Preview
Motion No. 4932197
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO DISMISS
May 22,2021 11:05
By: STEPHEN P. HANUDEL 0083486
Confirmation Nbr. 2260048
ASSUNTA ROSSI PERSONALTY REVOCABLE CV 21 944483
LIVING ET AL
vs.
Judge: MAUREEN CLANCY
D.J. KEEHANETAL
Pages Filed: 8
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ASSUNTA ROSSI PERSONALITY ) CASE NO. CV-21-944483
REVOCABLE LIVING TRUST, et al )
)
Plaintiffs ) JUDGE MAUREEN CLANCY
)
v. )
)
D.J. KEEHAN )
)
and ) MOTION TO DISMISS
) AMENDED COMPLAINT
WESTLAKE SHADOW CREEK, LLC )
)
Defendants )
Defendants D.J. Keehan and Westlake Shadow Creek, LLC, by and through
undersigned counsel, hereby ask the Court to dismiss Plaintiffs’ Amended Complaint
under Civ. R. 12(B)(6).
Law on Civ. R. 12(B)(6) Motions
A motion to dismiss for failure to state a claim upon which relief can be granted
tests the sufficiency of the complaint. Glazer v. Chase Home Finance, LLC, 8th Dist.
Cuyahoga Nos. 99736, 99875, 2013-Ohio-5589, ^32 (citing State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992)). The claims
set forth in the complaint must be plausible, rather than just conceivable. Glazer at ^33
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544. 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). While a complaint “does not need to allege detailed factual allegations, a
plaintiff’s obligation to provide the grounds for entitlement to relief requires more than
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labels and conclusions.” Id. “[A] formulaic recitation of the elements of a cause of action
is insufficient.” Id.
In evaluating a motion to dismiss under Civ. R. 12(B)(6), “all the factual
allegations of the complaint must be taken as true and all reasonable inferences must
be drawn in favor of the nonmoving party.” Glazer at ^32 (citing Byrd v. Faber, 57 Ohio
St.3d 56, 565 N.E.2d 584 (1991)). “However, while the factual allegations of the
complaint must be taken as true, unsupported conclusions of a complaint are not
considered admitted and are not sufficient to withstand a motion to dismiss.” Glazer at
^32 (citing State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989)
(internal quotations omitted)).
Argument
The Amended Complaint merely recites labels and conclusions without any
factual support. Itis also unclear as what legal causes of action it alleges.
In the first claim for relief, construing inferences to Plaintiffs’ favor, it seems at
best that Plaintiffs allege Defendants to breach the warranty in the sales contract
referenced in Paragraph 1 and Exhibit A. In that contract, a two-year warranty covers
any repair or replacement of certain structural items and a one-year warranty covers
defects in material and workmanship. The first claim for relief fails to state which
warranty was breached and does not provide any operative facts demonstrating as to
how Defendants breached either warranty. At best, the first claim for relief merely states
labels and conclusions. Because the claim does not state a claim upon which relief can
be granted, itmust be dismissed.
2
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In the second claim for relief, itis more of the same vague recitation of labels and
conclusions. It accuses Defendants of breaching the warranty covering workmanship,
but does not specify any facts demonstrating lack of workmanship or failure to perform
in a workmanlike manner. The claim does not demonstrate any plausibility. Therefore, it
must be dismissed.
The third claim for relief seems to accuse Defendants of fraud. It certainly cannot
be for quasi-contract or unjust enrichment because it does not allege Defendants to
obtain any benefit. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985,
834 N.E.2d 791; Hambleton v. R.G. Barry Corporation, 12 Ohio St.3d 179, 465 N.E.2d
1298 (1984). While the claim seems to state a few operative facts, it does not go nearly
far enough required for stating a claim of fraud as required under Civ. R. 9(B).
A complaint for fraud must contain factual allegations that tend to show each
element of the fraud claim. Dottore v. Vorys, Sater, Seymour & Pease, LLP, 8th Dist.
