2020 Ohio 945
Ohio Ct. App.2020Background
- In 1985 Hal Homes built a condominium later owned by Makrauer; the original owner occupied it in 1985 and Makrauer purchased it in 1987.
- Makrauer filed a negligence complaint in November 2018 alleging Hal Homes failed to connect wood framing to the concrete foundation, causing movement, foundation cracking, water intrusion, and about $97,500 in repairs.
- Makrauer alleged the condominium was never "substantially completed" because of the defects, so the construction statute of repose had not begun to run.
- Hal Homes moved to dismiss under Civ.R. 12(B)(6), arguing the claim was barred by Ohio’s 10-year construction statute of repose, R.C. 2305.131.
- The trial court granted the motion; Makrauer appealed, challenging the interpretation of R.C. 2305.131(G)’s definition of "substantial completion."
- The appellate court reviewed the complaint de novo, interpreted the statute’s plain language, and affirmed dismissal as time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute of repose bars Makrauer’s claim | Makrauer: Repose never began because the improvement was never substantially completed | Hal Homes: Substantial completion occurred in 1985 when the original owner first used/occupied the unit, so repose expired before 2018 | Court: Claim barred; dismissal affirmed (substantial completion occurred in 1985) |
| Interpretation of R.C. 2305.131(G): Does the modifier "after having the improvement completed in accordance with the contract..." apply to both clauses? | Makrauer: The completion phrase modifies both the "first used" and "available for use" clauses, so substantial completion never occurred | Hal Homes: The completion phrase modifies only the latter "available for use" clause; first use by owner is independently sufficient | Court: "Or" is disjunctive; modifier applies only to latter clause; the earlier event (owner occupancy) controls, so substantial completion occurred in 1985 |
Key Cases Cited
- Thomas v. Othman, 99 N.E.3d 1189 (1st Dist. 2017) (standard for Civ.R. 12(B)(6) review)
- CTS Corp. v. Waldburger, 573 U.S. 1 (U.S. 2014) (distinguishes statute of repose from statute of limitations)
- Union Local School Dist. v. Grae-Con Constr., Inc., 137 N.E.3d 122 (7th Dist. 2019) (application of construction statute of repose)
- O’Toole v. Denihan, 889 N.E.2d 505 (Ohio 2008) (interpretive canon: disjunctive "or" gives separate meanings)
- State v. Lowe, 861 N.E.2d 512 (Ohio 2007) (statutory interpretation: follow plain language to determine legislative intent)