Breazeale v. Infrastructure & Dev. Eng., Inc.

2023 Ohio 4046, 228 N.E.3d 670

• Court: Ohio Court of Appeals
• Decided: November 8, 2023
• Docket: C-230172
• Status: Published

Opinion

[Cite as Breazeale v. Infrastructure & Dev. Eng., Inc., 2023-Ohio-4046.]

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

GRANT BREAZEALE, : APPEAL NO. C-230172 TRIAL NO. A-2102849 and : O P I N I O N. DANA BREAZEALE, :

Plaintiffs-Appellants, :

vs. :

INFRASTRUCTURE & : DEVELOPMENT ENGINEERING, INC., :

Defendant-Appellee. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 8, 2023

Ulmer & Berne LLP, Jason P. Conte and Jason A. Snyder, for Plaintiffs-Appellants,

Reminger Co., LPA, and B. Scott Jones, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} Plaintiffs-appellants Grant and Dana Breazeale appeal from the trial

court’s grant of summary judgment in favor of defendant-appellee Infrastructure &

Development Engineering, Inc., (“IDE”). The Breazeales argue the trial court erred in

finding their claims were time-barred, because the discovery rule tolled the statute of

limitations. They make a compelling case for why the policy underlying the discovery

rule should apply to homeowners like them, given that professional negligence in

construction design may not be discovered or even discoverable until well after the

existing statute of limitations has run. But given the Ohio Supreme Court’s well-

established precedent that the discovery rule is inapplicable to professional negligence

claims, we must follow the law that compels the result the trial court reached: the

Breazeales are out of time to pursue a professional negligence case against IDE. We

therefore reluctantly overrule the Breazeales’ assignment of error and affirm the

judgment of the trial court.

Factual and Procedural Background

{¶2} In 2015, IDE performed a geotechnical investigation in connection with

a proposed home development. IDE certified that a registered professional oversaw

all earthwork at the property and that all earthworks were constructed in accordance

with the approved plans and recommendations in IDE’s geotechnical report.

{¶3} The Breazeales purchased the property in March 2017. After the

purchase, the Breazeales used another contractor to install an inground pool,

additional retaining walls, and other landscaping. In March 2021, a landslide

developed on the northwest side of the property, which required emergency

stabilization of the home’s foundation. In addition to damaging the foundation of the

2 OHIO FIRST DISTRICT COURT OF APPEALS

home, this landslide also damaged the interior of the home, the yard, the landscaping,

utilities, the retaining walls, and the pool.

{¶4} The Breazeales filed their complaint against IDE in August 2021,

alleging professional and gross negligence. Both claims alleged that IDE had breached

the standard of care owed by geotechnical engineers. IDE moved for summary

judgment arguing the Breazeales’ claims were barred by the economic loss rule and

the statute of limitations in R.C. 2305.09(D). The trial court granted summary

judgment in favor of IDE, which the Breazeales appealed. On appeal, this court held

that the Breazeales’ claims were not barred by the economic loss rule and remanded

the cause for further proceedings, without reaching the applicability of the statute of

limitations in R.C. 2305.09(D). See Breazeale v. Infrastructure & Dev. Eng., Inc., 1st

Dist. Hamilton No. C-220206, 2022-Ohio-4601, ¶ 13, 16.

{¶5} nt, arguing that the Breazeales’ claims were barred by the four-year

statute of limitations in R.C. 2305.09(D). The Breazeales argued that the discovery

rule applied, meaning their claims accrued at the time the alleged negligence was

discovered in 2021 and not at the time of the alleged negligent act in 2015. The trial

court again granted summary judgment in favor of IDE, finding that the discovery rule

was not applicable to professional negligence claims. The trial court also found that

the Breazeales’ gross negligence claim was predicated on the same allegedly negligent

conduct by IDE, which relied upon the professional standard of care, and was

therefore similarly time-barred.

{¶6} The Breazeales now appeal.

3 OHIO FIRST DISTRICT COURT OF APPEALS

Standard of Review

{¶7} Summary judgment decisions are reviewed de novo. Al Neyer, LLC v.

Westfield Ins. Co., 2020-Ohio-5417, 163 N.E.3d 106, ¶ 13 (1st Dist.). Summary

judgment is proper under Civ.R. 56(C) where “(1) no genuine issue of material fact

remains, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

construing the evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the party against whom the motion for summary judgment is

made.” Civ.R. 56(C); see Al Neyer, LLC at ¶ 14. The moving party has the initial

burden of informing the court of the basis for the motion and identifying the portions

of the record that set forth specific facts demonstrating entitlement to summary

judgment. Al Neyer, LLC at ¶ 15. If the moving party fails to meet its burden, summary

judgment is not appropriate. Id.