Cuyahoga No. 98861,2014-Ohio-25. In Dottore, the mail fraud claim failed because the
complaint made general references to intentional and excessive billing, but no reference
to specific invoice dates or how the billing was materially fraudulent. Id. at ^110. The
Dottore complaint also failed to identify which person committed fraud on which person
and which billed legal work was not actually done. Id.
The elements of fraud are as follows: (1) a representation or, where there is a
duty to disclose, omission of a fact, (2) which is material to the transaction at hand, (3)
made falsely, with knowledge of its falsity, or with such utter disregard and recklessness
as to whether it is true or false that knowledge may be inferred, (4) with the intent of
misleading another into relying upon it,(5) justifiable reliance upon the representation or
3
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concealment, and (6) a resulting injury proximately caused by the reliance. Gallagher v.
Cochran, 8th Dist. Cuyahoga No. 109081,2020-Ohio-4917, ^67 (citing Burr v. Bd. of
Cty. Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986) and Cohen v. Lamko, Inc., 10
Ohio St.3d 167, 462 N.E.2d 407 (1984)).
In the instant case, the third claim for relief does not specify a particular date that
Keehan promised the home construction to be finished and for closing to occur. Further,
the claim does not allege a closing date to be in writing, which is required for a real
estate transaction under the statute of frauds in ORC 1335.05.
The claim alleges that Plaintiffs accepted an offer to sell their existing residence
in reliance on Keehan's representation, but does not explain how Plaintiffs justifiably
relied on such representation. The claim does not explain how their choice to sell their
residence was compromised by Keehan's representation to the exclusion of all other
factors involved. Further, the claim does not allege when the contract was entered into
and whether any effort was made to mitigate the situation by extending the closing date.
Plaintiffs allege that Keehan intentionally misled Plaintiffs on the completion and
closing date, which is a serious accusation, but do not present particular facts to show
that accusation to be in any way plausible. Mere conceivability is not enough.
The claim also alleges that Plaintiffs were “forced” to move their belongings into
the unfinished home after Keehan refused to pay for storage. The claim does not allege
how Keehan had any obligation to pay for storage nor explain how Keehan “forced”
them to place their belongings into the unfinished. This just merely adds up to an
inconvenience with no damage because Plaintiffs ended up not paying for storage.
4
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Overall, the third claim is more of the same general labels and conclusions and
must be dismissed.
The fourth claim for relief first alleges that Plaintiffs’ pre-approval for a mortgage
loan expired because of Defendants’ actions, but does not articulate how they were
damaged as a result. They do not articulate if they were unable to obtain another pre
approval. Further, Plaintiffs allege that Defendants failed to expedite completion and
refused to do a walk through of the residence, but do not demonstrate how this conduct,
if true, damaged them.
The fourth claim goes to seemingly accuse Defendants of poor workmanship for
not staining the stairs and not removing a portion of a wall that allegedly interferes with
opening the refrigerator. However, mere annoyance or discomfort is not recoverable
under failure to construct in a workmanlike manner. Kishmarton v. William Bailey
Constr. Inc., 93 Ohio St.3d 226 (2001).
Further, the fourth claim for relief alleges Defendant to not comply with the “Key
Letter,” but does not specify what obligations Defendants had in the “Key Letter” and
failed to perform. The fourth claim relief continues on about a home inspector allegedly
taking issue with how some of the construction was done, but does not allege any of it
to be in a non-workmanlike manner, nor state how any of it was non-workmanlike, nor
specify which items were Defendants’ obligation to perform in a workmanlike manner.
Lastly, the fourth claim for relief accuses Defendants of damaging the front, side, and
back yards, but does not state any operative facts of any damaging conduct by
Defendants nor what the damage is.
5
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Overall, the fourth claim for relief fails to allege sufficient facts demonstrating how
Defendants’ conduct was legally wrongful and how any such conduct caused damage to
the Plaintiffs. Thus, it does not state any claim upon which relief can be granted and
must be dismissed.
The fifth claim for relief seems to allege severe emotional distress, but does not
state the factual nature of the distress. In a home construction contract matter,
emotional distress damages will only be granted if there is physical injury or the breach
is of the kind that serious emotional distress was a particularly likely result. Kishmarton,
supra. The fifth claim fails to meet this standard and must be dismissed.
