Julian Speer Co. v. Ohio State University

680 N.E.2d 254, 83 Ohio Misc. 2d 93, 1997 Ohio Misc. LEXIS 258
CourtOhio Court of Claims
DecidedFebruary 3, 1997
DocketNo. 95-06877
StatusPublished

This text of 680 N.E.2d 254 (Julian Speer Co. v. Ohio State University) is published on Counsel Stack Legal Research, covering Ohio Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Julian Speer Co. v. Ohio State University, 680 N.E.2d 254, 83 Ohio Misc. 2d 93, 1997 Ohio Misc. LEXIS 258 (Ohio Super. Ct. 1997).

Opinion

FRed J. Shoemaker, Judge.

Plaintiff, Julian Speer Company, filed this breach-of-contract claim against defendants, Ohio State University (“OSU”) and Ohio Department of Administrative Services (“DAS”). Defendants denied any liability to plaintiff and the court held a trial commencing on August 19, 1996. At the conclusion of the trial and at the suggestion of the parties, the court set forth a schedule that required proposed findings of fact and conclusions of law to be filed by October 16, 1996, and replies to those proposals to be filed by October 28,1996. Having considered the evidence, the arguments of counsel, and the law, the court renders the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. In early 1992, the state of Ohio began accepting bids for the construction of State Project No. 315-89-126, the Vernal G. Riffe, Jr. Building, Bio Science Parks/Hall Addition on the OSU campus (“the project”);

2. The state’s associate architect, Burgess and Niple, Limited, prepared the plans and specifications for the project on behalf of the state and in particular DAS, Division of General Services, and the Office of the State Architect and Engineer;

3. DAS is the state department charged with supervising and managing all of the state’s agents performing services on the project;

4. The state awarded plaintiff a prime contract to provide plumbing services for the project by way of a written contract dated August 12, 1992. The state gave plaintiff notice to proceed on August 25, 1992, with a scheduled completion date of July 1,1994;

5. For purposes of the project, the Sherman R. Smoot Co. (“Smoot”), which was awarded the prime contract for general trades work, is an agent of the state as to plaintiff, even though Smoot is an independent contractor and otherwise not an agent for other purposes to the state;

[96]*966. Plaintiffs claims center around the plumbing services required by the plans in four specific areas on the project. The four areas are (1) the installation of science laboratory fume hoods (fume hoods), (2) the installation of a distilled water faucet, (3) the installation of cold water fixtures, and (4) the resulting changes of the dimensions of the related cabinet-case work;

7. The bulk of plaintiffs claim against defendants concerns whether the project’s plans and specifications required plaintiff to make internal piping connections within the laboratory fume hoods;

8. Fume hoods are enclosed laboratory fixtures that allow various fumes and by-products from scientific research experiments to be vented through the top of these structures or otherwise cleared through piping. The plans and specifications called for fume hoods on the first floor and floors four through nine of the project for a total of eighty fume hoods;

9. The contract required the state’s prime general contractor, Smoot, to purchase the fume hoods for the project. Smoot’s subcontractor, Smith & Schaefer, Inc., ordered and received the fume hoods from the manufacturer, Fisher Hamilton Scientific, Inc. Plaintiff had no way of knowing what type of fume hood would be purchased because the entire purchase and operational certification of the fume hoods were the responsibility of Smoot;

10. The two relevant project specifications referencing the installation of fume hoods, available to plaintiff at the time of bid, were Section 11610-LABORATO-RY FUME HOODS and Section 15452-INSTALLATION OF FIXTURES AND EQUIPMENT FURNISHED BY THE GENERAL CONTRACTOR. Neither Section 11610 nor Section 15452 expressly required plaintiff to provide internal fume-hood piping;

11. Section P15432 of the specifications mandated that Smoot provide drawings to indicate where plaintiff should furnish and install valves;

12. Originally, specification Section 12345 expressly mentioned internal piping. However, this section was revised prior to the bid to delete the internal piping reference and instead referred plaintiff directly to the drawings, which do not provide enough detail to illustrate what piping is necessary to make final connections on the fume hoods;

13. Sheet P20 of the drawings included in the plumbing contractor’s bid documents shows three connections required by the plumbing contractor, as opposed to as many as six connections plaintiff ultimately had to complete on each fume hood;

14. Plaintiffs project manager requested connection drawings or “rough-in” information regarding the fume hoods. In September 1993, Smith and Schaefer’s representative sent a manufacturer’s catalogue sheet entitled “TECHNICAL [97]*97ROUGH-IN INFORMATION.” The sheet showed hood details with solid internal lines indicating interior hood piping supplied by the manufacturer, and one set of four connectors;

15. Subsequently, during February 1994, plaintiff received a second manufacturer’s catalogue sheet also entitled “TECHNICAL ROUGH-IN INFORMATION,” which contained fume-hood details with dotted lines indicating interior hood piping as optional;

16. The state’s associate architect testified that the fume hoods’ interior piping could be configured at least three ways, all of which required his approval, and one of which may not be building-code compliant. Since there were no technical rough-in drawings available in the bid project plans and specifications for the project, the associate architect sketched the fume-hood internal piping requirements for the project for the first time during the trial;

17. In February 1994, when plaintiff objected to supplying and completing the interior piping for the fume hoods, Smoot threatened to complete the work itself and then charge plaintiff for the work. Therefore, plaintiff supplied and installed the fume-hood internal piping;

18. By letter dated December 10, 1994, the state’s associate architect informed plaintiff that the state would not provide any further compensation for interior fume-hood piping work;

19. Plaintiffs second claim requested $1,492 in compensation because defendant OSU’s agent required plaintiff to relocate the distilled water faucet contrary to the project specifications or drawings. Defendants waited until the trial commenced to admit liability for this count of plaintiffs complaint;

20. Plaintiffs third claim is for $5,685 for installing cold water fixtures of differing sizes and locations on lab benches contrary to the project specifications or drawings. Defendants initially maintained, by way of a January 1, 1994 letter from the state’s associate architect, that “[t]his work must be coordinated with other trades. Any costs generated by lack of coordination must be borne by the responsible contractor, not by the State of Ohio.” At trial, defendants changed their reason for denying this claim and asserted that the changes were the result of plaintiffs attempt to prefabricate plumbing off site and that plaintiff had a duty to make measurements at the site prior to such prefabrication;

21. Plaintiffs fourth claim seeks recovery for changes in the dimensions of the cabinet-case work. Defendants blamed these discrepancies on plaintiffs lack of coordination with the other contractors;

22. Plaintiff contends that it is entitled to an award of attorney fees, pursuant to R.C. 119.092 and 2335.39, because the state was not substantially justified in initiating this controversy.

[98]*98CONCLUSIONS OF LAW

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Bluebook (online)
680 N.E.2d 254, 83 Ohio Misc. 2d 93, 1997 Ohio Misc. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/julian-speer-co-v-ohio-state-university-ohioctcl-1997.