*1
2012-2003.
in case No.
Hicks,
Jeffrey Stevens
for appellant
Scott
Bryan
Mihocik,
Public
Assistant
Defender,
Kelly
and E.
Ohio Public
Timothy Young,
in case No.
Defender,
Zachary Bondurant
2012-2006.
appellant
Inc., Appellant,
Association,
Oaktree Condominium
Appellees.
Building Company
al.,
et
Hallmark
Assn., Inc. v. Hallmark
[Cite as Oaktree Condominium
Bldg.
Co., 264,
construction (“Oaktree”) discover- Association the Oaktree Condominium completed, tion the foundation of their construction of defect ed there defect, real- there was no discovery At the condominiums. However, by the time Oaktree effect. statute property-construction the General the builder of condominiums filed an action result, the trial court As statute Assembly had enacted a Consistent were time-barred. that Oaktree’s claims and court of ruled cases, holdings with our medical-malpractice cases and we hold that 2305.131 is unconstitutional as Because of applied Oaktree. laws, prohibition constitutional passage Oaktree must be afford- *2 ed a in reasonable time which to file its accrued action. conclude that We limitations, is governed by reasonableness the relevant statute of which in this years case is four from accrual of the cause action. 2305.09. R.C. The complaint in matter filed within was four of its accrual and was 2305.09(D). timely therefore under Accordingly, we reverse the judgment of appeals the court jury reinstate the verdict favor Oaktree. History Facts and Procedural Oaktree the owners’ association for a seven-unit condominium develop-
{¶ 2} Willoughby, ment in Ohio. Hallmark Building Company built the condominiums and created the completed association. Construction In was 1990. the fall of 2003, one of the residents noticed a crack in wall garage the of his that awas common with wall the unit. neighboring Following investigation structural engineers, was it learned that the footers for the foundations of the condomini- ums placed had not been below the frost plane. Ohio, local codes building require placed foundation footers to be at a
minimum depth they ensure that are below the frost This is plane. because soil frost plane above the and expands. freezes Consequently footers above the frost plane will move with expansion the and contraction of the soil. Motion in the foundation, footers causes motion in the which can result cracks and damage structural If building. placed footers are plane, below frost this problem is avoided because footers are in stable soil without movement. building code effect in Willoughby at the time of construction of the required condominiums footers to be placed at least 36 deep, inches and the that building plans were submitted for the condominiums stated that the footers were going placed at a of 42 depth inches. 31, 2003, On October was put Oaktree notice of this defect and was
advised aby engineer structural that testing performed should be on the other units. Testing revealed that none of the footers had been buildings placed beneath frost plane. On December complaint Oaktree filed a against Hallmark for
unworkmanlike construction and to
recover the cost
the defect.
repairing
This
suit
voluntarily
was
August
dismissed and refiled on
Hallmark
filed a
motion for summary judgment, asserting that it was not liable to Oaktree that
suit
barred because it
was filed outside of the
real-
property-construction
2305.131.
The trial court denied
trial,
Following
$210,000
motion.
a jury
Oaktree was awarded
in damages.
11th Dist.
reversed.
Appeals
District Court
the Eleventh
appeal,
On
District
The Eleventh
Analysis *3 provides: R.C. 2305.131
{¶ 7} * * * * * *, (A) no cause action to provided as otherwise [EJxcept personal property, to or bodily injury, injury real damages recover of an and unsafe condition out of a defective or death that arises wrongful * * * who against person accrue real shall improvement property to who property person real improvement for the to performed services construction, or construction design, supervision planning, furnished the date of later than ten from the to real improvement property improvement. of such completion substantial v [**]
(F) purely operation be to be remedial This section shall considered any civil action commenced in a manner applied remedial shall section, in which this section is of this on or after the effective date and notwithstand- relevant, when the cause of action accrued regardless of state, rule of law of this prior Code or other section of Revised ing any any pending prior to civil action apply shall construed to but not be of this section. effective date real-property-construction By plain language, its civil actions commenced after on to April applies became effective
which action of when the cause of accrued. regardless the statute the effective date of 31, 2003, on case, property of the defect learned Oaktree August and commenced this action on II, “The General provides, of the Ohio Constitution Article Section 28 {¶ 9} * * laws *.” pass
Assembly
power
shall have no
II,
Pursuant
Constitution,
Article
Section 28 of the Ohio
this court
has already determined that plaintiffs have a
right
bring
substantive
their
accrued actions and that the constitutional prohibition on retroactive
pre-
laws
vents the Ohio General Assembly from unreasonably taking that right away by
Flowers,
outlawing their claims. Gregory
32 Ohio St.2d
we have used the delayed-damages rule. Velotta v. Leo Petronzio Landscaping,
Inc.,
(1982).
