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Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032
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IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
STEED HAMMOND PAUL, INC. CASE NO: 17-CV-001032
4805 Montgomery Road
Cincinnati, Ohio 45212 JUDGE: JEFFREY M. BROWN
Plaintiff,
vs. THIRD AMENDED COMPL.
BERARDI PARTNERS, INC.
1398 Goodale Boulevard
Columbus, Ohio 43212
Defendant.
Now comes Plaintiff Steed Hammond Paul, Inc. (“SHP”), and for its Complaint against
Defendant Berardi & Partners, Inc. (“Berardi”) states as follows
BACKGROUND
Plaintiff SHP is an Ohio corporation with its principal place of business located in
Cincinnati, Ohio. SHP is in the business of providing professional architectural services
to its clients.
Defendant Berardi is an Ohio entity with its principal place of business located in
Columbus, Ohio. Berardi also is in the business of providing professional architectural
services to clients
This lawsuit arises out of a construction project known as the Ohio State School for the
Blind and Ohio School for the Deaf Projects (the “Project”). Pursuant to a contract with
the Ohio School Facilities Commission (“OSFC”), SHP was the architect of record for the
Project and subcontracted responsibility for architectural design work pertaining to the
dormitory portion of the project, including being architect of record for that portion of the
project, to Berardi. In addition, Berardi was to provide some construction administration
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032
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services for the dormitory construction. Documents evidencing the contract between SHP
and Berardi are attached hereto as Exhibit 1 (collectively, the “Contract”). Berardi’s scope
of work included, but was not necessarily limited to, producing design documents and
responsibility for responding to requests for information, change orders, and providing
related information and documentation for the dormitory portion of the Project.
Berardi breached its contractual obligations by, inter alia, producing inaccurate drawings,
failing to timely respond to Requests for Information from those performing construction
services, and failing to produce updated drawings as required by SHP.
As a result of Berardi’s deficient performance of its contract, TransAmerica Building
Company, Inc. (“TransAmerica”), the general trades prime contractor on the Project filed
suit against the OSFC for its claimed losses resulting from Berardi’s acts and omissions
SHP was named as a third-party defendant in such action and filed fourth-party claims
against Berardi.
After a trial in the Ohio Court of Claims, a judgment was rendered against OSFC and in
favor of TransAmerica in a sum in excess of $1,800,000, plus pre- and post-judgment
interest. The third- and fourth-party claims were bifurcated and were not tried. Ultimately,
to avoid potential liability and additional defense costs and expenses, SHP entered into a
reasonable settlement agreement with TransAmerica and OSFC for the payment of
$971,700
As a result, SHP now brings the instant action against Berardi to recover the damages that
SHP incurred as a direct and proximate result of (a) the time spent and expenses incurred
to correct or address Berardi’s deficient work; (b) the time spent and expenses incurred to
address and defend lawsuits and legal claims that followed; and, (c) payments SHP had to
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032
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make to settle certain claims that were based on damages directly and proximately caused
by Berardi’s deficient work which were and continue to be the legal responsibility of
Berardi.
This Court has jurisdiction over the parties and claims and is the proper venue for this
lawsuit because the Project was located in Franklin County, Ohio; because Berardi’s
principal place of business is in Franklin County, Ohio; and because Berardi’s deficient
work that is the subject of SHP’s claims occurred mainly in Franklin County, Ohio.
COUNTI
BREACH OF CONTRACT
SHP incorporates its preceding allegations as if fully rewritten here.
10. SHP and Berardi entered into the aforementioned Contract in connection with the Project.
The Contract called for SHP to pay Berardi for its services, as described more fully in the
Contract.
11 The Contract further incorporated the requirement under Ohio law that Berardi perform its
architectural work reasonably and in accordance with professional standards of care
applicable to the architectural profession
12. SHP fully performed its obligations under the Contract.
13 Berardi failed to perform its obligations under the Contract as set forth above and therefore
breached such Contract, directly and proximately causing SHP to incur reasonable and
necessary expenses to correct Berardi’s deficient work, and in the defense and settlement
of the OSFC/TransAmerica claim
14. As a direct and proximate result of Berardi’s material breaches of its Contract, SHP has
sustained damages in excess of $25,000, the specific amount of which will be proven at
trial in this matter
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COUNT
PROFESSIONAL NEGLIGENCE
15 SHP incorporates its preceding allegations as if fully rewritten herein
16. Under Ohio law, the Contract between SHP and Berardi incorporated a duty that Berardi
perform its work reasonably and in accordance with professional standards of care
applicable in the architectural profession.
