Update: On July 17, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On March 5, 2019, the Supreme Court of Ohio will hear oral argument in the case of New Riegel Local School District Board of Education et al. v. The Buehrer Group Architecture & Engineering, Inc., et al., 2018-0213. At issue in this case is whether the statute of repose codified at R.C. 2305.131 applies to causes of action sounding both in tort and contract. Also at issue is whether stare decisis requires a court to apply precedent based on a statute later found to be unconstitutional and subsequently repealed and rewritten.

Case Background

In 2000, New Riegel Local School District (“New Riegel”) contracted to build a new K-12 school building, and entered into agreements with multiple contractors. The Buehrer Group Architecture & Engineering, Inc. (“Buehrer”) designed the building, Studer-Obringer, Inc. (“SOI”) served as the general contractor, and Charles Construction Services (“CCS”) was the roofing contractor. The contractors finished the project in 2002, and New Riegel took occupancy that December.

New Riegel eventually had issues with the facility, allegedly from condensation and moisture intrusion which the school attributed to construction and design errors. In April 2015, New Riegel filed separate complaints against Buehrer (as well as the Estate of Huber H. Buehrer, which is not a party to the appeal), SOI, and CCS, alleging breach of contract for failure to design and construct the project in a workmanlike manner. SOI subsequently filed a motion for judgment on the pleadings, claiming that New Riegel’s claims were time-barred by Ohio’s construction statute of repose, R.C. 2305.131.

Thereafter, New Riegel filed a second amended complaint to include Ohio Farmers Insurance Company (“OFIC”) as a defendant as the surety for SOI, but did not change any of its underlying claims against any of the parties. Buehrer, CCS, and OFIC then filed motions for judgment on the pleadings on the same statute of repose grounds as SOI’s motion—asserting claims against designers and builders in construction projects are barred after ten years from the project’s substantial completion. Seneca County Common Pleas Court Judge Steve Shuff granted all motions in each case, and dismissed all claims against all parties as time-barred by R.C. 2305.131. New Riegel appealed.

The Appeal(s) 

In two (here and here) separate, but nearly identical, opinions by Judge Willamowski, joined by Judges Zimmerman and Shaw, the Third District Court of Appeals unanimously reversed the trial court’s dismissal of claims against all the parties. The Third District agreed with Buehrer, SOI, CCS, and OFIC that a clear reading of R.C. 2305.131 supports the proposition that the statute applies to all causes of action to recover damages arising from construction projects. However, the court felt bound by the Supreme Court of Ohio’s 1986 decision in Kocisko v. Charles Shutrump & Sons Co., which held that the statute does not apply to actions for breach of contract. Thus, since New Riegel pled breach of contract claims against Buehrer, SOI, CCS, and OFIC, those claims could not be subject to the statute’s ten-year limitations period.

However, the Third District upheld the trial court’s dismissal of claims against the Buehrer Estate on separate grounds: that the claims against the estate were subject to Ohio’s six-month statute of limitations for claims against a decedent, and were thus properly dismissed.

Appellants Buehrer, SOI, CCS, and OFIC brought separate appeals, which were then consolidated into one case.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices DeGenaro, DeWine, Fischer, French, Kennedy, and O’Donnell.*

*Chief Justice O’Connor and Justices DeWine and O’Donnell dissent in part and would accept the case only as to proposition of law 1.

Key Statutes and Precedent

R.C. 1.42 (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”)

R.C. 2305.131  (Ten Year Statute of Repose) (“[N]o 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 . . . later than ten years from the date of substantial completion of such improvement.”)

(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 the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.”)

2003 Am.Sub. S.B. No. 80 Sec. 3(B)(1) (“In enacting section 2305.131 of the Revised Code in this act, it is the intent of the General Assembly . . .  [t]o declare that the ten-year statute of repose prescribed by section 2305.131 of the Revised Code,  is a specific provision intended to promote a greater interest than the interest underlying the general four-year statute of  limitations prescribed by section 2305.09 of the Revised Code, the general two-year statute of limitations prescribed by section 2305.10 of the Revised Code, and other general statutes of limitation prescribed by the Revised Code.”)

R.C. 2305.06 (Statute of Limitations in Contract Actions. For parties who entered into written contracts before 2012, the statute of limitations is 15 years, after that, 8 years.)

Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98 (1986) (R.C. 2305.131 only limits actions arising out of tort, and does not limit actions for breach of contract, which continue to be governed by the fifteen-year statute of limitations found in R.C. 2305.06. (syllabus))

Ruby v. Midwestern Indemn. Co., 40 Ohio St. 3d 159 (1988) (Defendants may be prejudiced as it becomes more difficult to determine fault after a significant passage of time.)

Brennaman v. R.M.I. Co., 70 Ohio St. 3d 460 (1994) (Held that the 1971 version of R.C. 2305.131 is unconstitutional.)

Thomas v. Freeman, 79 Ohio St.3d 221 (1997) (A statute that specifies one exception to a general rule is assumed to exclude all other exceptions.)

Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau, 88 Ohio St.3d 292 (2000) (The statute of repose bars all claims after ten years to avoid prejudice to defendants that arises due to the passage of time.)

Corporex Dev. & Constr. Mgt., Inc. v. Shook, 2005-Ohio-5409 (Under the economic-loss rule, a plaintiff that suffers purely economic damages cannot recover in tort.)

Groch v. Gen. Motors Corp., 2008-Ohio-546 (For stare decisis to apply, the legislation must be phrased in substantially the same way as legislation previously invalidated.)

McClure v. Alexander, 2008-Ohio-1313 (2nd Dist.) (The General Assembly made its purpose clear by enacting the current version of R.C. 2305.131, which included recognition of contractors’ lack of control over property after construction is complete.)

Dillon v. Farmers Ins. of Columbus, Inc., 2015-Ohio-5407 (Courts interpreting statutes “may not . . . narrow . . . the General Assembly’s wording.”)

Antoon v. Cleveland Clinic Found., 2016-Ohio-7432 (“A true statute of repose . . . applies to vested and nonvested claims.”)

State v. Karl R. Rohrer Assocs., 2018-Ohio-65 (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.”)

Appellants’ Arguments

Buehrer Group

The previous version of R.C. 2305.131 was declared unconstitutional, and the General Assembly created the amended version in response. The Supreme Court of Ohio has reviewed the amended statute on several occasions, and has not invalidated it. The modern trend across the country—not just in Ohio—applies statutes of repose to bar claims against design professionals and construction contractors and subcontractors for all liabilities after a given period of time. A majority of jurisdictions apply statutes of repose to both tort and contract claims.

Moreover, the plain language of R.C. 2305.131 requires it to be applied “in any civil action.” And, the distinction between a statute of limitation and a statute of repose is critical; statutes of repose apply to all claims after a certain period of time, even if an injury occurs after the time limit passes.

 Kocisko does not apply to the current version of R.C. 2305.131; the Kocisko court dealt with a substantially different statute. The older version was interpreted as a statute of limitations, while the modern version is a statute of repose that does not allow causes of action to accrue against contractors. The Court should disregard the inapplicable Kocisko decision and apply the plain language of R.C. 2305.131.

General Contractor SOI

The plain language of R.C. 2305.131 unambiguously applies the statute of repose to all causes of action for damages arising out of construction projects, not just tort actions. The statute’s language (“no cause of action . . . shall accrue”) lends itself to only one reasonable interpretation: claims arising out of construction resulting in injury to property are barred after ten years from the construction’s substantial completion.

Narrowing R.C. 2305.131 to apply only to tort claims is improper since the statute’s language explicitly references both general statutes of limitation and specific issues arising in a number of claims—including contract claims. Further, the General Assembly provided for several exceptions (e.g. warranty claims, fraud), none of which include contract claims. The statute’s legislative intent—to promote a greater interest of limiting general claims in construction disputes—necessarily includes contract claims. Additionally, the statute must be applied generally to be consistent with other provisions of the Ohio Revised Code, many of which specifically exempt contract or tort claims by name; here, R.C. 2305.131 uses general language. Recent Ohio court decisions have reflected this understanding—that statutes of repose apply generally to all causes of action, regardless of form.

Ohio courts are not required to follow a previous decision when the precedent was based on a prior version of a subsequently-amended statute. R.C. 2305.131 was substantially altered subsequent to Kocisko. Previously, the statute was a single provision; the amended version uses broader language and set out specific exceptions. Thus, because the statute was substantially changed, the court’s prior decisions should not bind current interpretations of the statute.

