[Cite as Menard, Inc. v. DiPaolo Indus. Dev., L.L.C., 2023-Ohio-1188.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY

MENARD, INC.,

Plaintiff-Appellee,

- vs -

DIPAOLO INDUSTRIAL 

DEVELOPMENT, LLC,

Defendant-Appellant.

CASE NO. 2022-T-0032

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2015 CV 00169

O P I N I O N

Decided: April 10, 2023

Judgment: Affirmed in part, reversed in part, and remanded

Julian T. Emerson, Reminger Co., LPA, 101 West Prospect Avenue, Suite 1400, 

Cleveland, OH 44115 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For DefendantAppellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, DiPaolo Industrial Development, LLC, appeals the 

judgment of the Trumbull County Court of Common Pleas in favor of plaintiff-appellee, 

Menard, Inc. For the following reasons, we affirm in part and reverse in part the judgment 

of the lower court and remand for further proceedings consistent with this opinion.

{¶2} On January 29, 2015, Menard filed a Complaint against DiPaolo Industrial 

raising claims of Breach of Contract (Count I), Breach of Express Warranty (Count II), 

Indemnification (Count III), and Conversion (Count IV). The Complaint was based on the 
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following allegations: “Menard and Defendant entered into a written agreement * * * for 

work to be performed by DiPaolo at a new Menard’s location in Warren, Ohio * * *, the 

scope of which included demolition, concrete-crushing, salvage, storage, and milling of 

asphalt services. * * * As a result of DiPaolo’s failure to timely complete its work despite 

Menard’s requests, Menard was compelled to hire another contractor to complete 

DiPaolo’s work and correct defective and non-conforming work.”

{¶3} On December 16, 2015, DiPaolo Industrial filed an Answer and 

Counterclaim raising claims for Breach of Contract (Count One), Unjust Enrichment 

(Count Two), Foreclosure of Mechanic’s Lien (Count Three), and Defamation of 

Character (Count Four). DiPaolo asserted that it performed its obligations under the 

contract and Menard had failed to remit payment pursuant to its terms. Furthermore, it 

was alleged that “DiPaolo and Menard agreed [per change orders] to DiPaolo performing 

additional work on the project related to the original demolition scope of the work” and 

“Menard failed to timely approve and remit payment for the Change Orders.”

{¶4} On October 17, 2017, the trial court granted partial summary judgment in 

favor of Menard on DiPaolo’s claims for Breach of Contract and Unjust Enrichment with 

respect to the change orders only.

{¶5} On July 26 and 27, and on October 11, 2018, trial was held before a 

magistrate.

{¶6} On May 13, 2019, the Magistrate’s Decision was issued. The magistrate 

found in favor of Menard with respect to both the claims of the Complaint and 

Counterclaim based on the following Findings of Fact:
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1. James Carlson is the Assistant General Manager of Store 

Planning and Construction for Plaintiff.1

2. Sergio DiPaolo is the Managing Member of Defendant.

3. Plaintiff issued an October 1, 2013 “Invitation to Bid” packet of 

documents for potential bidders, which comprised of demolition 

plans, site plans, environmental report, soils report, specifications, 

and a sample contract.

* * *

5. Defendant received and reviewed the Invitation to Bid documents 

before entering into contract with Plaintiff.

* * *

11. The Invitation to Bid stated, “The work to be performed hereunder 

should be commenced and completed on or before the dates as 

shown in the contract. The general contractor agrees that time is of 

the essence and that the times stated shall only be modified by 

written agreement of the parties. Completion means all work 

including punch list item complete and all inspections complete. The 

contractor agrees that the owner will suffer financial loss if the project 

is not completed on the completion date.”

* * *

16. Sergio DiPaolo reviewed the contract and signed the contract on 

behalf of Defendant.

* * *

18. The contract entered into was to be enforced in conjunction with 

the Invitation to Bid documents.

19. The contract was for the sum of $286,000. 

* * *

22. Per the contract, “Contractor shall not perform any extra or 

additional work or changes from the contract documents unless 

previously authorized in writing by an AIA change order signed by 

1. References to the trial transcript and exhibits included in the Magistrate’s Decision are omitted 

throughout the Findings of Fact.
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Troy Anderson, the General Manager Store 

Planning/Design/Construction. Portions of change order work are 

subject to merchandise credit check. Owner’s project managers are 

not authorized to approve changes in the work.”

23. Defendant admitted that nowhere in the contract does it state 

Defendant could perform additional work simply off a verbal 

communication go ahead.

24. Per the contract, “The work to be performed hereunder shall be 

commenced by November 11, 2013, and have demolition completed 

on or before December 27, 2013, and complete crushing by January 

31, 2014 (“Agreement Period”). CONTRACTOR agrees that TIME 

IS OF THE ESSENCE and that the above stated dates shall not be 

modified unless the modification is in writing and signed by the 

OWNER and CONTRACTOR. Inclement weather shall not be 

considered as a cause for an extension of time or completion of the 

work.”

25. Plaintiff contends that time was of the essence for completion of 

the work because Plaintiff intended on constructing a new Menard 

store once demolition was completed.

26. When Defendant returned the signed contract, he also included 

an “addendum” dated November 11, 2013 which purported to extend 

the time period for crushing the asphalt due to adverse weather 

conditions. The addendum was not signed by Defendant or any 

representative of Plaintiff. Defendant contends that because Plaintiff 

never informed him that the addendum was rejected that it is binding 

on the parties. However, Jim Carlson specifically testified that the 

proper protocol to change or add terms to the contract would be for 

Troy Anderson to agree to it and sign off on any change.

27. Per the contract, “Contractor shall indemnify and hold harmless 

owner, its agents and its employees from any and all liability, 

damages, expenses, claims, demands, actions, or cause of action, 

including attorney fees, arising out of the performance of the Contract 

Documents, Agreement and/or work hereunder, whether such 

liability, damages, expenses, claims, demands, actions or causes of 

action are caused by contractor, its subcontractors, or lower tiered 

contractors, or their agents or employees, owner, its agents and its 

employees, or any persons acting on their behalf of owner and/or 

contractor.”

28. Defendant admitted that similar to the Invitation to Bid 

documents, the contract once again laid out the payment procedure, 
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which was the usual AIA payment procedure that Defendant was 

accustomed to from other projects.

