Coughlin v. Acock Assoc. Architects, L.L.C. ( 2011 )


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  • [Cite as Coughlin v. Acock Assoc. Architects, L.L.C. , 
    2011-Ohio-3212
    .]
    COURT OF APPEALS
    DELAWARE COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    :      JUDGES:
    JOHN COUGHLIN, et al.,                                :      John W. Wise, P.J.
    :      Julie A. Edwards, J.
    Plaintiffs-Appellants           :      Patricia A. Delaney, J.
    :
    -vs-                                                  :      Case No. 10CAE060044
    :
    :
    ACOCK ASSOCIATES                                      :      OPINION
    ARCHITECTS, LLC, et al.,
    Defendants-Appellees
    CHARACTER OF PROCEEDING:                                       Civil Appeal from Delaware County
    Court of Common Pleas Case No.
    08-CV-A-10-1455
    JUDGMENT:                                                      Affirmed
    DATE OF JUDGMENT ENTRY:                                        June 27, 2011
    APPEARANCES:
    For Plaintiffs-Appellants                                      For Defendants-Appellees
    BRIAN L. BUZBY                                                 JOSEPH E. CAVASINNI
    DANIEL B. MILLER                                               Reminger Co., LPA
    Porter, Wright, Morris &                                       1400 Midland Building
    Arthur, LLP                                                    101 Prospect Avenue, West
    41 South High Street                                           Cleveland, Ohio 44115-1093
    Columbus, Ohio 43215-6194
    J. MILES GIBSON                                                For Michael Matrka, Inc.
    Wiles Boyle Burkholder & Bringardner, LPA
    300 Spruce Street – Floor One                                  LUTHER L. LIGGETT, JR.
    Columbus, Ohio 43215                                           Luper, Neidenthal & Logan
    50 West Broad Street – Suite 1200
    Columbus, Ohio 43215-3374
    [Cite as Coughlin v. Acock Assoc. Architects, L.L.C. , 
    2011-Ohio-3212
    .]
    Edwards, J.
    {¶1}     Plaintiffs-appellants, John Coughlin and Diana Coughlin, appeal from the
    May 11, 2010, Judgment Entry of the Delaware County Court of Common Pleas
    granting the Motion for Summary Judgment filed by defendant-appellee Acock
    Associates Architects, LLC.
    STATEMENT OF THE FACTS AND CASE
    {¶2}     In approximately June of 1998, appellants John and Diana Coughlin
    retained appellee Acock Associates Architects, LLC to provide architectural and design
    services for an approximately $2.6 million dollar project involving a master bedroom
    addition to their home. The parties had an oral contract.                 On or about November of
    1998, appellants also engaged Michael Matrka, Inc. to serve as their contractor on the
    project. The construction project was completed on or about 2002 according to
    appellants’ amended complaint.
    {¶3}     Sometime after the completion of the project, appellants began to
    experience water intrusion through the stone façade of their house, leaking around
    skylights and cracked skylight glass. During her deposition, appellant Diana Coughlin
    testified that the project was completed in January or February of 2001. She testified
    that right after her daughter was born in March of 2001, the roof started leaking and that
    appellants attempted to make Band-aid repairs. She testified that she believed that in
    the summer of 2001, water was trailing down the stone wall behind appellants’ master
    bed and also in an area where the bridge meets the stone wall. When asked how bad
    the leak was, she testified that it was “[f]airly bad. You could see pretty substantial
    stains running down the wall, so maybe six inches wide, the length of the wall.”
    Delaware County App. Case No. 10CAE060044                                                3
    Deposition of Diana Coughlin at 35. Appellant Diana Coughlin further testified, when
    asked whether she thought that some work was done improperly, that the “leaks would
    indicate that that was not done properly.” Id at 36. She further testified that the leaking
    was a continual problem and equated it to the show Green Acres.