Roofing Contractor CCS

The statute of repose limits all claims for damages arising out of improvements to real property—not just claims sounding in tort or negligence. The plain language of the statute supports this conclusion—a proposition which the Third District supported. The only reason that the Third District chose not to find the actions against CCS were time-barred was because it felt bound by the Court’s decision in Kocisko, which interpreted a different version of R.C. 2305.131.

The current version of R.C. 2305.131 expressly includes contract actions and supersedes Kocisko by expressly calling for the limitations to apply notwithstanding any prior ruling. Further, the legislative intent behind the amended statute was to bring all causes of action for damages arising out of construction projects within the reach of R.C. 2305.131. By granting such a broad limitation on actions after ten years, the legislature recognized a general policy to strike a balance between construction companies’ interest in avoiding stale litigation, (particularly when they lack control over the property), and legitimate actions for recovery. The legislature chose not to limit R.C. 2305.131 to tort actions, which it easily could have done.

Additionally, stare decisis does not apply to the amended version of R.C. 2305.131, as it is sufficiently different from its predecessor so as to require a fresh review of the statute. In order for stare decisis to apply to this case, the language of the original R.C. 2305.131 must be substantially the same as the amended version; the original version interpreted in Kocisko is completely different from the statute in place today.

Ohio Farmers Insurance Company

The Third District’s decision should be reversed because the statute is not limited to tort claims and the court was not required to follow precedent based on a prior unconstitutional version of a statute.

The statute of repose in R.C. 2305.131 applies to both tort and contract claims. This conclusion is apparent from the plain language of the statute that specifies that “no cause of action…shall accrue” and that the statute applies to “any civil action.” The statute is clear on its face; it does not contain any language limiting its application to tort claims. Despite ultimately finding the statute barred New Riegel’s claims, the Third District itself conceded that the language of the statute does not differentiate between tort claims and breach of contract claims. In Rohrer, the Fifth District also reached this conclusion holding that R.C. 2305.131 applied to breach of contract claims.

Moreover, while the statute is silent on the tort verse contract distinction, it is not silent on its application to other types of claims. Instead, it expressly states that it does not apply to fraud, express warranty, and express guarantee claims. Under the doctrine of expressio unius est exclusion alterius, a statute that specifies one exception to a general rule is assumed to exclude all other exceptions. Therefore, because R.C. 2305.131 only specified the exceptions noted above, it is assumed to exclude other exceptions not mentioned, i.e. breach of contract claims.

The Third District’s decision should also be reversed because its conclusion was based on the Kocisko case which is not controlling precedent here. In Kocisko, the Court held that the 1971 version of 2305.131 did not apply to breach of contract claims. However, the 1971 version of the statute was later declared unconstitutional and has been amended several times. The 1971 version of the statute is vastly different from the current version of the statute. For example, the 1971 version was a statute of limitations, whereas the current version is a statute of repose. Furthermore, the prior version did not specifically exempt any causes of action. Because the statutes are so different, stare decisis should not be applied to bind the court to the precedent set in the Kocisko case.

Appellee’s Argument

New Riegel

R.C. 2305.131 does not, and has never, applied to contract claims. For more than thirty years, Ohio courts have found that the operative language of the statute is identical to that of claims sounding in tort. If the legislature wanted to change this interpretation, it could have easily changed the statute’s operative language or expressly overruled Kocisko. While the statute reenacted in 2003 is longer and contains additional provisions, is still applies only to tort claims. Moreover, the statute of repose expressly supplements several statutes of limitation that all deal with tort claims—the uncodified law supplements the legislative intent to only limit tort actions.

The statute further bars actions from accruing after ten years, not commencing after ten years. Breach of contract claims accrue at the time of the breach. Here, because the alleged breach occurred immediately after completion of the project, the claim accrued within the ten-year limit of R.C. 2305.131, and was thus subject to Ohio’s then-fifteen-year statute of limitations for contract claims.

The statute does not limit claims that have already accrued within its ten-year limitation period.  And when the statute of limitations exceeds the statute of repose, the statute of repose can have no effect on a contract claim. In this case New Riegel had to bring its breach of contract claim within the then-existing 15-year statute of limitations, which it did.

