[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
{¶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.
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