New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as New
Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., Slip Opinion
No. 2019-Ohio-2851.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-2851
NEW RIEGEL LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, APPELLEE, v.
BUEHRER GROUP ARCHITECTURE & ENGINEERING, INC., ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group
Architecture & Eng., Inc., Slip Opinion No. 2019-Ohio-2851.]
Contracts—Construction statute of repose, R.C. 2305.131—Court of appeals erred
in reversing trial court’s dismissal of school district’s breach-of-contract
claims as time-barred and in applying stare decisis to hold that current
version of R.C. 2305.131 applies only to tort claims—Construction statute
of repose is not limited to tort actions but also applies to contract actions
that meet requirements of R.C. 2305.131—Court of appeals’ judgments
reversed and causes remanded.
(Nos. 2018-0189 and 2018-0213—Submitted March 5, 2019—Decided July 17,
2019.)
APPEALS from the Court of Appeals for Seneca County, No. 13-17-04, 2017-
Ohio-8522, and Nos. 13-17-03 and 13-17-06, 2017-Ohio-8521.
SUPREME COURT OF OHIO
_____________________
FRENCH, J.
{¶ 1} These consolidated appeals ask whether Ohio’s construction statute
of repose, R.C. 2305.131, applies to actions sounding in contract as well as to
actions sounding in tort. We hold that R.C. 2305.131, as enacted in Am.Sub.S.B.
No. 80, 150 Ohio Laws, Part V, 7915, 7937-7938, applies to any cause of action,
whether sounding in tort or contract, so long as the cause of action meets the
requirements of the statute.
Facts and Procedural Background
{¶ 2} These appeals arise from the design and construction of a public-
school building (the “Project”) for the New Riegel Local School District. The
Project, which was substantially completed and approved for occupancy in
December 2002, was built as part of the Ohio Classroom Facilities Assistance
Program, administered by the Ohio School Facilities Commission. Appellee, the
New Riegel Local School District Board of Education (“New Riegel”), alleges that
condensation, moisture intrusion, and other deficiencies exist in various areas of
the Project, as a result of improper design and construction.
{¶ 3} The Buehrer Group Architecture & Engineering contracted with New
Riegel to provide design services for the Project; New Riegel alleges that the
subsequently incorporated Buehrer Group Architecture & Engineering, Inc.
(collectively, with the unincorporated entity, “the Buehrer Group”), adopted,
benefited from, and provided services for New Riegel on the contract. Studer-
Obringer, Inc., and Charles Construction Services, Inc., served as the general-trades
contractor and the roofing contractor, respectively, on the Project, pursuant to
contracts with the state; New Riegel was an intended beneficiary of those contracts.
In January 2015, New Riegel served the Buehrer Group, Studer-Obringer, and
Charles Construction with notices of claims regarding alleged defects in the school
building. The Buehrer Group, Charles Construction, Studer-Obringer, and Ohio
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Farmers Insurance Company—the surety for Studer-Obringer and Charles
Construction—are appellants here.
{¶ 4} New Riegel filed this action in April 2015.1 New Riegel’s second
amended complaint asserts claims against the Buehrer Group, the Estate of Huber
H. Buehrer, Studer-Obringer, Charles Construction, American Buildings Company
d.b.a. Architectural Metal Systems, and Ohio Farmers. As relevant here, New
Riegel alleges claims for breach of contract against the Buehrer Group, Studer-
Obringer, and Charles Construction; a claim for breach of express warranty against
Charles Construction; and claims against Ohio Farmers on its surety bonds. It
alleges that the Buehrer Group, Studer-Obringer, and Charles Construction “failed
to provide [services or work] in conformance to the terms of” their contracts and
that Studer-Obringer and Charles Construction failed to conform “with the requisite
standard of care to perform in a workmanlike manner.” New Riegel alleges that as
a result, it has incurred damages, including damages for “physical damage to
property.”
{¶ 5} In their answers and/or motions for judgment on the pleadings,
appellants argued that the statute of repose in R.C. 2305.131 barred New Riegel’s
claims because substantial completion of the Project occurred more than ten years
before New Riegel filed its claims. The trial court granted appellants’ motions for
judgment on the pleadings and dismissed as time-barred New Riegel’s breach-of-
contract claims against the Buehrer Group, Studer-Obringer, and Charles
Construction. The trial court also dismissed New Riegel’s claim against Ohio
Farmers as surety for Studer-Obringer. Pursuant to Civ.R. 54(B), the trial court
certified that there was no just reason for delay and that the judgment entries were
final, appealable orders.
1. The original complaint named the Ohio School Facilities Commission as an involuntary plaintiff,
but New Riegel dropped the Ohio School Facilities Commission as an involuntary plaintiff when it
filed its first amended complaint.
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{¶ 6} The Third District Court of Appeals reversed the trial court’s
judgment in two opinions containing nearly identical language. Although it stated
that R.C. 2305.131, on its face, appeared to bar New Riegel’s breach-of-contract
claims, the Third District determined that it was required to follow this court’s
decision in Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St. 3d 98, 488 N.E.2d
171 (1986), and to hold that R.C. 2305.131 does not apply to claims for breach of
contract. 2017-Ohio-8521, ¶ 11; 2017-Ohio-8522, ¶ 8. Having determined that
R.C. 2305.131 does not apply to breach-of-contract claims, the Third District did
not address New Riegel’s assignment of error arguing that R.C. 2305.131 does not
bar its claims against Studer-Obringer and Charles Construction, because the state,
with which those entities had contracted, is not subject to statutes of repose. 2017-
Ohio-8521 at ¶ 14.
{¶ 7} This court accepted and consolidated appellants’ discretionary
appeals. 152 Ohio St. 3d 1478, 2018-Ohio-1990, 98 N.E.3d 293. Although phrased
differently by different appellants, the accepted propositions of law essentially ask
this court to hold (1) that R.C. 2305.131’s statute of repose applies to both tort and
contract actions and (2) that stare decisis should not be applied when, as here, the
General Assembly has repealed and replaced the statute construed in the precedent.