    {¶4}   Appellant Diana Coughlin further testified that maybe a few months after
    the leak in the wall, which was in July of 2001, there were leaks in an area where there
    was fiber optic lighting and that drywall started falling. She testified that the skylights
    above their bed leaked, causing debris to fall, and that the skylight panels cracked
    shortly after July 2001. When asked for a more specific time frame, she testified that
    she thought the skylight leaking and cracking occurred maybe five months later. As a
    result, glass panels had to be replaced. According to appellant Diana Coughlin, the
    skylights continued leaking. She also testified that all of the leaks occurred within the
    first year of the project being completed and that condensation on the bedroom
    windows was continuous and was so bad that thick ice formed inside the windows.
    According to appellant Diana Coughlin there were also leaks on both sides of a semi-
    circular window at the end of her closet within the first year.
    {¶5}   When questioned about how many times the roofer came out to deal with
    the problems with the skylight in her closet, appellant Diana Coughlin testified as
    follows:
    {¶6}   “A. Maybe two or three times. All of these were pretty - - have been
    ongoing until we just made the decision to just go ahead and get Ralph involved and
    see what it’s really going to take to - - you know, we had been Band-Aiding for years,
    from replacing granite in the hallways to where it leaked, replacing the flooring because
    Delaware County App. Case No. 10CAE060044                                                4
    it cracked. You know, the leaks were just becoming more than just a nuisance; they
    were becoming a structural ….
    {¶7}   “You know, and when the mold started to grow, you just don’t want to
    mess around with that stuff, so ….” Deposition of Diana Coughlin at 59.
    {¶8}    She also testified that there were leaks outside the shower, in the ceiling
    of her husband’s closet, and that there was a leak from the bathtub that leaked down to
    the sauna. In all, leaks and other water related problems developed in at least 16 areas
    of the master bedroom addition.
    {¶9}   The following is an excerpt from appellant Diana Coughlin’s deposition
    testimony:
    {¶10} “Q. So the skylight leaked continuously.       Was that skylight above the
    shower, was it the same situation where Band-Aid repairs were made on several
    occasions until - -
    {¶11} “A. Not so much on that one because we replaced the glass and we just
    started putting a pan underneath it.
    {¶12} “Q. All right.
    {¶13} “A. Literally, like Green Acres.
    {¶14} “And so, at that point, when this got to that level, it’s just – it was – you
    know, we had replaced the glass. It just was to the point like, ‘Okay, this is all going to
    cave in here in a moment, so let’s’ - - we could Band-Aid until we’re 99, so let’s get
    Ralph in here and see: How involved is this going to be? How integral do we have to
    get? Can they Band-Aid it on the top? Is there something they can do that’s easy to
    fix?” Deposition of Diana Coughlin at 63.
    Delaware County App. Case No. 10CAE060044                                             5
    {¶15} Appellant John Coughlin, during his deposition, testified that soon after
    completion of construction, they saw moisture on the windows and that you could not
    see out of them. He further testified that water from the windows would run down and
    get all over the carpet or floor or whatever was beneath the window and would ruin the
    same. Appellant John Coughlin testified that water came through the skylights and that
    they had to be replaced more than once and that water “came through the – between
    the roof and the stone. It pretty much came through just about everywhere.” Deposition
    of John Coughlin at 51. He testified that the roof leaked everywhere and that water
    came through the roof and got underneath tile in the bathroom and pushed the tile up.
    As a result, the bathtub was broken. He further testified that as a result of the leaks,
    appellants “slept with an umbrella for a long time.” Id at 65.
    {¶16} In June 2006 or early 2007, appellants hired Ralph Fallon Builders to
    remedy the problems.
    {¶17} On October 31, 2008, appellants filed a complaint against appellee
    alleging negligence, breach of contract, promissory estoppel and quantum meruit. On
    January 20, 2009, appellants filed an amended complaint adding Michael Matrka, Inc.
    as a defendant. Matrka subsequently filed a Motion to Dismiss the complaint alleging
    that appellants had, after terminating him, signed a release of all claims against him.
    The trial court converted such motion to a Motion for Summary Judgment and, as
    memorialized in a Judgment Entry filed on December 16, 2009, granted such motion.
