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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
REPEY BRIEF
August 2,2022 22:26
By: STEPHEN P. HANUDEL 0083486
Confirmation Nbr. 2617346
ASSUNTA ROSSI PERSONALTY REVOCABLE CV 21 944483
LIVING ET AL
vs.
Judge: MAUREEN CLANCY
D.J. KEEHANETAL
Pages Filed: 6
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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. )
) REPLY TO RESPONSE TO
D.J. KEEHAN ) MOTION FOR SUMMARY
) JUDGMENT
and )
)
WESTLAKE SHADOW CREEK, LLC, et al )
)
Defendants )
Defendants D.J. Keehan, Westlake Shadow Creek, LLC (“WSC”), Signature
Building Concepts, LLC (“SBC”), and Online Communications, LLC (“Online”), by and
through undersigned counsel, hereby reply to Plaintiffs’ response to Defendants’ Motion
for Summary Judgment.
Plaintiffs’ response mainly airs their frustrations that they felt during in the
construction process. They blame Keehan and WSC for those frustrations. However,
none of those frustrations add up to a breach of contract or any other legal claim.
Plaintiffs fail to point out what provision of the construction contract was
breached. Just because they conclusively assert that the contract was breached does
not make it so or even present a question of fact. They at least have to point out the part
of the contract that was allegedly breached and present evidence (construed in their
favor) to back that claim. However, they failed to do that. Mere frustration with Keehan
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and the construction does not in of itself present a question of fact on whether the
contract was breached.
Ultimately, the contract was completed. As for any delays, the contract expressly
states that “Seller shall not be liable for Seller's delay or failure to complete the Unit.”
The primary remedy to the buyer's dissatisfaction is for the buyer to rescind the contract
and demand a refund of any payment. However, the Trust did not do that. Instead, the
Trust repeatedly agreed to continue the completion date and eventually took title and
possession of the condo.
Plaintiffs do not address the Trust's admissions in the Residential Property
Disclosure Form when the Trust sold the condo in 2021. In that form, the Trust admitted
there were no defects to the property, including any such defects covered by the
warranty in the construction contract.
More specifically, the Trust admitted in the Residential Property Disclosure Form
that were no electrical defects. Yet, now all of the sudden, Traci and Rossi state in their
affidavits that there was allegedly an electrical issue that damaged a television. This is
the first time any such allegation has been made, despite the inquiries made in
discovery about the Plaintiffs' claims and alleged damages. Plaintiffs never previously
alleged an electrical defect in their complaint and amended complaints nor presented
any evidence of an electrical defect, television damage, or repair thereof.
With the Trust telling the buyer that there were no electrical defects in the condo,
there is now a serious question of whether the Trust lied to the buyer or whether
Plaintiffs are now making up new facts in the moment to get past summary judgment.
Remember, the Trust also told the buyer that this litigation was merely over “cosmetic
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issues which have already been addressed.” If there was truly an electrical defect, then
the Trust outright lied to buyer by stating that this case was merely about “cosmetic
issues.”
Given the Trust's previous denials of electrical defects in a legal real estate
document and the now sudden new self-serving allegation regarding the electrical
defect and TV damage without supportive evidence, the allegation cannot reasonably
be construed in Plaintiffs' favor.
Also in their affidavits, Traci and Rossi bring up for the first time that damage
occurred to the washing machine during its installation. This was never brought up
before nor alleged in the complaint and amended complaints. Even if true, this is not
covered by the construction contract.
Further, the sale of the condo means that any alleged defects to any fixtures is
passed onto the new owner. It is then up to the new owner on whether to bear the
expense of fixing the defect or pursue a legal claim. Plaintiffs have no standing to
pursue damages stemming from any such alleged defects. This includes the patio and
staircase.
Speaking of the patio, Plaintiffs separately sued the concrete contractor and
recovered. The separate suit, which did not involve Keehan or WSC, suggests that
Plaintiffs had their own contractual relationship with the contractor and that the
contractor was not a subcontractor of WSC or Keehan.
This means that Plaintiffs cannot recover against any Defendant for fraud. As
explained in Defendants' Motion for Summary Judgment, Plaintiffs also cannot recover
for fraud because any monetary claim, in context of the facts of this case, is contractual.