17. Berardi breached that duty, because its work on the Project fell below the applicable
standards of care in several respects as set forth above. By way of example, Berardi was
negligent in failing to provide accurate plans and specifications, failing to timely correct
plans and specifications that were incomplete or inaccurate when provided, and failing to
provide information requested by contractors regarding its design.
18 Asa direct and proximate result of Berardi’s negligent breaches of duty and failure to meet
the applicable standard of care, SHP has sustained damages in excess of $25,000 as
described above, the specific amount of which will be proven at trial in this matter.
COUNT II
INDEMNIFICATION OR CONTRIBUTION
19. SHP incorporates its preceding allegations as if fully rewritten herein.
20. TransAmerica filed a lawsuit in connection with the Project. SHP was one of the third-
party defendants in the TransAmerica lawsuit.
21 TransAmerica’s claims against SHP in the lawsuit were premised on Berardi’s deficient
work on the Project. As a result, SHP joined Berardi to the lawsuit and asserted fourth-
party claims against Berardi, including, but not limited to, a claim seeking indemnification
and/or contribution from Berardi
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22. Given the significant risks associated with a trial in the TransAmerica lawsuit, because of
the evidence that demonstrated the deficient nature of Berardi’s work, SHP entered into
settlement negotiations with TransAmerica and other interested parties in an attempt to
reach a fair and reasonable settlement. Despite SHP’s repeated requests, Berardi refused
to contribute any sums toward the settlement, even though it bore ultimate legal
responsibility for the claims that had been asserted against SHP.
23 In approximately May 2016, SHP provided a final written notice and demand to Berardi,
wherein SHP demanded that Berardi accept legal responsibility for and settle the pending
claims against SHP related to Berardi’s deficient work. SHP further advised Berardi that
TransAmerica was willing to accept a fair and reasonable amount to resolve such claims
In the notice and demand, SHP provided further details regarding the ongoing settlement
negotiations. Berardi once again rejected and/or failed to comply with SHP’s demand.
24. Ultimately, in repeatedly rejecting and/or failing to comply with SHP’s demands for
indemnification in connection with TransAmerica’s claims, Berardi placed SHP at risk of
increased liability over and above the amount(s) contemplated in the settlement
negotiations with TransAmerica. As a result, SHP moved forward with a fair and
reasonable settlement and fully paid the portion of the settlement attributed to the harm that
Berardi’s deficient work on the Project had caused.
25 As a direct and proximate result of Berardi’s refusal to indemnify SHP and/or contribute
in any meaningful way to the settlement, SHP has been damaged. SHP’s damages consist
of the settlement funds it had to pay on behalf of Berardi because of Berardi’s deficient
work, in the sum of $971,700, and its time spent, and attorney fees and other expenses
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incurred in defending against the TransAmerica/OSFC claims. SHP is, therefore, entitled
to indemnification in such amount, or contribution
WHEREFORE, Plaintiff SHP prays for Judgment against Defendant Berardi
1 On its First Claim for Relief in the amounts incurred by SHP in the defense and
settlement of the TransAmerica litigation, in a currently unliquidated sum in excess of $25,000;
2. In the alternative, on its Second Claim for Relief in the amounts incurred by SHP
in the defense and settlement of the TransAmerica litigation, in a currently unliquidated sum in
excess of $25,000;
3 In the alternative, on its Third Claim for Reliefin the amounts incurred by SHP in
the defense and settlement of the TransAmerica litigation as a result of Berardi’s professional
negligence, in a currently unliquidated sum in excess of $25,000.
SHP further prays for its reasonable attorney fees and expenses of this action, interest on
the above sums, and all other and further relief to which it may be entitled
Respectfully submitted,
AUMAN, MAHAN & FURRY
/s/David M. Rickert
David M. Rickert (0010483)
110 North Main Street; Suite 1000
Dayton, Ohio 45402
Phone: 937-223-6003
Fax: 937-223-8550
Email: dmr@amfdayton.com
Attorney for Plaintiff Steed Hammond Paul,
Ine.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032
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CERTIFICATE OF SERVICE
Thereby certify that on July 20, 2021, I electronically filed the foregoing with the Clerk of
the Court by using the ECF system which will send a notice of electronic filing to the following:
Bradley J. Barmen (0076515)
Theresa A. Sherman (0090971)
Lewis Brisbois Bisgaard and Smith, LLP
1375 East 9th Street, Suite 2250
Cleveland, OH 44114
T: 216-344-9422 F: 216-344-9421
Brad.Barmen@lewisbrisbois.com
Tera.Sherman@lewisbrisbois.com
Counsel for Defendant Berardi Partners, Inc.