    {¶18} Thereafter, on March 1, 2010, appellee filed a Motion for Summary
    Judgment. Appellee, in its motion, alleged that appellants’ claims were barred by the
    Delaware County App. Case No. 10CAE060044                                                  6
    applicable statute of limitations. Pursuant to a Judgment Entry filed on May 11, 2011,
    the trial court granted such motion.
    {¶19} Appellants now raise the following assignments of error on appeal:
    {¶20} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
    PURSUANT TO CIVIL RULE 56 THAT DETERMINED CONTESTED ISSUES OF
    FACT RESERVED FOR THE JURY AND WAS CONTRARY TO LAW DISMISSING
    PLAINTIFFS, JOHN AND DIANA COUGHLIN’S CLAIMS THAT DEFENDANT, ACOCK
    ASSOCIATES ARCHITECTS, LLC, WAS NEGLIGENT IN THE PERFORMANCE OF
    ITS WORK ON PLAINTIFFS’ BEHALF.
    {¶21} “II. THE TRIAL COURT ERRED IN GRANTING A SUMMARY
    JUDGMENT PURSUANT TO CIVIL RULE 56 THAT DETERMINED CONTESTED
    ISSUES OF FACT RESERVED FOR A JURY AND WAS CONTRARY TO LAW
    DISMISSING PLAINTIFFS, JOHN AND DIANA COUGHLIN’S CLAIMS THAT
    DEFENDANT,       ACOCK       ASSOCIATES        ARCHITECTS,       LLC,    BREACHED        ITS
    CONTRACT WITH PLAINTIFFS.”
    Summary Judgment Standard
    {¶22} Summary judgment proceedings present the appellate court with the
    unique opportunity of reviewing the evidence in the same manner as the trial court.
    Smiddy v. The Wedding Party, Inc. (1987), 
    30 Ohio St.3d 35
    , 36, 
    506 N.E.2d 212
    . As
    such, we must refer to Civ.R. 56 which provides, in pertinent part: “* * * Summary
    judgment shall be rendered forthwith if the pleadings, depositions, answers to
    interrogatories, written admissions, affidavits, transcripts of evidence in the pending
    case and written stipulations of fact, if any, timely filed in the action, show that there is
    Delaware County App. Case No. 10CAE060044                                                7
    no genuine issue as to any material fact and that the moving party is entitled to
    judgment as a matter of law. * * * A summary judgment shall not be rendered unless it
    appears from such evidence or stipulation and only therefrom, that reasonable minds
    can come to but one conclusion and that conclusion is adverse to the party against
    whom the motion for summary judgment is made, such party being entitled to have the
    evidence or stipulation construed most strongly in the party's favor. * * * ”
    {¶23} Pursuant to the above rule, a trial court may not enter a summary
    judgment if it appears a material fact is genuinely disputed. The party moving for
    summary judgment bears the initial burden of informing the trial court of the basis for its
    motion and identifying those portions of the record that demonstrate the absence of a
    genuine issue of material fact. The moving party may not make a conclusory assertion
    that the non-moving party has no evidence to prove its case. The moving party must
    specifically point to some evidence which demonstrates the non-moving party cannot
    support its claim. If the moving party satisfies this requirement, the burden shifts to the
    non-moving party to set forth specific facts demonstrating there is a genuine issue of
    material fact for trial. Vahila v. Hall, 
    77 Ohio St.3d 421
    , 429, 1997–Ohio–259, 
    674 N.E.2d 1164
    , citing Dresher v. Burt, 
    75 Ohio St.3d 280
    , 1996–Ohio–107, 
    662 N.E.2d 264
    .
    {¶24} It is pursuant to this standard that we review appellants’ assignments of
    error.
    Delaware County App. Case No. 10CAE060044                                                 8
    I
    {¶25} Appellants, in their first assignment of error, argue that the trial court erred
    in granting summary judgment to appellee on appellants’ negligence claim. We
    disagree.
    {¶26} As is stated above, the trial court found that appellant’s negligence claim
    was barred by the statute of limitations contained in R.C. 2305.09. The parties agree
    that appellants’ negligence claim against appellee is subject to the four year statute of
    limitations contained in R.C. 2305.09(D). “Tort actions for injury or damage to real
    property are subject to the four-year statute of limitations set forth in R.C. 2305.09(D).”
