[Cite as State v. Karl R. Rohrer Assocs., Inc., 2018-Ohio-65.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO, BY AND THROUGH                                JUDGES:
JERRY WRAY, DIRECTOR,                                        Hon. W. Scott Gwin, P.J.
OHIO DEPARTMENT OF                                           Hon. William B. Hoffman, J.
TRANSPORTATION, ET AL.                                       Hon. Earle E. Wise, Jr., J.

        Plaintiff-Appellants                                 Case No. 2017AP030008

-vs-
                                                             OPINION
KARL R. ROHRER ASSOCIATES, INC.

        Defendant-Appellee



CHARACTER OF PROCEEDING:                                 Appeal from the Tuscarawas County
                                                         Common Pleas Court, Case No.
                                                         2015CV030118


JUDGMENT:                                                Affirmed

DATE OF JUDGMENT ENTRY:                                  January 8, 2018

APPEARANCES:

For Plaintiff-Appellants                                 For Defendant-Appellee

MICHAEL DEWINE                                           BRIAN T. WINCHESTER
Ohio Attorney General                                    PATRICK J. GUMP
CRAIG D. BARCLAY                                         McNeal Schick Archibald & Biro Co., LPA
WILLIAM C. BECKER                                        123 West Prospect Avenue, Suite 250
Assistant Attorneys General                              Cleveland, OH 44115
Court of Claims Defense Section
150 E. Gay Street, 18th Floor                            For Amicus Curiae, AIA Ohio
Columbus, OH 43215
                                                         LUTHER L. LIGGETT, JR.
                                                         Graff and McGovern LPA
                                                         604 E. Rich Street
                                                         Columbus, OH 43215
Tuscarawas County, Case No. 2017AP030008                                                 2

Hoffman, J.

       {¶1}   Appellants State of Ohio, by and through Jerry Wray, Director, Ohio

Department of Transportation and Ohio Department of Administrative Services, n/k/a

Ohio Facilities Construction Commission, appeal the directed verdict entered by the

Tuscarawas County Common Pleas Court dismissing their breach of contract action

against Appellee Karl R. Rohrer Associates Inc.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   In 1992, and 1993, Appellee submitted two proposals to provide

engineering services for the construction of the Ohio Department of Transportation

(hereinafter “ODOT”) District 11 garage in New Philadelphia, Ohio. Appellee signed an

agreement with the Ohio Department of Administrative Services (hereinafter “ODAS”) to

provide design services related to structural engineering and related supervision for the

construction of the garage. Structural designs for the project were provided by the State

Architect’s Office (hereinafter “SAO”).

       {¶3}   In 1997, the SAO became aware of issues with the brick around five

windows of the completed building. Appellee paid ODAS $68,000.00 to remediate the

issue around the windows.

       {¶4}   Appellants later claimed all windows showed some degree of impermissible

rotation of the steel supporting the brick, causing the brick around the windows to crumble

and/or crack. Appellants further claimed the two-plus-story garage walls of the facility

were not adequately supported. Appellants filed the instant action on March 3, 2015, for

negligence, breach of contract, and declaratory judgment.
Tuscarawas County, Case No. 2017AP030008                                                3


      {¶5}   On September 28, 2015, Appellee filed a motion for judgment on the

pleadings, arguing Appellants’ complaint was barred by Ohio’s statute of repose, R.C.

2305.131. The trial overruled the motion on December 31, 2015, finding R.C. 2305.131

is generally worded and does not say it applies to the State, and Appellants were exempt

from operation of the statute by the doctrine of nullum tempus.

      {¶6}   The case proceeded to jury trial on February 22 and 23, 2017. Prior to trial,

Appellants dismissed their claims for negligence and for declaratory judgment.

      {¶7}   At the close of the presentation of Appellants’ case at trial, Appellee moved

for directed verdict on various grounds, again arguing the action was barred by R.C.

2305.131. Tr. 445. The trial court directed a verdict as follows:



             Based upon evidence illicited [sic] by the Plaintiffs from Defendant’s

      principal, the Agreement was acknowledged, the Defendant stated that the

      work was performed, and the Defendant affirmed that it was paid upon

      completion of the work.

