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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS
GENERAL DIVISION
Steed Hammond Paul, Inc.,
Plaintiff, : Case No. 17-CV-001032
vs. : Judge Jeffrey M. Brown
Berardi Partners, Inc.,
Defendants.
ENTRY GRANTING DEFENDANT’S MOTION TO DISMISS COUNT IL OF
PLAINTIFF’S AMENDED COMPLAINT
BROWN, J.
This matter comes before the Court on Defendant Berardi Partners, Inc.’s (“Berardi”)
Motion to Dismiss Count I of Plaintiff Steed Hammond Paul, Inc.’s (“SHP”) Amended Complaint
filed on April 3, 2017. SHP filed its Memo in Opposition on April 14, 2017, and Berardi filed its
Reply on April 21, 2017. The matter is now ripe for adjudication. For the reasons that follow,
Berardi’s Motion to Dismiss Count I is GRANTED.
I. BACKGROUND
This case arises out of a construction project at the Ohio State School for the Blind and
Ohio School for the Deaf. (March 20, 2017 Am. Compl. at § 3.) “SHP is in the business of
providing professional architectural services,” as is Berardi. (Am. Compl. at fj 1, 2.) SHP
contracted with the Ohio School Facilities Commission (“OSFC”) to be the “architect of record”
for the project. /d. SHP states that it subcontracted the architectural design work for the dormitory
portion of the project to Berardi. /d. Additionally, SHP states that Berardi also “was to provide
some construction administration services for the dormitory construction.” /d. The scope of theFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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work Berardi was to perform, according to SHP, included “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.” /d.
The instant case is not the first time that SHP and Berardi were adversaries in litigation
stemming from the above-referenced construction project. TransAmerica Building Company, Inc.
("TransAmerica"), the general trades prime contractor on the project, filed suit against OSFC in
the Court of Claims. (Am. Compl. at § 5-6.) SHP was named as a third-party defendant in said
action, and filed fourth-party claims against Berardi. /d. The Court of Claims rendered judgment
against OSFC and in favor of TransAmerica in an amount in excess of $1,800,000, plus pre-
judgment and post-judgment interest. /d. According to SHP’s Amended Complaint, the third and
fourth-party claims were bifurcated and not tried. (Am. Compl. at { 6.) SHP states that it entered
into a settlement with TransAmerica and OSFC “to avoid potential liability and additional defense
costs and expenses.” /d. The settlement called for SHP to pay $971,000. Jd.
SHP contends that “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.” (Am. Compl
at J 4.) As a result of the action in the Court of Claims and its obligations under the resultant
settlement agreement, SHP filed the instant matter against Berardi to recover damages SHP claims
are
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 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.
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(Am. Compl. at 7.)
Count I of SHP’s Complaint is a claim for a breach of Berardi’s alleged contractual
obligations. The alleged contract between SHP and Berardi was not attached to SHP’s initial
Complaint as required by Civ.R. 10(D)(1). In fact, SHP’s Amended Complaint was filed in
response to this Court’s March 16, 2017 Entry granting Berardi’s Motion for More Definite
Statement due to SHP’s failure to attach to its Complaint a copy of the contract upon which its
claim for relief is based
But instead of attaching a copy of the contract to the Amended Complaint, SHP attached
as Exhibit 1 “[d]Jocuments evidencing the contract between SHP and Berardi.” (Am. Compl. at J
3.) Both parties refer to these documents as “letters,” but they disagree as to whether the letters
establish the existence of a contract upon which SHP’s claim for breach could be granted.
A. First Letter Dated June 5, 2007
The first “letter” is a memorandum to George Berardi from SHP Project Manager Josh
Predovich regarding “OSB/OSD SD Housing Design Services Fees," which begins with an
introductory paragraph stating: “Below is our attempt at laying out design service fees.” (Ex.1,
Am. Compl.) The letter asks Berardi to “review and be prepared to discuss after our design team
update meeting on Thursday.” /d. The letter identifies a fee structure, and SHP specifically
indicates that Berardi could be paid $125,258.25 for “SD! Housing design services.” /d. at 1, | 3.
