[Cite as Ohio Valley Associated Bldrs. & Contrs. v. Rapier Elec., Inc., 2014-Ohio-1477.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
OHIO VALLEY ASSOCIATED : BUILDERS & CONTRACTORS, CASE NOS. CA2013-07-110 : CA2013-07-121 Plaintiff-Appellant, : OPINION 4/7/2014 - vs - :
: RAPIER ELECTRIC, INC., : Defendant-Appellee. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2011-01-0363
Taft, Stettinius & Hollister, LLP, Victoria L. Nilles, Fred A. Ungerman, Jr. and Lowell T. Woods, 40 North Main Street, Suite 1700, Dayton, Ohio 45423 for plaintiff-appellant
Brandabur & Bowling, Jeffrey W. Bowling, Michael J. Brandabur and Kyle M. Rapier, 315 Monument Avenue, Hamilton, Ohio 45011, for defendant-appellee
S. POWELL, J.
{¶ 1} Plaintiff-appellant, Ohio Valley Associated Builders and Contractors (OVABC),
appeals from the decision of the Butler County Court of Common Pleas granting judgment in
favor of defendant-appellee, Rapier Electric, Inc. (Rapier), pursuant to Civ.R. 41(B)(2) on
OVABC's claims alleging violations of Ohio's prevailing-wage laws as found in R.C. Chapter
4115. OVABC also appeals from the trial court's decision granting Rapier's motion for Butler CA2013-07-110 CA2013-07-121
attorney fees pursuant to R.C. 4115.16(D). For the reasons outlined below, we affirm the
trial court's decisions as modified.
{¶ 2} OVABC is a membership association of nonunion construction contractors who
submit bids for the purpose of securing public-improvement construction contracts. OVABC's
members include Triton Services, TP Mechanical, RPC Mechanical, and Essex
Management, among others. Rapier is an electrical contracting company that has been
owned and operated by Dan and Naomi Rapier for over 25 years. It is undisputed that Dan
Rapier is generally responsible for Rapier's compliance with the prevailing-wage laws. It is
also undisputed that the lawsuit at issue here is just one of over 100 that OVABC has filed
against small business owners throughout the state alleging violations of the prevailing-wage
laws.
{¶ 3} This matter has a long and complex procedural history. As relevant here, on
January 21, 2009, OVABC filed six complaints against Rapier alleging it had violated Ohio's
prevailing-wage laws in regards to a series of construction projects on the Miami University
campus located in Butler County, Ohio. Specifically, OVABC alleged violations in regards to
Miami University's Pearson Plaza Renovation project; Art Museum Chiller Replacement
project; Western Campus Steam Loop Connections Phase 2 project; North Campus
Academic Quad Parking Garage project; Boyd Hall Chiller Replacement project; and Richard
T. Farmer School of Business project. On a joint motion from the parties, the trial court
consolidated the six cases and a five-day jury trial was scheduled to begin February 7, 2010.
{¶ 4} Prior to trial, on January 11, 2010, Rapier moved for summary judgment
alleging OVABC lacked standing to proceed as an "interested party" under the prevailing-
wage laws as defined by R.C. 4115.03(F). In response, OVABC dismissed its claim in
regards to the Pearson Plaza Renovation project, but maintained its claims as to the other
five projects. Thereafter, on February 3, 2010, the trial court issued its decision finding -2- Butler CA2013-07-110 CA2013-07-121
OVABC lacked standing to proceed on its claims regarding the Western Campus Steam
Loop Connections Phase 2 project, the North Campus Academic Quad Parking Garage
project, and the Richard T. Farmer School of Business project. The next day, February 4,
2010, and just three days before trial was to begin, OVABC voluntarily dismissed all its
claims against Rapier under Civ.R. 41(A).
{¶ 5} As this matter was pending, OVABC filed two additional complaints against
Rapier alleging violations of the prevailing-wage laws in regards to Butler County's
Government Services Center Court Remodel project and its Board of Elections project. As it
had done previously, Rapier again filed a motion for summary judgment alleging OVABC
lacked standing to proceed as an "interested party" as defined by R.C. 4115.03(F). Rapier
also filed a motion requesting OVABC pay its attorney fees under R.C. 4115.16(D). On
August 10, 2010, the trial court issued its decision granting Rapier's motion for summary
judgment, but denied Rapier's request for attorney fees. OVABC then appealed.
{¶ 6} On January 18, 2011, this court issued a split decision finding OVABC had
standing as an "interested party" to bring a claim under Ohio's prevailing-wage laws. See
Ohio Valley Associated Builders & Contrs. v. Rapier Elec., Inc., 192 Ohio App.3d 29, 2011-
Ohio-160 (12th Dist.) (Bressler, J., dissenting). Approximately two weeks after this decision
was issued, OVABC refiled its complaint against Rapier alleging the same five claims in
regards to the various Miami University construction projects. All of OVABC's claims against
Rapier were then consolidated. Rapier then filed an answer to OVABC's resubmitted
complaint. As part of its answer, Rapier explicitly stated the various Miami University
construction projects were subject to the prevailing-wage laws. Rapier also acknowledged
that Miami University was a "public authority" as defined by R.C. 4115.03(A).
{¶ 7} On April 19, 2011, the trial court issued a pretrial order setting the discovery
cutoff deadline as November 10, 2011, with a two-day trial to begin on December 8, 2011. -3- Butler CA2013-07-110 CA2013-07-121
The trial court also set the trial material exchange deadline as November 17, 2011. The
parties then engaged in extensive discovery. However, OVABC did not request Rapier's
certified payroll records from Miami University until October 27, 2011, a mere two weeks
before the November 10, 2011 discovery cutoff deadline. It is undisputed that these
documents are considered public records. Thereafter, on November 29, 2011, just nine days
before the start of trial, OVABC dismissed its claims regarding the Government Services
Center Court Remodel project and the Board of Elections project.
