        [Cite as Makrauer v. Hal Homes, Inc., 2020-Ohio-945.]

                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




ZOLA S. MAKRAUER,                               :         APPEAL NO. C-190256
                                                          TRIAL NO. A-1806326
     Plaintiff-Appellant,                       :
                                                                O P I N I O N.
  vs.                                           :

HAL HOMES, INC.,                                :

     Defendant-Appellee.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 13, 2020



Cummins Law LLC, James R. Cummins and Maxwell J. Hopkins, for Plaintiff-
Appellant,

Aronoff Rosen & Hunt and Edward P. Akin, for Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}   Plaintiff-appellant Zola S. Makrauer appeals from the trial court’s

judgment granting a Civ.R. 12(B)(6) motion to dismiss filed by defendant-appellee

Hal Homes, Inc., (“Hal Homes”).    Because the trial court correctly determined that

Makrauer’s complaint was barred by the statute of repose, we affirm its judgment.


                              Makrauer’s Complaint


       {¶2}   In November 2018, Makrauer filed a complaint against Hal Homes

asserting a claim for negligence. The complaint alleged that in 1985, Hal Homes

constructed a condominium that is currently owned by Makrauer.            Makrauer

purchased the condominium in 1987 from its original owner.

       {¶3}   According to the complaint, Hal Homes negligently constructed the

condominium by failing to connect the wood framing of the condominium to the

concrete foundation. This resulted in the condominium moving independently from

the foundation, caused cracking in the foundation, and allowed water intrusion. The

complaint alleged that due to Hal Homes’s negligence, the construction on the

condominium was never substantially completed and Makrauer had to spend

approximately $97,500 to repair the damage and bring the condominium to a state

of substantial completion.

       {¶4}   Hal Homes filed a Civ.R. 12(B)(6) motion to dismiss, arguing that

Makrauer’s complaint was barred by the statute of repose. In opposing the motion to

dismiss, Makrauer argued that the statute of repose had never begun to run because

the construction on the condominium was never substantially completed. The trial

court granted the motion to dismiss after determining that the statute of repose

barred Makrauer’s complaint. Makrauer now appeals.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



                                   Statute of Repose


       {¶5}    In a single assignment of error, Makrauer argues that the trial court

erred in granting the motion to dismiss on the basis of the statute of repose.

       {¶6}    A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon

which relief can be granted tests the sufficiency of the complaint. Thomas v.

Othman, 2017-Ohio-8449, 99 N.E.3d 1189, ¶ 18 (1st Dist.). When ruling on a Civ.R.

12(B)(6) motion, the trial court is confined to the allegations in the complaint. Id. It

must accept the complaint’s factual allegations as true and must draw all reasonable

inferences in favor of the nonmoving party. Id. We review the trial court’s ruling on

a Civ.R. 12(B)(6) motion de novo. Id. at ¶ 19. “A complaint should not be dismissed

for failure to state an actionable claim unless it appears beyond doubt from the

complaint that the plaintiff can prove no set of facts entitling him to recovery.” Id.

       {¶7}    A statute of repose bars “any suit that is brought after a specified time

since the defendant acted * * * even if this period ends before the plaintiff has

suffered a resulting injury.” Black’s Law Dictionary 1637 (10th Ed.2014). Whereas

a statute of limitations sets a time limit for bringing a civil suit based on the date that

the claim accrued, a statute of repose measures the time limit in which to bring a civil

action “not from the date on which the claim accrues but instead from the date of the

last culpable act or omission of the defendant.” Union Local School Dist., Bd. of Edn.

v. Grae-Con Constr., Inc., 2019-Ohio-4877, 137 N.E.3d 122, ¶ 14-15 (7th Dist.),

quoting CTS Corp. v. Waldburger, 573 U.S. 1, 8, 134 S.Ct. 2175, 189 L.Ed.2d 62

(2014).

       {¶8}    Ohio’s construction statute of repose is set forth in R.C. 2305.131. It

provides in relevant part:

       Notwithstanding an otherwise applicable period of limitations * * * no

       cause of action to recover damages for * * * an injury to real or



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       personal property * * * 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.

(Emphasis added.) R.C. 2305.131(A)(1).

       {¶9}      “Substantial completion” is defined in R.C. 2305.131(G) as “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.”

       {¶10} Makrauer contends that the statute of repose has not yet begun to run
because, due to the negligence of Hal Homes, the construction of her condominium

was never substantially completed. She argues that R.C. 2305.131(G) sets forth two

scenarios in which an improvement to real property will be deemed substantially

completed: (1) the date that the improvement to the property is first used by the

owner, or (2) when the real property is first available for use. She then asserts that

both of these clauses are modified by the phrase “after having the improvement

completed in accordance with the contract or agreement covering the improvement,

including any agreed changes to the contract or agreement.” Makrauer argues that

neither of these two possibilities for substantial completion has yet occurred because

the condominium was never completed in accordance with the contract or agreement

covering the improvement, as is evidenced by the injury to the real property caused

by Hal Homes’s negligence. Hal Homes disagrees, and contends that the phrase


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                      OHIO FIRST DISTRICT COURT OF APPEALS



regarding the completion of the improvement being in accordance with the contract

only applies to the latter clause in the statute that follows the word “or.”

       {¶11} When interpreting a statute, we must ascertain and give effect to the
intent of the legislature in enacting the statute. State v. Lowe, 112 Ohio St.3d 507,

2007-Ohio-606, 861 N.E.2d 512, ¶ 9. Legislative intent is determined from the plain

language of the statute, and where a statute is unambiguous and definite, it must be

applied as written “in a manner consistent with the plain meaning of the statutory

language.” Id.; State v. Bowers, 2018-Ohio-30, 102 N.E.3d 1218, ¶ 12 (1st Dist.).

       {¶12} The language of R.C. 2305.131(G) is plain and unambiguous. The
statute sets forth two separate scenarios in which an improvement to real property

could be considered substantially completed, and provides that the earlier of these

events to occur will be deemed the date of substantial completion. Per the plain

language of R.C. 2305.131(G), an improvement to real property is substantially

completed upon the earlier of (1) “the date the improvement to real property is first

used by the owner or tenant of the real property” or (2) “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.”

       {¶13} These two clauses are modified by the word “or.” “The word ‘or’ is
primarily used as a disjunctive, and ‘[c]anons of construction ordinarily suggest that

terms connected by a disjunctive be given separate meanings, unless the context

dictates otherwise * * *.’ ” O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574,

889 N.E.2d 505, ¶ 51, quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct.

2326, 60 L.Ed.2d 931 (1979). The use of the word “or” separating the two clauses in

R.C. 2305.131(G) dictates that the phrase “after having the improvement completed

in accordance with the contract or agreement covering the improvement, including

any agreed changes to the contract or agreement” only modifies the latter clause.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} Applying the plain language of the statute as written, we find that
Makrauer’s condominium was substantially completed in 1985 when the original

owner took occupancy. Makrauer’s complaint for negligence, filed in 2018, was thus

barred by the statute of repose.

       {¶15} Because Makrauer’s complaint indicates on its face that it is barred by
the statute of repose, the trial court did not err in granting Hal Homes’s Civ.R.

12(B)(6) motion to dismiss. Makrauer’s assignment of error is overruled, and the

judgment of the trial court is affirmed.

                                                                      Judgment affirmed.



MOCK, P.J., and WINKLER, J., concur.




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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