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Motion No. 4928452
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
May 4,2021 15:23
Confirmation Nbr. 2244784
ASSUNTA ROSSI PERSONALTY REVOCABLE CV 21 944483
LIVING ET AL
vs.
Judge: MAUREEN CLANCY
D.J. KEEHANETAL
Pages Filed: 29
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ASSUNTA ROSSI PERSONALTY :
REVOCABLE LIVING TRUST, et al :
CASE NO.: CV 21944483
Plaintiffs
JUDGE MAUREEN CLANCY
Vs
PLAINTIFFS’ RESPONSE TO
D.J.KEEHAN, Individually and DEFENDANTS’ MOTION TO
Dba Westlake Shadow Creek, DISMISS UNDER R. 12(B) AND
LLC., et al PLAINTIFFS’ MOTION TO
AMEND THE COMPLAINT
INSTANTER DUE TO
CLERICAL ERROR
Defendants
The within case is still in its early stages with discovery not yet begun.
Defendants have moved the Court for Dismissal of Plaintiffs’ case under Civ. R.
12(b)(6). Said Motion is solely based on what are clerical errors in the Complaint
as initially filed.
Plaintiffs admit there is a clerical error in the filed complaint. As filed, the
Complaint, is missing pages 5 and 8. A mere reading of the Complaint clearly
demonstrates this.
Additionally, as a pro se plaintiff, Robert Traci filed the Complaint in Person
and had it scanned in at the Courthouse by the Clerk, and then received a time-
stamped copy from the Clerk. Mr. Traci did not notice that pages 5 and 8 had not
been scanned in, nor did the Clerk. This was simply a clerical error. This does
not warrant the Dismissal of this Case pursuant to Rule 12(b)(6) and correcting this
error creates no prejudice to Defendants.
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It is Plaintiffs request that this can all be easily solved in the interests ofjustice
by granting Plaintiffs’ Motion to Amend the Complaint Instanter. The Amended
Complaint is attached hereto as Exhibit A and Plaintiffs request that this court issue
an order Nunc pro tunc to correct these errors and enter a ruling that said corrections
relate back to the original filing date of 2-26-21.
APPLICABLE LAW
As to Plaintiffs’ Motion to Amend the Complaint Instanter to remedy these
clerical errors, Plaintiffs would direct the Court to Civ. R. 15 (A), which states the
following:
Amendments. A party may amend its pleading once as a matter of
course within twenty-eight days after serving it or, if the pleading is one
to which a responsive pleading is required within twenty-eight days after
service of a responsive pleading or twenty-eight days after service of a
motion under Civ. R. 12(B), (E), or (F), whichever is earlier. In all other
cases, a party may amend its pleading only with the opposing party's
written consent or the court's leave. The court shall freely give leave when
justice so requires. Unless the court orders otherwise, any required
response to an amended pleading must be made within the time remaining
to respond to the original pleading or within fourteen days after service of
the amended pleading, whichever is later.
Plaintiffs have not yet filed any Amended Complaint in this matter. Further,
no responsive pleading has yet been made by Defendants. Thus, Plaintiffs are
entitled to Amend the Complaint, as a matter of course. If Plaintiffs are permitted
to file the attached Amended Complaint Instanter it solves the clerical issues raised
by Defendants.
The remainder of Defendants’ arguments are also without merit on their face.
It is well-settled that notice pleading is the rule in Ohio. First, Ohio Civ. R. 8 states
as follows:
RULE 8. General Rules of Pleading (A) Claims for relief. A pleading
that sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, shall contain (1) a
short and plain statement of the claim showing that the party is
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entitled to relief, and (2) a demand for judgment for the relief to which
the party claims to be entitled.
In York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 573 N.E.2d 1063
(1991), the Ohio Supreme Court stressed that under notice pleading rules:
[A] plaintiff is not required to prove his or her case at the pleading
stage. Very often, the evidence necessary for a plaintiff to prevail is not
obtained until the plaintiff is able to discover materials in the defendant's
possession. If the plaintiff were required to prove his or her case in the
complaint, many valid claims would be dismissed because of the plaintiffs
lack of access to relevant evidence. Consequently, as long as there is a set of
facts, consistent with the plaintiff's complaint, which would allow the
plaintiff to recover, the court may not grant a defendant's motion to dismiss.
Id. at 145.
Furthermore, in Mangelluzzi v. Morley, 2015-Ohio-3143, the 8th District
Court of Appeals, has ruled as follows:
The Morleys likewise erroneously argued in support of their motion
for judgment on the pleadings that the federal court’s heightened
pleading standard as stated in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), applies to the
Mangelluzzis’ complaint. But this court has expressly rejected this
claim, noting that “until the Ohio Supreme Court adopts a new
pleading standard or the Ohio Rules of Civil Procedure are
changed, Ohio remains a notice-pleading state.” Tuleta v. Med.
Mut. of Ohio, 8th Dist. Cuyahoga No. 100050, 2014-Ohio-396, 31.
{^12} Ohio follows the “no set of facts” pleading standard,
recognizing that a complaint “should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him
to relief.” O 'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
St.2d 242, 245, 327 N.E.2d 753 (1975), quoting Conley v. Gibson,
355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As explained by
the Ohio Supreme Court: [A] plaintiff is not required to prove his
or her case at the pleading stage. Very often, the evidence
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necessary for a plaintiff to prevail is not obtained until the
plaintiff is able to discover materials in the defendant’s
possession. If the plaintiff were required to prove his or her case in
the complaint, many valid claims would be dismissed because of the
plaintiff’s lack of access to relevant evidence. Consequently, as long
as there is a set of facts, consistent with the plaintiff’s complaint,
which would allow the plaintiff to recover, the court may not grant a
defendant’s motion to dismiss. York v. Ohio State Hwy. Patrol, 60
Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). {^13} Under the Ohio
Rules of Civil Procedure, a complaint need only contain “a short and
plain statement of the claim showing that the party is entitled to
relief.” Civ.R. 8(A)(1). Civ.R. 8(E) further directs that averments
contained in a pleading be simple, concise, and direct. Because Civ.R.
