consider its
verdict, stating specifically the matter objected to and the grounds for the objection.
Civ.R. 51(A). OJA did not specifically state on the record what was wrong with the
trial court’s instruction except to say that their proposed instruction should be
provided as it represented a fair and complete statement of Ohio law on common law
or implied indemnification. (Tr. 811, 814). OJA briefly claims here that its proposal
was a proper statement of the law. OJA does not argue that the trial court’s
instruction was incorrect, but urges that the trial court’s instruction inadequately
defined the concept of indemnity.
{¶101} A determination as to which jury instructions are proper is a matter left
to the sound discretion of the trial court, and thus, a trial court’s formulation of the
instructions is upheld absent an abuse of discretion. State v. Wolons, 44 Ohio St.3d
64, 68, 541 N.E.2d 443 (1989); State v. Guster, 66 Ohio St.2d 266, 271, 421 N.E.2d
157 (1981). In evaluating whether the court acted unreasonably, unconscionably, or
arbitrarily, we consider the jury instructions as a whole. State v. Jalowiec, 91 Ohio
St.3d 220, 231, 744 N.E.2d 163 (2001).
{¶102} As B&B urges, a jury instruction should clearly and concisely state the
principles of law necessary to enable the jury to evaluate the case. Cleveland
Electric Illuminating Co. v. Astorhuest Land Co., 18 Ohio St.3d 268, 272, 480 N.E.2d
794 (1985). The requested instruction was long, repetitive, and not layperson-
friendly.
{¶103} Moreover, OJA fails to specify exactly what prejudice was suffered as
a result of the instruction given by the trial court. See, e.g., Smith v. Flesher, 12 Ohio
St.2d 107, 233 N.E.2d 137 (1967). This is especially true where the jury specifically
found that OJA was negligent in providing architectural services to B&B on the
Gilmour project, that this negligence was a proximate cause of B&B’s damages, that
B&B itself was not also negligent, and that only OJA’s negligence caused the
damage as no others were negligent. As such, this assignment of error is overruled.
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CONCLUSION
{¶104} B&B’s first assignment of error is sustained. Thus, the trial court’s
judgment precluding evidence of the damages B&B suffered as a result of paying
Gilmour’s attorney fees is reversed, and the case is remanded for further
proceedings on this specific component of damages. B&B’s second assignment of
error has been effectively withdrawn, and thus, no conclusion is reached on the issue
of whether the trial court erred in eliminating the contract claim. The four
assignments of error contained in OJA’s cross-appeal lack merit, and the trial court’s
decision on these matters is affirmed.
{¶105} For the foregoing reasons, the judgment of the trial court is affirmed in
part and reversed in part and remanded.
Donofrio, J., concurs.
Waite, P.J., concurs.