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Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Steed Hammond Paul, Inc., Case No.: 17-CV-001032
Plaintiff, Judge: JEFFREY M. BROWN
v ANSWER OF DEFENDANT TO
PLAINTIF °S THIRD AMENDED
Berardi Partners, Inc., COMPLAINT
Defendant (Jury Demand Endorsed Hereon)
Now comes Defendant Berardi Partners, Inc. (hereinafter as “Berardi”), by and through
undersigned counsel, and for its Answer to Plaintiff’ s Third Amended Complaint, states as follows
1 Defendant admits the allegations contained in Paragraph 1 of Plaintiff's Third
Amended Complaint
2 Defendant admits the allegations contained in Paragraph 2 of Plaintiff's Third
Amended Complaint.
3 Defendant admits SHP was the architect of record for the project and SHP retained
consultants for certain aspects of the project. Defendant denies all other allegations contained in
Paragraph 3 of Plaintiff's Third Amended Complaint and expressly denies it was ever the architect
of record for any portion of the Project.
4 Defendant denies all allegations contained in Paragraph 4 of Plaintiff's Third
Amended Complaint.
5 Defendant admits SHP was named as a Third-Party Defendant and Berardi a
Fourth-Party Defendant in the TransAmerica/OSFC action. Defendant denies all other allegations
contained in Paragraph 5 of Plaintiff's Third Amended Complaint
4819-0164-8372.1
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032
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6 Defendant admits that a judgment was entered in the Ohio Court of Claims against
OSFC in favor of Transamerica in a sum in excess of $1,800,000, plus pre and post judgment
interest. Defendant further admits that the third and fourth party claims in the Transamerica action
were bifurcated and were not tried. Defendant further admits that SHP entered into a settlement
with Transamerica and OSFC for the payment of $971,700. Defendant denies all remaining
allegations contained in Paragraph 6 of Plaintiff's Third Amended Complaint Specifically,
Defendant denies that SHP’s voluntary settlement with Transamerica and OSFC was reasonable.
7 Defendant denies all allegations contained in Paragraph 7 of Plaintiff's Third
Amended Complaint.
8 As Paragraph 8 of Plaintiff's Amended Complaint states a legal conclusion no
answer is required. To the extent that an answer is required, Defendant denies that any of its work
on the subject Project was deficient; however, Defendant does not challenge jurisdiction in this
matter.
COUNTI
BREACH OF CONTRACT!
COUNT II
PROFESSIONAL NEGLIGENCE
9 Defendant restates and realleges all prior admissions and denials as if fully
rewritten herein.
! Plaintiff's claim for breach of contract was previously dismissed pursuant to a July 20, 2017 Entry
granting Defendants 12(B)(6) Motion to Dismiss for failure to state a claim. (See July 20, 2017 Entry).
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032
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10. As Paragraph 16 of Plaintiff's Amended Complaint states a legal conclusion, no
action is required. To the extent an answer is required, Defendant denies the allegations contained
in Paragraph 16 of Plaintiff's Third Amended Complaint.
11 Defendant denies the allegations contained in Paragraph 17 of Plaintiff's Third
Amended Complaint.
12. Defendant denies the allegations contained in Paragraph 18 of Plaintiff's Third
Amended Complaint.
COUNT II
INDEMIFICATION OR CONTRIBUTION
13 Defendant restates and realleges all prior admissions and denials as if fully
rewritten herein
14. Defendant admits the allegations contained in Paragraph 20 of Plaintiff's Third
Amended Complaint.
15. Defendant admits that SHP joined Berardi to the underlying lawsuit asserting fourth
party claims. Defendant denies all other allegations contained in Paragraph 21 of Plaintiff's Third
Amended Complaint.
16. Defendant denies the allegations contained in Paragraph 22 of Plaintiff's Third
Amended Complaint.
17. Defendant is without sufficient information to admit or deny the allegations
contained in Paragraph 23 of Plaintiff's Third Amended Complaint and therefore denies same for
want of knowledge. Further answering, Defendant denies Plaintiff's demands were reasonable or
that Plaintiffs voluntary settlement with TransAmerica was reasonable.
18 Defendant is without sufficient information to admit or deny the allegations
contained in Paragraph 24 of Plaintiff’s Third Amended Complaint and therefore denies same for
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032
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want of knowledge. Further answering, Defendant expressly denies that it placed Plaintiff at risk
of increased liability over the amounts contemplated in Plaintiff's voluntary settlement with
Transamerica
19. Defendant denies all allegations contained in Paragraph 25 of Plaintiffs Third
Amended Complaint.
AFFIRMATIVE DEFENSES
1 Plaintiff's Third Amended Complaint fails to state a cause of action for which relief
is available.