             Based upon the evidence presented by Plaintiffs’ expert, the claims

      for damage were proximately caused by inadequate design, regarding the

      standard of care for engineering.

             The Complaint, Pre-trial Statement, and finally, the evidence at trial,

      presented a claim in tort.     See Crowninshield/Old Town Cmty. Urban

      Redevelopment Corp. v. Campeon Roofing & Waterproofing, 1st Dist.

      Hamilton Nos. C-940731, C-940748, 1996 Ohio App. Lexis 1514 (Apr. 17,

      1996). The claims and opinions demonstrate a belief that the Defendant
Tuscarawas County, Case No. 2017AP030008                                                  4


       failed in its rendering of services in the practice of a profession to exercise

       that degree of skill and learning normally applied by members of that

       profession in similar circumstances. See Illinois National Insurance Co., v.

       Wiles, Boyle, Burkholder & Bringardner Co., LPA, 10th Dist. Franklin No.

       10AP-290, 2010-Ohio-5872.

               Therefore, the Court found that the evidence presented in support of

       the breach of contract sounds in tort, and that the Plaintiffs failed to present

       any evidence that the Defendant breached the contract. Judgment Entry,

       February 28, 2017.



       {¶8}    From this entry Appellants prosecute their appeal, assigning as error:



               “THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S

       MOTION FOR DIRECTED VERDICT AND FINDING THAT THE STATE OF

       OHIO’S CASE ‘SOUNDED IN TORT’ AND THAT THE STATE COULD

       ONLY SUE IN TORT DESPITE IT HAVING A CONTRACT WITH A

       DESIGN ENGINEER AND THEN GOING ON TO INCONSISTENTLY

       HOLD THAT THE STATE OF OHIO FAILED TO PROVE A BREACH OF

       CONTRACT CLAIM (AS THOUGH THE CASE ALSO ‘SOUNDED IN

       CONTRACT’).”



       {¶9}    Appellee assigns the following cross-assignments of error to the judgment

of the trial court:
Tuscarawas County, Case No. 2017AP030008                                   5




           “I.     THE TRIAL COURT ERRED IN DENYING DEFENDANT’S

     MOTION FOR JUDGMENT ON THE PLEADINGS, MOTION FOR

     RECONSIDERATION, AND MOTION FOR DIRECTED VERDICT THAT

     PLAINTIFFS’ CLAIMS WERE BARRED BY THE STATUTE OF REPOSE.

           “II.    THE TRIAL COURT ERRED IN DENYING DEFENDANT’S

     MOTION        FOR   DIRECTED   VERDICT   AS   TO   PLAINTIFF   OHIO

     DEPARTMENT OF TRANSPORTATION’S LACK OF CONTRACTUAL

     PRIVITY WITH THE DEFENDANT.

           “III.    THE TRIAL COURT ERRED IN DENYING DEFENDANT’S

     MOTION        FOR   DIRECTED   VERDICT   AS   TO   PLAINTIFF   OHIO

     DEPARTMENT OF ADMINISTRATIVE SERVICES’ LACK OF STANDING.

           “IV.     THE TRIAL COURT ERRED IN DENYING DEFENDANT’S

     MOTION FOR DIRECTED VERDICT AS THE PLAINTIFFS FAILED TO

     PRESENT EVIDENCE THAT IT SUBSTANTIALLY PERFORMED THE

     APPLICABLE CONTRACT.

           “V.     THE TRIAL COURT ERRED IN DENYING DEFENDANT’S

     MOTION FOR LEAVE TO FILE AN AMENDED ANSWER OR TO ALLOW

     ITS ANSWER TO CONFORM TO THE EVIDENCE.

           “VI. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S

     MOTION FOR DIRECTED VERDICT AS PLAINTIFFS’ CLAIMS WERE

     BARRED BY THE DOCTRINE OF ACCORD AND SATISFACTION.
Tuscarawas County, Case No. 2017AP030008                                                   6


              “VII. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S

       MOTION FOR DIRECTED VERDICT AS THE PLAINTIFFS FAILED TO

       PRESENT ANY EVIDENCE AS TO THE DIMINUTION IN VALUE OF THE

       SUBJECT PROPERTY.”