{¶ 8} On December 8, 2011, the matter proceeded to a bench trial before a
magistrate as scheduled. During trial, the magistrate denied OVABC's request to introduce
and admit certain evidence obtained from Miami University as being untimely produced on
the morning of the first day of trial. The magistrate also denied OVABC's request for leave to
call Elizabeth Davidson, the records custodian for Miami University's Department of Facilities
Planning and Development, as a witness during its case-in-chief.
{¶ 9} At the close of OVABC's case, and pending the admission of exhibits, Rapier
moved for dismissal pursuant to Civ.R. 41(B)(2). Without ruling on the admissibility of
OVABC's exhibits, the magistrate granted Rapier's motion by finding OVABC failed to
establish that the prevailing-wage laws were applicable to the various construction projects.
OVABC then filed a number of objections to the magistrate's decision, all of which were
denied. The trial court subsequently affirmed and adopted the magistrate's decision on June
18, 2012.
{¶ 10} Prior to issuing its decision on OVABC's objections to the magistrate's decision,
Rapier again filed a motion requesting the trial court order OVABC to pay its attorney fees.
OVABC opposed the motion and, after some delay, a hearing was held on the matter.
Following this hearing, the trial court awarded Rapier $144,986.27 in attorney fees, $5,000
more than the $139,986.27 Rapier requested in its post-hearing memorandum. The trial -4- Butler CA2013-07-110 CA2013-07-121
court later incorporated its decision into an entry filed on May 31, 2013. In so holding, the
trial court specifically stated that such an award was "reasonable based on the complexity of
the case and the need to present an aggressive defense."
{¶ 11} OVABC now appeals from the trial court's decision granting Rapier's motion to
dismiss under Civ.R. 41(B)(2) and awarding Rapier $144,986.27 in attorney fees, raising
three assignments of error for review. For ease of discussion, OVABC's first and second
assignments of error will be addressed out of order.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE COURT ABUSED ITS DISCRETION IN NOT ADMITTING [MIAMI
UNIVERSITY] EVIDENCE.
{¶ 14} In its second assignment of error, OVABC argues the trial court erred by
affirming and adopting the magistrate's decision excluding certain evidence obtained from
Miami University after the discovery cutoff deadline had passed and introduced on the
morning of the first day of trial. OVABC also argues the trial court erred by denying it leave to
call Elizabeth Davidson, the records custodian for Miami University's Department of Facilities
Planning and Development, as a witness during its case-in-chief. In essence, OVABC
argues the trial court's discovery sanctions imposed for failing to comply with the discovery
deadline were improper and constitute an abuse of discretion. We disagree.
{¶ 15} A trial court maintains discretion to manage the discovery process. Bank of
Am., N.A. v. Singh, 12th Dist. Butler No. CA2012-07-146, 2013-Ohio-1305, ¶ 17. This court
reviews a trial court's decision to impose discovery sanctions for an abuse of discretion.
Lucchesi v. Fischer, 12th Dist. Clermont No. CA2008-03-023, 2008-Ohio-5935, ¶ 6, citing
Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254 (1996), syllabus. A decision constitutes an
abuse of discretion only when it is found to be unreasonable, arbitrary, or unconscionable.
State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, ¶ 13; Blakemore v. -5- Butler CA2013-07-110 CA2013-07-121
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 16} As the record reveals, OVABC attempted to introduce certain records obtained
from Miami University regarding the various construction projects, as well as Davidson's
testimony. However, OVABC first attempted to subpoena the desired documents – all of
which are public records – on October 27, 2011, a mere two weeks before the discovery
cutoff deadline expired. When questioned about the timing of this request, OVABC's counsel
readily admitted to the trial court that they believed the matter would settle so they did not
"pursue it actively."
{¶ 17} After not receiving a timely response, OVABC subpoenaed the desired
documents again on December 5, 2011, a full 26 days after the discovery deadline had
expired, only to obtain the documents on the morning of trial. The magistrate determined the
documents obtained from Miami University, as well as the testimony from Davidson regarding
these documents, must be excluded as their production on the morning of trial was improper
and fell well-outside the discovery deadline cutoff. The trial court later affirmed and adopted
the magistrate's decision as part of its entry overruling OVABC's objections.
{¶ 18} After a thorough review of the record, we find no abuse of discretion in the trial
court's decision to exclude the so-called Miami University evidence. The discovery rules are
intended to encourage prompt and complete discovery. In furtherance of this goal, it is
imperative that both parties manage their time and develop their trial strategy in conformance
with the discovery cutoff deadline established by the trial court. Here, the trial court
established the discovery cutoff deadline in an entry filed on April 19, 2011, thereby giving
the parties approximately seven months to gather their exhibits and potential evidence.
Considering this matter had already been dismissed once on the eve of trial, this should have
given OVABC plenty of time to obtain the necessary records from Miami University in support
of its claims. Instead, for reasons unknown, OVABC waited until two weeks before the -6- Butler CA2013-07-110 CA2013-07-121
discovery cutoff deadline to first issue a subpoena. The discovery rules give the trial court
great latitude in crafting sanctions to fit discovery abuses. The trial court's decision to
exclude this evidence was not an abuse of discretion. OVABC's second assignment of error
is overruled.
