[Cite as New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng. Inc., 2017-
Ohio-8523.]

                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




NEW RIEGEL LOCAL SCHOOL
DISTRICT, BOARD OF EDUCATION,
                                                                   CASE NO. 13-17-05
       PLAINTIFF-APPELLANT,
       -and-

STATE OF OHIO,

       PLAINTIFF-APPELLEE,

       v.
                                                                   OPINION
THE BUEHRER GROUP
ARCHITECTURE & ENGINEERING,
INC., ET AL.,

       DEFENDANTS-APPELLEES.



                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 15 CV 0115

                                     Judgment Affirmed

                          Date of Decision: November 13, 2017



APPEARANCES:

        Christopher L. McCloskey and Tarik Kershah for Appellant

        Lee Ann Rabe and James Rook for Appellee, The State of Ohio
Case No. 13-17-05


WILLAMOWKSI, J.

       {¶1} Plaintiff-appellant New Riegel Local School District Board of

Education (“the School”) brings this appeal from the judgment of the Court of

Common Pleas of Seneca County dismissing the State of Ohio (“the State”) as an

involuntary plaintiff in this lawsuit. For the reasons set forth below, the judgment

is affirmed.

       {¶2} This case arises from the construction of a new Kindergarten through

12th Grade School Facility Project (“the Project”) built as part of the Ohio Classroom

Facilities Assistance Program. Doc. 2. As a result of the Project, the School entered

into contracts with multiple contractors starting in February of 2000. Id. The

contracts were all entered between the individual contractor, the School, the State,

through the president and treasurer of the School, and the Ohio School Facilities

Commission (“OSFC”) as parties. Id. The general trade and roofing contracts were

standard form contracts prepared by OSFC. Id. The date of occupancy of the

Project was December 19, 2002. Doc. 88, Ex. K. A Certificate of Completion of

the Project Agreement was issued by OSFC on March 3, 2004. Doc. 24. This

certificate stated that OSFC’s interest “is considered transferred to the School

District, * * *.” Id. at Ex. A. The certificate also provided that the School had sole

responsibility for all facilities management, including the enforcement of warranties

and guarantees. Id.



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      {¶3} Over time, the School had issues with the facilities, including but not

limited to condensation and moisture intrusion allegedly caused by design and

construction errors. Doc. 2. A complaint was filed by the School on April 30, 2015.

Id. The complaint was brought in the name of the School with the State of Ohio

and OSFC as involuntary plaintiffs. Id. The complaint named the Buehrer Group

Architecture & Engineering, Inc., the Estate of Huber H. Buehrer (collectively

known as “the Buehrer Group”), Studer-Obringer, Inc. (“SOI”), Charles

Construction Services (“CCS”), and American Buildings Company as defendants.

Id. On June 5, 2015, the State and OSFC filed a motion to dismiss them as

involuntary plaintiffs to the action. Doc. 24. The School filed a response to this

motion on June 15, 2015. Doc. 27. The State and OSFC responded to that response

on June 26, 2015. Doc. 30.

      {¶4} On February 10, 2016, the School filed an amended complaint in its

own name and that of the State. Doc. 62. The amended complaint indicated that

OSFC had been voluntarily dismissed as an involuntary plaintiff that was not

necessary. Id. On March 1, 2016, the State filed a motion to be dismissed from the

amended complaint as an involuntary plaintiff. Doc. 72. The School filed its

memorandum in opposition to the motion on March 10, 2016. Doc. 74. The School

then filed a second amended complaint on June 10, 2016. Doc. 88. This complaint

added Ohio Farmers Insurance Co. (“OFIC”) as a defendant. The State then filed a

motion to be dismissed as an involuntary plaintiff from the second amended

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Case No. 13-17-05


complaint. Doc. 91. The School again filed a memorandum in opposition. Doc.

97. On July 1, 2016, the State filed its reply to the school’s memorandum. On

August 17, 2016, the State’s motion to be dismissed was granted. Doc. 114. On

January 25, 2017, the School filed its notice of appeal from the judgment granting

the State’s motion to dismiss as well as other judgments in the case. Doc. 140. This

judgment was assigned appellate case number 13-17-05. The other judgments were

assigned case numbers 13-17-03 (dismissal of case against SOI), 13-17-04

(dismissal of case against the Buehrer Group), and 13-17-06 (dismissal of case

against CCS and OFIC). On appeal, the School raises the following assignments of

error.

                            First Assignment of Error

         The trial court erred in dismissing [the School’s] breach of
         contract claims against [SOI], [CCS], and [The Buehrer Group],
         by finding that the Ohio Statute of Repose, R.C. 2305.131, barred
         [the School’s] claims for breach of contract.