Additionally, the letter contains a list of “Assumptions,” including that “Berardi & Partners will
perform MEP” and limited technology design in house and coordinate systems with Dynamix.” /d.
' Schematic design. (See PIf.’s Memo in Opp. to Mot. to Dismiss at 3.)
Mechanical, electrical, and plumbing. (See Plf.’s Memo in Opp. to Mot. to Dismiss at 3.)
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at 1-2, | 4B. SHP Project Manager Joshua L. Predovich is the only signatory to the memo. /d. at
2.
Berardi argues that this first “letter merely shows the parties are having a preliminary
discussion of unspecified services; there is no indication of exactly what Berardi is to do.” (Mot
to Dismiss at 3.) SHP counters that the letter sufficiently establishes the requirements for a binding
contract because it identifies the parties and the subject matter as “the housing component of the
Ohio State School for the Blind and Ohio School for the Deaf project, including MEP and limited
technology design but not structural design.” (PIf,’s Memo in Opp. to Mot. to Dismiss at 3, citing
Ex.1, Am. Compl.)
B. Second Letter Dated June 17, 2011
The second letter, also from Predovich, is addressed to Berardi Project Manager Roland
Matias and entitled, “Additional Services Fee Agreement.” (Ex. 2, Am. Compl. at 1.) The letter
outlines the parties’ fee agreement that they “reviewed during [their] phone conversations” and
SHP’s “accounting of the fee paid and owed to B+P.” /d. It also contains an “Additional Services
Agreement” for “Redesign services.” /d. Further, SHP requests a meeting with Berardi to review
billing in order to ensure the parties were “in agreement on the invoicing numbers to date and the
work required to complete the contract.” /d. at 2. SHP concludes the letter by asking Berardi to
“send back a signed copy acknowledging [Berardi’s] acceptance of the additional services fee
agreement.” /d. It even contains a signature line to indicate “Accepted” and the date on which
Berardi signed the letter. The letter attached to SHP’s Amended Complaint is not signed by
Berardi, however; Predovich is the only signatory.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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SHP claims that the four-year time span between the two communications “evidences that
the parties knew what work was entailed by their contract” due to the fact that during said time
period “over $206,000 in fees was invoiced by Berardi and paid by SHP.” (PIf.’s Memo in Opp.
to Mot. to Dismiss at 4.)
Il. | MOTION TO DISMISS, CIV.R. 12(B)(6)
A motion to dismiss for failure to state a claim upon which relief can be granted pursuant
to Civ. R. 12(B)(6) tests the sufficiency of the pleading. Harvest Credit Mgmt. VII v. Ryan, 10th
Dist. No. O9AP-1163, 2010-Ohio-5260, § 4. Dismissal for failure to state a claim upon which
relief can be granted is proper only if it appears beyond doubt that a plaintiff can prove no set of
facts warranting relief. /d., citing O Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d
242, 327 N.E.2d 753 (1975), syllabus. The Court’s review is confined to the allegations in the
complaint and the Court may not consider other allegations, evidence, or considerations that are
outside of the pleading. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985
(1997). Documents attached to or incorporated into the pleading (even if not attached) can be
considered on a 12(B)(6) motion. Lisboa v. Lisboa, 8th Dist. No. 95673, 2011-Ohio-351, § 38. In
reviewing such a motion, this court must presume that the facts alleged in the complaint are true
and all reasonable inferences must be made in favor of the non-moving party. /d. Unsupported
legal conclusions, on the other hand, are not considered admitted and are not sufficient to withstand
a motion to dismiss. See, e.g., State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639
(1989).Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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Til. ANALYSIS
A contract is generally defined as a promise, or a set of promises, actionable upon breach
Minster Farmers Coop. Exch. Co. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, { 28. “Essential
elements of a contract include an offer, acceptance, contractual capacity, consideration (the
bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of
object and of consideration.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, J 16, quoting
Perlmuter Printing Co. v. Strome, Inc., 436 F Supp. 409, 414 (N.D.Ohio 1976.). An enforceable
contract must be “specific as to its essential terms, such as the identity of the parties to be bound,
the subject matter of the contract, consideration, a quantity term, and a price term.” Alligood v.