{¶ 19} Assignment of Error No. 1:
{¶ 20} THE TRIAL COURT ERRED IN GRANTING RAPIER'S RULE 41(B)(2)
MOTION.
{¶ 21} In its first assignment of error, OVABC argues the trial court erred by granting
Rapier's motion to dismiss under Civ.R. 41(B)(2).
{¶ 22} Pursuant to Civ.R. 41(B)(2), after the plaintiff has completed the presentation of
its evidence in a bench trial, "the defendant, without waiving the right to offer evidence in the
event the motion is not granted, may move for a dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief." Once the defendant moves for
involuntary dismissal, the trial court, as trier of the fact, "may then determine [the facts] and
render judgment against the plaintiff or may decline to render any judgment until the close of
all of the evidence." Fairbanks Mobile Wash, Inc. v. Hubbell, 12th Dist. Warren Nos.
CA2007-05-062 and CA2007-05-068, 2009-Ohio-558, ¶ 76. Thus, when a motion for an
involuntary dismissal is made, the trial court can choose either to dismiss the action or to
proceed with further evidence. Id., citing Pacher v. Invisible Fence of Dayton, 154 Ohio
App.3d 744, 2003-Ohio-5333, ¶ 34 (2d Dist.). "The premise behind the rule is if the court in a
bench trial disbelieves the plaintiff's facts or disagrees with the plaintiff's urged application of
the law, then there is no reason to hear the defendant's case." Martin v. Lake Mohawk
Property Owner's Assn., 7th Dist. Carroll No. 04 CA 815, 2005-Ohio-7062, ¶ 19.
{¶ 23} Civ.R. 41(B)(2) specifically provides the trial court may consider both the law
and the facts. Johnson v. Keith, 12th Dist. Clermont No. CA2012-04-032, 2013-Ohio-451, ¶ -7- Butler CA2013-07-110 CA2013-07-121
17. In turn, in ruling on the motion, "the trial judge, as the trier of fact * * * weighs the
evidence and actually determines whether the plaintiff has proven the necessary facts by the
appropriate evidentiary standard." Webb v. C & J Properties, L.L.C., 12th Dist. Butler No.
CA2010-01-016, 2010-Ohio-3818, ¶ 13, quoting Tillman v. Watson, 2d Dist. Champaign No.
06-CA-10, 2007-Ohio-2429, ¶ 11. In other words, "[i]f, after evaluating the evidence, a trial
court finds the plaintiff has failed to meet her burden of proof, then the trial court may enter
judgment in the defendant's favor." Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin
No. 12AP-999, 2013-Ohio-5140, ¶ 104. A trial court's ruling on a Civ.R. 41(B)(2) motion may
not be disturbed on appeal unless such judgment is "erroneous as a matter of law or against
the manifest weight of the evidence." Johnson at ¶ 18, citing Bhatti v. Singh, 148 Ohio
App.3d 386, 2002-Ohio-3348, ¶ 35 (12th Dist.).
The Magistrate's Decision Granting Rapier's Motion to Dismiss was Not "Premature"
{¶ 24} Initially, OVABC claims the magistrate erred by issuing its decision on Rapier's
Civ.R. 41(B)(2) motion to dismiss without first ruling on the admissibility of OVABC's exhibits.
According to OVABC, "[a]t least one Ohio court has observed the requirement of admitting a
plaintiff's exhibits prior to a Civ.R. 41(B)(2) dismissal." In support of this claim, OVABC cites
Martin v. Lake Mohawk Property Owner's Assn., a case in which the Seventh District Court of
Appeals made a general statement finding "[t]he plaintiffs' exhibits were admitted, and the
defense successfully moved for the Civ.R. 41(B)(2) dismissal." Id., 2005-Ohio-7062 at ¶ 71.
{¶ 25} However, after reviewing the Seventh District's decision in Martin, we find this
statement serves as nothing more than a general description of the events that transpired
before the trial court, not a "requirement" precedent to ruling on a Civ.R. 41(B)(2) motion to
dismiss. This is even more apparent when this general statement is taken in context of the
entire paragraph, which states:
-8- Butler CA2013-07-110 CA2013-07-121
After Counsel asked a few more questions about the restriction, the court asked the defense if they had any questions of the realtor. The Mizeriks' attorney presented an exhibit which was an appraisal of the Martin's house from the county auditor's office and tried to have the realtor read the home's appraised value. However, the court sua sponte stated that the question was irrelevant. (11/19/04 Tr. 124). The court then recessed at 12:07 and resumed at 1:10 p.m. The plaintiffs' exhibits were admitted, and the defense successfully moved for the Civ.R. 41(B)(2) dismissal.
OVABC's reliance on this general statement advanced by the Seventh District in Martin is
clearly misplaced and simply cannot serve as support for any alleged error in the magistrate's
decision granting Rapier's motion to dismiss.
{¶ 26} As noted above, pursuant to the plain language found in Civ.R. 41(B)(2), once
the defendant moves for involuntary dismissal, the trial court, as trier of the fact, "may then
determine [the facts] and render judgment against the plaintiff or may decline to render any
judgment until the close of all of the evidence." Nowhere within this rule does it specifically
require the trial court to rule on the admissibility of evidence prior to making such a decision,
nor have we found any case law that would support such a contention. Therefore, while it
may have been more prudent for the magistrate to rule on the admissibility of OVABC's
exhibits prior to issuing its decision granting Rapier's motion, we simply cannot say that the
court's decision was in error. Accordingly, OVABC's first argument is without merit and
overruled.
The Trial Court Properly Conducted a Civ.R. 53(D)(4)(d) Independent Review
{¶ 27} Next, OVABC argues the trial court erred by failing to conduct an independent
review of the magistrate's decision as required by Civ.R. 53(D)(4)(d).
