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Inc. v. Reginella Construction Co., Ltd.

Court of Appeals of Ohio, Eighth District

July 11, 2013

21ST CENTURY CONCRETE CONSTRUCTION, INC. PLAINTIFF-APPELLEE
v.
REGINELLA CONSTRUCTION COMPANY, LTD., ET AL. DEFENDANTS-APPELLANTS

JOURNAL ENTRY AND OPINION

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-779703

ATTORNEYS FOR DEFENDANT-APPELLANT REGINELLA CONSTRUCTION COMPANY, LTD. Steven R. Hobson, II Leiby Hanna Rasnick Towne Evanchan Palmisano & Hobson, L.L.C.

ATTORNEYS FOR DEFENDANT-APPELLEE TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA Audrey E. Varwig Dickie, McCamey & Chilcote, P.C, Alan Torrance Dickie, McCamey & Chilcote, P.C.

ATTORNEYS FOR PLAINTIFF-APPELLEE R. Russell O'Rourke Scott R. Sylkatis O'Rourke & Associates Co., L.P.A.

ATTORNEYS FOR OHIO TURNPIKE COMMISSION Peter J. Comodeca Ronald M. McMillan Calfee, Halter & Griswold, L.L.P. The Calfee.

BEFORE: Stewart, A.J., S. Gallagher, J., and EA. Gallagher, J.

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, ADMINISTRATIVE JUDGE.

{¶ 1} Plaintiff-subcontractor 21st Century Concrete Construction, Inc., brought this breach of contract action against defendant-general contractor Reginella Construction Co., Ltd., alleging that Reginella breached a subcontract by making oral changes to a work order but refusing to pay for those changes. 21st Century also named surety Travelers Casualty & Surety Co. of America as a defendant, alleging that Travelers refused to pay 21st Century on a performance and payment bond that it issued to Reginella. The court, recognizing that arbitration proceedings had been initiated between 21st Century and Reginella, stayed the action. It also ordered that Travelers participate in the arbitration because Travelers, as surety, was in privity with Reginella and might be bound by any decision issued by the arbitrator. Reginella appeals, arguing that the court erred by ordering Travelers to participate in the arbitration because Travelers is not a party to the arbitration agreement, it is not in privity with Reginella, and that the addition of Travelers to the pending arbitration would delay the proceedings between 21st Century and Reginella.

I

{¶ 2} We first consider Travelers' argument that Reginella lacks standing to argue that the court improperly ordered Travelers to arbitrate 21st Century's claim on the bond. That claim, argues Travelers, is separate from 21st Century's breach of contract claim against Reginella, so Reginella has no standing to complain about an order that does not affect it. Reginella maintains that including Travelers in the arbitration will affect it by forcing it to incur additional time and expense during that proceeding.

A

{¶3} Regardless of whether Reginella has standing to argue that the court erred by ordering Travelers to participate in the arbitration, Reginella cannot be heard to complain about that order because it invited the error by specifically requesting that Travelers be included in any order compelling arbitration.

{¶ 4} '"Invited error' arises when a party tries to take advantage of an error that the party induced the trial court to make." State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 471, 692 N.E.2d 198 (1998). The invited error doctrine is applied when counsel is "actively responsible" for the trial court's error. St ...


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