[Cite as Jutte Elec., Ltd. v. Ohio Facilities Constr. Comm., 2017-Ohio-2697.]

{¶1} On December 13, 2016, the referee issued a decision recommending 

judgment in favor of defendant, Ohio School Facilities Commission (OSFC). 

Additionally, as the third-party claims and counterclaims were based solely on 

indemnity, the other claims, damages, and costs were denied as not supported by the 

greater weight of the evidence. Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file 

written objections to a magistrate’s decision within fourteen days of the filing of the 

decision, whether or not the court has adopted the decision during that fourteen-day 

period as permitted by Civ.R. 53(D)(4)(e)(i).” After receiving two extensions of time, 

plaintiffs, Jutte Electric, LTD. (Jutte) and Southwest Marine and General Insurance 

JUTTE ELECTRIC, LTD., et al. 

 Plaintiffs/Counter Defendants 

 v. 

OHIO FACILITIES CONSTRUCTION 

COMMISSION 

 Defendant/Counter 

 Plaintiff/Third-Party Plaintiff 

 v. 

STEED HAMMOND PAUL, INC., etc. 

 Third-Party Defendant/Fourth Party 

 Plaintiff 

 v. 

BERARDI PARTNERS, INC. 

 Fourth-Party Defendant 

Case No. 2014-00318 

Judge Patrick M. McGrath

Referee Dale A. Crawford 

JUDGMENT ENTRY 
Case No. 2014-00318 -2- JUDGMENT ENTRY 

Company (Surety), filed their objections on January 17, 2017. All defendants filed 

responses or memorandum contra in opposition to plaintiffs’ objections on February 2, 

2017. Plaintiffs raise the following five objections: 

a. Objection 1: The referee’s determination that plaintiffs failed to 

prove that their damages resulted from the acts and omissions of 

the OSFC is erroneous. 

{¶2} Plaintiffs assert that the referee misapplied the concept of “reasonable 

certainty” as it applies to damages. The referee determined that plaintiffs “failed to 

prove by a preponderance of the evidence within a reasonable degree of certainty that 

their damages were proximately caused by the OSFC.” (Objections, p. 2). Plaintiffs 

argue that pursuant to the holding in Tri-State Asphalt Corp. v. Ohio Dept. of Transp., 

10th Dist. Franklin No. 94API07-987, 1995 Ohio App. LEXIS 1554 (April 11, 1995), it is 

the amount of damages that needs to be proved within a reasonable degree of 

certainty. Therefore, according to plaintiffs, under Ohio law a plaintiff need not prove 

within a reasonable degree of certainty that its damages were proximately caused by 

defendant. 

{¶3} Plaintiffs also contend that their expert, Timothy Calvey, testified that 

plaintiffs’ damages were caused by OSFC. Specifically, plaintiffs state that Mr. Calvey 

testified that plaintiffs’ damages resulted from: 1) design delays, late drawings, and an 

incomplete and erroneous design; 2) delayed and incomplete responses to Requests 

for Information (RFI); 3) dimensional issues; 4) design changes; 5) issues with 

schedules; and 6) late award of campus-wide bid packages for casework, technology, 

security, and fire alarm systems. 

{¶4} The court finds that the referee accurately applied the law as it pertains to 

plaintiffs’ burden of proof and the court does not agree with plaintiffs’ interpretation of 

the law. Assuming plaintiffs’ representation of the law is true, it does not change the 
Case No. 2014-00318 -3- JUDGMENT ENTRY 

referee’s decision since he clearly held that plaintiffs failed to meet their burden of 

proving that OSFC proximately caused plaintiffs’ damages. 

{¶5} In determining the proximate cause of alleged damages to a prime 

contractor on a multi-million dollar construction project that spans a substantial amount 

of time, a trial court must rely heavily on expert testimony. The types of claims alleged 

by plaintiffs involve complex scheduling issues, and is therefore outside the purview of a 

lay person’s knowledge. Therefore, the testimony of an expert is particularly crucial in 

determining proximate causation. 

{¶6} The referee found that plaintiffs’ expert testimony lacked credibility. The 

credibility of witnesses and the weight attributable to their testimony are primarily 

matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E. 2d 212 

(1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all or 

any part of each witness’s testimony. State v. Antill, 176 Ohio St. 61, 197 N.E. 2d 548 

(1964). While the court’s review of the referee’s decision is de novo, it gives great 

deference to the referee’s opinion regarding the credibility of trial testimony. 

{¶7} Accordingly, plaintiffs’ first objection is OVERRULED. 

b. Objection 2: The referee erred in determining that “all claims before 

August 31, 2011 were settled and should not have been included 

as damages.” 

{¶8} Plaintiffs contend that the referee erred in concluding that issues arising 

prior to the execution of the Memorandum of Understanding (MOU) were settled and 

should not have been included as damages. They argue that the August 31, 2011 MOU 

does not reference a settlement of any or all claims existing as of the date of its 

execution. In fact, plaintiffs assert that the MOU contains specific language expressly 

reserving their rights with respect to any and all claims. Paragraph six of the MOU 

states: 
Case No. 2014-00318 -4- JUDGMENT ENTRY 

In the event that the Obligee [the OFSC] fails to perform the obligation set 

out in this agreement or in the Contract, the Principal [Jutte] and the 

Surety [Southwest] by execution of this Agreement do not waive or in any 

way forfeit or relinquish any legal rights they may have to assert claims 

against the Obligee under the Contract or Bond or waive any defenses 

which may have which are inconsistent with the terms of this Agreement. 

