[Cite as Vaughn Industries, LLC v. Lake Erie Elec., Inc., 2011-Ohio-1146.]

COURT OF APPEALS 

 RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

VAUGHN INDUSTRIES, LLC 

 Plaintiff-Appellant 

-vsLAKE ERIE ELECTRIC, INC. 

 

 Defendant-Appellee 

: JUDGES: 

: Julie A. Edwards, P.J. 

: W. Scott Gwin, J. 

: Patricia A. Delaney, J. 

: 

: Case No. 2010CA0043 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from Richland County 

 Court of Common Pleas Case No. 

 08CV2084 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 9, 2011 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

DAVID T. ANDREWS LINDA C. ASHAR, ESQ. 

JERRY P. CLINE AMY L. DELUCA 

Andrews & Wyatt, LLC Wickens Herzer Panza 

561 Boston Mills Road, Ste. 700 Cook & Batista Company 

Hudson, Ohio 44236 35765 Chester Road 

 Avon, Ohio 44011 
[Cite as Vaughn Industries, LLC v. Lake Erie Elec., Inc., 2011-Ohio-1146.]

Edwards, P.J. 

{¶1} Plaintiff-appellant, Vaughn Industries, LLC, appeals from the December 

22, 2009, and March 1, 2010, Orders of the Richland County Court of Common Pleas. 

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Vaughn Industries, LLC is a non-union electrical and mechanical 

contractor. Appellee Lake Erie Electric, Inc. is a union electrical contractor. In March of 

2007, both bid the electrical contracts for the Richland County Jail Project, a public 

works construction jail project. Appellee was awarded the contract on or about April 27, 

2007 and completed work on the same on or about April 4, 2009. 

{¶3} On or about January 29, 2008, appellant filed a complaint with the 

Department of Commerce (DOC), alleging that appellee had committed prevailing wage 

violations on the project. The complaint, alleged, in part, that appellee had taken credit 

for contributions into a fund, plan or program that was not actuarially sound. DOC 

assigned Sean Seibert as the investigator on the case. As memorialized in an e-mail 

from Seibert to appellee dated November 13, 2008, Seibert found appellee in violation 

of the prevailing wage law and indicated that appellee owed $442.93. Seibert, in such 

letter, asked appellee to notify him if it found any problems. Pursuant to a letter to 

appellant dated November 17, 2008, DOC notified appellant that its investigation had 

been completed and that the complaint had been closed based upon R.C. 4115.16(B). 

Appellee paid the amount it owed. 

{¶4} On November 17, 2008, appellant filed a complaint against appellee in the 

Richland County Court of Common Pleas, alleging various violations of Ohio’s 

prevailing wage law. Appellant filed an amended complaint on December 17, 2008. 
Richland County App. Case No. 2010CA0043 3 

{¶5} On November 17, 2009, appellant filed a Motion to Compel pursuant to 

Ohio Civ. R. 37. Appellant, specifically sought an order from the trial court compelling 

appellee to respond to the following: “Interrogatory No. 12 Identify all projects, both 

public and private, including address and location by county and state, for the years 

2007 and 2008, that were worked on by any Lake Erie employee(s) who also worked on 

the Richland County Jail Project in 2007 and/or 2008. Request for Production of 

Documents: “Production Request No. 4 For 2007 and 2008, for employees who worked 

on the Project, provide proof of payment, including checks, electronic funds transfer 

receipts or other documents showing contributions by Lake Erie into all fringe benefit 

plans, funds of programs for said employees. Production Request No. 5 For all projects 

indentified in Interrogatory No. 12, provide all of the certified payroll reports for the 

public projects and the equivalent payroll records for the private projects for the years 

2007 and 2008. Production Request No. 7 For the years 2007 and 2008, provide a 

copy of individual payroll records for all Lake Erie employees who worked on the 

Richland County Jail Project, including but not limited to, time cards, copies of 

paychecks and direct deposit slips.” The trial court, as memorialized in an Order filed 

on December 18, 2009, overruled such motion. 

