RELEVANT RECENT COURT OPINIONS
SINCE JANUARY 2006
Ohio State Bar Association David J. Lindner
Buckingham, Doolittle & Burroughs, LLP
firstname.lastname@example.org (216) 453-4290
Construction Law Committee
Maureen P. Taylor
May 5, 2006 Bricker and Eckler LLP
email@example.com (614) 227-2317
Sixth Circuit Decisions
Expert Masonry, Inc. v. Boone County, 440 F.3d 336 (6th Cir. Mar. 8, 2006).
Plaintiff made an unsuccessful bid to the county and claimed that the county had
conspired against the plaintiff in violation of 15 U.S.C. § 1. The court held that the county’s
actions of circumventing bidding process did not violate the federal statute. The court further
held that the plaintiff did not have a property right under 42 U.S.C. § 1983 because the state
statute gave the county broad discretion in obtaining contracts and the plaintiff did not prove an
abuse of discretion.
Federal District Court Decisions
Bradley Dev. Co. v. N. Ohio Sewer Contrs., Inc., 2006 U.S. Dist. LEXIS 7801, (N.D. Ohio Apr.
The plaintiff’s claim for negligence could not withstand the defendant’s motion for
summary judgment where there was no expert testimony or independent testing offered by the
plaintiff to support its claim that the contractor failed to perform according to the standard.
Epicentre Strategic Corp. - Mich. v. Perrysburg Exempted Vill. Sch. Dist., 2006 U.S. Dist.
LEXIS 15058 (N.D. Ohio Mar. 31, 2006).
Assignee for a masonry contractor was barred from bringing suit against the construction
manager because the manager was not party to the masonry contractor’s contract. Further, the
assignee’s tort claim failed because it did not bring suit within four years of when the contractor
became aware, or should have become aware, of the tortious conduct and first suffered injury.
The assignee’s claim against the school district that it was responsible for the delays and
therefore, the masonry contractor’s increased costs were waived when the masonry contractor
failed to raise a grievance with the architect within twenty-one days of uncovering the basis
according to the contract.
MCI Worldcom Network Services, Inc. v W.M. Brode Co., 411 F.Supp.2d 804 (N.D. Ohio Jan.
The Akron RTA contracted with Brode to conduct bridge repairs. Before excavating,
Brode served notice to the Ohio Utility Protection Service. MCI responded by marking the
location of its underground fiber optic cables. Excavation did not take place until two months
after the area was marked when Brode severed one of MCI’s cables. MCI brought suit claiming,
negligence, negligence per se, breach of contract (MCI being a third party beneficiary), trespass
and punitive damages.
Brode successfully denied that it was negligent per se because it was working under a
Public Improvement contract which, under R.C. 153.64, does require that excavation begin
within ten days of marking. MCI could not claim third party benefits under the contract because
MCI did not adequately prove that drawings acknowledging MCI and its cables were
incorporated into the contract. MCI’s trespass claim failed because it did not prove that Brode
intentionally caused physical contact with the chattel in possession of another. Brode also
prevailed against MCI’s claim for punitive damages because MCI did not prove that Brode
consciously disregarded the rights and safety of persons. The court did not determine the
negligence claim and Brode’s counterclaim for contributory negligence because there was a fact
finding issue of whether the markings were accurate or altered when excavation began.
Cleveland v. State, 2006 U.S. Dist. LEXIS 1083, (S.D. Ohio Jan 13, 2006).
Cleveland’s Lewis Law, requiring that contractors use Cleveland residents for 20% of the
construction hours, is inconsistent with 23 U.S.C. § 112, which is intended to encourage
competitive bidding free of impeding restrictions. The Federal Highway Administration may
withdraw funding for projects where the Lewis Law’s employment restrictions are included the
lowest bidder’s contract.
Ohio Supreme Court Decisions
Cousino Constr. Co. v. Wilkins, 108 Ohio St. 3d 90, (Ohio 2006).