Tort claims can arise from contractual relationships with architects and engineers who fail to perform in a workmanlike manner. But courts will look to the substance of the claim, regardless of how it is labeled or pled. This is strictly a breach of contract claim against the architects and contractors. The damages suffered by New Riegel were the cost to correct defective design and work, and thus are purely economic losses, subject to the economic-loss rule. A plaintiff that suffers purely economic loss stemming from another’s acts or omissions cannot recover in tort. The language of the statute is consistent with that rule.

Finally, the contractors’ second proposed proposition of law—stare decisis does not apply to cases that interpreted statutes later deemed unconstitutional—is redundant. It assumes that the operative language in the amended statute is substantially different from the previously interpreted statute, which is an incorrect assumption. If the statute is different enough from what was previously interpreted, then stare decisis does not apply by definition.

Buehrer’s Proposed Proposition of Law No. 1 

Ohio’s statute of repose, R.C. 2305.131, applies in actions sounding both in contract and tort.

Buehrer’s Proposed Proposition of Law No. 2 

A court is not required to apply stare decisis when the prior version of the statute being applied has been held unconstitutional by the Supreme Court of Ohio.

 SOI’s Proposed Proposition of Law No. 1

Ohio’s statute of repose, R.C. 2305.131, as amended by the General Assembly in 2005, applies to claims for breach of contract and bars such claims from accruing more than ten years following substantial completion of the improvement.

SOI’s Proposed Proposition of Law No. 2 

Ohio courts are not required to apply stare decisis when the precedent to be followed was based on a prior version of a subsequently amended statutory provision.

CCS’s Proposed Proposition of Law No. 1

Ohio’s statute of repose, R.C. 2305.131, applies to actions sounding both in contract and in tort. (Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98, syllabus (1986), distinguished.)

CCS’s Proposed Proposition of Law No. 2

Stare decisis is inapplicable to legislation enacted by the General Assembly merely because it is similar to previous enactments, rather, to be covered by the blanket of stare decisis, the legislation must be phrased in language that is substantially the same as previously addressed. (Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, ¶ 34-39 (2010); Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, ¶ 104 (2008); and Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 24, applied and followed.)

OFIC Proposed Proposition of Law No. 1

Ohio’s Statute of Repose, Ohio Revised Code §2305.131 applies to claims arising under written contracts in addition to claims sounding in tort and/or negligence.

OFIC Proposed Proposition of Law No. 2

This Court is not required to apply stare decisis in cases where the prior statute under which the case was decided has been held unconstitutional by the Supreme Court of Ohio and replaced by the legislature.

Amici In Support of Appellants

AIA Ohio and Ohio Society of Professional Engineers

The American Institute of Architects of Ohio (AIA Ohio) and the Ohio Society of Professional Engineers (OSPE) filed a joint brief in support of Appellant Buehrer. AIA Ohio is a society of licensed architects that promotes positive legislative and government agency rule changes for the architectural profession. OSPE is an authoritative expert in licensure, ethics, and professional practice. OSPE aims to protect public health, safety, and welfare and to promote the ethical and competent practice of engineering.

AIA Ohio and OSPE argue that since Ohio law requires architects and engineers to perform their services to public agencies by contract, if there were an exception for breach of contract claims under Ohio’s statute of repose, then the statute would have no real effect. This is because all public work has to be done be contract, so almost all claims would be breach of contract claims and none would be effectively barred by the statute. Additionally, the insurance available to architects and design professionals is often “claims-made” which does not cover the design professional after retirement. If R.C. 2305.131 does not apply to breach of contract claims, design professionals would have no way to obtain insurance coverage for the potential claims arising after retirement. They also argue that the statute applies in the same fashion to the State as it does to private parties.

AIA Ohio and OSPE also note that the Third District conceded that the statute does not provide for a breach of contract exception. They also argue that the current version of the statute has undergone many changes and is no longer the same statute as interpreted in Kocisko. Therefore, the Kocisko precedent is inapplicable here. The impact of the appellate decision would be to nullify Ohio’s current statute of repose for design professionals who perform work for public agencies.

Ohio Insurance Institute, et. al

The Ohio Insurance Institute, Ohio Manufacturers’ Association, Ohio Chamber of Commerce, Ohio Chapter of the National Federation of Independent Business, and the Surety & Fidelity Association of America filed a joint brief in support of Appellant Buehrer. These organizations argue that R.C. 2305.131 applies to both tort and breach of contract claims and that design professionals depend on a uniform interpretation of the statute. They also argue that the Third District erroneously applied stare decisis.