29. Defendant received a December 17, 2013 correspondence from 

Plaintiff returning Defendant’s first payment application because it 

did not properly follow the payment procedure in the contract.

30. Defendant understood Plaintiff’s rationale for rejecting the first 

payment application and had no issues.

31. Upon remedying the issues with payment application one, 

Defendant resubmitted and was paid $143,590.50.

32. Defendant received a January 31, 2014 correspondence from

Plaintiff that expressed concerns Plaintiff was having with 

Defendant’s work as it pertained to the project. [Similar 

correspondence was received by the Defendant on April 3, April 25, 

May 6, and May 16.]

33. Defendant received a March 12, 2014 seven-day notice letter 

from Plaintiff that expressed concerns Plaintiff was having with 

Defendant’s work as it pertained to the project, along with a list of 

items that still needed to be completed. [A similar seven-day notice 

was received by the defendant on April 8.]

34. Defendant received a March 17, 2014 correspondence from 

Plaintiff regarding the rejection of pay application 2.

35. Upon remedying pay application 2 in accordance with the 

contract, Defendant resubmitted pay application 2 and was paid 

$70,902.

* * *

41. Defendant admitted that it was possible the list of contractual 

items in the May 16, 2014 correspondence still had not been 

completed by Defendant.

42. Defendant received a May 22, 2014 correspondence from 

Plaintiff regarding back charges for the contractual work Defendant 

did not perform which Plaintiff paid McConnell Excavating to 

complete.

43. Defendant received a May 29, 2014 correspondence from 

Plaintiff titled “Final Notice Breach of Contract/ Abandonment of 

Property/ Trespass to Chattels”, which stated “This serves as your 
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final notice that DiPaolo Industrial Development has failed to fulfill its 

obligations under the contract and impaired Menard, Inc. in its use of 

its property including the certain premises located at 2057 Elm Road, 

Cortland, Ohio, and implements that belong to that property... 

Please remove construction equipment and other property left 

behind at the above site within five days of the date of this letter and 

remit the property of Menard, Inc., including the fencing that you 

possess. The failure to timely make these actions will result in a 

lawsuit against you where Menard, Inc., will seek judgment against

you and avail itself of all potential remedies and recover for all 

available costs.”

44. Defendant received a July 8, 2014 correspondence from Plaintiff 

rejecting pay applications 3, 4, and 5 because they did not comply 

with the contract.

45. Defendant attempted to bill Plaintiff for final payment despite 

admittedly not completing all of its contractual work. [In total, Plaintiff 

paid Defendant two payments under the contract in the amount of 

$143,590.50 and $70,902, totaling $214,492.50.]

* * *

51. According to Plaintiff, Plaintiff withheld payment from Defendant 

because of defective work not remedied and a reasonable indication 

that the work would not be completed within the agreement period.

* * *

54. Plaintiff terminated the contract with Defendant because it 

determined that Defendant did not complete its contractual work and 

would not be able to complete its contractual work on time.

* * *

65. Plaintiff hired McConnell Excavating to complete Defendant’s 

contractual work. [Plaintiff made three payments to McConnell 

Excavating in the amounts of $16,245, $117,944.50, and $3,215.34 

for completing Defendant’s contractual work.]

* * *

74. Plaintiff back charged Defendant total amounts of $17,869.50, 

$129,738.95, and $3,536.87, which included the three payments 

made to McConnell Excavating and the contractual 10% 

administrative fee.
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* * *

75. Defendant admitted that it did not leave the site and remove all 

of its machinery until mid-May to early June 2014.

76. Defendant admitted that it did not complete all its contractual 

work and went through various items that were not completed.

77. Defendant removed fencing from the demolition project without 

permission.

78. Plaintiff made repeated requests that Defendant return the 

fencing.

79. Defendant admitted that it never returned the fencing or 

reimbursed Plaintiff for the fencing it took.

80. Defendant admitted that it never informed Plaintiff of the location 

of the fence to enable Plaintiff to retrieve the fence.

81. Defendant admitted that it no longer has control of the facility 

where the fencing is currently stored.

82. The replacement value of the fencing is approximately $25,000.

* * *

85. No evidence was presented that Plaintiff published a false 

statement about Defendant.

{¶7} On October 7, 2019, a second Magistrate’s Decision was issued awarding 

damages. Menard was awarded a total of $274,379.88, representing $69,357.82 for 

contractual or construction damages2, $25,000 for conversion, and $180,022.06 for 

attorney fees.

2. This figure was based on the original contractual price of $286,000 plus $8,000 for additional work 

performed by DiPaolo for a total contract price of $294,000. From this figure was subtracted the 

$214,492.50 Menard paid to DiPaolo and $148,865.32 in back charges as a result of hiring McConnell 

Excavating to complete the contractual work.
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{¶8} On March 21, 2022, after hearing DiPaolo Industrial’s objections to the 

Magistrate’s Decisions, the trial court adopted both Decisions.

{¶9} On April 19, 2022, DiPaolo Industrial filed a Notice of Appeal. On appeal, 

DiPaolo Industrial raises the following assignments of error:

[1.] The trial court [erred] by granting partial summary judgment to 

plaintiff on defendant’s counterclaims.

[2.] The trial court’s decision that defendant breached its contract 

with plaintiff is not supported by the weight of the evidence and is 

contrary to Ohio law.

[3.] The trial court’s findings that defendant removed salvaged 

fencing from the jobsite without permission to do so and that plaintiff 

was damaged in the sum of $25,000 are not supported by [the] 

manifest weight of the evidence.

[4.] The trial court erred as a matter of law by awarding counsel fees 

to plaintiff.

[5.] The trial court’s determination that defendant had produced no 

evidence indicating that plaintiff published a false and defamatory 

statement regarding defendant is not supported by the manifest 

weight of the evidence.

{¶10} In the first assignment of error, DiPaolo argues the trial court erred by 

granting partial summary judgment with respect to its counterclaims for Breach of 

Contract and Unjust Enrichment.

{¶11} Summary judgment is appropriate when “there is no genuine issue as to 

any material fact and * * * the moving party is entitled to judgment as a matter of law,” i.e., 

when “reasonable minds can come to but one conclusion and that conclusion is adverse 

to the party against whom the motion for summary judgment is made, that party being 

entitled to have the evidence or stipulation construed most strongly in the party’s favor.” 
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Civ.R. 56(C). An appellate court’s “review of a summary-judgment ruling is de novo.” 

