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New Riegel Local School District v. The 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,

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

          Christopher L. McCloskey and Tarik Kershah for Appellant

          Michael J. Valentine for Appellees, The Buehrer Group Architecture & Engineering, Inc. and Estate of Huber H. Buehrer

          OPINION

          WILLAMOWKSI, 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-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.

         {¶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. 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.

         {¶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, 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.

         {¶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 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.

         {¶5} 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.

         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, R.C. 2305.131, barred [the School's] claims for breach of contract.

         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 only 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 13-17-06 respectively.

         {¶6} 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 ...


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