Standard of Review
{¶ 8} The trial court entered judgment on the pleadings for appellants
pursuant to Civ.R. 12(C). Dismissal is appropriate under Civ.R. 12(C) when a court
construes as true the material allegations in the complaint, along with all reasonable
inferences to be drawn therefrom, and finds, beyond doubt, that the plaintiff can
prove no set of facts that would entitle him to relief. State ex rel. Midwest Pride
IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 570, 664 N.E.2d 931 (1996). Appellate
review of a judgment on the pleadings involves only questions of law and is
therefore de novo. Rayess v. Educational Comm. for Foreign Med. Graduates, 134
Ohio St. 3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18. Similarly, questions of
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statutory construction constitute legal issues that we decide de novo on appeal. New
York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd. of Rev., 150 Ohio St. 3d
386, 2016-Ohio-7582, 82 N.E.3d 1105, ¶ 8.
Analysis
{¶ 9} The overarching issue before this court is the meaning of the current
version of R.C. 2305.131(A)(1), enacted as part of Am.Sub.S.B. No. 80, 150 Ohio
Laws, Part V, 7915, and, particularly, whether the current statute applies to actions
sounding in contract as well as to actions sounding in tort. In making that
determination, we consider whether we are constrained by the doctrine of stare
decisis. But before turning to the question of stare decisis, we briefly review the
history of R.C. 2305.131.
The evolution of R.C. 2305.131
{¶ 10} The General Assembly first enacted R.C. 2305.131 in 1963.
Am.S.B. No. 112, 130 Ohio Laws, Part I, 648. With the enactment of R.C.
2305.131, Ohio joined the many states that had enacted construction statutes of
repose 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), citing Hartford Fire Ins. Co. v. Lawrence,
Dykes, Goodenberger, Bower & Clancy, 740 F.2d 1362, 1368 (6th Cir.1984);
Kocisko, 21 Ohio St. 3d at 101, 488 N.E.2d 171 (Wright, J., dissenting) (“Almost
every state, including Ohio, enacted this type of statute, recognizing that architects
and builders were exposed to liability for an indefinite time due to the longevity of
buildings”); see also 2 Acret and Perrochet, Construction Litigation Handbook,
Section 22:4, at 1249-1250 (2018-2019 Ed.2018).
{¶ 11} A statute of repose is a statute that bars “any suit that is brought after
a specified time since the defendant acted * * *, even if this period ends before the
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plaintiff has suffered a resulting injury.” 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., quoting 54 Corpus Juris Secundum, Limitations of Actions, Section
4, at 20-21 (1987).
{¶ 12} This court first addressed R.C. 2305.131 in Kocisko. The relevant
version of the statute, enacted in 1971, stated:
No action to recover damages for any injury to property, real
or personal, or for bodily injury or wrongful death, arising out of the
defective and unsafe condition of an improvement to real property,
nor any action for contribution or indemnity for damages sustained
as a result of said injury, shall be brought against any person
performing services for or furnishing the design, planning,
supervision of construction, or construction of such improvement to
real property, more than ten years after the performance or
furnishing of such services and construction. This limitation does
not apply to actions against any person in actual possession and
control as owner, tenant, or otherwise of the improvement at the time
the defective and unsafe condition of such improvement constitutes
the proximate cause of the injury or damage for which the action is
brought.
Am.S.B. No. 307, 134 Ohio Laws, Part I, 529, 530.
{¶ 13} We noted in Kocisko that the 1971 version of R.C. 2305.131 applied
only to “actions for injury to real or personal property, bodily injury, or wrongful
death, ‘arising out of the defective and unsafe condition of an improvement to real
property.’ ” Kocisko, 21 Ohio St. 3d at 99, 488 N.E.2d 171, quoting Am.S.B. No.
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January Term, 2019
307, 134 Ohio Laws, Part I, at 530. We stated that the statutory language was
“uniformly used to describe tortious conduct” and that the statute’s use of the terms
“ ‘defective’ and ‘unsafe’ to describe the improvements at issue distinguish[ed] the
actions contemplated within the statute from warranty or other contractual claims.”
(Emphasis sic.) Id. We therefore held that the 1971 version of R.C. 2305.131
applied only to tort actions. Id. at the syllabus.
{¶ 14} In 1994, this court held that the 1971 version of R.C. 2305.131—the
version at issue in Kocisko—violated the right to a remedy guaranteed by Article I,
Section 16 of the Ohio Constitution because it deprived claimants of the right to
sue before they knew or could have known about their injuries. Brennaman, 70
Ohio St. 3d at 466-467, 639 N.E.2d 425, overruling Sedar, 49 Ohio St. 3d 193, 551
N.E.2d 938. Brennaman involved personal injuries that were incurred more than
ten years after the defendants provided design and engineering services relating to
the construction of a titanium metal plant. If applicable, the 1971 version of R.C.
2305.131 would have barred the plaintiffs’ claims before they ever suffered an
injury. We stated, “At a minimum, Section 16, Article I requires that the plaintiffs
have a reasonable period of time to enter the courthouse to seek compensation after
the accident.” Id. at 466.
{¶ 15} In 1996, partly in response to Brennaman, the General Assembly
repealed the 1971 version of R.C. 2305.131 and enacted a new version of the
statute, which began:
(A)(1) Notwithstanding an otherwise applicable period of
limitations specified in this chapter and except as otherwise
provided in divisions (A)(2), (A)(3), (C), and (D) of this section, no
cause of action to recover damages for an injury to real or personal
property, bodily injury, or wrongful death that arises out of a
defective and unsafe condition of an improvement to real property
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SUPREME COURT OF OHIO
* * * 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 fifteen years from the date
of the performance of the services or the furnishing of the design,
planning, supervision of construction, or construction.
Am.Sub.H.B. No. 350 (“H.B. 350”), 146 Ohio Laws, Part II, 3867, 3917.
{¶ 16} Whereas the 1971 version of R.C. 2305.131 precluded the
commencement of an action, the H.B. 350 version of R.C. 2305.131 precluded the
accrual of a cause of action. The General Assembly stated its understanding that
the H.B. 350 version of R.C. 2305.131 would not violate the right to a remedy,
because it did not deny a remedy to a claimant with a vested cause of action but
instead precluded a cause of action from ever vesting. Id. at Section 5(E)(5), 146
Ohio Laws, Part II, at 4022. But after this court held that H.B. 350 violated the
Ohio Constitution’s single-subject rule, State ex rel. Ohio Academy of Trial
Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999), paragraph three
of the syllabus, the General Assembly repealed R.C. 2305.131, “both as it results
from and as it existed prior to its repeal and re-enactment by” H.B. 350. Sub.S.B.
