[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.
2 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
3 OHIO FIRST DISTRICT COURT OF APPEALS
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
4 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.
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[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.
2 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
3 OHIO FIRST DISTRICT COURT OF APPEALS
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
4 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.
5 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.