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Fraud cannot be asserted as a substitute for breach of contract. As previously
explained, Plaintiffs have not articulated what specific part of the contract was
breached.
Even if Plaintiffs could show a breach of contract or fraud, they have no damages
because as articulated in the Motion for Summary Judgment, Plaintiffs sold the condo
for $60,000 more than the purchase price. That $60,000 margin more than
compensated Plaintiffs for the monies they spent on fixtures. In other words, they have
been made whole and even came out ahead. Plaintiffs did not articulate how there is a
question of fact as to whether they still have any damage in light of the sale. Without
damage, Plaintiffs’ case cannot move forward.
To this end, the affidavit by Donald Grayem regarding the patio, when construed
in favor of Plaintiffs, does not matter because even if true, Plaintiffs still cannot recover
against Defendants for the aforementioned reasons regarding fraud and damages.
Lastly, Traci and Rossi have not articulated how they have standing to be parties
in this case. If any claim is to move forward, only the Trust can move forward with it
because only the Trust was a signatory to the construction contract and owner of the
condo.
Just because Traci and Rossi were involved in personal discussions with Keehan
does not mean they are parties to the contract or owners of the condo. Regardless of
the reasons, only the Trust signed the contract and only the Trust signed the condo.
Once again, by stating that Keehan somehow convinced them that they only the Trust
should sign (despite Traci and Rossi being attorneys and much more educated in law
than Keehan), Plaintiffs are conveniently asserting new self-serving facts in the
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moment. Besides, Plaintiffs’ previous residence was solely owned by the Trust and so is
their current residence. Having the Trust own the residence is a practice Plaintiffs have
regularly engaged in.
Besides, if the Trust were in the only Plaintiff as it should be, it can still assert all
the claims in the Second Amended Complaint. The only difference is that Traci cannot
litigate the case like he has been doing. The only reason Traci and Rossi inserted
themselves as parties is so that Traci, despite having an inactive license to practice law,
could litigate the case.
Civ. R. 56(E) states that “When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party’s pleadings, but the party’s response, by affidavit or
as otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial. If the party does not so respond, summary judgment, if
appropriate, shall be entered against the party.”
Despite the large number of words in their affidavits, Plaintiffs do not set forth
specific or material facts as to where there has been a breach of warranty in regards to
roof and structural components, and mechanical, electrical, plumbing, and common
service elements. As previously stated, their sudden new self-serving allegation of an
electrical defect cannot be construed in their favor given the more reliable evidence to
the contrary as well as the lack of supporting evidence.
This means that because Plaintiffs fail to point out what contractual provision was
breached and any specific or material facts that could be construed as any such breach,
this Court must enter judgment in favor of Defendants. The same goes for damages and
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standing. Plaintiffs fail to point out how they still have damage despite selling the condo
for an amount that more than covers all of their fixture expenditures. Traci and Rossi fail
to point out how mere personal discussions with Keehan entitles them to standing. As
for fraud, not only is there no outstanding damage, but since it cannot be used as a
substitute for breach of contract, it must be dismissed as a matter of law.
Last, but not least, Plaintiffs made no attempt to rebut WSC’s counterclaim for
the escrow money. Therefore, under Civ. R. 56(E), judgment should be rendered in
favor of WSC on this issue too.
When construing the evidence in Plaintiffs’ favor, there is no genuine issue of
material fact as to all of Plaintiffs’ claims and WSC’s counterclaim. Therefore,
Defendants Motion for Summary Judgment must be granted in itsentirety.
Respectfully submitted,
/s/ Stephen P. Hanudel____
Stephen P. Hanudel (#0083486)
124 Middle Avenue, Suite 900
Elyria, Ohio 44035
Phone: (440) 328-8973
Fax: (440) 261-4040
sph812@gmail.com
Attorney for D.J. Keehan, Westlake Shadow
Creek, LLC, Signature Building Concepts, LLC,
and Online Communications, LLC
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 August 2, 2022.
