[Cite as Coughlin v. Acock Assoc. Architects, L.L.C. , 2011-Ohio-3212.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                                      :      JUDGES:
JOHN COUGHLIN, et al.,                                :      John W. Wise, P.J.
                                                      :      Julie A. Edwards, J.
                      Plaintiffs-Appellants           :      Patricia A. Delaney, J.
                                                      :
-vs-                                                  :      Case No. 10CAE060044
                                                      :
                                                      :
ACOCK ASSOCIATES                                      :      OPINION
ARCHITECTS, LLC, et al.,

                   Defendants-Appellees




CHARACTER OF PROCEEDING:                                       Civil Appeal from Delaware County
                                                               Court of Common Pleas Case No.
                                                               08-CV-A-10-1455

JUDGMENT:                                                      Affirmed

DATE OF JUDGMENT ENTRY:                                        June 27, 2011

APPEARANCES:

For Plaintiffs-Appellants                                      For Defendants-Appellees

BRIAN L. BUZBY                                                 JOSEPH E. CAVASINNI
DANIEL B. MILLER                                               Reminger Co., LPA
Porter, Wright, Morris &                                       1400 Midland Building
Arthur, LLP                                                    101 Prospect Avenue, West
41 South High Street                                           Cleveland, Ohio 44115-1093
Columbus, Ohio 43215-6194

J. MILES GIBSON                                                For Michael Matrka, Inc.
Wiles Boyle Burkholder & Bringardner, LPA
300 Spruce Street – Floor One                                  LUTHER L. LIGGETT, JR.
Columbus, Ohio 43215                                           Luper, Neidenthal & Logan
                                                               50 West Broad Street – Suite 1200
                                                               Columbus, Ohio 43215-3374
[Cite as Coughlin v. Acock Assoc. Architects, L.L.C. , 2011-Ohio-3212.]


Edwards, J.

        {¶1}     Plaintiffs-appellants, John Coughlin and Diana Coughlin, appeal from the

May 11, 2010, Judgment Entry of the Delaware County Court of Common Pleas

granting the Motion for Summary Judgment filed by defendant-appellee Acock

Associates Architects, LLC.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     In approximately June of 1998, appellants John and Diana Coughlin

retained appellee Acock Associates Architects, LLC to provide architectural and design

services for an approximately $2.6 million dollar project involving a master bedroom

addition to their home. The parties had an oral contract.                 On or about November of

1998, appellants also engaged Michael Matrka, Inc. to serve as their contractor on the

project. The construction project was completed on or about 2002 according to

appellants’ amended complaint.

        {¶3}     Sometime after the completion of the project, appellants began to

experience water intrusion through the stone façade of their house, leaking around

skylights and cracked skylight glass. During her deposition, appellant Diana Coughlin

testified that the project was completed in January or February of 2001. She testified

that right after her daughter was born in March of 2001, the roof started leaking and that

appellants attempted to make Band-aid repairs. She testified that she believed that in

the summer of 2001, water was trailing down the stone wall behind appellants’ master

bed and also in an area where the bridge meets the stone wall. When asked how bad

the leak was, she testified that it was “[f]airly bad. You could see pretty substantial

stains running down the wall, so maybe six inches wide, the length of the wall.”
Delaware County App. Case No. 10CAE060044                                                3


Deposition of Diana Coughlin at 35. Appellant Diana Coughlin further testified, when

asked whether she thought that some work was done improperly, that the “leaks would

indicate that that was not done properly.” Id at 36. She further testified that the leaking

was a continual problem and equated it to the show Green Acres.

       {¶4}   Appellant Diana Coughlin further testified that maybe a few months after

the leak in the wall, which was in July of 2001, there were leaks in an area where there

was fiber optic lighting and that drywall started falling. She testified that the skylights

above their bed leaked, causing debris to fall, and that the skylight panels cracked

shortly after July 2001. When asked for a more specific time frame, she testified that

she thought the skylight leaking and cracking occurred maybe five months later. As a

result, glass panels had to be replaced. According to appellant Diana Coughlin, the

skylights continued leaking. She also testified that all of the leaks occurred within the

first year of the project being completed and that condensation on the bedroom

windows was continuous and was so bad that thick ice formed inside the windows.

According to appellant Diana Coughlin there were also leaks on both sides of a semi-

circular window at the end of her closet within the first year.

