New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng. Inc.

[Cite as New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng. Inc., 2017-
Ohio-8523.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
NEW RIEGEL LOCAL SCHOOL
DISTRICT, BOARD OF EDUCATION,
CASE NO. 13-17-05
PLAINTIFF-APPELLANT,
-and-
STATE OF OHIO,
PLAINTIFF-APPELLEE,
v.
OPINION
THE BUEHRER GROUP
ARCHITECTURE & ENGINEERING,
INC., ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Seneca County Common Pleas Court
Trial Court No. 15 CV 0115
Judgment Affirmed
Date of Decision: November 13, 2017
APPEARANCES:
Christopher L. McCloskey and Tarik Kershah for Appellant
Lee Ann Rabe and James Rook for Appellee, The State of Ohio
Case No. 13-17-05
WILLAMOWKSI, J.
{¶1} Plaintiff-appellant New Riegel Local School District Board of
Education (“the School”) brings this appeal from the judgment of the Court of
Common Pleas of Seneca County dismissing the State of Ohio (“the State”) as an
involuntary plaintiff in this lawsuit. For the reasons set forth below, the judgment
is affirmed.
{¶2} This case arises from the construction of a new Kindergarten through
12th Grade School Facility Project (“the Project”) built as part of the Ohio Classroom
Facilities Assistance Program. Doc. 2. As a result of the Project, the School entered
into contracts with multiple contractors starting in February of 2000. Id. The
contracts were all entered between the individual contractor, the School, the State,
through the president and treasurer of the School, and the Ohio School Facilities
Commission (“OSFC”) as parties. Id. The general trade and roofing contracts were
standard form contracts prepared by OSFC. Id. The date of occupancy of the
Project was December 19, 2002. Doc. 88, Ex. K. A Certificate of Completion of
the Project Agreement was issued by OSFC on March 3, 2004. Doc. 24. This
certificate stated that OSFC’s interest “is considered transferred to the School
District, * * *.” Id. at Ex. A. The certificate also provided that the School had sole
responsibility for all facilities management, including the enforcement of warranties
and guarantees. Id.
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{¶3} Over time, the School had issues with the facilities, including but not
limited to condensation and moisture intrusion allegedly caused by design and
construction errors. Doc. 2. A complaint was filed by the School on April 30, 2015.
Id. The complaint was brought in the name of the School with the State of Ohio
and OSFC as involuntary plaintiffs. Id. The complaint named the Buehrer Group
Architecture & Engineering, Inc., the Estate of Huber H. Buehrer (collectively
known as “the Buehrer Group”), Studer-Obringer, Inc. (“SOI”), Charles
Construction Services (“CCS”), and American Buildings Company as defendants.
Id. On June 5, 2015, the State and OSFC filed a motion to dismiss them as
involuntary plaintiffs to the action. Doc. 24. The School filed a response to this
motion on June 15, 2015. Doc. 27. The State and OSFC responded to that response
on June 26, 2015. Doc. 30.
{¶4} On February 10, 2016, the School filed an amended complaint in its
own name and that of the State. Doc. 62. The amended complaint indicated that
OSFC had been voluntarily dismissed as an involuntary plaintiff that was not
necessary. Id. On March 1, 2016, the State filed a motion to be dismissed from the
amended complaint as an involuntary plaintiff. Doc. 72. The School filed its
memorandum in opposition to the motion on March 10, 2016. Doc. 74. The School
then filed a second amended complaint on June 10, 2016. Doc. 88. This complaint
added Ohio Farmers Insurance Co. (“OFIC”) as a defendant. The State then filed a
motion to be dismissed as an involuntary plaintiff from the second amended
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complaint. Doc. 91. The School again filed a memorandum in opposition. Doc.
97. On July 1, 2016, the State filed its reply to the school’s memorandum. On
August 17, 2016, the State’s motion to be dismissed was granted. Doc. 114. On
January 25, 2017, the School filed its notice of appeal from the judgment granting
the State’s motion to dismiss as well as other judgments in the case. Doc. 140. This
judgment was assigned appellate case number 13-17-05. The other judgments were
assigned case numbers 13-17-03 (dismissal of case against SOI), 13-17-04
(dismissal of case against the Buehrer Group), and 13-17-06 (dismissal of case
against CCS and OFIC). On appeal, the School raises the following assignments of
error.
First Assignment of Error
The trial court erred in dismissing [the School’s] breach of
contract claims against [SOI], [CCS], and [The Buehrer Group],
by finding that the Ohio Statute of Repose, R.C. 2305.131, barred
[the School’s] claims for breach of contract.
