NEW RIEGEL LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Plaintiff-Appellee,

Supreme Court of Ohio Clerk of Court - Filed February 09, 2018 - Case No. 2018-0189 No. 2018-0189 IN THE SUPREME COURT OF OHIO NEW RIEGEL LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Plaintiff-Appellee, v. THE BUEHRER GROUP ARCHITECTURE & ENGINEERING, INC., et al., Defendants-Appellants. JURISDICTIONAL APPEAL FROM THE THIRD APPELLATE DISTRICT SENECA COUNTY, OHIO CASE NO. 13-17-04 MEMORANDUM OF AMICUS CURIAE OHIO ASSOCIATION OF CIVIL TRIAL ATTORNEYS IN SUPPORT OF JURISDICTION Timothy J. Fitzgerald (0042734) [Counsel of Record] KOEHLER FITZGERALD LLC 1111 Superior Avenue, East Suite 2500 Cleveland, OH 44114 Tel: 216.539.9370 Fax: 216.916.4369 E-mail: tfitzgerald@koehler.law Counsel for Amicus Curiae Ohio Association of Civil Trial Attorneys

Christopher L. McCloskey (0072361) Tarik M. Kershah (0082636) BRICKER & ECKLER LLP 100 South Third Street Columbus, OH 43215 Tel: 614.227.2300 Fax: 614.227.2390 E-mail: cmccloskey@bricker.com tkershah@bricker.com Counsel for Plaintiff-Appellee New Riegel Local School District Board of Education Brian T. Winchester (0069076) Patrick J. Gump (0085832) MCNEAL, SCHICK, ARCHIBALD & BIRO CO., LPA 123 West Prospect Avenue, Suite 250 Cleveland, OH 44115 Tel: 216.621.9870 Fax: 216.522.1112 E-mail: btw@msablaw.com pgump@msablaw.com Counsel for Defendants-Appellants The Buehrer Group Architecture & Engineering, Inc., Estate of Huber H. Buehrer, and Buehrer Group Architecture & Engineering Colleen A. Mountcastle (0069588) P. Kohl Schneider (0059641) GALLAGHER SHARP Sixth Floor, Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 Tel: 216.241.5310 Fax: 216.241.1608 E-mail: cmountcastle@gallaghersharp.com pkschneider@gallaghersharp.com Counsel for Defendant-Appellee Charles Construction Services Inc. f/k/a Charles Associates, Inc. David T. Patterson (0007454) Frederick T. Bills (0083833) WESTON HURD, LLP 10 W. Broad Street, Suite 2400 Columbus, OH 43215 Tel: 614.280.0200 Fax: 614.280.0204 E-mail: dpatterson@westonhurd.com fbills@westonhurd.com Counsel for Defendant-Appellee American Buildings Company d/b/a Architectural Metal Systems Shannon J. George (0068375) RITTER, ROBINSON, MCCREADY & JAMES, LTD. 405 Madison Ave. 1850 PNC Bank Building Toledo, OH 43604 Tel: 419.241.3213 Fax: 419.241.4925 E-mail: dedmon@rrmj.com Counsel for Defendant-Appellee Studer- Obringer Inc. Mark A. Sanchez (0063998) Michael J. Frantz (0088620) FRANTZ WARD 200 Public Square, Suite 3000 Cleveland, OH 44144 Tel: 216.515.1660 Fax: 216.515.1650 E-mail: msanchez@frantzward.com mjfrantzjr@frantzward.com Counsel for Defendant-Appellee Ohio Farmers Insurance Company as Surety for Studer-Obringer Construction Co.

Lee Ann Rabe (0077170) James E. Rook (0061671) OHIO ATTORNEY GENERAL Court of Claims Defense Section 150 East Gay Street, 18th Floor Columbus, OH 43215 Tel: 614.466.7447 E-mail: leeann.rabe@ohioattorneygeneral.gov james.rook@ohioattorneygeneral.gov Counsel for Involuntary Plaintiff-Appellee State of Ohio Luther L. Liggett, Jr. (0004683) GRAFF & MCGOVERN, LPA 604 E. Rich Street Columbus OH 43215 Tel: 614.228.5800 Fax: 614.228.8811 E-mail: luther@grafflaw.com Counsel for Amicus Curiae AIA of Ohio

TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS OF PUBLIC AND GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 INTEREST OF THE AMICUS CURIAE... 5 STATEMENT OF THE CASE AND FACTS... 6 ARGUMENT IN SUPPORT OF THE PROPOSITIONS OF LAW... 6 Proposition of Law No. I: Ohio s Statute Of Repose, R.C. 2305.131, Applies To Actions Sounding Both In Contract And Tort....6 A. Revised Code 2305.131 is a true statute of repose....6 B. The General Assembly made a policy decision when it legislated a statute of repose involving improvements to real property....7 C. The Third Appellate District s opinion misinterprets R.C. 2305.131...10 D. Kocisko should be limited and clarified as not applying to the current version of R.C. 2305.131....13 E. There is an inter-district conflict between New Riegel and Karl R. Rohrer....13 Proposition of Law No. II: A court is not required to apply stare decisis when the prior version of the statute being applied has been held unconstitutional by the Supreme Court of Ohio....15 CONCLUSION... 15 CERTIFICATE OF SERVICE... 17 i

EXPLANATION OF WHY THIS CASE IS OF PUBLIC AND GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This appeal arises out of a Third Appellate District decision establishing a rule of law that imposes the possibility of unlimited liability of an indefinite duration upon design professionals and those persons involved in the construction of an improvement to real property and, in doing so, injects uncertainty and instability into Ohio s real property laws. The Third Appellate District reluctantly relied upon and applied this Court s thirty-year-old decision in Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98, 488 N.E.2d 171 (1986), which held that a former version of R.C. 2305.131 was a statute of limitations, not a statute of repose, and did not apply to breach of contract claims. Ignoring textual changes that made clear the current version was, in fact, a statute of repose that applies to breach of contract claims, the Third Appellate District then announced the rule of law that the current version of R.C. 2305.131 does not apply to claims for breach of contract. New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng. Inc., 3rd Dist. Seneca No. 13-17-04, 2017-Ohio-8522, 8. The Third Appellate District s New Riegel opinion erroneously interprets the plain language of R.C. 2305.131 which is clear, unambiguous, and means what it says: if a lawsuit seeking to recover damages for an injury to real or personal property, or wrongful death which arises out of a defective and unsafe condition of an improvement to real property is filed more than ten years from the date of substantial completion of such improvement, the action on that claim is barred period. The theory of recovery (tort or contract) is irrelevant; it is the nature of the claimed injury an injury to property and its cause an alleged defective or unsafe condition that controls. Within weeks of the New Riegel opinion, the Fifth Appellate District decided the case of State v. Karl R. Rohrer Assocs., Inc., 5th Dist. Tuscarawas No. 2017AP030008, 2018-Ohio-65 1

and correctly held as much, explaining that [i]t matters not whether the action is brought in tort or contract, if the resultant damages are injury to property of the type set forth in R.C. 2305.131, the statute applies. Id., 30. The Third Appellate District and Fifth Appellate District decisions cannot both be correct in their respective interpretations of R.C. 2305.131. The issuance of conflicting decisions from a court of appeals does not serve the fundamental purpose for the operation of courts the resolution of legal disputes. McFadden v. Cleveland State Univ., 120 Ohio St. 3d 54, 2008-Ohio-4914, 896 N.E.2d 672, 15. It is for this reason that the Supreme Court has been given the constitutional duty to address and resolve conflicts between Ohio s twelve appellate districts. Ohio Constitution, Article IV, Section 2(B)(2)(f). This case is one of public and great general interest and presents a substantial constitutional question because the opinion of the Third Appellate District at issue conflicts on the same rule of law with the opinion announced by the Fifth Appellate District just weeks later. 1 That inter-district conflict needs to be addressed and resolved. This case presents the Court with the best opportunity to do so before a growing number of inconsistent and competing opinions are issued by both trial and appellate courts throughout the State of Ohio. The jurisdictional memorandum of Appellants The Buehrer Group Architecture & Engineering, Inc. and Buehrer Group Architecture & Engineering ( the Buehrer Group ) points out the scope and magnitude of the impact of the Third Appellate District s opinion upon design professionals and the construction industry as a whole throughout Ohio. (Juris. Memo. p. 1-2). 1 This case is before the Court not on a certified conflict pursuant to S.Ct.Prac.R. 8.01. The judgment and opinion of the Third Appellate District was announced on 11/13/2017 and the court s ruling on the App.R. 26(A) reconsideration motion was filed on 12/26/2017. The conflicting opinion from the Fifth Appellate District was not announced until 1/8/2018, which was thirteen days after the reconsideration ruling. For that reason, a timely motion to certify the inter-district conflict pursuant to Ohio App.R. 25(A), which requires a motion to certify to be made no later than ten days after the judgment or order of the court of appeals which creates the conflict, could not be filed here. Nonetheless, there is an actual inter-district conflict that exists presently between opinions from the Third and Fifth Appellate Districts. 2