8 clearly establishes that Ohio is a notice-pleading state, “Ohio law
does not ordinarily require a plaintiff to plead operative facts with
particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416,
2002-Ohio-2480, 768 N.E.2d 1136, | 29.
Notwithstanding the clear law of Ohio contained in the Ohio Civil Rules,
and above cited case law, counsel for Defendants ignores or misstates this
fundamental rule by relying on federal cases which are all based on Fed. Civ. R. 8.
Counsel then confuses the issues by arguing such irrelevant concepts and words
such as “plausibility”, “conceivability”, “vague recitations of claims”, and “mere
unsupported allegations”, none of which are required under Ohio law.
Simply stated, the Supreme Court of Ohio is the ultimate authority on the
proper construction of Ohio law, not the Supreme Court of the United States.
Therefore, the decisions of the Supreme Court of the United States, relied upon by
Defendants, cannot override the rules of pleading established by the Ohio Rules of
Civil Procedure, as interpreted by the Supreme Court of Ohio. The Federal
Twombly line of cases has no application to the rules of pleading in Ohio courts
unless and until the Supreme Court of Ohio incorporates the principles set forth in
those cases in its interpretation of the Ohio rules of pleading.
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Conclusion
The Defendants Motion is without merit under the clear law of Ohio which
only requires notice pleading, both under the Civil Rules and case law. To be sure
there are some clerical errors that need to be corrected. The reason for the within
Motion to Amend the Complaint Instanter pursuant to Civ. R. 15 is to correct what
amounts to mere clerical errors related to inadvertent omission of several pages in
the initial filing.
In the interest ofjustice Plaintiffs Motion to Amend the Complaint Instanter
should be granted as it works no injustice on Defendants.
/s/Robert v. Traci
Robert V. Traci, Esq., Pro Se
Inactive (6734)
30033 Shadow Creek Drive
Westlake, OH 44145
rvt@tracilpa.com
/s/Assunta Rossi
Assunta Rossi, Esq., Personally
and As Trustee
30033 Shadow Creek Drive
Westlake, Ohio 44145
artrial388@gmail.com
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing Resp. to Defendants’ Motion to
Dismiss and Plaintiffs’ Motion to Amend the Complaint Instanter was served on
both Defendants by and through their counsel Stephen Hanudel, on May 4, 2021,
by electronic mail, and also via the Court’s electronic filing system.
/s/Robert V. Traci
Robert V. Traci
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ASSUNTA ROSSI PERSONALTY
REVOCABLE LIVING TRUST
30033 Shadow Creek Drive CASE NO.: CV 21-944483
Westlake, OH 44145
JUDGE MAUREEN CLANCY
and
ASSUNTA ROSSI, Personally
and as Trustee
30033 Shadow Creek Drive
Westlake, OH 44145
and
ROBERT V. TRACI
30033 Shadow Creek Drive
Westlake, OH 44145
Plaintiffs
vs. AMENDED COMPLAINT
JURY DEMAND ENDORSED HEREIN
D.J. KEEHAN, Individually and
dba, Westlake Shadow Creek, LLC
3587 Blackberry Lane
Westlake, OH 44145
and
WESTLAKE SHADOW CREEK, LLC
An Ohio Corporation
793 Sharon Drive
Westlake, OH 44145
Defendants
EXHIBIT C
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FIRST CLAIM FOR RELIEF
1. Assunta Rossi Personalty Revocable Living Trust is the titled owner of the premises
located at 30033 Shadow Creek Drive, Westlake, Ohio. Plaintiffs, Rossi and
Traci, co-owners of the subject property, are domestic partners, who entered into a
sales contract to purchase a condominium from Defendants on December 8, 2019,
to be built in compliance with all local and state laws, ordinances, codes, etc. Said
Condominium Purchase Agreement (hereinafter “Contract”) is attached hereto as
Exhibit A.
2. Plaintiff says that D.J. Keehan, individually, and dba, inter alia, as Westlake
Shadow Creek, LLC (hereinafter referred to as WSC), are residents of the State of
Ohio, who hold themselves out to prospective customers, like Plaintiffs herein, as
experienced, competent, expert, registered and licensed general contractors and
home builders providing these services throughout the State of Ohio, including in
Westlake, Ohio. Defendants represented, and Plaintiffs, had the right to expect,
that the laborers and/or subcontractors, retained by Defendants to fulfill the contract
would be competent, licensed and certified in the respective trades for which they
were hired, and many were not.
3. Defendant Westlake Shadow Creek LLC, at all pertinent times herein, is a
corporation duly organized and existing pursuant to law and engaged in the
business of building homes and/or condominiums for residential customers like
Plaintiffs herein, whose principal is Defendant D.J. Keehan, among others.
4. It is further alleged that Defendant Keehan consciously established WSC as a
corporation with minimal assets in order to avoid potential legal exposure or
financial responsibility in a conscious effort to try to individually, and collectively,
and fraudulently, protect and shield himself from financial exposure should he fail
to fulfill his obligations under Ohio Law, Westlake law and ordinances, and
applicable building codes, both State and Local; and for any potential breaches of
contract, and/or claims of fraud, misrepresentation, willful and wanton misconduct
and intentional harm. Plaintiffs allege that the funds and obligations of Defendants
were intermingled between Defendants Keehan and WSC, and also other unknown
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closely held Corporations, thereby piercing the Corporate veil of WSC, making
Defendant Keehan personally liable for all breaches, misconduct, failures,
negligence, and fraud alleged herein.
5. Defendants Keehan and WSC, represented to Plaintiffs, individually and
collectively, directly and by operation of law, that the sub-contractors, employees,
laborers, and/or workers that Keehan and WSC would utilize to construct the
residence, per the Contract, would all be properly trained, qualified, registered,
certified, licensed and permitted by local and state laws to perform individually and
collectively the work that they were asked to undertake pursuant to the Contract.