Fradette v. Gold, 157 Ohio St.3d 13, 2019-Ohio-1959, 131 N.E.3d 12, ¶ 6.

{¶12} In the course of the parties’ dealings with each other, DiPaolo Industrial 

submitted eight Change Orders to Menard for additional work not contemplated by the 

original Construction Contract. This Contract provided as follows with respect to 

additional work:

ARTICLE 2: CHANGES IN THE WORK –

OWNER [Menard], without invalidating this contract, may, at 

any time, order changes in the work within the general scope of this 

contract. CONTRACTOR [DiPaolo] shall not perform any extra or 

additional work or changes from the Contract Documents 

unless previously authorized in writing by an AIA change order 

signed by Troy Anderson, the General Manager Store

Planning/Design /Construction. Portions of change order work 

are subject to merchandise credit check. OWNER’s project 

managers are not authorized to approve changes in the work.

{¶13} With respect to such contractual provisions, the Ohio Supreme Court has 

held: “It is universally recognized that where a building or construction contract, public or 

private, stipulates that additional, altered, or extra work must be ordered in writing, the 

stipulation is valid and binding upon the parties, and no recovery can be had for such 

work without a written directive therefore in compliance with the terms of the contract, 

unless waived by the owner or employer.” Foster Wheeler Enviresponse, Inc. v. Franklin 

Cty. Convention Facilities Auth., 78 Ohio St.3d 353, 360, 678 N.E.2d 519 (1997). Under 

the first assignment of error, DiPaolo asserts “the question presented is whether or not 

material questions of fact exist as to Menard’s waiver of the change order procedures 

contained in the original contract between the parties.” Assignments of Error and Brief of 

Appellant, at 17.
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{¶14} With respect to waiver of such contractual provisions, the Ohio Supreme 

Court has held: “It is familiar law that stipulations in written contracts may be waived by 

the parties, and that a construction placed by the parties upon a written contract in the 

progress of its performance, with full knowledge of all the circumstances, will be binding. 

* * * This rule is peculiarly just when applied to building contracts, when changes are 

made, the necessity for which develops as the work progresses, and while the parties are 

intent on the accomplishment of the undertaking, no fraud or undue advantage being 

shown.” Expanded Metal Fireproofing Co. v. Noel Constr. Co., 87 Ohio St. 428, 440, 101 

N.E. 348 (1913).

{¶15} This court has similarly held: “‘A provision in a construction contract that 

change orders be reduced to writing and signed by the parties may be waived. The 

requirement will be considered to have been waived by the parties when there is clear 

and convincing evidence showing that the alterations were made with the knowledge and 

participation of all concerned, no fraud having been shown.’” (Emphasis added.) Wells 

Fargo Bank, N.A. v. Smith, 11th Dist. Trumbull No. 2010-T-0051, 2012-Ohio-1672, ¶ 42, 

citing Frantz v. Van Gunten, 36 Ohio App.3d 96, 521 N.E.2d 506, syllabus (3d Dist.1987). 

This court explained, “[b]y requiring evidence as to subsequent acts of the ‘opposing’ 

party, a proper balance is reached between the enforcement of the basic purpose of the 

clause and the concern that a party could agree to both the oral waiver and modification, 

and then ‘hide’ behind the ‘no oral modification’ clause in order to avoid enforcement.” Id.

at ¶ 46; Foster at 364 (“mere knowledge, and even acquiescence, is not enough for 

recovery”). Compare 2A Bruner & O’Connor on Construction Law, Waiver of written 

change order requirements, Section 7:250 (“Many construction contracts require that in 
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order for a contractor to be entitled to compensation for performing extra work, the work 

must first be authorized by a written change order. The intent behind these provisions is 

to protect the owner from surprise claims for extra work. To this extent, these provisions 

fulfill a legitimate and useful purpose. Nevertheless, these provisions have been 

employed to shield an owner from having to pay a contractor for work that was clearly 

beyond the scope of the contract. This is an area where the courts often employ equity 

in the form of finding that the written authorization requirement was waived by the party 

seeking to enforce its terms.”).

{¶16} DiPaolo Industrial’s managing member, Sergio DiPaolo, testified by 

deposition that change orders were approved verbally by either Menard’s project 

manager, Brad Wondra, or assistant general manager, Jim Carlson. DiPaolo testified 

that generally the terms for the additional work were negotiated with either Wondra or 

Carlson and then a written change order would be submitted by DiPaolo Industrial for 

signature by general manager, Troy Anderson. However, only one of the eight change 

orders was ever signed.

{¶17} The first change order involved additional grading or clearing an area on the 

south side of the construction site for the installation of a gas line. A November 18, 2013 

email from Wondra to DiPaolo stated: “Can you get me a price on that grading * * * by 

Friday? I need to get this work done so utilities can come in to relocate the gas line toward 

the property line.” DiPaolo testified regarding the negotiations with Wondra: “We spoke 

about it. He asked me about it, it had to be done, give me a price. I gave him a price. 

And then he responded back, sounds good, okay, we’re good to go on that.” A December 

9, 2013 email from Wondra to DiPaolo stated: “Jim [Carlson] gave me the go ahead on 
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the extra work on the south side of the property ($6,000). Go ahead and start mobilizing.” 

Carlson, in his deposition, affirmed that he spoke with Anderson about the additional work 

and that DiPaolo Industrial was authorized to do the work. DiPaolo Industrial did not 

submit a written change order until March 25, 2014, and Anderson did not sign the order 

until April 18, 2014. According to the terms of the Construction Contract, DiPaolo 

Industrial should not have been authorized to commence the work until Anderson had 

signed the change order.

{¶18} The second change order involved the removal of a pylon sign. DiPaolo 

testified that Wondra verbally approved this change order. Carlson testified that “the cost 

[to remove the sign] was approved by Troy Anderson to go ahead with that.” DiPaolo 

claimed a change order was submitted but never returned.

