MELISSA SHORTER, PLAINTIFF-APPELLANT VS. CARMEN NEAPOLITAN,
CASE NO. 07 MA 165
COURT OF APPEALS OF OHIO, SEVENTH APPELLATE DISTRICT,
2008 Ohio 6597; 2008 Ohio App. LEXIS 5498
December 9, 2008, Decided
CHARACTER OF PROCEEDINGS: Civil Appeal from the Youngstown Municipal Court of
Mahoning County, Ohio. Case No. 06 CVF 754.
DISPOSITION: Affirmed in part. Reversed in part. Remanded.
COUNSEL: For Plaintiff-Appellant: Atty. Patricia Dougan, Community Legal Aid
Services, Inc., Youngstown, Ohio.
For Defendant-Appellee: Atty. Craig S. Cobb, Law Offices of Craig S. Cobb,
JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro. Donofrio,
J., concurs. DeGenaro, P.J., concurs.
OPINION BY: Cheryl L. Waite
Appellant Melissa Shorter filed a complaint against her landlord for
negligence, breach of contract, breach of implied warranty of habitability, and
violation of statutory duties. The complaint was dismissed due to the expiration
of the two-year statute of limitations for injury to personal property, R.C.
2305.10(A). The complaint was filed two and one-half years after an electrical
fire damaged the leased home. It is clear from the allegations in the complaint
that Appellant sought relief both for personal property damage and damages
arising from the fact that the premises became uninhabitable after the fire.
Appellant's claim for monetary damages due to the destruction of her personal
property is barred by the two-year statute of limitations in R.C. 2305.10(A).
Her claim for a breach of an implied warranty of habitability, on the other
hand, is governed by a four, six or fifteen-year statute of limitations. The
breach of implied warranty claim was filed prior to expiration of the applicable
statute of limitations, and trial court should not have dismissed this claim.
The judgment of the Youngstown Municipal Court is hereby reversed with respect
to the breach of warranty of habitability claim.
CASE FILINGS AND POSTINGS
Appellant filed her complaint on March 6, 2006. The complaint contained four
allegations: breach of contract, violation of R.C. 5321.04, breach of implied
warranty of habitability, and negligence per se. The complaint alleged that an
electrical fire on September 9, 2003, damaged Appellant's personal property.
Appellee Carmen Neapolitan filed an answer on April 11, 2006. Appellee filed a
motion for summary judgment on April 9, 2007, arguing that the two-year statute
of limitations for injury to personal property found in R.C. 2305.10(A) barred
Appellant's claims. Appellant filed a response. The trial court granted
Appellee's motion for summary judgment on July 24, 2007. This timely appeal
ASSIGNMENTS OF ERROR
"The Trial Court committed reversible error when it granted Defendant's
Motion for Summary Judgment by holding that Plaintiff's claims for breach of
statutory duty were not brought in a timely manner."
"The Trial Court committed reversible error in granting Defendant's Motion
for Summary Judgment by holding that Plaintiff's claim for breach of contract
was not brought in a timely manner."
"The Trial Court committed reversible error when it granted Defendant's
Motion for Summary Judgment by holding that Plaintiff's claims for Breach of
Warranty of Habitability were not brought in a timely manner."
Appellant's assignments of error all challenge the trial court's decision to
grant summary judgment to Appellee due to the expiration of the statute of
limitations. When reviewing a trial court's decision to grant summary judgment,
an appellate court applies the same standard used by the trial court and,
therefore, engages in a de novo review. Parenti v. Goodyear Tire & Rubber Co.
(1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121. Under Civ.R. 56, summary
judgment is proper only when the movant demonstrates that, viewing the evidence
most strongly in favor of the non-movant, reasonable minds must conclude that no
genuine issue as to any material fact remains to be litigated, and the moving
party is entitled to judgment as a matter of law. Doe v. Shaffer (2001), 90 Ohio
St.3d 388, 390, 738 N.E.2d 1243. A fact is material when it affects the outcome
of the suit under the applicable substantive law. Russell v. Interim Personnel,
Inc. (1999), 135 Ohio App.3d 301, 304, 733 N.E.2d 1186.
When moving for summary judgment, a party must produce some facts that
suggest a reasonable fact-finder could rule in his or her favor. Brewer v.
Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701 N.E.2d 1023. "[T]he
moving party bears the initial responsibility of informing the trial court of
the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party's claim." (Emphasis in original.) Dresher v. Burt (1996), 75
Ohio St.3d 280, 296, 662 N.E.2d 264. The nonmoving party has the reciprocal
burden of specificity and cannot rest on mere allegations or denials in the
pleadings. Id. at 293, 662 N.E.2d 264.