    Harris v. Liston, 
    86 Ohio St.3d 203
    , 
    1999-Ohio-159
    , 
    714 N.E.2d 377
    , paragraph one of
    the syllabus. The limitations period begins to run “when it is first discovered, or through
    the exercise of reasonable diligence it should have been discovered, that there is
    damage to the property.” 
    Id.
     at paragraph two of the syllabus. See Sexton v. Mason,
    
    117 Ohio St.3d 275
    , 
    2008 Ohio 858
    , 
    883 N.E.2d 1013
    , at paragraphs 52-53. The Ohio
    Supreme Court has defined reasonable diligence as a “fair, proper, and due degree of
    care and activity, measured with reference to the particular circumstances; such
    diligence, care, or attention as might be expected from a man of ordinary prudence and
    activity.” Sizemore v. Smith (1983), 
    6 Ohio St.3d 330
    , 332, 
    453 N.E.2d 632
    . The court
    emphasized, “[W]hat constitutes reasonable diligence will depend on the facts and
    circumstances of each particular case.” 
    Id.
    {¶27} The trial court, in its decision, found that “damage to the addition occurred
    at least as early as the summer of 2001, which is the time [appellants] discovered, or
    should have discovered, that a problem existed regarding the construction of the
    Delaware County App. Case No. 10CAE060044                                                 9
    addition” and that, therefore, appellants’ negligence claim occurred “well over four years
    before the date they filed their complaint in this case on October 31, 2008.” We agree.
    {¶28} As is stated above, appellant Diane Coughlin testified that the roof started
    leaking right after her daughter was born in March of 2001. She testified that the project
    was completed January or February of 2001 and that the roof started “leaking probably
    that summer.” Deposition of Diane Coughlin at 33. While she was unable to specify
    specific dates when the leaking occurred, she testified that the leaking occurred soon
    after the project was completed. During her deposition, she further testified that there
    was a leak where the bridge met the stone wall in the summer of 2001 and that the leak
    was “[f]airly bad. You could see pretty substantial stains running down the wall, so
    maybe six inches wide, the length of the wall.” Deposition of Diana Coughlin at 35. She
    further testified that, in her mind, the leaks indicated that the work was not done
    properly and that the leaking was a continual problem. She testified that she “equate[d]
    it to the show, Green Acres, They had pots and pans under the---.” Deposition of Diana
    Coughlin at 39.
    {¶29} During her deposition, appellant Diana Coughlin further testified that the
    leaking was a continual problem, from roughly the summer of 2001 until appellants hired
    Ralph Fallen Builders to repair the problems in late 2006 or early 2007. When
    questioned about the numerous leaks, she testified that “they were all very similar
    chronologically” and that they occurred within the first year. Deposition of Diana
    Coughlin at 50. Appellant Diana Coughlin further testified that she did not care why the
    leaking was occurring, but just wanted the problems fixed.
    Delaware County App. Case No. 10CAE060044                                                10
    {¶30} Appellants, in their brief, contend that appellee told them that their house
    was “unique and complicated, and that they could expect ongoing substantial and
    complex maintenance issues.” According to appellants, based upon appellee’s advice,
    they expected to have to perform a lot of maintenance and upkeep on their home and
    “did not view the leaks and other such issues as indicating defective work but as
    maintenance issues that could easily and routinely be fixed.” On such basis, appellants
    maintain that there is a genuine issue of material fact as to when they should have
    discovered their claim against appellee.
