645 N.E.2d 82 | Ohio Ct. App. | 1994
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *355 Plaintiff-appellant Gardens of Bay Landing Condominiums appeals the grant of summary judgment in favor of defendants-appellees Flair Builders, Inc., William Dorsky Associates, and Andreano Associates in a negligent construction action. Default judgment was entered against two other defendants.
Appellant assigns the following errors for review:
"I. The Trial lower [sic] court's grant of summary judgment in favor of the appellees was improper because genuine issues of material fact exist, warranting reversal.
"II. There is/are genuine issue(s) of material fact as to when appellant's causes of action in tort against all appellees arose under Sec.
"III. There is a genuine issue of material fact as to when appellant's cause of action for fraud against Flair Builders, Inc. arose under Sec.
"IV. There is a genuine issue of material fact as to when appellant's causes of action against appellees, for damage to property, arose under Sec.
"V. There are genuine issues of material fact as to what damages appellants are entitled to recover from appellees, based on their conduct.
"VI. The condominium association is the proper party to bring an action for damages to the common areas on behalf of the unit owners."
The judgment of the trial court is affirmed in part and reversed in part.
Construction of the buildings known as H, I, L, M, and N, began in 1980. The Declaration of Condominium Ownership, Bylaws of the Association and maps for buildings H and I were filed on December 31, 1980. The filings for the remaining buildings took place on June 3, 1981. The city of Westlake issued certificates of occupancy for all the buildings on August 22, 1982.
On October 22, 1985, the unit owners gained control of the Association's Board of Managers. A few days before, on October 16, damaged concrete caused by a cracked cementitious floor underlayment was discovered in one unit and replaced. On August 20 and October 15, 1986, identical damage to concrete floors required repair in two other units. All of this underlayment failure occurred on the second floor of three of the buildings. More damage was discovered in 1989 and 1990. *357 In August 1990, appellant hired an engineering firm to inspect the buildings and was informed that most, if not all, of the floors would need to be replaced. A second engineer found structural deficiencies in the framing, flooring, and foundation.
On May 9, 1991, appellant filed suit against Flair Builders alleging negligent construction and breach of fiduciary duty. It later added the other defendants. Appellant amended its second complaint to allege that defendant Andreano had negligently prepared plans, specifications, and negligently designed a lake improvement project.
After entering default judgment against two of the defendants who failed to answer, the trial court granted the summary judgment motions of the remaining defendants. Appellant appeals from those rulings.
Appellant's first assignment of error is overruled.
Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that:
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing *358
such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982),
An action for the failure of a builder to perform in a workmanlike manner is a tort sounding in negligence and is governed by the four-year statute of limitations found in R.C.
In Cincinnati Ins. Co. v. Alcorn (1993),
In Beavercreek Local Schools v. Basic, Inc. (1991),
In Aglinsky v. Cleveland Builders Supply Co. (1990),
In the instant case, damaged cement first was discovered in 1985. Two similar instances of underlayment failure occurred in 1986. All failures were identical and involved second floor units of three separate buildings. In 1990, when further problems with the underlayment in yet more units were found, appellant hired an engineering firm to inspect and investigate. Appellant was informed most, if not all, of the floors would need replacing. A second engineer found structural deficiencies in the framing, flooring, and foundation. Appellant's complaint was filed on May 9, 1991.
As in Alcorn, supra, appellant discovered and replaced the defective underlayment in 1985. The same problem was experienced in two other buildings the following year. At that point, appellant should have known there was a widespread problem with the underlayment. Appellant did not retain the engineers for nearly four years after the third instance of failure.
Appellant knew it had been damaged after the third instance occurred on October 15, 1986. The four-year statute of limitations began to run at that point. Appellant did not file suit until May 9, 1991 and, therefore, suit was barred by the statute of limitations.
In 1988, appellant hired Andreano for its lake improvements project. Appellant asserts Andreano and Andreano Associates negligently prepared plans and specifications, and negligently designed the improvements to the lakes. The only evidence of damages in the record is that the draining of the lakes to effectuate dredging accelerated and increased foundation settlement and related superstructural problems. It is clear from the record that appellant decided to dredge the lakes before engaging the services of Andreano. It was that decision which may have caused any damages to appellant. Therefore, Andreano was not negligent and summary judgment was appropriate.
Appellant's second assignment of error lacks merit.
Appellant's cause of action for fraud is barred by the statute of limitations.
Appellant's third assignment of error is meritless.
R.C.
"No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. This limitation does not apply to actions against any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought."
This is a statute of repose which, unlike a statute of limitations, may bar a plaintiff's suit before the cause of action arises.1 It begins to run upon the completion of the performance of the construction-related services. Sedar v.Knowlton Constr. Co. (1990),
Appellants argue the statute should not begin to run until the certificate of occupancy is issued. Appellant maintains that only then are the services and construction complete. The certificates of occupancy were issued for the five buildings on August 25, 1982. *361
In King James S. Danford Square Condominium Unit Owner'sAssn. v. Pacer Constr. Corp. (Dec. 9, 1993), Cuyahoga County No. 64213, unreported, 1993 WL 515623, this court held the completion of a water distribution system triggered the statute of repose and not the later date when the units were ready for occupancy or when the units transferred. Similarly, in the instant case, the statute was triggered upon the completion of construction-related services. R.C.
However, the declarations for buildings L, M, and N were not filed until June 3, 1981. Therefore, appellant's complaint was not barred by R.C.
As in King James, supra, Andreano and Dorsky completed their services before appellant filed its complaint against them. There is no indication either was aware of the lawsuit prior to the expiration of the statute of limitations. The amended complaint does not relate back to the original filing. Civ.R. 15(C). Kosa v. Pruchinsky (1992),
Appellant's fourth assignment of error is sustained in part and overruled in part.
Appellant acknowledges there was no express contractual relationship between it and Flair Builders but it argues it was foreseeable the unit owners would be injured by Flair's negligence. Appellant argues there was a nexus between it and Flair as Flair controlled the association prior to October 22, 1985, before the unit owners assumed the responsibility. Appellant argues privity is not necessary as the nexus between the parties serves as a substitute. *362
Flair relies on Floor Craft v. Parma Gen. Hosp. (1990),
The facts of Floor Craft and the instant case are distinguishable and Floor Craft is not controlling. Flair was the builder and developer, not just a design professional. InMcMillan v. Brune-Harpenau-Torbeck Builders, Inc. (1983),
This court has declined extending McMillan to a negligence action brought by a subsequent owner against a subcontractor.Lin v. Gatehouse Constr. Co. (1992),
"Treating a homebuilder as the manufacturer of a defective product is supported by many of the public policy considerations that led to evolution of products liability law. The builder has greater knowledge of the product, is in a better position to discover defects that will become latent when concealed by further construction, and, most importantly, can prevent or reduce the incidence of defects through careful construction."Id. at 134,
This is exactly the situation present in the instant case. It was Flair who was responsible for carefully constructing the condominiums to prevent the sort of latent defects that became apparent when the floors and foundations began crumbling and cracking beneath the residents. Privity is not required between Flair and the subsequent owners.
The only question remaining is whether appellant qualifies as a subsequent owner so that it is the proper party to bring suit against Flair. R.C.
Appellant's fifth and sixth assignments of error have merit
The judgment is affirmed in part and reversed in part, and the cause is remanded.
Judgment accordingly.
NAHRA, C.J., and NUGENT, J., concur.