       {¶5}   When questioned about how many times the roofer came out to deal with

the problems with the skylight in her closet, appellant Diana Coughlin testified as

follows:

       {¶6}   “A. Maybe two or three times. All of these were pretty - - have been

ongoing until we just made the decision to just go ahead and get Ralph involved and

see what it’s really going to take to - - you know, we had been Band-Aiding for years,

from replacing granite in the hallways to where it leaked, replacing the flooring because
Delaware County App. Case No. 10CAE060044                                                4


it cracked. You know, the leaks were just becoming more than just a nuisance; they

were becoming a structural ….

       {¶7}   “You know, and when the mold started to grow, you just don’t want to

mess around with that stuff, so ….” Deposition of Diana Coughlin at 59.

       {¶8}    She also testified that there were leaks outside the shower, in the ceiling

of her husband’s closet, and that there was a leak from the bathtub that leaked down to

the sauna. In all, leaks and other water related problems developed in at least 16 areas

of the master bedroom addition.

       {¶9}   The following is an excerpt from appellant Diana Coughlin’s deposition

testimony:

       {¶10} “Q. So the skylight leaked continuously.       Was that skylight above the

shower, was it the same situation where Band-Aid repairs were made on several

occasions until - -

       {¶11} “A. Not so much on that one because we replaced the glass and we just

started putting a pan underneath it.

       {¶12} “Q. All right.

       {¶13} “A. Literally, like Green Acres.

       {¶14} “And so, at that point, when this got to that level, it’s just – it was – you

know, we had replaced the glass. It just was to the point like, ‘Okay, this is all going to

cave in here in a moment, so let’s’ - - we could Band-Aid until we’re 99, so let’s get

Ralph in here and see: How involved is this going to be? How integral do we have to

get? Can they Band-Aid it on the top? Is there something they can do that’s easy to

fix?” Deposition of Diana Coughlin at 63.
Delaware County App. Case No. 10CAE060044                                             5


       {¶15} Appellant John Coughlin, during his deposition, testified that soon after

completion of construction, they saw moisture on the windows and that you could not

see out of them. He further testified that water from the windows would run down and

get all over the carpet or floor or whatever was beneath the window and would ruin the

same. Appellant John Coughlin testified that water came through the skylights and that

they had to be replaced more than once and that water “came through the – between

the roof and the stone. It pretty much came through just about everywhere.” Deposition

of John Coughlin at 51. He testified that the roof leaked everywhere and that water

came through the roof and got underneath tile in the bathroom and pushed the tile up.

As a result, the bathtub was broken. He further testified that as a result of the leaks,

appellants “slept with an umbrella for a long time.” Id at 65.

       {¶16} In June 2006 or early 2007, appellants hired Ralph Fallon Builders to

remedy the problems.

       {¶17} On October 31, 2008, appellants filed a complaint against appellee

alleging negligence, breach of contract, promissory estoppel and quantum meruit. On

January 20, 2009, appellants filed an amended complaint adding Michael Matrka, Inc.

as a defendant. Matrka subsequently filed a Motion to Dismiss the complaint alleging

that appellants had, after terminating him, signed a release of all claims against him.

The trial court converted such motion to a Motion for Summary Judgment and, as

memorialized in a Judgment Entry filed on December 16, 2009, granted such motion.

       {¶18} Thereafter, on March 1, 2010, appellee filed a Motion for Summary

Judgment. Appellee, in its motion, alleged that appellants’ claims were barred by the
Delaware County App. Case No. 10CAE060044                                                  6


applicable statute of limitations. Pursuant to a Judgment Entry filed on May 11, 2011,

the trial court granted such motion.

       {¶19} Appellants now raise the following assignments of error on appeal:

       {¶20} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

PURSUANT TO CIVIL RULE 56 THAT DETERMINED CONTESTED ISSUES OF

FACT RESERVED FOR THE JURY AND WAS CONTRARY TO LAW DISMISSING

PLAINTIFFS, JOHN AND DIANA COUGHLIN’S CLAIMS THAT DEFENDANT, ACOCK

ASSOCIATES ARCHITECTS, LLC, WAS NEGLIGENT IN THE PERFORMANCE OF

ITS WORK ON PLAINTIFFS’ BEHALF.