There is no lease agreement in the record, and thus, there are no specific
lease provisions Appellant might rely on to overcome summary judgment.
Nevertheless, the fact that Appellant has alleged the existence of a lease
triggers the application of R.C. 5321.04, setting forth a list of statutory
duties that apply to any residential landlord who is a party to a lease
agreement. R.C. 5321.04 does not contain or refer to any specific statute of
limitations or limitations period. R.C. 5321.04(A) states, in pertinent part:
"(A) A landlord who is a party to a rental agreement shall do all of the
"(1) Comply with the requirements of all applicable building, housing,
health, and safety codes that materially affect health and safety;
"(2) Make all repairs and do whatever is reasonably necessary to put and
keep the premises in a fit and habitable condition;
"* * *
"(4) Maintain in good and safe working order and condition all electrical,
plumbing, sanitary, heating, ventilating, and air conditioning fixtures and
appliances, and elevators, supplied or required to be supplied by him;
"* * *
"(6) Supply running water, reasonable amounts of hot water, and reasonable
heat at all times, except where the building that includes the dwelling unit is
not required by law to be equipped for that purpose, or the dwelling unit is so
constructed that heat or hot water is generated by an installation within the
exclusive control of the tenant and supplied by a direct public utility
Appellant's complaint describes two types of injury. She contends that she
was "deprived of the use of her property" and she also alleges that she and her
family were "deprived of the use of their home." First, she sets forth that her
personal property was destroyed by fire, water and smoke. She seeks damages for
the value of the personal property that was destroyed. As will be explained
below, this claim is barred by the two-year statute of limitations found in R.C.
2305.10. Her second claim is for breach of a warranty of habitability, either
implied, contractual, or statutory based on the duties imposed by R.C.
5321.04(A). Based on the record before us, Appellant may be able to recover
damages arising from a breach of a warranty of habitability, even if her claim
for loss or damage to personal property is barred.
Appellant attempts to argue that her personal property claim should be
governed by the six-year statute of limitations governing breach of statutory
duty, or the six or fifteen-year statute of limitations for breach of contract.
As correctly noted by the trial court's judgment entry, the statute of
limitations that applies in a particular case does not depend on the form of the
pleadings or the headings in the complaint, but on the actual nature of the
subject matter of the complaint. Hunter v. Shenango Furnace Co. (1988), 38 Ohio
St.3d 235, 237, 527 N.E.2d 871; Helman v. EPL Prolong, Inc. (2000), 139 Ohio
App.3d 231, 243, 743 N.E.2d 484.
We agree with Appellee that Appellant's claim for damage to her personal
property is governed by the two-year statute of limitations in R.C. 2305.10,
regardless of whether it is framed as a tort claim, a contract claim, or a
warranty of habitability claim. R.C. 2305.10(A) states, in pertinent part: "(A)
Except as provided in division (C) or (E) of this section, an action based on a
product liability claim and an action for bodily injury or injuring personal
property shall be brought within two years after the cause of action accrues."
"[W]hether a suit is brought in contract or tort, when the 'essence' of an
action is wrongful harm to person or personal property, the R.C. 2305.10 statute
of limitations is the appropriate one to apply." Ressallat v. Burglar & Fire
Alarms, Inc. (1992), 79 Ohio App.3d 43, 49, 606 N.E.2d 1001. "A finding that
this action sounds in contract would not entitle [the plaintiff] to different
damages than it might recover in tort. Such a finding would only extend the
limitations period for bringing the action." JRC Holdings, Inc. v. Samsel Servs.
Co., 166 Ohio App.3d 328, 2006 Ohio 2148, 850 N.E.2d 773, P20. "[R.C. 5321.04]
did not create new liabilities based upon statutes. Rather, it expanded and
redefined pre-existing common law rights. * * * Therefore, since appellant's
cause of action is grounded in tort, it is governed by the two-year statute of
limitations found in O.R.C. Â§ 2305.10." Daniels v. Thompson (Apr. 25, 1985), 8th
Dist. No. 49015, at *3-*4.