69 Ohio St.2d
{¶ construction problems 12} on October 31, 2003; thus, its cause of Hallmark Building Company accrued that date. Because its cause of action accrued and vested before the April effective date of R.C. the retroactive application of the statute of repose would away take Oaktree’s II, substantive and conflict with Article 28 of the Ohio Therefore, Constitution. R.C. 2305.131 is unconstitutional as applied Oaktree. question then becomes whether Oaktree filed its action within a reasonable time of its accrual. We see no reason to look further than the enactments of the General
Assembly to find a measure of reasonableness. The Ohio General Assembly has
enacted statutes of limitations that already
define
reasonable
in
period which to
file a complaint after a cause of
Indeed,
action accrues.
when asked to determine
reasonableness in medical-malpractice and products-liability cases in which the
statute of repose was not effective on the date the
accrued,
cause of action
this
court looked to the relevant statute of
in
limitations
each case.
v.
Groch Gen.
Motors Corp.,
192,
117 Ohio St.3d
{¶ 14} for how this case should be decided. These cases are similar in that the claims accrued when there was no statute of repose in effect but the actions were filed after the statutes of repose Groch, became effective. In the plaintiffs’ products-liability claims ac- 3, crued on March (R.C. 2005. The new products-liability statute of repose 2305.10) 7, became April 2005, effective on and thus plaintiffs the had only 34 days to file a lawsuit before the statute became effective purported to forever out, bar their claims. As it turned plaintiffs the filed their claims over year one 268 prohibition that the This court determined vested. they
after
became
prevented
Constitution
II,
28 of the Ohio
under Article
Section
retroactive laws
facts of the
specific
applying
statute of
from
products-liability
repose
the
to bring
time
provided with reasonable
plaintiffs
that the
be
required
case and
¶
bring
time to
that a reasonable
The court decided
their case. Groch
or arbitrariness
years. There was no coincidence
case was two
products-liability
the
limit in
years
Two
a measure of reasonableness.
years
to two
as
2305.10(A).
of limitations. R.C.
the
statute
new
165,
in
object
the
Sherk,
metal
4
St.3d
446 N.E.2d
Ohio
until 1980.
in 1967 was
discovered
following surgery
abdomen
plaintiffs
rule,
tolled until
the statute of limitations is
discovery
foreign-object
Under
discovered,
Melnyk v.
discovers,
act.
negligent
have
patient
should
(1972). Thus,
plaintiffs
Clinic,
198, 290
916
N.E.2d
Cleveland
2305.11(B),
relevant statute
Former R.C.
not accrue until 1980.
claim did
brought more than
being
claims from
July
barred
repose, effective
Groch,
malpractice. As
court determined
four
from the date of
II,
laws
Article
28 of
Ohio
under
prohibition against
applying
statute of
from
medical-malpractice
repose
prevented
Constitution
with a
time to
provided
required
plaintiff
the case and
that the
be
discovery
after the
year
determined that one
bring his case. The court
Groch,
guesswork
no
on the
Again, as in
there was
malpractice was reasonable.
was the measure of
determination that one
of the court
its
part
2305.11(A), the
medical-malpractice
reasonableness.
Former
accrual.
year after their
limitations,
brought
claims to
within one
required
“
injury or
real
damage
actions for
‘[t]ort
We have stated
set forth
statute of limitations
subject
four-year
are
property
”
away to the courts and its access accrued, was no statute of claim there when Oaktree’s foundations of the condominiums was of the footers placement effect. until it being seen beginning, incapable but the defect defective prohibition later. The constitutional ground level 13 damage caused above *5 unreasonably prevents Assembly laws the Ohio General on retroactive Flowers, 54, 290 N.E.2d 32 accrued claims. outlawing Oaktree’s to real- applicable of limitations just today, it the statute 181. And as does four-year called for a effect on October cases property-construction 2305.09, Thus, Oaktree under R.C. 2305.09. limitation of accrued actions. R.C. 16, 2005. Oaktree’s suit, did December which it on had to commence four 41(A)(1) did not refiling August on and under Civ.R. voluntary dismissal run until did not timeliness, statute of limitations four-year affect its since 31, 2007.