/s/David M. Rickert
David M. Rickert (0010483)
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032 OF569 - H3 IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO CIVIL DIVISION STEED HAMMOND PAUL, INC. CASE NO: 17-CV-001032 4805 Montgomery Road Cincinnati, Ohio 45212 JUDGE: JEFFREY M. BROWN Plaintiff, vs. THIRD AMENDED COMPL. BERARDI PARTNERS, INC. 1398 Goodale Boulevard Columbus, Ohio 43212 Defendant. Now comes Plaintiff Steed Hammond Paul, Inc. (“SHP”), and for its Complaint against Defendant Berardi & Partners, Inc. (“Berardi”) states as follows BACKGROUND Plaintiff SHP is an Ohio corporation with its principal place of business located in Cincinnati, Ohio. SHP is in the business of providing professional architectural services to its clients. Defendant Berardi is an Ohio entity with its principal place of business located in Columbus, Ohio. Berardi also is in the business of providing professional architectural services to clients This lawsuit arises out of a construction project known as the Ohio State School for the Blind and Ohio School for the Deaf Projects (the “Project”). Pursuant to a contract with the Ohio School Facilities Commission (“OSFC”), SHP was the architect of record for the Project and subcontracted responsibility for architectural design work pertaining to the dormitory portion of the project, including being architect of record for that portion of the project, to Berardi. In addition, Berardi was to provide some construction administration Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032 OF569 - H3 services for the dormitory construction. Documents evidencing the contract between SHP and Berardi are attached hereto as Exhibit 1 (collectively, the “Contract”). Berardi’s scope of work included, but was not necessarily limited to, producing design documents and responsibility for responding to requests for information, change orders, and providing related information and documentation for the dormitory portion of the Project. Berardi breached its contractual obligations by, inter alia, producing inaccurate drawings, failing to timely respond to Requests for Information from those performing construction services, and failing to produce updated drawings as required by SHP. As a result of Berardi’s deficient performance of its contract, TransAmerica Building Company, Inc. (“TransAmerica”), the general trades prime contractor on the Project filed suit against the OSFC for its claimed losses resulting from Berardi’s acts and omissions SHP was named as a third-party defendant in such action and filed fourth-party claims against Berardi. After a trial in the Ohio Court of Claims, a judgment was rendered against OSFC and in favor of TransAmerica in a sum in excess of $1,800,000, plus pre- and post-judgment interest. The third- and fourth-party claims were bifurcated and were not tried. Ultimately, to avoid potential liability and additional defense costs and expenses, SHP entered into a reasonable settlement agreement with TransAmerica and OSFC for the payment of $971,700 As a result, SHP now brings the instant action against Berardi to recover the damages that SHP incurred as a direct and proximate result of (a) the time spent and expenses incurred to correct or address Berardi’s deficient work; (b) the time spent and expenses incurred to address and defend lawsuits and legal claims that followed; and, (c) payments SHP had to Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032 OF569 - H4 make to settle certain claims that were based on damages directly and proximately caused by Berardi’s deficient work which were and continue to be the legal responsibility of Berardi. This Court has jurisdiction over the parties and claims and is the proper venue for this lawsuit because the Project was located in Franklin County, Ohio; because Berardi’s principal place of business is in Franklin County, Ohio; and because Berardi’s deficient work that is the subject of SHP’s claims occurred mainly in Franklin County, Ohio. COUNTI BREACH OF CONTRACT SHP incorporates its preceding allegations as if fully rewritten here. 10. SHP and Berardi entered into the aforementioned Contract in connection with the Project. The Contract called for SHP to pay Berardi for its services, as described more fully in the Contract. 11 The Contract further incorporated the requirement under Ohio law that Berardi perform its architectural work reasonably and in accordance with professional standards of care applicable to the architectural profession 12. SHP fully performed its obligations under the Contract. 13 Berardi failed to perform its obligations under the Contract as set forth above and therefore breached such Contract, directly and proximately causing SHP to incur reasonable and necessary expenses to correct Berardi’s deficient work, and in the defense and settlement of the OSFC/TransAmerica claim 14. As a direct and proximate result of Berardi’s material breaches of its Contract, SHP has sustained damages in excess of $25,000, the specific amount of which will be proven at trial in this matter Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032 OF569 - H4 COUNT PROFESSIONAL NEGLIGENCE 15 SHP incorporates its preceding allegations as if fully rewritten herein 16. Under Ohio law, the Contract between SHP and Berardi incorporated a duty that Berardi perform its work reasonably and in accordance with professional standards of care applicable in the architectural profession. 