McCabe Corp. v. Ohio Environmental Protection Agency

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-6256

Case Date: 12/31/2012

Plaintiff: McCabe Corp.

Defendant: Ohio Environmental Protection Agency

Preview:[Cite as McCabe Corp. v. Ohio Environmental Protection Agency, 2012-Ohio-6256.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
McCabe Corporation et al.,                                                                  :
Plaintiffs-Appellants,                                                                      :
                                                                                                No. 12AP-204
v.                                                                                          :   (Ct.Cl. No. 2009-01476)
Ohio Environmental Protection Agency                                                        :
et al.,                                                                                         (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D    E    C    I    S    I    O    N
Rendered on December 31, 2012
The Law Office of Norman A. Abood, and Norman A. Abood,
for appellants.
Michael DeWine, Attorney General, and Randall W. Knutti,
for appellees.
APPEAL from the Court of Claims of Ohio.
DORRIAN, J.
{¶1}   Plaintiffs-appellants,  McCabe  Corporation  and  Edward  M.  McCabe
(collectively "McCabe"), appeal from a judgment of the Court of Claims of Ohio granting
summary judgment in favor of defendants-appellees, Ohio Environmental Protection
Agency and the State of Ohio (collectively "OEPA").   The court concluded that McCabe's
claims, including claims of fraud, fraudulent inducement, defamation, negligence, and
interference with contract, were barred, some by the doctrine of res judicata and some by
the statute of limitations.  For the following reasons, we affirm.

No. 12AP-204                                                                                                  2
I. Facts and Case History
A. Proceedings in Montgomery County (Case No. 1998 CV 3449)
{¶2}   Disposition of this appeal does not require us to recite in detail the rather
complicated factual and procedural background of this case.    In summary, the case
involves property in Montgomery County that has, in the past, been used as a hazardous
waste  recycling  facility                                                                                    ("the  site").    In   1995,  the  OEPA  investigated  and  initiated
administrative action to enforce Ohio's environmental protection laws at the site, which
was at that time owned by Republic Environmental Systems, Inc.1   As a result of the
investigation, OEPA and Republic began negotiating a closure plan setting forth specific
required action to clean the site of hazardous conditions.   On June 28, 1996, Republic
submitted a closure plan to the OEPA, and that plan was revised on February 4, 1997.
{¶3}   On December 17, 1997, McCabe entered into a contract with Republic to
purchase the land and buildings at the site. As consideration for the purchase, McCabe
paid  $10.00 and agreed to assume all of Republic's responsibilities and liabilities to
complete closure and other remedial requirements at the premises as imposed by the
closure plan and any consent agreements Republic had with governmental authorities.  At
the time the parties executed the contract, Edward McCabe acknowledged that he had
reviewed the closure plan and consent agreements then in existence. Neither the closure
plans nor any other OEPA documents available to McCabe referenced the possibility of
subsoil contamination of the property.   McCabe also acknowledged that he had fully
inspected the property, had satisfied himself as to all matters related to hazardous and
toxic materials and substances, and was purchasing the real property on an "as is" basis.
On June 29, 1998, Republic transferred the real property to McCabe by deed.
{¶4}   In September 1998, OEPA approved the closure plan for the site. It also
filed a complaint in the Montgomery County Court of Common Pleas alleging violations of
Ohio's hazardous waste laws.   That case was resolved on October 22, 1998 by the entry of
a consent order.   The consent order required implementation of the steps set forth in the
closure plan to alleviate soil and ground water contamination at the site.  McCabe was not
1 Republic Environmental Systems, Inc., its subsidiary, Republic Environmental Systems (Ohio), Inc., and a
successor  company,  Brac,  Inc.,  were  all  parties  in  the  Montgomery  County  proceedings.  They  are
collectively referred to in this opinion as "Republic."

