New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng. Inc. , 2017 Ohio 8522 ( 2017 )

[Cite as New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng. Inc., 2017-
Ohio-8522.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
NEW RIEGEL LOCAL SCHOOL
DISTRICT, BOARD OF EDUCATION,
CASE NO. 13-17-04
PLAINTIFF-APPELLANT,
-and-
STATE OF OHIO,
PLAINTIFF-APPELLEE,
v.
OPINION
THE BUEHRER GROUP
ARCHITECTURE & ENGINEERING,
INC., ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Seneca County Common Pleas Court
Trial Court No. 15 CV 0115
Judgment Affirmed in Part, Reversed in Part
Date of Decision: November 13, 2017
APPEARANCES:
Christopher L. McCloskey and Tarik Kershah for Appellant
Michael J. Valentine for Appellees, The Buehrer Group Architecture &
Engineering, Inc. and Estate of Huber H. Buehrer
Case No. 13-17-04
WILLAMOWKSI, J.
{¶1} Plaintiff-appellant New Riegel Local School District Board of
Education (“the School”) brings this appeal from the judgment of the Court of
Common Pleas of Seneca County granting the judgment on the pleadings filed by
defendants-appellants the Buehrer Group Architecture & Engineering, Inc. (“the
Group”), the Estate of Huber H. Buehrer (“the Estate”) (collectively known as “the
Buehrer Group”). For the reasons set forth below, the judgment is affirmed in part
and reversed in part.
{¶2} This case arises from the construction of a new Kindergarten through
12th Grade School Facility Project (“the Project”) built as part of the Ohio Classroom
Facilities Assistance Program. Doc. 2. As a result of the Project, the School entered
into contracts with multiple contractors starting in February of 2000. Id. One of
these contractors was the Buehrer Group. Id. The Group contracted with the school
to provide professional design services for the Project. Id. at Ex. A. The School
began occupying the school building on December 19, 2002, Doc. 88, Ex. K. The
State issued a Certificate of Completion transferring all of the interest of the State
in the project to the School on March 3, 2004. Doc. 24.
{¶3} Over time, the School had issues with the facilities, including but not
limited to condensation and moisture intrusion allegedly caused by design and
construction errors. Doc. 2. A complaint was filed by the School on April 30, 2015.
Id. The complaint was brought in the name of the School with the State of Ohio
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and OSFC as involuntary plaintiffs. Id. The complaint named the Buehrer Group,
Studer-Obringer Inc. (“SOI”), Charles Construction Services (“CCS”), and
American Buildings Company as defendants. Id. The complaint alleged in Count
One that the Group breached its contract by failing to perform in accord with
professional standards by failing “to properly design the roofing system and
through-wall flashing system for the Project in a manner which prevented moisture
intrusion, heat loss, and condensation related issues, [failing] to properly observe
and report its findings related to defective work, [failing] to make appropriate
recommendations for repair and improvement, and [failing] to comply with all state
and local statutory requirements.” Id. at 7. The complaint also claimed that the
Estate was liable for the debts of the Group because Hubert H. Buehrer acted as a
promoter of an unincorporated entity. Id. at 8. The Buehrer Group filed its answer
to the complaint on June 3, 2015, denying the allegations in the complaint and listing
several affirmative defenses. Doc. 21 and 22. The Estate specifically claimed that
the claim was barred by R.C. 2117.06. Doc. 22 at 10. On September 8, 2015, the
Buehrer Group filed a motion for judgment on the pleadings. Doc. 36. The School
filed its response on September 25, 2015. Doc. 45.
{¶4} On February 10, 2016, the School filed an amended complaint in its
own name and that of the State. Doc. 62. The amended complaint raised the same
alleged breach of contract claims against the Buehrer Group as the first complaint
did. Doc. 62. The Buehrer Group filed its answer to the amended complaint on
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February 23, 2016. Doc. 67. The answer denied the allegations of the amended
complaint and raised the same affirmative defenses. Id. On February 29, 2016, The
Buehrer Group filed a motion for judgment on the pleadings pursuant to Civil Rule
12(C). Doc. 71. The Buehrer Group claimed that the claims raised by the School
were time-barred by the statute of repose as set forth in R.C. 2305.131(A)(1), by the
statute of limitations for professional negligence, and by R.C. 2117.06. Id. The
School filed its memorandum in opposition to this motion on March 29, 2016. Doc.