{¶ 28} Pursuant to Civ.R. 53(D)(4)(d), in ruling on timely-filed objections to a
magistrate's decision, the trial court "shall undertake an independent review as to the
objected matters to ascertain that the magistrate has properly determined the factual issues
-9- Butler CA2013-07-110 CA2013-07-121
and appropriately applied the law." However, the fact that the trial court does not cite any
specific portion of the transcript or exhibit does not demonstrate that the court failed to
conduct an independent review of the objected matters as required by Civ.R. 53(D)(4)(d).
Moellering Industries, Inc. v. Nalagatla, 12th Dist. Warren No. CA2012-10-104, 2013-Ohio-
3995, ¶ 10. "While citing such material would tend to demonstrate that the trial court
conducted the requisite independent review, there is no requirement in Civ.R. 53(D)(4)(d) that
the trial court do so." Hampton v. Hampton, 12th Dist. Clermont No. CA2007-03-033, 2008-
Ohio-868, ¶ 17. Therefore, unless the appellant affirmatively demonstrates that the trial court
failed to perform its duty under Civ.R. 53(D)(4)(d) to conduct an independent review, an
appellate court must presume the regularity of the proceedings below. Barrientos v.
Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734, ¶ 5 (3d Dist.); Hartt v. Munobe, 67 Ohio
St.3d 3, 6 (1993).
{¶ 29} OVABC claims that because the trial court summarily dismissed its objections
to the magistrate's decision, "no review of any objection happened here." The trial court,
however, held a hearing on the matter during which it heard arguments from both parties
regarding each of OVABC's objections. Moreover, as part of its decision affirming and
adopting the magistrate's decision, the trial court specifically stated that it "carefully reviewed
the decision of the magistrate, the pleadings of the parties and the transcript of the
proceedings." See Mandzak v. Graves, 12th Dist. Butler No. CA2009-06-173, 2010-Ohio-
595, ¶ 8. The fact that the trial court did not specifically cite to any exhibit, without more,
does not demonstrate that the court failed to conduct an independent review as to the
objected matters. Hampton at ¶ 17. Therefore, we find OVABC has not demonstrated that
the trial court failed to conduct an independent review under Civ.R. 53(D)(4)(d). Accordingly,
OVABC's second argument is also without merit and overruled.
The Trial Court's Decision Granting Rapier's Motion to Dismiss was Proper - 10 - Butler CA2013-07-110 CA2013-07-121
{¶ 30} Finally, OVABC argues the trial court's decision finding it failed to present
evidence that the projects were subject to Ohio's prevailing-wage law was against the
manifest weight of the evidence.
{¶ 31} As noted above, a trial court's ruling on a Civ.R. 41(B)(2) motion may not be
disturbed on appeal unless such judgment is "erroneous as a matter of law or against the
manifest weight of the evidence." Johnson, 2013-Ohio-451 at ¶ 18. The Ohio Supreme
Court clarified the standard of review regarding whether a trial court's decision in a civil
matter is against the manifest weight of the evidence in Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179. As the Ohio Supreme Court stated in Eastley:
Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief."
Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶ 32} In a manifest weight analysis, "the reviewing court weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether, in
resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed and a new trial ordered."
Schneble v. Stark, 12th Dist. Warren Nos. CA2011-06-063 and CA2011-06-064, 2012-Ohio-
3130, ¶ 67, citing Thompkins, 78 Ohio St.3d. at 387. In making this determination, "an
appellate court generally must defer to the fact-finder's credibility determinations." In re
P.A.R., 4th Dist. Scioto No. 13CA3550, 2014-Ohio-802, ¶ 16, citing Eastley at ¶ 21.
{¶ 33} Ohio's prevailing-wage laws are codified in R.C. Chapter 4115. "These
provisions generally require contractors and subcontractors for public-improvement projects - 11 - Butler CA2013-07-110 CA2013-07-121
to pay laborers and mechanics the 'prevailing wage' in the locality where the project is to be
performed." Ohio Valley Associated Builders & Contrs. v. Indus. Power Sys., Inc., 190 Ohio
App.3d 273, 2010-Ohio-4930, ¶ 14 (6th Dist.), citing State ex rel. Associated Builders &
Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs., 125 Ohio St.3d 112, 2010-Ohio-1199,
¶ 10. "[T]he legislative intent of the prevailing-wage law in R.C. Chapter 4115 is to 'provide a
comprehensive, uniform framework for * * * worker rights and remedies vis-à-vis private
contractors, subcontractors and materialmen engaged in the construction of public
improvements in this state.'" Id., quoting Bergman v. Monarch Constr. Co., 124 Ohio St.3d
534, 2010-Ohio-622, ¶ 10. The law's primary purpose "'is to support the integrity of the
collective bargaining process by preventing the undercutting of employee wages in the
private construction sector.'" Bergman, 2010-Ohio-622 at ¶ 10, quoting State ex rel. Evans v.
Moore, 69 Ohio St.2d 88, 91 (1982).
{¶ 34} Pursuant to R.C. 4115.10(A), "[n]o person, firm, corporation, or public authority
that constructs a public improvement with its own forces, the total overall project cost of
which is fairly estimated to be more than the amounts set forth in division (B) of section
4115.03 of the Revised Code, * * * shall violate" the prevailing-wage laws. In this case, the
trial court granted Rapier's Civ.R. 41(B)(2) motion to dismiss after it found OVABC had failed
to prove the prevailing-wage laws were even applicable to the various construction projects
on the Miami University campus. Specifically, the trial court found OVABC provided no
evidence that Miami University was a "public authority" as defined by R.C. 4115.03(A), nor
any evidence that the construction projects were "public improvements" constructed pursuant
to a "public contract" under R.C. 4115.03(C). The trial court also found OVABC provided no
evidence establishing the cost of construction for any of the construction projects under R.C.
