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New Riegel Local School District v. The Buehrer Group Architecture & Engineering, Inc.

Court of Appeals of Ohio, Third District, Seneca

December 9, 2019

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, NEW RIEGEL LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION, PLAINTIFF-APPELLANT, and STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
THE BUEHRER GROUP ARCHITECTURE & ENGINEERING, INC., ET AL., DEFENDANTS-APPELLEES. NEW RIEGEL LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION, PLAINTIFF-APPELLANT, and STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
THE BUEHRER GROUP ARCHITECTURE & ENGINEERING, INC., ET AL., DEFENDANTS-APPELLEES.

          Appeal from Seneca County Common Pleas Court Trial Court Nos. 15 CV 0115

         Judgment Affirmed

          Christopher L. McCloskey and Tarik Kershah for Appellant

          Gregory D. Brunton and Allison R. Thomas for The Buehrer Group Architecture & Engineering, Inc.

          Marc A. Sanchez for Ohio Farmers Insurance Company

          Shannon J. George and Matthew T. Davis for Studer-Obringer, Inc.

          P. Kohl Schneider, Colleen A. Mountcastle and Melanie R. Irvine for Charles Construction Services, Inc.

          OPINION

          WILLAMOWSKI, J.

         {¶1} These appeals are before this court upon remand from the Ohio Supreme Court. New Riegel Local School Dist. Bd. of Education v. Buehrer Group Architecture & Engineering, Inc., et al, 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482. Plaintiff-appellant New Riegel Local School District Board of Education ("the School") brought 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"), Studer-Obringer, Inc. ("SOI"), Charles Construction Services, Inc. ("CCS"), and Ohio Farmers Insurance Company ("OFIC"). For the reasons set forth below, the judgments are affirmed.

         {¶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. The Group contracted with the School to provide professional design services for the Project. SOI contracted with the school to serve as the general trades contractor for the Project. Id. CCS contracted with the school to serve as the roofing contractor for the Project. 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 Group, SOI, CCS, and American Buildings Company, among others, 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 alleged that both SOI and CCS had breached its contract by failing to conform to the requisite standard of care to perform in a workmanlike manner. Doc. 2. The Group, SOI, and CCS filed answers denying the allegations in the complaint and listing several affirmative defenses, including the statute of repose. Doc. 21, 34, and 35. On February 10, 2016, the School filed an amended complaint raising the same alleged breach of contract claims against the Group, SOI, and CCS as the first complaint did. Doc. 62. The Group, SOI and CCS all filed answers to the amended complaint raising the same affirmative defenses. Doc. 65, 67, and 68. The Group and SOI filed motions for judgment on the pleadings pursuant to Civil Rule 12(C). Doc. 70 and 71. Both 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). Id. The School filed memoranda in opposition to these motions. Doc. 73 and 79.

         {¶4} The School then filed a second amended complaint on June 10, 2016. Doc. 88. This complaint added OFIC as a defendant as the surety for SOI, but did not make any changes to the claims against SOI, the Group, or CCS. Id. The Group, SOI, CCS, and OFIC all filed answers to the second amended complaint Doc. 93, 99, 102, 113. The Group and SOI then renewed their respective motions for judgment on the pleadings pursuant to Civil Rule 12(C). Doc. 95 and 108. On August 24, 2016, the trial court granted the Group's and SOI's motions for judgment on the pleadings. Doc. 116 and 117. These judgments were based upon the statute of repose as set forth in R.C. 2305.131. Id. .

         {¶5} After the trial court had granted both SOI's and the Group's motions for judgment on the pleadings based upon the statute of repose, CCS filed its own motion for judgment on the pleadings also based upon the statute of repose. Doc. 124. On October 31, 2017, the trial court granted CCS's motion for judgment on the pleadings. Doc. 129. Likewise, OFIC filed a motion for judgment on the pleadings on September 6, 2016. Doc. 119. OFIC argued that since SOI was dismissed, OFIC was no longer liable as the surety for SOI and must also be dismissed. Id. The School filed its response to OFIC's motion on September 9, 2016. Doc. 120. In the same entry that granted CCS' motion for judgment on the pleadings, the trial court also granted OFIC's motion for judgment on the pleadings and both parties were dismissed. Doc. 129.

         {¶6} On January 25, 2017, the School filed notices of appeal from these judgments of dismissal. Doc. 134, 137, and 143. The judgment dismissing SOI was assigned appellate case number 13-17-03. The judgment dismissing OFIC and CCS was assigned appellate case number 13-17-06. The dismissal of the Buehrer Group was assigned appellate case number 13-17-04. On appeal, these cases were all reversed on the grounds that pursuant to the holding of the Ohio Supreme Court in Kocisko v. Charles Shutrump & Sons Co., et al., 21 Ohio St.3d 98, 488 N.E.2d 171 (1986), the statute of repose did not apply to a breach of contract case, only those based in tort. Id. at 99. Since the causes of action in the cases before us, when read in a light most favorable to the School, were based upon breaches of contract claims, this Court determined it had no choice but to follow Supreme Court precedent and find the statute of repose to be inapplicable. See New Riegel Local School Dist. Bd. of Education, et al. v. The Buehrer Group Architecture & Engineering, Inc., et al., 3d Dist. Seneca Nos. 13-17-03, 13-17-04, and 13-17-06, 2017-Ohio-8522 and 2017-Ohio-8521. SOI, CCS, the Group, and OFIC ...


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