The sixth claim for relief alleged fraud with labels and conclusions apparently in
regards to the home construction, but fails to articulate specific facts that demonstrate
what Defendants did or did not do in regards to constructing the home and how that
caused damage. The claim blandly implies that Defendants did not construct the home
in accordance to state and local codes and the contract. However, it does not
specifically state what parts of the home violate such codes or contract. It does not
specifically state what particular codes or provisions of the contract are violated and
how they are violated. See Dottore, supra.
The sixth claim for relief accuses Defendants of not being forthcoming in their
communications with Plaintiffs, but does not specifically articulate what Defendants said
that was intentionally misleading and how any such alleged statement caused damage
to Plaintiffs.
The claim eventually gets a littlespecific by stating that Defendants promised to
repair the interior stairs and remove a portion of the kitchen wall, but does not articulate
6
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how this promise was a willful representation that caused damage. Even then, the claim
does not articulate what is exactly wrong with the interior stairs nor whether the stairs
were hazardous enough for the city to deny an occupancy permit. As for the kitchen
wall, this isa merely a matter of annoyance to Plaintiffs, which isnot recoverable.
Kismarton, supra.
Once again, like the other claims for relief, the sixth claim is fraught with
inarticulate labels and conclusions. It does not comply with the fraud pleading provisions
of Civ. R. 9(B). Thus, it fails to state a claim upon which relief can granted and should
be dismissed.
Conclusion
Based on the foregoing, the Amended Complaint is insufficient as to each and
every claim for relief and therefore, fails to state a claim upon which relief can be
granted. Defendants have inadequate notice as to what alleged civil wrongs they
committed and therefore are unable to form a response. Accordingly, Defendants urge
the Court to dismiss the Amended Complaint with prejudice at Plaintiffs’ costs.
Respectfully submitted,
/s/ Stephen P. Hanudel____
Stephen P. Hanudel (#0083486)
Attorney for Defendants
124 Middle Avenue, Suite 900
Elyria, Ohio 44035
Phone: (440) 328-8973
Fax: (440) 261-4040
sph812@gmail.com
7
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CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing was delivered to all parties via the Court's
electronic filing system on May 22, 2021.
/s/ Stephen P. Hanudel
Stephen P. Hanudel
8
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Preview
Motion No. 4932197 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO DISMISS May 22,2021 11:05 By: STEPHEN P. HANUDEL 0083486 Confirmation Nbr. 2260048 ASSUNTA ROSSI PERSONALTY REVOCABLE CV 21 944483 LIVING ET AL vs. Judge: MAUREEN CLANCY D.J. KEEHANETAL Pages Filed: 8 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ASSUNTA ROSSI PERSONALITY ) CASE NO. CV-21-944483 REVOCABLE LIVING TRUST, et al ) ) Plaintiffs ) JUDGE MAUREEN CLANCY ) v. ) ) D.J. KEEHAN ) ) and ) MOTION TO DISMISS ) AMENDED COMPLAINT WESTLAKE SHADOW CREEK, LLC ) ) Defendants ) Defendants D.J. Keehan and Westlake Shadow Creek, LLC, by and through undersigned counsel, hereby ask the Court to dismiss Plaintiffs’ Amended Complaint under Civ. R. 12(B)(6). Law on Civ. R. 12(B)(6) Motions A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. Glazer v. Chase Home Finance, LLC, 8th Dist. Cuyahoga Nos. 99736, 99875, 2013-Ohio-5589, ^32 (citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992)). The claims set forth in the complaint must be plausible, rather than just conceivable. Glazer at ^33 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544. 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While a complaint “does not need to allege detailed factual allegations, a plaintiff’s obligation to provide the grounds for entitlement to relief requires more than Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ labels and conclusions.” Id. “[A] formulaic recitation of the elements of a cause of action is insufficient.” Id. In evaluating a motion to dismiss under Civ. R. 12(B)(6), “all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party.” Glazer at ^32 (citing Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991)). “However, while the factual allegations of the complaint must be taken as true, unsupported conclusions of a complaint are not considered admitted and are not sufficient to withstand a motion to dismiss.” Glazer at ^32 (citing State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989) (internal quotations omitted)). Argument The Amended Complaint merely recites