Graves Lumber Co. v. Borkey

2009 Ohio 2786, 182 Ohio App. 3d 582
CourtOhio Court of Appeals
DecidedJune 15, 2009
DocketNo. 08CA0056-M
StatusPublished

This text of 2009 Ohio 2786 (Graves Lumber Co. v. Borkey) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graves Lumber Co. v. Borkey, 2009 Ohio 2786, 182 Ohio App. 3d 582 (Ohio Ct. App. 2009).

Opinion

Whitmore, Judge.

{¶ 1} Defendant-appellants, Star-Lite Building & Development Company (“Star-Lite”) and its owner, Michael K. Borkey (collectively, “appellants”), appeal from the judgment of the Medina County Court of Common Pleas. This court affirms.

I

{¶ 2} The subject of the litigation underlying this appeal is the construction of an addition and the installation of a new roof that were planned for a residence owned by Valentino Camardo. Camardo conducted some of the work himself, while also coordinating the work of several others, namely, David Ports and Dean [584]*584Yovichin, who served as the architects; appellants, who were to complete the framing of the addition and installation of the new roof; and Timothy Eubank, who was to install the brick veneer.

{¶ 3} Appellants began working on Camardo’s property in the fall of 2001. In order to begin the work, Borkey took the design plans to Graves Lumber Company to order all the requisite supplies, including the trusses and lumber for framing the addition. Throughout the course of the project, Camardo encountered several problems that resulted in modifications to the parties’ original plans and consequently led to increased costs in materials and labor, and ultimately, to several disputes that are the subject of this litigation.

{¶ 4} In September 2002, Graves filed suit seeking payment from appellants in the amount of $44,096.73, plus interest. The suit also named Camardo as a defendant, as the materials purchased from Graves were used on his residence. Appellants answered the complaint and cross-claimed against Camardo for breach of contract, alleging that they were owed $55,000 under their contract for work performed on Camardo’s addition. In response, Camardo answered Graves’s complaint and filed a cross-claim against appellants for breach of contract. Additionally, Camardo filed a counterclaim for declaratory judgment against Graves, requesting that the mechanic’s lien Graves had filed against Camardo’s property be declared invalid. Camardo also joined Eubank and USA Roofing, a supplier, who was later dismissed. Eubank filed a cross-claim against Camardo for $8,000 based on work he performed on the brick veneer.

{¶ 5} Graves moved to bifurcate the complaint; a first trial was held on the cross-claims of the various defendants and then a second trial was held on Graves’s complaint and Camardo’s declaratory judgment. After multiple days of testimony on the cross-claims, on August 21, 2006, the magistrate determined that appellants had prevailed on them claims against Camardo, as did Eubank. Camardo’s cross-claims were dismissed. Appellants and Camardo both objected to the magistrate’s findings. Before issuing a ruling on the parties’ objections, however, the magistrate held the second trial on Graves’s complaint and Camardo’s declaratory judgment counterclaim on September 25, 2006.

{¶ 6} On May 23, 2008, the trial court adopted the magistrate’s findings, which overruled the objections of both appellants and Camardo with respect to the cross-claims. In that same order, the trial court adopted the magistrate’s findings with respect to Graves’s complaint and Carmardo’s counterclaim. Appellants and Camardo filed objections to the magistrate’s findings on Graves’s complaint and Camardo’s counterclaim, which the trial court overruled on June 24, 2008.

{¶ 7} Both Camardo and appellants appealed the trial court’s judgment overruling their objection to the magistrate’s findings. The cases were consolidated [585]*585on appeal; however, Camardo’s appeal was dismissed by order of this court. Thus, only appellant’s two assignments of error remain before us for review.

II

Assignment of Error Number One

The court erred in holding that Star-Lite and Borkey were not entitled to interest under the Ohio Prompt Pay Statute, § 4113.61 of the Ohio Revised Code.