/s/ Stephen P. Hanudel____
Stephen P. Hanudel
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Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas REPEY BRIEF August 2,2022 22:26 By: STEPHEN P. HANUDEL 0083486 Confirmation Nbr. 2617346 ASSUNTA ROSSI PERSONALTY REVOCABLE CV 21 944483 LIVING ET AL vs. Judge: MAUREEN CLANCY D.J. KEEHANETAL Pages Filed: 6 Electronically Filed 08/02/2022 22:26 / BRIEF / CV 21 944483 / Confirmation Nbr. 2617346 / CLCKD 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. ) ) REPLY TO RESPONSE TO D.J. KEEHAN ) MOTION FOR SUMMARY ) JUDGMENT and ) ) WESTLAKE SHADOW CREEK, LLC, et al ) ) Defendants ) Defendants D.J. Keehan, Westlake Shadow Creek, LLC (“WSC”), Signature Building Concepts, LLC (“SBC”), and Online Communications, LLC (“Online”), by and through undersigned counsel, hereby reply to Plaintiffs’ response to Defendants’ Motion for Summary Judgment. Plaintiffs’ response mainly airs their frustrations that they felt during in the construction process. They blame Keehan and WSC for those frustrations. However, none of those frustrations add up to a breach of contract or any other legal claim. Plaintiffs fail to point out what provision of the construction contract was breached. Just because they conclusively assert that the contract was breached does not make it so or even present a question of fact. They at least have to point out the part of the contract that was allegedly breached and present evidence (construed in their favor) to back that claim. However, they failed to do that. Mere frustration with Keehan Electronically Filed 08/02/2022 22:26 / BRIEF / CV 21 944483 / Confirmation Nbr. 2617346 / CLCKD and the construction does not in of itself present a question of fact on whether the contract was breached. Ultimately, the contract was completed. As for any delays, the contract expressly states that “Seller shall not be liable for Seller's delay or failure to complete the Unit.” The primary remedy to the buyer's dissatisfaction is for the buyer to rescind the contract and demand a refund of any payment. However, the Trust did not do that. Instead, the Trust repeatedly agreed to continue the completion date and eventually took title and possession of the condo. Plaintiffs do not address the Trust's admissions in the Residential Property Disclosure Form when the Trust sold the condo in 2021. In that form, the Trust admitted there were no defects to the property, including any such defects covered by the warranty in the construction contract. More specifically, the Trust admitted in the Residential Property Disclosure Form that were no electrical defects. Yet, now all of the sudden, Traci and Rossi state in their affidavits that there was allegedly an electrical issue that damaged a television. This is the first time any such allegation has been made, despite the inquiries made in discovery about the Plaintiffs' claims and alleged damages. Plaintiffs never previously alleged an electrical defect in their complaint and amended complaints nor presented any evidence of an electrical defect, television damage, or repair thereof. With the Trust telling the buyer that there were no electrical defects in the condo, there is now a serious question of whether the Trust lied to the buyer or whether Plaintiffs are now making up new facts in the moment to get past summary judgment. Remember, the Trust also told the buyer that this litigation was merely over “cosmetic 2 Electronically Filed 08/02/2022 22:26 / BRIEF / CV 21 944483 / Confirmation Nbr. 2617346 / CLCKD issues which have already been addressed.” If there was truly an electrical defect, then the Trust outright lied to buyer by stating that this case was merely about “cosmetic issues.” Given the Trust's previous denials of electrical defects in a legal real estate document and the now sudden new self-serving allegation regarding the electrical defect and TV damage without supportive evidence, the allegation cannot reasonably be construed in Plaintiffs' favor. Also in their affidavits, Traci and Rossi bring up for the first time that damage occurred to the washing machine during its installation. This was never brought up before nor alleged in the complaint and amended complaints. Even if true, this is not covered by the construction contract. Further, the sale of the condo means that any alleged defects to any fixtures is passed onto the new owner. It is then up to the new owner on whether to bear the expense of fixing the defect or pursue a legal claim. Plaintiffs have no standing to pursue damages stemming from any such alleged defects. This includes the patio and staircase. Speaking of the patio, Plaintiffs separately sued the concrete contractor and recovered. The separate suit, which did not involve Keehan or WSC, suggests that Plaintiffs had their own contractual relationship with the contractor and that the contractor was not a subcontractor of WSC or Keehan. This means that Plaintiffs cannot recover against any Defendant for fraud. As explained in Defendants' Motion for Summary Judgment, Plaintiffs also cannot recover for fraud because any monetary claim, in context of the facts of this case, is contractual. 