A contractor in the business of reconstructing and restoring old buildings purchased
cleaning services from subcontractors and attempted to avoid paying imposed use taxes. The
Court affirmed that R.C. § 5739.01(E) did not exempt the contractor from paying use taxes for
the services because, upon the resale of a cleaned and restored or reconstructed building, the
benefit that the contractor delivered to its customers was not the same form of benefit that the
contractor purchased from the cleaning subcontractors.
Ohio Appellate Court Decisions
JRC Holdings, Inc. v. Samsel Servs. Co., 2006 Ohio 2148 (Ohio Ct. App. Portage Cnty. Apr.
A holdings company sued its remediation contractor, hired to evaluate contamination on
the company's realty, alleging damage of the company's real property. After finding
contamination in the shallow well on the property and when beginning its evaluation of the deep
well, the contractor allowed the contamination to leak into the deep well. The court held the
company's claims were not contractual because it had based such claims in tort. Therefore, the
four year limitations period in R.C. § 2305.09(D) applied. Where the company filed the suit
after the statutory period had run, its claims were barred.
M.V.P. Ltd. v. Matt, 2006 Ohio 1634 (Oh. Ct. App. Ottawa Cnty. Mar. 31, 2006).
The buyers had to "commence construction" of a home on the land they bought from the
seller within 60 months, or the seller had the right to repurchase it. The appellate court held both
the seller and a homeowners association had conditional rights to repurchase the land, in this
event, so the association did not exclusively have the right to repurchase. The seller admitted that
getting plans approved and getting a building permit, which the buyers did within the 60-month
period, were part of the construction process. The court strictly construed the right to repurchase
against the seller and held that the buyers substantially performed their obligation to begin
construction within the allotted time by beginning the planning process and permitting.
Laipply v. Bates, 2006 Ohio 1766 (Ohio Ct. App. Noble Cnty. Mar. 31, 2006).
The discovery rule exception for the statutory period on negligent construction is
applicable when the injury complained of may not manifest itself immediately and therefore,
fairness necessitates allowing the assertion of a claim when discovery of the injury occurs
beyond the statute of limitations.
Clinton Elec. & Plumbing Supply v. Airline Professionals Ass'n., Teamsters Local 1224, 2006
Ohio 1274 (Ohio Ct. App. Clinton Cnty. Mar. 20, 2006).
Property owner filed its Notice of Commencement with an abbreviated name which the
court held to be a substantial variance within the meaning of R.C. 1311.04 and therefore invalid.
The court stated that a lien claimant cannot be expected to search for all combinations and
permutations of letters in order to cover every possible name under which a notice of
commencement may be filed. Therefore, the supplier lien-claimant could recover through the
property owner’s bond even though the supplier had not filed a Notice of Furnishing.
Hugh v. Wills, 2006 Ohio 1282 (Ohio Ct. App. Monroe Cnty. Mar. 17, 2006).
Failure to complete construction on a home in a timely manner is a breach of contract
entitling the homeowner to damages including the amount of his mortgage interest payments
where he could not sell his previous home.
City of Cincinnati v. Scheer & Scheer Dev., 2006 Ohio 1221 (Ohio Ct. App. Hamilton Cnty.
Mar. 17, 2006).
Where the city had control over the contractor by having complete contractual oversight,
inspectors on the job daily to approve all work, and was to share in any eventual profits upon the
sale of the completed housing units, the city went beyond its role as a mere lending agency.
When the contractor abandoned the project due to severe cost overruns, the subcontractor was
not paid and it filed mechanics' liens. The city initiated foreclosure actions and since the project
was a public improvement authorized by a public authority under R.C. § 1311.25(A) and (B), the
amount due to the subcontractor was proper under R.C. §§ 1311.31 and 1311.32.
IBEW, Local No. 8 v. Bryan Senior Ctr., Inc., 2006 Ohio 971 (Ohio Ct. App. Williams Cnty.