These organizations represent members in all areas of business relating to the construction industry in Ohio. Each of these amici have worked to support clear and predictable limits on liability exposure for their constituents.

Amici claim that the 1971 version of the statute (a statute of limitations) interpreted in Kocisko is not equivalent to the current statute (a statute of repose) because the 1971 version was completely rewritten after being declared unconstitutional. These organizations also argue that the broad terminology used in the current version along with several contract law references and the placement of the statute in the overall scheme of the legislation demonstrate the legislative intent for the statute to be applicable to contract claims. For example, the current statute uses the phrase “cause of action” instead of the specific “tort action” definition used elsewhere. Furthermore, the statute references “substantial completion” and provides that the ten-year period of repose may be extended by express contractual “warranty or guarantee” which are both specific contract law references. Finally, the overall statutory scheme has a section titled “Torts” (R.C. 2305.116), however the current R.C. 2305.131 is not located in that section. Instead it’s located in an entirely separate section titled “Other Relief.”

Subcontractor’s Association of Northeast Ohio  

The Subcontractor’s Association of Northeast Ohio (“SANEO”) is a non-profit trade association founded in 1976 to represent subcontractors, specialty trade contractors, material suppliers and allied-service providers, and filed a brief in support of the architect and contractors. SANEO argues the plain language of the statute does not distinguish between tort and contract claims, even while specifically exempting warranty claims. The reasoning and intent behind the statute applies equally to tort and contract claims: the statute supports a general policy of protecting contractors from defending stale claims after project completion and a reasonable passage of time by setting a hard date after which no more claims can accrue.

Additionally, the Kocisko decision does not apply to the current case because Kocisko dealt with a substantially different version of the statute and the decision’s reasoning was too brief to provide adequate guidance to the current dispute under the modern statute.

Associated General Contractors of Ohio and Ohio Contractors Association

Associated General Contractors of Ohio (“AGC”) and Ohio Contractors Association (“OCA”) filed a joint brief in support of appellants. AGC advocates on legislative and regulatory issues impacting builders and represents contractors in labor matters.  OCA advocates on legislative and infrastructure issues and represents its members in union labor matters.

These organizations argue that the express language in the statute clearly indicates that it applies to breach of contract claims as well as tort claims. For example, the statute states that, “no cause of action…shall accrue,” and that it applies to “any civil action.” Also, the statute explicitly lists three exceptions, none of which mention contract claims. Lastly, the legislature used the phrase “substantial completion” of the improvement “in accordance with the contract or agreement” which is a clear reference to contract law.

Additionally, they argue that all of the stated purposes for R.C. 2305.131 apply equally to breach of contract actions as well as tort actions. This is because it does not matter if the owner asserts a breach of contract claim or a tort claim. Either way the contractor lacks control to maintain the improvement after completion. Furthermore, to allow a breach of contract exemption would mean that claims could be brought indefinitely, even 20 years after substantial completion, which is an absurd result. Allowing such claims to be brought would increase costs across the entire construction industry.

Furthermore, amici challenge New Riegel’s claim that the 8-year statute of limitations for written contracts would usually bar these claims anyway. Instead, amici argue that the 8-year statute of limitation often does not apply to the State under the nullum tempus doctrine which says that time does not run against the State.

Finally, the statute should be applied to breach of contract actions because Ohio’s economic loss doctrine says that an owner that incurs economic damages may only assert a breach of contract claim against the party with which it is in privity and may not pursue a tort claim against the reasonable subcontractor. Thus, the vast majority of construction defect cases in Ohio will be breach of contract cases, not tort cases. Therefore, if R.C. 2305.131 does not apply to breach of contract claims then the statute will have no real effect in the industry.

Ohio Association of Civil Trial Attorneys  

The Ohio Association of Civil Trial Attorneys (“OACTA”) is a statewide organization consisting of attorneys and other professionals who dedicate a significant portion of their practice to the defense of civil damages and insurance claims. OACTA asserts that the Third District erroneously relied upon Kocisko to limit R.C. 2305.131’s application solely to tort claims, and the statute should be applied by its plain language: a claim for damages for an injury to real property which arises out of improvement to the property and is filed more than ten years after the date of substantial completion is completely time-barred. The theory of recovery is irrelevant; it is the nature of the claimed injury and its cause that controls.