6. In fact, Defendants Keehan and WSC, utilized workers, who, in many
circumstances, were inexperienced, not registered, not certified, not licensed, not
citizens and/or residents of the US, and not qualified to perform a portion of the
work, all in breach of federal, state and local laws and/or ordinances, and the
Contract; and all applicable warranties, including the warranty to perform all work
in a workmanlike manner, warranties to deal in good faith; etc. These actions
were in violation of the sales Contract; express and implied promises to act in good
faith; warranties to perform in a workmanlike manner; to avoid all negligence; to
timely meet and complete occupancy timelines and completion dates as time was
of the essence; and to comply with all applicable laws and ordinances; to obtain all
required inspections and/or permits; and to avoid active and intentional
misrepresentations made repeatedly by all of the Defendants to Plaintiffs’ prejudice
and detriment.
7. In addition to multiple breaches of contract and express and implied warranties, the
Defendants were negligent in the work performed in the construction of the above
residence, the manner and timeliness of all work, and that said conduct and
negligence proximately caused damage to Plaintiffs, which damage is continuing
and irreparable.
SECOND CLAIM FOR RELIEF
8. For their second claim for relief, Plaintiffs incorporate herein all of the allegations
contained in the foregoing claim for relief and incorporates them herein as though
fully rewritten.
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9. Plaintiffs allege that Defendants Keehan and WSC breached multiple warranties,
including those that were express, implied and/or those existing by operation of
law. Said warranties, include, but are not limited to, constructing the property
that was fit for its intended purpose and warranty that all work would be done in a
workmanlike manner, and further in compliance with the Contract, all local
ordinances and codes, and the multiple promises and representations made by
Defendants.
10. All of the above, directly caused damage to plaintiffs.
THIRD CLAIM FOR RELIEF
11. For their third claim for relief, Plaintiffs incorporates herein all of the allegations
contained in the foregoing claims for relief and incorporates them herein as though
fully rewritten.
12. Plaintiffs were promised that said closing would occur in the first week of August,
2020. Relying on Defendant Keehan’s promise to complete the home in August,
and, after confirming said time frame directly with Defendant Keehan, and with his
full knowledge and consent, Plaintiffs accepted an offer to sell their existing
residence, with a closing date of September 11, 2020. Plaintiffs were induced to
enter into said sales contract specifically, unknowingly, and justifiably relying on
multiple intentionally fraudulent misrepresentations from Defendant Keehan made
on behalf of himself and Defendant WSC that the construction would be completed
in the first week of August, 2020 knowing he could not do so. Defendants’ directly
caused irreparable harm to Plaintiff, and exposed Plaintiffs to danger, personal and
physical injury, since they were required to vacate their existing residence during a
global pandemic of which Defendants were specifically knowledgeable without the
said home being completed and occupiable.
13. The same misrepresentations of occupancy were made on several additional
occasions forcing plaintiff to be homeless for about six (6) weeks and incur
expenses for food and shelter during this time period. This condition largely
continued even after Plaintiffs were permitted to move in due to incomplete work,
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ongoing breach of warranties and ongoing fraud and intentional misrepresentations
by Defendants, all of which made the residence uninhabitable.
14. Plaintiffs were also forced by Defendant Keehan to move their belongings into a
partially completed and unfinished space since Defendants refused to pay for the
continued storage of Plaintiffs’ property the need for which was all caused by
Defendants’ negligence, delays, and intentional refusal to complete the proj ect. All
of Plaintiffs’ property and belongings became damaged by the lack of reasonable
care and breach of contract and warranties, exhibited by Defendants and their
employees and/or subcontractors. This negligence and misconduct has directly
caused Plaintiffs irreparable harm and expense.
15. Defendants, throughout the months of August through November of 2020, failed to
even perform simple efforts to advance completion of said home by not having
workers perform any work sometimes for weeks at a time, during which time
Plaintiffs suffered ongoing damage to their belongings, as well as damage to their
personal, mental and physical health.
FOURTH CLAIM FOR RELIEF
16. For their Fourth claim for relief, Plaintiffs incorporate herein all of the allegations
contained in the foregoing claims for relief and incorporates them herein as though
fully rewritten.
17. Plaintiffs’ pre-approved mortgage loan had an expiration date of October 31, 2020,
at which time their approval for a bank loan would expire, and it could not be
extended or renewed. Defendants, with full knowledge, negligently and
intentionally jeopardized Plaintiffs’ ability to comply with their obligations under
the purchase contract. Defendants, knowing of that issue, continued to negligently
fail to make any effort to expedite their completion obligations. Defendants
further refused to schedule a final walk-thru until the day before the funding
deadline, and then only after Plaintiffs’ demanded same.
18. As a direct result of this, Plaintiffs insisted upon a reserve of $5,000.00 to be held
in escrow to cover some of the cost of certain items as well as some replacements
for improperly installed items and/or which still needed to be undertaken by
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Defendants and of which Defendants had knowledge. Defendants then delayed
further, to mislead Plaintiffs, by consulting certain independent contractors chosen
solely by Defendant Keehan to determine how some of these issues could be
corrected and properly completed. This was designed to induce Plaintiffs to rely
on the fact that Defendants agreed to and intended to make repairs at their cost.
These items primarily included, but were not limited to, the failure of Defendants
to stain the main staircase, and remove a portion of a wall that Defendants had
negligently constructed, and which was restricting the ability to open the
refrigerator. Both of these issues were caused by the negligence of Defendants
and/or their chosen sub-contractors or laborers. Thereafter, Defendants then
demanded that Plaintiffs pay the actual additional cost of correcting Defendants’
own negligence, breach of warranties, and fraud. To date, Defendants continue
to fraudulently refuse to even discuss said issues or take any action to meet its
obligations under the Contract and warranties to fix and correct said negligent work.
