{¶ 2} On August 30, 2007, Alexander filed a Motion to Dismiss, arguing that McClure's claims were barred by R.C.
{¶ 3} By way of brief background, a previous version of the statue of repose before us was declared unconstitutional in Brennaman v. R.M.I.Co.,
{¶ 4} We note that Alexander argues initially that McClure failed to present any issues for review, contrary to App. R. 16(A)(4), and states that it is within our "discretion to either disregard the assignment of error and/or dismiss the appeal based upon Plaintiff s failure to include a statement of issues presented for review." We will address the merits of McClure's appeal.
{¶ 5} McClure asserts one assignment of error as follows:
{¶ 6} "THE TRIAL COURT ERRED BY DISMISSING APPELLANT'S COMPLAINT ON THE BASIS OF AN UNCONSTITUTIONAL STATUTE OF REPOSE."
{¶ 7} "`A motion to dismiss a complaint for failure to state a claim upon which relief may be granted, pursuant to Civ.R. 12(B)(6), tests the sufficiency of a complaint. In order to prevail, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to relief. (Internal citation omitted). The court must then construe the complaint in the light most favorable to the plaintiff, presume all of the factual allegations in the complaint as true, and make all reasonable inferences in favor of the plaintiff. (Internal citation omitted). We review de novo the *4
trial court's granting of a Civ.R. 12(B)(6) motion to dismiss.'"Hogue v. Navistar Interntl. Truck Engine, Clark App No. 2006 C A 85,
{¶ 8} "It is difficult to prove that a statute is unconstitutional. All statutes have a strong presumption of constitutionality. (Internal citation omitted). Before a court may declare unconstitutional an enactment of the legislative branch, `it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.' (Internal citation omitted).
{¶ 9} "A party seeking constitutional review of a statute may proceed in one of two ways: present a facial challenge to the statute as a whole or challenge the statute as applied to a specific set of facts. (Internal citation omitted)." Arbino v. Johnson Johnson (2007), ___ N.E.2d ___,
{¶ 10} The current version of the statute of repose provides in relevant part as follows: "* * * [N]o 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 of damages sustained as a result of bodily injury, an injury to real or person 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." R.C.
{¶ 11} McClure argues that the statute violates the right-to-a-remedy provision in Section
{¶ 13} In Brennaman, defendant Bechtel Corporation was involved in converting an existing *6 facility into a titanium metals plant, a facility where liquid sodium was piped from railroad cars to storage tanks. Id., at 461. Bechtel's involvement in the construction of the sodium handling system ended in 1958. Id. In 1986, two employees of R.M.I. Co. were killed and another was injured when a molten stream of sodium escaped from the piping system and ignited while the employees attempted to replace a vаlve. Id., at 462. The trial court granted summary judgment to Bechtel on the subsequent complaint of negligence, products liability and breach of warranty on the basis that the allegations were brought beyond the ten year period provided by the statute of repose, and the court of appeals affirmed. Id.
{¶ 14} In finding the statute of repose unconstitutional, the Supreme Court of Ohio determined that R.C.
{¶ 16} Sedar argued to the Supreme Court of Ohio that the statue of repose violated the due process and right-to-a-remedy provisions of Section 16, Article I, and the equal protection guarantees of Section
{¶ 17} The Court then noted that construction statutes of repose were enacted "in the late 1950s and early 1960s in response to the expansion of common-law liability of architects and builders to third parties who lacked `privity of contract.'" At early common law, the doctrine of privity of contract prevented third parties, such as Brennaman and Sedar, from recovering damages from an architect or builder based on a defective or unsafe condition after a structure had been completed and accepted by an owner. With the demise of the doctrine of privity, architects and builders were increasingly subject to third-party litigation years after their work on a structure was completed. Id.
{¶ 18} The Court briefly noted that the statute expressly does not apply to persons in possession or control of the premises at the time of the injury, and that it impliedly does not apply to *8 those who supply materials rather than services to be used in constructing the improvement. Id., at 196. Further, the Court noted that the statute does not apply to actions on the contract. Id.
{¶ 19} The Court repeatedly noted the often delayed occurrence of damages that characterize the construction cases and determined that the statute bore a real and substantial relation to the public health, safety, morals and general welfare, and that the statute was not unreasonable or arbitrary. Id., at 199-200. Specifically, the court determined in part, "Given * * * the lengthy anticipated useful life of an improvement to real property, designers and builders were confronted with the threat of defending claims when evidence was no longer available. * * * [R.C.