labels and conclusions without any factual support. Itis also unclear as what legal causes of action it alleges. In the first claim for relief, construing inferences to Plaintiffs’ favor, it seems at best that Plaintiffs allege Defendants to breach the warranty in the sales contract referenced in Paragraph 1 and Exhibit A. In that contract, a two-year warranty covers any repair or replacement of certain structural items and a one-year warranty covers defects in material and workmanship. The first claim for relief fails to state which warranty was breached and does not provide any operative facts demonstrating as to how Defendants breached either warranty. At best, the first claim for relief merely states labels and conclusions. Because the claim does not state a claim upon which relief can be granted, itmust be dismissed. 2 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ In the second claim for relief, itis more of the same vague recitation of labels and conclusions. It accuses Defendants of breaching the warranty covering workmanship, but does not specify any facts demonstrating lack of workmanship or failure to perform in a workmanlike manner. The claim does not demonstrate any plausibility. Therefore, it must be dismissed. The third claim for relief seems to accuse Defendants of fraud. It certainly cannot be for quasi-contract or unjust enrichment because it does not allege Defendants to obtain any benefit. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791; Hambleton v. R.G. Barry Corporation, 12 Ohio St.3d 179, 465 N.E.2d 1298 (1984). While the claim seems to state a few operative facts, it does not go nearly far enough required for stating a claim of fraud as required under Civ. R. 9(B). A complaint for fraud must contain factual allegations that tend to show each element of the fraud claim. Dottore v. Vorys, Sater, Seymour & Pease, LLP, 8th Dist. Cuyahoga No. 98861,2014-Ohio-25. In Dottore, the mail fraud claim failed because the complaint made general references to intentional and excessive billing, but no reference to specific invoice dates or how the billing was materially fraudulent. Id. at ^110. The Dottore complaint also failed to identify which person committed fraud on which person and which billed legal work was not actually done. Id. The elements of fraud are as follows: (1) a representation or, where there is a duty to disclose, omission of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it,(5) justifiable reliance upon the representation or 3 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ concealment, and (6) a resulting injury proximately caused by the reliance. Gallagher v. Cochran, 8th Dist. Cuyahoga No. 109081,2020-Ohio-4917, ^67 (citing Burr v. Bd. of Cty. Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986) and Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 462 N.E.2d 407 (1984)). In the instant case, the third claim for relief does not specify a particular date that Keehan promised the home construction to be finished and for closing to occur. Further, the claim does not allege a closing date to be in writing, which is required for a real estate transaction under the statute of frauds in ORC 1335.05. The claim alleges that Plaintiffs accepted an offer to sell their existing residence in reliance on Keehan's representation, but does not explain how Plaintiffs justifiably relied on such representation. The claim does not explain how their choice to sell their residence was compromised by Keehan's representation to the exclusion of all other factors involved. Further, the claim does not allege when the contract was entered into and whether any effort was made to mitigate the situation by extending the closing date. Plaintiffs allege that Keehan intentionally misled Plaintiffs on the completion and closing date, which is a serious accusation, but do not present particular facts to show that accusation to be in any way plausible. Mere conceivability is not enough. The claim also alleges that Plaintiffs were “forced” to move their belongings into the unfinished home after Keehan refused to pay for storage. The claim does not allege how Keehan had any obligation to pay for storage nor explain how Keehan “forced” them to place their belongings into the unfinished. This just merely adds up to an inconvenience with no damage because Plaintiffs ended up not paying for storage. 