19. After closing, and for the first time, Defendants acknowledged that Plaintiffs were
entitled to various warranties under the Contract. Defendant Keehan said such
items would be contained in a Key Letter, which Defendant Keehan refused to
provide until after closing. Said Key Letter, finally delivered by email on
11/24/20 after closing, is attached hereto as Exhibit B. A deadline contained
therein for Plaintiffs to respond had already passed. Plaintiffs, nonetheless,
responded to said letter listing in detail some of the remaining items not yet, or
negligently done and/or not done.
20. Defendants continue to refuse to comply with their obligations under the Key
Letter or even respond to communications demanding that said items be addressed,
until Plaintiffs release the escrow funds intended to secure that these items be
remedied first. This is another example of the ongoing fraud and intentional bad
faith of Defendants.
21. An independent home inspector examined said property and his findings, which are
in support of Plaintiff’s claims, which was communicated to Defendants. Many
of said defects were not visible and/or hidden by Defendants. Nonetheless,
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Defendants continue to refuse any response, or take any action to correct said
defects. These items include, inter alia, separation of the main staircase from wall;
outside roof shingle defects and lack of flashing; attic insulation issues; lack of
protection for romex wiring in attic; lack of a light in attic; non-functioning of
access door from garage; multiple collapses of all closet rods and shelves that
remain un-repaired; improper installation of light fixtures; separation and/or failure
to caulk in every location where granite was installed; improper installation of glass
shower door; improper installation of washing machine which caused permanent
damage to Plaintiff's new appliance, as well as other issues either undone or
negligently done, to also include items set forth earlier in this Complaint and in
multiple oral and written communications to Defendants.
22. Defendants and/or its contractors/employees and laborers, also negligently
damaged the front, back and side yards and refused to address same until the
weather did not permit yard work to be undertaken this year, and installed the patio
knowingly in breach of local codes. Defendants again misrepresented that they
would repair said items even after Closing. Defendants were required by code and
the water department to install a means to have the Water Department hook up its
meter. Defendant Keehan has refused to do this, thus making it impossible to
transfer the water bill in Plaintiffs name as Defendant demands in his Key Letter.
FIFTH CLAIM FOR RELIEF
23. For their Fifth claim for relief, Plaintiffs incorporate herein all of the allegations
contained in the foregoing claims for relief and incorporates them herein as though
fully rewritten.
24. Plaintiffs within have alleged facts showing the relationship of the parties, both
legally and equitably, giving rise to Defendant's duties, express and implied, to
exercise due care, and fulfill all warranties that arise in the Contract.
25. Defendants knew, or should have known, that their failures to exercise due care in
the performance of acts to be done or terms of the Contract would cause Plaintiffs
severe emotional and physical distress, which continue to this day.
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26. Plaintiffs further allege that Defendants' negligent acts, and/or omissions to act,
constituting breach of duty and/or breach of contract and intentional acts
proximately caused severe economic, emotional, physical and mental distress and
suffering and consequent damages.
SIXTH CLAIM FOR RELIEF
FOR FRAUD
27. For their Sixth claim for relief, Plaintiffs incorporate herein all of the allegations
contained in the foregoing claims for relief and incorporates them herein as though
fully rewritten.
28. At the time of the signing of the Real Estate Contract, and at all relevant times
thereafter, Defendant D.J. Keehan, personally, and as the sole representative of
Defendant WSC, falsely, intentionally, and fraudulently represented to Plaintiffs,
all as specifically alleged herein, that he would construct a new residence for them
in compliance with all State and Local Codes, standards and obligations, and
consistent with the express, and implied terms of the Contract, and all express and
implied warranties, as well as all of Defendants’ ongoing affirmative
representations and promises made throughout the project, at various times which
are too numerous to count.
29. Throughout the project, multiple communications (oral, written, telephonic, email
and text) occurred between the Defendants and Plaintiffs concerning matters to be
undertaken and which were either not done, not done according to the Contract or
mutual agreement, and/or done negligently. Defendants had actual knowledge of
all of the above, and also has documents demonstrating these allegations.
30. Defendants either refused to respond to said requests, or gave responses that were
in fact intentionally false. The true facts are that the property was not constructed
per all of the specific representations made orally and in writing by Defendant
Keehan and/or which exist by operation of law and the duty to act in good faith.
31. When the Defendants made these representations, he, and they, knew them to be
false, and Defendant Keehan made them for himself and on behalf of Defendant
WSC, with intent to defraud, deceive and intentionally inflict personal and mental
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harm to Plaintiffs, and with the intent to induce Plaintiffs to act in the manner herein
alleged to Plaintiffs’ detriment. At the time Defendant made the promises to
Plaintiffs, Defendant had no intention of performing them or meeting all contractual
or implied obligations. The intentional misrepresentations, include, inter alia, that
he would repair the interior stairs, remove a portion of the wall in the kitchen which
prevented proper operation of appliances, taping of drywall in multiple locations,
and ensure that the patio was installed in accordance with code.
32. Plaintiffs, at the time these representations were made by Defendants and at the
time Plaintiffs took the actions herein alleged, were ignorant of the falsity of
Defendant's representations and believed them to be true. Plaintiffs could not, in
the exercise of reasonable diligence, have discovered Defendant's false, secret
intentions, and, had Plaintiffs known the actual facts of Defendants’ intent to
defraud, deceive and inflict harm, Plaintiffs would not have closed on this
transaction, which Defendants fraudulently induced them to do.
33. As a proximate result of Defendant's fraud, deceit, and intentional acts, and the facts
herein alleged, Plaintiffs have been damaged in excess of $400,000.00 for which
the Defendants jointly and severally are liable.
34. In doing the acts herein alleged, Defendants acted with oppression, fraud, malice,
and intent to harm, all of which conduct persists today. Defendants are j ointly and
severally liable to Plaintiffs for punitive damages in excess of $100,000.
