On February 26, 2021 a
Order
was filed
involving a dispute between
Assunta Rossi,
Assunta Rossi Personalty Revocable Living Trust,
Robert V. Traci,
and
Chicago Title Company, Llc,
David Keehan,
D. J. Keehan,
Gh Holdings Llc,
Online Communications Llc,
Signature Building Concepts Llc,
Westlake Shadow Creek, Llc An Ohio Corporation,
for CONTRACT - REAL ESTATE
in the District Court of Cuyahoga County.
Preview
117750857
1 7750857
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ASSUNTA ROSSI PERSONALTY REVOCABLE Case No: CV-21-944483
LIVING ET AL
Plaintiff Judge: MAUREEN CLANCY
D.J. KEEHAN ET AL
Defendant
JOURNAL ENTRY
THIS CASE IS BEFORE THE COURT ON DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT. FILED
05/22/2021. PLAINTIFFS FILED AN OPPOSITION ON 05/26/2021. UPON CONSIDERATION OF DEFENDANTS' MOTION
AND PLAINTIFFS' OPPOSITION. DEFENDANTS' MOTION IS DENIED.
PURSUANT TO STATE EX REL. BUSH V. SPURLOCK. 42 OHIO ST.3D 77. 80. A MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED UNDER CIV.R. 12(B)(6) WILL ONLY BE GRANTED WHERE
THE PARTY OPPOSING THE MOTION IS UNABLE TO PROVE ANY SET OF FACTS THAT WOULD ENTITLE HIM TO
RELIEF. INDEED. BEFORE A COURT MAY DISMISS AN ACTION UNDER THIS RULE. "* * * IT MUST APPEAR BEYOND
DOUBT FROM THE COMPLAINT THAT THE PLAINTIFF CAN PROVE NO SET OF FACTS ENTITLING HIM TO
RECOVERY." O'BRIEN V. UNIVERSITY COMMUNITY TENANTS UNION (1975). 42 OHIO ST.2D 242. 71 O.O.2D 223. 327
N.E.2D 753. SYLLABUS. TO MAKE THIS DETERMINATION. THE COURT IS REQUIRED TO INTERPRET ALL MATERIAL
ALLEGATIONS IN THE COMPLAINT AS TRUE AND ADMITTED. STATE EX REL. BUSH V. SPURLOCK. 42 OHIO ST.3D
77. 80. THE COURT MUST DRAW ALL REASONABLE INFERENCE IN FAVOR OF THE NON-MOVING PARTY.
MITCHELL V. LAWSON MILK CO.. 40 OHIO ST.3D 190. 192. 532 N.E.2D 753 (1988).
THE EIGHTH DISTRICT COURT OF APPEALS HAS HELD THAT THE "OHIO CIVIL RULES REQUIRE 'NOTICE
PLEADING' RATHER THAN 'FACT PLEADING.' 'NOTICE PLEADINGS' UNDER CIV.R. 8(A) AND 8(E) MERELY REQUIRE
THAT A CLAIM CONCISELY SET FORTH ONLY THOSE OPERATIVE FACTS SUFFICIENT TO GIVE FAIR NOTICE OF
THE NATURE OF THE ACTION ... A PLAINTIFF IS NOT REQUIRED TO PROVE HIS OR HER CASE AT THE PLEADING
STAGE." DIAZ V. CUYAHOGA METRO. HOUS. AUTH.. STH DIST. CUYAHOGA NO. 92907. 2010-OHIO-13. P15
(INTERNAL CITATIONS OMITTED).
DRAWING ALL REASONABLE INFERENCE IN FAVOR OF PLAINTIFFS. AND TAKING THE ALLEGATIONS IN THE
COMPLAINT AS TRUE. PLAINTIFFS HAVE ALLEGED THE FACTS NECESSARY TO WITHSTAND A MOTION TO
DISMISS. THEREFORE. DEFENDANTS' MOTION TO DISMISS IS DENIED.