Appellant relies on Porterfield v. Bank One Trust Co. (Sept. 9, 1997), 10th
Dist. No. 97APE05-602, for the proposition that a contract claim that happens to
have a property damage component may be governed by the longer statute of
limitations applicable to contract disputes rather than the two-year statute of
limitations for injury to personal property. Porterfield focused on whether or
not Bank One promised to pay the plaintiff's automobile insurance policy, which
had lapsed due to nonpayment. Porterfield held that the six-year statute of
limitations for oral contract applied, even though one of the ultimate issues in
the case was the cost of repairing the plaintiff's automobile. The two-year
statute of limitations for personal injury actions was not applied because,
"[t]here is no contention that Bank One somehow caused the damage to plaintiff's
automobile." Id. at 3. Porterfield does not support Appellant's arguments with
respect to her personal property claims. She has clearly alleged that Appellee's
actions, or failure to act, caused the fire in her apartment, which in turn
caused damage to her personal property. She wants Appellee to pay for the
personal property Appellee damaged. The complaint, including the contractual
claim, makes a direct causal link between Appellee's actions and the damage to
the personal property, unlike the allegations in Porterfield. Thus, the essence
of Appellant's tort and contract claims is that Appellee was negligent and that
this negligence resulted in damage to Appellant's personal property. These
claims are barred by the two-year statute of limitations in R.C. 2305.10(A).
Appellant also argues that R.C. 2305.07 should apply here, referring to the
six-year statute of limitations for, "liability created by statute other than a
forfeiture or penalty". She contends that her landlord violated a number of
provisions of R.C. 5321.04, including failure to comply with health and safety
codes, failing to make repairs to keep the property in a fit and habitable
condition, and failing to maintain in good and safe working order all electrical
fixtures and appliances. Appellant cites McAuliffe v. W. States Import Co., Inc.
(1995), 72 Ohio St.3d 534, 651 N.E.2d 957, for the proposition that the longer
six-year statute of limitations applies to a cause of action that would not
otherwise exist but for a statute. She submits that, apart from R.C. 5321.04, a
landlord has blanket immunity from liability to tenants except for claims based
on specific terms of the lease agreement. Appellant contends that causes of
action arising from R.C. 5321.04 exist exclusively by virtue of the statute
itself. Thus, she believes the six-year statute of limitations for liability
created by statute should apply.
Although Appellant is correct that a specific statute, R.C. 5321.04(A),
directly addresses some of the claims she set forth in her complaint, that fact
in and of itself does not allow the six-year statute of limitations for "
liability created by statute", R.C. 2305.07, to apply. The Supreme Court of Ohio
has interpreted the phrase "liability created by statute," to refer to a
liability that would not exist but for the statute. McAuliffe v. W. States
Import Co., Inc. (1995), 72 Ohio St.3d 534, 538, 651 N.E.2d 957, 960. "Any
statutory 'modification, alteration or conditioning' of a common law cause of
action which falls short of creating a previously unavailable cause of action is
not 'an action * * * upon a liability created by statute.'" Id. at paragraph one
of the syllabus.
Long before the passage of R.C. 5321.04 in 1974, landlords in Ohio were
immune from most tort claims arising from defective rental premises. Stackhouse
v. Close (1911), 83 Ohio St. 339, 94 N.E.2d 746; Cooper v. Roose (1949), 151
Ohio St. 316, 85 N.E.2d 545. This immunity was not absolute, though, and even as
early as 1877, the Ohio Supreme Court acknowledged that special circumstances
could be found to impose tort liability on a landlord. Shindelbeck v. Moon
(1877), 32 Ohio St. 264.
In 1981, the Ohio Supreme Court held that landlord immunity had been
abrogated in Ohio, that tort causes of action had been available for tenants
against landlords in addition to the liability created by R.C. 5321.04, and that
there was, "common law support in Ohio for holding the landlord liable for
breach of a duty to repair." Shroades v. Rental Homes, Inc. (1981), 68 Ohio
St.2d 20, 23, 427 N.E.2d 774. Based on these holdings, we may safely conclude
that R.C. 5321.04 was not the initial impetus for imposing various types of
liability against landlords in Ohio, and that landlord liability would continue
to exist with or without the statute. R.C. 5321.04 added to, rather than
created, landlord liability in Ohio. For this reason, we must conclude that a
six-year statute of limitations for "liability created by statute"--meaning
liability that would not exist but for a statute--does not apply to claims
arising from R.C. 5321.04.
There are a variety of recent cases that have similarly held that R.C.
Chapter 5321 merely expands existing common law remedies rather than creating
new ones, and that the six-year statute of limitations for liability created by
statute does not apply to cases arising from landlord violations of the duties
imposed by R.C. 5321.04. Segal v. Zehman-Wolf Management, Inc. (2000), 139 Ohio
App.3d 146, 743 N.E.2d 425; Pummill v. Carnes, 4th Dist. No. 02CA2659, 2003 Ohio
1060; see also Daniels v. Thompson (Apr. 25, 1985), 8th Dist. No. 49015.