79. The Buehrer Group then filed its reply to the memorandum of the School. Doc.
80.
{¶5} The School then filed a second amended complaint on June 10, 2016.
Doc. 88. This complaint added Ohio Farmers Insurance Co. (“OFIC”) as a
defendant as the surety for SOI, but did not make any changes to the claims against
the Buehrer Group. Id. The Buehrer Group filed its answer to the second amended
complaint on June 29, 2016. Doc. 99. On July 25, 2016, The Buehrer Group
renewed its motion for judgment on the pleadings pursuant to Civil Rule 12(C).
Doc. 108. The School filed its memorandum in opposition to the motion on July
29, 2016. Doc. 109. A reply was filed by the Buehrer Group on August 3, 2016.
Doc. 110. On August 24, 2016, the trial court granted the Buehrer Group’s motion
for judgment on the pleadings. Doc. 117. This judgment was based upon the statute
of repose as set forth in R.C. 2305.131. Id. On January 25, 2017, the School filed
its notice of appeal from this judgment granting the Buehrer Group’s motion to
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dismiss, as well as other judgments in the case. Doc. 137. This judgment was
assigned appellate case number 13-17-04. The other judgments were assigned case
numbers 13-17-03 (dismissal of case against SOI), 13-17-05 (dismissal of the State
as a party), and 13-17-06 (dismissal of case against CCS and OFIC). On appeal, the
School raises the following assignments of error.
First Assignment of Error
The trial court erred in dismissing [the School’s] breach of
contract claims against [SOI], [CCS], and [The Buehrer Group],
by finding that the Ohio Statute of Repose, R.C. 2305.131, barred
[the School’s] claims for breach of contract.
Second Assignment of Error
The trial court erred in dismissing the claims against [SOI] and
[CCS] as those contracts were entered with [the State] and
general limitations periods do not apply to the State of Ohio.
Third Assignment of Error
The trial court erred in finding that [the School] does not have
authority to bring its action in the name of [the State].
Fourth Assignment of Error
The trial court erred in dismissing [the School’s] claims against
[OFIC], as surety for [SOI], on the basis that [the School’s] surety
bond claim against [OFIC] was barred by the virtue of the
dismissal of the claims against [SOI].
As only the first assignment of error applies to the Buehrer Group, that is the only
assignment of error that will be addressed in this opinion. The remaining
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assignments of error will be addressed in Appellate Case Numbers 13-17-03, 13-
17-05, and 13-17-06 respectively.
{¶6} In the first assignment of error, as it applies to the Buehrer Group, the
School claims that the trial court erred in dismissing with prejudice the claims
against the Group and the Estate. The dismissal was granted by the trial court
pursuant to the statute of repose which limits actions for damages based upon
defective and unsafe conditions in improvements to real property.
(A)(1) Notwithstanding an otherwise applicable period of
limitations specified in this chapter or in section 2125.02 of the
Revised Code and except as otherwise provided in divisions
(A)(2), (A)(3), (C), and (D) of this section, no cause of action to
recover damages for bodily injury, an injury to real or personal
property, or wrongful death that arises out of a defective and
unsafe condition of an improvement to real property and no cause
of action for contribution or indemnity for damages sustained as
a result of bodily injury, an injury to real or personal property,
or wrongful death that arises out of a defective and unsafe
condition of an improvement to real property shall accrue against
a person who performed services for the improvement to real
property or a person who furnished the design, planning,
supervision of construction, or construction of the improvement
to real property later than ten years from the date of substantial
completion of such improvement.
***
(G) As used in this section, “substantial completion” means the
date the improvement to real property is first used by the owner
or tenant of the real property or when the real property is first
available for use after having the improvement completed in
accordance with the contract or agreement covering the
improvement, including any agreed changes to the contract or
agreement, whichever occurs first.
R.C. 2305.131.
