[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, 

 Plaintiff-Appellant, 

 vs. 

HAL HOMES, INC., 

 Defendant-Appellee. 

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APPEAL NO. C-190256 

TRIAL NO. A-1806326 

 O P I N I O N.

 

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 PlaintiffAppellant, 

Aronoff Rosen & Hunt and Edward P. Akin, for Defendant-Appellee. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶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.