Court of Appeals of Ohio, Eighth District, Cuyahoga
NADIA MINAYA, ET AL. PLAINTIFFS-APPELLANTS
NVR, INC., D.B.A. RYAN HOMES, INC., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
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
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.
JOURNAL ENTRY AND OPINION
J. STEWART, J.
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
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.
Motion to Dismiss
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.
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
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.
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).
The Minayas brought two causes of against Ryan Homes: Count 1
alleged fraudulent concealment; Count 2 alleged ...