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State v. Karl R. Rohrer Associates, Inc.

Court of Appeals of Ohio, Fifth District, Tuscarawas

January 8, 2018

STATE OF OHIO, BY AND THROUGH JERRY WRAY, DIRECTOR, OHIO DEPARTMENT OF TRANSPORTATION, ET AL. Plaintiff-Appellants
v.
KARL R. ROHRER ASSOCIATES, INC. Defendant-Appellee

         Appeal from the Tuscarawas County Common Pleas Court, Case No. 2015CV030118

          For Plaintiff-Appellants MICHAEL DEWINE Ohio Attorney General CRAIG D. BARCLAY WILLIAM C. BECKER Assistant Attorneys General

          For Defendant-Appellee BRIAN T. WINCHESTER PATRICK J. GUMP McNeal Schick Archibald & Biro Co., LPA For Amicus Curiae, AIA Ohio LUTHER L. LIGGETT, JR. Graff and McGovern LPA

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          HOFFMAN, J.

         {¶1} Appellants State of Ohio, by and through Jerry Wray, Director, Ohio Department of Transportation and Ohio Department of Administrative Services, n/k/a Ohio Facilities Construction Commission, appeal the directed verdict entered by the Tuscarawas County Common Pleas Court dismissing their breach of contract action against Appellee Karl R. Rohrer Associates Inc.

         STATEMENT OF THE FACTS AND CASE

         {¶2} In 1992, and 1993, Appellee submitted two proposals to provide engineering services for the construction of the Ohio Department of Transportation (hereinafter "ODOT") District 11 garage in New Philadelphia, Ohio. Appellee signed an agreement with the Ohio Department of Administrative Services (hereinafter "ODAS") to provide design services related to structural engineering and related supervision for the construction of the garage. Structural designs for the project were provided by the State Architect's Office (hereinafter "SAO").

         {¶3} In 1997, the SAO became aware of issues with the brick around five windows of the completed building. Appellee paid ODAS $68, 000.00 to remediate the issue around the windows.

         {¶4} Appellants later claimed all windows showed some degree of impermissible rotation of the steel supporting the brick, causing the brick around the windows to crumble and/or crack. Appellants further claimed the two-plus-story garage walls of the facility were not adequately supported. Appellants filed the instant action on March 3, 2015, for negligence, breach of contract, and declaratory judgment.

         {¶5} On September 28, 2015, Appellee filed a motion for judgment on the pleadings, arguing Appellants' complaint was barred by Ohio's statute of repose, R.C. 2305.131. The trial overruled the motion on December 31, 2015, finding R.C. 2305.131 is generally worded and does not say it applies to the State, and Appellants were exempt from operation of the statute by the doctrine of nullum tempus.

         {¶6} The case proceeded to jury trial on February 22 and 23, 2017. Prior to trial, Appellants dismissed their claims for negligence and for declaratory judgment.

         {¶7} At the close of the presentation of Appellants' case at trial, Appellee moved for directed verdict on various grounds, again arguing the action was barred by R.C. 2305.131. Tr. 445. The trial court directed a verdict as follows:

Based upon evidence illicited [sic] by the Plaintiffs from Defendant's principal, the Agreement was acknowledged, the Defendant stated that the work was performed, and the Defendant affirmed that it was paid upon completion of the work.
Based upon the evidence presented by Plaintiffs' expert, the claims for damage were proximately caused by inadequate design, regarding the standard of care for engineering.
The Complaint, Pre-trial Statement, and finally, the evidence at trial, presented a claim in tort. See Crowninshield/Old Town Cmty. Urban Redevelopment Corp. v. Campeon Roofing & Waterproofing, 1st Dist. Hamilton Nos. C-940731, C-940748, 1996 Ohio App. Lexis 1514 (Apr. 17, 1996). The claims and opinions demonstrate a belief that the Defendant failed in its rendering of services in the practice of a profession to exercise that degree of skill and learning normally applied by members of that profession in similar circumstances. See Illinois National Insurance Co., v. Wiles, Boyle, Burkholder & Bringardner Co., LPA, 10th Dist. Franklin No. 10AP-290, 2010-Ohio-5872.
Therefore, the Court found that the evidence presented in support of the breach of contract sounds in tort, and that the Plaintiffs failed to present any evidence that the Defendant breached the contract. Judgment Entry, February 28, 2017.

         {¶8} From this entry Appellants prosecute their appeal, assigning as error:

"THE TRIAL COURT ERRED IN GRANTING DEFENDANTS MOTION FOR DIRECTED VERDICT AND FINDING THAT THE STATE OF OHIO'S CASE 'SOUNDED IN TORT AND THAT THE STATE COULD ONLY SUE IN TORT DESPITE IT HAVING A CONTRACT WITH A DESIGN ENGINEER AND THEN GOING ON TO INCONSISTENTLY HOLD THAT THE STATE OF OHIO FAILED TO PROVE A BREACH OF CONTRACT CLAIM (AS THOUGH THE CASE ALSO 'SOUNDED IN CONTRACT)."

         {¶9} Appellee assigns the following cross-assignments of error to the judgment of the trial court:

"I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS, MOTION FOR RECONSIDERATION, AND MOTION FOR DIRECTED VERDICT THAT PLAINTIFFS' CLAIMS WERE BARRED BY THE STATUTE OF REPOSE.
"II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS TO PLAINTIFF OHIO DEPARTMENT OF TRANSPORTATION'S LACK OF CONTRACTUAL PRIVITY WITH THE DEFENDANT.
"III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS TO PLAINTIFF OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES' LACK OF STANDING.
"IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS THE PLAINTIFFS FAILED TO PRESENT EVIDENCE THAT IT SUBSTANTIALLY PERFORMED THE APPLICABLE CONTRACT.
"V. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE AN AMENDED ANSWER OR TO ALLOW ITS ANSWER TO CONFORM TO THE EVIDENCE.
"VI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS PLAINTIFFS' CLAIMS WERE BARRED BY THE DOCTRINE OF ACCORD AND SATISFACTION.
"VII. THE TRIAL COURT ERRED IN DENYING DEFENDANTS MOTION FOR DIRECTED VERDICT AS THE PLAINTIFFS FAILED TO PRESENT ANY EVIDENCE AS TO THE DIMINUTION IN VALUE OF ...

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