                           Second Assignment of Error

         The trial court erred in dismissing the claims against [SOI] and
         [CCS] as those contracts were entered with [the State] and
         general limitations periods do not apply to the State of Ohio.

                           Third Assignment of Error

         The trial court erred in finding that [the School] does not have
         authority to bring its action in the name of [the State].




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Case No. 13-17-05


                            Fourth Assignment of Error

       The trial court erred in dismissing [the School’s] claims against
       [OFIC], as surety for [SOI], on the basis that [the School’s] surety
       bond claim against [OFIC] was barred by the virtue of the
       dismissal of the claims against [SOI].

As only the third assignment of error deals with the State, which is the only party in

the judgment appealed from in appellate case number 13-17-05, we need not address

the other assignments of error in this opinion. They will be addressed in their

respective cases.

       {¶5} In the third assignment of error, the School claims that it had the

authority to bring the case in the name of the State. The School argues that the State

is a real party in interest and thus is a necessary party to the case.

       Every action shall be prosecuted in the name of the real party in
       interest. An executor, administrator, guardian, bailee, trustee of
       an express trust, a party with whom or in whose name a contract
       has been made for the benefit of another, or a party authorized
       by statute may sue in his name as such representative without
       joining with him the party for whose benefit the action is brought.
       When a statute of this state so provides, an action for the use or
       benefit of another shall be brought in the name of this state. No
       action shall be dismissed on the ground that it is not prosecuted
       in the name of the real party in interest until a reasonable time
       has been allowed after objection for ratification of
       commencement of the action by, or joinder or substitution of, the
       real party in interest. Such ratification, joinder, or substation
       shall have the same effect as if the action had been commenced in
       the name of the real party in interest.

Civ.R. 17(A). In this case there is no question that the School is a real party in

interest and has the authority to bring the suit in its own name. The Certificate of


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Case No. 13-17-05


Completion issued by OSFC specifically transferred the interest of OSFC, a state

entity, to the School.     The Certificate specified that the School was solely

responsible for the ownership and management of the property, specifically any

enforcement of warranties and guarantees associated with the project. The State

does not claim that it has a continuing interest in the facilities once the project was

completed.

       {¶6} The School claims that it can require the State to be an involuntary

plaintiff because one clause in the General Conditions form stated that the School

could “maintain an action in the name of the State for violations of any law relating

to the Project or for any injury to persons or property pertaining to the Work, or for

any other cause which is necessary in the performance of the School District Board’s

and Commission’s duties.” This contract was entered between the School and the

OSFC and basically granted the School the temporary right to act as a limited agent

of the State, through the OSFC, and bind the State to the necessary contracts to build

the new facility. As stated above, the involvement of the OSFC, and thus the State,

terminated upon the issuance of the Certificate of Completion which transferred all

rights and responsibilities to the School. The Certificate of Completion was issued

after the General Conditions form and essentially terminated the School’s ability to

act as a limited agent of the State. Additionally, the only party which can represent

the State in a court of law is the Office of the Attorney General. R.C. 109.02.

“Except as provided in division (E) of section 120.06 and in sections 3517.152 to

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Case No. 13-17-05


3517.157 of the Revised Code, no state officer or board, or head of a department or

institution of the state shall employ, or be represented by, other counsel or attorneys

at law [other than the attorney general].” Id. None of the exceptions listed in the

statute apply in this situation.1

         {¶7} As the Certificate of Completion ended the interest of OSFC, and thus

the State, in the Project, the State was no longer a real party in interest. The trial

court correctly dismissed the State as a party to the case. Thus, the third assignment

of error is overruled.

         {¶8} Having found no error in the particulars assigned and argued that are

relevant to this appeal, the judgment of the Court of Common Pleas of Seneca

County is affirmed.

                                                                                     Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




1
  This court also notes that the School filed a mandamus action against OSFC based upon the same facts
raised in this case. See Doc. 91 and State ex rel. New Riegel Local School Dist. Bd. of Edn. v. Ohio School
Facilities Comm., 3d Dist. Seneca No. 13-16-22, 2017-Ohio-875. In that case, the School brought suit to
compel OSFC to provide funding to repair the alleged construction defects in the Project. Id. at ¶ 4. This
court held that upon the issuance of the Certificate of Completion, the interest of OSFC in the Project
terminated. Id. at ¶29. The basis of the claims in this case are also to get damages for the alleged construction
defects in the Project. This court notes that the attorney representing the School in the mandamus action
which brought suit against an entity of the State has also now filed suit in the name of the State.


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