Bd. of Educ. v. Colaianni Constr.

• Docket Number: 22 BE 0032,22 BE 0033
• Decision Date: 28 June 2023
• Citation: 2023 Ohio 2285
• Parties: BOARD OF EDUCATION OF MARTINS FERRY CITY SCHOOL DISTRICT, Plaintiff-Appellant, v. COLAIANNI CONSTRUCTION, INC. ET AL., Defendants-Appellees.
• Court: Ohio Court of Appeals

1

2023-Ohio-2285

BOARD OF EDUCATION OF MARTINS FERRY CITY SCHOOL DISTRICT, Plaintiff-Appellant, v. COLAIANNI CONSTRUCTION, INC. ET AL., Defendants-Appellees.

Nos. 22 BE 0032, 22 BE 0033

Court of Appeals of Ohio, Seventh District, Belmont

June 28, 2023

Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case Nos. 19 CV 0132, 19 CV 0133

Atty Nelson M. Reid, Atty. Tarik M. Kershah, Atty. Benjamin B Hyden and Atty. Samuel Lewis, Bricker & Eckler LLP, Ohio 43215, for Plaintiff-Appellant and

Atty Donald W. Gregory, Atty. Michael J. Madigan and Atty Nicholas S. Bobb, Kegler Brown Hill & Ritter Co., Ohio 43215, for Defendants-Appellees Colaianni Construction, Inc. and Ohio Farmers Insurance Company and

Atty. Thomas L. Rosenberg, Roetzel & Andress, LPA, Ohio 43215. Atty. Rachael L. Russo and Atty. Lauryn T. Robinson, Roetzel & Andress, LPA, Ohio 44114, for Defendant-Appellee MKC Architects, Inc. and

Atty. Royce R. Remington, Atty. Matthew K. Grashoff, Atty. Christina T. Hassel and Atty. Aaron S. Evenchik, Hahn Loeser & Parks LLP, Ohio 44114, for Defendants-Appellees R.A.M.E., Inc.; Cincinnati Insurance Company; The Hartley Company d/b/a Saup-Hartley; and Ohio Farmers Insurance Company (as Surety for Saup-Hartley) and

Atty. John P. Maxwell and Atty. Matthew P. Mullen, Krugliak, Wilkins, Griffiths & Dougherty Co., LPA, Ohio 44663, for Defendant-Appellee R.A.M.E., Inc. and

Atty. Evan J. Palik, Collins, Roche, Utley & Garner, LLC, Ohio 44311, for Defendant-Appellee The Hartley Company d/b/a Saup-Hartley.

BEFORE: David A. D'Apolito, Carol Ann Robb, Mark A. Hanni, Judges.

OPINION AND JUDGMENT ENTRY

D'Apolito, P.J.

{¶1} Appellant, Board of Education of Martins Ferry City School District, appeals the entry of summary judgment by the Belmont County Court of Common Pleas in favor of Appellees, Colaianni Construction, Inc. ("Colaianni")(general contractor), MKC Architects, Inc. ("MKC")(architect), R.A.M.E., Inc. ("R.A.M.E.")(roofing contractor), Cincinnati Insurance Company ("CIC")(as surety for R.A.M.E.), Hartley Company d/b/a Saup-Hartley ("Saup-Hartley")(roofing contractor), and Ohio Farmers Insurance Company ("OFIC")(as surety for Colaianni and Saup-Hartley), in this action for breach of construction contracts. The trial court concluded that Appellant's breach of contract and express warranty claims were time-barred based on R.C. 2305.131, a statute of repose that generally forecloses claims against architects and building contractors asserted ten years after the date of substantial completion of a construction project. Having dismissed the claims against the contractors as time-barred, the trial court likewise dismissed the claims against the contractors' sureties.

{¶2} Although Appellant advances two assignments of error, Appellant asserts within the first assignment of error, two statutory interpretation challenges to R.C. 2305.131, as well as a constitutional challenge based on the application of the statute to the architectural design contract in this case, which was executed prior to the enactment of the statute. Appellant further asserts in the first assignment of error that two exceptions to the application of the ten-year statute of repose apply: First, Appellant alleges Appellees engaged in fraud and, second, Appellees provided express warranties beyond ten years. In the second assignment of error, Appellant argues that the trial court erred in dismissing the breach of contract claims against the sureties predicated solely upon dismissal of the same claims against the building contractors.

{¶3} For the following reasons, the judgment of the trial court is affirmed.

STANDARD OF REVIEW

{¶4} This appeal is from a trial court judgment resolving a motion for summary judgment. An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must determine that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is "material" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc, Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).

{¶5} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party's favor. Doe v. Skaggs, 7th Dist. Belmont No. 18 BE 0005, 2018-Ohio-5402, ¶ 11.

{¶6} The evidentiary materials to support a motion for summary judgment are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. In resolving the motion, the court views the evidence in a light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.

LAW

{¶7} Although a statute of repose and a statute of limitations both limit the time a defendant is required to defend a claim, they have distinct applications. Antoon v. Cleveland Clinic Found, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 11, citing CTS Corp. v. Waldburger, 573 U.S. 1, 7, 134 S.Ct. 2175, 2182, 189 L.Ed.2d 62 (2014). A statute of limitations provides "a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered)." Antoon, 148 Ohio St.3d at 483, 71 N.E.3d 974, quoting Black's Law Dictionary 1636 (10th Ed. 2014). See also CTS Corp., 573 U.S. at 8, 134 S.Ct. 2175 (a statute of limitations requires the diligent prosecution of known claims). "A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant." CTS Corp., 573 U.S. at 8, 134 S.Ct. 2175 (a repose provision is equivalent to "a cutoff" or an "absolute bar" representing a legislative judgment that the defendant should be free from liability after a set period has elapsed from a certain act of the defendant).

{¶8} A statute of repose bars any suit that is brought after a specified time since the defendant acted, even if the designated period ends before the plaintiff has suffered a resulting injury. New Riegel Local School Dist. Bd. of Education v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, ¶ 11, 133 N.E.3d 482, citing Black's Law Dictionary 1637 (10th Ed. 2014). The repose period begins to run when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted. Id.

{¶9} R.C. 2305.131(A)(1), reads in relevant part:

[N]o cause of action to recover damages for * * * an injury to real * * * property, * * * 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 * * * an injury to real * * * property, * * * 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.

"Substantial completion" is defined as "the date the improvement to real property is first used by the owner or tenant of the real property or when the real property is first available for use after having the improvement completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first." R.C. 2305.131(G).

{¶10} Although the accrual of a cause of action is typically a consideration relevant to the statute of limitations, the General Assembly employed the term "accrue" in the current version of the statute of repose applicable in this appeal. The history of the statute explains the use of the term.

{¶11} With the codification of R.C. 2305.131 in 1963, Ohio joined the many states that had enacted construction statutes in the late 1950s and early 1960s in response to the expansion of the common-law liability of architects and builders to third parties with whom they lacked privity of contract. Sedar v. Knowlton Constr. Co., 49 Ohio St.3d 193, 195, 551 N.E.2d 938 (1990), overruled on other grounds, Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 639 N.E.2d 425 (1994). Twenty-three years later, in Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98,...