The impact upon the construction industry is not unique or localized to Ohio which is why a majority of state legislatures across the country have enacted statutes of repose for improvements to real property similar to Ohio s. They do so based on the economic best interests of the public as a whole and a balance of the rights of plaintiffs and defendants. Luke K. Burton, Note, Property Improvement Claims A History and Recommendation for Arkansas s Lone True Statute of Repose, 35 U. Ark. Little Rock L. Rev. 415, 416 (2013). Today, most jurisdictions within the United States have enacted a construction statute of repose. Id., at 420 (footnote omitted). The rise in the enactment of statutes of repose applicable to improvements to real property which has taken place over the last sixty years is due to three particular legal developments: First, courts around the country began to discard the privity of contract rule, thus allowing third-party suits against architects, engineers, and contractors for design deficiencies. Previously at common law, courts required privity of contract to sustain suits against architects, engineers, or contractors for design or construction deficiencies. As a result, third parties could not bring suit against these classes. Second, the courts began to abolish the related completed and accepted rule whereby no liability could attach to the architect, engineer, or contractor once the owner accepted the work as completed. Third, courts increasingly adopted the discovery rule for the triggering of statutes of limitation, which significantly delayed cause of action accruals. Id., at 420-421 (footnotes omitted). These three legal developments resulted in liability of an indefinite duration for architects, engineers, and contractors for personal and property injuries based on their construction work. Several reasons led state legislatures to curtail this indefinite liability: As a result of indefinite liability, insurance costs for those in the construction industry skyrocketed. Furthermore, construction industry members faced difficulty in defending against old claims because of the loss of evidence and the unavailability of witnesses. Finally, state legislatures worried that better technology may yield higher standards of care at the time of trial than at the time the building was constructed several years earlier. Some have even alleged that indefinite liability creates a chilling effect on creativity within the construction arena, causes unnecessary lawsuits, and hinders building innovations. 3

Finally, subjecting members of the construction industry to these suits seems especially unfair when one considers that improvements tend to deteriorate over time, and any problem may be caused by negligent maintenance of the improvement outside of the construction industry member s control. These reasons indicate why state legislatures were quick to enact statutes of repose to assist members of the construction industry facing indefinite liability. Id., at 421-422 (footnotes omitted). See also, Michael J. Vardaro & Jennifer E. Waggoner, Note, Statutes of Repose The Design Professional s Defense to Perpetual Liability, 10 St. John s J.L. Comm. 697, 697-698 (1995) ( The unjust placement of liability upon the design professional is magnified as the completed structure ages. Although design professionals customarily are involved in the design and construction of a structure they rarely play a role in its maintenance or repair, particularly when such maintenance is to be performed over a period of many years. The unfortunate consequence is that design professionals are held liable for structures over which they exercise no control. (Footnotes omitted)). It is far too easy to plead around a rule of law that turn on the theory of recovery pled by the claimant, which is why the statute says no cause of action based on unsafe improvements to real property shall accrue * * * later than ten years from the date of substantial completion of such improvement. R.C. 2305.131(A)(1). This Court should interpret R.C. 2305.131 to give effect to the General Assembly s intent to shield design professionals and others involved in making improvements to real property from all stale claims; otherwise, those persons will be left with the possibility of unlimited liability indefinitely. Antoon v. Cleveland Clinic Found., 148 Ohio St. 3d 483, 2016-Ohio-7432, 71 N.E.3d 974, 22, quoting Ruther v. Kaiser, 134 Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E.2d 291, 29. In adopting Proposition of Law No. I this Court would return certainty to R.C. 2305.131 by interpreting the statute of repose as it has done in other contexts, give effect to each word of the statute, and announce a rule of law consistent with the General Assembly s intent for the statute by removing the threat of indefinite liability. 4

