Being unable to agree with the majority opinion, I respectfully dissent.
Civ.R. 24(A)(2), pertaining to intervention of right, provides:
"Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
Although the majority opinion first concludes that motion of the United States Department of Labor ("department") to intervene was not timely, the trial court's opinion did not discuss the timeliness issue, instead focusing on the department's interest in the property. Even though the department submitted the application after judgment, postjudgment intervention nonetheless may be permitted. Because in the exercise of its discretion the trial court could have found the department's motion timely, I cannot affirm the trial court's decision based on an assumption that the motion was untimely. See Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 352, 29 OBR 479, 480-481, 505 N.E.2d 1010, 1012-1013; Sharp v. Kuhn (Oct. 4, 1978), Fayette App. No. 78-CA-10, unreported.
Concerning the department's interest relating to the property of this action, the trial court concluded that the department had no interest because "the property that is the subject of this case is the money that ODOT detained pursuant to Plaintiff's lien." I disagree, as the department has an interest in ensuring that the funds ODOT withheld for Davis-Bacon violations and for the lien of Gray Road Fill, Inc. ("Gray Road"), although not segregated and not *Page 819 sufficient to meet both obligations, are first disbursed toward federal labor law violations. See Jamestown Village Condo.Owners Assn. v. Market Media Research, Inc. (1994), 96 Ohio App.3d 678,694, 645 N.E.2d 1265, 1276 (sufficient interest in property to intervene because promissory note held by intervenor was secured by mortgage on the subject property).
The Davis-Bacon Act, Sections 276a to 276a-5, Title 40, U.S. Code, provides that every contract for construction, alteration, and/or repair of public buildings or public works of the United States shall contain stipulations of the minimum wages that "the contractor * * * shall pay all mechanics and laborers employed directly upon the site of the work." Section 276a(a), Title 40, U.S.Code. The Administrator of the Wage and Hour Division, Employment Standards Administration, United States Department of Labor determines the required minimum wages. Section 1.2, Title 29, C.F.R.; Universities Research Assn.v. Coutu (1981), 450 U.S. 754, 757, 101 S.Ct. 1451, 1454-1455,67 L.Ed.2d 662, 667.
The Act also requires that public works contracts stipulate that "there may be withheld from the contractor so much of accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by such laborers and mechanics and not refunded to the contractor, subcontractors, or their agents." Section 276a(a), Title 40, U.S.Code. These public contracts also contain a provision authorizing contracting agencies, like ODOT, to withhold funds:
"(2) Withholding. [ODOT] shall * * * upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract * * * so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics * * * employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic * * * all or part of the wages required by the contract, [ODOT] may, after written notice to the contractor * * *, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased." Section 5.5(a)(2), Title 29, C.F.R.
The regulations implementing the Act further mandate that a federal agency providing assistance through loans, grant, loan guarantees, or insurance take such action as may be necessary to suspend payments to the general contractor. Section 5.9, Title 29, C.F.R.; Universities Research, supra, 450 U.S. at 757-758,101 S.Ct. at 1454-1455, 67 L.Ed.2d at 667-668. Here, upon notice by the department of suspected violations, ODOT withheld money due S.O.S. as general contractor. See, also, Winzeler ExcavatingCo. v. Brock (N.D. Ohio 1988), *Page 820 694 F. Supp. 362, 363 (Ohio EPA withheld payments to general contractor for Davis-Bacon violations).
Once the contractor's payments are withheld and accompanying administrative proceedings determine that the general contractor did not pay its employees the contractual minimum wage, the Comptroller General of the United States pays the general contractor's undercompensated laborers and mechanics from the withheld funds. Section 276a-2(a), Title 40, U.S.Code. If the funds withheld from the general contractor are insufficient to reimburse all the laborers and mechanics, they possess a private right of action against the general contractor's surety. Section 276a-2(b), Title 40, U.S.Code; Universities Research, supra,450 U.S. at 754-759, 101 S.Ct. at 1451-1456,67 L.Ed.2d at 662-668.1
Because the department in enforcing the Act has an interest in a portion of the funds ODOT withheld from S.O.S. as potential compensation for laborers and material suppliers, for purposes of Civ.R. 24(A), the department demonstrates a sufficient interest relating to the funds withheld from S.O.S.
The majority opinion, however, concludes the department cannot have any protected interest in the withheld funds because it did not file an Ohio mechanic's lien. Without determining whether the department properly could file R.C. 1311.26 and1311.28 liens, the availability of a state remedy does not require the department to abandon the remedy provided by the Act and the S.O.S./ODOT contract entered into pursuant to that Act; the Act and contract specifically state that funds may be withheld for potential distribution to undercompensated laborers and material suppliers. See, also, Sears, Roebuck Co. v. J-ZRealty Co. (Dec. 18, 1975), Franklin App. No. 75AP-358, unreported (subcontractor still could claim an interest in property for Civ.R. 24 intervention even though he did not perfect a lien).