{¶ 20} The Court recognized that the statute bars all claims after ten years, despite their merit or lack thereof, and the Court recognized that its role was not to pass judgment on the "wisdom of legislative enactments." Id., at 201. The Court agreed that "`[t]he legislature could reasonably conclude that the statistical improbability of meritorious claims after a certain length of time, * * * and the inability of courts to adjudicate stale claims weigh more heavily than allowing the *9 adjudication of a few meritorious claims.'" Id. The Court held that the statute did not violate the due process provision of the Ohio Constitution. Id.
{¶ 21} With respect to the right-to-a-remedy provision, Sedar argued that the statute of repose violated that provision of the Constitution based on the Court's recent decision regarding the four-year statute of repose for medical malpractice actions in Hardy v. VerMeulen (1987),
{¶ 22} The Sedar court distinguished the issue presented in the medical malpractice cases from the issue presented in Sedar as follows: "Operation of the medical malpractice repose statute takes away an existing, actionable negligence claim before the injured person discovers it. Thus, `it denies legal remedy to one who has suffered bodily injury, * * *' in violation of the right-to-a-remedy guarantee. * * * In contrast, R.C.
{¶ 23} The Sedar Court noted that the right-tо-a-remedy provision can be traced to the common law principle ubi jus ibi remedium — there is no wrong without a remedy, which
{¶ 24} "was melded into the federal common law by the decision inMarbury v. Madison *10
(1803),
{¶ 25} The Sedar Court further noted that common law causes of action are not "`immune from legislative attention.'" Id., quotingHardy. "`No one has a vested right in rules of the common law. Rights of property vested under the common law cannot be taken away without due process, but the law itself as a rule оf conduct may be changed at the will of the legislature unless prevented by constitutional limitations. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances.'" Id.
{¶ 26} The Sedar Court commented that several states construing right-to-a-remedy clauses concur in the following view: "Societal conditions occasionally require the law to change in a way that denies a plaintiff a cause of action available in an earlier day. * * * `This Court would encroach upon the Legislature's ability to guide the development of the law if we invalidated legislation simply because the rule enacted by the legislature rejects some cause of action currently preferred by the courts. To do so would be to place certain rules of the "common law" and certain non-constitutional decisions of courts above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and the flexibility required for the healthy growth of the law.' * * * The right-to-a-remedy provision of Section 16, Article I applies only to existing, vested rights, and it is state law which determines what injuries are recognized and what remedies are available." The Court concluded that the statute did not violate Section
{¶ 27} In considering equal protection principles, the Sedar Court noted, "the vast majority *11 of states have upheld similar architect-builder statutes of repose, holding the legislative classifications therein were based on valid distinctions." Id., at 203. According to the Sedar Court, "Owners, tenants and others actually in possession of improvements to real property, who are expressly excluded from operation of the statute, have continuing control of the premises and are responsible for their repair and maintenance. In contrast, architeсts and builders have no control over the premises once they are turned over to the owner, after which time" other factors may influence the condition of the improvement. Id., at 203-04. The Court found no equal protection violation.
{¶ 29} The statute at issue in Groch provided as follows in relevant part: "* * * no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly, or rebuilding of another product." R.C.
{¶ 30} The petitioner in Groch relied upon Brennaman and the stare decisis value of that decision. Groch, at ¶ 131. The respondents arguedthat Brennaman should be overruled "consistent with the required presumptions of constitutionality and the holdings of a clear maj ority of sister state courts." Id., at ¶ 132. Finally, the respondents argued that "the factors set forth in Westfieldlns. Co. v. Galatis,
{¶ 31} In revisiting Sedar and Brennaman, the Supreme Court characterized Sedar as a "thorough and concise opinion that fully sustained each of its specific conclusions with extensive reasoning." Id., at ¶ 136. In contrast, in discussing Brennaman, the Groch Court determined, "In an abbreviated discussion devoid of any in-depth analysis, a majority of this court simply set forth the text of Section 16, Article I; cited one case, Burgess v. Eli Lilly Co. (1993),
{¶ 32} The Groch Court noted, "`While stare decisis applies to the rulings rendered in regard to specific statutes, it is limited to circumstances "where the facts of a subsequent case are substantially the same as a former case." Rocky River v. State Emp. Relations Bd.
(1989),
{¶ 33} Brennaman, the Groch Court determined, "failed to accord proper respect to the principle of stare decisis," and "led to a sweeping repudiation by implication of not just the specific statute of repose before it, but of all statutes of repose in general, including presumably those enacted after Brennaman was decided." Id., at ¶¶ 137-138. In contrast, the Court determined, the analysis inSedar demonstrates that "the constitutionality of any specific statute of repose should turn on the particular features of the statute at issue, and that such a statute should be evaluated narrowly within its specific context." Id.