{¶6} Subsequently, on December 24, 2009, appellant filed a Motion to Compel 

the International Brotherhood of Electrical Workers Local 688 Funds (“Funds”) and the 

National Electrical Contractors Association (“NECA”) to respond to appellant’s 

subpoenas duces tecum. The subpoenas had requested the above to produce or permit 

inspection and copying of the following documents: 
Richland County App. Case No. 2010CA0043 4 

{¶7} “(1) The Summary Plan Descriptions and Plan Documents in effect from 

January 1, 2007 to the present for: 

{¶8} “a. IBEW Local No. 688 Retirement Plan (Annuity) 

{¶9} “b. IBEW Local No. 688 Pension Plan 

{¶10} “c. National Electrical Benefit Fund (NEBF) 

{¶11} “(2) Any and all documents that demonstrate the methodology, calculation 

and/or computation for deriving the hourly fringe benefit amount for each benefit plan 

and/or fund set forth above from January 1, 2007 to the present; 

{¶12} “(3) All actuarial reports prepared for or on behalf of the plans and/or funds 

described above from January 2, 2007 to the present;...” 

{¶13} Appellant, in its motion, argued that it was entitled to the actuarial 

documents that it requested because it “relied upon the fringe benefits credits and 

corresponding actuarial calculations set forth in the CBA [Collective Bargaining 

Agreement covering appellee’s employees] when it bid on the project.” Appellant 

alleged that such calculations were “actuarially unsound.” 

{¶14} On December 29, 2009, appellee filed a Motion for Summary Judgment. 

Appellee filed a Motion for Partial Summary Judgment on December 31, 2009. 

{¶15} Pursuant to an Order filed on February 10, 2010, the trial court granted 

appellant’s December 24, 2009 Motion to Compel. The trial court ordered the 

International Brotherhood of Electrical Workers Local 688 Funds and the National 

Electrical Contractors Association to respond to the subpoenas duces tecum. No 

deadline to respond was set forth in the trial court’s order. 
Richland County App. Case No. 2010CA0043 5 

{¶16} Thereafter, appellant, on February 18, 2010, filed a Civ.R. 56(F) Motion for 

Extension of Time and Motion to Postpone the Trial Date. Appellant, in is motion, 

alleged that it could not fully respond to appellee’s Motion for Summary Judgment until 

the subpoenaed documents were produced and follow-up discovery was completed. 

Appellant specifically sought an extension of the February 22, 2010 deadline to respond 

to appellee’s Motion for Summary Judgment, of the discovery deadline and of the March 

5, 2010 trial date. On February 23, 2010, appellant filed a memorandum in opposition 

to appellee’s Motion for Summary Judgment. Appellant, in its memorandum, noted that 

as of February 22, 2010, it had not been served with the documents that the trial court 

ordered to be produced by the subpoenaed parties. 

{¶17} Pursuant to an Order filed on March 1, 2010, the trial court granted 

appellee’s Motion for Summary Judgment while overruling appellant’s Motion for Partial 

Summary Judgment. The trial court also overruled appellant’s motion for an extension 

of time and for postponement of the trial as moot. 

{¶18} Appellant now appeals from the trial court’s December 19, 2009 and 

March 1, 2010 Orders, raising the following assignments of error on appeal: 

{¶19} “I. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

FINDING THAT THE INVESTIGATOR’S E-MAIL CONSTITUTED A ‘RULING ON THE 

MERITS’ THAT DIVESTED PLAINTIFF OF AUTHORITY TO INITIATE AN ACTION 

PURSUANT TO R.C. § 4115.16. 

{¶20} “II. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

FINDING THAT THE HOURLY FRINGE BENEFIT CREDIT WHICH APPELLEE TOOK 

IS NOT REQUIRED TO BE ‘ACTUARIALLY SOUND.’ 
Richland County App. Case No. 2010CA0043 6 

{¶21} “III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING APPELLANT’S CIVIL RULE 56(F) MOTION WHERE DISCOVERY 

ORDERED BY THE COURT HAD NOT YET BEEN COMPLETED. 