Discovery Rule

{¶8} Because the Breazeales allege professional and gross negligence claims

against IDE, they were required to bring these claims within four years after they

accrued pursuant to R.C. 2305.09(D). Given IDE completed its geotechnical work on

the property in September 2015, the Breazeales had until September 2019 to bring

their claims against IDE. The Breazeales, however, did not file their complaint until

August 2021, and their claims were therefore untimely, unless the discovery rule

applied.

{¶9} We explained the discovery rule in Chateau Estate Homes v. Fifth Third

Bank:

4 OHIO FIRST DISTRICT COURT OF APPEALS

As a general rule, a cause of action accrues at the time the wrongful act

is committed. An exception to the general rule is the discovery rule. It

provides that a cause of action does not arise until the plaintiff knows,

or by the exercise of reasonable diligence should know, that he or she

has been injured by the defendant’s conduct. The discovery rule tolls

the running of the statute of limitations.

(Citations omitted.) Chateau Estate Homes v. Fifth Third Bank, 2017-Ohio-6985, 95

N.E.3d 693, ¶ 13 (1st Dist.).

{¶10} The Ohio Supreme Court has broadly rejected the applicability of the

discovery rule to professional negligence claims without regard to the underlying

nature of the profession. While the court initially declined to apply the discovery rule

to professional negligence claims specifically against accounts in Investors REIT One

v. Jacobs, 46 Ohio St.3d 176, 546 N.E.2d 206 (1989), its holding in Flagstar Bank,

F.S.B. v. Airline Union’s Mtge. Co., 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d

672, was more generic. There, the court held that “[a] cause of action for professional

negligence accrues on the date that the negligent act is committed, and the four-year

statute of limitations commences on that date.” Id. at syllabus.

{¶11} Courts have applied this rule to the design professions in cases involving

real property damage. One such example is Life Time Fitness, Inc. v. Chagrin Valley

Eng. Ltd., N.D.Ohio No. 1:13-cv-566, 2014 U.S. Dist. LEXIS 168216 (Dec. 4, 2014).

There, the defendant designed a parking lot in 2008 and construction of the parking

lot was completed in 2009. Id. at 2. The plaintiff filed a complaint against the

defendant in 2013 after noticing defects in the parking lot beginning in 2010. Id.

Though the plaintiff argued that the cause of action did not accrue until the damage

5 OHIO FIRST DISTRICT COURT OF APPEALS

occurred, the court held that “claims for professional negligence against engineers for

design services accrue at the time the negligent act was complete,” meaning when “the

engineering design was complete.” Id. at 5, 8. Relying on Life Time Fitness, the court

in Varwig v. JA Doyle LLC, 6th Dist. Lucas No. L-22-1035, 2023-Ohio-210, ¶ 33, rev’d

on reconsideration on other grounds, 6th Dist. Lucas No. L-22-1035, 2023-Ohio-

2251, appeal not accepted, 2023-Ohio-3670, 2023 Ohio LEXIS 1982, similarly held

that the discovery rule was inapplicable to negligent design and supervision claims in

a residential construction dispute.

{¶12} The Breazeales argue that despite this well-established precedent, the

Ohio Supreme Court’s decision in Harris v. Liston, 86 Ohio St.3d 203, 714 N.E.2d 377

(1999), carved out an exception for the applicability of the discovery rule to

professional negligence claims when damage to real property is involved. In Harris,

the court held that the discovery rule tolled the statute of limitations for an ordinary

negligence action against a developer-vendor of real property for damage to the

property. Id. at 207.

{¶13} While we agree that Harris allows for application of the discovery rule

to ordinary negligence claims involving latent damage to real property, we cannot

extend this holding to professional negligence claims in light of the Ohio Supreme

Court’s clear holding in Flagstar, which was decided years after Harris. Unlike its

holding in Investors REIT One, which was limited to professional negligence claims

against accountants, the court unequivocally held in Flagstar that, “A cause of action

for professional negligence accrues when the act is committed.” Flagstar, 128 Ohio

St.3d 529, 2011-Ohio-1961, 947 N.E.2d 67, at ¶ 27. Importantly, because the court did

6 OHIO FIRST DISTRICT COURT OF APPEALS

not distinguish between professions in its holding, we can assume that it was intended

to broadly apply to all kinds of professional negligence.