No. 108, Section 2.02(E), 149 Ohio Laws, Part I, 382, 499. The repeal took effect
on July 6, 2001. Id. at Section 9, 149 Ohio Laws, Part I, at 511.
{¶ 17} In 2004, the General Assembly enacted the current version of R.C.
2305.131, which is substantially similar to the H.B. 350 version of the statute. It
begins:
(A)(1) Notwithstanding an otherwise applicable period of
limitations specified in this chapter or in section 2125.02 of the
Revised Code and except as otherwise provided in divisions (A)(2),
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January Term, 2019
(A)(3), (C), and (D) of this section, no cause of action to recover
damages for bodily injury, an injury to real or personal property, or
wrongful death 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.
Am.Sub.S.B. No. 80, 150 Ohio Laws, Part V, at 7937-7938. The General Assembly
recognized that the availability of evidence pertaining to an improvement to real
property more than ten years after completion is problematic and that it is an
unacceptable burden to require the maintenance of records and documentation
pertaining to an improvement to real property for more than ten years after
completion. Id. at Section 3(B)(3) and (4), 150 Ohio Laws, Part V, at 8029. It
intended the current version of R.C. 2305.131 “to preclude the pitfalls of stale
litigation.” Id. at Section 3(B)(5), 150 Ohio Laws, Part V, at 8029.
Stare decisis
{¶ 18} The Third District held that stare decisis required it to follow
Kocisko and to hold that the current version of R.C. 2305.131, like the 1971 version
of the statute, applies only to claims sounding in tort. 2017-Ohio-8521 at ¶ 11;
2017-Ohio-8522 at ¶ 8. The doctrine of stare decisis requires a court to recognize
and follow an established legal decision in subsequent cases in which the question
of law is again in controversy. Clark v. Snapper Power Equip., Inc., 21 Ohio St. 3d
58, 60, 488 N.E.2d 138 (1986). As a result, “[w]ell-reasoned opinions become
controlling precedent, thus creating stability and predictability in our legal system.”
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Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d
1256, ¶ 1.
{¶ 19} Considerations of stare decisis are particularly apt in the area of
statutory construction because if the legislature disagrees with a court’s
interpretation of a statute, it may amend the statute. Pearson v. Callahan, 555 U.S.
223, 233, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009); Rocky River v. State Emp.
Relations Bd., 43 Ohio St. 3d 1, 6, 539 N.E.2d 103 (1989). But questions about the
applicability of stare decisis arise when, as here, the legislature has amended a
statute subsequent to a judicial interpretation of the statute. Appellants argue that
stare decisis should not be applied here, because the General Assembly repealed
the version of R.C. 2305.131 addressed in Kocisko and has enacted a substantially
different version.
{¶ 20} We do not apply stare decisis to strike down legislation merely
because it is similar to a previous enactment that we found unconstitutional. Groch
v. Gen. Motors Corp., 117 Ohio St. 3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 104.
“To be covered by the blanket of stare decisis, the legislation must be phrased in
language that is substantially the same as that which we have previously
invalidated.” Id., citing Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-
Ohio-6948, 880 N.E.2d 420, ¶ 22-23. In Stetter v. R.J. Corman Derailment Servs.,
L.L.C., 125 Ohio St. 3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 39, we conducted
“a fresh review” of a statute that, despite a resemblance to previous legislation,
differed from the prior statute “in significant and important ways.” See also State
v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.3d 753, ¶ 33 (lead
opinion) (“as a threshold question, we must determine whether the statute and facts
presented today are the same as those presented in precedent”).
{¶ 21} New Riegel argues that Kocisko remains controlling because the
1971 and the current versions of R.C. 2305.131 similarly define the actions to
which they apply. The 1971 version of the statute applied to any “action to recover
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damages for any injury to property, real or personal, or for bodily injury or wrongful
death, arising out of the defective and unsafe condition of an improvement to real
property.” Am.Sub.S.B. No. 307, 134 Ohio Laws, Part I, at 530. The current
version of the statute applies to any “cause of action to recover damages for bodily
injury, an injury to real or personal property, or wrongful death that arises out of a
defective and unsafe condition of an improvement to real property.” R.C.
2305.131(A)(1). But while the specific language defining the scope of the statute’s
coverage has not substantially changed, we must now read that language in light of,
and in a manner consistent with, the expanded, current version of the statute.
{¶ 22} The current version of R.C. 2305.131 is sufficiently different from
the 1971 version of the statute “ ‘to avoid the blanket application of stare decisis,’ ”
Groch at ¶ 106, quoting Arbino at ¶ 24. Unlike the single-paragraph 1971 version
of R.C. 2305.131, the current version of the statute consists of nine paragraphs,
which set out exceptions to its application, situations that give rise to extensions of
the repose period, and instructions that it be applied in a remedial manner in any
civil action commenced on or after its effective date. The current version of R.C.
2305.131, unlike the 1971 version, expressly refers to contract-law concepts,
acknowledges that improvements to real property are generally designed and built
pursuant to contract, and applies notwithstanding other general statutes of
limitations, including those for contract actions. These substantial differences
between the 1971 and the current versions of R.C. 2305.131 warrant “a fresh
review” of the statute. Stetter at ¶ 39; see also McClure v. Alexander, 2d Dist.
Greene No. 2007 CA 98, 2008-Ohio-1313, ¶ 53, quoting Groch at ¶ 106 (holding
that the 1971 and the current versions of R.C. 2305.131 are “sufficiently different
* * * ‘to avoid the blanket application of stare decisis’ ”). We therefore conclude
that the Third District erred by applying the doctrine of stare decisis to hold that the
current version of R.C. 2305.131 applies only to tort claims.
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R.C. 2305.131 applies to both contract and tort claims
{¶ 23} Now, freed from the constraints of Kocisko, we turn to the current
version of R.C. 2305.131 to consider independently whether it applies to contract
claims as well as to tort claims.