17. Berardi breached that duty, because its work on the Project fell below the applicable standards of care in several respects as set forth above. By way of example, Berardi was negligent in failing to provide accurate plans and specifications, failing to timely correct plans and specifications that were incomplete or inaccurate when provided, and failing to provide information requested by contractors regarding its design. 18 Asa direct and proximate result of Berardi’s negligent breaches of duty and failure to meet the applicable standard of care, SHP has sustained damages in excess of $25,000 as described above, the specific amount of which will be proven at trial in this matter. COUNT II INDEMNIFICATION OR CONTRIBUTION 19. SHP incorporates its preceding allegations as if fully rewritten herein. 20. TransAmerica filed a lawsuit in connection with the Project. SHP was one of the third- party defendants in the TransAmerica lawsuit. 21 TransAmerica’s claims against SHP in the lawsuit were premised on Berardi’s deficient work on the Project. As a result, SHP joined Berardi to the lawsuit and asserted fourth- party claims against Berardi, including, but not limited to, a claim seeking indemnification and/or contribution from Berardi Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032 OF569 - H4 22. Given the significant risks associated with a trial in the TransAmerica lawsuit, because of the evidence that demonstrated the deficient nature of Berardi’s work, SHP entered into settlement negotiations with TransAmerica and other interested parties in an attempt to reach a fair and reasonable settlement. Despite SHP’s repeated requests, Berardi refused to contribute any sums toward the settlement, even though it bore ultimate legal responsibility for the claims that had been asserted against SHP. 23 In approximately May 2016, SHP provided a final written notice and demand to Berardi, wherein SHP demanded that Berardi accept legal responsibility for and settle the pending claims against SHP related to Berardi’s deficient work. SHP further advised Berardi that TransAmerica was willing to accept a fair and reasonable amount to resolve such claims In the notice and demand, SHP provided further details regarding the ongoing settlement negotiations. Berardi once again rejected and/or failed to comply with SHP’s demand. 24. Ultimately, in repeatedly rejecting and/or failing to comply with SHP’s demands for indemnification in connection with TransAmerica’s claims, Berardi placed SHP at risk of increased liability over and above the amount(s) contemplated in the settlement negotiations with TransAmerica. As a result, SHP moved forward with a fair and reasonable settlement and fully paid the portion of the settlement attributed to the harm that Berardi’s deficient work on the Project had caused. 25 As a direct and proximate result of Berardi’s refusal to indemnify SHP and/or contribute in any meaningful way to the settlement, SHP has been damaged. SHP’s damages consist of the settlement funds it had to pay on behalf of Berardi because of Berardi’s deficient work, in the sum of $971,700, and its time spent, and attorney fees and other expenses Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032 OF569 - H4 incurred in defending against the TransAmerica/OSFC claims. SHP is, therefore, entitled to indemnification in such amount, or contribution WHEREFORE, Plaintiff SHP prays for Judgment against Defendant Berardi 1 On its First Claim for Relief in the amounts incurred by SHP in the defense and settlement of the TransAmerica litigation, in a currently unliquidated sum in excess of $25,000; 2. In the alternative, on its Second Claim for Relief in the amounts incurred by SHP in the defense and settlement of the TransAmerica litigation, in a currently unliquidated sum in excess of $25,000; 3 In the alternative, on its Third Claim for Reliefin the amounts incurred by SHP in the defense and settlement of the TransAmerica litigation as a result of Berardi’s professional negligence, in a currently unliquidated sum in excess of $25,000. SHP further prays for its reasonable attorney fees and expenses of this action, interest on the above sums, and all other and further relief to which it may be entitled Respectfully submitted, AUMAN, MAHAN & FURRY /s/David M. Rickert David M. Rickert (0010483) 110 North Main Street; Suite 1000 Dayton, Ohio 45402 Phone: 937-223-6003 Fax: 937-223-8550 Email: dmr@amfdayton.com Attorney for Plaintiff Steed Hammond Paul, Ine. Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jul 20 11:10 AM-17CV001032 OF569 - H4 CERTIFICATE OF SERVICE Thereby certify that on July 20, 2021, I electronically filed the foregoing with the Clerk of the Court by using the ECF system which will send a notice of electronic filing to the following: Bradley J. Barmen (0076515) Theresa A. Sherman (0090971) Lewis Brisbois Bisgaard and Smith, LLP 1375 East 9th Street, Suite 2250 Cleveland, OH 44114 T: 216-344-9422 F: 216-344-9421 Brad.Barmen@lewisbrisbois.com Tera.Sherman@lewisbrisbois.com Counsel for Defendant Berardi Partners, Inc. /s/David M. Rickert David M. Rickert (0010483)