WHEREFORE, Plaintiffs pray for judgment against the Defendants, jointly and severally, and
each of them, as follows:
1. For general damages in the sum of $400,000, including rescission of the Condominium
Purchase Agreement, to also include refund of the down payment, bank loan and all fees
and charges assessed the
Preview
Motion No. 4928452 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... May 4,2021 15:23 Confirmation Nbr. 2244784 ASSUNTA ROSSI PERSONALTY REVOCABLE CV 21 944483 LIVING ET AL vs. Judge: MAUREEN CLANCY D.J. KEEHANETAL Pages Filed: 29 Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483 / Confirmation Nbr. 2244784 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ASSUNTA ROSSI PERSONALTY : REVOCABLE LIVING TRUST, et al : CASE NO.: CV 21944483 Plaintiffs JUDGE MAUREEN CLANCY Vs PLAINTIFFS’ RESPONSE TO D.J.KEEHAN, Individually and DEFENDANTS’ MOTION TO Dba Westlake Shadow Creek, DISMISS UNDER R. 12(B) AND LLC., et al PLAINTIFFS’ MOTION TO AMEND THE COMPLAINT INSTANTER DUE TO CLERICAL ERROR Defendants The within case is still in its early stages with discovery not yet begun. Defendants have moved the Court for Dismissal of Plaintiffs’ case under Civ. R. 12(b)(6). Said Motion is solely based on what are clerical errors in the Complaint as initially filed. Plaintiffs admit there is a clerical error in the filed complaint. As filed, the Complaint, is missing pages 5 and 8. A mere reading of the Complaint clearly demonstrates this. Additionally, as a pro se plaintiff, Robert Traci filed the Complaint in Person and had it scanned in at the Courthouse by the Clerk, and then received a time- stamped copy from the Clerk. Mr. Traci did not notice that pages 5 and 8 had not been scanned in, nor did the Clerk. This was simply a clerical error. This does not warrant the Dismissal of this Case pursuant to Rule 12(b)(6) and correcting this error creates no prejudice to Defendants. Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483/ Confirmation Nbr. 2244784 / BATCH It is Plaintiffs request that this can all be easily solved in the interests ofjustice by granting Plaintiffs’ Motion to Amend the Complaint Instanter. The Amended Complaint is attached hereto as Exhibit A and Plaintiffs request that this court issue an order Nunc pro tunc to correct these errors and enter a ruling that said corrections relate back to the original filing date of 2-26-21. APPLICABLE LAW As to Plaintiffs’ Motion to Amend the Complaint Instanter to remedy these clerical errors, Plaintiffs would direct the Court to Civ. R. 15 (A), which states the following: Amendments. A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under Civ. R. 12(B), (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court shall freely give leave when justice so requires. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within fourteen days after service of the amended pleading, whichever is later. Plaintiffs have not yet filed any Amended Complaint in this matter. Further, no responsive pleading has yet been made by Defendants. Thus, Plaintiffs are entitled to Amend the Complaint, as a matter of course. If Plaintiffs are permitted to file the attached Amended Complaint Instanter it solves the clerical issues raised by Defendants. The remainder of Defendants’ arguments are also without merit on their face. It is well-settled that notice pleading is the rule in Ohio. First, Ohio Civ. R. 8 states as follows: RULE 8. General Rules of Pleading (A) Claims for relief. A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is Electronically Filed 05/04/202115:23 / MOTION / CV 21 94448#/ Confirmation Nbr. 2244784 / BATCH entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. In York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 573 N.E.2d 1063 (1991), the Ohio Supreme Court stressed that under notice pleading rules: [A] plaintiff is not required to prove his or her case at the pleading stage. Very often, the evidence necessary for a plaintiff to prevail is not obtained until the plaintiff is able to discover materials in the defendant's possession. If the plaintiff were required to prove his or her case in the complaint, many valid claims would be dismissed because of the plaintiffs lack of access to relevant evidence. Consequently, as long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss. Id. at 145. Furthermore, in Mangelluzzi v. Morley, 2015-Ohio-3143, the 8th District Court of Appeals, has ruled as follows: The Morleys likewise erroneously argued in support of their motion for judgment on the pleadings that the federal court’s heightened pleading standard as stated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), applies to the Mangelluzzis’ complaint. But this court has expressly rejected this claim, noting that “until the Ohio Supreme Court adopts a new pleading standard or the Ohio Rules of Civil Procedure are changed, Ohio remains a notice-pleading state.” Tuleta v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No. 100050, 2014-Ohio-396, 31. {^12} Ohio follows the “no set of facts” pleading standard, recognizing that a complaint “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” O 'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975), quoting Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As explained by the Ohio Supreme Court: [A] plaintiff is not required to prove his or her case at the pleading stage. Very often, the evidence Electronically Filed 05/04/202115:23 / MOTION / CV 21 94448$/ Confirmation Nbr. 2244784 / BATCH necessary for a plaintiff to prevail is not obtained until the plaintiff is able to discover materials in the defendant’s possession. If the plaintiff were required to prove his or her case in the complaint, many valid claims would be dismissed because of the plaintiff’s lack of access to relevant evidence. Consequently, as long as there is a set of facts, consistent with the plaintiff’s complaint, which would allow the plaintiff to recover, the court may not grant a defendant’s motion to dismiss. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). {^13} Under the Ohio Rules of Civil Procedure, a complaint need only contain “a short and plain statement of the claim showing that the party is entitled to relief.” Civ.R. 8(A)(1). Civ.R. 8(E) further directs that averments contained in a pleading be simple, concise, and direct. Because Civ.R. 8 clearly establishes that Ohio is a notice-pleading state, “Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, | 29. Notwithstanding the clear law of Ohio contained in the Ohio Civil Rules, and above cited case law, counsel for Defendants ignores or misstates this fundamental rule by relying on federal cases which are all based on Fed. Civ. R. 8. Counsel then confuses the issues by arguing such irrelevant concepts and words such as “plausibility”, “conceivability”, “vague recitations of claims”, and “mere unsupported allegations”, none of which are required under Ohio law. Simply stated, the Supreme Court of Ohio is the ultimate authority on the proper construction of Ohio law, not the Supreme Court of the United States. Therefore, the decisions of the Supreme Court of the United States, relied upon by Defendants, cannot override the rules of pleading established by the Ohio Rules of Civil Procedure, as interpreted by the Supreme Court of Ohio. The Federal Twombly line of cases has no application to the rules of pleading in Ohio courts unless and until the Supreme Court of Ohio incorporates the principles set forth in those cases in its interpretation of the Ohio rules of pleading. Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483/ Confirmation Nbr. 2244784 / BATCH Conclusion The Defendants Motion is without merit under the clear law of Ohio which only requires notice pleading, both under the Civil Rules and case law. To be sure there are some clerical errors that need to be corrected. The reason for the within Motion to Amend the Complaint Instanter pursuant to Civ. R. 15 is to correct what amounts to mere clerical errors related to inadvertent omission of several pages in the initial filing. In the interest ofjustice Plaintiffs Motion to Amend the Complaint Instanter should be granted as it works no injustice on Defendants. /s/Robert v. Traci Robert V. Traci, Esq., Pro Se Inactive (6734) 30033 Shadow Creek Drive Westlake, OH 44145 rvt@tracilpa.com /s/Assunta Rossi Assunta Rossi, Esq., Personally and As Trustee 30033 Shadow Creek Drive Westlake, Ohio 44145 artrial388@gmail.com CERTIFICATE OF SERVICE I certify that a true copy of the foregoing Resp. to Defendants’ Motion to Dismiss and Plaintiffs’ Motion to Amend the Complaint Instanter was served on both Defendants by and through their counsel Stephen Hanudel, on May 4, 2021, by electronic mail, and also via the Court’s electronic filing system. /s/Robert V. Traci Robert V. Traci Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483/ Confirmation Nbr. 2244784 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ASSUNTA ROSSI PERSONALTY REVOCABLE LIVING TRUST 30033 Shadow Creek Drive CASE NO.: CV 21-944483 Westlake, OH 44145 JUDGE MAUREEN CLANCY and ASSUNTA ROSSI, Personally and as Trustee 30033 Shadow Creek Drive Westlake, OH 44145 and ROBERT V. TRACI 30033 Shadow Creek Drive Westlake, OH 44145 Plaintiffs vs. AMENDED COMPLAINT JURY DEMAND ENDORSED HEREIN D.J. KEEHAN, Individually and dba, Westlake Shadow Creek, LLC 3587 Blackberry Lane Westlake, OH 44145 and WESTLAKE SHADOW CREEK, LLC An Ohio Corporation 793 Sharon Drive Westlake, OH 44145 Defendants EXHIBIT C Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483/ Confirmation Nbr. 2244784 / BATCH FIRST CLAIM FOR RELIEF 1. Assunta Rossi Personalty Revocable Living Trust is the titled owner of the premises located at 30033 Shadow Creek Drive, Westlake, Ohio. Plaintiffs, Rossi and Traci, co-owners of the subject property, are domestic partners, who entered into a sales contract to purchase a condominium from Defendants on December 8, 2019, to be built in compliance with all local and state laws, ordinances, codes, etc. Said Condominium Purchase Agreement (hereinafter “Contract”) is attached hereto as Exhibit A. 2. Plaintiff says that D.J. Keehan, individually, and dba, inter alia, as Westlake Shadow Creek, LLC (hereinafter referred to as WSC), are residents of the State of Ohio, who hold themselves out to prospective customers, like Plaintiffs herein, as experienced, competent, expert, registered and licensed general contractors and home builders providing these services throughout the State of Ohio, including in Westlake, Ohio. Defendants represented, and Plaintiffs, had the right to expect, that the laborers and/or subcontractors, retained by Defendants to fulfill the contract would be competent, licensed and certified in the respective trades for which they were hired, and many were not. 3. Defendant Westlake Shadow Creek LLC, at all pertinent times herein, is a corporation duly organized and existing pursuant to law and engaged in the business of building homes and/or condominiums for residential customers like Plaintiffs herein, whose principal is Defendant D.J. Keehan, among others. 4. It is further alleged that Defendant Keehan consciously established WSC as a corporation with minimal assets in order to avoid potential legal exposure or financial responsibility in a conscious effort to try to individually, and collectively, and fraudulently, protect and shield himself from financial exposure should he fail to fulfill his obligations under Ohio Law, Westlake law and ordinances, and applicable building codes, both State and Local; and for any potential breaches of contract, and/or claims of fraud, misrepresentation, willful and wanton misconduct and intentional harm. Plaintiffs allege that the funds and obligations of Defendants were intermingled between Defendants Keehan and WSC, and also other unknown Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483/ Confirmation Nbr. 2244784 / BATCH closely held Corporations, thereby piercing the Corporate veil of WSC, making Defendant Keehan personally liable for all breaches, misconduct, failures, negligence, and fraud alleged herein. 5. Defendants Keehan and WSC, represented to Plaintiffs, individually and collectively, directly and by operation of law, that the sub-contractors, employees, laborers, and/or workers that Keehan and WSC would utilize to construct the residence, per the Contract, would all be properly trained, qualified, registered, certified, licensed and permitted by local and state laws to perform individually and collectively the work that they were asked to undertake pursuant to the Contract. 6. In fact, Defendants Keehan and WSC, utilized workers, who, in many circumstances, were inexperienced, not registered, not certified, not licensed, not citizens and/or residents of the US, and not qualified to perform a portion of the work, all in breach of federal, state and local laws and/or ordinances, and the Contract; and all applicable warranties, including the warranty to perform all work in a workmanlike manner, warranties to deal in good faith; etc. These actions were in violation of the sales Contract; express and implied promises to act in good faith; warranties to perform in a workmanlike manner; to avoid all negligence; to timely meet and complete occupancy timelines and completion dates as time was of the essence; and to comply with all applicable laws and ordinances; to obtain all required inspections and/or permits; and to avoid active and intentional misrepresentations made repeatedly by all of the Defendants to Plaintiffs’ prejudice and detriment. 