{¶ 24} “The primary goal of statutory construction is to ascertain and give
effect to the legislature’s intent in enacting the statute.” State v. Lowe, 112 Ohio
St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. We read words and phrases in a
statute according to rules of grammar and common usage and in the context of the
whole statute. R.C. 1.42; Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St. 3d
96, 102, 543 N.E.2d 1188 (1989). And we presume that the General Assembly
intended the entire statute to be effective. R.C. 1.47(B). We may look beyond the
plain statutory language only when a definitive meaning remains elusive despite a
thorough, objective examination of the language. Ohio Neighborhood Fin., Inc. v.
Scott, 139 Ohio St. 3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 23, citing State v.
Porterfield, 106 Ohio St. 3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 11.
{¶ 25} R.C. 2305.131(A)(1) applies to “cause[s] of action to recover
damages for bodily injury, an injury to real or personal property, or wrongful death
that arise[] out of a defective and unsafe condition of an improvement to real
property.” Although this court stated in Kocisko, 21 Ohio St. 3d at 99, 488 N.E.2d
171, that similar language in the 1971 version of R.C. 2305.131 was “uniformly
used to describe tortious conduct,” that statement was shortsighted. More recently,
for example, Ohio courts have recognized that a plaintiff, in appropriate
circumstances, may seek damages for injury to property in an action for breach of
contract. See, e.g., Landis v. William Fannin Builders, Inc., 2011-Ohio-1489, 951
N.E.2d 1078, ¶ 36-38 (10th Dist.) (applying rule governing damages for temporary
injury to real property in breach-of-contract claim); Booth v. Duffy Homes, Inc.,
185 Ohio App. 3d 260, 2009-Ohio-6767, 923 N.E.2d 1175, ¶ 9, 13 (10th Dist.)
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(same); see also Bauman Chevrolet, Inc. v. Faust, 113 N.E.2d 769 (Erie C.P.1953)
(breach-of-contract claim sought damages for injury to personal property).
{¶ 26} Reading the current version of R.C. 2305.131 as a whole, we
conclude that Ohio’s construction statute of repose is not limited to tort actions but
also applies to contract actions that meet the requirements of the statute. See State
ex rel. Wray v. Karl R. Rohrer Assocs., Inc., 2018-Ohio-65, 104 N.E.3d 865, ¶ 30
(5th Dist.) (“It matters not whether the action is brought in tort or contract, if the
resultant damages are injury to property of the type set forth in R.C. 2305.131, the
statute applies”).
{¶ 27} R.C. 2305.131(A)(1) states that the repose period applies,
“[n]otwithstanding an otherwise applicable period of limitations specified in this
chapter.” R.C. Chapter 2305 includes statutes of limitations for contract claims,
see R.C. 2305.06 and 2305.07, as well as for tort claims, see R.C. 2305.09 and
2305.10. The uncodified language in Am.Sub.S.B. No. 80, Section 3(B)(1), 150
Ohio Laws, Part V, at 8028-8029, confirms the General Assembly’s intention that
the construction statute of repose “promote a greater interest than the interest
underlying” not only the general tort statutes of limitations in R.C. 2305.09 and
2305.10 but also the interest underlying “other general statutes of limitation
prescribed by the Revised Code.” Had the General Assembly intended the
construction statute of repose to apply only to tort claims, it could have specified
those statutes of limitations applicable to tort claims in the introductory phrase of
R.C. 2305.131(A)(1).
{¶ 28} Moreover, the General Assembly explicitly tied the commencement
of the repose period to contractual performance. The ten-year repose period
established in R.C. 2305.131(A)(1) begins to run upon “substantial completion” of
an 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
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accordance with the contract or agreement covering the improvement, including
any agreed changes to the contract or agreement, whichever occurs first.”
(Emphasis added.) R.C. 2305.131(G). By enacting that definition, the General
Assembly acknowledged that a defendant in an action to which R.C. 2305.131
applies—“a person who performed services for [an] improvement to real property
or a person who furnished the design, planning, supervision of construction, or
construction of [an] improvement to real property,” R.C. 2305.131(A)(1)—will
generally operate pursuant to a contract. New Riegel does not dispute that
“substantial completion” is a contract term, and it acknowledges that the
professionals listed in R.C. 2305.131 “always provide their services under
contracts.”
{¶ 29} Perhaps the most persuasive indication that the General Assembly
did not intend generally to exclude contract actions from the construction statute of
repose, however, is found in R.C. 2305.131(D), which specifically excludes from
the application of the statute of repose “a civil action for damages against a person
who has expressly warranted or guaranteed an improvement to real property for a
period longer than” the ten-year repose period. Express warranty is a creature of
contract. See Houston-Starr Co. v. Berea Brick & Tile Co., 197 F. Supp. 492, 499
(N.D.Ohio 1961). And if R.C. 2305.131(A)(1) did not otherwise apply to a
contractual warranty claim, the General Assembly would have had no reason to
exclude warranty claims from the operation of the statute. We assume that the
General Assembly does not use words or enact statutory provisions unnecessarily,
and we avoid construing a statute in a way that would render a portion of the statute
meaningless or inoperative. State v. Moore, 154 Ohio St. 3d 94, 2018-Ohio-3237,
111 N.E.3d 1146, ¶ 13, citing State ex rel. Myers v. Spencer Twp. Rural School
Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917).
{¶ 30} Reading R.C. 2305.131 as a whole and in a manner that gives effect
to all provisions of the statute, we conclude that Ohio’s construction statute of
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repose applies to all causes of action, whether sounding in tort or contract, that seek
“to recover damages for bodily injury, an injury to real or personal property, or
wrongful death that arise[] out of a defective and unsafe condition of an
improvement to real property * * * 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.”
This reading of the statute is consistent with the General Assembly’s stated
intention to protect defendants from having to defend against stale claims, see
Am.Sub.S.B. No. 80, Section 3(B)(3) through (5), 150 Ohio Laws, Part V, at 8029,
the perils of which are the same whether the underlying claim is based in contract
or tort.
