Royal Electric Construction Corp. v. Ohio State University

[This opinion has been published in Ohio Official Reports at 

73 Ohio St.3d 110

.]




ROYAL ELECTRIC CONSTRUCTION CORPORATION, APPELLANT, v. OHIO STATE
                           UNIVERSITY ET AL., APPELLEES.
   [Cite as Royal Electric Constr. Corp. v. Ohio State Univ., 

1995-Ohio-131

.]
Court of Claims—Prejudgment interest—R.C. 2743.18(A), construed and
        applied—Interest when rate not stipulated—R.C. 1343.03(A), construed
        and applied.
                                  __________________
In a case involving breach of contract where liability is determined and damages
        are awarded against the state, the aggrieved party is entitled to prejudgment
        interest on the amount of damages found due by the Court of Claims. The
        award of prejudgment interest is compensation to the plaintiff for the period
        of time between accrual of the claim and judgment, regardless of whether
        the judgment is based on a claim which was liquidated or unliquidated and
        even if the sum due was not capable of ascertainment until determined by
        the court. (R.C. 2743.18[A] and 1343.03[A], construed and applied.)
                                  __________________
       (No. 94-419—Submitted April 18, 1995—Decided August 16, 1995.)
   APPEAL from the Court of Appeals for Franklin County, Nos. 93AP-399 and
                                        93AP-424.
                                  __________________
        {¶ 1} This appeal involves prejudgment interest. The parties involved in
this case are appellant, Royal Electric Construction Corporation ("Royal"), and
appellees, the Ohio State University ("OSU") and the Ohio Department of
Administrative Services ("ODAS"). The facts and procedural posture of this appeal
can be gleaned from the decisions of the trial court and court of appeals.
                               SUPREME COURT OF OHIO




       {¶ 2} The facts giving rise to this appeal concern two contracts entered into
by the parties. Royal was hired to work on two buildings located on the campus of
OSU. Both projects were publicly bid and Royal submitted the lowest and best bid
for each project.
       {¶ 3} Specifically, on June 4, 1987, Royal entered into a contract to perform
electrical renovations involving Lazenby Hall. The project, regarding the work to
be performed by Royal, was scheduled to be completed on September 9, 1988. The
project was, however, fraught with numerous delays and/or disruptions and,
consequently, Royal's work on the project was not completed or substantially
completed until March 12, 1989.
       {¶ 4} Further, during the time that Royal was involved with the Lazenby
Hall project, Royal tendered a bid to participate in the renovation of Hamilton Hall.
Royal tendered its bid on January 19, 1989, and was later asked to extend the terms
of the bid through April 28, 1989. Royal agreed to the extension and was awarded
the contract. Thereafter, a notice to proceed was issued authorizing Royal to
commence work on May 31, 1989. The work was to be completed by May 31, 1991.
However, the commencement date was postponed by appellees until September 1,
1989, and, as a result, the work was not completed or substantially completed by
Royal until September 1, 1991.
       {¶ 5} The delays experienced by Royal involving both the Lazenby Hall
and Hamilton Hall projects were not the fault of Royal. Rather, the delays were the
responsibility of appellees.
       {¶ 6} As a result of the delays and other problems associated with the
projects, Royal attempted to seek redress under the "Article 8" administrative
review procedures set forth in both contracts. Eventually, Royal filed suit in the
Court of Claims.
       {¶ 7} In its amended complaint, Royal alleged that appellees breached both
the Lazenby Hall and Hamilton Hall contracts, that appellees were responsible for




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                                  January Term, 1995