                                       Cross-Assignment I.

       {¶10} We address Appellee’s first cross-assignment of error first, as we find it

dispositive of the entire appeal. Appellee argues the trial court erred in denying its motion

for judgment on the pleadings, motion for reconsideration of its decision on the motion for

judgment on the pleadings, and motion for directed verdict, asserting Appellants’ cause

of action is barred by the statute of repose. We agree.

       {¶11} Civ. R. 12(C) provides, “After the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings.” The standard

of review of the grant of a motion for judgment on the pleadings is the same as the

standard of review for a Civ. R. 12(B)(6) motion. As the reviewing court, our review of a

dismissal of a complaint based upon a judgment on the pleadings requires us to

independently review the complaint and determine if the dismissal was appropriate. Rich

v. Erie County Department of Human Resources, 106 Ohio App.3d 88, 91, 665 N.E.2d

278 (1995). A reviewing court need not defer to the trial court's decision in such cases.

Id.

       {¶12} A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C),

presents only questions of law. Peterson v. Teodosia, 34 Ohio St.2d 161, 165-166, 297

N.E.2d 113 (1973). The determination of a motion under Civ. R. 12(C) is restricted solely
Tuscarawas County, Case No. 2017AP030008                                                   7


to the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in its favor. Id. Evidence in any form cannot be considered. Conant v. Johnson,

1 Ohio App.2d 133, 135, 204 N.E.2d 100 (1964). In considering such a motion, one must

look only to the face of the complaint. Nelson v. Pleasant, 73 Ohio App.3d 479, 597

N.E.2d 1137 (1991).

       {¶13} A trial court's decision on a motion for directed verdict presents a question

of law, which an appellate court reviews de novo. Groob v. Keybank, 108 Ohio St.3d 348,

2006–Ohio–1189, 843 N.E.2d 1170. Civil Rule 50 provides a motion for directed verdict

may be made at the opening statement of the opponent, at the close of opponent's

evidence, or at the close of all the evidence. Upon receiving the motion, the trial court

must construe the evidence most strongly in favor of the party against whom the motion

is directed. Civil Rule 50(A)(4). If the trial court finds on any determinative issue

reasonable minds could come but to one conclusion on the evidence submitted, then the

court shall sustain the motion and direct the verdict as to such issue. A directed verdict is

appropriate where a plaintiff fails to present evidence from which reasonable minds could

find in plaintiff's favor. See Hargrove v. Tanner, 66 Ohio App.3d 693, 586 N.E.2d 141 (9th

Dist. Summit 1990).

       {¶14} On September 28, 2015, Appellee filed a motion for judgment on the

pleadings, arguing Appellants’ complaint was barred by Ohio’s statute of repose, R.C.

2305.131. The trial overruled the motion on December 31, 2015, finding R.C. 2305.131

is generally worded and does not say it applies to the State, and Appellants were exempt

from operation of the statute by the doctrine of nullum tempus.
Tuscarawas County, Case No. 2017AP030008                                                  8


       {¶15} At the close of the presentation of Appellants’ case at trial, Appellee moved

for directed verdict, again arguing the action was barred by R.C. 2305.131. Tr. 445. The

trial court granted directed verdict on other grounds.

       {¶16} R.C. 2305.131, Ohio’s statute of repose, provides:



              (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), (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 and no cause of

       action for contribution or indemnity for damages sustained as a result of

       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.

              (2) 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
Tuscarawas County, Case No. 2017AP030008                                              9


     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.

            (3) 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.

            (B) Division (A) of this section does not apply to a civil action

     commenced against a person who is an owner of, tenant of, landlord of, or

     other person in possession and control of an improvement to real property

     and who is in actual possession and control of the improvement to real

     property at the time that the defective and unsafe condition of the

     improvement to real property constitutes the proximate cause of the bodily

     injury, injury to real or personal property, or wrongful death that is the

     subject matter of the civil action.