Whether R.C. 2305.131 bars New Riegel’s claims is not before this court
{¶ 31} In an argument that goes beyond either proposition of law that this
court accepted, New Riegel argues that even if R.C. 2305.131 is applicable, the
statute does not bar its claims, which accrued within ten years after substantial
completion of the Project, because R.C. 2305.131(A)(1) does not limit
commencement of an action once a claim has accrued. According to New Riegel,
the 15-year statute of limitations for contract actions begins to run once a cause of
action accrues within the repose period and R.C. 2305.131(A)(1) does not shorten
the time to file an action on an accrued claim. In the court of appeals, New Riegel
argued that R.C. 2305.131 will never bar a breach-of-contract claim because such
a claim accrues, necessarily within the repose period, when the breach occurs, i.e.,
when an architect publishes a defective design or when defective construction is
performed. But the court of appeals did not address that argument.
{¶ 32} We do not decide the effect on these cases of our holding that R.C.
2305.131 applies to any cause of action, including a contract claim, that falls within
the scope of R.C. 2305.131(A)(1), because that issue is beyond the scope of the
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propositions of law that we accepted and because neither the trial court nor the court
of appeals addressed it.
Conclusion
{¶ 33} For these reasons, we reverse the judgments of the Third District
Court of Appeals and remand these cases to that court to address New Riegel’s
remaining arguments.
Judgments reversed
and causes remanded.
O’CONNOR, C.J., and FISCHER and DONNELLY, JJ., concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
STEWART, J., dissents, with an opinion.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 34} Because R.C. 2305.131 applies to all causes of action for damages
arising out of the defective and unsafe condition of an improvement brought against
a person who furnished the design, planning, supervision of construction, or
construction of that improvement, and because breach of contract is a cause of
action, e.g., Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St. 3d 453, 2018-Ohio-
15, 97 N.E.3d 458, ¶ 41, I concur in the court’s judgment to the extent that it
reverses the judgments of the Third District Court of Appeals.
{¶ 35} I write separately, however, to address the assertion that R.C.
2305.131(A)(1) does not bar commencement of an action once a claim has accrued.
Appellee, the New Riegel Local School District Board of Education, contends that
the General Assembly intended R.C. 2305.131(A)(1) to apply only to causes of
action sounding in tort, reasoning that “when a written contract exists related to the
design or construction of an improvement to real property, the statute of repose
would sit wholly impotent.” According to the school board, a breach-of-contract
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January Term, 2019
claim can never be limited by the construction statute of repose because such a
claim will always accrue before the ten-year period expires, and for this reason, the
school board maintains that “[i]t makes no sense to say that the General Assembly
intended” R.C. 2305.131(A)(1) to apply to breach-of-contract claims.
{¶ 36} Contrary to the majority’s analysis, this statutory-construction
argument responds directly to the propositions of law that we accepted for review.
We cannot decide the issue presented in this case without addressing the school
board’s argument. Moreover, an appellee such as the school board can defend a
judgment of the court of appeals with arguments that were not passed on by that
court, see O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-2574, 889 N.E.2d
505, ¶ 94, and “ ‘[r]eviewing courts are not authorized to reverse a correct judgment
on the basis that some or all of the lower court’s reasons are erroneous,’ ” Goudlock
v. Voorhies, 119 Ohio St. 3d 398, 2008-Ohio-4787, 894 N.E.2d 692, ¶ 12, quoting
State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St. 3d 72, 2003-Ohio-
5062, 796 N.E.2d 526, ¶ 8. The school board’s argument is therefore properly
before this court, and reaching it is necessary to decide this case. This court’s
remand of the case does nothing more than add further delay in resolving this
matter.
{¶ 37} In Oaktree Condominium Assn., Inc. v. Hallmark Bldg. Co., 139
Ohio St. 3d 264, 2014-Ohio-1937, 11 N.E.3d 266, we considered whether the
application of R.C. 2305.131 to the plaintiff violated the Ohio Constitution’s
prohibition on retroactive laws. The cause of action had accrued prior to the
enactment of the statute but was commenced more than ten years after construction
had been completed. We recognized that R.C. 2305.131 was a statutory bar to the
claim, because “[b]y its plain language, the real-property-construction statute of
repose, which became effective on April 7, 2005, applies to civil actions
commenced after the effective date of the statute regardless of when the cause of
action accrued.” (Emphasis added.) Id. at ¶ 8. And we noted that “[b]ecause [the
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plaintiff’s] cause of action accrued and vested before the April 7, 2005 effective
date of R.C. 2305.131, the retroactive application of the statute of repose would
take away [its] substantive right and conflict with Article II, Section 28 of the Ohio
Constitution.” Id. at ¶ 12. We therefore understood that the statute of repose bars
causes of action that had accrued but were not commenced prior to the running of
the ten-year period.
{¶ 38} The school board nonetheless asks us to construe the phrase “no
cause of action * * * shall accrue,” R.C. 2305.131(A)(1), to exempt causes of
actions that did in fact accrue during the ten-year repose period. It reasons that had
the General Assembly intended R.C. 2305.131 to be a true statute of repose, it
would have provided that no cause of action “shall be commenced” after ten years.
{¶ 39} However, we may not read individual words of a statute in isolation;
rather, we are obligated “to evaluate a statute ‘as a whole and giv[e] such
interpretation as will give effect to every word and clause in it. No part should be
treated as superfluous unless that is manifestly required, and the court should avoid
that construction which renders a provision meaningless or inoperative.’ ” Boley v.
Goodyear Tire & Rubber Co., 125 Ohio St. 3d 510, 2010-Ohio-2550, 929 N.E.2d
448, ¶ 21, quoting State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of
Edn. 95 Ohio St. 367, 373, 116 N.E. 516 (1917). “ ‘ “[S]ignificance and effect
should, if possible, be accorded to every word, phrase, sentence and part of an
act.” ’ ” Id., quoting Weaver v. Edwin Shaw Hosp., 104 Ohio St. 3d 390, 2004-
Ohio-6549, 819 N.E.2d 1079, ¶ 13, quoting Wachendorf v. Shaver, 149 Ohio St.
231, 78 N.E.2d 370 (1948), paragraph five of the syllabus.
{¶ 40} Construing R.C. 2305.131 as applying only to causes of action that
accrue after the ten-year repose period has expired would render large swaths of the
statute wholly superfluous. For example, R.C. 2305.131(A)(2) creates a discovery-
rule exception to the statute of repose:
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January Term, 2019
Notwithstanding an otherwise applicable period of
limitations specified in this chapter or in section 2125.02 of the
Revised Code, a claimant who discovers a defective and unsafe
condition of an improvement to real property during the ten-year
period specified in division (A)(1) of this section but less than two
years prior to the expiration of that period may commence a civil
action to recover damages as described in that division within two
years from the date of the discovery of that defective and unsafe
condition.