3 Electronically Filed 08/02/2022 22:26 / BRIEF / CV 21 944483 / Confirmation Nbr. 2617346 / CLCKD Fraud cannot be asserted as a substitute for breach of contract. As previously explained, Plaintiffs have not articulated what specific part of the contract was breached. Even if Plaintiffs could show a breach of contract or fraud, they have no damages because as articulated in the Motion for Summary Judgment, Plaintiffs sold the condo for $60,000 more than the purchase price. That $60,000 margin more than compensated Plaintiffs for the monies they spent on fixtures. In other words, they have been made whole and even came out ahead. Plaintiffs did not articulate how there is a question of fact as to whether they still have any damage in light of the sale. Without damage, Plaintiffs’ case cannot move forward. To this end, the affidavit by Donald Grayem regarding the patio, when construed in favor of Plaintiffs, does not matter because even if true, Plaintiffs still cannot recover against Defendants for the aforementioned reasons regarding fraud and damages. Lastly, Traci and Rossi have not articulated how they have standing to be parties in this case. If any claim is to move forward, only the Trust can move forward with it because only the Trust was a signatory to the construction contract and owner of the condo. Just because Traci and Rossi were involved in personal discussions with Keehan does not mean they are parties to the contract or owners of the condo. Regardless of the reasons, only the Trust signed the contract and only the Trust signed the condo. Once again, by stating that Keehan somehow convinced them that they only the Trust should sign (despite Traci and Rossi being attorneys and much more educated in law than Keehan), Plaintiffs are conveniently asserting new self-serving facts in the 4 Electronically Filed 08/02/2022 22:26 / BRIEF / CV 21 944483 / Confirmation Nbr. 2617346 / CLCKD moment. Besides, Plaintiffs’ previous residence was solely owned by the Trust and so is their current residence. Having the Trust own the residence is a practice Plaintiffs have regularly engaged in. Besides, if the Trust were in the only Plaintiff as it should be, it can still assert all the claims in the Second Amended Complaint. The only difference is that Traci cannot litigate the case like he has been doing. The only reason Traci and Rossi inserted themselves as parties is so that Traci, despite having an inactive license to practice law, could litigate the case. Civ. R. 56(E) states that “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.” Despite the large number of words in their affidavits, Plaintiffs do not set forth specific or material facts as to where there has been a breach of warranty in regards to roof and structural components, and mechanical, electrical, plumbing, and common service elements. As previously stated, their sudden new self-serving allegation of an electrical defect cannot be construed in their favor given the more reliable evidence to the contrary as well as the lack of supporting evidence. This means that because Plaintiffs fail to point out what contractual provision was breached and any specific or material facts that could be construed as any such breach, this Court must enter judgment in favor of Defendants. The same goes for damages and 5 Electronically Filed 08/02/2022 22:26 / BRIEF / CV 21 944483 / Confirmation Nbr. 2617346 / CLCKD standing. Plaintiffs fail to point out how they still have damage despite selling the condo for an amount that more than covers all of their fixture expenditures. Traci and Rossi fail to point out how mere personal discussions with Keehan entitles them to standing. As for fraud, not only is there no outstanding damage, but since it cannot be used as a substitute for breach of contract, it must be dismissed as a matter of law. Last, but not least, Plaintiffs made no attempt to rebut WSC’s counterclaim for the escrow money. Therefore, under Civ. R. 56(E), judgment should be rendered in favor of WSC on this issue too. When construing the evidence in Plaintiffs’ favor, there is no genuine issue of material fact as to all of Plaintiffs’ claims and WSC’s counterclaim. Therefore, Defendants Motion for Summary Judgment must be granted in itsentirety. Respectfully submitted, /s/ Stephen P. Hanudel____ Stephen P. Hanudel (#0083486) 124 Middle Avenue, Suite 900 Elyria, Ohio 44035 Phone: (440) 328-8973 Fax: (440) 261-4040 sph812@gmail.com Attorney for D.J. Keehan, Westlake Shadow Creek, LLC, Signature Building Concepts, LLC, and Online Communications, LLC 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 August 2, 2022. /s/ Stephen P. Hanudel____ Stephen P. Hanudel 6 Electronically Filed 08/02/2022 22:26 / BRIEF / CV 21 944483 / Confirmation Nbr. 2617346 / CLCKD