In B&B Contrs. & Developers, Inc. v. Olsavsky Jaminet Architects, Inc., 984 N.E.2d 419 (Ohio Ct. App. 2012), available here, the Ohio Court of Appeals affirmed in part and reversed in part a verdict in favor of a contractor against its own architect. The contractor built an ice rink pursuant to a design build contract. Its architectural firm subcontracted portions of the design work to various design subs. The contractor was successfully sued by the owner because of claims the rink was moldy due to improper design. Contractor in turn sued its architect and won based on a professional negligence claim.
Contractor appealed the trial court's refusal to award the attorneys' fees contractor had been forced to pay to the ice rink owner, holding these constituted attorneys' fees that were not awardable to contractor in a professional negligence action. Contractor argued they were not attorneys' fees, but instead were damages since they were not the contractor's fees but instead a measure of the losses it suffered due to its architect's negligence. The appellate court agreed, reversing the trial court's ruling on the attorneys' fees contractor paid to the owner and finding them recoverable in a negligence claim as a measure of the contractor's damages.
Contractor also appealed the earlier dismissal of its contract claim as being repetitive of the professional negligence claim. The appellate court agreed but warned contractor if it remanded on this basis, the court would require a new trial since the claims were so intertwined. Contractor at oral argument dropped this claim, and the appellate court did not address it to its conclusion in the decision.
Finally, the court addressed the architect's cross appeal and rejected each argument in turn, most notably architect's argument that in order to prove damages for construction claims, one must prove both diminution in value, and the cost of repair, and the lowest damage amount prevails. The court of appeals rejected this argument, finding the diminution in value showing is no longer a requirement under Ohio law. The design firm nevertheless argued that the elimination of the diminution in value proof requirement was only limited to commercial properties, and the court found this to be a meaningless distinction, thus officially extending the exemption to all properties.