            (C) Division (A)(1) of this section is not available as an affirmative

     defense to a defendant in a civil action described in that division if the
Tuscarawas County, Case No. 2017AP030008                                              10


     defendant engages in fraud in regard to furnishing the design, planning,

     supervision of construction, or construction of an improvement to real

     property or in regard to any relevant fact or other information that pertains

     to the act or omission constituting the alleged basis of the bodily injury,

     injury to real or personal property, or wrongful death or to the defective and

     unsafe condition of the improvement to real property.

            (D) Division (A)(1) of this section does not prohibit the

     commencement of 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 period described in division (A)(1) of this section and

     whose warranty or guarantee has not expired as of the time of the alleged

     bodily injury, injury to real or personal property, or wrongful death in

     accordance with the terms of that warranty or guarantee.

            (E) This section does not create a new cause of action or substantive

     legal right against any person resulting from the design, planning,

     supervision of construction, or construction of an improvement to real

     property.

            (F) This section shall be considered to be purely remedial in

     operation and shall be applied in a remedial manner in any civil action

     commenced on or after the effective date of this section, in which this

     section is relevant, regardless of when the cause of action accrued and

     notwithstanding any other section of the Revised Code or prior rule of law
Tuscarawas County, Case No. 2017AP030008                                                   11


         of this state, but shall not be construed to apply to any civil action pending

         prior to the effective date of this section.

                (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.



         {¶17} It is undisputed Appellants filed the instant action more than ten years after

the building was substantially complete. Therefore, the only issue before us is whether

the statute applies to Appellants’ breach of contract claim against Appellee.1

         {¶18} Appellants argue R.C. 2305.131 does not apply to breach of contract

actions, citing Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St. 3d 98, 488 N.E.2d

171 (1986). In Kocisko the Ohio Supreme Court found a prior version of R.C. 2305.131

applies only to actions which sound in tort. Id. at syllabus. Actions in contract are

governed by the fifteen-year statute of limitations set forth in R.C. 2305.06. Id.

         {¶19} In so holding, the Ohio Supreme Court referred to the prior version of R.C.

2305.131 as a ten-year statute of limitations. Id. at 99, 488 N.E.2d at 172. The statute in

effect at the time provided in pertinent part:




1   Appellants’ claims for negligence and declaratory judgment were dismissed prior to trial.
Tuscarawas County, Case No. 2017AP030008                                                    12


              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 . . . 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 (emphasis added).



       {¶20} The court concluded this ten-year statute of limitations did not apply to

contract actions, which were governed by the fifteen-year statute of limitations found in

R.C. 2305.06.

       {¶21} Further, the court in Kocisko found the complaint did not allege an injury to

person or property arising out of a defective and unsafe improvement to real property.

Rather, the plaintiff sought recovery for damages flowing from the installation of a leaky

roof in breach of their various contracts. Id. Thus, while holding generally R.C. 2305.131

did not apply to breach of contract actions, the court looked at the complaint to determine

what type of injury the plaintiff alleged.

       {¶22} The dissenting justices found the plain language of the statute, stating “no

actions” for certain types of injuries shall be brought more than ten years after the cause

of action arose, did not distinguish between contract, tort, or other forms of actions. Id.

at 100, 488 N.E.2d at 173. The dissenting opinion further looked to the intention of the

legislature in adopting the statute to support its position the statute was not limited to tort

actions:
Tuscarawas County, Case No. 2017AP030008                                                   13




              The parties agree that R.C. 2305.131 was adopted to protect

       architects and builders when the demise of the privity of contract doctrine

       broadly extended their potential liability to third parties. 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. Over such a long time, evidence becomes stale and intervening

       negligence could and does occur. I find unpersuasive the argument that the

       legislature would have passed such legislation intending it to apply only to

       tort claims but not to contract claims that allege the same type of injury. If

       the legislature intended to restrict the limitations period to a particular form

       of action, it could have done so explicitly. Id.



