ZOLA S. MAKRAUER v. HAL HOMES, INC.
APPEAL NO. C-190256; TRIAL NO. A-1806326
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 13, 2020
2020-Ohio-945
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 13, 2020
Cummins Law LLC, James R. Cummins and Maxwell J. Hopkins, for Plaintiff-Appellant,
Aronoff Rosen & Hunt and Edward P. Akin, for Defendant-Appellee.
{¶1} Plaintiff-appellant Zola S. Makrauer appeals from the trial court‘s judgment granting a
Makrauer‘s Complaint
{¶2} In November 2018, Makrauer filed a complaint against Hal Homes asserting a claim for negligence. The complaint alleged that in 1985, Hal Homes constructed a condominium that is currently owned by Makrauer. Makrauer purchased the condominium in 1987 from its original owner.
{¶3} According to the complaint, Hal Homes negligently constructed the condominium by failing to connect the wood framing of the condominium to the concrete foundation. This resulted in the condominium moving independently from the foundation, caused cracking in the foundation, and allowed water intrusion. The complaint alleged that due to Hal Homes‘s negligence, the construction on the condominium was never substantially completed and Makrauer had to spend approximately $97,500 to repair the damage and bring the condominium to a state of substantial completion.
{¶4} Hal Homes filed a
{¶5} In a single assignment of error, Makrauer argues that the trial court erred in granting the motion to dismiss on the basis of the statute of repose.
{¶6} A
{¶7} A statute of repose bars “any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury.” Black‘s Law Dictionary 1637 (10th Ed.2014). Whereas a statute of limitations sets a time limit for bringing a civil suit based on the date that the claim accrued, a statute of repose measures the time limit in which to bring a civil action “not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.” Union Local School Dist., Bd. of Edn. v. Grae-Con Constr., Inc., 2019-Ohio-4877, 137 N.E.3d 122, ¶ 14-15 (7th Dist.), quoting CTS Corp. v. Waldburger, 573 U.S. 1, 8, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014).
{¶8} Ohio‘s construction statute of repose is set forth in
Notwithstanding an otherwise applicable period of limitations * * * no cause of action to recover damages for * * * an injury to real or
personal property * * * 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.
(Emphasis added.)
{¶9} “Substantial completion” is defined in
{¶10} Makrauer contends that the statute of repose has not yet begun to run because, due to the negligence of Hal Homes, the construction of her condominium was never substantially completed. She argues that
{¶11} When interpreting a statute, we must ascertain and give effect to the intent of the legislature in enacting the statute. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. Legislative intent is determined from the plain language of the statute, and where a statute is unambiguous and definite, it must be applied as written “in a manner consistent with the plain meaning of the statutory language.” Id.; State v. Bowers, 2018-Ohio-30, 102 N.E.3d 1218, ¶ 12 (1st Dist.).
{¶12} The language of
{¶13} These two clauses are modified by the word “or.” “The word ‘or’ is primarily used as a disjunctive, and ‘[c]anons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise * * *.‘” O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 51, quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979). The use of the word “or” separating the two clauses in
{¶15} Because Makrauer‘s complaint indicates on its face that it is barred by the statute of repose, the trial court did not err in granting Hal Homes‘s
Judgment affirmed.
MOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.