Procter & Gamble Co., 72 Ohio App.3d 309, 311 (Ist.Dist. 1991). “[I]f the parties' manifestations
taken together as making up the contract, when reasonably interpreted in the light of all the
circumstances, do not enable the court to determine what the agreement is and to enforce it without,
in effect, 'making a contract for the parties,’ no enforceable obligation results.” Litsinger Sign Co.
vy. American Sign Co., 11 Ohio St.2d 1, 14 (1967).
“[T]o prove a breach of contract, a plaintiff must establish the existence and terms of a
contract, the plaintiff's performance of the contract, the defendant's breach of the contract, and
damage or loss to the plaintiff.” Samadder v. DMF of Ohio, Inc., 154 Ohio App. 3d 770, 2003-
Ohio-5340, 798 N.E.2d 1141, 27 (10th Dist.), citing Powell v. Grant Med. Ctr., 148 Ohio App.3d
1, 2002-Ohio-443, 771 N.E.2d 874, § 27 (10th Dist.). A plaintiff can show breach by demonstrating
the defendant’s failure to perform one or more terms of a contract. 7ranscon. Ins. Co. v. Exxcel
Project Mgmt., 10th Dist. Franklin No. 04AP-1243, 2005-Ohio-5081, | 13, citing Little Eagle
Prop. v. Ryan, 10th Dist. Franklin No. 03 AP-923, 2004-Ohio-3830.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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As mentioned above, the Court afforded SHP the opportunity to provide a copy of the
written contract upon which its claim for breach is based in the Entry granting Berardi’s Motion
for More Definite Statement. SHP provided only the two “letters” as “documents evidencing in
part the parties’ contract.” (PIf.’s Memo in Opp. to Mot. for More Definite Stmt.) This leads the
Court to the inescapable conclusion, consistent with Berardi’s concession that the parties merely
had an “oral understanding for which payment was made by SHP*,” that the documents appended
to SHP’s Amended Complaint are the only writings associated with the alleged contract. See
Landskroner y. Landskroner, 154 Ohio App.3d 471, 482, 2003-Ohio-5077, { 18 (8th Dist.).
The two documents attached to SHP’s Amended Complaint do not establish the existence
of a written contract between the parties. The “letters” only touch on one area of the purported
contract between the parties: the fees SHP would pay Berardi. Even then the letters do not establish
mutual assent. The first letter is SHP’s “attempt at laying out design service fees” and asks Berardi
to “be prepared to discuss.” Berardi is correct that the letter merely shows the existence of
preliminary discussions of indefinite services, without any acceptance by Berardi.
SHP claims its contract with Berardi “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.” (Am. Compl. at § 11.) It states that “[t]he crux
of the issue in this case is whether [Berardi’s] services were performed in accordance with the
standard of care. If not, such breach violated a term of their contract which was implied by law.”
(PIf.’s Memo in Opp. to Mot. to Dismiss at 4.) But, as Berardi correctly notes, SHP cannot establish
that Berardi failed to perform its obligations under the contract in accordance with the standard of
> Def.’s Reply in Support of Mot. to Dismiss at 3.
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care because it has not demonstrated what those alleged obligations were. SHP’s allegations in its
Amended Complaint of the services Berardi was to perform or the services it performed deficiently
are not supported by the attached letters.
“When the terms of a contract are not sufficiently definite, the contract is unenforceable.”
Nilvar v. Osborn, 137 Ohio App.3d 469, 487 (2d. Dist. 2000), citing Isquick v. Classic Autoworks,
Inc., 89 Ohio App.3d 767, 772 (8th Dist. 1993.). The terms are “sufficiently certain or definite
where they ‘provide a basis for determining the existence of a breach and for giving an appropriate
remedy.’” Nilvar at 487, citing Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169 (8th Dist
1983.). SHP claims Beradi breached its contractual obligations by 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. But nowhere in the two letters SHP
submits as documents evidencing the parties’ contract are these obligations against Berardi set
forth. Even SHP claims that the services for which it paid Berardi are “more fully described in the
Contract.” (Am. Compl. at § 10.) But SHP did not supply the alleged contract and is therefore
unable to prove Berardi’s breach.