    {¶31} However, as is stated above, appellant Diana Coughlin testified that in her
    mind, the leaks indicated that the work was not done properly. Furthermore, the leaks to
    appellants’ property were numerous, continual and substantial, causing significant
    damage. Testimony was adduced during Diana Coughlin’s deposition that the leaking
    caused skylight panels to leak and crack and that water ran down windows onto the
    floor causing damage to the underlying flooring. During her deposition, she further
    testified that, due to the leaking, appellants’ replaced cracked skylights where the
    leaking occurred and replaced flooring that had cracked. She further testified that, as a
    result of the leaking, mold was growing and that the glass in the skylights above the
    shower leaked before they shattered. According to appellant Diana Coughlin, as a result
    of leaking near the fiber optic lighting, drywall started falling. Testimony also was
    adduced during appellant John Coughlin’s deposition that the leak along the stone wall
    ruined the carpeting, the bed headboard and caused the floor to buckle. Clearly, these
    problems did not, as appellants contend, indicate maintenance issues that could easily
    and routinely be fixed. We concur with the trial court that appellants, at least as early as
    Delaware County App. Case No. 10CAE060044                                            11
    the summer of 2001, discovered or should have discovered that problems existed
    regarding construction of the master bedroom addition.
    {¶32} Based on the foregoing, we find that the trial court did not err in holding
    that appellants’ cause of action for negligence accrued as early as the summer of 2001
    and in holding that appellants’ negligence claim against appellee, which occurred more
    than four years before they filed their complaint against appellee in October 31, 2008,
    was time barred under R.C. 2305.09.
    {¶33} Appellants’ first assignment of error is, therefore, overruled.
    II
    {¶34} Appellants, in their second assignment of error, argue that the trial court
    erred in granting summary judgment to appellee on their breach of contract claim. We
    disagree.
    {¶35} The parties in the case sub judice agree that appellants’ claim that
    appellee breached the parties’ oral contract is governed by R.C. 2305.07. Such section
    states as follows: “Except as provided in sections 126.301 and 1302.98 of the Revised
    Code, an action upon a contract not in writing, express or implied, or upon a liability
    created by statute other than a forfeiture or penalty, shall be brought within six years
    after the cause thereof accrued.”
    {¶36} However, the parties disagree as to when appellants’ cause of action
    accrued. Appellants maintain that appellee was still performing its contract as late as
    January of 2003. In their surreply memorandum contra appellee’s Motion for Summary
    Judgment, appellants attached appellant John Coughlin’s affidavit. Appellant John
    Coughlin, in his affidavit, stated that appellants had one contract with appellee on the
    Delaware County App. Case No. 10CAE060044                                                12
    project at issue in the case sub judice, and that all bills that they received from appellee
    were based on the one contract for the one project. Appellants, in their brief, note that
    attached to appellant John Coughlin’s affidavit was an invoice dated January 17, 2003,
    from appellee to appellant for architectural services from November 1, 2002, through
    January 3, 2003. Appellants argue that their complaint was timely filed because it was
    filed on October 31, 2008, which is within six years of January 17, 2003. They argue
    that they could not file a breach of contract action against appellee until appellee had
    completed all of the work under the contract, which they contend occurred as late as
    January of 2003.
    {¶37} In turn, appellee contends that its performance on the master bedroom
    addition was completed in 2001, and that, at the time work on such project was
    completed in early June of 2001, the parties did not have any agreement with respect to
    appellee providing interior design services for the remainder of appellants’ home.
    Appellee maintains that, beginning in March of 2002, appellants again retained appellee
    “to provide interior design services with respect to redecorating and selecting
    furnishings for other portions of [appellants’] home.” In short, appellee maintains that
    there were two separate contracts for two separate projects, one for the master
    bedroom addition and the other for an interior decorating project, and that the work on
    the master bedroom addition was completed in 2001. Because appellants did not file
    their breach of contract action until more than six years after such date, appellee
    maintains that the same is time-barred.
    {¶38} A breach occurs upon any failure to perform a contractual duty. Kotyk v.
    Rebovich (1993), 
    87 Ohio App.3d 116
    , 121, 
    621 N.E.2d 897
    . A cause of action for
    Delaware County App. Case No. 10CAE060044                                             13
    breach on the contract accrues when the plaintiff discovers the omission to perform as
    agreed. Id at 121, citing Cleveland Bd. of Edn. v. Lesko (Apr. 12, 1990), Cuyahoga App.
    No. 56592, 
    1990 WL 43640
    , unreported. See also Aluminum Line Products Co. v. Brad
    Smith Roofing Co., Inc. (1996), 
    109 Ohio App.3d 246
    , 
    671 N.E.2d 1343
    .