Therefore, OACTA respectfully urges this Court to accept jurisdiction over this appeal. INTEREST OF THE AMICUS CURIAE The Ohio Association of Civil Trial Attorneys ( OACTA ) is a statewide organization whose members consist of attorneys, supervisory or managerial employees of insurance companies, and corporate executives of other corporations who devote a substantial portion of their time to the defense of civil damage lawsuits and the management of insurance claims brought against individuals, corporations and governmental entities. OACTA has long been a voice in the ongoing effort to ensure that the civil justice system is fair and efficient. OACTA s mission is to provide a forum where its members can work together and with others on common problems to propose and develop solutions that will promote and improve the fair and equal administration of justice in Ohio. OACTA strives for stability, predictability and consistency in Ohio s case law and jurisprudence. On issues of importance to its members, OACTA has filed amicus curiae briefs in significant cases before federal and state courts in Ohio advocating and promoting public policy and sharing its perspective with the judiciary on matters that will shape and develop Ohio law. OACTA s appearance as amicus in this case and its submission of this memorandum pursuant to S.Ct.Prac.R. 7.06 in support of the Buehrer Group and in favor of jurisdiction is premised upon the recognition that there is a glaring need for the Court to provide clear, consistent and reasoned guidance to Ohio courts regarding the scope and application of R.C. 2305.131, Ohio s statute of repose involving improvements to real property. OACTA views this matter as one of public and great general interest. This Court should accept the proposition of law advanced by the Buehrer Group and confirm that R.C. 2305.131 applies to both contract and tort claims. In doing so, this Court has the opportunity to clarify and limit the holding in Kocisko v. Charles 5

Shutrump & Sons Co., 21 Ohio St.3d 98, 488 N.E.2d 171 (1986) so Ohio s courts will not render inconsistent decisions as the Third Appellate District and Fifth Appellate District have done here which perpetuates confusion and uncertainty as to whether Kocisko applies to the current version of the statute of repose. STATEMENT OF THE CASE AND FACTS OACTA adopts the Statement of the Case and Facts from the jurisdictional memorandum filed by Appellants, the Buehrer Group. ARGUMENT IN SUPPORT OF THE PROPOSITIONS OF LAW Proposition of Law No. I: Ohio s Statute Of Repose, R.C. 2305.131, Applies To Actions Sounding Both In Contract And Tort. A. Revised Code 2305.131 is a true statute of repose. Statutes of repose have a long history in Western legal tradition. Antoon v. Cleveland Clinic Found., 148 Ohio St. 3d 483, 2016-Ohio-7432, 71 N.E.3d 974, 13. [A] statute of repose is a legislative judgment that defendants should be free from liability after a determined amount of time, measured from the date of the defendant s last culpable act. Id., at 16, citing CTS Corp. v. Waldburger, U.S., 134 S.Ct. 2175, 2182-1283, 189 L.Ed.2d 62 (2014). Revised Code 2305.131 at issue in this case is what has been referred to by this Court as a true statute of repose. Id., at 1; Ruther v. Kaiser, 134 Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E.2d 291, at 22 (interpreting R.C. 2305.113(C) which provides an absolute time limit for bringing a claim against medical and other health care professionals). Revised Code 2305.131(A)(1) provides as follows: Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code and except as otherwise 6

provided in divisions (A)(2), (A)(3), (C), and (D) of this section, 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. (Emphasis added); A true 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. Antoon, supra, 11, quoting Blacks Law Dictionary 1637 (10th Ed.2014). B. The General Assembly made a policy decision when it legislated a statute of repose involving improvements to real property. In explaining the policy reasons for adopting the statute of repose governing claims against medical and other health care providers, this Court has observed the following: Many policy reasons support this legislation. Just as a plaintiff is entitled to a meaningful time and opportunity to pursue a claim, a defendant is entitled to a reasonable time after which he or she can be assured that a defense will not have to be mounted for actions occurring years before. The statute of repose exists to give medical providers certainty with respect to the time within which a claim can be brought and a time after which they may be free from the fear of litigation. Forcing medical providers to defend against medical claims that occurred 10, 20, or 50 years before presents a host of litigation concerns, including the risk that evidence is unavailable through the death or unknown whereabouts of witnesses, the possibility that pertinent documents were not retained, the likelihood that evidence would be untrustworthy due to faded memories, the potential that technology may have changed to create a different and more stringent standard of care not applicable to the earlier time, the risk that the medical providers financial circumstances may have changed i.e., that practitioners have retired and no longer carry liability insurance, the possibility that a practitioner s insurer has become insolvent, and the risk that the institutional medical provider may have closed. Responding to these concerns, the General Assembly made a policy decision to grant Ohio medical providers the right to be free from litigation based on alleged acts of medical negligence occurring outside a specified time period. 7