"delays and disruptions" regarding the Lazenby Hall project, and that appellees
caused a "substantial delay" in the commencement of the Hamilton Hall project.
Royal claimed that the delays were caused by the appellees' failure to issue "change
orders" and their refusal to resolve disputes under the terms of the contracts. Royal
further alleged that as a result of the delays it was required to perform "extra work,"
that it "incurred additional costs and expenses," that it "suffered damage to its
overhead," and that it "suffered serious damage to its business." Moreover, with
respect to the Lazenby Hall contract, Royal claimed that appellees wrongfully
refused        "to     remit      $8,184.00       in     retainage      still    owed
* * *." Additionally, with regard to the Hamilton Hall contract, Royal alleged that
appellees breached the contract "by insisting that Royal * * * revise * * * and
replace certain fixtures that were already installed, even though the fixtures
originally ordered and supplied by Royal * * * were in full compliance with the
Hamilton Hall Contract."
          {¶ 8} The parties conducted discovery and the case proceeded to trial. At
trial, the court heard extensive testimony from numerous witnesses (resulting in
approximately four thousand pages of trial transcript) and hundreds of pages of
exhibits were admitted into evidence.
          {¶ 9} Thereafter, the trial court issued an exhaustive decision. The court
discussed the various theories and issues raised by the parties in support of their
positions, including various methods and data utilized by the parties in determining
the amount of damages owed by appellees to Royal. On February 19, 1993, the
trial court entered judgment in favor of Royal.
          {¶ 10} In the February 19, 1993 judgment entry, the trial court set forth the
specific damages owed by appellees. With respect to Lazenby Hall, the trial court
held that Royal was entitled to $96,541 for "lost man-hours expended," $32,238 for
"unabsorbed home office overhead losses," and $58,338 for "prejudgment interest."
With regard to the Hamilton Hall project, the trial court held that Royal was entitled




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to $38,815 "for unabsorbed home office overhead," $50,951 "for losses ocassioned
[sic] by the wrongful rejection of plaintiff's R-3 lighting fixtures," and $13,914 for
"prejudgment interest." The trial court also found that Royal was entitled to $1,659
from ODAS, individually, for interest on the amount wrongfully retained under the
Lazenby Hall contract.
       {¶ 11} Subsequently, in a judgment entry dated May 3, 1993, the trial court
corrected its prior award to Royal involving the light-fixture matter. The court
concluded that the proper amount owed by appellees to Royal was $58,320, not
$50,951. Given this correction, the court held that Royal was entitled to $15,056 in
interest on losses incurred by Royal concerning the Hamilton Hall project.
Moreover, in this entry, the trial court reaffirmed the propriety of awarding
prejudgment interest to Royal regarding both projects:
       "* * * After considering all of defendants' arguments, the court finds that
the interest awarded is justified for several reasons. Contrary to defendants'
analysis, the claims of the plaintiff were capable of calculation by the state and were
therefore liquidated debts. Also, the state through reasonable application of its
Article 8 proceedings, could have determined the amount due under any number of
standards recognized in the construction industry. The mere act of disputing the
amount does not control whether the debt is liquidated or unliquidated. Finally, the
court considers the award of prejudgment interest necessary to make plaintiff
whole." (Emphasis added.)
       {¶ 12} Upon appeal, the Court of Appeals for Franklin County held, among
other things, that the trial court properly awarded damages to Royal for the delays
encountered by Royal on the Lazenby Hall and Hamilton Hall projects. The court
of appeals also remanded the cause to the trial court to consider and clarify certain
matters regarding the trial court's calculations of overhead losses suffered by Royal.
The court of appeals, however, held that the trial court erred in awarding
prejudgment interest to Royal. The court of appeals determined that the interest




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                                 January Term, 1995




awarded by the trial court was not justified because certain damages sought by
Royal were "uncertain" and "unliquidated." Specifically, in considering the trial
court's May 3, 1993 judgment entry, the court of appeals stated:
        "* * * While the court is correct that the state could have attempted to
calculate its potential liability using construction industry standards, the amount of
damages for which the state was ultimately responsible would still have been
uncertain because such calculations are dependent upon a number of contingencies,
such as the number of additional man-hours expended on the two jobs and the
amount of unabsorbed overhead. Contingencies affecting the amount of damages
are factual issues to be resolved at trial by the finder of fact. Indeed, this court has
previously held that where the amount of unabsorbed overhead in a construction
delay dispute is uncertain, the debt is unliquidated and is not the proper subject of
prejudgment interest."
        {¶ 13} Subsequently, Royal filed a motion for reconsideration, requesting
that the court of appeals reconsider its ruling with respect to the denial of
prejudgment interest. The court of appeals denied Royal's motion.
        {¶ 14} The cause is now before this court pursuant to the allowance of a
motion to certify the record.
                                __________________
        McFadden, Winner & Savage and James S. Savage, for appellant.
        Betty D. Montgomery, Attorney General, and Susan M. Sullivan, Assistant
Attorney General, for appellee Ohio State University.
        Betty D. Montgomery, Attorney General, and Daniel A. Malkoff, Assistant
Attorney General, for appellee Ohio Department of Administrative Services.
        Clark, Perdue, Roberts & Scott and Edward L. Clark, urging reversal for
amicus curiae Ohio Academy of Trial Lawyers.
        Bricker & Eckler and Luther L. Liggett, Jr., urging reversal for amicus
curiae National Electric Contractors Association, Inc.