Mar. 2, 2006).
Where a private company constructed a senior citizen’s recreation center and then
donated the completed center to the city, the city was not responsible for compliance with
prevailing wage laws because no public funds were used for the project nor was the city involved
with the construction.
Circelli v. Keenan Constr., 2006 Ohio 949 (Ohio Ct. App. Franklin Cnty. Mar. 2, 2006).
While an independent contractor who lacks a contractual relationship with a second
independent contractor owes no affirmative duty to the employees of the second contractor, it
does not terminate the issue of whether ordinary care was used to establish the independent
Uvegas v. Storage World, Inc., 2006 Ohio 924 (Ohio Ct. App. Medina Cnty. Mar. 1, 2006).
The court held that where a contract fails to include a completion date, a reasonable time
for performance had to be inferred. Therefore, the parol evidence rule did not apply and
evidence of the parties’ discussions was properly admitted. The court upheld the trial court’s
decision based on parol evidence that two years and nine months was beyond the reasonable time
to build storage units.
George Ford Constr., Inc. v. Hissong, 2006 Ohio 919 (Ohio Ct. App. Summity Cnty. Mar. 1,
Where a trial court grants a motion to stay proceedings and compel arbitration, the
arbitration clause is inferred to be enforceable and conscionable.
Hubert v. Al Hissom Roofing & Constr., Inc., 2006 Ohio 751 (Ohio Ct. App. Columbiana Cnty.
Feb. 16, 2006).
Roofer unsuccessfully sued his employer when he fell twenty feet from a roof alleging an
intentional tort. Working at a height of 20 feet was a danger inherent to his job and did not show
a dangerous condition. He also failed to produce any evidence showing that management had
any knowledge that the platform from which he fell was improperly secured. Finally, it was the
roofer’s decision not to avail himself of a company-provided safety harness. These conditions
allowed the employer to succeed on its motion for summary judgment.
Monin v. George, 2006 Ohio 710 (Ohio Ct. App. Cuyahoga Cnty. Feb. 16, 2006).
The contractor was entitled to just compensation for his work since it was undisputed that
he had installed the front door and storm door at the request of the homeowners. The
homeowners did not have a good-faith belief that the construction consultant was the contractor's
partner and were not justified in assuming that the consultant would pay the contractor for his
Plum v. W. Am. Ins. Co., 2006 Ohio 452 (Ohio Ct. App. Hamilton Cnty. Feb 3, 2006).
Regarding defective home building and a builder’s occurrence-based policy, the court
declined to apply the manifestation trigger and instead, found that the continuous-coverage
trigger applied. Accordingly, the date that the damage "manifested" itself was not relevant, and
an issue of fact existed as to what extent of the damage occurred during the period that the policy
was in effect.
Baywest Constr. Group v. Premcar Co., 2006 Ohio 444 (Ohio Ct. App. Cuyahoga Cnty. Feb. 2,
The owner argued that the parties agreed to submit the claims to binding arbitration. The
appellate court held that the agreement limited the jurisdiction over arbitrable claims to those
totaling $100,000 or less. The language in the agreement was not reasonably susceptible to any
other interpretation; thus, language could not be construed as a cap on damages. The contractor
did not aggregate its claims to circumvent arbitration. The agreement did not require the parties
to pursue a succession of "claims" through piecemeal arbitrations. Finally, it appeared that the
contractor satisfied the condition precedent to initiating litigation of presenting the claims first to
Marchese Concrete Co. v. DeRubba, 2006 Ohio 330 (Ohio Ct. App. Trumbull Cnty. Jan. 27,
Homeowner proved that the contractor breached the contract by failing to pour the
concrete for a driveway to a certain depth. The contractor argued that it poured the correct
volume of concrete; however, the argument was insufficient where contract required a certain
thickness and not volume. Further, the contractor’s principal could not offer testimony as to
proper thickness because he did not qualify as an admissible expert.