A.P.M. Technology, Inc. v. Ohio Penal Industries

2011 Ohio 369

Opinion

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor Columbus, OH 43215

614.387.9800 or 1.800.824.8263 www.cco.state.oh.us

A.P.M. TECHNOLOGY, INC.

Plaintiff/Counter Defendant

v.

OHIO PENAL INDUSTRIES

Defendant/Counter Plaintiff Case No. 2007-08899

Judge Joseph T. Clark

JUDGMENT ENTRY

{¶ 1} On November 30, 2010, the magistrate issued a decision recommending judgment for defendant/counter plaintiff in the amount of $226,198. On December 22, 2010, defendant/counter plaintiff filed a motion for prejudgment interest.

{¶ 2} The Tenth District Court of Appeals has held that “the failure to include prejudgment interest in the prayer for relief operates as a waiver of such a claim.” Cugini & Capoccia Builders, Inc. v. Ciminello's, Inc., Franklin App. No. 06AP-210, 2006- Ohio-5787, ¶34, citing Salvi v. Dunbar (Dec. 23, 1993), Franklin App. No. 93AP-1059; G&S Mgmt. Co. v. Commercial Union Ins. Cos. (June 3, 1993), Franklin App. No. 92AP- 1429.

{¶ 3} Inasmuch as defendant/counter plaintiff’s prayer for relief did not seek a specific award for prejudgment interest, nor did the remainder of the counterclaim expressly seek prejudgment interest, such claim was waived. Id. Accordingly, defendant/counter plaintiff’s motion for prejudgment interest is DENIED.

{¶ 4} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a magistrate’s decision within fourteen days of the filing of the decision, whether or not

Case No. 2007-08899 -2- JUDGMENT ENTRY

the court has adopted the decision during that fourteen-day period as permitted by Civ.R. 53(D)(4)(e)(i).” No objections were filed.

{¶ 5} The court determines that there is no error of law or other defect evident on the face of the magistrate’s decision. Therefore, the court adopts the magistrate’s decision and recommendation as its own, including findings of fact and conclusions of law contained therein. Judgment is rendered in favor of defendant/counter plaintiff in the amount of $226,198. Court costs are assessed against plaintiff/counter defendant. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.

_____________________________________

JOSEPH T. CLARK Judge

cc:

Christopher P. Conomy Linda R. Van Tine Assistant Attorney General 1410 Central Avenue 150 East Gay Street, 18th Floor Sandusky, Ohio 44870 Columbus, Ohio 43215-3130

Mark A. Stuckey 607 Bimini Drive Sandusky, Ohio 44870

AMR/cmd Filed January 11, 2011 To S.C. reporter January 27, 2011