2014 Ohio 3518
Ohio Ct. App.2014Background
- Cooks sued multiple subcontractors and suppliers for defects in a home built by a general contractor, DiYanni Brothers, alleging contract and tort-based claims.
- DiYanni entered into future-construction contracts with subcontractors; appellants’ claims arise from those contractor agreements.
- DiYanni settled with the Cooks and assigned to them rights against contractors; the assignment did not confer rights against all defendants.
- Appellants later pursued claims against Pomar, Gale Insulation, Remedics, Colonial Heating, and others; several defendants moved for judgment on the pleadings or summary judgment.
- The trial court held the claims were time-barred under a four-year statute of limitations and did not toll under R.C. 1312.08 or save under R.C. 2305.19; this appeal followed.
- Court must determine appropriate statute of limitations, tolling, and savings statute applicability for claims arising from future construction contracts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What statute of limitations governs breach of contract/workmanlike claims? | Cook asserted 15-year contract-based limits. | Defendants argued 4-year tort limit under R.C. 2305.09(D). | Ex contractu; 15-year contract limit applies; remand for proper terms. |
| Does R.C. 1312.08 tolling apply to these claims? | Notice to DiYanni tolled limitations under 1312.08. | DiYanni not a 'general contractor' under 1312; tolling not available. | No tolling; 1312.08 inapplicable. |
| Is the savings statute R.C. 2305.19 applicable to revive claims? | Original 2008 action and 2012 refiling involve same parties/claims. | Assignee-patent issue; not the same party as original plaintiff. | Savings statute inapplicable; assignee not the same party. |
Key Cases Cited
- Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (Ohio 1982) (duty to perform in a workmanlike manner arises by law; action is tort.)
- Kishmarton v. William Bailey Constr., Inc., 93 Ohio St.3d 226 (Ohio 2001) (future-construction contract liquor; breach arising ex contractu.)
- Jones v. Centex Homes, 132 Ohio St.3d 1 (Ohio 2012) (duty to construct workmanlike is a legal duty not waivable.)
- Doe v. First United Methodist Church, 68 Ohio St.3d 531 (Ohio 1994) (to determine true nature of acts, tort vs. contract.)
- Natl. Fire Ins. Co. v. Joslyn Mfg. Co., 25 Ohio App.2d 13 (Ohio 1971) (savings statute requires same parties in original/refiling action.)
- Children's Hosp. v. Ohio Dept. of Welfare, 69 Ohio St.2d 523 (Ohio 1982) (savings statute applicability depends on substantially same action.)