{¶19} On April 10, 2014, Wondra emailed DiPaolo and copied both Carlson and 

Anderson: “On December 9th, we approved change order #1 for the regrading over on the 

south side of the property. I will submit to Troy to sign. On the AIA change order form 

#2, I do not know what this all entails. Why is it going to cost me [an] additional $6,000 

to remove[] the other pylon sign. Please advise. Work Order-Excavation [third change 

order]- We will not sign. Per the contract plans, you were supposed to remove the utilities 

and backfill your trenches properly. Work Order-Asphalt [fourth change order]- We are 

not opposed to this as an extra for the asphalt. In the existing parking lot, there is a total 

of 7ʺ of asphalt that needs to be milled. However, we will not agree to a change order on 

a per day basis. We will only agree on a fixed cost.”

{¶20} The foregoing evidence is sufficient to raise a genuine issue of material fact 

as to whether Menard waived the contractual provision that additional work had to be 
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approved by Anderson in writing prior to the commencement of the work. Such was not 

the procedure followed by either of the parties in the course of performance of the 

contract. It is noted that the contract specifically stated that project managers could not 

approve changes in the work. See Foster, 78 Ohio St.3d at 364, 678 N.E.2d 519 (“[i]t is 

generally recognized that, in the absence of an express authority, an engineer, architect, 

superintendent or inspector in charge of or assigned to public building or construction 

work has no power to waive or modify a stipulation requiring a written order for alterations, 

even where that person may authorize alterations in writing”). However, the evidence in 

the present case is that Wondra would consult with Carlson, an assistant general 

manager, before conveying approval to DiPaolo Industrial. Moreover, Carlson would 

consult with Anderson regarding the change orders, and Anderson was the Menard 

representative with authority to approve change orders. The significant point is that all 

levels of Menard’s management were actively aware of and/or participating in the 

authorization of additional work contrary to the terms of Article 2. In these circumstances, 

summary judgment on the issue of waiver was not appropriate as to any of the purported 

change orders to which DiPaolo claims Menard agreed.

3

{¶21} We emphasize that there is evidence from which it could be reasonably 

inferred that Anderson was being consulted about change orders and giving his approval 

without regard for the contractual procedure. Giving DiPaolo the benefit of such 

inferences, Anderson approved the first two change orders through Carlson without 

3. We are aware that, in the final judgment after trial, the contract price was adjusted to incorporate the 

cost of some of the additional work performed by DiPaolo Industrial. We are also aware that whether 

Menard ever agreed to the terms of the change orders and whether DiPaolo Industrial completed the work 

proposed in the change orders are also in dispute. Our ruling here is limited to whether the issue of waiver 

could be decided as a matter of law.
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requiring a written AIA change order. Nor does the evidence substantiate the claim that 

Menard merely “acquiesce[d]” to DiPaolo’s performance of additional work. In the case 

of the first change order, Menard approached DiPaolo and requested “a price” for 

additional grading. The price for the second change order was approved by Anderson 

and accepted by DiPaolo, although Wondra appears to have been unaware of the 

agreement. In almost every case, Menard was active in negotiating the terms and 

compensation for the performance of additional work. If Anderson was approving the 

additional work without requiring written change orders (at least until DiPaolo requested 

payment), a genuine issue of material fact exists on the waiver issue and summary 

judgment should have been denied.

{¶22} DiPaolo Industrial also argues the lower court erred by granting summary 

judgment on its unjust enrichment claims on the grounds that “each change work order is 

a contract in and of itself.” Assignments of Error and Brief of Appellant, at 20-21. We 

disagree. Regardless of whether a change order contains the elements of a separate 

contract, the subject of additional work is one that is encompassed by the original 

contract. See Conditions of the Contract / Instructions to Bidders, Change Order 

Procedure 5.A (“[t]he change order shall clearly state the original contract amount, revised 

contract amount and any extension or reduction in the schedule”).

{¶23} “Generally, Ohio law does not permit recovery under the theory of unjust 

enrichment when an express contract covers the same subject matter.” Bunta v. Superior 

VacuPress, L.L.C., __ Ohio St.3d __, 2022-Ohio-4363, __ N.E.3d __, ¶ 36; Jochum v. 

Howard Hanna Co., 11th Dist. Lake No. 2020-L-077, 2020-Ohio-6676, ¶ 45. “The 

doctrine of unjust enrichment is limited when an express contract exists that concerns the 
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same subject because ‘“the parties have fixed their contractual relationship in an express 

contract,”’ and thus, ‘“there is no reason or necessity for the law to supply an implied 

contractual relationship between them.’” (Citation omitted.) Bunta at ¶ 39.

{¶24} To the extent indicated above, the first assignment of error is with merit.

{¶25} DiPaolo Industrial’s second, third and fifth assignments of error challenge 

various aspects of the lower court’s judgment as being contrary to the weight of the 

evidence.

{¶26} “Weight of the evidence concerns ‘the inclination of the greater amount of 

credible evidence, offered in a trial, to support one side of the issue rather than the other. 

It indicates clearly to the jury that the party having the burden of proof will be entitled to 

their verdict, if, on weighing the evidence in their minds, they shall find the greater amount 

of credible evidence sustains the issue which is to be established before them. Weight 

is not a question of mathematics, but depends on its effect in inducing belief.’” State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law 

Dictionary 1594 (6th Ed.1990).

{¶27} “[I]n determining whether the judgment below is manifestly against the 

weight of the evidence, every reasonable intendment and every reasonable presumption 

must be made in favor of the judgment and the finding of facts. * * * If the evidence is 

susceptible of more than one construction, the reviewing court is bound to give it that 

interpretation which is consistent with the verdict and judgment, most favorable to 

sustaining the verdict and judgment.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 

77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, 

Section 603, at 191-192 (1978); Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
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2179, 972 N.E.2d 517, ¶ 21.

{¶28} In the second assignment of error, DiPaolo Industrial disputes the finding 

that it was in breach of the Construction Contract for defective work and for not completing 

its work within the agreed period. Underlying DiPaolo Industrial’s claims is the further 

alleged error that the trial court failed to give effect to the addendum submitted by DiPaolo 

Industrial with the signed Contract. The Contract itself provided that the Agreement 

Period for completing the work was between November 11, 2013, and January 31, 2014,

and that time was of the essence. The addendum provided that “we [the parties] had 

both agreed to leave the Asphalt in place until the weather breaks in late February or 

early March,” and “[c]rushing of concrete will commence during January, although if the 

temperature falls below 20 degrees Fahrenheit the process will stop.” According to 

DiPaolo Industrial, “[w]ith the Addendum in effect, there was simply no firm date by which 

the crushing part of the operation had to be completed. * * * While Plaintiff may have 

alleged that the opening of its store was delayed, * * * Plaintiff’s own witness testified that 

the store opened on time and other evidence indicated that, if any undue delay did occur, 

it was the fault of Plaintiff’s general contractor [McConnell Excavating] rather than 

Defendant. Consequently, Plaintiff had absolutely no right to discontinue payments to 

Defendant and Defendant had every right to stop working.” Assignments of Error and 

Brief of Appellant, at 23-24.