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Case No. 13-17-04
{¶7} The School argues that the statute of repose does not apply because they
are bringing suit for breach of contract, not for a tort and the Statute of Repose does
not apply to breach of contract claims. In support of this argument the School cites
to Kocisko v. Charles Shutrump & Sons Co. et al., 21 Ohio St.3d 98, 488 N.E.2d
171 (1986), which held that the Statute of Repose did not apply in that case because
it was a breach of contract case, not a tort case and the Statute of Repose does not
apply to a contract case.1 In Kocisko, the church took occupancy of the building
on October 25, 1970. The roof of the building leaked from the date of its
installation. The church then filed suit on November 6, 1981. The church brought
suit for breach of contract alleging that the defendants failed to install the roof in a
workmanlike manner. The Supreme Court of Ohio affirmed the judgment of the
appellate court reversing summary judgment on the grounds that the statute of
repose did not apply to cases based upon a breach of contract. Id. at 99. The School
argues that since the current statute contains similar language to the one addressed
by Kocisko, the same rule should be applied.
{¶8} A clear reading of the statute does not support this conclusion. The
statute specifies that NO cause of action for damages to real property, resulting from
the improvement to that real property, can be brought after 10 years from the time
1
This court notes that the case was based upon a prior version of R.C. 2305.131 that is no longer
in effect, but that the language is similar to the current version.
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the improvements were substantially completed. R.C. 2305.131. The statute does
not limit it to claims for torts only. Regardless of what the School labels this claim,
the School is trying to collect damages resulting from an improvement, i.e. the
Project, to real property. The statute specifically prohibits this. Thus, it would
appear that the statute specifically denies the claims in this case. However, the
Ohio Supreme Court has interpreted this language as applying to tort claims only.
We are required to follow the ruling of the Supreme Court unless either the
legislature or the Supreme Court chooses to modify it. Given the Supreme Court’s
holding in Kocisko, we find that the statute of repose does not apply to claims for
breach of contract. The School premised its claims as breach of the terms in the
contract. “In reviewing whether a motion to dismiss should be granted, we accept
as true all factual allegations in the complaint.” Perrysburg Twp. v. Rossford, 103
Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. “Under de novo analysis, we
are required to ‘accept all factual allegations of the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.’ ” Pearsall v. Guernsey, 3d
Dist. Hancock No. 5-16-25, 2017-Ohio-681, ¶ 9 (citations omitted). Viewing the
allegations in a light most favorable to the School, we must find that the trial court
erred in granting the motions to dismiss on the pleadings pursuant to the statute of
repose. As the Supreme Court stated in Kocisko, “this court expresses no opinion
as to the merit of any of the plaintiff’s claims.” Kocisko, supra at 99. This court
merely holds that judgment on the pleadings in this case, as pled, is inappropriate.
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{¶9} Although the statute of repose does not appear from the pleadings to
apply in this case, making judgment on the pleadings improper, that is not the end
of the analysis as it applies to the Estate. The motion for judgment on the pleadings
also stated that the case against the estate should be dismissed pursuant to R.C.
2117.06(C). All claims made against an estate must be presented within six months
of the death of the decedent. R.C. 2117.06(B). “[A] claim that is not presented
within six months after the death of the decedent shall be forever barred as to all
parties, including, but not limited to, devisees, legatees, and distributees. No
payment shall be made on the claim and no action shall be maintained on the claim
* * *.” R.C. 2117.06(C). In this case, the decedent’s date of death was August 10,
2014. Doc. 88. Six months from the date of death is February 10, 2015. The School
served notice of the claims on the executor on February 11, 2015. Doc. 88. This is
past the six-month limit imposed by statute. The School argues that the time did
not start to run until August 11, 2014, pursuant to Civil Rule 6(A). However, that
day is included in the calculation making the last day notice could be given February
10, 2015. Since the School did not give notice by February 10, 2015, it is barred
from pursuing a claim against the Estate. Thus, as to the Estate, the dismissal based
upon the pleadings was ultimately correct. The first assignment of error is sustained
as to the Group and the effect of the statute of repose, but is overruled as to the
Estate and the effect of R.C. 2117.06(C).
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{¶10} Having found error prejudicial to the Appellant in the particulars
assigned and argued as it applies to the Group, the judgment of the Court of
Common Pleas of Seneca County is reversed and the matter is remanded for further
proceedings in accord with this opinion. Having found no error prejudicial to the
Appellant in the particulars assigned and argued as it applies to the Estate, the
judgment of the Court of Common Pleas of Seneca County is affirmed.
Judgment Affirmed in Part,
Reversed in Part
ZIMMERMAN and SHAW, J.J., concur.
/hls
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