{¶22} “IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING DISCOVERY THAT THE OHIO DEPARTMENT OF COMMERCE HAS 

DETERMINED IS RELEVANT TO THE CALCULATION OF THE PREVAILING WAGE.” 

I 

{¶23} Appellant, in its first assignment of error, argues that the trial court erred in 

finding that the email issued by Sean Seibert, the DOC investigator, constituted a “ruling 

on the merits” that divested appellant of authority to initiate an action pursuant to R.C. 

4115.16. We agree. 

{¶24} R.C. 4115.16(A) authorizes an “interested party” to file a complaint with 

the director of commerce alleging a prevailing-wage violation. Sheet Metal Workers' 

Internatl. Assn., Local Union No. 33 v. Gene's Refrigeration, Heating & Air Conditioning, 

Inc., 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 11. If the director has not 

ruled on the merits of the complaint within sixty (60) days, the “interested party” may file 

a complaint in the court of common pleas of the county in which the violation allegedly 

occurred pursuant to R.C. 4115.16(B). Id. 

{¶25} In the case sub judice, the parties do not dispute that appellant was an 

“interested party”. An “interested party” with respect to a particular public improvement 

is defined as: (1) Any person who submits a bid for the purpose of securing the award of 

a contract for construction of the public improvement.” R.C. 4511.03(F)(1). 
Richland County App. Case No. 2010CA0043 7 

{¶26} However, the parties disagree as to whether or not the November 13, 

2009 email from Sean Seibert to appellee was a ruling on the merits. The trial court, in 

its March 1, 2010 Order, found that the email was a ruling on the merits and that the 

case sub judice was brought without statutory authority because the same had been 

issued within sixty (60) days of appellant’s complaint. In so holding, the trial court 

stated, in relevant part, as follows: 

{¶27} “Ohio Revised Code § 4115.13, which addresses the Department’s 

investigation of alleged violations of prevailing wage law, states that ‘[a]t the conclusion 

of the investigation, the director or a designated representative shall make a 

recommendation as to whether the alleged violation was committed.’1

 Further, the 

statute provides that when an underpayment was the result of a misinterpretation of the 

statute or an erroneous preparation of the payroll documents, ‘the director or a 

designated representative may make a decision ordering the employer to make 

restitution to the employees, or on their behalf, the plans, funds, or programs for any 

type of fringe benefits described in the applicable wage determination.’2 

{¶28} “The court recognizes the letter from Mr. Siebert (sic) as precisely such a 

decision. It informed Lake Erie that a violation had been committed, and it instructed 

Lake Erie to make restitution. As such, Vaughn had no statutory authority for the filing 

of this lawsuit, as the law allows an interested party to file suit in common pleas court 

only ‘[i]f the director has not ruled on the merits of the complaint within sixty days after 

its filing.’3

” 

 

1

 ‘Ohio Rev. Code § 4115.13(B).’ 

2

 ‘Ohio Rev. Code § 4115.13(C).’ 

3

 ‘Ohio Rev. Code § 4115.16(B).’ 
Richland County App. Case No. 2010CA0043 8 

{¶29} Robert Kennedy, who was the superintendent of the DOC’s Wage and 

Hour Bureau, testified in the case of Bergman v. Monarch Construction Co., Butler App. 

No. CA2008-02-044, 2009-Ohio-551, which was a prevailing wage case. In such case, 

the investigation process for prevailing wage cases was explained by Kennedy as 

follows: “The court heard testimony regarding the way Commerce views its 

implementation authority under R.C. Chapter 4115 from Robert Kennedy, Chief of the 

Bureau of Wage and Hour, a division of Labor and Work Safety under Ohio's 

Department of Commerce. During his testimony, both parties asked Kennedy specific 

questions hoping to clear up ambiguities in the statute. Pertinent to this appeal, 

Kennedy explained the process by which an employee makes a complaint, how 

Commerce investigates that complaint, and then makes an initial determination as to 

the whether the violation occurred and what back-pay the violating party may owe. 