4 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ Overall, the third claim is more of the same general labels and conclusions and must be dismissed. The fourth claim for relief first alleges that Plaintiffs’ pre-approval for a mortgage loan expired because of Defendants’ actions, but does not articulate how they were damaged as a result. They do not articulate if they were unable to obtain another pre approval. Further, Plaintiffs allege that Defendants failed to expedite completion and refused to do a walk through of the residence, but do not demonstrate how this conduct, if true, damaged them. The fourth claim goes to seemingly accuse Defendants of poor workmanship for not staining the stairs and not removing a portion of a wall that allegedly interferes with opening the refrigerator. However, mere annoyance or discomfort is not recoverable under failure to construct in a workmanlike manner. Kishmarton v. William Bailey Constr. Inc., 93 Ohio St.3d 226 (2001). Further, the fourth claim for relief alleges Defendant to not comply with the “Key Letter,” but does not specify what obligations Defendants had in the “Key Letter” and failed to perform. The fourth claim relief continues on about a home inspector allegedly taking issue with how some of the construction was done, but does not allege any of it to be in a non-workmanlike manner, nor state how any of it was non-workmanlike, nor specify which items were Defendants’ obligation to perform in a workmanlike manner. Lastly, the fourth claim for relief accuses Defendants of damaging the front, side, and back yards, but does not state any operative facts of any damaging conduct by Defendants nor what the damage is. 5 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ Overall, the fourth claim for relief fails to allege sufficient facts demonstrating how Defendants’ conduct was legally wrongful and how any such conduct caused damage to the Plaintiffs. Thus, it does not state any claim upon which relief can be granted and must be dismissed. The fifth claim for relief seems to allege severe emotional distress, but does not state the factual nature of the distress. In a home construction contract matter, emotional distress damages will only be granted if there is physical injury or the breach is of the kind that serious emotional distress was a particularly likely result. Kishmarton, supra. The fifth claim fails to meet this standard and must be dismissed. The sixth claim for relief alleged fraud with labels and conclusions apparently in regards to the home construction, but fails to articulate specific facts that demonstrate what Defendants did or did not do in regards to constructing the home and how that caused damage. The claim blandly implies that Defendants did not construct the home in accordance to state and local codes and the contract. However, it does not specifically state what parts of the home violate such codes or contract. It does not specifically state what particular codes or provisions of the contract are violated and how they are violated. See Dottore, supra. The sixth claim for relief accuses Defendants of not being forthcoming in their communications with Plaintiffs, but does not specifically articulate what Defendants said that was intentionally misleading and how any such alleged statement caused damage to Plaintiffs. The claim eventually gets a littlespecific by stating that Defendants promised to repair the interior stairs and remove a portion of the kitchen wall, but does not articulate 6 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ how this promise was a willful representation that caused damage. Even then, the claim does not articulate what is exactly wrong with the interior stairs nor whether the stairs were hazardous enough for the city to deny an occupancy permit. As for the kitchen wall, this isa merely a matter of annoyance to Plaintiffs, which isnot recoverable. Kismarton, supra. Once again, like the other claims for relief, the sixth claim is fraught with inarticulate labels and conclusions. It does not comply with the fraud pleading provisions of Civ. R. 9(B). Thus, it fails to state a claim upon which relief can granted and should be dismissed. Conclusion Based on the foregoing, the Amended Complaint is insufficient as to each and every claim for relief and therefore, fails to state a claim upon which relief can be granted. Defendants have inadequate notice as to what alleged civil wrongs they committed and therefore are unable to form a response. Accordingly, Defendants urge the Court to dismiss the Amended Complaint with prejudice at Plaintiffs’ costs. Respectfully submitted, /s/ Stephen P. Hanudel____ Stephen P. Hanudel (#0083486) Attorney for Defendants 124 Middle Avenue, Suite 900 Elyria, Ohio 44035 Phone: (440) 328-8973 Fax: (440) 261-4040 sph812@gmail.com 7 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ CERTIFICATE OF SERVICE I certify that a true copy of the foregoing was delivered to all parties via the Court's electronic filing system on May 22, 2021. /s/ Stephen P. Hanudel Stephen P. Hanudel 8 Electronically Filed 05/22/202111:05 / MOTION / CV 21 944483 / Confirmation Nbr. 2260048 / CLDLJ