4115.03(B).
{¶ 35} OVABC claims the trial court's decision was in error and against the manifest - 12 - Butler CA2013-07-110 CA2013-07-121
weight of the evidence based on the alleged "judicial admissions" contained in Rapier's
answer to its refiled complaint. For instance, in paragraph 11 of its answer, Rapier agreed
with OVABC's allegation that Miami University was a "public authority" as defined by R.C.
4115.03(A). In addition, when responding to OVABC's general allegations provided in
paragraph 20 of its complaint that Rapier was obligated to pay its employees the prevailing
wage and otherwise comply with the prevailing-wage laws, Rapier explicitly stated:
The allegations contained in Paragraph 20 are hereby ADMITTED to the extent that the Project was subject to Ohio's prevailing wage law and that Rapier complied with Ohio law regarding the Project. Rapier DENIES any remaining allegations contained in Paragraph 20 of OVABC's Complaint.
{¶ 36} A judicial admission is a "formal statement, made by a party or a party's
counsel in a judicial proceeding, that act[s] as a substitute for legal evidence at trial."
Williams v. Williams, 12th Dist. Warren No. CA2012-08-074, 2013-Ohio-3318, ¶ 12, quoting
Haney v. Law, 1st Dist. Hamilton No. C-070313, 2008-Ohio-1843, ¶ 7. However, to be
binding, "the admission must be of a material and competent fact, not merely a legal
conclusion or statutory definition." Internatl. Bhd. of Elec. Workers, Local Union No. 8 v.
Kingfish Elec., L.L.C., 6th Dist. Williams No. WM-11-006, 2012-Ohio-2363, ¶ 20. In other
words, "[w]hile a judicial admission may arise from a statement of material and competent
fact, no such admission results from a statement of a legal conclusion." In re Regency
Village Certificate of Need Application, 10th Dist. Franklin No. 11AP-41, 2011-Ohio-5059, ¶
32, citing Faxon Hills Constr. Co. v. United Broth. of Carpenters & Joiners of America, 168
Ohio St. 8 (1958), paragraph one of the syllabus. Therefore, "[p]leadings containing
admissions against interest are admissible as evidence against the pleader, as long as the
admissions involve material and competent facts." Williams at ¶ 12.
{¶ 37} Rapier's answer to OVABC's complaint contains a number of admissions of
material and competent fact. For instance, Rapier explicitly admitted to submitting bids on - 13 - Butler CA2013-07-110 CA2013-07-121
the various projects for the purpose of securing a contract with Miami University. This
certainly constitutes a material fact that serves as a binding judicial admission. However,
Rapier's answer admitting that Miami University is a "public authority" as defined by R.C.
4115.03(A), as well as its general averment that Ohio's prevailing-wage laws were applicable
to the various construction projects, are legal conclusions that cannot be considered a
binding judicial admission on Rapier's behalf. See, e.g., Kingfish Elec., 2012-Ohio-2363 at ¶
18-20 (finding admission in employer's answer that certain individuals were "employees"
under Ohio's prevailing-wage law was not binding as such admission was to a legal
conclusion). This is particularly true given OVABC's own pretrial statement, which did not
reference Rapier's answer when asked to identify those facts that were conclusively
established by admissions in the pleadings. Rapier's answer, therefore, cannot be
considered as a binding "judicial admission."
{¶ 38} Nevertheless, although we find Rapier's answer cannot be construed as a
binding "judicial admission," the record is clear that whether Ohio's prevailing-wage laws
applied was never in dispute. In fact, neither party ever raised this issue during the five years
this case has been pending, nor was this issue ever raised by either party during the bench
trial. In addition, the record contains an affidavit from Dan Rapier, the acting president of
Rapier, wherein he specifically stated that the various projects were subject to the prevailing-
wage laws. Rapier's counsel even admitted during oral argument before this court that the
prevailing-wage laws applied to the various construction projects at issue here. Therefore,
because there is no dispute between the parties that Ohio's prevailing-wage laws apply, we
find the trial court's decision otherwise was in error. Such a decision, however, is explicitly
limited to the facts and circumstances of this case.
{¶ 39} Yet, even though we find the trial court's decision was improper, it is well-
established that we are required to affirm a trial court's judgment that achieves the "right - 14 - Butler CA2013-07-110 CA2013-07-121
result for the wrong reason," because such an error is not considered prejudicial. French v.
New Paris, 12th Dist. Preble No. CA2010-05-008, 2011-Ohio-1309, ¶ 42, citing Johnson v.
Am. Family Ins., 160 Ohio App.3d 392, 2005-Ohio-1776, ¶ 29 (6th Dist.). Such is the case
here. Therefore, although we find the court's decision finding the various projects were not
subject to Ohio's prevailing-wage laws was in error, we find the record is devoid of any
evidence indicating Rapier actually "violated" the law as that term has been defined by this
court.
{¶ 40} As this court has stated previously, "a 'violation' for purposes of the prevailing
wage statute requires the employer to intentionally violate the prevailing wage laws."
Internatl. Brotherhood of Electrical Workers, Loc. Union No. 575 v. Settle-Muter Elec., L.T.D.,
12th Dist. Fayette No. CA2012-02-003, 2012-Ohio-4524, ¶ 19; see also State ex rel.
Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs., 125 Ohio St.3d
112, 2010-Ohio-1199, ¶ 29. "[T]he express language in the prevailing wage laws supports
this understanding as R.C. 4115.13(C) allows an exception for unintentional violations of the
statute." Id. Pursuant to R.C. 4115.13(H), an "intentional violation" means "a willful,
knowing, or deliberate failure to comply with any provision of sections 4115.03 to 4115.16 of
the Revised Code[.]" This includes, but is not limited to, (1) an intentional failure to submit
reports as required under division R.C. 4115.071(C) or knowingly submitting false or
erroneous reports; (2) an intentional misclassification of employees for the purpose of
reducing wages; or (3) an intentional misclassification of employees as independent
contractors or as apprentices, among others. See R.C. 4115.03(H)(1)-(6).
{¶ 41} As part of this assignment of error, OVABC does not offer any argument as to
how Rapier actually "violated" Ohio's prevailing-wage laws. Rather, these arguments are
contained in its general discussion regarding the trial court's decision to award Rapier
attorney fees. As part of that assignment of error, which we address more fully below, - 15 - Butler CA2013-07-110 CA2013-07-121
OVABC argues the testimony elicited at trial evidences several "admitted violations" of the
prevailing-wage laws. For instance, OVABC alleges Rapier violated R.C. 4115.07 by failing
to retain full and accurate payroll records for a period of one year following the completion of
the various construction projects, as well as certifying the payroll reports without actually
reading them in violation of R.C. 4115.071. OVABC also argues that "Rapier recorded time
on the * * * projects that were doing 'good,' even if the employee did not work on that project."
{¶ 42} At the outset, we note that besides the properly excluded Miami University
documents, OVABC never moved for the admission of its exhibits, nor did it proffer any of its
exhibits to the magistrate at trial. OVABC did not even offer its exhibits to the trial court
during its hearing on OVABC's objections to the magistrate's decision. As the appellant in
this matter, it is OVABC's obligation to ensure that the record is properly established to
support its allegations on appeal. This includes proffering evidence not admitted at trial.
{¶ 43} We also note that OVABC has taken great liberties in construing the testimony
to support its contention that Rapier testified to several "admitted violations." For example,
as it relates to OVABC's allegations that Rapier certified the payroll reports it submitted to
Miami University without actually reading them, Dan Rapier specifically testified that he did
read the reports. In fact, when pressed on this issue, Dan Rapier testified that "I look at them
to the best of my knowledge, and I sign them to be complete." This hardly rises to the level
of an "admitted violation" as OVABC asserts.
{¶ 44} In addition, as it relates to OVABC's allegations that Rapier would record time
on "projects that were doing 'good,' even if the employee did not work on that project," Dan
Rapier specifically testified that was simply not true. As Dan Rapier testified:
Q: Would you ever take an employee's time from a job that was doing well and put it on a job that was going bad or vice versa?
A: Oh, no.
- 16 - Butler CA2013-07-110 CA2013-07-121
Continuing, the following exchange occurred:
Q: So when you testified [at your deposition] that you would take guys' time and put it on a job that was going good, maybe they didn't work on the job, I took that to mean that sometimes you would put an employee's time on one job even though they didn't work there because that job was doing well or not doing well?
A: I meant when they're not working on the job, they are working in the shop to help the job.
Q: So what did you mean by maybe they didn't work on the job.
A: That's what I mean. They worked at the shop.
Again, this hardly rises to the level of an "admitted violation" as OVABC suggests.
{¶ 45} OVABC also argues that Rapier admitted to violating R.C. 4115.07 by allowing
its employees to "bank time." Pursuant to that statute, and as relevant here:
All contractors and subcontractors required by sections 4115.03 to 4115.16 of the Revised Code, and the action of any public authority to pay not less than the prevailing rate of wages shall make full payment of such wages in legal tender, without any deduction for food, sleeping accommodations, transportation, use of small tools, or any other thing of any kind or description.
According to OVABC, this provision in R.C. 4115.07 prohibits contractors subject to the
prevailing-wage laws from "'pay[ing]' hours worked on the project with paid time off or banked
time." OVABC has provided us with no case law to support this contention, nor has our own
research uncovered any case law addressing this issue as it relates to R.C. 4115.07.
{¶ 46} Nevertheless, even assuming OVABC's allegations are true, the record is
devoid of any evidence to establish this "admitted violation" in regards to the various
construction projects at issue here. As Dan Rapier testified:
Q: Can you explain to the Court what "banked time" means at Rapier Electric?
A: At times, guys have held their time to go on vacation and taken off and went on vacation.
Q: So if they would work one week, not get paid and take time - 17 - Butler CA2013-07-110 CA2013-07-121
off later to make up for it; is that correct?
A: Yes, my own foreman did it.
Q: Does that ever happen on prevailing wage jobs?
A: To my knowledge, yes.
Q: During the week that the employee worked but was not paid, would they show up on your certified payroll reports?
A: No.
Q: During the week that they were paid out for that time, would they show as having worked on your certified payroll reports?
A: Yes.
{¶ 47} As can be seen, this testimony was not specific to any of the various
construction projects at issue. Rather, Dan Rapier's testimony generally referenced
"prevailing wage jobs." It is undisputed that Rapier has contracted for several other
"prevailing wage jobs," including those that OVABC had voluntarily dismissed from this suit
prior to the start of trial. Rapier is not on trial for every job that it has ever contracted, but
only those five projects on the Miami University campus specifically referenced as part of
OVABC's refiled complaint. Without providing any testimony directly related to the various
construction projects at issue here, this simply cannot rise to the level of an "admitted
violation" as OVABC would like this court to believe.