Similarly, R.C. 2305.131(A)(3) includes an exception to the statute of repose for
plaintiffs “within the age of minority or of unsound mind” pursuant to R.C.
2305.16:
Notwithstanding an otherwise applicable period of
limitations specified in this chapter or in section 2125.02 of the
Revised Code, if a cause of action that arises out of a defective and
unsafe condition of an improvement to real property accrues during
the ten-year period specified in division (A)(1) of this section and
the plaintiff cannot commence an action during that period due to a
disability described in section 2305.16 of the Revised Code, the
plaintiff may commence a civil action to recover damages as
described in that division within two years from the removal of that
disability.
{¶ 41} Construing the statute of repose as not applying to causes of action
that accrued within the ten-year repose period renders these two exceptions
meaningless and inoperative. As the Fifth District Court of Appeals has explained,
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under that interpretation, R.C. 2305.131(A)(2) “would have no effect on any
claimant because once a claimant’s cause of action accrued, the statute of repose
would no longer apply and the statute of limitations would apply.” Tuslaw Local
School Dist. Bd. of Edn. v. CT Taylor Co., Inc., 5th Dist. Stark No. 2018CA00099,
2019-Ohio-1731, __ N.E.3d __, ¶ 25. The same reasoning applies to R.C.
2305.131(A)(3).
{¶ 42} Moreover, in uncodified law, the General Assembly repeatedly
described R.C. 2305.131 as a statute of repose. It explained that although
“[s]tatutes of repose are vital instruments that provide time limits, closure, and
peace of mind to potential parties of lawsuits,” Ohio had stood virtually alone in
failing to “adopt[] statutes of repose to protect architects, engineers, and
constructors of improvements to real property from lawsuits arising after a specific
number of years after completion of an improvement to real property.”
Am.Sub.S.B. No. 80, Section 3(A), 150 Ohio Laws, Part V, 7915, 8026-8027. The
legislature acted to remedy that failing and eliminate the “unacceptable burden” of
requiring architects, engineers, and constructors of improvements to real property
to maintain insurance against liability, retain documents and records, and preserve
evidence throughout the useful life of the improvement, explaining that “the ten-
year statute of repose prescribed in [R.C. 2305.131(A)(1)] is a rational period of
repose intended to preclude the pitfalls of stale litigation.” Id. at 8027-8029. And
it declared that R.C. 2305.131 was intended “to promote a greater interest than the
interest underlying * * * other general statutes of limitation prescribed by the
Revised Code.” Id. at 8028-8029.
{¶ 43} It is therefore manifest that the General Assembly understood R.C.
2305.131 to be a true statute of repose, i.e., one that bars accrued claims as well as
those that have not yet vested. See Antoon v. Cleveland Clinic Found., 148 Ohio
St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 16. As the United States Supreme
Court has explained, a statute of repose is akin to a discharge in bankruptcy;
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January Term, 2019
because it is a “cutoff” or absolute bar to liability that “puts an outer limit on the
right to bring a civil action,” application of a statute of repose does not depend on
whether the cause of action has accrued. CTS Corp. v. Waldburger, 573 U.S. 1, 8-
9, 134 S. Ct. 2175, 189 L. Ed. 2d 62 (2014). It extinguishes liability regardless. Id.
{¶ 44} The plain language of R.C. 2305.131(A), read in its entirety,
extinguishes liability for injuries arising out of a defective and unsafe condition of
an improvement brought against a person who designed, planned, supervised, or
constructed that improvement after ten years from its substantial completion,
subject to the time extensions established in subdivisions (A)(2) and (A)(3) of that
statute. Uncodified law and our caselaw support this conclusion. Because the
school board brought this breach-of-contract action more than ten years after the
substantial completion of its school building, the trial court correctly dismissed the
breach-of-contract claims as time-barred. For this reason, I would reverse the
judgments of the court of appeals and reinstate the judgments of the trial court.
DeWine, J., concurs in the foregoing opinion.
_________________
STEWART, J.
{¶ 45} I respectfully dissent from the majority’s holding that R.C.
2305.131(A)(1), Ohio’s construction statute of repose, applies to contract actions.
R.C. 2305.131(A)(1) has not been changed in any significant way since this court
interpreted it in Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St. 3d 98, 488
N.E.2d 171 (1986), syllabus, to apply “only to actions which sound in tort.” We
should reaffirm Kocisko and leave it to the General Assembly to amend the statute
to provide that it applies to contract actions, if that truly is the General Assembly’s
intent.
{¶ 46} The majority concedes that the current version of R.C.
2305.131(A)(1) contains language “similar” to the version of the statute that we
construed in Kocisko. Majority opinion at ¶ 25. That is an understatement: the
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version we construed in Kocisko applied to “action[s] to recover damages for any
injury to property, real or personal, or for bodily injury or wrongful death,” Am.S.B.
No. 307, 134 Ohio Laws, Part I, 529, 530, while the current version of the statute
applies to “action[s] to recover damages for bodily injury, an injury to real or
personal property, or wrongful death,” R.C. 2305.131(A)(1). The same words are
used but merely reordered, with no effect on the meaning of the statute.
{¶ 47} After we held in Kocisko that former R.C. 2305.131(A)(1) applied
only to tort actions and that “[a]ctions in contract continue to be governed by the
fifteen-year statute of limitations found in R.C. 2305.06,” Kocisko at syllabus, the
General Assembly could easily have amended R.C. 2305.131(A)(1) to add
“contract actions” to the actions listed in that provision if that had been its intent
when initially enacting the statute.2 But subsequently, despite twice amending
other parts of the statute, the General Assembly chose not to supersede Kocisko by
adding contract actions to the actions listed in R.C. 2305.131(A)(1).
{¶ 48} Under the rules that the General Assembly enacted to guide courts
when interpreting statutes, we are constrained to construe the amendments to R.C.