This decision is embodied in Ohio s four-year statute of repose for medical negligence, set forth in R.C. 2305.113(C). The statute establishes a period beyond which medical claims may not be brought even if the injury giving rise to the claim does not accrue because it is undiscovered until after the period has ended. Ruther, supra, at 19-21. Many of the same policy concerns noted by this Court in Ruther involving claims against medical and health care professionals were expressly noted by the General Assembly when it enacted R.C. 2305.131 in 2005 for claims against any person who performs services or furnishes the design, planning, supervision of construction, or construction for an improvement to real property: In enacting section 2305.131 of the Revised Code in this act, it is the intent of the General Assembly to do all of the following: * * * (2) To recognize that, subsequent to the completion of the construction of an improvement to real property, all of the following generally apply to the persons who provided services for the improvement or who furnished the design, planning, supervision of construction, or construction of the improvement: (a) They lack control over the improvement, the ability to make determinations with respect to the improvement, and the opportunity or responsibility to maintain or undertake the maintenance of the improvement. (b) They lack control over other forces, uses, and intervening causes that may cause stress, strain, or wear and tear to the improvement. (c) They have no right or opportunity to be made aware of, to evaluate the effect of, or to take action to overcome the effect of the forces, uses, and intervening causes described in division (E)(5)(b) of this section. (3) To recognize that, more than ten years after the completion of the construction of an improvement to real property, the availability of relevant evidence pertaining to the improvement and the availability of witnesses knowledgeable with respect to the improvement is problematic; (4) To recognize that maintaining records and other documentation pertaining to services provided for an improvement to real property or the design, 8

planning, supervision of construction, or construction of an improvement to real property for a reasonable period of time is appropriate and to recognize that, because the useful life of an improvement to real property may be substantially longer than ten years after the completion of the construction of the improvement, it is an unacceptable burden to require the maintenance of those types of records and other documentation for a period in excess of ten years after that completion; (5) To declare that section 2305.131 of the Revised Code, as enacted by this act, strikes a rational balance between the rights of prospective claimants and the rights of design professionals, construction contractors, and construction subcontractors and to declare that the ten-year statute of repose prescribed in that section is a rational period of repose intended to preclude the pitfalls of stale litigation but not to affect civil actions against those in actual control and possession of an improvement to real property at the time that a defective and unsafe condition of that improvement causes an injury to real or personal property, bodily injury, or wrongful death. S.B. 80, 3(B). As the Fifth Appellate District found in Karl R. Rohrer, the stated concerns underlying enactment of the statute apply to actions brought against design professionals for injury to person or property caused by a defective or unsafe improvement to real property, whether such action sounds in tort or contract. 2018-Ohio-65, 28. And so they do. But the Third Appellate District s opinion disregards and defeats those policy concerns. The General Assembly made and expressly articulated these policies underlying its enactment of R.C. 2305.131. This Court should accept jurisdiction and uphold the General Assembly s ability to legislate a statute of repose which OACTA submits has been done in the current version of R.C. 2305.131 which prevents the possibility of unlimited liability indefinitely for persons who perform services or furnish the design, planning, supervision of construction, or construction for an improvement to real property. The rule of law announced by the Third Appellate District undermines those policies and the General Assembly s purpose and intent in enacting the current version of R.C. 2305.131. 9