No. 12AP-204                                                                                   3
a party to the closure plan, nor was it a party to the consent order.   The consent order
further  provided  that  its  provisions  would  be  binding  upon  Republic's  assigns  and
successors in interest.  McCabe began implementing closure activities, as contemplated by
the purchase contract, on October 14, 1998.
{¶5}   In June  2007, OEPA filed a contempt action alleging violations of the
October 1998 consent decree.   OEPA named both McCabe and Republic as defendants.
McCabe filed an answer and a cross-claim against OEPA and asserted that it was not a
proper party to the suit. McCabe asserted as an affirmative defense that OEPA's contempt
action against it was barred because OEPA "participated in the Fraudulent Inducing of the
McCabe Defendants to enter into a contract with the non-McCabe Defendants  [i.e.,
Republic] to the detriment of the McCabe Defendants." State ex rel. Rogers v. Republic
Environmental Sys., Inc., 2d Dist. No. 23513, 2010-Ohio-5523, ¶ 59.   Similarly, it argued
that OEPA's claims were barred because OEPA "participated in the wrongful, and/or
negligent, and/or fraudulent misrepresentation of the costs required to perform the work
required to complete the provisions of the Closure Plan." Id. at  ¶  61. Subsequently,
McCabe filed a third-party complaint against Republic.
{¶6}   Prior to trial, OEPA and Republic filed motions in limine challenging the
inclusion on McCabe's witness list of the names of several OEPA employees.   OEPA
sought to bar the testimony of their employees, arguing that it would not be relevant to
the matter before the court in Montgomery County, i.e., whether compliance with the
consent decree had been achieved.   In addition, OEPA acknowledged that McCabe had
made informal allegations against the state but argued that only the Court of Claims
would  have  jurisdiction  to  hear  claims  based  on  those  allegations,  should  McCabe
formally assert them.  In response, McCabe argued that it had justifiably relied on what it
characterized as misrepresentation and concealment of facts by the potential witnesses
prior to the time that McCabe had contracted to buy the site and that the purchase
contract was thus void ab initio.
{¶7}     On April 25, 2008, the Montgomery County Court of Common Pleas issued
a decision denying OEPA's and Republic's motions in limine.    The court noted that
McCabe had not formally asserted claims against OEPA, but, if it had, those claims would
rest within the exclusive jurisdiction of the Court of Claims. See R.C.  2743.03(A)(1)

No. 12AP-204                                                                                      4
("[T]he court of claims * * * has exclusive, original jurisdiction of all civil actions against
the state permitted by the waiver of immunity contained in section 2743.02 of the Revised
Code.")   The court stated, however, that testimony of the OEPA employees arguably was
relevant  to  affirmative  defenses  McCabe  had  included  in  its  responsive  pleadings.
Accordingly, the court refused to enter a pretrial order precluding McCabe from calling
the OEPA employees as witnesses. The court concluded that "[p]rovided that the McCabe
Defendants use evidence related to alleged misrepresentations as a shield rather than a
sword,  it  shall  be  admissible  absent  some  independent  grounds  for  exclusion."
(Montgomery County Common Pleas Court Apr. 25, 2008 Decision, at 13-14.)
{¶8}   On February 13, 2009, the common pleas court in Montgomery County
rejected the defenses asserted by Republic and McCabe and found both defendants to be
in civil contempt based on noncompliance with the 1998 consent decree.  The court noted
a  lack  of  any  "evidence  that  McCabe  conducted  any  independent  environmental
assessment of the property at or prior to the time of purchase, as one would think a
reasonable prudent purchaser would do for an 'as is' purchase of an urban brownfield
property."                                                                                        (Montgomery County Common Pleas Court Feb. 13, 2009 Decision, at 4.)
Regarding the issue of McCabe's allegations of fraudulent conduct   on the part of OEPA,
the court stated in its findings of fact:
[T]he   Court   finds   no   credible   evidence   that   OEPA
intentionally  made  material  misrepresentations  to  the
McCabe Defendants, upon which they reasonably relied, in
purchasing the Facility.   In fact, the McCabe Defendants did
not have communications with OEPA about the Facility until
after the McCabes had purchased it.   OEPA did not know of
the McCabe Defendants['] involvement with the Facility until
after the Consent Order and Closure Plan had been finalized
and filed.   The Court finds no fraud or misrepresentation by
OEPA to the McCabe Defendants that would serve as a bar to
OEPA enforcing the Consent Order against them by way of
contempt.
(Emphasis sic.) (Feb. 13, 2009 Decision, at 9-10.)
{¶9}   McCabe appealed to the Second District Court of Appeals.   McCabe argued,
inter alia, that the trial court had erred in not recognizing its affirmative defenses alleging
fraud.  The  Second  District  responded  to  McCabe's  argument  that  OEPA  had,  in

