February 2013 – “Nullum tempus occurrit regi” (“Nullum Tempus”) – have you ever heard of this ancient phrase? It means “time does not run against the king,” the “king” being the State of Ohio through the University of Cincinnati (“UC”) in the case of University of Cincinnati v. Walsh Higgins & Company, et al. (Hamilton County, Ohio, Common Pleas No. A1105831). In a January 15, 2013 decision, the UC court relied on Nullum Tempus to find that UC’s claims against participants in a campus construction project were not barred by Ohio’s Statute of Repose.
The Statute of Repose (Section 2305.131 of the Ohio Revised Code) mandates that certain claims relating to the provision of construction, design, or other services for the improvement of property may not be brought more than ten years after “substantial completion” of the improvement. Certain defendants argued that UC’s claims were barred by the Statute of Repose because the subject project was substantially completed in 1999 but UC did not file suit until 2011. UC, a state university by law, argued under Nullum Tempus that generally worded statutes of limitations and repose do not apply to it. The court agreed, citing to State v. Sullivan, 38 Ohio St.3d 137 (1988), syllabus, where the Ohio Supreme Court held that the state “absent express statutory provision to the contrary, is exempt from the operation of a generally worded statute of limitations.”
The Sullivan court identified the policy behind Nullum Tempus: “the sovereign, acting through its agents who are ‘continually busied for the public good’ can on occasion be somewhat less than imbued with alacrity in preserving the rights of the public. This is as true today as it was in monarchial times.” Sullivan, 38 Ohio St.3d at 140. The Sullivan court further declared that Nullum Tempus does not extend to “townships, counties, school districts or boards of education, and other subdivisions of the state, nor, at least in some cases, to municipalities.” Id. at 139.
In applying Nullum Tempus to a statute of repose, the UC court noted that its decision was contrary to the Supreme Court of Virginia but in accord with the Connecticut Supreme Court and courts in Illinois and Ohio. For more information on this topic, please contact a member of the Ulmer & Berne LLP Construction Team.