Charles Fazio & Associates Inc. v. Kenneth E. Miesen, 96-LW-2237
| Decision Date | 25 April 1996 |
| Docket Number | 96-LW-2237,68596 |
| Court | Ohio Court of Appeals |
| Parties | CHARLES FAZIO & ASSOCIATES INC., Plaintiff-Appellee v. KENNETH E. MIESEN, ET AL., Defendants-Appellants |
Civil appeal from Common Pleas Court Case No. 236824.
For plaintiff-appellee: Douglas A. King, 34 South Main Street Chagrin Falls, Ohio 44022.
For defendants-appellants: Robert E. Matyjasik, MITTENDORF & LASKO, 24441 Detroit Road, Suite 300, Westlake, Ohio 44145.
Defendants-appellants Kenneth E. Miesen and Jane B. Miesen appeal from the trial court order which denied their motion to vacate or to modify an arbitration award in favor of plaintiff-appellee Charles Fazio & Associates.
In early 1988, appellants purchased a home in Rocky River, Ohio which they intended to have extensively remodeled. Appellee is an architectural firm which had been recommended to appellants by some friends. At the time of the purchase of the home, appellant Kenneth Miesen contacted Charles Fazio, the principal of appellee, regarding the project. The two men thereafter had several discussions.
Early in these discussions, Charles Fazio presented Miesen with an architectural plan Miesen liked. Fazio also presented Miesen with a form which indicated the firm could provide two types of architectural services. The first. type entailed only a "standard hourly billing rate." tinder this heading was set forth the hourly fees for the employees appellee used on a project, viz: 1) the principal; 2) other registered architects; and 3) a draftsman. The form further indicated that with this type of service, "authorized engineers (sic) services" would be billed "at cost," "out-of-pocket expenses" such as "blue printing" would be billed "at cost," and "land surveys will be quoted on a per job basis, depending on the scope of the project."
The second type of service was labeled "full-service," was for construction projects "from $50,000 to $100,000" and stated that the fee for "new construction," would be "8% of Construction Cost" whereas the fee for renovation or additions would be "15% of Construction Cost. " Both Miesen and Fazio were aware that because of the extensiveness of the proposed renovation of the house, the construction cost of the Miesen project would be well over fifty thousand dollars. However, Miesen was unwilling to pay fifteen percent to Fazio. Therefore, other figures were proposed and debated. The figure most often mentioned was seven and one-half percent of "construction cost "
While Miesen and Fazio continued to try to come to some agreement on the fee for Fazio's proposed architectural services, Miesen requested Fazio recommend a general contractor for the project. Fazio recommended Ben Schraegel, with whom he had worked in the past. Miesen eventually negotiated a separate contract with Schraegel for the actual construction work.
The work commenced in April 1988. From April 1988 to September 1988, while the remodeling was in progress, appellee sent monthly invoices to Miesen. The invoices specified hourly work done by Fazio and other architects and draftsmen on the project along with out-of-pocket expenses incurred for the preceding month. Miesen paid each of these invoices in full.
In October 1988, Miesen paid only a portion of the invoice amount billed to him by appellee. Tn November 1988, Miesen again paid only a portion of the invoice amount. Both balances were carried forward to the next month's invoice. Fazio contacted Miesen about the matter; Miesen indicated his belief that appellee had received enough payment for services rendered on the project.
Appellee completed its work on the project by April 1989. That month, appellee sent Miesen an invoice which reflected the final hours of work done by Fazio and a draftsman, along with the unpaid balance carried forward from the previous invoices. The total amount due appellee from appellants was stated on the invoice to be $7,238.50.
The parties thereafter continued to dispute the amount of payment which appellants owed appellee. Ultimately, on August 10, 1992, appellee filed an action against appellants in the Cuyahoga County Court of Common Pleas.
Appellee's complaint alleged two claims for relief. The first stated appellants were "indebted to [appellee] in an amount equal to 7 1/2% of the construction costs incurred" in the project, which costs were ,in excess of $400,000.00." Appellee prayed for "an accounting and payment of the balance due."