No. 12AP-204                                                                                                     5
conjunction with Republic, failed to disclose hazardous conditions of which it was aware,
as follows:
The  record,  however,  does  not  support  McCabe's  bare
assertion in this regard.   The record establishes that there
were no communications between McCabe and the Ohio EPA
regarding the facility until after McCabe purchased the facility
from Republic.  Further, the evidence presented at the hearing
before the trial court establish[ed] that the Ohio EPA did not
even know of McCabe's involvement with the facility until well
after the Consent Order had been finalized and filed.  Thus, no
evidence exists which supports McCabe's affirmative defense
that the State participated  in any way with Republic to
fraudulently induce McCabe to purchase the facility.
(Emphasis added.) Rogers at ¶ 63.
B. Proceedings in the Court of Claims of Ohio
{¶10}  On January 20, 2009, while the contempt action in the common pleas court
was  pending,  McCabe  filed  a  complaint  in  the  Court  of  Claims  naming  OEPA  as
defendant, thereby initiating the action that underlies this appeal.   McCabe argued that
OEPA was liable to it based on multiple theories of recovery and again claiming that
OEPA had failed to disclose all it knew concerning possible subsoil contamination at the
site. McCabe claimed that OEPA knew as early as 1995 of the presence of additional
contamination but failed to disclose that knowledge to it, a potential purchaser, or to the
public in general. McCabe further asserted that it had expended nearly $1 million to clean
up the site.   It sought an award of both compensatory and punitive monetary damages,
costs, and attorney fees.
{¶11}   OEPA filed a motion, pursuant to Civ.R.  12(B)(6), to dismiss McCabe's
complaint for failure to state a claim.   The Court of Claims granted OEPA's motion, in
part, reasoning that the statute of limitations2 had expired, barring the defamation and
interference-with-contract claims McCabe had alleged, as well as any other of McCabe's
claims that accrued before January 20, 2007.   Because only claims that accrued on or
after January 20, 2007 (two years prior to the date of the filing of the Court of Claims
2 R.C. 2743.16(A) provides that civil actions against the state in the court of claims shall be commenced no
later than two years after the date of the accrual of the cause of action or within any shorter period that is
applicable to similar suits between private parties.

No. 12AP-204                                                                                                     6
complaint) could go forward, McCabe's claims that accrued before January 20, 2007,
were, in the view of the Court of Claims, time-barred.3
{¶12}  The court noted McCabe's assertion that it had not been aware of the extent
of  OEPA's  knowledge  of  undisclosed  contamination  until  OEPA  filed  its  contempt
proceedings in 2007 but held that that circumstance did not preclude application of the
statute of limitations.   It acknowledged that Ohio courts apply a discovery rule as to
certain torts, such as medical malpractice. " 'The "discovery rule" generally provides that a
cause of action accrues for purposes of the governing statute of limitations at the time
when the plaintiff discovers or, in the exercise of reasonable care, should have discovered
the complained of injury.' " Cristino v. Bur. of Workers' Comp.,  10th Dist. No. 12AP-60,
2012-Ohio-4420,  ¶ 40, quoting, Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179
(1989).   But the Court of Claims further recognized that courts have "declined to extend
the [discovery] rule unless it is specifically incorporated into a statute." (Court of Claims
July 6, 2009 Entry, at 3.)  It noted that R.C. 2305.09 provides that, in an action for fraud,
the cause does not accrue until the fraud is discovered, thus specifically making the
discovery rule applicable to fraud claims. The court observed that McCabe had alleged
fraud by OEPA but had not specified in the complaint the date on which McCabe had
discovered the alleged fraud. The Court of Claims concluded that if, as McCabe claimed, it
had first discovered OEPA's allegedly fraudulent conduct at the time OEPA initiated the
contempt proceedings, i.e., on July 20, 2007, then McCabe's fraud claims based on that
conduct had accrued after January 20, 2007, and McCabe arguably had timely filed a
claim for fraud.
{¶13}  On November 28, 2011, OEPA filed in the Court of Claims a motion for
summary judgment as to McCabe's remaining claims, i.e., claims that sounded in fraud or
fraudulent inducement that McCabe had discovered on or after January 20, 2007.  OEPA
argued that the doctrine of issue preclusion barred those claims because the Montgomery
County common  pleas and  appellate  courts had  determined that  the record of  the
contempt action contained no evidence that OEPA had engaged in fraudulent conduct
3 See Court of Claims Feb. 3, 2012 Decision, at 2, describing its earlier entry as constituting a dismissal of
"plaintiffs' claims of defamation and any other claims that accrued on or before January 20, 2007."