Most states have enacted construction statutes of repose. Ohio’s amended statute is similar to those of other states, which have been passed to prevent indefinite liability for design and construction professionals. By limiting liability, legislatures sought to lower insurance costs, incentivize innovation in the construction industry, and protect contractors from unfair and stale litigation, and from indefinite liability. The Court should interpret R.C. 2305.131 to give effect to the legislative intent to shield construction professionals from all stale claims, not just claims that can be easily pleaded around.

 Amici in Support of New Riegel

The Ohio Association for Justice

The Ohio Association for Justice (“OAJ”) is a statewide association of lawyers whose mission is to preserve Constitutional rights and to protect access to the civil justice system. OAJ argues that R.C. 2035.131 is unambiguous and its plan language demonstrates that it only applies to tort claims. Specifically, OAJ points to the language in the statute that says, “no cause of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death.” OAJ argues that the causes of action listed clearly refer to tort claims as bodily injury and injury to real or personal property have been codified as torts. OAJ further contends that just because an owner has a contract with a builder or a design professional does not turn a tort claim into a breach of contract claim. The statute requires a defective and unsafe condition that causes bodily injury or injury to property. Therefore, breach of contract claims in which the breach only created a defective or unsafe condition but did not cause bodily injury or injury to property are not covered by the statute.

OAJ also argues that even though the 1971 version of the statute was declared unconstitutional and rewritten, the causes of action to which both versions of the statute apply are identical. Both versions state that the statute applies to causes of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death. Both versions of the statute also require that the actions arise out of a defective and unsafe condition. The fact that the legislature did not use the phrase “tort action” is irrelevant because the words of the statute clearly described tort actions and were consistent with the definition of tort action in another section of the overall statutory scheme. Because the legislature used the same words to describe the causes of action applicable to the statute, the established meaning of those terms should not change despite other changes to the statute. It is irrelevant how the cause of action is labeled. The statute does not apply to all “garden variety” breach of contract claims. Rather, it only applies to causes of action described in the statute — a cause of action in which a defective and unsafe condition is the cause of injury.

County Commissioners Association of Ohio, et al  

The County Commissioners Association of Ohio, along with the Ohio Municipal League, the Ohio Township Association, Erie County, and the Ohio School Boards Association filed an amicus brief in support of New Riegel. These groups assert that under the statute, the defining issue is the type of injury alleged; the injury must be to real or personal property, or for a defective and unsafe condition. The condition must be defective and unsafe, and the injury must happen to the property itself. Since claims of defective workmanship are not injury to property itself, those conditions are not present here, and the statute of repose should not apply. The damages sought in this case were for faulty design, installation and workmanship, which breached the parties’ contracts. It was for a pure economic loss, which is not governed by the statute of repose. Nor is it a tort to breach a contract.  Additionally, the defect at issue here is a leaky roof—it may be defective, but it is not unsafe. As Amici colorfully notes, “the toilets won’t explode.”

Additionally, the statute of repose does not prevent a party from bringing a claim after ten years, it merely prevents a claim from accruing. Even though this claim was brought fifteen years after substantial completion, the actual injury happened within ten years, and thus the statute of repose does not bar this claim.

Further, the Court should apply stare decisis and uphold the Kocisko decision. Because that case dealt with substantially the same statute and very similar facts, the Third District should be affirmed in its application of the Kocisko decision.

Timothy Betton

Timothy Betton is a plaintiff in a pending taxpayer action for breach of contract claims against a contractor and engineering firm which contracted to provide services on behalf of Erie County.  Timothy Betton filed an amicus brief in this case because he alleges that if R.C. 2305.131 is held to apply to both tort and breach of contract actions, then his claims for breach of contract on behalf of Erie County could be dismissed as well.

Betton’s argument takes largely from OAJ’s brief. Betton also argues that though the statute does not explicitly state that it applies to tort actions, the language used in the statute unambiguously describes tort actions. Betton claims that just because a contract exists cannot transform a tort action into a breach of contract action. Moreover, Betton argues that contractors should not be absolved from liability when they breach contracts simply because they are in the construction business.

Student Contributors: Ivy Charneski and Carson Miller