{¶ 48} OVABC also cites the testimony from Naomi Rapier, part owner and wife of
Dan Rapier, who enters payroll in Rapier's computer system. However, just like Dan Rapier's
testimony above, the testimony elicited from Naomi Rapier did not reference any of the
various construction projects at issue here. Instead, this testimony was in reference to a
hypothetical situation in which the words "banked time" appeared on an employee's time
sheet. OVABC also ignores Naomi Rapier's previous testimony, wherein she explicitly stated
that she was not familiar with Rapier's "banked time" practice, that she did not know what the - 18 - Butler CA2013-07-110 CA2013-07-121
term "banked time" meant, and that she "do[es] nothing with bank time." Naomi Rapier's
testimony also falls well short of establishing an "admitted violation."
{¶ 49} Regardless, even if we were to find the record supported OVABC's allegations,
which we do not, there is nothing in the record to indicate that Rapier's alleged "violations," if
any, were intentional as opposed to merely a mistake or inadvertence. As noted above, this
court has determined that "a 'violation' for purposes of the prevailing wage statute requires
the employer to intentionally violate the prevailing wage laws." Settle-Muter Elec., 2012-
Ohio-4524 at ¶ 19. Pursuant to R.C. 4115.13(H), an "intentional violation" means "a willful,
knowing, or deliberate failure to comply with any provision of sections 4115.03 to 4115.16 of
the Revised Code[.]" There is nothing in the record to indicate Rapier ever acted in a manner
that was willful, knowing, or deliberate so as to constitute a "violation" of the prevailing-wage
laws. Instead, the record reveals that Rapier complied with the prevailing-wage laws to the
best of its ability.
{¶ 50} OVABC, however, argues our decision in Settle-Muter Elec. requiring an
"intentional violation" of the prevailing-wage laws should be limited to the facts of that case.
Our holding in Settle-Muter Elec. finding a "violation" under Ohio's prevailing-wage law
requires the employer to "intentionally violate" the prevailing-wage laws was not so limited.
Rather, we reached this conclusion after reviewing the statutory language of the prevailing-
wage laws. Our decision was also based on the Ohio Supreme Court's decision in State ex
rel. Associated Builders & Contrs. of Central Ohio v. Franklin Cty. Bd. of Commrs., which
found the term "violation" generally refers to "the situation in which the director makes a
formal finding that a contractor or subcontractor intentionally violated the prevailing-wage
laws, and all appeals are exhausted." Id., 2010-Ohio-1199 at 29. Therefore, while the facts
of that case are certainly instructive, some proof of a "violation," i.e., a violation that was
wilful, knowing or deliberate, is still required to establish a viable cause of action. No such - 19 - Butler CA2013-07-110 CA2013-07-121
evidence was presented here.
{¶ 51} In analyzing a statute or regulation, the paramount goal is to ascertain and give
effect to the legislature's intent in enacting the statute. Internatl. Bhd. of Electrical Workers,
Local Union No. 8 v. Vaughn Industries, Inc., 156 Ohio App.3d 644, 2004-Ohio-1655, ¶ 57
(6th Dist.), citing Brooks v. Ohio State Univ., 111 Ohio App.3d 342, 349 (10th Dist.1996). As
noted above, the intent behind the prevailing-wage laws is "'to support the integrity of the
collective bargaining process by preventing the undercutting of employee wages in the
private construction sector.'" Bergman, 2010-Ohio-622 at ¶ 10, quoting Evans, 69 Ohio St.2d
at 91. Absolutely no evidence was presented at trial indicating any of Rapier's employees
were not paid the prevailing wage owed to them.1 Moreover, although Rapier readily admits
that its bookkeeping methods and general organization left much to be desired, based on the
facts and circumstances of this case, we find this evidence, standing alone, is insufficient to
constitute a "violation" of Ohio's prevailing wage laws as defined by this court. Therefore,
while we find alternative grounds to grant the motion, the trial court's decision granting
Rapier's Civ.R. 41(B)(2) motion to dismiss was nevertheless proper. Accordingly, OVABC's
first assignment of error is overruled.
{¶ 52} Assignment of Error No. 3:
{¶ 53} THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING ATTORNEY
FEES.
{¶ 54} In its third assignment of error, OVABC argues the trial court abused its
discretion by awarding Rapier $144,986.27 in attorney fees pursuant to R.C. 4115.16(D).
{¶ 55} In general, the law in Ohio requires each party bear its own attorney fees and
1. Although not introduced at trial, we note that as part of its previously submitted motion for summary judgment, Rapier included affidavits from seven of its employees that specifically stated they were paid "at or which exceeded the prevailing wage" for their position when working on the various construction projects on the Miami University campus. - 20 - Butler CA2013-07-110 CA2013-07-121
costs during the course of litigation. United Assn. of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing, Inc., 3d Dist.
Hardin No. 6-12-06, 2013-Ohio-144, ¶ 17, citing Sorin v. Bd. of Edn. of Warrensville Hts.
School Dist., 46 Ohio St.2d 177, 179 (1976). However, there are a number of exceptions to
this general rule. Specifically, "attorney fees may be awarded when a statute * * * provides
for the losing party to pay the prevailing party's attorney fees." Wilborn v. Bank One Corp.,
121 Ohio St.3d 546, 2009-Ohio-306, ¶ 7. This includes the dictates of R.C. 4115.16(D),
which provides, in pertinent part, the following:
In the event the court finds that no violation has occurred, the court may award court costs and fees to the prevailing party, other than to the director or the public authority, where the court finds the action brought was unreasonable or without foundation, even though not brought in subjective bad faith.