No. 12AP-204                                                                                    7
and had rejected McCabe's affirmative defenses based on alleged fraudulent conduct by
OEPA.   Reasoning that the doctrine of res judicata precluded relitigation of the issues of
fraud and misrepresentation alleged in McCabe's complaint, the Court of Claims granted
OEPA's motion for summary judgment and entered judgment in favor of OEPA.
{¶14}   McCabe timely appealed, presenting the following as assignments of error:
[1.] The Trial Court erred in finding that the Montgomery
County Court of Common Pleas is a "court of competent
jurisdiction"  capable  of  adjudicating  Plaintiffs/Appellants'
claims for monetary damages against the State of Ohio.
[2.] The Trial Court erred in finding that the Montgomery
County Court of Common Pleas case arose out of the same
"transaction" as is involved in this case.
{¶15}   The case is now before us for resolution.
II.    Legal Analysis
{¶16}   Summary judgment is appropriate where "the moving party demonstrates
that (1) there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one conclusion,
and that conclusion is adverse to the party against whom the motion for summary
judgment is made." Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746
(10th Dist.), ¶16, citing Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6.
Moreover,  "appellate  review  of  summary-judgment  motions  is  de  novo."  Id.,  citing
Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001).   "De novo appellate
review means that the court of appeals independently reviews the record and affords no
deference to the trial court's decision."  Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-
6529, ¶ 9 (internal citations omitted).
{¶17}   In  the  case  before  us,  the  Court  of  Claims  ruled  that  the  courts  of
Montgomery County had resolved the factual question as to whether OEPA had engaged in
fraudulent conduct against McCabe and in favor of OEPA.   It held, therefore, that the
doctrine of res judicata precluded McCabe from attempting to relitigate that issue in the
Court of Claims action.
{¶18}  "The doctrine of res judicata involves both claim preclusion  (historically
called  estoppel  by  judgment  in  Ohio)  and issue preclusion                                 (traditionally  known  as

No. 12AP-204                                                                                        8
collateral  estoppel)." Grava  v.  Parkman  Twp., 73  Ohio  St.3d  379,  381  (1995).  The
doctrine of issue preclusion, which is implicated in the case before us, "holds that a fact or
a point that was actually and directly at issue in a previous action, and was passed upon
and determined by a court of competent jurisdiction, may not be drawn into question in a
subsequent action between the same parties or their privies, whether the cause of action
in the two actions be identical or different."   Ft. Frye Teachers Assn., OEA/NEA v. State
Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998).   Moreover,                                      "an absolute due process
prerequisite  to  the  application  of                                                              collateral estoppel is  that  the  party  asserting  the
preclusion must prove that the identical issue was actually litigated, directly determined,
and essential to the judgment in the prior action."                                                 State ex rel. Davis v. Pub. Emps.
Retirement  Bd.,                                                                                    120  Ohio  St.3d  386,  2008-Ohio-6254,  ¶  28,  quoting   Goodson  v.
McDonough Power Equip., Inc., 2 Ohio St.3d  193,  195  (1983). The issue preclusion
doctrine "precludes the relitigation, in a second action, of an issue that has been actually
and necessarily litigated and determined in a prior action that was based on a different
cause of action."   Davis at ¶ 27, quoting Ft. Frye Teachers Assn. at 395. Even where the
cause of action in the subsequent suit is different, the judgment in the prior suit may
nevertheless affect the outcome of the second suit.  Id.
{¶19}   Thus, the elements of issue preclusion under Ohio law are that:  (1) the
identical issue or fact was actually and directly at issue in a previous action; (2) the issue or
fact was passed upon and determined by a court of competent jurisdiction; (3) the issue or
fact was actually litigated, directly determined, and                                               essential to the final judgment in the
prior action; and (4) both actions involved the                                                     same parties, or their privies. The doctrine
thus "prevents parties from relitigating in a subsequent case facts and issues which were
fully litigated in a previous case."   Saxe v. Dlusky, 10th Dist. No. 09AP-673, 2010-Ohio-
5323, ¶ 20, citing State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 2002-Ohio-1627.
Accord, 1 Restatement of the Law 2d, Judgments, Section 27 (1982) ("When an issue of
fact or law is actually litigated and determined by a valid and final judgment, and the
determination  is  essential  to  the  judgment,  the  determination  is  conclusive  in  a
subsequent action between the parties, whether on the same or a different claim.").
{¶20}  The first element of issue preclusion, i.e., that the identical issue or fact was
actually and directly at issue in a previous action, is present in the case before us.   In the