       {¶21} “II. THE TRIAL COURT ERRED IN GRANTING A SUMMARY

JUDGMENT PURSUANT TO CIVIL RULE 56 THAT DETERMINED CONTESTED

ISSUES OF FACT RESERVED FOR A JURY AND WAS CONTRARY TO LAW

DISMISSING PLAINTIFFS, JOHN AND DIANA COUGHLIN’S CLAIMS THAT

DEFENDANT,       ACOCK       ASSOCIATES        ARCHITECTS,       LLC,    BREACHED        ITS

CONTRACT WITH PLAINTIFFS.”

                                  Summary Judgment Standard

       {¶22} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, we must refer to Civ.R. 56 which provides, in pertinent part: “* * * Summary

judgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case and written stipulations of fact, if any, timely filed in the action, show that there is
Delaware County App. Case No. 10CAE060044                                                7


no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only therefrom, that reasonable minds

can come to but one conclusion and that conclusion is adverse to the party against

whom the motion for summary judgment is made, such party being entitled to have the

evidence or stipulation construed most strongly in the party's favor. * * * ”

         {¶23} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed. The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674

N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662 N.E.2d

264.

         {¶24} It is pursuant to this standard that we review appellants’ assignments of

error.
Delaware County App. Case No. 10CAE060044                                                 8


                                                I

      {¶25} Appellants, in their first assignment of error, argue that the trial court erred

in granting summary judgment to appellee on appellants’ negligence claim. We

disagree.

      {¶26} As is stated above, the trial court found that appellant’s negligence claim

was barred by the statute of limitations contained in R.C. 2305.09. The parties agree

that appellants’ negligence claim against appellee is subject to the four year statute of

limitations contained in R.C. 2305.09(D). “Tort actions for injury or damage to real

property are subject to the four-year statute of limitations set forth in R.C. 2305.09(D).”

Harris v. Liston, 86 Ohio St.3d 203, 1999-Ohio-159, 714 N.E.2d 377, paragraph one of

the syllabus. The limitations period begins to run “when it is first discovered, or through

the exercise of reasonable diligence it should have been discovered, that there is

damage to the property.” Id. at paragraph two of the syllabus. See Sexton v. Mason,

117 Ohio St.3d 275, 2008 Ohio 858, 883 N.E.2d 1013, at paragraphs 52-53. The Ohio

Supreme Court has defined reasonable diligence as a “fair, proper, and due degree of

care and activity, measured with reference to the particular circumstances; such

diligence, care, or attention as might be expected from a man of ordinary prudence and

activity.” Sizemore v. Smith (1983), 6 Ohio St.3d 330, 332, 453 N.E.2d 632. The court

emphasized, “[W]hat constitutes reasonable diligence will depend on the facts and

circumstances of each particular case.” Id.

      {¶27} The trial court, in its decision, found that “damage to the addition occurred

at least as early as the summer of 2001, which is the time [appellants] discovered, or

should have discovered, that a problem existed regarding the construction of the
Delaware County App. Case No. 10CAE060044                                                 9


addition” and that, therefore, appellants’ negligence claim occurred “well over four years

before the date they filed their complaint in this case on October 31, 2008.” We agree.

      {¶28} As is stated above, appellant Diane Coughlin testified that the roof started

leaking right after her daughter was born in March of 2001. She testified that the project

was completed January or February of 2001 and that the roof started “leaking probably

that summer.” Deposition of Diane Coughlin at 33. While she was unable to specify

specific dates when the leaking occurred, she testified that the leaking occurred soon

after the project was completed. During her deposition, she further testified that there

was a leak where the bridge met the stone wall in the summer of 2001 and that the leak

was “[f]airly bad. You could see pretty substantial stains running down the wall, so

maybe six inches wide, the length of the wall.” Deposition of Diana Coughlin at 35. She

further testified that, in her mind, the leaks indicated that the work was not done

properly and that the leaking was a continual problem. She testified that she “equate[d]

it to the show, Green Acres, They had pots and pans under the---.” Deposition of Diana

Coughlin at 39.