    {¶39} Appellants, in their brief, rely on O’Bryon v. Poff, Wayne App. No.
    02CA0061, 
    2003-Ohio-3405
     for the proposition that a claim for failure to perform a
    contract cannot begin to run until the time for performance of the contract ends. On the
    basis of such case, appellants argue that no breach in this case could have occurred
    until the project was completed as late as January of 2003.
    {¶40} However, we find such case distinguishable. In O’Bryon, the appellee had
    an oral agreement to lease her land to the appellant for farming use during the years
    1994 and 1995. The appellee alleged that she agreed to lease the land to the appellant
    in exchange for replacing an underground drain on her property and that the appellant
    failed to do so. It was undisputed that the appellant did not perform work on the drain
    line.
    {¶41} The appellee, in O’Bryon, then filed a complaint against the appellant on
    August 31, 2001, seeking to enforce the oral agreement. The appellant alleged that the
    same was barred by the six year statute of limitations contained in R.C. 2305.07 for oral
    contracts. In O’Bryon the court held, in relevant part as follows: “A breach occurs upon
    any failure to perform a contractual duty. Thus, the cause of action arises when the
    plaintiff discovers the omission to perform as agreed in the oral contract.” [Citations
    omitted.] Harris v. Oliver (Nov. 28, 2001), 9th Dist. No. 20508, citing Kotyk v. Rebovich
    (1993), 
    87 Ohio App.3d 116
    , 121, 
    621 N.E.2d 897
    .
    Delaware County App. Case No. 10CAE060044                                                14
    {¶42} “There is no testimony in the record regarding when Mr. Poff was to have
    completed work on the drainage line, or, alternatively, when the monetary payment for
    the rental of the property was due. The trial court found that the cause of action for the
    lease accrued on September 29, 1995, apparently using the date of the invoice created
    by Ms. O'Bryon. Because there was no set date by which time Mr. Poff had to complete
    the drainage line, the breach did not occur until the end of the lease. The lease ended in
    1995, therefore the breach occurred in 1995. Ms. O'Bryon filed her complaint in 2001,
    within the six year statute of limitations.” Id at 34-35.
    {¶43} Unlike in O’Bryon, in the case sub judice, the work on the master bedroom
    addition was actually completed. According to appellant Diana Coughlin’s testimony,
    the work was completed in 2001.          According to her testimony, the leaks appeared
    shortly thereafter and were substantial and continual causing significant structural
    problems. At such time, appellants discovered appellee’s alleged failure to perform as
    agreed in the parties’ oral contract. We concur with the trial court that appellants’ breach
    of contract claim occurred over six years before they filed their complaint on October 31,
    2008 and that, therefore, appellants’ breach of contract claim is time-barred under R.C.
    2305.07.
    Delaware County App. Case No. 10CAE060044                                       15
    {¶44} Appellants’ second assignment of error is, therefore, overruled.
    {¶45} Accordingly, the judgment of the Delaware County Court of Common
    Pleas is affirmed.
    By: Edwards, J.
    Wise, P.J. and
    Delaney, J. concur
    ______________________________
    ______________________________
    ______________________________
    JUDGES
    JAE/d0505
    [Cite as Coughlin v. Acock Assoc. Architects, L.L.C. , 
    2011-Ohio-3212
    .]
    IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    JOHN COUGHLIN, et al.,                                 :
    :
    Plaintiffs-Appellants         :
    :
    :
    -vs-                                                   :        JUDGMENT ENTRY
    :
    ACOCK ASSOCIATES ARCHITECTS,                           :
    LLC, et al.,                                           :
    :
    Defendants-Appellees             :        CASE NO. 10CAE060044
    For the reasons stated in our accompanying Memorandum-Opinion on file, the
    judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed
    to appellants.
    _________________________________
    _________________________________
    _________________________________
    JUDGES
    

Document Info

Docket Number: 10CAE060044

Judges: Edwards

Filed Date: 6/27/2011

Precedential Status: Precedential

Modified Date: 10/30/2014