No. 12AP-204                                                                                       9
common pleas court contempt action, McCabe pleaded the agency's fraudulent conduct as
an affirmative defense, thereby raising the issue of whether OEPA had acted fraudulently
relative to disclosing conditions and clean-up costs of the site.   In the Court of Claims,
McCabe raised the same issue in claiming that OEPA was liable to it in damages based on
the agency's fraudulent conduct relative to its disclosure of the conditions and clean-up
costs of the site.  Thus, the same factual dispute was at issue in both cases.
{¶21}  The second element of collateral estoppel is that the issue or fact was
previously passed upon and finally determined by a court of competent jurisdiction. That
element is also met in this case. It is true that the Montgomery County Court of Common
Pleas lacked jurisdiction to enter a judgment of liability against OEPA, as claims of that
nature against the state may only be brought in the Court of Claims.  But the Montgomery
County court had jurisdiction to entertain OEPA's action to enforce the 1999 consent
decree and, accordingly, had jurisdiction to determine the affirmative defenses raised by
McCabe in that action.   As recognized by the common pleas court, McCabe raised the
issue of fraud as a shield rather than a sword, and the court therefore had jurisdiction to
determine whether OEPA had, in fact, acted fraudulently.   It determined that OEPA had
not acted fraudulently, entered judgment accordingly, and that judgment was affirmed by
the court of appeals.
{¶22}  The third element of issue preclusion is that the court's prior finding as to
the issue in question was essential to the court's earlier judgment.    As summarized in the
Restatement: "If issues are determined but the judgment is not dependent upon the
determinations, relitigation of those issues * * * is not precluded * * * [and] have the
characteristics of dicta."  Restatement of the Law 2d, Judgments, Section 27 (h) (1982).
{¶23}  In this case, we find that the common pleas court's factual finding that
OEPA had not engaged in fraudulent conduct was essential to the judgment in the prior
contempt action.   We acknowledge that establishment of this element of issue preclusion
is a closer question but conclude that it is also satisfied in this case.   In the first action,
McCabe itself voluntarily put at issue the question of whether OEPA had engaged in
fraudulent conduct by pleading it as an affirmative defense.   The Court of Common Pleas
of Montgomery County was thus required to determine whether that alleged affirmative
defense barred a finding of contempt against McCabe. The common pleas court allowed

