Time Ran Against King: Ohio Statute Barred Decade-Old Contract Breach Action

Friday, February 23, 2018 4:32 am
March 2018 - Volume 40 Number 3

The doctrine of "nullum tempus occurrit regi"---or "time does not run against the king"---does not apply to statutes of repose in Ohio.

The facts underlying State v. Karl R. Rohrer Assocs., 2018 Ohio App. Lexis 71 (Jan. 8, 2018) involve an Ohio Department of Transportation garage construction project for which Karl R. Rohrer Associates, Inc. (Rohrer) contractually agreed, in the early 1990s, to provide structural engineering. The State of Ohio (the State), by and through the Department of Transportation director, later claimed that the brick around all the building's windows had cracked and/or crumbled due to design defects. The State filed suit against Rohrer for negligence and breach of contract on March 3, 2015.

Rohrer responded by arguing that the State's action was time barred---coming, undisputedly, as it did more than 10 years after the project's substantial completion---by Ohio statute of repose, R.C. 2305.131. A trial court disagreed, finding that the State, under the doctrine of nullum tempus was exempt from the statute's time limitation. The appellate court found that conclusion erroneous.

R.C. 2305.131 provides, in part: "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 ... 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.)

The issue before the appeals court was whether this statute applied to the State's breach of contract claim against Rohrer. The State argued it did not and that its claim had another five years on the clock thanks to Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St. 3d 98, 21 Ohio B. 392, 488 N.E.2d 171 (1986). In that case, which involved damages related to a leaky roof, the Ohio Supreme Court ruled that an older version of R.C. 2305.131 applied to tort actions only and that a 15-year statute of limitations (R.C. 2305.06) applied to contract actions.