{¶ 34} The Groch Court then specifically set forthBrennaman's deficiencies as follows: Brennaman failed to consider the presumption of constitutionality, and it "accorded no deference to the General Assembly's determination of public policy as expressed in the statue under review"; Brennaman did not consider the "critical distinction" between a statute of repose and a statute of limitation;Brennaman did not explain why the plaintiff s right to a remedy was violated even though *14 other avenues of recovery may have been available; Brennaman did not address the concerns at issue subsequent to the demise of the privity doctrine, such аs the interests of architects and builders in avoiding stale litigation; Brennaman ignored the concerns of builders who may be subject to suit but have no ability to fix a problem that arises long after the completion of a project. Id., at ¶¶ 141-145.
{¶ 35} In light of Brennaman's numerous deficiencies, theGroch Court narrowed Brennaman's applicability as follows: "BecauseBrennaman did not involve a challenge to a products-liability statute of repose, as the instant case does, that decision is not directly on point and can arguably apply only because of its overexpansive language. We confine Brennaman to its particular holding that former R.C.
{¶ 36} In completing its analysis, the Court noted that the statute before it differed from the statute of repose analyzed in Sedar andBrennaman, but that it similarly potentially bars a plaintiffs suit before it arises. The statute, therefore, prevents the vesting of a plaintiff s claims if the product that caused the injury was delivered to the end user more than ten years after the plaintiff was injured. "This feature of the statute triggers the portion of Sedar's fundamental analysis concerning Section 16, Article I that is dispositive of our inquiry here. Because such an injured party's cause of *15 action never accrues against the manufacturer or supplier of the product, it never becomes a vested right." Id., at ¶ 149.
{¶ 38} We note that remedial legislation such as R.C. 2301.131 is to be construed "in order to effectuate the legislative purpose."Gibson v. State Farm Mutual Insurance Co. (1997),
{¶ 39} "(1) To declare that the ten-year statute of repose prescribed by section
{¶ 40} "(2) To recognize that, subsequent to the completion of the construction of an *16 improvement to reаl property, all of the following generally apply to the persons who provided services for the improvement or who furnished the design, planning, supervision of construction, or construction of the improvement:
{¶ 41} "(a) They lack control over the improvement, the ability to make determinations with respect to the improvement, and the opportunity or responsibility to maintain or undertake the maintenance of the improvement;
{¶ 42} "(b) They lack control over other forces, uses, and intervening causes that may cause stress, strain, or wear and tear to the improvement.
{¶ 43} "(c) They have no right or opportunity to be made aware of, to evaluate the effect of, or to take action to overcome the effect of the forces, uses, and intervening causes described in division (E)(5)(b) of this section.
{¶ 44} "(3) To recognize that, more than ten years after the completion of the construction of an improvement to real property, the availability of relevant evidence pertaining to the improvement and the availability of witnesses knowledgeable with respect to the improvement is problematic;
{¶ 45} "(4) To recognize that maintaining records and other documentation pertaining to services provided for an improvement to real property or the design, planning, supervision of construction, or construction of an improvement to real property for a reasonable period of time is appropriate and to recognize that, because the useful life of an improvement to real property may be substantially longer than ten years after the completion of the construction of the improvement, it is an unacceptable burden to require the maintenance of those types of records and other documentation for a period in excess of ten years after that completion;
{¶ 46} "(5) To declare that section
{¶ 47} We note that the facts of this matter illustrate the validity of the legislature's concern regarding stale litigation. Mike Alexander completed the addition to McClure's home fifteen years before McClure discovered the defect. Alexander is now deceased, making any defense of McClure's claim even more problematic.
{¶ 48} We further approach our analysis mindful of the distinction between a statute of limitation, which extinguishes, after a period of time, the right to prosecute а cause of action that has accrued, and a statute of repose, which sets a time period within which a claim must accrue and bars that claim after the set period expires. Sedar, at 195.
{¶ 49} We note that R.C.
{¶ 50} Finally, we examine the particular features of R.C.
{¶ 51} The previous version of the statute provided in part, "no action * * * shall be brought," while the current version, like the constitutional statute of repose in Groch, provides in part, "no cause of action * * * shall accrue." We agree with Alexander, the "current version of R.C.
{¶ 52} Another difference between the current version of the statute and the one before the Court in Sedar and Brennaman is that the current version allows a plaintiff to bring a claim beyond the ten year period if the claim was discovered within that period but less than two years before its expiration. The current version further makes exceptions where the defendant has engaged in fraud and where an express guarantee of workmanship has been given that exceeds the ten year period.
{¶ 53} Having carefully reviewed the particular features of R.C.
WOLFF, P.J. and GRADY, J., concur.