Conclusion as to Oaktree applied unconstitutional hold that R.C. 2305.131 is We accrued bar Oaktree’s of 2305.131 would application
because the a of action We hold that cause Building Company. the Hallmark of a filed the effective date on suit has been that has accrued which no but of the relevant statute governed by is of as R.C. statute such of cause of action. filing particular type of limitations for reversed, judgment and the of is judgment appeals The of the court is reinstated. verdict in favor of Oaktree jury
Judgment reversed. Lanzinger, C.J., JJ., O’Connor, concur. and Pfeifer and JJ., Kennedy, French, O’Donnell, dissent. J., dissenting.
Kennedy,
majority’s
I
I
with the
conclusion
agree
dissent.
Respectfully,
of R.C.
to the effective date
prior
of action
and vested
Oaktree’s cause
accrued
of
therefore
application
and that the retroactive
of
statute
2305.131
II,
28 of the Ohio
contravening Article
right,
violates its substantive
a
However,
rule that
disagree
bright-line
with the
I
creation
Constitution.
for the
filing
reasonable time
of limitations will determine the
general statute
I
Because
to the enactment of
statute
prior
an action that accrued
any
time in
case
of what
believe that the determination
constitutes
law,
matter
case, I conclude that as a
on the
of the particular
based
facts
Therefore, I
trial court.
would
in the sound discretion
determination rests
grounds.
on different
judgment
affirm the
of the court of
Bright-Line Rule
Support
of a
Establishment
Precedent Does Not
analytical
provide
and Sherk
that “Groch
majority asserts
¶ 14, citing
Majority opinion,
how
should be decided.”
this case
blueprint
limitations to determine reasonable to accrued to enactment of a statute of prior constitutionality of the products-liability Groch concerned statute of 2305.10(C). injured
repose, Douglas press days R.C. Groch a trim 2305.10(F). 2305.10(C) Groch, prior to the date of R.C. and former effective R.C. ¶ rejected position days 190. This that respondents’ provided by court the 34 2305.10(C) R.C. a to period reasonable time for Groch file his action. determining time, O’Connor, what period was a reasonable Justice writing majority, specific language for the looked to the of the statute of repose: 2305.10(C)(4) provides two-year
R.C. a for period limitations commenc- injuries ing a suit for before the occurring expiration 2305.10(C)(1), years R.C. “but less than period prior two * * * expiration period.” of that 2305.10(C)(5) R.C. Similarly, provides that of action “[i]f cause relative liability to a claim product during accrues ten-year period described (C)(1) of division this section the claimant and cannot commence during disability due to a period described in section 2305.16 of the [i.e., mind], Revised minority Code or unsound an action based on the product liability claim may years be commenced within two after the disability is removed.” 2305.10(C)(4) (C)(5)
Both R.C. and once a recognize products- liability accrues, of action plaintiff cause no less should have than two years in to which commence a This recognition suit. is consistent with 2305.10(A), the general products-liability limitations, statute of which that, subject states to certain exceptions those in (including 2305.10(C)), brought such claim “shall within two after the cause of action accrues.” ¶ concluded, 2305.10(C)(4)
Id. at The court 193-195. we look “When to [R.C. (C)(5)], we that a determine time to commence a suit this situation should injury.” have been two from the date Id. at 198. Therefore, the Groch court’s conclusion was upon products- based liability statute of limitations. The however, majority, Groch, cherry-picks statute-of-limitations discussion turning eye while two-year blind the true basis the holding —the frame in of repose. the statute for the state that Accordingly, majority Groch an “analytical blueprint” is is disingenuous analysis holding Groch. Sherk, 4 Ohio Moreover, majority’s upon reliance Adams issue weight in the current deciding more
446 N.E.2d accords decision plaintiff did that the court hold upon review. The Sherk appropriate than i.e., claim, her one bring time in afforded a reasonable which “must be *7 that But Id. at 40. the determination discovery malpractice.” of the after the holding this court’s upon a time was based one constituted (1972), Clinic, that when Melnyk v. Cleveland the one- body surgery, a after patient’s left inside foreign objects negligently are discovers, by exercise is until the or the patient of limitations tolled year statute discovered, Melnyk, act. the negligent should have diligence of reasonable like repose. Accordingly, however, not the enactment of statute of did involve Groch, that the relevant statute support majority’s fails to the conclusion Sherk time. control what constitutes a reasonable limitations should 2305.131(A)(2) Bright-Line A Rule Defies R.C. further “no to look that there is reason majority’s The determination to find a Assembly of the measure reasonable-