{¶29} The evidence is equivocal as to whether the addendum became part of the 

parties’ Contract. When the Contract was submitted to DiPaolo Industrial, it had already 

been signed by Menard. DiPaolo signed and returned the Contract but included the 

unsigned addendum with the Contract. The signed Contract does not indicate the
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existence of any amendments or addendum. Carlson denies that Menard agreed to the 

terms of the addendum. DiPaolo contends that the terms of the addendum were agreed 

to prior to the signing of the Contract. Given these circumstances, the addendum could 

be construed either as a conditional acceptance of the Contract or as a proposed 

amendment thereto. As a conditional acceptance, it could be argued that Menard 

implicitly accepted the terms of the addendum by proceeding to have DiPaolo Industrial 

commence demolition. As a proposed amendment, the addendum failed to adhere to the 

procedures set forth in the Contract for amendment or to receive any recognition by 

Menard.

{¶30} It is generally recognized that, “[i]n accordance with general contract 

principles, if the acceptance modifies or alters the terms set forth in the application, then 

the acceptance is deemed a rejection and counteroffer, which must be accepted by the 

applicant in order to be effective as a contract.” (Citation omitted.) Livi Steel, Inc. v. Bank 

One, Youngstown, N.A., 65 Ohio App.3d 581, 588, 584 N.E.2d 1267 (11th Dist.1989); 

Mentor Exempted Village School Dist. Bd. of Edn. v. Lake Cty. Edn. Serv. Ctr. Governing 

Bd., 2016-Ohio-7649, 74 N.E.3d 706, ¶ 78 (11th Dist.). Conversely, under the parol 

evidence rule, “a party who has entered into a written contract [is prohibited] from 

contradicting the terms of the contract with evidence of alleged or actual agreements.” 

(Citation omitted.) Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 

2009-Ohio-3554, 913 N.E.2d 410, ¶ 14. Moreover, it is not entirely certain if the 

addendum was understood in the technical sense of “a thing that is added or to be added,” 

i.e., additional terms added to the original contract, or as an amendment of the original 

contract. Gutierrez-Gordillo v. Tomo Hibachi Restaurant and Lounge, L.L.C., 2018-Ohio-
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2941, 118 N.E.3d 301, ¶ 11 (8th Dist.) (“[a]lthough ‘addendum’ and ‘amendment’ are legal 

terms of art, the parties did not give any indication that they intended that an ‘addendum’ 

to the operating agreement would not be the same as an ‘amendment’”).

{¶31} This issue, however, need not be determined by this Court. The evidence 

of record supports the finding that DiPaolo Industrial failed to complete its work under the 

Contract before quitting the worksite in early May, and thus substantiates the breach by 

DiPaolo Industrial regardless of whether the addendum is given effect.

{¶32} On the date that work was to be completed under the terms of the Contract, 

January 31, Menard sent a letter to DiPaolo Industrial stating the following: “This letter is 

to inform DiPaolo Industrial Development of the concerns Menard, Inc. has with the 

demolition of the old Wal-Mart building at 2057 Elm Road. * * * You are understaffed on 

this demolition project. I understand that we have been shut down for a week due to the 

extreme cold weather but there was no ambition to get caught up once the weather broke. 

When I was onsite on January 30

th, it was 30 degrees out and only 2 people were working 

on pulverizing the concrete slabs. No one was working on disassembling the Garden 

Center, removing the parking lot light fixtures, or removing underground utilities. Please 

forward me an updated schedule and how you are going to get caught back up, to be 

finished no later than March 1st.” At trial, DiPaolo testified that he had no issues with the 

content of this letter.

{¶33} On March 12, 2014, Menard sent a “7-day notice” to DiPaolo Industrial 

detailing items which have been completed and advising that “[t]hese items must be 100% 

completed otherwise Menard, Inc. will be forced to bring in another contractor at your 

expense.”
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{¶34} On April 3, 2014, Menard advised DiPaolo Industrial that the general 

contractor “will start mobilizing for the new store starting Monday, April 7th,” and “[y]ou 

must have all work completed and your material and equipment out next week.” Corey 

Frasier, the general superintendent for McConnell Excavating, testified at trial that 

McConnell Excavating began work on site in the first week of April 2014. Frasier also 

testified to work completed by McConnell Excavating that was left undone by DiPaolo 

Industrial. DiPaolo complained that the presence of McConnell Excavating on site, in 

addition to the way in which McConnell Excavating performed demolition work, delayed 

and hindered DiPaolo Industrial from completing its own contract work. However, under 

the terms of the addendum, at this point DiPaolo had had a full month to complete its 

work which should have consisted of removing asphalt and crushing concrete.

{¶35} DiPaolo testified at trial that DiPaolo Industrial quit the worksite in the first 

week of May because he did not believe Menard would pay him anything further and 

returned during the next two to three weeks to remove equipment. At the time DiPaolo 

Industrial quit the work site, DiPaolo acknowledged that there was work under the 

Contract that had not been completed, although the extent of that work was disputed.

{¶36} Given the foregoing record, we conclude that the finding that DiPaolo 

Industrial was in breach is supported by the weight of the evidence regardless of whether 

the addendum was in effect. Two months from early March, when according to the 

addendum any work that was suspended on account of cold weather should have 

recommenced, was a reasonable period of time for DiPaolo Industrial to complete its 

work. Whether the new store opened on schedule is not material to the issue of breach, 

as the record demonstrates DiPaolo Industrial needed to complete its work so that the 
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general contractor could begin its work.

{¶37} The second assignment of error is without merit.

{¶38} In the third assignment of error, DiPaolo Industrial argues that the finding of 

conversion with respect to the fencing was against the weight of the evidence.

{¶39} According to the terms of the Contract, certain items from the demolition 

project, including wrought-iron fencing at issue herein, were reserved by Menard as 

salvage. DiPaolo Industrial stored the fencing offsite until a time at which it was agreed 

that Menard would collect the fencing and other salvaged material. DiPaolo Industrial 

returned the items to the work site, but Menard did not provide enough transportation to 

remove it. Therefore, DiPaolo Industrial returned it to storage at 408 Dana Street. 

Carlson testified that Menard repeatedly asked for the fencing to be returned and was 

willing to pick up the fencing but did not know where it was being stored. Carlson 

estimated the value of the fencing at $25,000. DiPaolo testified that he would not return 

the fencing unless Menard agreed to pay for the cost of transportation. DiPaolo admitted 

that he did not inform Menard of where the fencing was located and that the building 

where it is located is no longer under DiPaolo Industrial’s control.

{¶40} Conversion is defined as “the wrongful exercise of dominion over property 

to the exclusion of the rights of the owner, or withholding it from his possession under a 

claim inconsistent with his rights.” Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96, 551 

N.E.2d 172 (1990).

Conversion * * * requires nothing more than the defendant 

possessing a plaintiff’s chattel and being unwilling to give it back. 

See Keeton, Prosser & Keeton on Torts (1984), 88 et seq. Sec. 15-

Conversion. There is no requirement that the personal property be 

wrongfully obtained. Although a demand and refusal to return the 

personal property is ordinarily necessary to prove conversion, acts 
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by a defendant which are inconsistent with the right of a plaintiff’s 

ownership are sufficient to satisfy this requirement.

Kiss v. Dick Baker Dodge, 6th Dist. Erie No. E-98-027, 1998 WL 904920, *3; Baltimore & 

Ohio RR. Co. v. O’Donnell, 49 Ohio St. 489, 32 N.E. 476 (1892), paragraph two of the 

syllabus (“[a]ny wrongful exercise of dominion over chattels in exclusion of the rights of 

the owner, or withholding of them from his possession under a claim inconsistent with his 

rights, constitutes a conversion”).

{¶41} We find that the evidence of record supports a finding of conversion. There 

was evidence that DiPaolo wrongfully refused to return the fencing to Menard and/or 

enable Menard to reclaim it when asked by Menard. Moreover, Carlson, as assistant 

general manager of the project, was competent to provide an estimate of the value of the 

fencing (of course, not being able to access the fencing, its value could not be properly 

appraised). Compare Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 

627, 605 N.E.2d 936 (1992) (“[w]e know of no reason for withholding information from a 

jury’s consideration or for requiring a corporate officer to qualify as an expert in all cases 

before testifying as to the value of corporate property”).

{¶42} The third assignment of error is without merit.

{¶43} In the fifth assignment of error, DiPaolo Industrial argues that the judgment 

in favor of Menard as to its counterclaim for defamation is against the weight of the 

evidence.

{¶44} At trial, DiPaolo testified that he viewed a news segment on 27 WKBN in 

which a spokesperson for Menard was “talking about this lawsuit * * * and that Mr. DiPaolo 

had stolen fencing and other items from the property.” After contacting the news station, 

it was learned that the video of the segment was no longer available. DiPaolo Industrial 
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introduced a couple of print articles regarding the lawsuit which included the allegation 

that DiPaolo Industrial had unlawfully removed $25,000 in fencing belonging to Menard. 

Additionally, DiPaolo testified that Wondra filed a complaint with law enforcement 

regarding the fencing and that he was questioned by the police about the fencing. 

DiPaolo Industrial contends the foregoing “supports the proposition that Plaintiff was 

alleging that Defendant had actually stolen materials.” Assignments of Error and Brief of 

Appellant, at 29.

{¶45} “In Ohio, defamation occurs when a publication contains a false statement 

‘made with some degree of fault, reflecting injuriously on a person’s reputation, or 

exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a 

person adversely in his or her trade, business or profession.’” (Citation omitted.) Am. 

Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 

77. “To establish defamation, the plaintiff must show (1) that a false statement of fact 

was made, (2) that the statement was defamatory, (3) that the statement was published, 

(4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the 

defendant acted with the requisite degree of fault in publishing the statement.” (Citation 

omitted.) Id.

{¶46} Menard counters, and we agree, that the allegedly defamatory statements 

fall under the scope of absolute privilege which provides that “a claim alleging that a 

defamatory statement was made in a written pleading does not state a cause of action 

where the allegedly defamatory statement bears some reasonable relation to the judicial 

proceeding in which it appears.” Surace v. Wuliger, 25 Ohio St.3d 229, 233, 495 N.E.2d 

939 (1986). The allegedly defamatory statement published in the news articles related to 
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the pending litigation and so falls within the scope of the privilege. Am. Chem. Soc. at ¶ 

86 (“[c]onsidering the article as a whole and the fact that the article contained a true and 

accurate summary of the legal proceedings at the time, we hold that the statements in the 

article are, as a matter of law, not defamatory”). Whatever statements Wondra may have 

made to law enforcement would be similarly protected. Fisher v. Ahmed, 2020-Ohio1196, 153 N.E.3d 612, ¶ 40 (9th Dist.) (“[a]s a matter of public policy, an absolute privilege 

protects statements that report a possible crime, because a privilege under such 

circumstances encourages ‘“the reporting of criminal activity by removing any threat of 

reprisal in the form of civil liability”’) (citation omitted).

{¶47} The fifth assignment of error is without merit.

{¶48} In the fourth assignment of error, DiPaolo Industrial asserts that the award 

of attorney fees is in error as “Plaintiff has provided insufficient proof of these damages 

and, further, an award of such would be against Ohio public policy.” Assignments of Error 

and Brief of Appellant, at 25.

{¶49} “Ohio has long adhered to the ‘American rule’ with respect to recovery of 

attorney fees: a prevailing party in a civil action may not recover attorney fees as a part 

of the costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio306, 906 N.E.2d 396, ¶ 7. “However, there are exceptions to this rule.” Id. “Exceptions 

to the rule allow fee-shifting and taxing attorney fees as costs (1) if there has been a 

finding of bad faith; (2) if a statute expressly provides that the prevailing party may recover 

attorney fees; and (3) if the parties’ contract provides for fee-shifting.” (Emphasis added.) 