      {¶29} During her deposition, appellant Diana Coughlin further testified that the

leaking was a continual problem, from roughly the summer of 2001 until appellants hired

Ralph Fallen Builders to repair the problems in late 2006 or early 2007. When

questioned about the numerous leaks, she testified that “they were all very similar

chronologically” and that they occurred within the first year. Deposition of Diana

Coughlin at 50. Appellant Diana Coughlin further testified that she did not care why the

leaking was occurring, but just wanted the problems fixed.
Delaware County App. Case No. 10CAE060044                                                10


       {¶30} Appellants, in their brief, contend that appellee told them that their house

was “unique and complicated, and that they could expect ongoing substantial and

complex maintenance issues.” According to appellants, based upon appellee’s advice,

they expected to have to perform a lot of maintenance and upkeep on their home and

“did not view the leaks and other such issues as indicating defective work but as

maintenance issues that could easily and routinely be fixed.” On such basis, appellants

maintain that there is a genuine issue of material fact as to when they should have

discovered their claim against appellee.

       {¶31} However, as is stated above, appellant Diana Coughlin testified that in her

mind, the leaks indicated that the work was not done properly. Furthermore, the leaks to

appellants’ property were numerous, continual and substantial, causing significant

damage. Testimony was adduced during Diana Coughlin’s deposition that the leaking

caused skylight panels to leak and crack and that water ran down windows onto the

floor causing damage to the underlying flooring. During her deposition, she further

testified that, due to the leaking, appellants’ replaced cracked skylights where the

leaking occurred and replaced flooring that had cracked. She further testified that, as a

result of the leaking, mold was growing and that the glass in the skylights above the

shower leaked before they shattered. According to appellant Diana Coughlin, as a result

of leaking near the fiber optic lighting, drywall started falling. Testimony also was

adduced during appellant John Coughlin’s deposition that the leak along the stone wall

ruined the carpeting, the bed headboard and caused the floor to buckle. Clearly, these

problems did not, as appellants contend, indicate maintenance issues that could easily

and routinely be fixed. We concur with the trial court that appellants, at least as early as
Delaware County App. Case No. 10CAE060044                                            11


the summer of 2001, discovered or should have discovered that problems existed

regarding construction of the master bedroom addition.

      {¶32} Based on the foregoing, we find that the trial court did not err in holding

that appellants’ cause of action for negligence accrued as early as the summer of 2001

and in holding that appellants’ negligence claim against appellee, which occurred more

than four years before they filed their complaint against appellee in October 31, 2008,

was time barred under R.C. 2305.09.

      {¶33} Appellants’ first assignment of error is, therefore, overruled.

                                               II

      {¶34} Appellants, in their second assignment of error, argue that the trial court

erred in granting summary judgment to appellee on their breach of contract claim. We

disagree.

      {¶35} The parties in the case sub judice agree that appellants’ claim that

appellee breached the parties’ oral contract is governed by R.C. 2305.07. Such section

states as follows: “Except as provided in sections 126.301 and 1302.98 of the Revised

Code, an action upon a contract not in writing, express or implied, or upon a liability

created by statute other than a forfeiture or penalty, shall be brought within six years

after the cause thereof accrued.”

      {¶36} However, the parties disagree as to when appellants’ cause of action

accrued. Appellants maintain that appellee was still performing its contract as late as

January of 2003. In their surreply memorandum contra appellee’s Motion for Summary

Judgment, appellants attached appellant John Coughlin’s affidavit. Appellant John

Coughlin, in his affidavit, stated that appellants had one contract with appellee on the
Delaware County App. Case No. 10CAE060044                                                12


project at issue in the case sub judice, and that all bills that they received from appellee

were based on the one contract for the one project. Appellants, in their brief, note that

attached to appellant John Coughlin’s affidavit was an invoice dated January 17, 2003,

from appellee to appellant for architectural services from November 1, 2002, through

January 3, 2003. Appellants argue that their complaint was timely filed because it was

filed on October 31, 2008, which is within six years of January 17, 2003. They argue

that they could not file a breach of contract action against appellee until appellee had

completed all of the work under the contract, which they contend occurred as late as

January of 2003.

       {¶37} In turn, appellee contends that its performance on the master bedroom

addition was completed in 2001, and that, at the time work on such project was

completed in early June of 2001, the parties did not have any agreement with respect to

appellee providing interior design services for the remainder of appellants’ home.

Appellee maintains that, beginning in March of 2002, appellants again retained appellee

“to provide interior design services with respect to redecorating and selecting

furnishings for other portions of [appellants’] home.” In short, appellee maintains that

there were two separate contracts for two separate projects, one for the master

bedroom addition and the other for an interior decorating project, and that the work on

the master bedroom addition was completed in 2001. Because appellants did not file

their breach of contract action until more than six years after such date, appellee

maintains that the same is time-barred.