than the enactments General ness,” majority the that confusing light is fact the majority opinion, of R.C. Assembly’s to the enactment any fails to consideration General give 2305.131(A)(2). R.C. to Similar 2305.131(A)(2) in R.C. period established provides for an extension of 2305.131(A)(1). may commence civil to recover a claimant Specifically, and discovery of the of that defective damages within date two to the years prior than two unsafe if the cause of action accrues less condition 2305.131(A)(2). litigants Accordingly, of the expiration ten-year period. 2305.131(A)(2), has intent Assembly expressed by affected General The two, four, pursue right. time to a vested a reasonable Oaktree, Assembly and allows ignores by this enactment the General majority its stale, amount of time significantly pursue whose claim is more double the 2305.131(A)(2)have. those to R.C. litigants subject claim that Legislative Intent of R.C. 2305.131 any Finally, give fails to consideration the General majority enacting intent in R.C. 2305.131. Assembly’s specifically purpose stated and “is a intended Assembly specific provision stated that R.C. 2305.131 General four-year underlying general interest than the interest promote greater 3(B)(1), No. 2305.09. Am.Sub.S.B. Section statute of limitations” R.C. Laws, V, Assembly recognized Additionally, Part the General they control over the complete project, lose professionals once construction project. with respect no have the to take action project longer 3(B)(2). Further, Assembly cognizant the General Id. at Section issues involving litigation, stale such as the availability evidence and witnesses and the burdens associated with the maintenance of records pertaining to 3(B)(3). construction services. Id. at Section Accordingly, enacting R.C. 2305.131, the General Assembly sought to a rational “strike[ balance between ] rights of prospective claimants and the rights design professionals, contractors, construction and construction subcontractors.” Id.
3(B)(5). The majority’s analysis is any devoid of discussion of the General
{¶28} Assembly’s specifically purpose stated By intent. failing discuss and purpose harmonize the and intent of R.C. 2305.131with holding, its majority is perpetuating the exact concerns that the General Assembly sought to avoid with Therefore, the enactment of R.C. 2305.131. decreeing R.C. 2305.09 prescribes time,” a “reasonable the majority is advancing policy own statute, which we should not do. court has nothing “[A] to do with policy wisdom of a statute. That is the exclusive concern of legislative branch of the *8 government.” State ex Bishop rel. v. Mt. Village Edn., Orab School Dist. Bd. of 139 Ohio St.
Conclusion In determining time,” “reasonable we must balance a party’s vested right with the enactment of R.C. 2305.131 and its intent and purpose. Based upon the I foregoing, believe that this would be achieved concluding that a reasonable time should be determined as a matter of law based on particular facts of each case. case, In this I would conclude that Oaktree did not seek to enforce its
vested within a reasonable time. Oaktree placed on notice of its claims against 31, Hallmark on 7, 2005, 2003. On April R.C. 2305.131 took effect. Oaktree filed its complaint first Hallmark on December This action was voluntarily dismissed by Oaktree on August 2006. Oaktree refiled the complaint on August 2007, allowing another to pass before seeking enforce its vested right. The delay seeking enforce its vested right more than two years after the effective date of R.C. almost four years after being placed claims, on notice of its and 17 after construction was completed was unreasonable. I Accordingly, would affirm the judgment of
the court of appeals on other grounds. JJ., concur in the foregoing opinion. French,
O’Donnell Co., Ott & L.P.A., Associates Ott, Steven M. Aquino, Amanda L. and Nicole D. LeClair, for appellant. Adams, appellee A. Roche, Beverly F. Young, Patrick
Davis & Building Company. Hallmark Herrnstein, Sferra, urging L.L.P., and Kara Eckler, Anne Marie
Bricker &
curiae,
Alliance for Civil Justice.
amicus
affirmance for
Appellee.
Myers,
Judge,
Fears, Appellant,
v.
ex rel.
The State
Myers,
rel.
ex
Fears
State
[Cite as
273,
his
for writ of mandamus.
*9
reasons,
following
him
For the
grant
sentencing hearing.
court to
a new
affirm.
court of
dismissed Fears’s
and we
appeals properly
complaint,
relief to
adequate
by appeal
postconviction
Fears had
remedies at law
Parrott, 82 Ohio
sentencing
Sampson
review his claimed
error. State ex rel.
(1998),
Rogers,
ex rel. Massie v.
77 Ohio
citing
St.3d