NEW RIEGEL LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION, PLAINTIFF-APPELLANT, -and- STATE OF OHIO, PLAINTIFF-APPELLEE, v. THE BUEHRER GROUP ARCHITECTURE & ENGINEERING, INC., ET AL., DEFENDANTS-APPELLEES.
CASE NO. 13-17-03, CASE NO. 13-17-06
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
November 13, 2017
2017-Ohio-8521
WILLAMOWSKI, J.
Appeal from Seneca County Common Pleas Court, Trial Court No. 15 CV 0115. Judgment Reversed, Cause Remanded.
Christopher L. McCloskey and Tarik Kershah for Appellant
Shannon J. George and Matthew T. Davis for Appellee, Studer-Obringer, Inc.
P. Kohl Schneider, Colleen A. Mountcastle and Melanie R. Irvin for Appellee Charles Construction Services, Inc.
Marc A. Sanchez and Michael J. Frantz, Jr. for Appellee Ohio Farmer‘s Insurance Company
OPINION
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant New Riegel Local School District Board of Education (“the School“) brings this appeal from the judgment of the Court of Common Pleas of Seneca County granting the judgment on the pleadings filed by defendants-appellees Studer-Obringer, Inc. (“SOI“), Charles Construction Services, Inc. (“CCS“), and Ohio Farmers Insurance Company (“OFIC“). For the reasons set forth below, the judgment is reversed.
{¶3} Over time, the School had issues with the facilities, including but not limited to condensation and moisture intrusion allegedly caused by design and construction errors. Doc. 2. A complaint was filed by the School on April 30, 2015. Id. The complaint was brought in the name of the School with the State of Ohio and OSFC as involuntary plaintiffs. Id. The complaint named the Buehrer Group Architecture & Engineering, Inc., the Estate of Huber H. Buehrer (collectively known as “the Buehrer Group“), SOI, CCS, and American Buildings Company as defendants. Id. The complaint alleged that both SOI and CCS had breached its contract by failing to conform to the requisite standard of care to perform in a workmanlike manner. Id. SOI filed its answer to the complaint on July 13, 2015, denying the allegations in the complaint and listing several affirmative defenses, including the statute of repose. Doc. 34. CCS filed its answer to the complaint on
{¶4} On February 10, 2016, the School filed an amended complaint in its own name and that of the State. Doc. 62. The amended complaint raised the same alleged breach of contract claims against SOI and CCS as the first complaint did. Doc. 62. SOI filed its answer to the amended complaint on February 16, 2016. Doc. 65. CCS filed its answer to the amended complaint on February 23, 2016. Doc. 68. Both answers denied the allegations of the amended complaint and raised the same affirmative defenses. Doc. 62 and 65. On February 26, 2016, SOI filed a motion for judgment on the pleadings pursuant to
{¶5} The School then filed a second amended complaint on June 10, 2016. Doc. 88. This complaint added OFIC as a defendant as the surety for SOI, but did not make any changes to the claims against SOI. Id. SOI filed its answer to the second amended complaint on June 20, 2016. Doc. 93. On June 23, 2016, SOI renewed its motion for judgment on the pleadings pursuant to
{¶6} CCS filed its answer to the second amended complaint on June 28, 2016. Doc. 102. After the trial court had granted both SOI‘s and The Buehrer Group‘s motions for judgment on the pleadings based upon the statute of repose, CCS filed its own motion for judgment on the pleadings also based upon the statute of repose. Doc. 124. The School filed a response to CCS‘s motion on September 28, 2016. Doc. 126. On October 31, 2017, the trial court granted CCS‘s motion for judgment on the pleadings. Doc. 129.
{¶7} OFIC filed its answer to the second amended complaint on August 15, 2016. Doc. 113. Following the dismissal of SOI as a party, OFIC filed a motion for judgment on the pleadings on September 6, 2016. Doc. 119. OFIC argued that since SOI was dismissed, OFIC was no longer liable as the surety for SOI and must also be dismissed. Id. The School filed its response to OFIC‘s motion on September 9, 2016. Doc. 120. In the same entry that granted CCS’ motion for judgment on the pleadings, the trial court also granted OFIC‘s motion for judgment on the pleadings and both parties were dismissed. Doc. 129.
{¶8} On January 25, 2017, the School filed its notice of appeal from the judgment dismissing SOI as a party. Doc. 134. This judgment was assigned appellate case number 13-17-03. The School also filed its notice of appeal from the
First Assignment of Error
The trial court erred in dismissing [the School‘s] breach of contract claims against [SOI], [CCS], and [The Buehrer Group], by finding that the Ohio Statute of Repose,
Second Assignment of Error
The trial court erred in dismissing the claims against [SOI] and [CCS] as those contracts were entered with [the State] and general limitations periods do not apply to the State of Ohio.
Third Assignment of Error
The trial court erred in finding that [the School] does not have authority to bring its action in the name of [the State].
Fourth Assignment of Error
The trial court erred in dismissing [the School‘s] claims against [OFIC], as surety for [SOI], on the basis that [the School‘s] surety bond claim against [OFIC] was barred by the virtue of the dismissal of the claims against [SOI].
As the third assignment of error applies only to the State, we need not address that assignment of error in this opinion. It will be addressed in Appellate Case No. 13-17-05.
(A)(1) Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code and except as otherwise provided in divisions (A)(2), (A)(3), (C), and (D) of this section, no 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 or indemnity for damages sustained as a result of 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 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.
* * *
(G) As used in this section, “substantial completion” means the date the improvement to real property is first used by the owner or tenant of the real property or when the real property is first available for use after having the improvement completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
{¶11} A clear reading of the statute does not support this conclusion. The statute specifies that NO cause of action for damages to real property, resulting from the improvement to that real property, can be brought after 10 years from the time
{¶12} The School premised its claims as breach of the terms in the contract. “In reviewing whether a motion to dismiss should be granted, we accept as true all factual allegations in the complaint.” Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. “Under de novo analysis, we are required to ‘accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party.‘” Pearsall v. Guernsey, 3d Dist. Hancock No. 5-16-25, 2017-Ohio-681, ¶ 9 (citations omitted). Viewing the allegations in a light most favorable to the School, we must find that the trial court erred in granting the motion to dismiss on the pleadings pursuant to the statute of repose. As the Supreme Court stated in Kocisko, “this court expresses no opinion as to the merit of any of the plaintiff‘s claims.” Kocisko, supra at 99. This court
{¶13} The School argues in its fourth assignment of error that the trial court erred in dismissing OFIC as surety for SOI. The decision to dismiss OFIC was based upon the fact that SOI had been dismissed from the case. The reasoning of the trial court that a surety cannot be liable if there is no valid claim against the principal is correct. However, as we have determined that the trial court erred in granting judgment on the pleadings based upon the statute of repose, SOI is once again a party against whom a valid claim may lie. The result of this is that OFIC is once again the surety for a party and should not have been dismissed from the case. For this reason, the fourth assignment of error is sustained.
{¶14} In the second assignment of error, the School says that the trial court erred in dismissing the claims pursuant to the statute of repose because the contracts were entered with the State and the limitation does not apply to the State. Since this court has determined that the statute of repose does not apply to the alleged breaches of contract, this assignment of error is moot and need not be addressed by this court.
{¶15} Having found error prejudicial to the Appellant in the particulars assigned and argued, the judgment of the Court of Common Pleas of Seneca County is reversed and the matter is remanded for further proceedings in accord with this opinion.
Judgment Reversed And Cause Remanded
ZIMMERMAN and SHAW, J.J., concur.
/hls