Judge Signature 07/08/2021
07/07/2021
RECEIVED FOR FILING
07/08/2021 23:20:12
NAILAH K. BYRD. CLERK
Page 1 of 1
Document Filed Date
July 08, 2021
Case Filing Date
February 26, 2021
Category
CONTRACT - REAL ESTATE
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117750857 1 7750857 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ASSUNTA ROSSI PERSONALTY REVOCABLE Case No: CV-21-944483 LIVING ET AL Plaintiff Judge: MAUREEN CLANCY D.J. KEEHAN ET AL Defendant JOURNAL ENTRY THIS CASE IS BEFORE THE COURT ON DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT. FILED 05/22/2021. PLAINTIFFS FILED AN OPPOSITION ON 05/26/2021. UPON CONSIDERATION OF DEFENDANTS' MOTION AND PLAINTIFFS' OPPOSITION. DEFENDANTS' MOTION IS DENIED. PURSUANT TO STATE EX REL. BUSH V. SPURLOCK. 42 OHIO ST.3D 77. 80. A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED UNDER CIV.R. 12(B)(6) WILL ONLY BE GRANTED WHERE THE PARTY OPPOSING THE MOTION IS UNABLE TO PROVE ANY SET OF FACTS THAT WOULD ENTITLE HIM TO RELIEF. INDEED. BEFORE A COURT MAY DISMISS AN ACTION UNDER THIS RULE. "* * * IT MUST APPEAR BEYOND DOUBT FROM THE COMPLAINT THAT THE PLAINTIFF CAN PROVE NO SET OF FACTS ENTITLING HIM TO RECOVERY." O'BRIEN V. UNIVERSITY COMMUNITY TENANTS UNION (1975). 42 OHIO ST.2D 242. 71 O.O.2D 223. 327 N.E.2D 753. SYLLABUS. TO MAKE THIS DETERMINATION. THE COURT IS REQUIRED TO INTERPRET ALL MATERIAL ALLEGATIONS IN THE COMPLAINT AS TRUE AND ADMITTED. STATE EX REL. BUSH V. SPURLOCK. 42 OHIO ST.3D 77. 80. THE COURT MUST DRAW ALL REASONABLE INFERENCE IN FAVOR OF THE NON-MOVING PARTY. MITCHELL V. LAWSON MILK CO.. 40 OHIO ST.3D 190. 192. 532 N.E.2D 753 (1988). THE EIGHTH DISTRICT COURT OF APPEALS HAS HELD THAT THE "OHIO CIVIL RULES REQUIRE 'NOTICE PLEADING' RATHER THAN 'FACT PLEADING.' 'NOTICE PLEADINGS' UNDER CIV.R. 8(A) AND 8(E) MERELY REQUIRE THAT A CLAIM CONCISELY SET FORTH ONLY THOSE OPERATIVE FACTS SUFFICIENT TO GIVE FAIR NOTICE OF THE NATURE OF THE ACTION ... A PLAINTIFF IS NOT REQUIRED TO PROVE HIS OR HER CASE AT THE PLEADING STAGE." DIAZ V. CUYAHOGA METRO. HOUS. AUTH.. STH DIST. CUYAHOGA NO. 92907. 2010-OHIO-13. P15 (INTERNAL CITATIONS OMITTED). DRAWING ALL REASONABLE INFERENCE IN FAVOR OF PLAINTIFFS. AND TAKING THE ALLEGATIONS IN THE COMPLAINT AS TRUE. PLAINTIFFS HAVE ALLEGED THE FACTS NECESSARY TO WITHSTAND A MOTION TO DISMISS. THEREFORE. DEFENDANTS' MOTION TO DISMISS IS DENIED. Judge Signature 07/08/2021 07/07/2021 RECEIVED FOR FILING 07/08/2021 23:20:12 NAILAH K. BYRD. CLERK Page 1 of 1