2022 Ohio 3832
Ohio Ct. App.2022Background
- In July 2011 Triton entered a contract with the City of Cincinnati to serve as general contractor on a sewer-replacement project; the contract incorporated a geotechnical report and required "early notice" (by end of second working day) and a three-step, tiered dispute-resolution process prior to filing a certified claim.
- During construction Triton encountered differing site conditions (sloughing, cave-ins, excessive groundwater) and submitted multiple change order requests (CORs); MSD approved all except COR #14 seeking $534,321.65 for undocumented unsuitable ground conditions, which the City denied.
- Triton did not provide the contractually required early notice but contended the City (through engineer Steve Jones) had waived the notice and directed submission of costs at project end.
- Earlier appeal led to remand; on remand the jury answered interrogatories finding Triton encountered differing conditions but that the City was not contractually obliged to compensate Triton; the interrogatories did not identify which contractual defense the jury relied on.
- Triton appealed, arguing (1) erroneous exclusion of certain testimony on damages, (2) incorrect jury instruction shifting burden on early-notice issue, and (3) improper exclusion of evidence of waiver; the court applied Ohio’s "two-issue" rule and affirmed, deeming any error harmless.
Issues
| Issue | City’s Argument | Triton’s Argument | Held |
|---|---|---|---|
| 1. Whether exclusion of witness testimony about damages was reversible error | Trial court rulings proper; any error harmless because alternative dispositive defense supported verdict | Exclusion prejudiced Triton’s ability to prove damages | Any alleged error harmless under the two-issue rule; judgment affirmed |
| 2. Whether jury instruction should have placed burden on City re: early-notice provision | Jury was properly instructed; City pleaded independent defenses including failure to exhaust dispute-resolution | City bore burden on early-notice; instruction error deprived Triton of relief | Even if instruction erred, two-issue rule makes error harmless because another independent defense supported verdict |
| 3. Admissibility of evidence that City waived strict compliance with notice/dispute procedures | Waiver argument was untimely and was not preserved; admission not required | City waived notice and dispute steps via Jones’s direction; evidence should have been admitted | Trial court’s rulings stand; waiver argument was not properly raised earlier and, regardless, any error is harmless under two-issue rule |
| 4. Whether the two-issue rule applies (are early notice and dispute-resolution non-independent?) | Two separate, independent defenses existed (lack of early notice; failure to comply with tiered dispute process); jury’s interrogatories did not reveal which defense decided case | Defenses are interdependent because step 1 presupposes early notice; jury’s interrogatory answers are not a general verdict | Two-issue rule applies: because the jury’s mental process was not tested, court presumes verdict rests on the valid defense (failure to comply with dispute-resolution), rendering other errors harmless |
Key Cases Cited
- Lucarell v. Nationwide Mut. Ins. Co., 97 N.E.3d 458 (Ohio 2018) (describing the two-issue rule and presumption when a general verdict is returned)
- Hampel v. Food Ingredients Specialties, Inc., 729 N.E.2d 726 (Ohio 2000) (application of two-issue/two-defense principle when verdict is general)
- Wagner v. Roche Laboratories, 709 N.E.2d 162 (Ohio 1999) (discussing prejudice requirement for reversal and assessment of errors)
- H.E. Culbertson Co. v. Warden, 175 N.E. 205 (Ohio 1931) (early articulation of the rule that error on one issue is disregarded if another dispositive issue was tried free from error)
- State ex rel. American Subcontractors Assn., Inc. v. Ohio State Univ., 950 N.E.2d 535 (Ohio 2011) (procedural-default principle that arguments raised first in a reply brief need not be considered)