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                                 SUPREME COURT OF OHIO




                                   __________________
        DOUGLAS, J.
        {¶ 15} Appellees do not dispute that Royal suffered significant monetary
losses as a result of delays and disruptions involving the Lazenby Hall and
Hamilton Hall projects. In fact, appellees do not challenge the findings of the trial
court and court of appeals that they (appellees) were responsible for certain delays
and other problems associated with both projects.1 Rather, the sole dispute in this
case is whether Royal should be compensated for delay in payment of damages
which were due Royal. More specifically, we are asked to determine whether Royal
is entitled to $73,394 ($58,338 in connection with the Lazenby Hall project and
$15,056 in connection with the Hamilton Hall project) in prejudgment interest.
        {¶ 16} Appellees contend that prejudgment interest is not justified in the
case at bar because certain amounts owed to Royal were "unliquidated" (as opposed
to "liquidated") and "not capable of ascertainment by reasonably certain
calculations" until judgment was rendered by the Court of Claims. Appellees assert
that it would be "unfair to charge a debtor with interest on such an amount disputed
in good faith," that the award of prejudgment interest would violate public policy,
and that this award would act as a penalty. We disagree.
        {¶ 17} Courts in Ohio have long recognized a common-law right to
prejudgment interest. See Moskovitz v. Mt. Sinai Med. Ctr. (1994), 

69 Ohio St.3d 638, 656-657

, 

635 N.E.2d 331, 346-347

. Additionally, in 1975, Ohio created a
statutory right to prejudgment interest in suits against the state.
        {¶ 18} R.C. 2743.18 (A) provides:




1. In fact, according to the parties, most of the claims submitted by Royal were paid by appellees
prior to this appeal.




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                                 January Term, 1995




        "Prejudgment interest shall be allowed with respect to any civil action on
which a judgment or determination is rendered against the state for the same period
of time and at the same rate as allowed between private parties to a suit.
        "The court of claims, in its discretion, may deny prejudgment interest for
any period of undue delay between the commencement of the civil action and the
rendition of a judgment or determination against the state, for which it finds the
claimant to have been responsible." (Emphasis added.)
        {¶ 19} In regard to the phrases "period of time" and the legal "rate" of
interest "as allowed between private parties," set forth in R.C. 2743.18(A), R.C.
1343.03(A) provides:
        "In cases other than those provided for in sections 1343.01 and 1343.02 of
the Revised Code, when money becomes due and payable upon any bond, bill, note,
or other instrument of writing, upon any book account, upon any settlement
between parties, upon all verbal contracts entered into, and upon all judgments,
decrees, and orders of any judicial tribunal for the payment of money arising out of
tortious conduct or a contract or other transaction, the creditor is entitled to interest
at the rate of ten per cent per annum, and no more, unless a written contract
provides a different rate of interest in relation to the money that becomes due and
payable, in which case the creditor is entitled to interest at the rate provided in that
contract." (Emphasis added.)
        {¶ 20} Appellees' contentions neither comport with the clear language set
forth in R.C. 2743.18(A) and 1343.03(A), nor do their assertions support the
apparent legislative purposes behind the enactment of the statutes. Appellees'
arguments, if accepted, would have the effect of amending R.C. 2743.18(A) and
1343.03(A) by adding language to the statutes that clearly does not exist. Neither
statute contains the words "liquidated" or "unliquidated," nor do the statutes require
that a claim be "capable of ascertainment" prior to a determination by the court. In
addition, neither statute uses the language "good faith." Section (C) of R.C.




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                             SUPREME COURT OF OHIO




1343.03 makes "good faith" a factor, but section (A) of the statute does not. See

Moskovitz, supra, at 658-659

, 

635 N.E.2d at 347-348

.
       {¶ 21} By its very terms, R.C. 2743.18(A) sets forth that upon a judgment
or decision rendered by the Court of Claims against the state, the claimant is entitled
to prejudgment interest. Indeed, R.C. 2743.18(A) uses the word "shall." Thus, if a
judgment or determination is rendered by the court against the state, the decision to
allow or not allow prejudgment interest is not discretionary. The only matter that
is discretionary with the court is the determination of "undue delay." Further, R.C.
2743.18(A) instructs that in computing the interest owed to the claimant, the court
must use the "same period of time" and the "same rate" as is used in suits involving
"private parties." Therefore, in computing the amount of interest owed, the court
is required to look to R.C. 1343.03(A) to determine when interest commences to
run, i.e., when the claim becomes "due and payable," and to determine what legal
rate of interest should be applied.
       {¶ 22} Appellees also submit that an award of prejudgment interest in a case
such as this would "jettison a rule of law that has stood in Ohio for over a century."
In support of this contention, appellees cite Braverman v. Spriggs (1980), 68
OhioApp.2d 58, 