No. 12AP-204                                                                                    10
McCabe to call OEPA employees as witnesses over the objection of OEPA, after which the
court found that McCabe had failed to present credible evidence that OEPA intentionally
made material misrepresentations to McCabe, upon which McCabe reasonably relied in
purchasing the site.  It accordingly rejected McCabe's affirmative defense and resolved the
issue of OEPA's alleged fraudulent conduct in a manner inconsistent with the elements of
a cause of action in fraud as asserted by McCabe in the Court of Claims.
{¶24}  In pleading and attempting to prove fraudulent conduct as an affirmative
defense in the contempt action, McCabe had itself, in effect, made essential the issue of
whether OEPA had acted fraudulently. We refuse to countenance the premise that a party
may raise and litigate an affirmative defense and, thereafter, upon the court's finding of a
lack of evidence supporting that defense, argue that the asserted affirmative defense was
nevertheless insufficient as a matter of law and therefore not essential to the judgment.
{¶25}  Our conclusion is reinforced by a 2001 decision of the United States Court
of Appeals, Eighth Circuit, in which the court applied the doctrine of issue preclusion in a
case asserting claims for common law fraud and violation of the Racketeer Influenced and
Corrupt Organizations Act. Minneapolis Community Dev. Agency v. Buchanan, 268 F.3d
562 (8th Cir.2001).   The defendants in a second action asserted that the plaintiffs had
asserted fraud as an affirmative defense in prior condemnation proceedings and that the
issue of fraud had been litigated and determined by a jury in the defendants' favor.   The
defendants claimed that the question of whether they had engaged in fraud had been
answered in their favor in the condemnation action and that the doctrine of issue
preclusion precluded further litigation of that question in the second action.  A majority of
the court disagreed with the dissenting judge, who believed that determination of the
question of fraud had not been essential to the judgment in the first case because the
condemnation court lacked jurisdiction over complaints of fraud. See also Abdulhay v.
Bethlehem Med. Arts, L.P., 425 F. Supp.2d 646, 656 (E.Dist.Pa.2006) (collateral estoppel
barred the plaintiffs in second action, who had been the defendants in a prior action, from
relitigating issues raised by the plaintiffs in their answer in the prior action, as those
issues had been considered and determined by the court in the prior action).

No. 12AP-204                                                                                                       11
{¶26}   The fourth element of issue preclusion is that both actions involved the
same parties or their privies.   There is no question that both McCabe and OEPA were
parties both in the Montgomery County litigation and the Court of Claims litigation.
{¶27}  Because all four elements of issue preclusion exist in this case, that doctrine
bars McCabe from attempting to prove in the Court of Claims that OEPA's employees
engaged in fraudulent conduct that damaged McCabe. Having chosen to raise as an
affirmative defense the issue of whether OEPA had engaged in fraudulent conduct,
McCabe is bound by the previous courts' determination of the truth or falsity of that
factual allegation. The Montgomery courts clearly rejected McCabe's allegation that OEPA
had  acted  fraudulently.    Because  McCabe  could  not,  under  the  doctrine  of  issue
preclusion,  relitigate  that  finding,  entry  of  summary  judgment  in  OEPA's  favor  on
McCabe's  claims  that  included  fraudulent  conduct  as  an  element  was  appropriate.
Accordingly, the trial court did not err in granting summary judgment in OEPA's favor on
McCabe's fraud claims.
{¶28}  McCabe  has  additionally  argued  in  this  court  that  it  pled  theories  of
recovery other than those grounded on fraudulent conduct by OEPA.   It asserts that its
complaint should be read as presenting claims of negligent misrepresentation (as opposed
to intentional misrepresentation).  It additionally claims that its complaint alleged breach
of statutory and common-law duties, including a duty to disclose contamination of which
it was aware in the closure plan documents, and to assure adequate financial resources
existed to restore the site to a non-hazardous state.  McCabe alleged the existence of those
duties and claimed that OEPA failed to satisfy them.  It contends that the Court of Claims
therefore inappropriately resolved those claims against McCabe.
{¶29}  Those  claims,  however,  sound  in  negligence4  and  would  have  accrued
during the late 1990's.   The Court of Claims dismissed all of McCabe's claims that arose
prior to January 20, 2007 based on expiration of the statute of limitations.  In view of the
fact that McCabe has failed to argue in this court that the Court of Claims erred in its legal
application of the statute of limitations, we will not disturb that court's dismissal of
4 Indeed, in its brief, McCabe characterizes the remaining claim as "negligence claims" and refers the court
to  Restatement  of  the  Law,  2d,  Torts,  Section  552  (1977)  ("Information  Negligently Supplied  for  the
Guidance of Others.") (Emphasis added.) (McCabe Reply Brief at 3.)

No. 12AP-204                                                                                12
McCabe's negligence claims.   Specifically, McCabe has failed to include an assignment of
error arguing that the Court of Claims erred in refusing to apply a discovery rule that
would extend for a period of approximately ten years the time within which McCabe was
required to file its non-fraud tort claims.
III. Conclusion
{¶30}  Accordingly, we overrule both of McCabe's assignments of error and affirm
the judgment of the Court of Claims of Ohio.
Judgment affirmed.
TYACK and KLATT, JJ., concur.

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