[Cite as United Assn. of Journeymen & Apprentices of the Plumbing & Pipefitting Indus., Local Union 

No. 776 v. Jack's Heating, Air Conditioning, & Plumbing, 2011-Ohio-167.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

UNITED ASSOCIATION OF 

JOURNEYMEN AND 

APPRENTICES OF THE PLUMBING 

AND PIPE FITTING INDUSTRY, 

LOCAL UNION NO. 776, 

 CASE NO. 6-10-11 

 PLAINTIFF-APPELLANT, 

 CROSS-APPELLEE, 

 v. 

JACK’S HEATING, AIR O P I N I O N 

CONDITIONING & PLUMBING, INC., 

 DEFENDANT-APPELLEE, 

 CROSS-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. CVH 20081164 

Judgment Affirmed in Part, Reversed in Part and Cause Remanded 

Date of Decision: January 18, 2011 

 

APPEARANCES: 

William E. Clark for Cross-Appellant 

Joseph M. D’Angelos for Cross-Appellee 
Case No. 6-10-11 

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PRESTON, J. 

{¶1} Cross-appellant, Jack’s Heating, Air Conditioning, and Plumbing, 

Inc. (hereinafter “Jack’s”), appeals the Hardin County Court of Common Pleas’ 

grant of summary judgment in favor of Appellant/cross-appellee, United 

Association of Journeymen and Apprentices of the Plumbing and Pipefitting 

Industry, Local Union No. 776 (hereinafter “Local 776”), on its prevailing wage 

complaint. Plaintiff-appellant, Local 776, appeals the decision of the Hardin 

County Court of Common Pleas not to award it reasonable attorney fees and costs 

after successfully bringing its prevailing wage complaint. For the reasons that 

follow, we affirm the trial court’s grant of summary judgment in favor of Local 

776 and reverse the trial court’s decision not to award Local 776 reasonable 

attorney fees and costs for bringing the action. 

{¶2} The Hardin County Commissioners awarded Jack’s with a contract 

for the Hardin County Jacob Parrott Safety and Security Center Project, a project 

for which contractors were required to pay prevailing wages pursuant to R.C. 

4115.03 to 4115.16 and O.A.C. 4101:9-4-01 to 4101:9-4-28. (See Complaint, Doc. 

No. 1). 

{¶3} On or about March 25, 2008, Local 776 filed an interested party 

administrative complaint under R.C. 4115.16(A) with the Director of the Ohio 

Department of Commerce, Division of Labor and Workers’ Safety, Bureau of 
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Wage and Hour (hereinafter “Director”) asserting that Jack’s violated the 

prevailing wage laws. (Id., Ex. 1, attached). The Director failed to make a final 

ruling on the merits of the administrative complaint within sixty (60) days, so 

Local 776 filed a complaint in the Hardin County Court of Common Pleas on May 

28, 2008. (Doc. No. 1). 

{¶4} On June 20, 2008, Jack’s filed a motion for an extension to answer 

or otherwise plead in the case, which the trial court granted. (Doc. Nos. 5-6). On 

July 22, 2008, Jack’s filed an answer denying the complaint’s allegations and 

asserting several affirmative defenses. (Doc. No. 7). 

{¶5} On November 25, 2009, after discovery, Local 776 filed a motion 

for summary judgment asserting that Jacks had violated: (1) R.C. 4115.05 and 

O.A.C. 4101:9-4-14 by subcontracting portions of its contract without 

contractually binding the subcontractors to comply with the prevailing wage laws; 

(2) R.C. 4115.05 and O.A.C. 4101:9-4-13(A)(4) by failing to timely provide its 

employees with written notice of their job classifications and wage rates; (3) R.C. 

4115.05 and O.A.C. 4101:9-3-13 by failing to provide its employees with written 

notice of the identity of the prevailing wage coordinator; (4) R.C. 4115.07 and 

O.A.C. 4101:9-4-13(A)(3) by failing to post a schedule of the prevailing wage 

rates at the job site; (5) R.C. 4115.07(C) and O.A.C. 4101:9-4-13 by failing to 

deliver a schedule of its pay rates to the public authority; (6) R.C. 4115.071(C) 
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and O.A.C. 4101:9-4-06(B) by failing to exhibit on their certified payroll reports 

employee job classifications, employee fringe benefit deductions, and the 

employee’s total hours worked on all projects; (7) R.C. 4115.07 and O.A.C. 