Second Assignment of Error
The trial court erred in dismissing the claims against [SOI] and
[CCS] as those contracts were entered with [the State] and
general limitations periods do not apply to the State of Ohio.
Third Assignment of Error
The trial court erred in finding that [the School] does not have
authority to bring its action in the name of [the State].
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Case No. 13-17-05
Fourth Assignment of Error
The trial court erred in dismissing [the School’s] claims against
[OFIC], as surety for [SOI], on the basis that [the School’s] surety
bond claim against [OFIC] was barred by the virtue of the
dismissal of the claims against [SOI].
As only the third assignment of error deals with the State, which is the only party in
the judgment appealed from in appellate case number 13-17-05, we need not address
the other assignments of error in this opinion. They will be addressed in their
respective cases.
{¶5} In the third assignment of error, the School claims that it had the
authority to bring the case in the name of the State. The School argues that the State
is a real party in interest and thus is a necessary party to the case.
Every action shall be prosecuted in the name of the real party in
interest. An executor, administrator, guardian, bailee, trustee of
an express trust, a party with whom or in whose name a contract
has been made for the benefit of another, or a party authorized
by statute may sue in his name as such representative without
joining with him the party for whose benefit the action is brought.
When a statute of this state so provides, an action for the use or
benefit of another shall be brought in the name of this state. No
action shall be dismissed on the ground that it is not prosecuted
in the name of the real party in interest until a reasonable time
has been allowed after objection for ratification of
commencement of the action by, or joinder or substitution of, the
real party in interest. Such ratification, joinder, or substation
shall have the same effect as if the action had been commenced in
the name of the real party in interest.
Civ.R. 17(A). In this case there is no question that the School is a real party in
interest and has the authority to bring the suit in its own name. The Certificate of
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Completion issued by OSFC specifically transferred the interest of OSFC, a state
entity, to the School. The Certificate specified that the School was solely
responsible for the ownership and management of the property, specifically any
enforcement of warranties and guarantees associated with the project. The State
does not claim that it has a continuing interest in the facilities once the project was
completed.
{¶6} The School claims that it can require the State to be an involuntary
plaintiff because one clause in the General Conditions form stated that the School
could “maintain an action in the name of the State for violations of any law relating
to the Project or for any injury to persons or property pertaining to the Work, or for
any other cause which is necessary in the performance of the School District Board’s
and Commission’s duties.” This contract was entered between the School and the
OSFC and basically granted the School the temporary right to act as a limited agent
of the State, through the OSFC, and bind the State to the necessary contracts to build
the new facility. As stated above, the involvement of the OSFC, and thus the State,
terminated upon the issuance of the Certificate of Completion which transferred all
rights and responsibilities to the School. The Certificate of Completion was issued
after the General Conditions form and essentially terminated the School’s ability to
act as a limited agent of the State. Additionally, the only party which can represent
the State in a court of law is the Office of the Attorney General. R.C. 109.02.
“Except as provided in division (E) of section 120.06 and in sections 3517.152 to
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3517.157 of the Revised Code, no state officer or board, or head of a department or
institution of the state shall employ, or be represented by, other counsel or attorneys
at law [other than the attorney general].” Id. None of the exceptions listed in the
statute apply in this situation.1
{¶7} As the Certificate of Completion ended the interest of OSFC, and thus
the State, in the Project, the State was no longer a real party in interest. The trial
court correctly dismissed the State as a party to the case. Thus, the third assignment
of error is overruled.
{¶8} Having found no error in the particulars assigned and argued that are
relevant to this appeal, the judgment of the Court of Common Pleas of Seneca
County is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
1
This court also notes that the School filed a mandamus action against OSFC based upon the same facts
raised in this case. See Doc. 91 and State ex rel. New Riegel Local School Dist. Bd. of Edn. v. Ohio School
Facilities Comm., 3d Dist. Seneca No. 13-16-22, 2017-Ohio-875. In that case, the School brought suit to
compel OSFC to provide funding to repair the alleged construction defects in the Project. Id. at ¶ 4. This
court held that upon the issuance of the Certificate of Completion, the interest of OSFC in the Project
terminated. Id. at ¶29. The basis of the claims in this case are also to get damages for the alleged construction
defects in the Project. This court notes that the attorney representing the School in the mandamus action
which brought suit against an entity of the State has also now filed suit in the name of the State.
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