Kennedy called this initial step a ‘predetermination’ in which Commerce lets the 

contractor know that the investigation has revealed a violation and allows the party to 

supplement the record so that Commerce could have ‘the audits as accurate as 

possible before [it] actually issue[s] a determination.’ This initial step then becomes an 

official determination when Robert Kennedy signs it and sends notice to the interested 

parties. Id at paragraph 50. 

{¶30} In the case sub judice, the same Robert Kennedy was deposed. During 

his deposition, he testified that he had been Superintendent of the Division of Labor and 

Worker Safety at DOC since 2007 and prior to such time, was Chief of the Bureau of 

Wage and Hour. Kennedy testified that after the investigator assigned to a case finishes 

his/her review of his/her audit of the complaint, the investigator sends out what is called 
Richland County App. Case No. 2010CA0043 9 

a predetermination to let the contractor know what the investigator’s finding is and to 

give the contractor time to look over the same and contact the investigator if the 

contractor has any issues with the finding. Kennedy testified that there was not a 

finding of a prevailing wage violation at this point, but rather only a preliminary review. 

When asked, he agreed that the predetermination was not the “official agency action” 

and that the contractor, after a predetermination, has an additional chance to provide 

supplemental documentation. Deposition of Robert Kennedy at 157. 

{¶31} Kennedy further testified that if, after receiving the additional information, 

the investigator feels that his or her determination is correct, the investigator sends it to 

Columbus for a determination or a request to close.4

 According to Kennedy, “that’s 

where if they request a determination, that’s when a determination will be issued from 

Columbus with the actual letter of finding...” Id at 159. 

{¶32} Based on the foregoing, we find that the trial court erred in finding that the 

email issued by Sean Seibert, the DOC investigator, constituted a “ruling on the merits’ 

that divested appellant of authority to initiate an action pursuant to R.C. 4115.16. 

{¶33} Appellant’s first assignment of error is, therefore, sustained.5

II 

{¶34} Appellant, in its second assignment of error, argues that the trial court 

erred in holding that the hourly fringe benefit credit that appellee took was not required 

to be actuarially sound. We disagree. 

 

4

 Kennedy testified that a request to close was issued when there was a finding of no violation or when 

the contractor paid based upon the predetermination (before the complaint reached the determination 

level). 

5

 While sustaining appellant’s first assignment of error, we note that the trial court, gave additional 

reasons for granting summary judgment in favor of appellee. Thus, our disposition of appellant’s first 

assignment of error is not dispositive. 
Richland County App. Case No. 2010CA0043 10 

{¶35} As is stated above, appellant filed the case sub judice against appellee, 

alleging that appellee had violated Ohio’s prevailing wage law. Appellant specifically 

alleged that appellee had violated the same by failing to properly calculate the fringe 

benefit credit. 

{¶36} As noted by the Ohio Supreme Court in J.A. Croson Co. v. J.A. Guy, Inc., 

81 Ohio St.3d 346, 349, 1998-Ohio-621, 691 N.E.2d 655, “[t]he prevailing wage 

statutes, R.C. 4115.03 through R.C. 4115.16, require contractors and subcontractors for 

public improvement projects to pay laborers and mechanics the so-called prevailing 

wage in the locality where the project is to be performed. ‘[T]he primary purpose of the 

prevailing wage law is to support the integrity of the collective bargaining process by 

preventing the undercutting of employee wages in the private construction sector.’ 

(Plurality opinion.) State ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 91, 23 O.O.3d 

145, 147, 431 N.E.2d 311, 313.” 

{¶37} R.C. 4115.12 provides that “[i]n order to facilitate the administration of 

sections 4115.03 to 4115.16 of the Revised Code, and to achieve the purposes of those 

sections, the director of commerce may adopt reasonable rules, not inconsistent with 

those sections, for contractors and subcontractors engaged in the construction, 

prosecution, completion, or repair of a public improvement financed in whole or in part 

by any public authority.” The rules adopted by the director of commerce are set forth in 

the Ohio Administrative Code. “Because they serve to augment the prevailing-wage 

laws set forth in the Revised Code, [the Ohio Administrative Code rules] they must be 

considered when we evaluate a claim of prevailing-wage law violation.” Vaughn 
Richland County App. Case No. 2010CA0043 11 

Industries, Inc. v. Dimech Serv., 167 Ohio App.3d 634, 2006-Ohio-3381, 856 N.E.2d 

312 at paragraph 13. 