       {¶23} In Hedges v. Nationwide Mut. Ins. Co., 109 Ohio St.3d 70, 2006-Ohio-1926,

846 N.E.2d 16, ¶¶ 24-25 (2006), the Ohio Supreme Court held changes to the statutory

language in the area of uninsured/underinsured motorist law cured the ambiguity that

concerned the court in a prior case interpreting the statute, and therefore the prior holding

of the court did not apply to the new version of the statute. In the instant case, the current

statute is clearly not a statute of limitations as the Kocisko court characterized the prior

version of R.C. 2305.131. Rather than limiting the time in which the action may be

brought, the current statute prevents the cause of action from accruing after ten years

has passed, stating “no cause of action shall accrue” later than ten years from the date

the project was substantially completed.
Tuscarawas County, Case No. 2017AP030008                                                  14


       {¶24} In addition, R.C. 2305.131 states:



              (F) This section shall be considered to be purely remedial in

       operation and shall be applied in a remedial manner in any civil action

       commenced on or after the effective date of this section, in which this

       section is relevant, regardless of when the cause of action accrued and

       notwithstanding any other section of the Revised Code or prior rule of law

       of this state, but shall not be construed to apply to any civil action pending

       prior to the effective date of this section (emphasis added).



       {¶25} The statute itself sets forth the legislature’s intention it apply to any civil

action in which it is relevant, regardless of any prior rule of law of this state, presumably

including case law based on the prior version of the statute and/or any common law

precedent.

       {¶26} Therefore, we find Kocisko is not binding authority on this Court in

interpreting the current version of the statute.

       {¶27} The legislature set forth its purposes for reenactment of the statute of

repose following the Ohio Supreme Court’s declaration the prior version was

unconstitutional:



              In enacting section 2305.131 of the Revised Code in this act, it is the

       intent of the General Assembly to do all of the following:
Tuscarawas County, Case No. 2017AP030008                                               15


            (1) To declare that the ten-year statute of repose prescribed by

     section 2305.131 of the Revised Code, as enacted by this act, 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;

            (2) To recognize that, subsequent to the completion of the

     construction of an improvement to real property, all of the following

     generally apply to the persons who provided services for the improvement

     or who furnished the design, planning, supervision of construction, or

     construction of the improvement:

            (a) They lack control over the improvement, the ability to make

     determinations with respect to the improvement, and the opportunity or

     responsibility to maintain or undertake the maintenance of                 the

     improvement;

            (b) They lack control over other forces, uses, and intervening causes

     that may cause stress, strain, or wear and tear to the improvement.

            (c) They have no right or opportunity to be made aware of, to

     evaluate the effect of, or to take action to overcome the effect of the forces,

     uses, and intervening causes described in division (E)(5)(b) of this section.

            (3) To recognize that, more than ten years after the completion of the

     construction of an improvement to real property, the availability of relevant
Tuscarawas County, Case No. 2017AP030008                                              16


     evidence pertaining to the improvement and the availability of witnesses

     knowledgeable with respect to the improvement is problematic;

            (4) To recognize that maintaining records and other documentation

     pertaining to services provided for an improvement to real property or the

     design, planning, supervision of construction, or construction of an

     improvement to real property for a reasonable period of time is appropriate

     and to recognize that, because the useful life of an improvement to real

     property may be substantially longer than ten years after the completion of

     the construction of the improvement, it is an unacceptable burden to require

     the maintenance of those types of records and other documentation for a

     period in excess of ten years after that completion;

            (5) To declare that section 2305.131 of the Revised Code, as

     enacted by this act, strikes a rational balance between the rights of

     prospective claimants and the rights of design professionals, construction

     contractors, and construction subcontractors and to declare that the ten-

     year statute of repose prescribed in that section is a rational period of

     repose intended to preclude the pitfalls of stale litigation but not to affect

     civil actions against those in actual control and possession of an

     improvement to real property at the time that a defective and unsafe

     condition of that improvement causes an injury to real or personal property,

     bodily injury, or wrongful death. 2004 SB 80 § 3, eff. 4–7–05.
Tuscarawas County, Case No. 2017AP030008                                                    17


       {¶28} We find the stated concerns underlying enactment of the statute apply to

actions brought against design professionals for injury to person or property caused by a

defective or unsafe improvement to real property, whether such action sounds in tort or

contract.

       {¶29} In addition, the legislative history quoted above reflects an intent to promote

a greater interest than the “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.” The inclusion of other statutes of limitations beyond R.C. 2305.09

(certain torts) and R.C. 2305.10 (products liability) implies the statute applies to non-tort

actions which allege the type of injury set forth in the statute.