C. The Third Appellate District s opinion misinterprets R.C. 2305.131. As noted by this Court in Antoon, this court and the United States Supreme Court agree that statutes of repose are to be read as enacted and not with an intent to circumvent legislatively imposed time limitations. 148 Ohio St. 3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at 19. Any reading and interpretation of R.C. 2305.131 as not applying to a breach of contract claim will circumvent the General Assembly s legislatively imposed time limitation[ ] for claims involving real property improvements. First, R.C. 2305.131(A)(1) begins with the clear and express admonition that the repose period set forth in the statute applies [n]otwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code * * *. See also, R.C. 2305.131(F) (the statute of repose applies in any civil action and notwithstanding any other section of the Revised Code or prior rule of law of this state. ) One such period of limitations specified in Chapter 2305 of the Revised Code is R.C. 2305.06, which is the statute of limitations for contracts in writing. Another is the statute of limitations for implied or oral contracts which is found in R.C. 2305.07. Both limitation periods begin to run only after the cause of action accrued. If the Third Appellate District s opinion is permitted to stand, parties like the plaintiff in New Riegel, will be able to avoid the statute of repose and, despite the clear language in the first sentence of R.C. 2305.131(A)(1), bring a cause of action for breach of an express, implied or oral contract more than ten years after substantial completion of the project by strategically pleading a breach of contract claim relying upon R.C. 2305.06 or R.C. 2305.07. The import of the Third Appellate District opinion in permitting a breach of contract claim to be pursued more than ten years after substantial completion of the improvement to real property is that the language and words in the first sentence of R.C. 2305.131(A)(1) will be written out of the statute and rendered meaningless. Courts do not have the authority to ignore words in a statute. In re Estate of 10

Centorbi, 129 Ohio St.3d 78, 2011-Ohio-2267, 950 N.E.2d 505, 20. Second, the repose period provides that no cause of action can be brought later than ten years from the date of substantial completion of such improvement. The phrase substantial completion is defined by the General Assembly to mean the following: 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. Revised Code 2305.131(G). By defining substantial completion to encompass terms and conditions of the contract or agreement between the parties, the General Assembly understood that projects involving improvements to real property are almost always governed by a contractual relationship and thus it was clearly intended that the statute of repose would apply to breach of contract claims. Next, R.C. 2305.131 (F) provides as follows: This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this section, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this section. Had the General Assembly intended the statute of repose to apply only to tort actions, it would not have used the language found in R.C. 2305.131(F) that the statute shall be applied in a remedial manner in any civil action. The General Assembly knows the distinction between any civil action and a tort action. In fact, when it has intended to do so, the General Assembly has, in other sections of the Revised Code, specifically defined tort action to distinguish it from a breach of contract action. See, e.g., R.C. 2307.011(J) ( Tort action means a civil action for damages for injury, death, or loss to person or property. Tort action includes a product liability 11

claim, as defined in section 2307.71 of the Revised Code, and an asbestos claim, as defined in section 2307.91 of the Revised Code, but does not include a civil action for damages for a breach of contract or another agreement between persons. ) Limiting R.C. 2305.131 to tort actions only, as the Third Appellate District has done here, amounts to what this Court has described as judicial legislation because the court improperly included words in the statute that were not there and ignored words that were there. State ex rel. Carna v. Teays Valley Local Sch. Dist. Bd. of Educ., 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, 24. Further, the statute of repose does have an exception for contract-type claims. Revised Code 2305.131(D) provides that the ten-year repose period does not apply against a person who has expressly warranted or guaranteed an improvement to real property for a period longer than the period described in division (A)(1) of this section * * *. If all contract claims are not subject to R.C. 2305.131, the warranty/guarantee exception in R.C. 2305.131(D) would be superfluous and unnecessary. The General Assembly certainly did not intend such an absurd result. State ex rel. Carna, supra, at 25. Finally, in the context of statutes of limitation, it is a well-established rule of law that the true nature or subject matter of the case giving rise to the complaint dictates which limitations period should apply, rather than the form in which the action is pleaded. See, Doe v. First United Methodist Church, 68 Ohio St.3d 531, 536, 629 N.E.2d 402 (1994) ( The grounds for bringing an action are the determinative factors, the form is immaterial. Quoting Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 (1984)). While statutes of repose and statutes of limitation have distinct applications, the principle set forth in Doe and Hambleton should be applicable equally to statutes of repose, like R.C. 2305.131, because the statutes [b]oth share a common goal of limiting the time for which a putative wrongdoer must be prepared to defend a 12