2305.131(A)(1) that did not expand the statute’s applicability as “intended to be a
continuation of the prior statute and not a new enactment, so far as it is the same as
the prior statute,” R.C. 1.54. “By the rules of construction of statutes, if a statute is
2. Notably, a number of states have enacted construction statutes of repose that explicitly apply to
contract actions. See, e.g., 735 Ill.Comp.Stat. 5/13-214(a) (“Actions based upon tort, contract or
otherwise against any person for an act or omission of such person in the design, planning,
supervision, observation or management of construction, or construction of an improvement to real
property * * *”); Ind.Code Ann. 32-30-1-5(d) (applying to actions, “whether based upon contract,
tort, nuisance, or another legal remedy,” for any deficiency in design or construction of an
improvement to real property or “an injury to real or personal property arising out of a deficiency”);
N.J.Stat.Ann. 2A:14-1.1(a) (applying to any action, “whether in contract, in tort, or otherwise,” for
“any deficiency in the design, planning, surveying, supervision or construction of an improvement
to real property, or for any injury to property, real or personal, or for an injury to the person, or for
bodily injury or wrongful death”); Colo.Rev.Stat. 13-80-104(1)(c) (statute of repose for design and
construction claims applies to “any and all actions in tort, contract, indemnity, or contribution, or
other actions for the recovery of damages”).
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January Term, 2019
amended in certain particulars, after the same has been interpreted and defined by
the courts, without change in other respects, it will be presumed that the Legislature
was satisfied with the court’s interpretation upon these features which were
unchanged, but that the amended portions were intended to be excepted from the
operation of the court’s decision.” Spitzer v. Stillings, 109 Ohio St. 297, 305, 142
N.E. 365 (1924); see also State v. Hassler, 115 Ohio St. 3d 322, 2007-Ohio-4947,
875 N.E.2d 46, ¶ 16 (despite amending statute eight times, legislature showed no
intent to supersede judicial interpretation of statute). We recently noted this
proposition in Wayt v. DHSC, L.L.C., 155 Ohio St. 3d 401, 2018-Ohio-4822, 122
N.E.3d 92, ¶ 23, in which we presumed that the legislature had been aware of a
prior decision of this court and “could easily have drafted the statute to prevent the
holding from that case from affecting the outcome of this case” by adding a single
term to an existing statute. The same reasoning applies here. The General
Assembly is presumed to have been aware of our decision in Kocisko, and its failure
to add contract actions to the actions listed in R.C. 2305.131(A)(1) shows that it
has been content to let the statute stand as we previously interpreted it.
{¶ 49} Finding no support for its interpretation of R.C. 2305.131(A)(1) in
the text of that provision, the majority maintains that the General Assembly
nonetheless intended to include contract actions within the scope of the construction
statute of repose because the current statute contains “contract-law concepts.”
Majority opinion at ¶ 22. Exactly what contract-law “concepts” are incorporated
into the statute is unclear. The word “contract”—followed by its synonym,
“agreement”—appears only twice in R.C. 2305.131, both times in division (G):
As used in this section, “substantial completion” means 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
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SUPREME COURT OF OHIO
the contract or agreement covering the improvement, including any
agreed changes to the contract or agreement, whichever occurs first.
{¶ 50} The “substantial completion” of a contract or agreement to construct
an improvement to property triggers the initiation of the repose period. R.C.
2305.131(A)(1). It has nothing to do with the actual cause of action for “bodily
injury, an injury to real or personal property, or wrongful death that arises out of a
defective and unsafe condition of an improvement to real property,” id. As this
court noted in Kocisko, language relating to injury or wrongful death is “uniformly
used to describe tortious conduct.” 21 Ohio St. 3d at 99, 488 N.E.2d 171. None of
these injuries encompass contract claims.
{¶ 51} The majority suggests that a party may seek damages for injury to
property in a contract action but cites no authority from this court in support of that
proposition. The breach-of-contract claims brought in this action sought economic
damages—that is, the benefit of the bargain had the school building been designed
and constructed according to applicable state standards. The “economic loss”
doctrine states that when parties are in privity of contract and one party allegedly
suffers purely economic damages as a result of an alleged breach of that contract,
that party’s exclusive remedy is in the law of contracts and no action is cognizable
in tort. Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St. 3d 40, 45,
537 N.E.2d 624 (1989). “ ‘When the promisee’s injury consists merely of the loss
of his bargain, no tort claim arises because the duty of the promisor to fulfill the
term of the bargain arises only from the contract.’ ” Id., quoting Battista v. Lebanon
Trotting Assn., 538 F.2d 111, 117 (6th Cir.1976). Here, the plaintiff-school district
did not allege that the defendants engaged in any tortious conduct that caused
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January Term, 2019
“injury to property.”3 The claims asserted in this case are purely contractual and
outside the scope of the statute of repose.
{¶ 52} Although the majority asserts that Kocisko was “shortsighted,”
majority opinion at ¶ 25, Kocisko is consistent with decisions construing similar
statutes of repose in other states. The Michigan Supreme Court considered a
similarly worded construction statute of repose—former Mich.Comp.Laws
600.5839(1) (“[n]o person may maintain any action to recover damages for injury
to property, real or personal, or for bodily injury or wrongful death, arising out of
the defective and unsafe condition of an improvement to real property”)—and held
that that statute did “not apply to a claim against an engineer or contractor for a
defect in an improvement when the nature and origin of the claim is the breach of
a contract.” Miller-Davis Co. v. Ahrens Constr., Inc., 489 Mich. 355, 370, 802
N.W.2d 33 (2011). The court quoted with approval the reasoning that a lower court
provided in support of this conclusion in a prior case:
“[T]his statute was enacted primarily to limit the engineers’ and
architects’ exposure to litigation by injured third persons as
evidenced by the legislation’s timing and relation to case law. * * *
If there is no causal connection between the defective condition and
the injury, the provision does not apply. Similarly, where the suit is
for deficiencies in the improvement itself, the injury is the defective
condition, hence, the injury does not ‘arise out of’ the defective
condition, but, rather, it is the condition. Therefore, claims for
deficiencies in the improvement itself do not come within the scope
of this special statute of limitation.”
3. Of course, there are torts involving real property; for example, trespass to property, vandalism,
and nuisance.
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SUPREME COURT OF OHIO
Id. at 369-370, quoting Marysville v. Pate, Hirn & Bogue, Inc., 154 Mich.App. 655,
660, 397 N.W.2d 859 (1986).