{¶14} Further, the court in Flagstar reiterated its reasoning from Investors

REIT One that the General Assembly elected not to include professional negligence

claims within the discovery rule allowance in R.C. 2305.09. (Citations omitted.) Id. at

¶ 16, citing Investors REIT One, 46 Ohio St.3d 176, 546 N.E.2d 206, at paragraph 2a

of the syllabus. Applying this reasoning here, the General Assembly could have, but

did not, create an exception to the nonapplicability of the discovery rule for

professional negligence claims involving damage to real property, just as it did for

certain trespass, conversion, and fraud claims. See Investors REIT One at 181 (“The

legislature’s express inclusion of a discovery rule for certain torts arising under R.C.

2305.09, including fraud and conversion, implies the exclusion of other torts arising

under the statute, including negligence.”). Legislative silence on the matter actually

speaks volumes here, and we interpret the exclusion of professional negligence claims

from the list of enumerated torts to which the discovery rule applies in R.C. 2305.09

as a reasoned legislative judgment that those claims should accrue at the time they

occur, and no later.

{¶15} We acknowledge the Breazeales’ legitimate concerns regarding the

potential delay in discovering defects in real property. As the Breazeales point out,

construction projects often last more than four years, and by the time of occupancy,

the statute of limitations to address a design professional’s negligence has already

expired in these cases. It is unclear as to whether the Ohio Supreme Court considered

this problematic outcome when it decided Flagstar, but until it does, we are bound by

7 OHIO FIRST DISTRICT COURT OF APPEALS

the well-established precedent that the discovery rule is inapplicable to professional

negligence claims.

{¶16} Accordingly, we hold that the allegedly negligent act was complete when

IDE completed its engineering design. Once IDE finished its geotechnical work on the

Breazeales’ home in September 2015, the Breazeales’ claims against IDE began to

accrue. Because the Breazeales filed their complaint against IDE nearly three years

after the statute of limitations in R.C. 2305.09(D) had expired, their professional

negligence claim is time-barred.

{¶17} Further, we hold the same as to the Breazeales’ gross negligence claim.

The Breazeales’ professional and gross negligence claims are both rooted in an alleged

violation of IDE’s duty to exercise the reasonable skill and care of a competent

geotechnical engineer. As the trial court noted in its order granting summary

judgment in favor of IDE, the only difference between the two claims is the degree to

which IDE allegedly violated its professional duty. Thus, the trial court properly

treated the Breazeales’ gross negligence and professional negligence claims as the

same when considering the applicability of the statute of limitations in R.C.

2305.09(D). We agree with the trial court’s reasoning and apply it again here. The

Breazeales’ gross negligence claim is predicated on the same allegedly negligent

conduct by IDE as their professional negligence claim and is therefore also time-

barred.1

1 In reaching this holding, we do not mean to imply that the discovery rule is never applicable to gross negligence claims involving damage to real property. But here, the Breazeales’ professional and gross negligence claims are rooted in the same allegedly negligent conduct. We therefore treat the Breazeales’ gross negligence claim the same as their professional negligence claim when applying the statute of limitations in R.C. 2305.09(D).

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶18} Accordingly, we hold that the trial court did not err in concluding that

the discovery rule was inapplicable to the Breazeales’ claims and granting summary

judgment in favor of IDE.

Statute of Repose

{¶19} The Breazeales also argue that the statute of repose in R.C.

2305.131(A)(1) bolsters their argument that the discovery rule is applicable to

professional negligence claims. Specifically, the Breazeales argue that the ten-year

statute of repose in R.C. 2305.131(A)(1) implies that the four-year statute of limitations

in R.C. 2305.09(D) may be tolled by the discovery rule.

{¶20} R.C. 2305.131(A)(1) provides that:

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.

{¶21} While “[s]tatutes of limitations emphasize plaintiffs’ duty to diligently

prosecute known claims,” “[s]tatutes of repose * * * emphasize defendants’ entitlement

to be free from liability after a legislatively determined time.” (Citations omitted.)

9 OHIO FIRST DISTRICT COURT OF APPEALS

Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 10. “In

light of those differences, statutory schemes commonly pair a shorter statute of

limitations with a longer statute of repose.” Id. Further, when “a statute of repose and

statute of limitations are applicable to a cause of action, the action must not only be

filed within the period of repose, but also within the specified limitation period after

the action accrues.” Armburst v. United Tel. Co., 119 Ohio App.3d 497, 500, 695

N.E.2d 823 (12th Dist.1997), fn.2. Therefore, when the statute of limitations on a

claim expires, it cannot be saved by a longer statute of repose.