claim. Antoon, supra, 11. A plaintiff should not be able to avoid the repose period in R.C. 2305.131 by creatively pleading a breach of contract claim, which is what the plaintiff has done in New Riegel. 2 See, Love v. Port Clinton, 37 Ohio St.3d 98, 99, 524 N.E.2d 166 (1988). D. Kocisko should be limited and clarified as not applying to the current version of R.C. 2305.131. The Third Appellate District relied upon the holding in Kocisko that the former version of the statute of repose did not apply to contract actions, even though the Third Appellate District observed and OACTA submits correctly that [a] clear reading of the statute does not support this conclusion. * * * The statute does not limit it to claims for torts only. New Riegel, supra, 8. In Karl R. Rohrer, the Fifth Appellate District explained why it came to the opposite conclusion from the Third Appellate District as to whether there was an ongoing obligation to treat Kocisko as binding authority in the interpretation of the current version of R.C. 2305.131. Karl R. Rohrer, supra, 18-26. OACTA submits that, because the current version of R.C. 2305.131 is sufficiently different from the prior version of R.C. 2305.131 at issue in Kocisko, the Fifth Appellate District was correct in holding that Kocisko is not binding authority on this Court in interpreting the current version of the statute. Karl R. Rohrer, supra, 26. The Court should accept jurisdiction over this case in order to clarify and limit the holding in Kocisko to the prior version of R.C. 2305.131. E. There is an inter-district conflict between New Riegel and Karl R. Rohrer. The Third Appellate District s opinion in New Riegel conflicts with the opinion of the Fifth Appellate District in Karl R. Rohrer on the same issue and rule of law. In both cases, the appellate courts were confronted with the issue of whether the ten-year repose period in R.C. 2305.131 2 See, New Riegel, supra, 2017-Ohio-8522, 3 ( The complaint alleged in Count One that the [Buehrer] Group breached its contract by failing to perform in accord with professional standards * * *. ) 13

applies to tort claims only or governs breach of contract claims as well. In New Riegel, the Third Appellate District held that [g]iven the Supreme Court s holding in Kocisko, we find that the statute of repose does not apply to claims for breach of contract. 2017-Ohio-8522, at 8. The Fifth Appellate District came to the opposite conclusion in Karl R. Rohrer: We find the stated concerns underlying enactment of the statute apply to actions brought against design professionals for injury to person or property caused by a defective or unsafe improvement to real property, whether such action sounds in tort or contract. * * * It matters not whether the action is brought in tort or contract, if the resultant damages are injury to property of the type set forth in R.C. 2305.131, the statute applies. 2018-Ohio-65, 28, 30. The Third Appellate Court and Fifth Appellate Court also came to opposite conclusions as to whether Kocisko remains viable and applies to the current version of R.C. 2305.131. Compare New Riegel, at 8 ( Given the Supreme Court s holding in Kocisko, we find that the statute of repose does not apply to claims for breach of contract. ) with Karl R. Rohrer, 26 ( [W]e find Kocisko is not binding authority on this Court in interpreting the current version of the statute. ). The decisions of the Third Appellate District and Firth Appellate District cannot both be correct. The existence of both competing opinions will undoubtedly lead to further uncertainty by the courts, bar, and public throughout Ohio as to which rule of law is correct. OACTA urges this Court to exercise its constitutional role and authority in reconciling inter-district conflicts on rules of law, which conflict is present here on the issues of whether Kocisko applies to the current version of R.C. 2305.131 and whether the statute of repose applies to tort and breach of contract claims against persons who perform services or furnish the design, planning, supervision of construction, or construction for improvements to real property. 14