J.B.H. Properties, Inc. v. N.E.S. Corp., 11th Dist. Lake No. 2007-L-024, 2007-Ohio-7116, 

¶ 8.
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{¶50} The parties’ Contract herein provides:

ARTICLE 5: INDEMNIFICATION

[1] CONTRACTOR [DiPaolo Industrial] shall indemnify and 

hold harmless OWNER [Menard], its agents and its employees from 

any and all liability, damages, expenses, claims, demands, actions 

or causes of action, including attorney fees, arising out of the 

performance of the Contract Documents, Agreement and/or Work 

hereunder, whether such liability, damages, expenses, claims, 

demands, actions or causes of action are caused by 

CONTRACTOR, its subcontractors, or lower tiered contractors, or 

their agents or employees, OWNER, its agents and its employees, 

or any persons acting on behalf of OWNER and/or CONTRACTOR. 

[2] In the event of failure by CONTRACTOR to defend OWNER 

against any such claim upon ten (10) days written notification of 

OWNER requesting that CONTRACTOR do so, OWNER shall be 

entitled to directly settle any such claim. [3] CONTRACTOR waives 

any right to dispute the amount of any settlements made by OWNER 

under this provision and acknowledges that OWNER is entitled to 

deduct the full amount of any such settlements from the Contract 

Sum as defined below. [4] If Final Payment, as defined herein, has 

already been made by OWNER to CONTRACTOR, CONTRACTOR 

agrees to reimburse OWNER the full amount of any settlement within 

ten (10) days after receipt of invoice from OWNER.

(Emphasis added.)

{¶51} The issue is whether Article 5 is a fee shifting provision and, if so, under 

what circumstances.

{¶52} In contract cases in which the parties intend a fee-shift when they are 

involved in litigation over contract performance, we typically see the following type of 

language: “indemnification from and against claims, damages, losses and expenses, 

including but not limited to its actual attorney fees incurred, arising out of or resulting from 

performance of the contract or out of the actual or alleged failure of the contractor or 

subcontractor to perform any obligations under the contract or subcontract documents.”

{¶53} By contrast, “[i]ndemnity arises from contract, either express or implied, and 
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is the right of a person who has been compelled to pay what another should have paid, 

to require complete reimbursement.” Worth v. Aetna Cas. & Sur. Co., 32 Ohio St.3d 238, 

240, 513 N.E.2d 253 (1987). “Indemnity agreements are interpreted in the same manner 

as other contracts.” Ferguson v. Boron, 2018-Ohio-69, 105 N.E.3d 424, ¶ 47 (7th Dist.). 

“The true nature of an indemnity relationship is determined by the intent of the parties 

expressed within the language of the agreement.” Id. “[A]ll the words used [must] be 

taken in their ordinary and popular sense,” Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 

47, 505 N.E.2d 264 (1987), and “[w]hen a [writing] is worded in clear and precise terms; 

when its meaning is evident, and tends to no absurd conclusion, there can be no reason 

for refusing to admit the meaning which such [writing] naturally presents.” Lawler v. Burt, 

7 Ohio St. 340, 350 (1857).

{¶54} Further, “parties ‘have a fundamental right to contract freely with the 

expectation that the terms of the contract will be enforced.’ Nottingdale Homeowners’ 

Assn., Inc. v. Darby, 33 Ohio St.3d 32, 36, 514 N.E.2d 702 (1987)[.] * * * To that end, 

parties to a contract may include contractual terms that abrogate the common law. Paul 

Cheatham I.R.A. v. Huntington Natl. Bank, 157 Ohio St.3d 358, 2019-Ohio-3342, 137 

N.E.3d 45, ¶ 30. ‘[B]ut the intent to do so must be clearly indicated.’ Id. This principle 

applies to contractual indemnification agreements. * * * [T]he ‘nature of an indemnity 

relationship is determined by the intent of the parties as expressed by the language used’ 

in the agreement. Worth[, supra, at] 240 * * *. [A court] cannot ascertain the parties’ 

intent without looking at the words that they used to express their intent. Kelly v. Med. 

Life Ins. Co., 31 Ohio St.3d 130, 132, 509 N.E.2d 411 (1987) (‘The intent of the parties to 

a contract is presumed to reside in the language they chose to employ in the agreement’).”
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Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., 164 Ohio St.3d 480, 2020-Ohio6821, 173 N.E.3d 1156, ¶ 14.

{¶55} When read as a whole and in context, Article 5 provides for third-party 

indemnification only. It is not an indemnification clause for attorney fees incurred in 

enforcing the contract between the two contracting parties. The first sentence is 

unambiguously written to require DiPaolo to indemnify and hold Menard harmless from 

“liability, damages, expenses, claims, demands, actions or causes of action, including 

attorney fees, arising out of the performance of the Contract Documents, Agreement 

and/or Work” regardless of who caused the claim to arise, even including Menard. The 

first sentence must be read in context with the balance of the article. For instance, the

second sentence describes what Menard may do in the event DiPaolo fails to “defend” 

Menard against “any such claim”—the list stated in sentence one—Menard may directly 

settle the claim. The third sentence provides that DiPaolo waives the right to contest the 

amount of the settlement and that Menard may deduct the amount from the total contract 

sum. The fourth sentence allows a claw-back of the settlement amount in the event final 

payment has been made to DiPaolo.

{¶56} Ohio case law does not provide an interpretation of the precise language 

drafted by Menard; however, cases in other states do. The critical term in Article 5 is 

“defend,” which indicates the clause’s application to third party claims. This term would 

have no effect in a direct action between the parties. “Obviously, in a direct action 

between the parties, neither party would be interested in tendering its defense or being 

defended by the other party.” Canopy Corp. v. Symantec Corp., 395 F.Supp.2d 1103, 

1115 (D.Utah 2005).
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{¶57} Further, “[c]onstruing the indemnification clause ‘as pertaining only to thirdparty suits affords a fair meaning to all of the language employed by the parties in the 

contract and leaves no provision without force and effect.’” Id. at 1116, quoting Oscar 

Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 200 (2d Cir.2003) (holding that an 

indemnification clause was confined to third-party claims and did not permit an attorney 

fee award in a first-party lawsuit); accord Hooper Assocs., Ltd. v. AGS Computers, Inc., 

74 N.Y.2d 487, 548 N.E.2d 903 (1989) (“To extend the indemnification clause to require 

defendant to reimburse plaintiff for attorney’s fees in the breach of contract action against 

defendant would render these provisions meaningless because the requirement of notice 

and assumption of the defense has no logical application to a suit between the parties.”).