SHP argues that uncertainty as to incidental or collateral matters are seldom fatal to the
existence of a contract. (PIf.’s Memo in Opp. to Mot. to Dismiss at 2, citing Ni/var, supra; Mr.
Mark Corp. v. Rush, Inc. 11 Ohio App.3d 167 (8th Dist. 1983.) But the letters SHP submits as
evidence of the contract are missing well more than incidental or collateral terms. As previously
stated, the letters only identify a fee structure. There are no set of facts supported by the attached
letters to SHP's Amended Complaint which form any written contract between the parties. Neither
letter shows: (1) a single term which can be determined or enforced; (2) any of the essentialFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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elements required to form a written contract; or (3) a meeting of the minds between SHP and
Berardi of any terms, let alone essential terms, of any written contract.
SHP also argues that Berardi’s acceptance of the agreement can be established by its
performance of work, as evidenced by the four-year span between the two letters. It is true that
“[c]onduct sufficient to show agreement, including performance, is a reasonable mode of
acceptance.” General Metal Heat Treating, Inc. v. Precision Gear LLC, Cuyahoga C.P. Nos. CV
11 759959 and CV 11 760036, 2013 Ohio Misc. LEXIS 8 (February 11, 2013), citing G.
Herschman Architects v. Ringco Mfg. Co., 8th Dist. Cuyahoga No. 67758, 1995 Ohio App. LEXIS
1940 (May 11, 1995.). Although a signed writing by the offeree is the preferred method for
establishing acceptance, the fact that a party does not signify acceptance by executing an
agreement does not necessarily result in the unenforceability of an agreement. Berjian v. Telephone
Co., 54 Ohio St.2d 147, 150 (1978). But Berardi’s performance does not change the conclusion
that SHP cannot establish Berardi’s breach without providing the Court with the essential terms of
the agreement—the services that SHP would pay Berardi to perform
SHP’s claims for failing to perform in accordance with the applicable professional
standards sound in tort rather than contract. Isquick v. Classic Autoworks, Inc., 89 Ohio App.3d
767, 772 (8th Dist. 1993.) “[T]he standards of reasonable care, which apply to the conduct of
architects, are the same as those applying to lawyers, doctors, engineers, and like professional men
engaged in furnishing skilled services for compensation * * * and that general negligence
principles apply * * *.” Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 477
(8th Cir.1968), citing Peerless Ins. Co. v. Cerny & Assoc., Inc., 199 F.Supp 951, 953-54 (D.Minn.
1961.).
IV. CONCLUSIONFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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Applying the standard of review applicable to a motion to dismiss, the Court finds that
SHP’s Amended Complaint fails to establish that it can prove breach of contract by Berardi
because it has not established the terms of the alleged agreement. The unsupported legal conclusion
that Berardi breached the parties’ contract is not sufficient to survive the motion to dismiss. The
essential terms to the contract simply cannot be established without reference to evidence or other
materials beyond SHP’s Amended Complaint. Based upon the foregoing, Berardi’s Motion to
Dismiss is well-taken and hereby GRANTED. Count I of SHP’s Amended Complaint is
accordingly DISMISSED. This case should proceed on the remaining claims set forth in the
Amended Complaint.
IT IS SO ORDERED.
Copy electronically to all counsel.
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Franklin County Court of Common Pleas
Date: 07-20-2017
Case Title: STEED HAMMOND PAUL INC -VS- BERARDI PARTNERS INC
Case Number: 17CV001032
Type: DISMISS CERTAIN COUNTS OF COMPLAINT
It Is So Ordered.