2 Plaintiff has failed to mitigate its damages.
3 Plaintiff's indemnification and contribution claim is barred by its voluntary
settlement with Transamerica and/or OSFC
4 Plaintiff's professional negligence claim is barred by the applicable statue of
limitations
5 Plaintiff’s claims are barred by the underlying contract between Plaintiff and OSFC
as it is undisputed that Plaintiff maintained responsibility for all aspects of the architectural work
on a project, including work subcontracted to Defendant.
6 Plaintiff's claims are barred by the doctrine of latches, waiver and estoppel
7 Plaintiff's claims are barred by the doctrine of unclean hands.
8 Plaintiff's damages, if any, must be reduced by the percentage of its own
comparative fault
9 Defendant reserves the right to assert additional affirmative defense as warranted
through discovery.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032
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WHEREFORE, having answered, Defendant, Berardi Partners, Inc., respectfully requests
that Plaintiff's Third Amended Complaint be dismissed, with prejudice and at Plaintiff's costs.
DATED: August 2, 2021 Respectfully Submitted,
By: 4/Bradley J_Barmen
Bradley J. Barmen, Esq. (0076515)
Theresa A. Edwards, Esq. (0090971)
LEWIS BRISBOIS BISGAARD & SMITH LLP
1375 E. 9" Street, Suite 2250
Cleveland, Ohio 44114
Tel. 216.344.9422
Fax 216.344.9421
brad.barmen@lewisbrisbois.com
tera.edwards@lewisbrisbois.com
Attorneys for Defendant
Berardi Partners, Inc.
JURY DEMAND
Defendant hereby demands a trial by jury pursuant to Ohio Rules of Civil Procedure.
/s/ Bradley J. Barmen
Bradley J. Barmen, Esq. (0076515)
Theresa A. Edwards, Esq.(0090971)
Attommeys for Defendant
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032
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CERTIFICATE OF SERVICE
A copy of the foregoing Answer of Defendant to Plaintiffs Third Amended Complaint
has been served this 2nd day of August, 2021 via electronic mail to the following:
David M. Rickert, Esq.
Dunlevey Mahan & Furry
110 North Main Street, Suite 1000
Dayton, OH 45402
Attorney for Plaintiff
dmr@dmfdayton.com
/s/ Bradley J. Barmen
Bradley J. Barmen, Esq.
Theresa A. Edwards, Esq.
Attorneys for Defendant
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032 OF582 - R2 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Steed Hammond Paul, Inc., Case No.: 17-CV-001032 Plaintiff, Judge: JEFFREY M. BROWN v ANSWER OF DEFENDANT TO PLAINTIF °S THIRD AMENDED Berardi Partners, Inc., COMPLAINT Defendant (Jury Demand Endorsed Hereon) Now comes Defendant Berardi Partners, Inc. (hereinafter as “Berardi”), by and through undersigned counsel, and for its Answer to Plaintiff’ s Third Amended Complaint, states as follows 1 Defendant admits the allegations contained in Paragraph 1 of Plaintiff's Third Amended Complaint 2 Defendant admits the allegations contained in Paragraph 2 of Plaintiff's Third Amended Complaint. 3 Defendant admits SHP was the architect of record for the project and SHP retained consultants for certain aspects of the project. Defendant denies all other allegations contained in Paragraph 3 of Plaintiff's Third Amended Complaint and expressly denies it was ever the architect of record for any portion of the Project. 4 Defendant denies all allegations contained in Paragraph 4 of Plaintiff's Third Amended Complaint. 5 Defendant admits SHP was named as a Third-Party Defendant and Berardi a Fourth-Party Defendant in the TransAmerica/OSFC action. Defendant denies all other allegations contained in Paragraph 5 of Plaintiff's Third Amended Complaint 4819-0164-8372.1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032 OF582 - R2 6 Defendant admits that a judgment was entered in the Ohio Court of Claims against OSFC in favor of Transamerica in a sum in excess of $1,800,000, plus pre and post judgment interest. Defendant further admits that the third and fourth party claims in the Transamerica action were bifurcated and were not tried. Defendant further admits that SHP entered into a settlement with Transamerica and OSFC for the payment of $971,700. Defendant denies all remaining allegations contained in Paragraph 6 of Plaintiff's Third Amended Complaint Specifically, Defendant denies that SHP’s voluntary settlement with Transamerica and OSFC was reasonable. 7 Defendant denies all allegations contained in Paragraph 7 of Plaintiff's Third Amended Complaint. 