VALENTINE CONCRETE v. DEPT. OF ADM. SERV

SHOEMAKER, Judge.

On August 1, 1991, defendant/third-party plaintiff, Ohio University, filed a motion for reconsideration of portions of the court's decision pursuant to Civ.R. 54(B). Plaintiff filed a response on September 9, 1991.

Pursuant to Civ.R. 54(B), this court has the power to modify, change, or revise the judgment until the final adjudication of all claims. TR Barth Assoc. v. Marginal Ent. (1976), 48 Ohio App.2d 218, 2 O.O.3d 182, 356 N.E.2d 766.

This court does not desire to require any party to go to a reviewing court to cure any judgment made by this court. Therefore, the court will carefully evaluate and consider defendant's motion.

The parties essentially agree that prejudgment interest is proper if the underlying debt is liquidated. Nursing Staff of Cincinnati, Inc. v. Sherman (1984), 13 Ohio App.3d 328, 13 OBR 406, 469 N.E.2d 1031; Braverman v. Spriggs (1980), 68 Ohio App.2d 58, 22 O.O.3d 47, 426 N.E.2d 526. In order to determine if the amount due is liquidated, it must be capable of computation by well-established market values. Shaker Savings Assn. v. Greenwood Village, Inc. (1982), 7 Ohio App.3d 141, 7 OBR 184, 454 N.E.2d 984. The court calculated damages by what was properly billed under the provisions of the contract. Tony Zumbo Son Constr. v. Ohio Dept. of Transp. (1984), 22 Ohio App.3d 141, 22 OBR 381, 490 N.E.2d 621. Therefore, the amount of damages was capable of mathematical calculation in accordance with the standards of the construction industry and prejudgment interest was proper, not as punishment, but as compensation to make the plaintiff whole. Lawrence RR. Co. v. Cobb (1878), 35 Ohio St. 94.

Defendant asserts that the court should have calculated the interest pursuant to R.C. 1343.03(A) rather than R.C. 126.30. Having duly considered the arguments of the parties, the court agrees with defendant. The interest shall be calculated at ten percent per annum pursuant to R.C. 1343.03(A).

Additionally, defendant asserts that the interest should be simple. The interest will be computed annually, since calculating otherwise would not fully compensate plaintiff for the monies wrongfully withheld.

The unpaid balance of the original contract was deposited in an escrow account pursuant to R.C. 153.63. The court awarded plaintiff $249,342.30, which represented the unpaid balance of the contract plus interest as calculated pursuant to R.C. 126.30. Defendant asserts the amount due plaintiff is $243,952.10, which represents the amount held in escrow plus the interest it actually accrued in the escrow account.

R.C. 1343.03(A) states in part: "[T]he creditor is entitled to interest at the rate of ten per cent per annum, and no more, unless a written contract provides a different rate of interest." All the statutes of the state of Ohio were incorporated into the written contract.

R.C. 153.63 was part of the contract and the parties entered into a written agreement depositing the unpaid balance in escrow in which principal and interest totaled $243,952.10. Therefore, plaintiff is entitled only to this amount, which represents the escrow account.

The court will reduce Valentine's award of extended job conditions, since the contract completion date was June 21, 1985, and Valentine's exhibit, which the court relied on in calculating the extended job conditions, incorrectly used the completion date of June 10, 1985. Therefore, the judgment will be reduced by $5,729.20 to reflect the two-week discrepancy.

Additionally, Valentine's exhibit calculated $491 per month for electric and $55 per month for water as an additional expense due to the extended job conditions. The court did not award defendant, in its counterclaim, utility costs beyond the contract completion date, so it was in error to allow plaintiff to recover such cost as part of its award of extended job conditions. Therefore, the amount of the judgment will be reduced by $3,412.50. The total due Valentine on extended job conditions is $65,886.75.

The extended job conditions of Arthur Painting, Inc. will be reduced by $4,048 in order to reflect the nearly two-week discrepancy in the contract completion date.

As to any other arguments of defendant on Arthur Painting's extended job conditions, the court finds these arguments are without merit. The extras awarded to Arthur Painting were not determinative in the court's decision to also award Arthur Painting extended job condition expenses. Arthur Painting, as the painter, would be expected to be one of the last subcontractors on the job site. Due to conditions beyond its control, and as a result of delays caused by Ohio University, it had to be on the job site beyond the contract completion date. Therefore, after the reduction, Arthur Painting is entitled to $47,026.99.

A reconsideration of the award of extended job conditions to Hammond Construction indicates that the court erred in awarding $5,000 in legal fees as part of its damages. It had originally been considered an office administration expense; however, the court will not indirectly award legal expenses.

Additionally, the award for Hammond's extended job conditions will be reduced by $21,086, which represents the interest on borrowed funds and delayed payments. The court's order awarding prejudgment interest on the extras and extended job conditions will compensate Hammond for this expense.

Finally, the court will reduce the award amount by two weeks due to the June 21, 1985 contract completion date. The figure of $2,162.56 represents Hammond's weekly expenses after deducting legal fees and interest on borrowed funds and delayed payments. Therefore, the award to Hammond will be reduced to $49,738.88.

The court will not reconsider any of the issues raised by defendant, Ohio University, relating to its counterclaim items.

Extended Job Conditions Valentine $ 65,886.75 Arthur Painting 47,026.99 Hammond 49,738.88 TOTAL $162,652.62 Allowed Extras $193,865.29 Total $356,517.91 × 10% interest computed annually from June 24, 1985 to May 17, 1991 = $627,228.71 + Escrow Account Escrow Account $243,952.10 Total Judgment $871,180.81

FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.