{¶38} R.C. 4115.10(A) provides as follows: “No person, firm, corporation, or 

public authority that constructs a public improvement with its own forces * * * shall 

violate the wage provisions of sections 4115.03 to 4115.16 of the Revised Code, or 

suffer, permit, or require any employee to work for less than the rate of wages so fixed, 

or violate the provisions of section 4115.07 of the Revised Code.” Pursuant to R.C. 

4115.031, “[t]he obligation of a contractor or subcontractor to make payment in 

accordance with the prevailing wage determinations of the director of commerce, insofar 

as Chapter 4115. of the Revised Code is concerned, may be discharged by the making 

of payments in cash, by the making of contributions of a type referred to in division 

(E)(2) of section 4115.03 of the Revised Code or by the assumption of an enforceable 

commitment to bear the costs of a plan or program of a type referred to in division (E)(3) 

of section 4115.03 of the Revised Code, or any combination thereof, where the 

aggregate of any such payments, contributions, and costs is not less than the rate of 

pay described in division (E)(1) plus the rates referred to in divisions (E)(2) and (3) of 

section 4115.03 of the Revised Code.” 

{¶39} In turn, R.C. 4115.03(E) states, in relevant part, as follows: “Prevailing 

wages” means the sum of the following: 

{¶40} “(1) The basic hourly rate of pay; 

{¶41} “(2) The rate of contribution irrevocably made by a contractor or 

subcontractor to a trustee or to a third person pursuant to a fund, plan, or program; 
Richland County App. Case No. 2010CA0043 12 

{¶42} (“3) The rate of costs to the contractor or subcontractor which may be 

reasonably anticipated in providing the following fringe benefits to laborers and 

mechanics pursuant to an enforceable commitment to carry out a financially responsible 

plan or program which was communicated in writing to the laborers and mechanics 

affected:...” 

{¶43} The relevant Ohio Administrative Code Sections in this case are Ohio 

Administrative Code Sections 4101:9-4-04(A) and 4101:9-4-05(A). Section 4101:9-4-

04(A) states as follows: “A) Pursuant to division (E)(2) of section 4115.03 of the Revised 

Code, commerce will allow credit for the “rate of contribution” irrevocably made by an 

employer to a trustee or to a third person pursuant to a fund, plan, or program. No credit 

will be allowed to the extent the employer will be able to recapture this rate of 

contribution or in any way divert said funds to his own use or benefit, except where the 

employer can demonstrate that he has erroneously contributed an excessive amount, 

he may recapture said amount without affecting the credit previously given, provided 

that he received no credit for the amount he seeks to recapture. In order for an 

employer to receive the credit, a trustee or third person must act in a fiduciary capacity 

and must assume the usual fiduciary responsibilities imposed upon trustees by 

applicable state or federal law. The terms fund, plan, or program are intended to 

recognize the various types of arrangements commonly used to provide the funded 

benefits contemplated by division (E)(2) of section 4115.03 of the Revised Code.” 

(Emphasis added). 

{¶44} In turn, Section 4101:9-4-05(A) states as follows: “(A) Pursuant to division 

(E)(3) of section 4115.03 of the Revised Code, commerce will allow credit for the rate of 
Richland County App. Case No. 2010CA0043 13 

costs which may be reasonably anticipated in providing fringe benefits to employees 

pursuant to an enforceable commitment to carry out a financially responsible plan or 

program of fringe benefits which was communicated in writing to the employees. The 

plan or program must be set up in such a way that an ‘enforceable commitment’ as 

defined in these rules exists for the provision of the fringe benefits contemplated 

thereby. The terms ‘plan or program’ include the various types of arrangements 

commonly used to provide the benefits contemplated by division (E)(3) of section 

4115.03 of the Revised Code. The words ‘reasonably anticipated’ require a plan or 

program to be able to withstand a test of actuarial soundness. The words ‘financially 

responsible’ require a plan or program to be bona fide.”(Emphasis added). 

{¶45} Appellant, in the case sub judice, argues that pursuant to the above 

language contained in Section 4101:9-4-05(A), appellee was required to ensure that the 

fringe benefit plans and hourly credit taken were actuarially sound. According to 

appellant, “[a]s set forth therein, the words ‘reasonably anticipated’ require a plan or 

program to be able to withstand a test of actuarial soundness.” However, we concur 

with the trial court that such section is not relevant to this case. Section 4101:9-4-05(A) 

expressly references Ohio R.C. Section 4115.03(E)(3). As is stated above, such section 

concerns an employer’s own plan or program. The record in the case sub judice shows 

that appellee did not have its own fringe benefit or program plan, but rather made 

irrevocable contributions to a fringe benefit plan. Appellee made irrevocable 

contributions to the IBEW multi-employer funds under R.C. 4115.03(E)(2). The relevant 

Ohio Revised Code Section, therefore, is R.C. 4115.03(E)(2) rather than (E)(3). There is 

no language in Ohio Administrative Code Section 4101:9-4-04(A), which is the 
Richland County App. Case No. 2010CA0043 14 

corresponding section to R.C. 4115.03(E)(2), requiring that a plan or program referred 

to in R.C. 4115.03(E)(2) withstand a test of actuarial soundness.6 

{¶46} Based on the foregoing, we find that the trial court did not err in holding 

that the hourly fringe benefit credit that appellee took was not required to be actuarially 

sound. 

{¶47} Appellant’s second assignment of error is, therefore, overruled. 

III 

{¶48} Appellant, in its third assignment of error, argues that the trial court 

abused its discretion in denying appellant’s Civ.R. 56(F) motion when discovery ordered 

by the court had not yet been completed. 

{¶49} Civ.R. 56(F) provides as follows: “(F) When affidavits unavailable 

{¶50} “Should it appear from the affidavits of a party opposing the motion for 

summary judgment that the party cannot for sufficient reasons stated present by 

affidavit facts essential to justify the party's opposition, the court may refuse the 

application for judgment or may order a continuance to permit affidavits to be obtained 

or discovery to be had or may make such other order as is just.” 

{¶51} At the outset, we note “[t]he provisions of Civ.R. 56(F) are all 

discretionary. They are not mandatory.” Carlton v. Davisson (1995), 104 Ohio App.3d 

636, 648, 662 N.E.2d 1112, citing Ramsey v. Edgepark, Inc. (1990), 66 Ohio App.3d 99, 

106, 583 N.E.2d 443. Thus, trial courts possess broad discretion when regulating the 

discovery process, and a trial court's decision will not be reversed absent an abuse of 

 

6

 In Int’l. Brotherhood of Electrical Workers, Local Union No. 8 v. Vaughn Industries, 156 Ohio App.3d 

644, 2004-Ohio-1655, 808 N.E.2d 434, the court cited to Ohio Administrative Code Section 4101:9-4-

04(A) in stating that appellant Vaughn was entitled to a fringe benefits credit for its contributions to a 

training trust, a 401(K) savings trust, and a voluntary Employee Beneficiary Association trust. 
Richland County App. Case No. 2010CA0043 15 

discretion. State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57, 295 N.E.2d 

659.

{¶52} The standard of review is abuse of discretion. In order to find an abuse of 

discretion, we must determine that the trial court's decision was unreasonable, arbitrary 

or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. We must look at the totality of the 

circumstances in the case sub judice and determine whether the trial court acted 

unreasonably, arbitrarily or unconscionably. Id. 

{¶53} As is stated above, appellant, on February 18, 2010, filed a motion asking 

for an extension of time to respond to appellee’s Motion for Summary Judgment and an 

extension of the discovery deadline “to conduct further discovery and depositions, if 

necessary, based upon the Funds and NECA’s actuarial documents...” Appellant, in its 

motion, noted that while both NECA and the Funds, in response to appellant’s 

subpoenas, had produced fund documents, they had refused to produce the underlying 

actuarial documents supporting the hourly fringe benefit credit set forth in their collective 

bargaining agreement with appellee. Appellant further noted that, in response, it had 

filed a Motion to Compel with the trial court to obtain the actuarial documents and that 

the trial court had granted the same, but had failed to provide a deadline for the 

production of the requested documents. 

{¶54} As is stated above, in our discussion of appellant’s second assignment of 

error, we found that appellee was not required to ensure that the fringe benefit plans 

and hourly credit taken by appellee were actuarially sound. We note that where 

discovery proceedings would not, if allowed to proceed, aid in the establishment or 
Richland County App. Case No. 2010CA0043 16 

negation of facts relating to the issue to be resolved, it is not an abuse of discretion for a 

court to grant a motion for summary judgment before such proceedings are completed. 

Ball v. Hilton Hotels (1972), 32 Ohio App.2d 293, 290 N.E.2d 859, syllabus. We find, 

therefore, that the trial court did not err in overruling appellant’s motion for extension. 

{¶55} Appellant’s third assignment of error is, therefore, overruled. 

IV 

{¶56} Appellant, in its fourth assignment of error, argues that the trial court erred 

in denying its discovery requests. 

{¶57} In the regulation of discovery, the trial court has discretionary power, and 

its decisions will not be overturned absent an abuse of that discretion. Mauzy v. Kelly 

Servs., Inc., 75 Ohio St.3d 578, 592, 1996-Ohio-265, 664 N.E.2d 1272; State ex rel. 

Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57, 295 N.E.2d 659. Generally, an 

appellate court reviews a claimed error relating to a discovery matter under an abuseof-discretion standard. Lightbody v. Rust (2000), 137 Ohio App.3d 658, 663, 739 N.E.2d 

840; Trangle v. Rojas, 150 Ohio App.3d 549, 2002-Ohio-6510, 782 N.E.2d 617 

{¶58} Appellant, in the case sub judice, sought discovery from appellee of the 

following: 

{¶59} “Interrogatory No. 12

{¶60} “Identify all projects, both public and private, including address and 

location by county and state, for the years 2007 and 2008, that were worked on by any 

Lake Erie employee(s) who also worked on the Richland County Jail Project in 2007 

and/or 2008. 
Richland County App. Case No. 2010CA0043 17 

{¶61} “Production Request No. 4

{¶62} “For 2007 and 2008, for employees who worked on the Project, provide 

proof of payment, including checks, electronic funds transfer receipts or other 

documents showing contributions by Lake Erie into all fringe benefit plans, funds or 

programs for said employees. 

{¶63} “Production Request No. 5

{¶64} “For all projects identified in Interrogatory No. 12, provide all of the 

certified payroll reports for the public projects and the equivalent payroll records of the 

private projects for the years 2007 and 2008. 

{¶65} “Production Request No. 7

{¶66} “For the years 2007 and 2008, provide a copy of individual payroll records 

for all Lake Erie employees who worked on the Richland County Jail Project, including, 

but not limited to, time cards, copies of paychecks and direct deposit slips.” 

{¶67} Appellant claims that such information was necessary for it to determine 

the proper methodology for the calculation of the fringe benefit credit paid by appellee. 

After appellee failed to provide such information, appellant, on November 17, 2009, filed 

a Motion to Compel Discovery. 

{¶68} As memorialized in an Order filed on December 18, 2009, the trial court 

overruled such motion. The trial court, in its Order, stated, in relevant part, as follows: 

{¶69} “The present discovery dispute stems from Vaughn’s efforts to discover 

what Lake Erie paid its employees who worked on the jail project when they worked on 

Lake Erie’s non-public construction projects during 2007 and 2008. Vaughn contends 

that it is entitled to get that information and to include the non-public projects earnings in 
Richland County App. Case No. 2010CA0043 18 

Lake Erie’s prevailing wage calculations. Vaughn cites no statutory authority for its 

contention, but instead cites the opinion of a Department of Commerce official whom 

Vaughn deposed. 