       {¶38} A breach occurs upon any failure to perform a contractual duty. Kotyk v.

Rebovich (1993), 87 Ohio App.3d 116, 121, 621 N.E.2d 897. A cause of action for
Delaware County App. Case No. 10CAE060044                                             13


breach on the contract accrues when the plaintiff discovers the omission to perform as

agreed. Id at 121, citing Cleveland Bd. of Edn. v. Lesko (Apr. 12, 1990), Cuyahoga App.

No. 56592, 1990 WL 43640, unreported. See also Aluminum Line Products Co. v. Brad

Smith Roofing Co., Inc. (1996), 109 Ohio App.3d 246, 671 N.E.2d 1343.

        {¶39} Appellants, in their brief, rely on O’Bryon v. Poff, Wayne App. No.

02CA0061, 2003-Ohio-3405 for the proposition that a claim for failure to perform a

contract cannot begin to run until the time for performance of the contract ends. On the

basis of such case, appellants argue that no breach in this case could have occurred

until the project was completed as late as January of 2003.

        {¶40} However, we find such case distinguishable. In O’Bryon, the appellee had

an oral agreement to lease her land to the appellant for farming use during the years

1994 and 1995. The appellee alleged that she agreed to lease the land to the appellant

in exchange for replacing an underground drain on her property and that the appellant

failed to do so. It was undisputed that the appellant did not perform work on the drain

line.

        {¶41} The appellee, in O’Bryon, then filed a complaint against the appellant on

August 31, 2001, seeking to enforce the oral agreement. The appellant alleged that the

same was barred by the six year statute of limitations contained in R.C. 2305.07 for oral

contracts. In O’Bryon the court held, in relevant part as follows: “A breach occurs upon

any failure to perform a contractual duty. Thus, the cause of action arises when the

plaintiff discovers the omission to perform as agreed in the oral contract.” [Citations

omitted.] Harris v. Oliver (Nov. 28, 2001), 9th Dist. No. 20508, citing Kotyk v. Rebovich

(1993), 87 Ohio App.3d 116, 121, 621 N.E.2d 897.
Delaware County App. Case No. 10CAE060044                                                14


       {¶42} “There is no testimony in the record regarding when Mr. Poff was to have

completed work on the drainage line, or, alternatively, when the monetary payment for

the rental of the property was due. The trial court found that the cause of action for the

lease accrued on September 29, 1995, apparently using the date of the invoice created

by Ms. O'Bryon. Because there was no set date by which time Mr. Poff had to complete

the drainage line, the breach did not occur until the end of the lease. The lease ended in

1995, therefore the breach occurred in 1995. Ms. O'Bryon filed her complaint in 2001,

within the six year statute of limitations.” Id at 34-35.

       {¶43} Unlike in O’Bryon, in the case sub judice, the work on the master bedroom

addition was actually completed. According to appellant Diana Coughlin’s testimony,

the work was completed in 2001.          According to her testimony, the leaks appeared

shortly thereafter and were substantial and continual causing significant structural

problems. At such time, appellants discovered appellee’s alleged failure to perform as

agreed in the parties’ oral contract. We concur with the trial court that appellants’ breach

of contract claim occurred over six years before they filed their complaint on October 31,

2008 and that, therefore, appellants’ breach of contract claim is time-barred under R.C.

2305.07.
Delaware County App. Case No. 10CAE060044                                       15


       {¶44} Appellants’ second assignment of error is, therefore, overruled.

       {¶45} Accordingly, the judgment of the Delaware County Court of Common

Pleas is affirmed.




By: Edwards, J.

Wise, P.J. and

Delaney, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/d0505
[Cite as Coughlin v. Acock Assoc. Architects, L.L.C. , 2011-Ohio-3212.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


JOHN COUGHLIN, et al.,                                 :
                                                       :
                         Plaintiffs-Appellants         :
                                                       :
                                                       :
-vs-                                                   :        JUDGMENT ENTRY
                                                       :
ACOCK ASSOCIATES ARCHITECTS,                           :
LLC, et al.,                                           :
                                                       :
                      Defendants-Appellees             :        CASE NO. 10CAE060044




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to appellants.




                                                           _________________________________


                                                           _________________________________


                                                           _________________________________

                                                                          JUDGES
