[Cite as New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng. Inc., 2017-

Ohio-8523.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

NEW RIEGEL LOCAL SCHOOL 

DISTRICT, BOARD OF EDUCATION, 

 CASE NO. 13-17-05 

 PLAINTIFF-APPELLANT, 

 -andSTATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

 v. 

 O P I N I O N 

THE BUEHRER GROUP 

ARCHITECTURE & ENGINEERING, 

INC., ET AL., 

 DEFENDANTS-APPELLEES. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 15 CV 0115 

Judgment Affirmed 

Date of Decision: November 13, 2017 

 

APPEARANCES: 

Christopher L. McCloskey and Tarik Kershah for Appellant 

Lee Ann Rabe and James Rook for Appellee, The State of Ohio 

 
Case No. 13-17-05 

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WILLAMOWKSI, J. 

{¶1} Plaintiff-appellant New Riegel Local School District Board of 

Education (“the School”) brings this appeal from the judgment of the Court of 

Common Pleas of Seneca County dismissing the State of Ohio (“the State”) as an 

involuntary plaintiff in this lawsuit. For the reasons set forth below, the judgment 

is affirmed. 

{¶2} This case arises from the construction of a new Kindergarten through 

12th Grade School Facility Project (“the Project”) built as part of the Ohio Classroom 

Facilities Assistance Program. Doc. 2. As a result of the Project, the School entered 

into contracts with multiple contractors starting in February of 2000. Id. The 

contracts were all entered between the individual contractor, the School, the State, 

through the president and treasurer of the School, and the Ohio School Facilities 

Commission (“OSFC”) as parties. Id. The general trade and roofing contracts were 

standard form contracts prepared by OSFC. Id. The date of occupancy of the 

Project was December 19, 2002. Doc. 88, Ex. K. A Certificate of Completion of 

the Project Agreement was issued by OSFC on March 3, 2004. Doc. 24. This 

certificate stated that OSFC’s interest “is considered transferred to the School 

District, * * *.” Id. at Ex. A. The certificate also provided that the School had sole 

responsibility for all facilities management, including the enforcement of warranties 

and guarantees. Id. 
Case No. 13-17-05 

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{¶3} Over time, the School had issues with the facilities, including but not 

limited to condensation and moisture intrusion allegedly caused by design and 

construction errors. Doc. 2. A complaint was filed by the School on April 30, 2015. 

Id. The complaint was brought in the name of the School with the State of Ohio 

and OSFC as involuntary plaintiffs. Id. The complaint named the Buehrer Group 

Architecture & Engineering, Inc., the Estate of Huber H. Buehrer (collectively 

known as “the Buehrer Group”), Studer-Obringer, Inc. (“SOI”), Charles 

Construction Services (“CCS”), and American Buildings Company as defendants. 

Id. On June 5, 2015, the State and OSFC filed a motion to dismiss them as 

involuntary plaintiffs to the action. Doc. 24. The School filed a response to this 

motion on June 15, 2015. Doc. 27. The State and OSFC responded to that response 

on June 26, 2015. Doc. 30. 

{¶4} On February 10, 2016, the School filed an amended complaint in its 

own name and that of the State. Doc. 62. The amended complaint indicated that 

OSFC had been voluntarily dismissed as an involuntary plaintiff that was not 

necessary. Id. On March 1, 2016, the State filed a motion to be dismissed from the 

amended complaint as an involuntary plaintiff. Doc. 72. The School filed its 

memorandum in opposition to the motion on March 10, 2016. Doc. 74. The School 

then filed a second amended complaint on June 10, 2016. Doc. 88. This complaint 

added Ohio Farmers Insurance Co. (“OFIC”) as a defendant. The State then filed a 

motion to be dismissed as an involuntary plaintiff from the second amended 
Case No. 13-17-05 

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complaint. Doc. 91. The School again filed a memorandum in opposition. Doc. 

97. On July 1, 2016, the State filed its reply to the school’s memorandum. On 

August 17, 2016, the State’s motion to be dismissed was granted. Doc. 114. On 

January 25, 2017, the School filed its notice of appeal from the judgment granting 

the State’s motion to dismiss as well as other judgments in the case. Doc. 140. This 

judgment was assigned appellate case number 13-17-05. The other judgments were 

assigned case numbers 13-17-03 (dismissal of case against SOI), 13-17-04 

(dismissal of case against the Buehrer Group), and 13-17-06 (dismissal of case 

against CCS and OFIC). On appeal, the School raises the following assignments of 

error. 

First Assignment of Error 

The trial court erred in dismissing [the School’s] breach of 

contract claims against [SOI], [CCS], and [The Buehrer Group], 

by finding that the Ohio Statute of Repose, R.C. 2305.131, barred 

[the School’s] claims for breach of contract. 