{¶ 8} In their first assignment of error, appellants argue that the trial court erred in denying their objection to the magistrate’s decision, because they are statutorily eligible for prejudgment interest on their claim against Camardo at a rate of 18 percent, pursuant to R.C. 4113.61 (“the prompt-payment statute”). We disagree, but for reasons other than those asserted by the trial court.

{¶ 9} This court reviews a trial court’s determination on objections to a magistrate’s decision for an abuse of discretion. Swift v. Swift 9th Dist. No. 23642, 2008-Ohio-1055, 2008 WL 649583, at ¶ 8. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. An abuse of discretion demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748.

{¶ 10} Appellants assert that the trial court erred when it determined that the prompt-payment statute was a penal statute and must be strictly construed. Appellants point to the trial court’s decision on the matter, where it held the following:

Interestingly enough, R.C. 4113.61 does not define the term “contractor” but it does draw a distinction between and “owner” and “contractor” * * * in R.C. 4513.61(A). Since R.C. 4113.61 is a penal statute, and must be strictly construed * * * [the trial court] finds that it does not apply when an owner is acting as his own general contractor. Since it doesn’t apply as to the prejudgment interest rate because it must be strictly construed, the Court also finds that R.C. 4113.61(B)(1) would not serve as authorization for this Court to award [appellants] reasonable attorney fees.

Instead, appellants argue that the prompt-payment statute is remedial in nature and accordingly should be liberally construed, although they cite no authority for their proposition. See App.R. 16(A)(7) and Loc.R. 7(B)(7).

{¶ 11} Ohio’s prompt-payment statute, codified at R.C. 4113.61(A)(1), “essentially requires a contractor to timely pay its subcontractor * * * undisput[586]*586ed amounts under a contract and sets forth penalties for noncompliance.” (Emphasis added.) Masiongale Elec.-Mechanical, Inc. v. Constr. One, Inc., 102 Ohio St.3d 1, 2004-Ohio-1748, 806 N.E.2d 148, at ¶ 10. Generally, the statute requires that, if a subcontractor submits a timely request for payment, “a contractor must pay the subcontractor in proportion to the work completed within ten calendar days of receiving payment from the owner.” Id. at ¶ 16, citing R.C. 4113.61(A)(1). If a contractor fails to comply with the provisions of the prompt-payment statute, he can be obligated to pay 18 percent annual interest on the overdue payment, as well as pay attorney fees and court costs associated with the subcontractor’s civil enforcement action. R.C. 4113.61(A)(1) and (B)(1).

{¶ 12} Contrary to the trial court’s assertion that R.C. 4113.61 does not define the terms “owner” or “contractor”, subsection (F) of the statute does, in fact, define both terms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Estate of Baker, Unpublished Decision (12-10-2007)
2007 Ohio 6549 (Ohio Court of Appeals, 2007)
Swift v. Swift, 23642 (3-12-2008)
2008 Ohio 1055 (Ohio Court of Appeals, 2008)
Boggs v. Boggs
692 N.E.2d 674 (Ohio Court of Appeals, 1997)
Midwest Curtainwalls, Inc. v. Pinnacle 701, 90591 (10-2-2008)
2008 Ohio 5134 (Ohio Court of Appeals, 2008)
Padrutt v. Village of Peninsula, 24272 (2-25-2009)
2009 Ohio 843 (Ohio Court of Appeals, 2009)
Saipin v. Coy, Unpublished Decision (5-26-2004)
2004 Ohio 2670 (Ohio Court of Appeals, 2004)
Blakemore v. Blakemore
450 N.E.2d 1140 (Ohio Supreme Court, 1983)
Pons v. Ohio State Medical Board
614 N.E.2d 748 (Ohio Supreme Court, 1993)
Masiongale Electrical-Mechanical, Inc. v. Construction One, Inc.
102 Ohio St. 3d 1 (Ohio Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
2009 Ohio 2786, 182 Ohio App. 3d 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graves-lumber-co-v-borkey-ohioctapp-2009.