       {¶30} 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.

       {¶31} In its complaint, Appellants state in their introduction:



              6. Defendant Rohrer failed to perform and otherwise breached its

       contract, breached its standard of care, failed to identify defective work for

       correction and otherwise failed to comply with the requirements of the

       Contract Documents.

              7. Said breaches of contract and negligence included but were not

       limited to: failure to design, advise, and properly monitor construction of

       brick and steel lintels over long-span window openings, forty-five in all,

       causing window displacement, and corresponding cracking of brick with
Tuscarawas County, Case No. 2017AP030008                                                18


     related leakage; failure to design, advise and properly monitor construction

     of walls and footer/foundation throughout, especially in high wall areas – all

     violating basic engineering standards.



     {¶32} In its prayer for relief for breach of contract, Appellants’ complaint states:



             14. As a direct and proximate result of Rohrer’s breach of contract,

     ODOT has incurred and will incur additional costs and damages to repair

     and replace defective and non-complying structural design, workmanship,

     and materials in an amount in excess of $1.5 million plus prejudgment

     interest, and other compensatory and consequential damages in an amount

     to be proven at trial.



     {¶33} Appellants’ claim for negligence sets forth a nearly-identical prayer for

damages:



             17. As a direct and proximate result of the negligence of Defendant

     Rohrer, the Plaintiffs have incurred and will incur additional costs and

     damages to repair and replace defective and non-complying designs, work

     and materials in an amount in excess of $1.5 million, plus prejudgment

     interest, and other compensatory and consequential damages, to be proven

     at trial.
Tuscarawas County, Case No. 2017AP030008                                                       19


       {¶34} We find the instant action is an action for damages to property caused by

defective design to an improvement to real property, and as such R.C. 2305.131 applies.

       {¶35} The trial court found R.C. 2305.131 did not apply to Appellants based on

the maxim nullum tempus occurrit regi (time does not run against the king). Based on the

doctrine of nullum tempus, the state of Ohio is not subject to general requirements of

statutes of limitations unless the statute in question has specifically included the

government.     State, Dept. of Transp. v. Sullivan, 38 Ohio St.3d 137, 139, 527 N.E.2d

798, 799 (1988). We reiterate the present version is not a statute of limitations but rather

a declaration of when a cause of action no longer exists. One reason for the vitality of

the doctrine in a time when royal privilege no longer exists is found in the public policy of

preserving the public rights, revenues, and property from injury and loss from the

negligence of public officials in failing to bring suit in a timely fashion. Id. The rule is

justified on the basis the same active vigilance cannot be expected of the State as

characterizes a private person in protecting his or her own rights. Id., citing Heddleston

v. Hendricks, 52 Ohio St. 460, 465, 40 N.E. 408, 409 (1895).

       {¶36} The trial court relied on City of Chicago ex rel. Scachitti v. Prudential

Securities, Inc., 332 Ill. App. 3d 353, 772 N.E.2d 906 (2002). In that case, the Illinois

court first undertook an analysis of the application of nullum tempus to the statute of

limitations, as in Illinois the test for its applicability is whether the right the State seeks to

assert is a right belonging to the general public, or whether it belongs only to the

government or a small subsection of the public at large. Id. at 361. After determining the

right was one belonging to the general public and the statute of limitations did not apply

based on the doctrine of nullum tempus, the court then found the statute of repose also
Tuscarawas County, Case No. 2017AP030008                                                 20

did not bar the action, citing People v. Asbestospray Corp., 247 Ill. App. 3d 258, 616

N.E.2d 652 (1993).

       {¶37} In Asbestospray, the court concluded despite differences between the two,

statutes of repose are essentially time limitations and therefore subject to the doctrine of

nullum tempus, citing cases from the states of Washington and North Carolina. Id. at

262. However, the Illinois statute in question in Asbestospray differed from the Ohio

statute. Unlike R.C. 2305.131 which prevents the cause of action from accruing, the

Illinois statute provides no product liability action based on strict liability “shall be

commenced except within the applicable limitations period and, in any event, within 12

years from the date of first sale….” Id. at 260.