4101:9-4-21(A)(c) by failing to maintain full and accurate payroll records 

demonstrating vacation, sick, and holiday pay; (8) R.C. 4115.07 by failing to file a 

final affidavit of compliance with the contracting public authority; and (9) R.C. 

4115.10 and associated regulations by failing to pay prevailing wages. (Doc. No. 

33). 

{¶6} On December 30, 2009, Jack’s filed its response to Local 776’s 

motion for summary judgment generally denying Local 776’s allegations that it 

had violated the prevailing wage laws and challenging the accuracy of Local 776’s 

exhibits in support of its motion for summary judgment. (Doc. No. 37). Jack’s 

also alleged in its conclusion paragraph that the trial court should not consider 

evidence regarding payroll after the date Local 776 filed its original complaint 

(March 25, 2008) pursuant to Civ.R. 15(E). On January 29, 2010, Local 776 filed 

its reply to Jack’s response. (Doc. No. 38). 

{¶7} On July 9, 2010, the trial court granted Local 776’s motion for 

summary judgment finding first that it had jurisdiction to hear and decide all of 

Local 776’s alleged violations, even those occurring subsequent to the filing of the 

complaint. (Doc. No. 39). The trial court found that Local 776 met its burden of 
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demonstrating that Jack’s committed eight (8) prevailing wage law violations, and 

the trial court found that Jack’s failed to meet its reciprocal burden of 

demonstrating a genuine issue for trial. (Id.). The trial court found that Jack’s 

“generally asserted, without any evidence to support the assertions, that its 

violations were harmless and that it intended to comply with the Prevailing Wage 

law.” (Id.). The trial court then stated that Local 776 was entitled to reasonable 

attorney fees and costs in bringing the action; however, the trial court struck 

language appearing later in the judgment entry requiring Jack’s to pay attorney 

fees and costs. (Id.). 

{¶8} On July 28, 2010, Local 776 filed its notice of appeal. (Doc. No. 40). 

On August 9, 2010, Jack’s filed a notice of cross-appeal. The matter was 

originally assigned to this Court’s accelerated calendar until we received notice 

that Jack’s filed a cross-appeal. (Aug. 5, 2010 JE); (Aug. 23, 2010 JE). The matter 

has been reassigned to this Court’s regular calendar. (Aug. 23, 2010 JE). For ease 

of our discussion, we elect to address Jack’s cross-appeal first, beginning with 

Jack’s third assignment of error. We also elect to combine Jack’s first and second 

assignments of error. 

JACK’S ASSIGNMENT OF ERROR NO. III 

THE TRIAL COURT ERRED IN EXERCISING 

JURISDICTION OVER ISSUES THAT AROSE FOLLOWING 

THE SUBMISSION OF THE COMPLAINST [SIC] AGAINST 

JACK’S HEATING AND AIR. 
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{¶9} In its third assignment of error, Jack’s argues that the trial court 

erred by finding that Local 776’s civil complaint was filed after the completion of 

the project. Jack’s further argues that the trial court lacked jurisdiction over 

claims that occurred subsequent to May 28, 2008, the date Local 776 filed its civil 

complaint, since Local 776 failed to file a supplemental pleading pursuant to 

Civ.R. 15(E) alleging the additional prevailing wage law violations. 

{¶10} As an initial matter, Jack’s argued in its response to the motion for 

summary judgment that Civ.R. 15(E) was applicable to the administrative 

complaint, not the civil complaint, as they now argue on appeal; and therefore, 

Jack’s has waived any argument relative to the civil complaint on appeal. Maust v. 

Meyers Products, Inc. (1989), 64 Ohio App.3d 310, 313, 581 N.E.2d 589. With 

respect to Jack’s argument in the trial court, the Court of Appeals for the Sixth 

Appellate District has found that the Ohio Rules of Civil Procedure do not apply to 

prevailing wage complaints filed with the director of commerce under R.C. 

4115.16(A). Internatl. Bhd. of Electrical Workers, Local Union No. 8 v. Vaugh 

Industries, Inc., 156 Ohio App.3d 644, 2004-Ohio-1655, 808 N.E.2d 434, ¶43. 

Neither can we find plain error with the trial court ruling on all of the alleged 

prevailing wage law violations since Local 776’s complaint provided Jack’s with 

fair notice that Local 776 was pursuing all the prevailing wage law violations it 

discovered. See DeVore v. Mutual of Omaha Ins. Co. (1972), 32 Ohio App.2d 36, 
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38, 288 N.E.2d 202. See, also, Civ.R. 8(A)(1) (requiring “a short and plain 

statement of the claim showing that the party is entitled to relief”). Local 776 

alleged in its complaint “* * * that [Jack’s] failed to strictly comply with the 

requirements of R.C. 4115.03 to R.C. 4115.16 and O.A.C. 4101:9-4-01 to O.A.C. 

4101:9-4-28 during its work on the Project, including but not limited to * * *” 

underpayments, misclassifications, and reporting violations in its certified payroll 

reports. (Doc. No. 1, ¶19) (emphasis added). Although the trial court incorrectly 

noted that Local 776’s civil complaint was filed after the completion of the project 

when Local 776’s civil complaint was actually filed during the project, we find 

this factual error to be harmless in light of the fact that Jack’s had fair notice that 

Local 776 was pursuing all prevailing wage law violations. (July 9, 2010 JE, Doc. 

No. 39); (P’s Ex. D). Therefore, we find Jack’s argument regarding the trial 

court’s ruling on all of Local 776’s alleged violations meritless. 

{¶11} Jack’s third assignment of error is overruled. 

JACK’S ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED IN FINDING THE 

APPELLANTS [SIC] SUBMITTED EVIDENCE AS 

INSUFFICIENT TO CREATE AN ISSUE OF MATERIAL 

FACT. 

JACK’S ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED IN GRANTING THE 

APPELLEE’S MOTION FOR SUMMARY JUDGMENT. 
Case No. 6-10-11 

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{¶12} In Jack’s first assignment of error, it argues that the evidence it 

submitted in response to Local 776’s motion for summary judgment created a 

genuine issue of material fact as to whether Jack’s paid its employees prevailing 

wages. 

{¶13} In its second assignment of error, Jack’s argues that the trial court 

failed to construe the evidence in its favor and acknowledge conflicting evidence 

within the record. Jack’s further argues that the trial court made findings of fact 

when it determined the amount of damages. 

{¶14} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Summary judgment is 

proper where there is no genuine issue of material fact, the moving party is 

entitled to judgment as a matter of law, and reasonable minds can reach but one 

conclusion when viewing the evidence in favor of the nonmoving party, and the 

conclusion is adverse to the nonmoving party. Civ.R. 56(C); State ex rel. Cassels 

v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631 

N.E.2d 150. 

{¶15} A party seeking summary judgment under Civ.R. 56(C) bears the 

initial burden of informing the trial court of the basis for the motion and 

identifying those portions of the record that demonstrate the absence of a genuine 

issue of material fact on the essential element(s) of the nonmoving party’s claims. 
Case No. 6-10-11 

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Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving 

party’s initial burden is not met by making a conclusory assertion that the 

nonmoving party has no evidence to prove its case. Id. Rather, the moving party 

must specifically point to some evidence of the type listed in Civ.R. 56(C) that 

affirmatively demonstrates the nonmoving party has no evidence to support the 

nonmoving party’s claims. Id. If the moving party fails to satisfy its initial burden, 

the motion for summary judgment must be denied. Id. “[A]n adverse party may 

not rest upon the mere allegations or denials of his pleadings, but his response, by 

affidavit or as otherwise provided in this rule, must set forth specific facts showing 

that there is a genuine issue for trial. If he does not so respond, summary 

judgment, if appropriate, shall be entered against him.” Id., quoting Civ.R. 56(E). 

{¶16} The trial court in this case found that Local 776 had “met its burden 

under Civ.R. 56(C) by adequately supporting its motion with evidence showing 

that Jack’s violated Ohio’s Prevailing Wage Law by failing to comply with its 

minimum wage, reporting, posting, and notice requirements.” (July 9, 2010 JE, 

Doc. No. 39). On the other hand, the trial court found that Jack’s had failed to 

meet its reciprocal burden of presenting affirmative evidence that it had complied 

with the prevailing wage laws. (Id.). The trial court found that Jack’s asserted, 

without any evidentiary support, that its violations were harmless and that it 

intended to comply with the prevailing wage laws. (Id.). The trial court concluded 
Case No. 6-10-11 

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that summary judgment in Local 776’s favor was appropriate since Jack’s failed to 

meet its reciprocal summary judgment burden. We agree with the trial court that 

Jack’s failed to meet its reciprocal summary judgment burden; and therefore, 

summary judgment in Local 776’s favor was appropriate. 

{¶17} In support of its motion for summary judgment, Local 776 pointed to 

several exhibits, including Jack’s employee time sheets, prevailing wage 

notifications, certified payroll reports, a letter evidencing a subcontract between 

Jack’s and Vulcan Enterprises, Inc., as well as the deposition of Steve Wenner, the 

president and owner of Jack’s. Local 776 also noted in its motion for summary 

judgment that Wenner admitted to several prevailing wage law violations during 

his deposition, including: failing to properly and timely notify his employees of 

the identity of the prevailing wage coordinator in violation of R.C. 4115.05 and 

O.A.C. 4101:9-4-13 (Wenner Depo. at 16-17); failing to post a schedule of the 

prevailing wage rates at the job site in violation of R.C. 4115.07 and O.A.C. 

4101:9-4-13(A)(3) (Id. at 18); failing to provide the required information on the 

certified payroll reports in violation of 4115.071(C) and O.A.C. 4101:9-4-06(B) 

(Id. at 23, 37); and failing to file a schedule of pay dates with the public authority 

in violation of R.C. 4115.071(C) and O.A.C. 4101:9-4-13 (Id. at 40-41). Aside 

from that, the record indicates that Jack’s failed to provide its employees with 

timely written notification of their job classifications and prevailing wage rate in 
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violation of R.C. 4115.05 and O.A.C. 4101:9-4-13(A)(4). (P’s Exs. A, 1, 2). Local 

776 pointed out that Jack’s repeatedly failed to produce during discovery any 

evidence that it had provided a final affidavit of compliance with the public 

authority as required by R.C. 4115.07. Local 776 also argued that Jack’s failed to 

maintain records demonstrating that it had, in fact, paid fringe benefits, vacation 

pay, sick pay, or holiday pay as required by R.C. 4115.07 and O.A.C. 4101:9-4-

21. Finally, Local 776 attached to its motion for summary judgment a table 

evidencing $6,881.17 in underpayments to Jack’s employees in violation of R.C. 

4115.10. (Doc. No. 33). 

{¶18} In its response to the motion for summary judgment, Jack’s, without 

pointing to evidence in the record, generally denied Local 776’s allegation that it 

had not paid prevailing wages. (Doc. No. 37). Jack’s president and owner, 

Wenner, averred in an attached affidavit that Local 776’s table calculating 

underpayments was inaccurate since Local 776 only subtracted the health 

insurance fringe benefit, but did not subtract holiday, sick, and vacation pay. (Doc. 

No. 37, attached). Wenner further averred that Local 776’s table did not account 

for work that was done off-site for which prevailing wages are not required. (Id.). 

With regard to Local 776’s remaining allegations, Jack’s argued that the trial court 

should not rule upon these issues since Local 776 had not supplemented its 

original administrative complaint. (Doc. No. 37). Jack’s did refute Local 776’s 
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allegation that the prevailing wage laws require any subcontracts to have a specific 

contract provision charging the subcontractor to comply with the prevailing wage 

laws. (Id). However, Jack’s admitted that it had made a “clerical mistake” and 

failed to provide the correct identity of the prevailing wage coordinator for the 

first two weeks of work. (Id.). Jack’s further admitted that it had failed to post a 

schedule of the prevailing wage rates at the jobsite, though it claimed that the 

employees suffered no harm from this oversight. (Id.). Jack’s also maintained that 

it thought it was complying with all the reporting requirements on its certified 

payroll reports. (Id.). 

{¶19} Upon review of the record, we conclude that the trial court did not 

err in granting summary judgment in Local 776’s favor. To begin with, Jack’s 

admitted to several prevailing wage law violations. Furthermore, Jack’s response 

to Local 776’s motion for summary judgment was essentially a general denial of 

Local 776’s allegations, which is insufficient to create a question of material fact 

for trial. Burt, 75 Ohio St.3d at 293, quoting Civ.R. 56(E). Finally, several of 

Jack’s prevailing wage violations are evident from the documents in the record, 

while other violations are evident from the fact that Jack’s failed to provide 

documents during discovery demonstrating compliance with the prevailing wage 

law. Since Jack’s failed to meet its reciprocal Civ.R. 56(E) summary judgment 

burden, the trial court did not err in granting Local 776 summary judgment. 
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{¶20} Jack’s first and second assignments of error are, therefore, overruled. 

LOCAL 776’S ASSIGNMENT OF ERROR 

IN AN R.C. 4115.16(B) INTERESTED PARTY PREVAILING 

WAGE ENFORCEMENT ACTION, A TRIAL COURT 

COMMITS REVERSIBLE ERROR WHEN IT REFUSES TO 

AWARD COSTS AND ATTORNEYS’ FEES TO THE 

PLAINTIFF UPON FINDING VIOLATIONS OF THE 

PREVAILING WAGE LAW PURSUANT TO R.C. 4115.16(D). 

{¶21} In its sole assignment of error, Local 776 argues that the trial court 

erred by refusing to grant it costs and reasonable attorney fees after it found that 

Jack’s had violated the prevailing wage laws. We agree. 

{¶22} R.C. 4115.16(D) provides, in pertinent part, “[w]here, pursuant to 

this section, a court finds a violation of sections 4115.03 to 4115.16 of the Revised 

Code, the court shall award attorney fees and court costs to the prevailing party.” 

(Emphasis added). In Internatl. Bhd. of Elec. Workers v. Stollsteimer Elec., Inc., 

we interpreted this portion of R.C. 4115.16(D) as follows: 

The language of the statute is unambiguous providing for an 

award of attorney fees and court costs following judgment of 

violations of the prevailing wage laws. If an interested party, 

such as the Union, brings a complaint to enforce the wage laws 

and the court finds a violation occurred, the court is mandated 

to award attorney fees and court costs to the prevailing party. 

The statute does not differentiate whether the violations were 

intentional or unintentional. Instead, it just states that if a 

violation is found, court costs and attorney fees SHALL be 

awarded. Thus the trial court has no discretion in this matter. 

3d Dist. No. 4-05-29, 2005-Ohio-6866, ¶3 (emphasis in original). 
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{¶23} Here, the trial court’s opinion acknowledged our decision in 

Stollsteimer and stated that Local 776 was entitled to attorney fees and costs in the 

matter. (July 9, 2010 JE, Doc. No. 39). However, the trial court struck from its 

judgment entry the order language stating that Jack’s shall pay Local 776’s 

reasonable attorney fees and costs. (Id.). Therefore, the trial court erred by failing 

to actually award Local 776 its reasonable attorney fees and costs as it was 

required to do under R.C. 4115.16(D). Stollsteimer, 2005-Ohio-6866. 

{¶24} Local 776’s assignment of error is, therefore, sustained. 

{¶25} Having found no error prejudicial to the defendant-appellee/crossappellant herein in the particulars assigned and argued, we affirm the judgment of 

the trial court with regard to Jack’s assignments of error. However, having found 

error prejudicial to the plaintiff-appellant/cross-appellee herein in the particulars 

assigned and argued, we reverse the judgment of the trial court with regard to 

Local 776’s assignment of error and remand for further proceedings consistent 

with this opinion. 

Judgment Affirmed in Part, 

Reversed in Part and 

Cause Remanded 

ROGERS, P.J., and WILLAMOWSKI, J., concur. 

/jlr