7. In addition to multiple breaches of contract and express and implied warranties, the Defendants were negligent in the work performed in the construction of the above residence, the manner and timeliness of all work, and that said conduct and negligence proximately caused damage to Plaintiffs, which damage is continuing and irreparable. SECOND CLAIM FOR RELIEF 8. For their second claim for relief, Plaintiffs incorporate herein all of the allegations contained in the foregoing claim for relief and incorporates them herein as though fully rewritten. Electronically Filed 05/04/202115:23 / MOTION / CV 21 94448#/ Confirmation Nbr. 2244784 / BATCH 9. Plaintiffs allege that Defendants Keehan and WSC breached multiple warranties, including those that were express, implied and/or those existing by operation of law. Said warranties, include, but are not limited to, constructing the property that was fit for its intended purpose and warranty that all work would be done in a workmanlike manner, and further in compliance with the Contract, all local ordinances and codes, and the multiple promises and representations made by Defendants. 10. All of the above, directly caused damage to plaintiffs. THIRD CLAIM FOR RELIEF 11. For their third claim for relief, Plaintiffs incorporates herein all of the allegations contained in the foregoing claims for relief and incorporates them herein as though fully rewritten. 12. Plaintiffs were promised that said closing would occur in the first week of August, 2020. Relying on Defendant Keehan’s promise to complete the home in August, and, after confirming said time frame directly with Defendant Keehan, and with his full knowledge and consent, Plaintiffs accepted an offer to sell their existing residence, with a closing date of September 11, 2020. Plaintiffs were induced to enter into said sales contract specifically, unknowingly, and justifiably relying on multiple intentionally fraudulent misrepresentations from Defendant Keehan made on behalf of himself and Defendant WSC that the construction would be completed in the first week of August, 2020 knowing he could not do so. Defendants’ directly caused irreparable harm to Plaintiff, and exposed Plaintiffs to danger, personal and physical injury, since they were required to vacate their existing residence during a global pandemic of which Defendants were specifically knowledgeable without the said home being completed and occupiable. 13. The same misrepresentations of occupancy were made on several additional occasions forcing plaintiff to be homeless for about six (6) weeks and incur expenses for food and shelter during this time period. This condition largely continued even after Plaintiffs were permitted to move in due to incomplete work, Electronically Filed 05/04/202115:23 / MOTION / CV 21 94448$/ Confirmation Nbr. 2244784 / BATCH ongoing breach of warranties and ongoing fraud and intentional misrepresentations by Defendants, all of which made the residence uninhabitable. 14. Plaintiffs were also forced by Defendant Keehan to move their belongings into a partially completed and unfinished space since Defendants refused to pay for the continued storage of Plaintiffs’ property the need for which was all caused by Defendants’ negligence, delays, and intentional refusal to complete the proj ect. All of Plaintiffs’ property and belongings became damaged by the lack of reasonable care and breach of contract and warranties, exhibited by Defendants and their employees and/or subcontractors. This negligence and misconduct has directly caused Plaintiffs irreparable harm and expense. 15. Defendants, throughout the months of August through November of 2020, failed to even perform simple efforts to advance completion of said home by not having workers perform any work sometimes for weeks at a time, during which time Plaintiffs suffered ongoing damage to their belongings, as well as damage to their personal, mental and physical health. FOURTH CLAIM FOR RELIEF 16. For their Fourth claim for relief, Plaintiffs incorporate herein all of the allegations contained in the foregoing claims for relief and incorporates them herein as though fully rewritten. 17. Plaintiffs’ pre-approved mortgage loan had an expiration date of October 31, 2020, at which time their approval for a bank loan would expire, and it could not be extended or renewed. Defendants, with full knowledge, negligently and intentionally jeopardized Plaintiffs’ ability to comply with their obligations under the purchase contract. Defendants, knowing of that issue, continued to negligently fail to make any effort to expedite their completion obligations. Defendants further refused to schedule a final walk-thru until the day before the funding deadline, and then only after Plaintiffs’ demanded same. 18. As a direct result of this, Plaintiffs insisted upon a reserve of $5,000.00 to be held in escrow to cover some of the cost of certain items as well as some replacements for improperly installed items and/or which still needed to be undertaken by Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483/ Confirmation Nbr. 2244784 / BATCH Defendants and of which Defendants had knowledge. Defendants then delayed further, to mislead Plaintiffs, by consulting certain independent contractors chosen solely by Defendant Keehan to determine how some of these issues could be corrected and properly completed. This was designed to induce Plaintiffs to rely on the fact that Defendants agreed to and intended to make repairs at their cost. These items primarily included, but were not limited to, the failure of Defendants to stain the main staircase, and remove a portion of a wall that Defendants had negligently constructed, and which was restricting the ability to open the refrigerator. Both of these issues were caused by the negligence of Defendants and/or their chosen sub-contractors or laborers. Thereafter, Defendants then demanded that Plaintiffs pay the actual additional cost of correcting Defendants’ own negligence, breach of warranties, and fraud. To date, Defendants continue to fraudulently refuse to even discuss said issues or take any action to meet its obligations under the Contract and warranties to fix and correct said negligent work. 19. After closing, and for the first time, Defendants acknowledged that Plaintiffs were entitled to various warranties under the Contract. Defendant Keehan said such items would be contained in a Key Letter, which Defendant Keehan refused to provide until after closing. Said Key Letter, finally delivered by email on 11/24/20 after closing, is attached hereto as Exhibit B. A deadline contained therein for Plaintiffs to respond had already passed. Plaintiffs, nonetheless, responded to said letter listing in detail some of the remaining items not yet, or negligently done and/or not done. 20. Defendants continue to refuse to comply with their obligations under the Key Letter or even respond to communications demanding that said items be addressed, until Plaintiffs release the escrow funds intended to secure that these items be remedied first. This is another example of the ongoing fraud and intentional bad faith of Defendants. 