22 O.O.3d 47

, 

426 N.E.2d 526

. Again, we disagree.
       {¶ 23} In Braverman, the court of appeals held that R.C. 1343.03(A) is
limited to "liquidated" debts, that is, debts of a sum certain. In reaching this
conclusion, the court in Braverman did not set forth any rationale for its holding,
nor did the court provide any policy reasons behind its interpretation of R.C.
1343.03(A). Rather, it appears that the court reached its decision after reviewing
Shawhan v. Van Nest (1874), 

25 Ohio St. 490

. However, Shawhan did not involve
any statutory provision, nor does Shawhan discuss or mention the words
"liquidated" or "unliquidated." Shawhan stands simply for the proposition that in
an action based upon breach of contract, the aggrieved party may recover the
contract price and interest from the time that the money should have been paid. To




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                                       January Term, 1995




a degree, Shawhan actually supports the trial court's decision in the case at bar. In
fact, Shawhan could be cited as persuasive authority that there is a common-law
right to prejudgment interest and that the inclusion of such interest is part of
compensatory damages.
         {¶ 24} It is apparent that courts in Ohio have attached great significance to
the liquidated-unliquidated dichotomy, or have refined this rule and allowed
prejudgment interest in situations where the claim is unliquidated but "capable of
ascertainment." See, e.g., Shaker Sav. Assn. v. Greenwood Village, Inc. (1982), 

7 Ohio App.3d 141

, 7 OBR 184, 

454 N.E.2d 984

. It is also apparent that these judicial
creations (liquidated-unliquidated and capable-of-ascertainment tests) have caused
much confusion among members of our bench and bar in deciding under what
circumstances prejudgment interest is warranted.2 Hence, we believe that the focus
in these types of cases should not be based on whether the claim can be classified
as "liquidated," "unliquidated" or "capable of ascertainment."                            Rather, in
determining whether to award prejudgment interest pursuant to R.C. 2743.18(A)
and 1343.03(A), a court need only ask one question: Has the aggrieved party been
fully compensated?
         {¶ 25} An award of prejudgment interest encourages prompt settlement and
discourages defendants from opposing and prolonging, between injury and
judgment, legitimate claims. Further, prejudgment interest does not punish the
party responsible for the underlying damages as suggested by appellees, but, rather,
it acts as compensation and serves ultimately to make the aggrieved party whole.
See, generally, 

Moskovitz, supra, at 656-657

, 

635 N.E.2d 346

-347. See, also,



2. It is apparent that courts in this state, when attempting to determine if prejudgment interest should
be granted in these types of situations, have been utilizing a subjective analysis, which has led to
many confusing, inconsistent and oft-times irreconcilable decisions. A case in point is the case at
bar. Here, the trial court concluded that the sums owed by appellees to Royal were "liquidated"
debts. The court of appeals, on the other hand, determined that the debts were "unliquidated."
Compare Conti Corp. v. Ohio Dept. of Adm. Serv. (1993), 

90 Ohio App.3d 462

, 

629 N.E.2d 1073

.




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                             SUPREME COURT OF OHIO




McCormick, Damages (1935) 205, Section 50 et seq.; 3 Restatement of the Law
2d, Contracts (1981) 150-151, Section 354(2); Annotation (1974), 

60 A.L.R.3d 487

, 495, Section 2; Note, Developments in the Law [--] Damages[:] Interest
(1947), 61 Harv.L.Rev. 113, 136-138; and Note, Recent Developments [-]
Prejudgment Interest as Damages: New Application of an Old Theory (1962), 15
Stan.L.Rev. 107-113. Indeed, to make the aggrieved party whole, the party should
be compensated for the lapse of time between accrual of the claim and judgment.
       {¶ 26} Appellees further suggest that prejudgment interest should not be
allowed in this case because "[t]he majority of American jurisdictions, in
determining whether prejudgment interest is awardable in contract cases, follow the
liquidated/capable of ascertainment test—also called the 'degree of certainty' test—
or some variant thereof." However, we are not here concerned with what is or is
not the majority view. Rather, we are only concerned with the law of this state as
pronounced by our General Assembly. In addition, we are more persuaded by those
states that have moved away from the medieval notion that interest is evil. See, e.g.
State v. Phillips (Alaska 1970), 

470 P.2d 266, 274

 ("At the moment the cause of
action accrued, the injured party was entitled to be left whole and became
immediately entitled to be made whole. * * * All damages then, whether liquidated
or unliquidated, pecuniary or nonpecuniary, should carry interest from the time the
cause of action accrues * * *.").       See, also, McCormick, supra, Historical
Development of the Modern Law as to Interest, at 206-211, Section 51.
       {¶ 27} Accordingly, we hold that in a case involving breach of contract
where liability is determined and damages are awarded against the state, the
aggrieved party is entitled to prejudgment interest on the amount of damages found
due by the Court of Claims. The award of prejudgment interest is compensation to
the plaintiff for the period of time between accrual of the claim and judgment,
regardless of whether the judgment is based on a claim which was liquidated or




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                               January Term, 1995




unliquidated and even if the sum due was not capable of ascertainment until
determined by the court.
       {¶ 28} In the case now before us, the trial court determined that Royal had
substantially completed the Lazenby Hall project by March 12, 1989 and the
Hamilton Hall project by September 1, 1991, and that the damages sustained by
Royal as a result of the delays and other problems associated with the projects
accrued (became "due and payable") at the time that Royal had substantially
completed each of the projects. In this regard, the trial court held that interest
awarded on the damages involving Lazenby Hall and Hamilton Hall commenced
on March 12, 1989 and September 1, 1991, respectively.
       {¶ 29} We believe that the trial court properly awarded prejudgment interest
to Royal. Accordingly, we reverse that portion of the judgment of the court of
appeals denying prejudgment interest to Royal.
                                                                Judgment reversed.
       RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
       MOYER, C.J., and WRIGHT, J., concur in part and dissent in part.
                              __________________
       MOYER, C.J., concurring in part and dissenting in part.
       {¶ 30} I agree with the observation of the majority that we should put to rest
the medieval view that prejudgment interest is a penalty for wrongdoing. Rather,
as the General Assembly acknowledged in enacting R.C. 2743.18, prejudgment
interest should be awarded as a means of fully compensating an injured plaintiff. I
too believe we should obviate the liquidated versus the unliquidated damages
distinction because, in some instances, it can preclude the compensation of a party
who has contracted with the state, where it has been determined that the state has
economically injured the contracting party. R.C. 2743.18(A) provides that
"[p]rejudgment interest shall be allowed with respect to any civil action on which
a judgment or determination is rendered against the state for the same period of




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                              SUPREME COURT OF OHIO




time and at the same rate as allowed between private parties to a suit." Reference
to R.C. 1343.03 that provides the "period" for which a "rate" at which prejudgment
interest is determined in civil actions is only partially helpful. Subsection (A) of
R.C. 1343.03 is the only subsection that refers to judgments arising out of contract;
it states the rate at which interest is computed on civil judgments. Subsections (B),
(C) and (D) all refer exclusively to civil actions based on the tortious conduct.
Subsection (C) states that "[i]nterest on a judgment, decree, or order for the
payment of money rendered in a civil action based on tortious conduct and not
settled by agreement by the parties, shall be computed from the date the cause of
action accrued to the date on which the money is paid ***."
       {¶ 31} Since the General Assembly has not expressly stated a period for
which prejudgment interest is to be paid in a civil action arising from contract, I
would not begin the period at the accrual date but rather at the date when an action
is filed by the plaintiff. There is considerable commentary on the issue in legal
journals. See, e.g., Comment, Prejudgment Interest: Survey and Suggestion
(1982), 77 Nw. U.L. Rev. 192; McCormick, Damages (1935) 229, Section 58. I
am persuaded that the fairest rule is to begin the computation of prejudgment
interest with the filing of plaintiff's complaint.        Such a rule obviates the
circumstances under which a plaintiff can control, to some extent, the amount of
prejudgment interest that may be received by delaying the filing of a complaint. To
the extent the majority holds contrary to that rule, I dissent.
       {¶ 32} For the foregoing reasons I concur and dissent in the judgment of the
majority.
       WRIGHT, J., concurs in the foregoing opinion.
                               __________________




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