Appellant presents no other viable arguments to distinguish her personal
property claim from any other personal property claim subject to the two-year
statute of limitations in R.C. 2305.10. Appellant's claim for implied warranty
of habitability is another matter, though. Even if we agree with Appellee that
the six-year statute of limitations for rights solely created by statute does
not apply to any of Appellant's claims, that does not ultimately determine which
statute of limitations does apply. We have found no specific caselaw setting
forth the applicable statute of limitations for the implied warranty of
habitability pursuant to R.C. 5321.04. Implied warranties are a hybrid of both
tort and contract law, and are often difficult to categorize. Kirk v. Jim Walter
Homes, Inc. (1987), 41 Ohio App.3d 128, 129, 534 N.E.2d 1235. Some implied
warranties, such as the implied warranty of good workmanship when building a
house, are said to arise out of contract and are subject to the contractual
statute of limitations. Kishmarton v. William Bailey Constr., Inc. (2001), 93
Ohio St.3d 226, 229, 754 N.E.2d 785. A written contract is subject to a
fifteen-year statute of limitations. An oral contract must be brought within a
six-year statute of limitations. R.C. 2305.06, 2305.07. An implied warranty of
fitness for a particular purpose, though, generally arises out of tort, even if
it involves the building or repair of a house. Aglinsky v. Cleveland Builders
Supply Co. (1990), 68 Ohio App.3d 810, 589 N.E.2d 1365; Barton v. Ellis (1986),
34 Ohio App.3d 251, 518 N.E.2d 18. In these types of implied warranty tort
cases, the four-year statute of limitations in R.C. 2305.09(D) generally
applies: "For an injury to the rights of the plaintiff not arising on contract
nor enumerated in sections 1304.35, 2305.10 to 2305.12, and 2305.14 of the
Some cases outside of Ohio liken an implied warranty of habitability to an
action in quasi-contract arising as a matter of law. See, e.g., Friends of
Children, Inc. v. Marcus (1994), 46 Ark.App. 57, 876 S.W.2d 603. In Ohio, a
quasi-contract is governed by the six-year statute of limitations for oral
contracts. Drozeck v. Lawyers Title Ins. Corp. (2000), 140 Ohio App.3d 816, 823,
749 N.E.2d 775.
Thus, an implied warranty of habitability may be subject to a four, six, or
fifteen-year statute of limitations, but not the two-year statute of limitations
for injury to personal property. Appellant brought her claim less than three
years after her leased premises was damaged by fire. No matter which of the
three statutes of limitations applies here, Appellant's breach of implied
warranty of habitability claim would survive a statute of limitations defense in
Some types of damages arising from breach of a warranty of habitability are
distinct from damages for loss or destruction of personal property. One measure
of damages for breach of a warranty of habitability is the difference between
the value of the rented premises in its uninhabitable condition and its fair
market rental value, i.e., the diminution in value of the premises. Kostoglou v.
Midkiff (Nov. 6, 2001), 7th Dist. No. 01 C.A. 23; Weingarden v. Eagle Ridge
Condominiums (1995), 71 Ohio Misc.2d 7, 14, 653 N.E.2d 759. Another measure of
damages is the excess amount the lessee has to pay for comparable space over the
term of the original lease, plus any special damages (such as moving costs).
Although Appellant is barred from pursuing claims relating to damage to her
personal property, there are avenues of relief available to her through the
remaining claim of breach of a warranty of habitability.
Appellant's argument has merit only with respect to her claim of breach of
implied warranty of habitability. Appellant's claims for damages arising from
the destruction of her personal property are barred by the two-year statute of
limitations found in R.C. 2305.10. The trial court correctly granted summary
judgment to Appellee on all claims except the claim for implied warranty of
habitability, and the case is remanded to the trial court for the limited
purpose of litigating that claim.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.
MELISSA SHORTER, PLAINTIFF-APPELLANT VS. CARMEN NEAPOLITAN, DEFENDANT-APPELLEE CASE NO. 07 MA 165 COURT OF APPEALS OF OHIO, SEVENTH APPELLATE DISTRICT, MAHONING COUNTY 2008 Ohio 6597; 2008 Ohio App. LEXIS 5498
MELISSA SHORTER, PLAINTIFF-APPELLANT VS. CARMEN NEAPOLITAN,