21. An independent home inspector examined said property and his findings, which are in support of Plaintiff’s claims, which was communicated to Defendants. Many of said defects were not visible and/or hidden by Defendants. Nonetheless, Electronically Filed 05/04/202115:23 / MOTION / CV 21 9444831 Confirmation Nbr. 2244784 / BATCH Defendants continue to refuse any response, or take any action to correct said defects. These items include, inter alia, separation of the main staircase from wall; outside roof shingle defects and lack of flashing; attic insulation issues; lack of protection for romex wiring in attic; lack of a light in attic; non-functioning of access door from garage; multiple collapses of all closet rods and shelves that remain un-repaired; improper installation of light fixtures; separation and/or failure to caulk in every location where granite was installed; improper installation of glass shower door; improper installation of washing machine which caused permanent damage to Plaintiff's new appliance, as well as other issues either undone or negligently done, to also include items set forth earlier in this Complaint and in multiple oral and written communications to Defendants. 22. Defendants and/or its contractors/employees and laborers, also negligently damaged the front, back and side yards and refused to address same until the weather did not permit yard work to be undertaken this year, and installed the patio knowingly in breach of local codes. Defendants again misrepresented that they would repair said items even after Closing. Defendants were required by code and the water department to install a means to have the Water Department hook up its meter. Defendant Keehan has refused to do this, thus making it impossible to transfer the water bill in Plaintiffs name as Defendant demands in his Key Letter. FIFTH CLAIM FOR RELIEF 23. For their Fifth claim for relief, Plaintiffs incorporate herein all of the allegations contained in the foregoing claims for relief and incorporates them herein as though fully rewritten. 24. Plaintiffs within have alleged facts showing the relationship of the parties, both legally and equitably, giving rise to Defendant's duties, express and implied, to exercise due care, and fulfill all warranties that arise in the Contract. 25. Defendants knew, or should have known, that their failures to exercise due care in the performance of acts to be done or terms of the Contract would cause Plaintiffs severe emotional and physical distress, which continue to this day. Electronically Filed 05/04/202115:23 / MOTION / CV 21 944483/ Confirmation Nbr. 2244784 / BATCH 26. Plaintiffs further allege that Defendants' negligent acts, and/or omissions to act, constituting breach of duty and/or breach of contract and intentional acts proximately caused severe economic, emotional, physical and mental distress and suffering and consequent damages. SIXTH CLAIM FOR RELIEF FOR FRAUD 27. For their Sixth claim for relief, Plaintiffs incorporate herein all of the allegations contained in the foregoing claims for relief and incorporates them herein as though fully rewritten. 28. At the time of the signing of the Real Estate Contract, and at all relevant times thereafter, Defendant D.J. Keehan, personally, and as the sole representative of Defendant WSC, falsely, intentionally, and fraudulently represented to Plaintiffs, all as specifically alleged herein, that he would construct a new residence for them in compliance with all State and Local Codes, standards and obligations, and consistent with the express, and implied terms of the Contract, and all express and implied warranties, as well as all of Defendants’ ongoing affirmative representations and promises made throughout the project, at various times which are too numerous to count. 29. Throughout the project, multiple communications (oral, written, telephonic, email and text) occurred between the Defendants and Plaintiffs concerning matters to be undertaken and which were either not done, not done according to the Contract or mutual agreement, and/or done negligently. Defendants had actual knowledge of all of the above, and also has documents demonstrating these allegations. 30. Defendants either refused to respond to said requests, or gave responses that were in fact intentionally false. The true facts are that the property was not constructed per all of the specific representations made orally and in writing by Defendant Keehan and/or which exist by operation of law and the duty to act in good faith. 31. When the Defendants made these representations, he, and they, knew them to be false, and Defendant Keehan made them for himself and on behalf of Defendant WSC, with intent to defraud, deceive and intentionally inflict personal and mental Electronically Filed 05/04/202115:23 / MOTION / CV 21 94448$ Confirmation Nbr. 2244784 / BATCH harm to Plaintiffs, and with the intent to induce Plaintiffs to act in the manner herein alleged to Plaintiffs’ detriment. At the time Defendant made the promises to Plaintiffs, Defendant had no intention of performing them or meeting all contractual or implied obligations. The intentional misrepresentations, include, inter alia, that he would repair the interior stairs, remove a portion of the wall in the kitchen which prevented proper operation of appliances, taping of drywall in multiple locations, and ensure that the patio was installed in accordance with code. 32. Plaintiffs, at the time these representations were made by Defendants and at the time Plaintiffs took the actions herein alleged, were ignorant of the falsity of Defendant's representations and believed them to be true. Plaintiffs could not, in the exercise of reasonable diligence, have discovered Defendant's false, secret intentions, and, had Plaintiffs known the actual facts of Defendants’ intent to defraud, deceive and inflict harm, Plaintiffs would not have closed on this transaction, which Defendants fraudulently induced them to do. 33. As a proximate result of Defendant's fraud, deceit, and intentional acts, and the facts herein alleged, Plaintiffs have been damaged in excess of $400,000.00 for which the Defendants jointly and severally are liable. 34. In doing the acts herein alleged, Defendants acted with oppression, fraud, malice, and intent to harm, all of which conduct persists today. Defendants are j ointly and severally liable to Plaintiffs for punitive damages in excess of $100,000. WHEREFORE, Plaintiffs pray for judgment against the Defendants, jointly and severally, and each of them, as follows: 1. For general damages in the sum of $400,000, including rescission of the Condominium Purchase Agreement, to also include refund of the down payment, bank loan and all fees and charges assessed the