{¶70} “The court finds no legal support for that view. The prevailing wage is 

defined by R.C 4115.03(E) to include the hourly rate of pay, irrevocable contributions to 

employee trust programs and certain enforceable fringe benefits. The appropriate 

inquires, therefore, are (1) how many hours did each employee work on the public 

improvement project, (2) what were their prevailing wage rates determined by the 

Department of Commerce for that work, and (3) what amounts did Lake Erie pay to or 

for each employee on this jail project of the compensations recognized under R.C. 

4115.03(E).” 

{¶71} Moreover, in Internatl. Bhd. of Elec. Workers, Local Union No. 8 v. Vaughn 

Industries, Inc., 156 Ohio App.3d 644, 2004-Ohio-1655, 808 N.E.2d 434, the electrical 

workers’ union filed an action against the appellant, alleging that the appellant had 

violated prevailing wage law. After the trial court granted summary judgment in favor of 

the appellant, the appellee appealed. The appellee in such case argued that the trial 

court had erred in the manner in which it calculated the appellant’s fringe benefit credit. 

In concurring with the appellee, the court, in such case, stated, in relevant part, as 

follows: “The definitions in R.C. 4115.03 plainly and unambiguously define those 

projects relevant to the purposes of Ohio's Prevailing Wage Law as public projects. For 

example, the projects must involve ‘public improvements,’ that is, ‘all buildings * * * 

constructed by a public authority of the state * * *’ or one who contracts with a public
Richland County App. Case No. 2010CA0043 19 

authority for, either new or, among other things, the reconstruction or renovation of a 

public building. See R.C. 4115.03(A), (B), and (C). 

{¶72} “Ohio Adm. Code 4101:9-4-06(A) states that it is the duty of each 

employer to calculate the amount of credit it seeks for fringe benefits. Ohio Adm. Code 

4101:9-4-06(B) requires the employer to submit a certified payroll report to the 

prevailing wage coordinator. This report must ‘at a minimum include the basic hourly 

rate, calculated hourly rate of fringe benefits credited, [and] all permissible payroll 

deductions.’ 

{¶73} “Reading the foregoing statutes and regulations together, we conclude 

that their plain and unambiguous language requires us to find that the trial court's 

interpretation of Ohio Adm. Code 4101:9-4-06(D) defeats the intent of the General 

Assembly in enacting R.C. 4115.03 to R.C. 4115.16. We hold that in determining 

compliance with Ohio's Prevailing Wage Law, and unless otherwise modified by the 

administrator, fringe benefits credit must be calculated on an hour-for-hour basis by 

dividing the employer's total contribution to fringe benefits on public projects by the total 

number of hours worked by the employee on public projects. Accordingly, the trial court 

erred as a matter of law in granting summary judgment to Vaughn.” Id at paragraphs 59-

61. 

{¶74} Appellant, therefore, was not entitled to discovery of appellee’s 

contributions to fringe benefits relating to non-public projects. 
Richland County App. Case No. 2010CA0043 20 

{¶75} Based on the foregoing, we find that the trial court did not err in denying 

appellant’s discovery requests. Appellant’s fourth assignment of error is, therefore, 

overruled. 

{¶76} Accordingly, the judgment of the Richland County Court of Common Pleas 

is affirmed. 

By: Edwards, P.J. 

Gwin, J. and 

Delaney, J. concur 

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 JUDGES 

JAE/d1123 
[Cite as Vaughn Industries, LLC v. Lake Erie Elec., Inc., 2011-Ohio-1146.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

VAUGHN INDUSTRIES, LLC : 

 : 

 Plaintiff-Appellant : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

LAKE ERIE ELECTRIC, INC. : 

 : 

 Defendant-Appellee : CASE NO. 2010CA0043 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed 

to appellant. 

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 JUDGES