{¶58} Based on the express language of Article 5 and the inapplicability of any 

other section of the contract that references attorney fees, there is no need to consider 

DiPaolo’s public policy or evidentiary arguments.

{¶59} The fourth assignment of error is with merit.

{¶60} For the foregoing reasons, the judgment of the Trumbull County Court of 

Common Pleas is affirmed in part and reversed in part. This matter is remanded for 

further proceedings consistent with this opinion. Costs to be taxed between the parties 

equally.

JOHN J. EKLUND, P.J., concurs, 

MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/Dissenting 

Opinion.

____________________________________________
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MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/Dissenting 

Opinion.

{¶61} I concur with the majority’s analysis and disposition regarding DiPaolo’s 

second through fifth assignments of error as well as the unjust enrichment portion of 

DiPaolo’s first assignment of error. I depart ways with the majority on the breach of 

contract portion of DiPaolo’s first assignment of error. Specifically, I disagree with the 

majority’s determination that the record on summary judgment creates a genuine issue 

of material fact as to whether Menard waived the written change order requirement in the

parties’ contract. 

{¶62} The majority correctly begins its analysis with the Supreme Court of Ohio’s 

decision in Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 

78 Ohio St.3d 353, 678 N.E.2d 519 (1997), which states: 

{¶63} “It is universally recognized that where a building or construction contract, 

public or private, stipulates that additional, altered, or extra work must be ordered in 

writing, the stipulation is valid and binding upon the parties, and no recovery can be had 

for such work without a written directive therefor in compliance with the terms of the 

contract, unless waived by the owner or employer.” Id. at 360-361. 

{¶64} The rationale for this principle is as true today as it was over 125 years ago 

when the Supreme Court of Ohio decided Ashley v. Henahan, 56 Ohio St. 559, 47 N.E. 

573 (1897):

{¶65} “The primary purpose of requiring written authorization for alterations in a 

building or construction contract is to protect the owner against unjust and exorbitant 
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claims for compensation for extra work. It is generally regarded as one of the most 

effective methods of protection because such clauses limit the source and means of 

introducing additional work into the project at hand. It allows the owner to investigate the 

validity of a claim when evidence is still available and to consider early on alternative 

methods of construction that may prove to be more economically viable. It protects 

against runaway projects and is, in the final analysis, a necessary adjunct to fiscal 

planning.” Foster Wheeler at 363-364, citing Ashley at 572-573.

{¶66} In this case, Article 2 of the parties’ contract, entitled “Changes in the Work,” 

provides as follows:

{¶67} “[Menard], without invalidating this contract, may, at any time, order 

changes in the work within the general scope of this contract. [DiPaolo] shall not 

perform any extra or additional work or changes from the Contract Documents 

unless previously authorized in writing by an AIA change order signed by Troy 

Anderson, the General Manager Store Planning/Design/Construction. Portions of 

change order work are subject to merchandise credit check. [Menard]’s project 

managers are not authorized to approve changes in the work.” [Bolding sic.]

{¶68} Thus, pursuant to Article 2, Troy Anderson was the only person who could 

authorize additional work on Menard’s behalf, and his authorization was required to be 

set forth in a signed and written AIA change order.

{¶69} The majority also correctly notes that an owner may waive this type of 

contractual provision. See Foster Wheeler at 360 (“unless waived by the owner”). In 

those situations, “‘proof of a waiver must either be in writing, or by such clear and 

convincing evidence as to leave no reasonable doubt about it.’” Id. at 364, quoting Ashley
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at paragraph five of the syllabus. “Mere knowledge, and even acquiescence, is not 

enough for recovery.” Id. In addition, “‘“[e]quivocal conduct, or conduct of doubtful import, 

is not sufficient.”’” Id., quoting Ashley at 574, quoting O’Keefe v. St. Francis’ Church, 59 

Conn. 551, 561, 22 A. 325 (1890).

{¶70} In this case, there was no written waiver of Article 2. Instead, DiPaolo 

contends that Menard waived the written change order procedure because Jim Carlson, 

assistant general manager of store planning/construction, verbally approved change 

order nos. 2, 5, 6, and 7, and Brad Wondra, project manager, verbally approved change 

order nos. 3 and 4. 

{¶71} Critically, the plain language of Article 2 explicitly notified DiPaolo that only 

Mr. Anderson was authorized to approve changes in the work on Menard’s behalf and 

that Menard’s project managers were not authorized to do so, making any approval from 

Mr. Carlson and Mr. Wondra legally ineffective. 

{¶72} DiPaolo also contends that “[a]t every juncture,” Mr. Carlson and Mr. 

Wondra informed it “that Troy Anderson was both advised of the proposed change work 

orders, had approved such change work orders and that copies of such would be 

forthcoming.” 

{¶73} The evidentiary quality material submitted on summary judgment does not 

support this contention. Contrary to the majority’s determination, the most that can be 

inferred from the record is that Mr. Anderson was copied on some of the email 

correspondence among DiPaolo, Mr. Wondra, and Mr. Carlson regarding additional work. 

{¶74} Further, the majority appears to presume that Mr. Anderson was authorized 

to waive the written change order requirement. According to the Supreme Court of Ohio, 
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however, “[i]t is generally recognized that, in the absence of express authority, an 

engineer, architect, superintendent or inspector in charge of or assigned to * * * 

construction work has no power to waive or modify a stipulation requiring a written order 

for alterations, even where that person may authorize alterations in writing.” Foster 

Wheeler at 364. Here, the contract identified Mr. Anderson as “the General Manager 

Store Planning/Design/Construction,” which indicates he fit within the purview of this rule. 

See id. There was no provision granting authority to Mr. Anderson to waive the 

requirement for a written and signed change order. Rather, as stated, Mr. Anderson’s 

express authority was limited to authorizing additional work set forth in a signed and 

written AIA change order. See id. 

{¶75} For the foregoing reasons, the trial court’s granting of summary judgment 

to Menard on the issue of change orders was correct as a matter of contractual 

interpretation and, thus, as a matter of law. Accordingly, I would overrule DiPaolo’s first 

assignment of error in its entirety.