Gary Moderalli Excavating, Inc. v. Trimat Constr., Inc.
2013 Ohio 1701
Ohio Ct. App.2013Background
- Moderalli Excavating, Inc. subcontracted for Trimat Construction, Inc. on the Newcomerstown landfill cap project.
- Bids were formed with Trimat providing the bond; Moderalli submitted the bid under Trimat’s name.
- Project progress included payments to Trimat, with deductions for bond premiums, and suspense over withheld amounts.
- Moderalli claimed nonpayment and sought relief under bond and the Ohio Prompt Payment Act (R.C. 4113.61).
- Trimat argued disputed claims and delays, including EPA-related extra work and change orders, affecting payments.
- A jury returned verdicts for Moderalli; post-trial, the court reduced damages and denied some prompts-payment and joint-liability relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prompt Payment Act interest and fees | Moderalli entitled to 18% interest and fees when underpayment occurred. | Withholding was in good faith to resolve disputed claims; no interest/fees required. | First assignment overruled; statutory interest/fees awarded where nonpayment found in violation. |
| Joint and several liability of Fidelity | Surety Fidelity liable to the extent Trimat is liable; joint/several liability should be certified. | Record did not present joint/several issue to jury; certification inappropriate. | Second assignment overruled; joint/several liability not properly raised or proven at trial. |
| Timeliness of JNOV motion | JNOV timely under Civ.R. 50(B) based on post-judgment events. | Motion filed outside 14 days of original judgment; nunc pro tunc entry retroactivity questioned. | Third assignment sustained; JNOV not timely filed. |
| Grant of JNOV on wrongful termination | JNOV improper because timely motion was not granted; jury verdict should stand. | With timely JNOV not proper, merits support for reversal on termination issue. | Fourth assignment sustained; JNOV on termination improper due to timing issue. |
| Damages remittitur for breach of contract | Jury award of $903,308.75 should stand as full contract damages. | Damages must reflect completion percentage and avoid manifest weight of the evidence; remittitur appropriate. | Fifth assignment sustained; court erred in reducing the jury’s damage award without remittitur procedure. |
Key Cases Cited
- Masiongale Elec.-Mechanical, Inc. v. Constr. One, Inc., 102 Ohio St.3d 1 (Ohio 2004) (Prompt Payment Act; prevailing party may recover fees and interest)
- C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279 (Ohio 1978) (manifest weight and sufficiency review standard)
- Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677 (Ohio 1998) (directed verdict and JNOV standards in Ohio)
- Menda ex rel. Justin v. Springfield Radiologists, Inc., 2002-Ohio-6785 (Ohio) (remittitur authority and standards)
- Chester Park Co. v. Schulte, 120 Ohio St. 273 (Ohio 1929) (remittitur four criteria)