Proposition of Law No. II: A court is not required to apply stare decisis when the prior version of the statute being applied has been held unconstitutional by the Supreme Court of Ohio. As established herein, this Court should accept jurisdiction over this case to clarify and limit the holding in Kocisko which was a decision based upon the prior version of R.C. 2305.131. Because the wording of the current statute of repose is materially different, Kocisko is no longer good law and OACTA agrees with the Buerher Group that the Kocisko holding does not apply to cases governed by the current version of the statute. Revised Code 2305.131 applies equally to contract and tort causes of action. Because Proposition of Law No. I adequately establishes that sound legal principle, OACTA takes no position in this jurisdictional memorandum as to whether the Court needs to or should adopt Proposition of Law No. II. CONCLUSION The Ohio Association of Civil Trial Attorneys respectfully urges this Court, as the final arbiter of Ohio law, to accept jurisdiction over this appeal and adopt Proposition of Law No. I as the rule of law governing the application of R.C. 2305.131, Ohio s statute of repose involving improvements to real property, to causes of action based in contract and tort. The Third Appellate District s contrary interpretation of R.C. 2305.131 runs counter to the robust heritage of decisions from courts and legislatures sharing the common beliefs that plaintiffs should litigate their claims as swiftly as possible and that defendants should not face potential liability indefinitely. Antoon, supra, at 12. 15

Respectfully submitted, s/timothy J. Fitzgerald Timothy J. Fitzgerald (0042734) [Counsel of Record] KOEHLER FITZGERALD LLC 1111 Superior Avenue, East Suite 2500 Cleveland, OH 44114 Tel: 216.539.9370 Fax: 216.916.4369 E-mail: tfitzgerald@koehler.law Counsel for Amicus Curiae Ohio Association of Civil Trial Attorneys 16

CERTIFICATE OF SERVICE The foregoing Memorandum of Amicus Curiae Ohio Association of Civil Trial Attorneys in Support of Jurisdiction was sent via e-mail pursuant to S.Ct.Prac.R. 3.11(C) on this 9th day of February, 2018 to: Christopher L. McCloskey Tarik M. Kershah BRICKER & ECKLER LLP 100 South Third Street Columbus, OH 43215 E-mail: cmccloskey@bricker.com tkershah@bricker.com Counsel for Plaintiff-Appellee New Riegel Local School District Board of Education Brian T. Winchester Patrick J. Gump MCNEAL, SCHICK, ARCHIBALD & BIRO CO., LPA 123 West Prospect Avenue, Suite 250 Cleveland, OH 44115 E-mail: btw@msablaw.com pgump@msablaw.com Counsel for Defendants-Appellants The Buehrer Group Architecture & Engineering, Inc., Estate of Huber H. Buehrer, and Buehrer Group Architecture & Engineering Colleen A. Mountcastle P. Kohl Schneider GALLAGHER SHARP Sixth Floor, Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 E-mail: cmountcastle@gallaghersharp.com pkschneider@gallaghersharp.com Counsel for Defendant-Appellee Charles Construction Services Inc. f/k/a Charles Associates, Inc. David T. Patterson Frederick T. Bills WESTON HURD, LLP 10 W. Broad Street, Suite 2400 Columbus, OH 43215 E-mail: dpatterson@westonhurd.com fbills@westonhurd.com Counsel for Defendant-Appellee American Buildings Company d/b/a Architectural Metal Systems Shannon J. George RITTER, ROBINSON, MCCREADY & JAMES, LTD. 405 Madison Ave. 1850 PNC Bank Building Toledo, OH 43604 Tel: 419.241.3213 Fax: 419.241.4925 E-mail: dedmon@rrmj.com Counsel for Defendant-Appellee Studer- Obringer Inc. Mark A. Sanchez Michael J. Frantz, Jr. FRANTZ WARD 200 Public Square, Suite 3000 Cleveland, OH 44144 Tel: 216.515.1660 Fax: 216.515.1650 E-mail: msanchez@frantzward.com mjfrantzjr@frantzward.com Counsel for Defendant-Appellee Ohio Farmers Insurance Company as Surety for Studer-Obringer Construction Co. 17

Lee Ann Rabe (0077170) James E. Rook (0061671) OHIO ATTORNEY GENERAL Court of Claims Defense Section 150 East Gay Street, 18th Floor Columbus, OH 43215 E-mail: leeann.rabe@ohioattorneygeneral.gov james.rook@ohioattorneygeneral.gov Counsel for Involuntary Plaintiff-Appellee State of Ohio Luther L. Liggett, Jr. (0004683) GRAFF & MCGOVERN, LPA 604 E. Rich Street Columbus OH 43215 E-mail: luther@grafflaw.com Counsel for Amicus Curiae AIA of Ohio s/timothy J. Fitzgerald Counsel for Amicus Curiae Ohio Association of Civil Trial Attorneys 18