       {¶38} We find the City of Chicago case unpersuasive in the instant appeal. The

Illinois statutory language is more similar to a statute of limitations than the language in

the Ohio statute. Further, Illinois requires consideration of whether the government is

engaged in a public function prior to applying the doctrine of nullum tempus. Ohio has no

such requirement, and thus application of the doctrine to the statute of repose would

provide a sweeping application to all actions brought by the State. Unlike City of Chicago

where the right asserted belonged to the general public, we find the right asserted here

belongs to the government.2 In addition, we note a split of authority among states as to

the applicability of the doctrine to statutes of repose. See, e.g, Com. v. Owens-Corning

Fiberglass Corp., 238 Va. 595, 385 S.E.2d 865 (1989); Altoona Area School Dist. v.




2 In City of Chicago, the action was brought to recover overcharges incurred by yield
burning on the part of the defendants in advanced-refunding of city bonds. The court held
the recovery of $1.4 million in overcharges benefitted the general public. 772 N.E.2d at
918.
Tuscarawas County, Case No. 2017AP030008                                                21

Campbell, 152 Pa. Cmwlth. 131, 618 A.2d 1129 (1992); Shasta View Irrigation Dist. v.

Amoco Chemicals Corp. 329 Or. 151, 986 P.2d 536 (1999).

       {¶39} We find the trial court erred in finding the doctrine of nullum tempus barred

application of the statute of repose against the State. The doctrine nullum tempus occurrit

regi translates “time does not run against the king.” Because the statute of repose

prevents a cause of action from accruing, application of the doctrine to the statute of

repose would not stop time from running against the king, but rather would give the king

a cause of action where otherwise one would not exist. The Supreme Court of Oregon

held in Shasta View, supra, at 164:



              ORS 30.905(1), by contrast, reflects a legislative judgment that an

       injury occurring eight years after a defective product first enters the stream

       of commerce is not legally cognizable because, after that time, all claims

       are extinguished. Sealey, 309 Or. at 392, 788 P.2d 435. Unlike a statute of

       limitations, the eight-year ultimate repose period prescribed by that statute

       begins to run on the date on which a product first is purchased for use or

       consumption, not on the date on which a purchaser knows or should have

       known of an injury caused by the product. The eight-year statute of ultimate

       repose runs whether or not a public official or any other plaintiff fails to

       assert a claim in a timely manner. The public policy for exempting

       governments from statutes of limitations therefore does not apply to statutes

       of ultimate repose. That is so, because the expiration of ultimate repose
Tuscarawas County, Case No. 2017AP030008                                                   22


       periods extinguishes all claims irrespective of whether the injured plaintiff

       was negligent in failing to assert claims in a timely manner.




       {¶40} As in Oregon, the policy underlying the continued application of nullum

tempus in Ohio is premised on protecting the public interest from the negligence of public

officials who fail to bring a claim in a timely fashion. Sullivan, supra. Such underpinning

does not apply to R.C. 2305.131, which extinguishes all claims ten years after completion

of the project irrespective of whether the plaintiff has filed a complaint in a timely manner.

       {¶41} Further, the language of the statute specifically states it applies

notwithstanding common law to the contrary:



              (F) This section shall be considered to be purely remedial in

       operation and shall be applied in a remedial manner in any civil action

       commenced on or after the effective date of this section, in which this

       section is relevant, regardless of when the cause of action accrued and

       notwithstanding any other section of the Revised Code or prior rule of law

       of this state, but shall not be construed to apply to any civil action pending

       prior to the effective date of this section. R.C. 2305.131(F) (emphasis

       added).



       {¶42} The language of the statute itself suggests the doctrine of nullum tempus,

a “prior rule of law of this state,” shall not prevent application of the statute.
Tuscarawas County, Case No. 2017AP030008                                            23


       {¶43} For the foregoing reasons, we find the instant action, filed more than ten

years after substantial completion of the project, is barred by R.C. 2305.131.     The

assignment of error is sustained.

       {¶44} The assignment of error on direct appeal and the remaining cross-

assignments of error are rendered moot by our disposition of the first cross-assignment

of error.

       {¶45} The judgment of the Tuscarawas County Common Pleas Court is affirmed.




By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur
