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New Riegel Local School District v. Buehrer Group Architecture & Engineering, Inc.

Court of Appeals of Ohio, Third District, Seneca

November 13, 2017

NEW RIEGEL LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION, PLAINTIFF-APPELLANT,
v.
THE BUEHRER GROUP ARCHITECTURE & ENGINEERING, INC., ET AL., DEFENDANTS-APPELLEES. and STATE OF OHIO, PLAINTIFF-APPELLEE, 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.

         Appeal from Seneca County Common Pleas Court Trial Court No. 15 CV 0115

          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.

         {¶2} This case arises from the construction of a new Kindergarten through 12th Grade School Facility Project ("the Project") built as part of the Ohio Classroom Facilities Assistance Program. Doc. 2. As a result of the Project, the School entered into contracts with multiple contractors starting in February of 2000. Id. SOI contracted with the school to serve as the general trades contractor for the Project. Id. CCS contracted with the school to serve as the roofing contractor for the Project. The School began occupying the school building on December 19, 2002, Doc. 88, Ex. K. The State issued a Certificate of Completion transferring all of the interest of the State in the Project to the School on March 3, 2004. Doc. 24.

         {¶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 July 31, 2015, also denying the allegations in the complaint and listing several affirmative defenses including the statute of repose. Doc. 35.

         {¶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 Civil Rule 12(C). Doc. 70. SOI claimed that the claims raised by the School were time-barred by the statute of repose as set forth in R.C. 2305.131(A)(1). Id. The School filed its memorandum in opposition to this motion on March 4, 2016. Doc. 73. SOI then filed its reply to the memorandum of the School. Doc. 75

         {¶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 Civil Rule 12(C). Doc. 95. The School filed its memorandum in opposition to the motion on July 13, 2016. Doc. 102. A reply was filed by SOI on July 20, 2016. Doc. 107. On August 24, 2016, the trial court granted SOI's motion for judgment on the pleadings. Doc. 116. This judgment was based upon the statute of repose as set forth in R.C. 2305.131. Id.

         {¶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 judgment dismissing CCS and OFIC. Doc. 143. This judgment was assigned appellate case number 13-17-06. The other judgments were assigned case numbers 13-17-04 (dismissal of case against the Buehrer ...


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