8 As Paragraph 8 of Plaintiff's Amended Complaint states a legal conclusion no answer is required. To the extent that an answer is required, Defendant denies that any of its work on the subject Project was deficient; however, Defendant does not challenge jurisdiction in this matter. COUNTI BREACH OF CONTRACT! COUNT II PROFESSIONAL NEGLIGENCE 9 Defendant restates and realleges all prior admissions and denials as if fully rewritten herein. ! Plaintiff's claim for breach of contract was previously dismissed pursuant to a July 20, 2017 Entry granting Defendants 12(B)(6) Motion to Dismiss for failure to state a claim. (See July 20, 2017 Entry). Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032 OF582 - R2 10. As Paragraph 16 of Plaintiff's Amended Complaint states a legal conclusion, no action is required. To the extent an answer is required, Defendant denies the allegations contained in Paragraph 16 of Plaintiff's Third Amended Complaint. 11 Defendant denies the allegations contained in Paragraph 17 of Plaintiff's Third Amended Complaint. 12. Defendant denies the allegations contained in Paragraph 18 of Plaintiff's Third Amended Complaint. COUNT II INDEMIFICATION OR CONTRIBUTION 13 Defendant restates and realleges all prior admissions and denials as if fully rewritten herein 14. Defendant admits the allegations contained in Paragraph 20 of Plaintiff's Third Amended Complaint. 15. Defendant admits that SHP joined Berardi to the underlying lawsuit asserting fourth party claims. Defendant denies all other allegations contained in Paragraph 21 of Plaintiff's Third Amended Complaint. 16. Defendant denies the allegations contained in Paragraph 22 of Plaintiff's Third Amended Complaint. 17. Defendant is without sufficient information to admit or deny the allegations contained in Paragraph 23 of Plaintiff's Third Amended Complaint and therefore denies same for want of knowledge. Further answering, Defendant denies Plaintiff's demands were reasonable or that Plaintiffs voluntary settlement with TransAmerica was reasonable. 18 Defendant is without sufficient information to admit or deny the allegations contained in Paragraph 24 of Plaintiff’s Third Amended Complaint and therefore denies same for Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032 OF582 - R2 want of knowledge. Further answering, Defendant expressly denies that it placed Plaintiff at risk of increased liability over the amounts contemplated in Plaintiff's voluntary settlement with Transamerica 19. Defendant denies all allegations contained in Paragraph 25 of Plaintiffs Third Amended Complaint. AFFIRMATIVE DEFENSES 1 Plaintiff's Third Amended Complaint fails to state a cause of action for which relief is available. 2 Plaintiff has failed to mitigate its damages. 3 Plaintiff's indemnification and contribution claim is barred by its voluntary settlement with Transamerica and/or OSFC 4 Plaintiff's professional negligence claim is barred by the applicable statue of limitations 5 Plaintiff’s claims are barred by the underlying contract between Plaintiff and OSFC as it is undisputed that Plaintiff maintained responsibility for all aspects of the architectural work on a project, including work subcontracted to Defendant. 6 Plaintiff's claims are barred by the doctrine of latches, waiver and estoppel 7 Plaintiff's claims are barred by the doctrine of unclean hands. 8 Plaintiff's damages, if any, must be reduced by the percentage of its own comparative fault 9 Defendant reserves the right to assert additional affirmative defense as warranted through discovery. Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032 OF582 - R2 WHEREFORE, having answered, Defendant, Berardi Partners, Inc., respectfully requests that Plaintiff's Third Amended Complaint be dismissed, with prejudice and at Plaintiff's costs. DATED: August 2, 2021 Respectfully Submitted, By: 4/Bradley J_Barmen Bradley J. Barmen, Esq. (0076515) Theresa A. Edwards, Esq. (0090971) LEWIS BRISBOIS BISGAARD & SMITH LLP 1375 E. 9" Street, Suite 2250 Cleveland, Ohio 44114 Tel. 216.344.9422 Fax 216.344.9421 brad.barmen@lewisbrisbois.com tera.edwards@lewisbrisbois.com Attorneys for Defendant Berardi Partners, Inc. JURY DEMAND Defendant hereby demands a trial by jury pursuant to Ohio Rules of Civil Procedure. /s/ Bradley J. Barmen Bradley J. Barmen, Esq. (0076515) Theresa A. Edwards, Esq.(0090971) Attommeys for Defendant Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Aug 02 1:35 PM-17CV001032 OF582 - R3 CERTIFICATE OF SERVICE A copy of the foregoing Answer of Defendant to Plaintiffs Third Amended Complaint has been served this 2nd day of August, 2021 via electronic mail to the following: David M. Rickert, Esq. Dunlevey Mahan & Furry 110 North Main Street, Suite 1000 Dayton, OH 45402 Attorney for Plaintiff dmr@dmfdayton.com /s/ Bradley J. Barmen Bradley J. Barmen, Esq. Theresa A. Edwards, Esq. Attorneys for Defendant