{¶ 56} By using the term "may," the General Assembly "vested discretion in the court
so that before it can award fees to a prevailing employer, it must first use its discretion to find
that the employee's claim was unreasonable or brought without foundation." Bergman v.
Monarch Constr. Co., 12th Dist. Butler No. CA2008-02-044, 2009-Ohio-551, ¶ 80, reversed
on other grounds, 124 Ohio St.3d 534, 2010-Ohio-622. In other words, when the court finds
no violation of the prevailing-wage laws, such as the case here, "the decision to award such
fees and the amount of such fees is within the sound discretion of the trial court." United
Bhd. of Carpenters & Joiners of Am., Local Union No. 1581 v. Fitzenrider, 3d Dist. Henry No.
7-11-20, 2012-Ohio-4653, ¶ 46, citing Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23
Ohio App.3d 85, 91 (12th Dist.1985). Thus, a trial court's decision to award attorney fees
when no violation has occurred is to be judged based on an abuse of discretion standard. W.
Unity ex rel. Beltz v. Merillat, 169 Ohio App.3d 71, 2006-Ohio-5105, ¶ 11 (6th Dist.).
{¶ 57} Under this assignment of error, OVABC initially argues the trial court abused its
discretion by awarding Rapier attorney fees because its suit was not unreasonable or without - 21 - Butler CA2013-07-110 CA2013-07-121
foundation. OVABC also argues the trial court abused its discretion by awarding Rapier
attorney fees because it failed to articulate a sound reasonable basis for such an award.
However, the record in this case reveals that OVABC's lawsuit against Rapier was just one of
over 100 filed throughout the state against small contractors who bid on public works projects
in its attempt to recover hundreds of thousands of dollars in attorney fees for what amount to
nothing more than minor technical violations. In fact, OVABC itself sought to recover over
$192,000 in attorney fees based on over 1080 hours of billable time before trial even began.
{¶ 58} The trial court found, and we agree, that OVABC, by filing this lawsuit against
Rapier, was "not acting for the greater good of the citizens of Ohio, but, rather, is a well
organized attempt to abuse the legal system by targeting small business owners and forcing
them to pay relatively large settlements disproportionate to the conduct involved." Any of the
alleged "violations," none of which were supported by in the record, could have easily been
resolved administratively, rather than by five years of protracted litigation. Therefore, we find
OVABC's decision to file this lawsuit was, at the very least, unreasonable or without
foundation. In making this determination, we stress that R.C. 4115.16(D) is clearly written in
the disjunctive, and serves as just one of the many particular "actions" that would entitle
contractors like Rapier to recover attorney fees. Accordingly, the trial court's decision to
award Rapier attorney fees incurred in defense of this matter was not an abuse of discretion.
{¶ 59} OVABC also argues the trial court abused its discretion by failing to properly
apply the "lodestar" method in calculating the amount of attorney fees awarded to Rapier.
When calculating the amount of attorney fees, a trial court is guided by a two-step
determination. Lamar Advantage GP Co. v. Patel, 12th Dist. Warren No. CA2011-10-105,
2012-Ohio-3319, ¶ 46. "The court should first calculate the 'lodestar' amount by multiplying
the number of hours reasonably expended by a reasonable hourly rate and, second, decide
whether to adjust that amount based on the factors listed in Prof.Cond.R. 1.5(a)." Id., citing - 22 - Butler CA2013-07-110 CA2013-07-121
Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143 (1991), syllabus (applying the
predecessor to Prof.Cond.R. 1.5[a]). "Those factors include the time and labor required; the
novelty and difficulty of the questions involved and the skill requisite to perform the legal
service properly; the amount involved and the results obtained; the experience, reputation,
and ability of the lawyer or lawyers performing the services; and whether the fee is fixed or
contingent." Id., citing Prof.Cond.R. 1.5(a).
{¶ 60} Here, OVABC claims the trial court abused its discretion by awarding Rapier
$144,986.27 in attorney fees because Rapier's own expert testified that some of the charged
fees were excessive or unreasonable. Where a court is empowered to award attorney fees
by statute, "[u]nless the amount of fees determined is so high or so low as to shock the
conscience, an appellate court will not interfere." Mike Castrucci Ford Sales, Inc. v. Hoover,
12th Dist. Clermont No. CA2009-03-016, 2009-Ohio-4823, ¶ 11, citing Bittner at 146, quoting
Brooks, 23 Ohio App.3d at 91. In making this determination, the trial court has an "infinitely
better opportunity to determine the value of services rendered by lawyers who have tried a
case before him than does an appellate court." Id.
{¶ 61} After a thorough review of the record, we cannot say the amount of attorney
fees awarded to Rapier shocks the conscience so as to require reversal given the complexity
of the issues involved and the lengthy protracted procedural history of this case. However,
following the hearing on this matter, and as a result of its own expert's testimony, Rapier
reduced its requested attorney fees to $139,986.27. Because Rapier itself requested a
reduction in its attorney fee award to $139,986.27, we find the trial court's decision awarding
Rapier $144,986.27 in attorney fees was in error. The trial court's decision is modified to
correspond to the amount of attorney fees actually requested by Rapier. OVABC's third
assignment of error is sustained as it relates to the amount of attorney fees awarded only.
The judgment of the trial court is, in all other respects, affirmed. - 23 - Butler CA2013-07-110 CA2013-07-121
{¶ 62} Judgment affirmed as modified.
RINGLAND, P.J., and M. POWELL, J., concur.
- 24 -