{¶9} Upon review, the court finds the referee’s analysis of the effect of the MOU 

on plaintiffs’ claims to be an accurate interpretation. By executing the MOU, plaintiffs 

agreed to remedy several workmanship and scheduling issues. By agreeing to resolve 

these issues, thereby admitting that there were issues that needed to be addressed and 

remedied by plaintiffs, and not by OSFC or a supplementary contractor, plaintiffs 

effectively waived the right for claims related to that unresolved work. The referee did 

not state that plaintiffs agreed to waive their rights to pursue claims. If he had done so, 

the claims would not have survived summary judgment and proceed to a full trial on the 

merits. Specifically, the referee stated that all of the claims before August 31, 2011 

should not have been included in plaintiffs’ damages. Plaintiffs had every right to bring 

a claim for something that occurred before August 31, 2011, but not as it pertains to the 

specific enumerated items in the MOU. Considering this was very early in the 

construction of the project and buildings were not yet out of the ground, the court is 

dealing with a relatively small amount of plaintiffs’ alleged damages; damages which 

were not proved to be caused by OSFC. 

{¶10} Accordingly, plaintiffs’ second objection is OVERRULED. 

c. Objection 3: The referee incorrectly analyzed the bases for 

Southwest’s rights to assert claims against the OSFC. 

{¶11} Upon thorough review, the court finds that the referee’s analysis of the 

Surety’s rights is consistent with the law. Even if the referee was mistaken, his opinion 

on pages 18-22 regarding the relationship between the Surety, OSFC, and Jutte is 
Case No. 2014-00318 -5- JUDGMENT ENTRY 

essentially dicta. In no way does the referee’s analysis of the Surety’s rights affect the 

outcome of this case. 

{¶12} Accordingly, plaintiffs’ third objection is OVERRULED. 

d. Objection 4: The referee incorrectly analyzed the sufficiency and 

legal ramifications of Southwest’s investigation and decision 

regarding how to complete Jutte’s work on the project. 

{¶13} Plaintiffs contend that the referee was highly critical of the investigation 

conducted by the Surety, through Ray Zetts and Anne Meyers, without any reference to 

legal authority which supports the criticism. They also assert that the referee based his 

criticism on various factors that were unknown to the Surety at the time it made its 

decision and other factors that the Surety justifiably deemed insignificant or irrelevant to 

completing a thorough investigation. 

{¶14} The court thoroughly reviewed the evidence, trial testimony, and 

depositions and finds that the referee’s recommendation is strongly supported by the 

evidence. The Surety believed that it could “beat the spread,” a position it later learned 

was unrealistic. Even if the Surety completed the most thorough investigation possible, 

and made a sound business decision based on all of the information available to it at 

the time, the end result was a substantial loss to the Surety. The referee was not 

inclined to pass that loss along to OSFC, and the court agrees. 

{¶15} Accordingly, plaintiffs’ fourth objection is OVERRULED. 

e. Objection 5: The referee erred in determining that plaintiffs’ claims 

against the OSFC were barred by Article 8 of the General 

Conditions. 

{¶16} Plaintiffs assert that Article 8 does not apply to plaintiffs’ supplemental 

claim and delay/impact claims, and even if Article 8 does apply to plaintiffs’ claims, its 

application in this case is void and unenforceable as against public policy pursuant to 

R.C. 4113.62. If Article 8 is not void and unenforceable here, plaintiffs’ argue that 
Case No. 2014-00318 -6- JUDGMENT ENTRY 

OSFC waived its right to insist upon strict compliance with Article 8 and OSFC cannot 

insist on strict compliance when it was the first to breach the contract. Finally, plaintiffs’ 

claim that they satisfactorily and substantially complied with the provisions of Article 8. 

{¶17} The referee determined that on December 30, 2011, Anne Meyers sent 

what appeared to be a first certified Article 8 claim that took issue with the 

supplementation of Jutte’s work by Accurate Electric. The referee found that these 

issues relate to matters before the MOU, and, as discussed in Objection 2 above, were 

effectively settled. Next, the referee determined that on December 12, 2012, the 

second Article 8 claim was filed on behalf of the Surety and Jutte, and it was clearly late 

as it was filed approximately four months after the project was substantially completed. 

{¶18} Upon review, the court finds that the issues discussed in the December 30, 

2011 letter related to matters before the MOU, and for reasons discussed in Objection 2 

above, the court agrees with the referee. The court also agrees that the December 12, 

2012 Article 8 claim was untimely. 

{¶19} Accordingly, plaintiffs’ fifth objection is OVERRULED. 

{¶20} Upon review of the record, the referee’s decision, plaintiffs’ objections, and 

defendants’ responses, the court finds that the referee properly determined the factual 

issues and appropriately applied the law. Therefore, plaintiffs’ objections are 

OVERRULED and the court adopts the referee’s decision and recommendation as its 

own, including findings of fact and conclusions of law contained therein. Judgment is 

rendered in favor of defendant. Court costs are assessed against plaintiffs. The clerk 

shall serve upon all parties notice of this judgment and its date of entry upon the journal. 

 PATRICK M. MCGRATH 

 Judge 
Case No. 2014-00318 -7- JUDGMENT ENTRY 

cc: 

Bradley J. Barmen 

1375 East 9th Street, 16th Floor 

Cleveland, Ohio 44114 

David M. Rickert 

110 North Main Street, Suite 1000 

Dayton, Ohio 45402 

Craig D. Barclay 

David A. Beals 

William C. Becker 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Debra Jean Horn 

Ronald P. Friedberg 

28601 Chagrin Boulevard, Suite 500 

Cleveland, Ohio 44122 

Filed April 3, 2017 

Sent to S.C. Reporter 5/5/17