{¶22} Here, the statute of limitations had already expired by the time the

Breazeales brought their claims against IDE. The statute of repose in R.C.

2305.131(A)(1) therefore does not save the Breazeales’ claims. Their claims needed to

brought within the period allowed by the statute of repose as well as the statute of

limitations. Because they were not, their claims are now time-barred.

{¶23} Further, R.C. 2305.131(A)(1) was enacted in part to protect the interests

of design professionals. The General Assembly noted that this statute was intended to

“preclude the pitfalls of stale litigation” and to address concerns of design

professionals such as lack of control over an improvement, intervening causes, and

availability of evidence and witnesses with the passage of time. Bd. of Ed. Tuslaw

Local School Dist. v. CT Taylor Co., 2019-Ohio-1731, 135 N.E.3d 1162, ¶ 19-20 (5th

Dist.).

{¶24} In this way, R.C. 2305.131(A)(1) does not bolster, but rather, weakens

the Breazeales’ position. Because R.C. 2305.131(A)(1) was enacted in part to protect

the interests of design professionals from stale litigation, it cannot be used to imply

10 OHIO FIRST DISTRICT COURT OF APPEALS

that the discovery rule is applicable to professional negligence claims relating to

damage to real property which is not immediately discoverable.

{¶25} Therefore, we hold that the Breazeales’ claims needed to be brought

within the period of repose and within the limitations period. Because the Breazeales

failed to do so, their claims are now time-barred. Accordingly, we overrule the

Breazeales’ assignment of error and affirm the judgment of the trial court.

Conclusion

{¶26} For the foregoing reasons, we hold that the discovery rule is inapplicable

to all professional negligence claims, including claims involving damage to real

property. We further hold that a professional negligence claim involving a design

defect must be brought within both the statute of limitations in R.C. 2305.09(D) and

the statute of repose in R.C. 2305.131(A)(1).

{¶27} Because the Breazeales’ negligence claims expired under the statute of

limitations in R.C. 2305.09(D) before they filed their complaint against IDE, their

claims were time-barred. The trial court therefore did not err in granting summary

judgment in favor of IDE. Thus, the Breazeales’ assignment of error is overruled, and

the judgment of the trial court is affirmed.

Judgment affirmed.

ZAYAS, P.J., concurs in judgment only. BOCK, J., concurs separately.

BOCK, J., concurring,

{¶1} I write separately to emphasize that although we are compelled to follow

precedent set by the Supreme Court of Ohio, the result is unjust.

11 OHIO FIRST DISTRICT COURT OF APPEALS

{¶2} The Breazeales did not discover, and could not reasonably have

discovered, IDE’s alleged negligence within the limitations period. After all, the

Breazeales’ real property suffered no damage until approximately six years after IDE

completed its geotechnical engineering work and two years after the limitations period

had expired.

{¶3} Disallowing a discovery rule for professional negligence affecting real

property could have wide-ranging implications in our state. Echoing the majority

opinion, construction projects may last years. Imagine, for example, that an architect

designs a multi-million-dollar high rise that will house businesses and hundreds of

people. Four years and a day after the architect completes the design, the owners take

occupancy, not knowing of a latent defect that will ultimately cause their investment

to be worthless. By the time the businesses and homeowners take occupancy, they

have lost their opportunity to recoup their losses and hold the negligent party

responsible.

{¶4} Instituting a rule that provides real-estate buyers the opportunity to

hold accountable negligent professionals based on discovery of the negligence would

still be subject to the statute of repose. This provides a balance—plaintiffs are still

required to bring an action within four years of discovering professional negligence

that damages real property, but professionals can be assured that they are free from

liability for acts occurring more than a decade ago.

{¶5} I noted that the Supreme Court of Ohio has never directly confronted

this narrow issue—where professional negligence causes damage to real property. But

based on the broad holding in Flagstar Bank, Ohio St.3d 529, 2011-Ohio-1961, 947

N.E.2d 672, I agree that the Breazeales are time barred from bringing their claim. I

12 OHIO FIRST DISTRICT COURT OF APPEALS

am deeply troubled, however, that property owners can be time barred from bringing

a claim against a negligent professional even before they take occupancy of the real

property. I believe this is an unintended consequence of the Supreme Court’s

precedent and look forward to seeing how the law in this area develops.

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