Indeed, the department arguably has a priority in the withheld funds, despite the mechanics' lien Gray Road filed. Because mechanic's liens cannot encumber public property, R.C.1311.28 liens attach to a public fund set aside for the payment of subcontracts. A subcontractor with an R.C. 1311.28 lien may be paid from the fund only "to the extent the owner still owes the prime contractor on the project." In re William CargileContr., Inc. (Bankr.S.D.Ohio 1993), 151 B.R. 854, *Page 821 857. Thus, a mechanic's lien does not attach to public funds until those funds become due and payable to the general contractor. Poenisch v. Kingsley-Dunbar, Inc. (1990), 64 Ohio App.3d 699, 582 N.E.2d 1071, paragraph two of the syllabus;Lee Turzillo Contracting Co. v. Cincinnati Metro. Hous. Auth. (1967), 10 Ohio St.2d 5, 39 O.O.2d 3, 225 N.E.2d 255 (a subcontractor's R.C. 1311.28 lien secures an "assignment pro tanto of the moneys remaining due from the owner to the principal contractor").
When the department orders that funds be withheld for violations of the Act, upon an administrative determination that the general contractor was not paying the prevailing wage, those funds never become due and payable to the general contractor; thus a subcontractor's lien cannot attach to them. See State exrel. Gen. Elec. Supply Co. v. Jordano Elec. Co. (1990), 53 Ohio St.3d 66,71, 558 N.E.2d 1173, 1177-1178 (subcontractors claims can rise no higher than those of the principal contractor); Todd R. Marti Amy R. Goldstein, Ohio Mechanics' and Materialmen's Liens (2 Ed. 1992), Section 10-12 (any public authority setoff rights are superior to the rights of lien claimants); see, also,W.R. Cooper Gen. Contr., Inc. v. United States (1987), 12 Cl.Ct. 406, 409 (money withheld by Department of Labor for alleged Davis-Bacon violations was not retention of unpaid subcontractor's money), vacated on other grounds (1988),843 F.2d 1362, 1364; In re Quinta Contractors, Inc. (Bankr.M.D.Pa. 1983), 34 B.R. 129 (payments withheld under Davis-Bacon Act are not property of general contractor's bankruptcy estate).
Notwithstanding the preference provisions of R.C. 1311.29, public authorities generally have first claim to funds otherwise due the principal contractor. Marti Goldstein, Section 10-12. Before the laborers and material supplier may receive payment, the government often may set off or recoup payment for claims against the general contractor. Covenant Mut. Ins. Co. v. AbleConcrete Pump (D.C.Cal. 1984), 609 F. Supp. 27, 30 (United States government gets to set off claims against the original contractor before payment of laborers' and material suppliers' claims against the general contractor); Amoco Oil Co. v.Southeastern Mail Transport (Fla. 1985), 628 F. Supp. 37 (where funds withheld for general contractor's violation of Service Contract Act, judgment creditor not entitled to funds until administrative proceedings concluded and employees compensated in accordance with that Act).
The majority opinion also suggests that the department cannot allege an interest in the funds because it did not proceed against S.O.S.'s payment bond. While the laborers, material suppliers, and subcontractors may sue S.O.S. on its payment bond, see Universities Research, supra, the Davis-Bacon Act provides that the department and contracting authority, ODOT, may withhold funds from payment to the general contractor. The Act does not provide a specific remedy through which the department or ODOT may proceed against S.O.S's payment *Page 822 bond for violations of the Act. See Covenant Mut. Ins., supra,609 F. Supp. at 32 (distinguishing between payment bonds, for payment of laborers and material supplier, and performance bonds, for completion of the construction).
Moreover, as necessary to a Civ.R. 24(A) intervention, the department's interest in the retained funds may, as a practical matter, be impaired if it is not allowed to intervene. Within its application to intervene, the department need not assert that its interests assuredly will be impaired; it need only assert that its interests may be practically or legally impaired.Blackburn, supra, 29 Ohio App.3d at 354, 29 OBR at 482-483,505 N.E.2d at 1014; Sears, supra. Because the funds ODOT withheld were never segregated between the competing claims here and further are insufficient to satisfy both, the department's interest may be impaired if the Act's reimbursements do not receive priority.
Finally, the department is not adequately represented by the parties to this action because Gray Road is interested in the priority and protection of its own claims, not those of the department. Jamestown Village Condo., supra,96 Ohio App.3d at 694, 645 N.E.2d at 1276; Sears, supra.
Because the subject matter of this action includes funds retained by ODOT that may be applied to violations of the Act or to Gray Road's mechanic's lien, the department's application sets forth a proper cause for intervention. The department claims an interest in the withheld funds, the interest may as a practical matter be impaired by assigning priority to the funds, and the interest is not adequately represented by Gray Road. Accordingly, the trial court erred in finding that the department lacks sufficient interest in the property. I would remand the matter to the trial court to consider the timeliness issue under Civ.R. 24(A)(2).
1 Although the Act mentions laborers' and mechanics' private right of action against the general contractor and its surety, that action exists under the Miller Act, Section 270(a), Title 40, U.S.Code. See, also, Universities Research, supra,450 U.S. at 783-784, 101 S.Ct. at 1467-1468, 67 L.Ed.2d at 682-684 (no private right of action under the Davis-Bacon Act for employees denied back wages when administrative proceedings concluded that the contract did not require the prevailing wage contract stipulations). The Miller Act provides these laborers a private right of action against the general contractor's payment bond. Suits on the general contractor's payment bond generally may be brought by any person who has furnished labor or material in the performance of the contract and has not been paid in full within ninety days.