NEW RIEGEL LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION, PLAINTIFF-APPELLANT,
THE BUEHRER GROUP ARCHITECTURE & ENGINEERING, INC., ET AL., DEFENDANTS-APPELLEES. and STATE OF OHIO, PLAINTIFF-APPELLEE,
from Seneca County Common Pleas Court Trial Court No. 15 CV
Christopher L. McCloskey and Tarik Kershah for Appellant
Michael J. Valentine for Appellees, The Buehrer Group
Architecture & Engineering, Inc. and Estate of Huber H.
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-appellants the Buehrer Group Architecture &
Engineering, Inc. ("the Group"), the Estate of
Huber H. Buehrer ("the Estate") (collectively known
as "the Buehrer Group"). For the reasons set forth
below, the judgment is affirmed in part and reversed in part.
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. One of
these contractors was the Buehrer Group. Id. The
Group contracted with the school to provide professional
design services for the Project. Id. at Ex. A. 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.
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, Studer-Obringer Inc. ("SOI"), Charles
Construction Services ("CCS"), and American
Buildings Company as defendants. Id. The complaint
alleged in Count One that the Group breached its contract by
failing to perform in accord with professional standards by
failing "to properly design the roofing system and
through-wall flashing system for the Project in a manner
which prevented moisture intrusion, heat loss, and
condensation related issues, [failing] to properly observe
and report its findings related to defective work, [failing]
to make appropriate recommendations for repair and
improvement, and [failing] to comply with all state and local
statutory requirements." Id. at 7. The
complaint also claimed that the Estate was liable for the
debts of the Group because Hubert H. Buehrer acted as a
promoter of an unincorporated entity. Id. at 8. The
Buehrer Group filed its answer to the complaint on June 3,
2015, denying the allegations in the complaint and listing
several affirmative defenses. Doc. 21 and 22. The Estate
specifically claimed that the claim was barred by R.C.
2117.06. Doc. 22 at 10. On September 8, 2015, the Buehrer
Group filed a motion for judgment on the pleadings. Doc. 36.
The School filed its response on September 25, 2015. Doc. 45.
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 the Buehrer Group as the first complaint did. Doc.
62. The Buehrer Group filed its answer to the amended
complaint on February 23, 2016. Doc. 67. The answer denied
the allegations of the amended complaint and raised the same
affirmative defenses. Id. On February 29, 2016, The
Buehrer Group filed a motion for judgment on the pleadings
pursuant to Civil Rule 12(C). Doc. 71. The Buehrer Group
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),
by the statute of limitations for professional negligence,
and by R.C. 2117.06. Id. The School filed its
memorandum in opposition to this motion on March 29, 2016.
Doc. 79. The Buehrer Group then filed its reply to the
memorandum of the School. Doc. 80.
The School then filed a second amended complaint on June 10,
2016. Doc. 88. This complaint added Ohio Farmers Insurance
Co. ("OFIC") as a defendant as the surety for SOI,
but did not make any changes to the claims against the
Buehrer Group. Id. The Buehrer Group filed its
answer to the second amended complaint on June 29, 2016. Doc.
99. On July 25, 2016, The Buehrer Group renewed its motion
for judgment on the pleadings pursuant to Civil Rule 12(C).
Doc. 108. The School filed its memorandum in opposition to
the motion on July 29, 2016. Doc. 109. A reply was filed by
the Buehrer Group on August 3, 2016. Doc. 110. On August 24,
2016, the trial court granted the Buehrer Group's motion
for judgment on the pleadings. Doc. 117. This judgment was
based upon the statute of repose as set forth in R.C.
2305.131. Id. On January 25, 2017, the School filed
its notice of appeal from this judgment granting the Buehrer
Group's motion to dismiss, as well as other judgments in
the case. Doc. 137. This judgment was assigned appellate case
number 13-17-04. The other judgments were assigned case
numbers 13-17-03 (dismissal of case against SOI), 13-17-05
(dismissal of the State as a party), and 13-17-06 (dismissal
of case against CCS and OFIC). On appeal, the School raises
the following assignments of error.
Assignment of Error
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, R.C.
2305.131, barred [the School's] claims for breach of
Assignment of Error
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
Assignment of Error
trial court erred in finding that [the School] does not
have authority to bring its action in the name of [the
Assignment of Error
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].
the first assignment of error applies to the Buehrer Group,
that is the only assignment of error that will be addressed
in this opinion. The remaining assignments of error will be
addressed in Appellate Case Numbers 13-17-03, 13-17-05, and
In the first assignment of error, as it applies to the
Buehrer Group, the School claims that the trial court erred
in dismissing with prejudice the claims against the Group and
the Estate. The dismissal was granted by the trial court
pursuant to the statute of repose which limits actions for
damages based upon defective and unsafe conditions in
improvements to real property.
(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 ...