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Minaya v. NVR, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 14, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-855517

          ATTORNEY FOR APPELLANTS John F. Burke Burkes Law, L.L.C.

          ATTORNEYS FOR APPELLEES For NVR, Inc., d.b.a. Ryan Homes, Inc. Leo M. Spellacy Thrasher Dinsmore & Dolan Ryan P. Sherman Porter Wright Morris & Arthur

          For City of Strongsville James A. Climer Frank H. Scialdone Mazanec Raskin, Ryder Co., L.P.A. Kenneth A. Kraus Law Director City of Strongsville Law Department

          BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.


          MELODY J. STEWART, J.

         {¶1} Shortly after moving into a house they purchased, plaintiff-appellants Nadia and Misael Minaya and their five children suffered unexplained health issues. They later discovered black mold in various locations in their house. Subsequent home inspections uncovered what they described as "numerous problems with the home" that caused water penetration. They brought suit against the builder of the house, defendant-appellee NVR, Inc., d.b.a. Ryan Homes, Inc. They alleged Ryan Homes fraudulently designed the house, was grossly negligent in building the house, and concealed these facts, with the result being water infiltration and the formation of black mold that proximately caused their health issues. The Minayas also brought claims against defendant-appellee city of Strongsville (the "city") alleging that it did not inspect the house before issuing a certificate of occupancy and was otherwise negligent in failing to inspect the house. The counts against both defendants sought an award of punitive damages.[1]

         {¶2} Ryan Homes filed a motion to dismiss the complaint on grounds that the house was built in 1988 and the Minayas' claims, filed in 2015, were barred by the ten-year statute of repose. The city filed a motion for judgment on the pleadings claiming that it was immune from suit, owed no duty of care to the Minayas, and that it could not be liable for punitive damages. The court granted both motions and this appeal followed. The two assignments of error challenge both the dismissal in favor of Ryan Homes and judgment on the pleadings in favor of the city.

         I. Motion to Dismiss

         {¶3} The basis for Ryan Homes' motion to dismiss was that the Minayas' claims were barred by the ten-year statute of repose in R.C. 2305.131 because the company built the home in 1988 and that the Minayas did not bring their claims until 2015. Ryan Homes acknowledged that the Minayas pleaded fraud, a cause of action that is outside the statute of repose, but maintained that the Minayas did not plead their fraud claim with the requisite particularity and, in any event, that Ryan Homes made no representations of any kind to the Minayas, who it claimed were at least the third owners of the house.

         {¶4} Civ.R. 12(B)(6) states that a complaint is not subject to dismissal for failure to state a claim upon which relief may be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). Therefore, "[a]s long as there is a set of facts, consistent with the plaintiffs complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

         {¶5} A "statute of repose extinguishes a cause of action after a fixed period of time, regardless of when the cause of action accrued." Jones v. Walker Mfg. Co., 8th Dist. Cuyahoga No. 97301, 2012-Ohio-1546, ¶ 3, citing Sedar v. Knowlton Const. Co., 49 Ohio St.3d 193, 195, 551 N.E.2d 938 (1990). With respect to damages for bodily injury arising out of defective and unsafe conditions of an improvement to real property, no cause of action shall accrue "later than ten years from the date of substantial completion or improvement." R.C. 2305.131(A)(1). The intent behind R.C. 2305.131 is, among other things, to recognize that after the completion of the construction of an improvement to real property, builders lack control over the improvement and have no ability to maintain the premises, lack control over the effects that weather might have to the improvement, and that it would place an unacceptable burden on builders to maintain records and other documentation pertaining to design and construction for a period in excess of ten years. See Section 3(B) of S.B. 80.

         {¶6} There is an exception to the affirmative defense of the statute of repose that exists "if the defendant engages in fraud in regard to furnishing the design, planning, supervision of construction, or construction of an improvement to real property * * *." R.C. 2305.131(C).

         {¶7} The Minayas brought two causes of against Ryan Homes: Count 1 alleged fraudulent concealment; Count 2 alleged ...

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