[Cite as R.E. Schweitzer Constr. Co. v. Univ. of Cincinnati, 2010-Ohio-4339.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

R.E. SCHWEITZER CONSTRUCTION CO. 

 Plaintiff 

 v. 

UNIVERSITY OF CINCINNATI 

 Defendant 

Case No. 2007-02114 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

{¶ 1} On May 18, 2010, the court rendered judgment in favor of plaintiff in the 

amount of $67,731.82. The court further found that plaintiff was entitled to prejudgment 

interest and the case was subsequently set for hearing to allow the parties to present 

evidence pursuant to General Condition section 8.9.1 of the contract, which provides 

that “[t]he rate of any prejudgment interest shall be at the average of the prime rate 

established at the commercial banks in the City of Cincinnati.” 

{¶ 2} Defendant asserts that plaintiff has waived its right to prejudgment interest 

inasmuch as it failed to present any evidence at trial regarding the average of the prime 

rate for the period of time at issue. However, the court notes that plaintiff made a 

demand for prejudgment interest in its complaint and it again raised the issue in its posttrial brief. See Masterclean, Inc. v. Ohio Dept. of Admin. Servs. (May 13, 1999), 

Franklin App. No. 98AP-727 (finding that plaintiff had not waived its right to prejudgment 

interest where the issue was properly raised in both the complaint and proposed 

findings of fact and conclusions of law). Thus, the claim for prejudgment interest has 

not been waived. 
Case No. 2007-02114 - 2 - JUDGMENT ENTRY

{¶ 3} At the evidentiary hearing, the court admitted, without objection, 

documents that were prepared by Cynthia Foy, Vice President of Commercial Lending 

at the North Side Bank and Trust Company, which show the history of the U.S. Prime 

Rate for all times relevant. (Plaintiff’s Exhibits A and B.) In a letter contained in 

Plaintiff’s Exhibit A, Foy explains that her bank uses the “Wall Street Journal U.S. Prime 

Rate” as the index found on most commercial loan transactions. 

{¶ 4} A government contractor’s money becomes due and payable when the 

contractor substantially completes its work on the project. Royal Electric Const. Corp. v. 

The Ohio State University, 73 Ohio St.3d 110, 117, 1995-Ohio-131. In the liability 

decision, the court determined that the money owed to plaintiff became due and 

payable on November 24, 2004, the date that the change order at issue was approved 

by defendant. (Liability Decision, Page 9.) Although defendant asserts that plaintiff’s 

work on the project was not substantially completed by that date, the evidence clearly 

supports the court’s determination. See Plaintiff’s Exhibits 26, 28, and 29. 

{¶ 5} Pursuant to R.C. 2743.18(A)(2), the court “may deny prejudgment interest 

for any period of undue delay between the commencement of the civil action and the 

entry of a judgment or determination against the state, for which it finds the claimant to 

have been responsible.” Inasmuch as the average of the prime rate established at the 

commercial banks in the City of Cincinnati was ascertainable at the time of the trial, the 

court finds that plaintiff is not entitled to prejudgment interest beyond the date of the 

liability decision. Consequently, under Royal Electric, supra, plaintiff is entitled to 

prejudgment interest on the award of damages from November 24, 2004, to May 18, 

2010, as follows: 

 $67,731.82 damages award

 x 

 2001 days 

 x 

 5.88% (average of the monthly prime rates from November 24, 2004 to May 18, 2010) 
Case No. 2007-02114 - 3 - JUDGMENT ENTRY

 $21,833.55 prejudgment interest

 + 

 $67,731.82

 $89,565.37 Total Damages 

{¶ 6} Accordingly, judgment is rendered in favor of plaintiff in the amount of 

$89,590.37 which includes the filing fee paid by plaintiff. Court costs are assessed 

against defendant. The clerk shall serve upon all parties notice of this judgment and its 

date of entry upon the journal. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 

Barry A. Rudell 

2368 Victory Parkway, Suite 200 

P.O. Box 6491 

Cincinnati, Ohio 45206 

Gregory Mohar 

Special Counsel to Attorney General 

University of Cincinnati 

650 University Pavilion 

P.O. Box 210623 

Cincinnati, Ohio 45221-0623 

William C. Becker 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

AMR/cmd

Filed September 2, 2010 

To S.C. reporter September 14, 2010