The second claim for relief was on the account; thusy appellee demanded "Judgment . . . in an amount of at least $70,238.50, together with interest, costs expended, and attorney's fees."
Appellants responded with an answer denying the pertinent allegations of the complaint, and a counterclaim, which was later amended. In their amended counterclaim, appellants alleged appellee had been overpaid by $3,306.00; appellants prayed for judgment "in the sum of $3,933-25 together with . . . interest . . . ." Appellee later answered the counterclaim with a denial of its allegations.
Discovery proceeded in the action. After several pretrials, the trial court issued a judgment entry which stated in pertinent part:
Parties agree to Binding Arbitration. . . . [T]his case to be Arbitrated as agreed and (sic) to be selected by the parties.
The record reflects the arbitration was held on November 30, 1994. Appellants engaged the services of a court reporter for the proceedings.
On December 7, 1994, the arbitrators issued their report and award, which stated as follows:
(Underscoring in original; emphasis added.)
That same day, appellants filed in the trial court a motion "to vacate" and/or "to modify' the report and award. Appellants argued that pursuant to R.C. 2711.10(D) the decision of the arbitrators to award appellee $7,238.50 was "beyond the scope of the arbitrators' authority," and, further, that the award to appellee of $4,065.45 in interest was "wholly inconsistent with the pleadings and the facts, arbitrary, capricious, and against the manifest weight of the evidence." In support of their argument, appellants asserted appellee had withdrawn its second claim for relief prior to the arbitration proceedings.
On January 12, 1995 appellee filed a motion pursuant to R.C. 2711.09 to confirm the award. Appellants responded with a brief in opposition.
Thereafter, in a judgment entry dated January 27, 1995 but not filed until January 30, 1995, the trial court denied appellants' motion but granted appellee's motion. The entry stated the order was "final." Appellants filed a timely notice of appeal in this court from the foregoing judgment entry.
On February 23, 1995, apparently recognizing the incompleteness of the January order, the trial court issued a judgment entry nunc pro tunc, stating as follows:
After thorough review and consideration of pleadings filed in the within action, and other documentation and factual information available to the Court, it is hereby ordered that [appellee's] Motion to Vacate or Modify the Award of Arbitrators is denied. [Appellants'] Motion to Confirm the Report and Award of Arbitrators is granted. Accordingly, judgment is entered in favor of the [appellee] and against the [appellants], jointly and severally, in accord with the terms of the arbitration award and in the amount of $11,303.95. Judgment shall issue and interest shall accrue effective January 27, 1995. Said judgment shall be final.
(Emphasis added.)
This court later permitted appellants to amend their original notice of appeal to perfect an appeal from the nunc pro tunc judgment entry. Prior to addressing the merits of appellants' appeal, however, a jurisdictional issue raised at oral argument must first be addressed.
There was a question concerning the trial court's authority to issue the nunc pro tunc judgment entry of February 23, 1995 since an appeal had already been filed in this court. This court concludes the action was proper.
Initially, it must be noted that the trial court's January order, although purporting to be "final," was insufficient since it failed to state the substance of the arbitration award. Although the order indicated the arbitrators' award was confirmed, the necessary specifics of the award were not set forth in the judgment entry. See, e.g., Civ.R. 54(B); Millies v. Millies (1976), 47 Ohio St.2d 43; Fireman's Fund Ins. Co. v. BPS Co. (1982), 4 Ohio App.3d 3; cf., Rogoff v. King (1993), 91 Ohio App.3d 438.
The trial court, apparently recognizing this mistake, later issued the nunc pro tunc order to supply the omissions, viz., that judgment had been rendered for appellee on its complaint, that the amount of the judgment was the total of $7,238.50 and the interest computed on that amount from April 12, 1989 to the date of the arbitrators decision on November 30, 1994, and that appellee was also awarded judgment on appellants' counterclaim. Since a perusal of the February 23, 1995 order reveals it merely set forth with greater specificity what the trial court's January order had already established, and did rot change the...
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