{¶ 53} And in Fid. & Deposit Co. of Maryland v. Bristol Steel & Iron
Works, Inc., 722 F.2d 1160 (4th Cir.1983), the United States Court of Appeals for
the Fourth Circuit construed Va.Code 8.01-250, which, like R.C. 2305.131(A)(1),
applies to actions “for any injury to property, real or personal, or for bodily injury
or wrongful death.” The Fourth Circuit held, like this court in Kocisko, that “the
statute, by its express terms, is restricted in its application to what are in effect tort
actions to recover for ‘injury’ to property or persons and not to actions in contract”).
Id. at 1162. These decisions show that Kocisko is not an outlier.
{¶ 54} We have acknowledged the General Assembly’s prerogative, as the
“ ‘ “ultimate arbiter of public policy,” ’ ” to “refine[] Ohio’s tort law to meet the
needs of our citizens.” Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192, 2008-
Ohio-546, 883 N.E.2d 377, ¶ 102, quoting Arbino v. Johnson & Johnson, 116 Ohio
St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati
Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St. 3d
126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. In the years following Kocisko, the
General Assembly could easily have added contract actions to R.C.
2305.131(A)(1)’s list of actions to which the statute applies, but it has chosen not
to. We therefore must assume that the General Assembly is content with this
court’s interpretation of the statute in Kocisko. A Virginia court reached the same
conclusion in construing Va.Code 8.01-250, reasoning that the legislature had
“presumably been aware of the Fourth Circuit’s construction of the statute, and it
has not amended it”:
Had the General Assembly intended § 8.01-250 to apply to
actions for breach of contract, it could have added “breach of
contract” to the enumerated actions in the statute or it could have
26
January Term, 2019
omitted the words “to recover for any injury to property, real or
personal, or for bodily injury or wrongful death.” It did neither.
Inclusio unius est exclusio alterius.
BurgerBusters, Inc. v. Ratley Constr. Co., Inc., 45 Va.Cir. 133, 135 (1998), citing
Fid. & Deposit Co. at 1162.
{¶ 55} Indeed, in Minnesota, a former version of that state’s construction
statute of repose, Minn.Stat. 541.051(1), much like R.C. 2305.131(A)(1), applied
to “action[s] to recover damages for any injury to property, real or personal, or for
bodily injury or wrongful death.” The Minnesota Supreme Court construed that
statute as applying only to tort actions. Kittson Cty. v. Wells, Denbrook & Assocs.,
Inc., 308 Minn. 237, 241, 241 N.W.2d 799 (1976). In the wake of that decision,
the Minnesota legislature did what our General Assembly has not done—it
amended Minnesota’s construction statute of repose to cover “action[s] by any
person in contract, tort, or otherwise.” Minn.Stat. 541.051(1); see Lietz v. N. States
Power Co., 718 N.W.2d 865, 871 (Minn.2006).
{¶ 56} The General Assembly has the power to adopt a statute of repose and
define the parameters of that law. We should not take it upon ourselves to do that
which the legislature has chosen not to do. I would conclude that given the absence
of any amendment to supersede our holding in Kocisko, R.C. 2305.131(A)(1)
applies only to tort actions. I would therefore reject both propositions of law and
affirm the judgments of the court of appeals.
_________________
Bricker & Eckler, L.L.P., Christopher L. McCloskey, Tarik M. Kershah,
and Bryan M. Smeenk, for appellee.
Gallagher Sharp, L.L.P., P. Kohl Schneider, and Richard C.O. Rezie, for
appellant Charles Construction Services, Inc.
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SUPREME COURT OF OHIO
Frantz Ward, L.L.P., Marc A. Sanchez, Michael J. Frantz Jr., and Allison
Taller Reich, for appellant Ohio Farmers Insurance Company.
Ritter, Robinson, McCready & James, Ltd., Shannon J. George, and
Matthew T. Davis, for appellant Studer-Obringer, Inc.
McNeal, Schick, Archibald & Biro Co., L.P.A., Brian T. Winchester, and
Patrick J. Gump, for appellants Buehrer Group Architecture & Engineering, Inc.,
Estate of Huber H. Buehrer, and Buehrer Group Architecture & Engineering.
Singerman, Mills, Desberg & Kauntz Co., L.P.A, Michael R. Stavnicky,
and Stephen L. Byron, urging affirmance for amici curiae County Commissioners
Association of Ohio, Ohio Municipal League, Ohio Township Association, Erie
County, and Ohio School Boards Association.
Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, urging
affirmance for amicus curiae Ohio Association for Justice.
Murray & Murray Co., L.P.A., Dennis E. Murray Sr., Charles M. Murray,
and Donna J. Evans, urging affirmance for amicus curiae Timothy Betton.
Graff and McGovern, L.P.A., and Luther L. Liggett Jr., urging reversal for
amici curiae AIA Ohio and Ohio Society of Professional Engineers.
Vorys, Sater, Seymour & Pease, L.L.P., Natalia Steele, and Thomas E.
Szykowny, urging reversal for amici curiae Ohio Insurance Institute, Ohio
Manufacturers’ Association, Ohio Chamber of Commerce, Ohio Chapter of the
National Federation of Independent Business, and Surety & Fidelity Association of
America.
Harpst, Ross & Becker Co., L.L.C., Todd A. Harpst, and Joseph R.
Spoonster, urging reversal for amicus curiae Subcontractors Association of
Northeast Ohio.
McDonald Hopkins, L.L.C., Peter D. Welin, Jason R. Harley, and John A.
Gambill, urging reversal for amici curiae Associated General Contractors of Ohio;
Allied Construction Industries (Cincinnati AGC); Associated General Contractors
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January Term, 2019
of Ohio, Akron; Builders Association of Eastern Ohio & Western Pennsylvania
(AGC Youngstown); Central Ohio AGC; Associated General Contractors,
Cleveland; Associated General Contractors of Northwest Ohio (Toledo AGC);
West Central Ohio AGC (Dayton AGC); and Ohio Contractors Association.
Koehler Fitzgerald, L.L.C., and Timothy J. Fitzgerald, urging reversal for
amicus curiae Ohio Association of Civil Trial Attorneys.
_________________
29