Second Assignment of Error 

The trial court erred in dismissing the claims against [SOI] and 

[CCS] as those contracts were entered with [the State] and 

general limitations periods do not apply to the State of Ohio. 

Third Assignment of Error 

The trial court erred in finding that [the School] does not have 

authority to bring its action in the name of [the State]. 

 
Case No. 13-17-05 

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Fourth Assignment of Error 

The trial court erred in dismissing [the School’s] claims against 

[OFIC], as surety for [SOI], on the basis that [the School’s] surety 

bond claim against [OFIC] was barred by the virtue of the 

dismissal of the claims against [SOI]. 

As only the third assignment of error deals with the State, which is the only party in 

the judgment appealed from in appellate case number 13-17-05, we need not address 

the other assignments of error in this opinion. They will be addressed in their 

respective cases. 

{¶5} In the third assignment of error, the School claims that it had the 

authority to bring the case in the name of the State. The School argues that the State 

is a real party in interest and thus is a necessary party to the case. 

Every action shall be prosecuted in the name of the real party in 

interest. An executor, administrator, guardian, bailee, trustee of 

an express trust, a party with whom or in whose name a contract 

has been made for the benefit of another, or a party authorized 

by statute may sue in his name as such representative without 

joining with him the party for whose benefit the action is brought. 

When a statute of this state so provides, an action for the use or 

benefit of another shall be brought in the name of this state. No 

action shall be dismissed on the ground that it is not prosecuted 

in the name of the real party in interest until a reasonable time 

has been allowed after objection for ratification of 

commencement of the action by, or joinder or substitution of, the 

real party in interest. Such ratification, joinder, or substation 

shall have the same effect as if the action had been commenced in 

the name of the real party in interest. 

Civ.R. 17(A). In this case there is no question that the School is a real party in 

interest and has the authority to bring the suit in its own name. The Certificate of 
Case No. 13-17-05 

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Completion issued by OSFC specifically transferred the interest of OSFC, a state 

entity, to the School. The Certificate specified that the School was solely 

responsible for the ownership and management of the property, specifically any 

enforcement of warranties and guarantees associated with the project. The State 

does not claim that it has a continuing interest in the facilities once the project was 

completed. 

{¶6} The School claims that it can require the State to be an involuntary 

plaintiff because one clause in the General Conditions form stated that the School 

could “maintain an action in the name of the State for violations of any law relating 

to the Project or for any injury to persons or property pertaining to the Work, or for 

any other cause which is necessary in the performance of the School District Board’s 

and Commission’s duties.” This contract was entered between the School and the 

OSFC and basically granted the School the temporary right to act as a limited agent 

of the State, through the OSFC, and bind the State to the necessary contracts to build 

the new facility. As stated above, the involvement of the OSFC, and thus the State, 

terminated upon the issuance of the Certificate of Completion which transferred all 

rights and responsibilities to the School. The Certificate of Completion was issued 

after the General Conditions form and essentially terminated the School’s ability to 

act as a limited agent of the State. Additionally, the only party which can represent 

the State in a court of law is the Office of the Attorney General. R.C. 109.02. 

“Except as provided in division (E) of section 120.06 and in sections 3517.152 to 
Case No. 13-17-05 

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3517.157 of the Revised Code, no state officer or board, or head of a department or 

institution of the state shall employ, or be represented by, other counsel or attorneys 

at law [other than the attorney general].” Id. None of the exceptions listed in the 

statute apply in this situation.1

{¶7} As the Certificate of Completion ended the interest of OSFC, and thus 

the State, in the Project, the State was no longer a real party in interest. The trial 

court correctly dismissed the State as a party to the case. Thus, the third assignment 

of error is overruled. 

{¶8} Having found no error in the particulars assigned and argued that are 

relevant to this appeal, the judgment of the Court of Common Pleas of Seneca 

County is affirmed. 

Judgment Affirmed 

ZIMMERMAN and SHAW, J.J., concur. 

/hls

 

1 This court also notes that the School filed a mandamus action against OSFC based upon the same facts 

raised in this case. See Doc. 91 and State ex rel. New Riegel Local School Dist. Bd. of Edn. v. Ohio School 

Facilities Comm., 3d Dist. Seneca No. 13-16-22, 2017-Ohio-875. In that case, the School brought suit to 

compel OSFC to provide funding to repair the alleged construction defects in the Project. Id. at ¶ 4. This 

court held that upon the issuance of the Certificate of Completion, the interest of OSFC in the Project 

terminated. Id. at ¶29. The basis of the claims in this case are also to get damages for the alleged construction 

defects in the Project. This court notes that the attorney representing the School in the mandamus action 

which brought suit against an entity of the State has also now filed suit in the name of the State.