Dah Wy bane
/s/ Judge Jeffrey M. Brown
Electronically signed on 2017-Jul-20 page 11 of 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032
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Court Disposition
Case Number: 17CV001032
Case Style: STEED HAMMOND PAUL INC -VS- BERARDI
PARTNERS INC
Motion Tie Off Information:
1. Motion CMS Document Id: 17CV0010322017-04-0399970000
Document Title: 04-03-2017-MOTION TO DISMISS -
DEFENDANT: BERARDI PARTNERS INC
Disposition: MOTION GRANTED
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T67 IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS GENERAL DIVISION Steed Hammond Paul, Inc., Plaintiff, : Case No. 17-CV-001032 vs. : Judge Jeffrey M. Brown Berardi Partners, Inc., Defendants. ENTRY GRANTING DEFENDANT’S MOTION TO DISMISS COUNT IL OF PLAINTIFF’S AMENDED COMPLAINT BROWN, J. This matter comes before the Court on Defendant Berardi Partners, Inc.’s (“Berardi”) Motion to Dismiss Count I of Plaintiff Steed Hammond Paul, Inc.’s (“SHP”) Amended Complaint filed on April 3, 2017. SHP filed its Memo in Opposition on April 14, 2017, and Berardi filed its Reply on April 21, 2017. The matter is now ripe for adjudication. For the reasons that follow, Berardi’s Motion to Dismiss Count I is GRANTED. I. BACKGROUND This case arises out of a construction project at the Ohio State School for the Blind and Ohio School for the Deaf. (March 20, 2017 Am. Compl. at § 3.) “SHP is in the business of providing professional architectural services,” as is Berardi. (Am. Compl. at fj 1, 2.) SHP contracted with the Ohio School Facilities Commission (“OSFC”) to be the “architect of record” for the project. /d. SHP states that it subcontracted the architectural design work for the dormitory portion of the project to Berardi. /d. Additionally, SHP states that Berardi also “was to provide some construction administration services for the dormitory construction.” /d. The scope of theFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T68 work Berardi was to perform, according to SHP, included “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.” /d. The instant case is not the first time that SHP and Berardi were adversaries in litigation stemming from the above-referenced construction project. TransAmerica Building Company, Inc. ("TransAmerica"), the general trades prime contractor on the project, filed suit against OSFC in the Court of Claims. (Am. Compl. at § 5-6.) SHP was named as a third-party defendant in said action, and filed fourth-party claims against Berardi. /d. The Court of Claims rendered judgment against OSFC and in favor of TransAmerica in an amount in excess of $1,800,000, plus pre- judgment and post-judgment interest. /d. According to SHP’s Amended Complaint, the third and fourth-party claims were bifurcated and not tried. (Am. Compl. at { 6.) SHP states that it entered into a settlement with TransAmerica and OSFC “to avoid potential liability and additional defense costs and expenses.” /d. The settlement called for SHP to pay $971,000. Jd. SHP contends that “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.” (Am. Compl at J 4.) As a result of the action in the Court of Claims and its obligations under the resultant settlement agreement, SHP filed the instant matter against Berardi to recover damages SHP claims are 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 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. 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T69 (Am. Compl. at 7.) Count I of SHP’s Complaint is a claim for a breach of Berardi’s alleged contractual obligations. The alleged contract between SHP and Berardi was not attached to SHP’s initial Complaint as required by Civ.R. 10(D)(1). In fact, SHP’s Amended Complaint was filed in response to this Court’s March 16, 2017 Entry granting Berardi’s Motion for More Definite Statement due to SHP’s failure to attach to its Complaint a copy of the contract upon which its claim for relief is based But instead of attaching a copy of the contract to the Amended Complaint, SHP attached as Exhibit 1 “[d]Jocuments evidencing the contract between SHP and Berardi.” (Am. Compl. at J 3.) Both parties refer to these documents as “letters,” but they disagree as to whether the letters establish the existence of a contract upon which SHP’s claim for breach could be granted. A. First Letter Dated June 5, 2007 The first “letter” is a memorandum to George Berardi from SHP Project Manager Josh Predovich regarding “OSB/OSD SD Housing Design Services Fees," which begins with an introductory paragraph stating: “Below is our attempt at laying out design service fees.” (Ex.1, Am. Compl.) The letter asks Berardi to “review and be prepared to discuss after our design team update meeting on Thursday.” /d. The letter identifies a fee structure, and SHP specifically indicates that Berardi could be paid $125,258.25 for “SD! Housing design services.” /d. at 1, | 3. Additionally, the letter contains a list of “Assumptions,” including that “Berardi & Partners will perform MEP” and limited technology design in house and coordinate systems with Dynamix.” /d. ' Schematic design. (See PIf.’s Memo in Opp. to Mot. to Dismiss at 3.) Mechanical, electrical, and plumbing. (See Plf.’s Memo in Opp. to Mot. to Dismiss at 3.) 3Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T70 at 1-2, | 4B. SHP Project Manager Joshua L. Predovich is the only signatory to the memo. /d. at 2. Berardi argues that this first “letter merely shows the parties are having a preliminary discussion of unspecified services; there is no indication of exactly what Berardi is to do.” (Mot to Dismiss at 3.) SHP counters that the letter sufficiently establishes the requirements for a binding contract because it identifies the parties and the subject matter as “the housing component of the Ohio State School for the Blind and Ohio School for the Deaf project, including MEP and limited technology design but not structural design.” (PIf,’s Memo in Opp. to Mot. to Dismiss at 3, citing Ex.1, Am. Compl.) B. Second Letter Dated June 17, 2011 The second letter, also from Predovich, is addressed to Berardi Project Manager Roland Matias and entitled, “Additional Services Fee Agreement.” (Ex. 2, Am. Compl. at 1.) The letter outlines the parties’ fee agreement that they “reviewed during [their] phone conversations” and SHP’s “accounting of the fee paid and owed to B+P.” /d. It also contains an “Additional Services Agreement” for “Redesign services.” /d. Further, SHP requests a meeting with Berardi to review billing in order to ensure the parties were “in agreement on the invoicing numbers to date and the work required to complete the contract.” /d. at 2. SHP concludes the letter by asking Berardi to “send back a signed copy acknowledging [Berardi’s] acceptance of the additional services fee agreement.” /d. It even contains a signature line to indicate “Accepted” and the date on which Berardi signed the letter. The letter attached to SHP’s Amended Complaint is not signed by Berardi, however; Predovich is the only signatory.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T71 SHP claims that the four-year time span between the two communications “evidences that the parties knew what work was entailed by their contract” due to the fact that during said time period “over $206,000 in fees was invoiced by Berardi and paid by SHP.” (PIf.’s Memo in Opp. to Mot. to Dismiss at 4.) Il. | MOTION TO DISMISS, CIV.R. 12(B)(6) A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Civ. R. 12(B)(6) tests the sufficiency of the pleading. Harvest Credit Mgmt. VII v. Ryan, 10th Dist. No. O9AP-1163, 2010-Ohio-5260, § 4. Dismissal for failure to state a claim upon which relief can be granted is proper only if it appears beyond doubt that a plaintiff can prove no set of facts warranting relief. /d., citing O Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. The Court’s review is confined to the allegations in the complaint and the Court may not consider other allegations, evidence, or considerations that are outside of the pleading. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Documents attached to or incorporated into the pleading (even if not attached) can be considered on a 12(B)(6) motion. Lisboa v. Lisboa, 8th Dist. No. 95673, 2011-Ohio-351, § 38. In reviewing such a motion, this court must presume that the facts alleged in the complaint are true and all reasonable inferences must be made in favor of the non-moving party. /d. Unsupported legal conclusions, on the other hand, are not considered admitted and are not sufficient to withstand a motion to dismiss. See, e.g., State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989).Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T72 Til. ANALYSIS A contract is generally defined as a promise, or a set of promises, actionable upon breach Minster Farmers Coop. Exch. Co. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, { 28. “Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, J 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F Supp. 409, 414 (N.D.Ohio 1976.). An enforceable contract must be “specific as to its essential terms, such as the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term, and a price term.” Alligood v. Procter & Gamble Co., 72 Ohio App.3d 309, 311 (Ist.Dist. 1991). “[I]f the parties' manifestations taken together as making up the contract, when reasonably interpreted in the light of all the circumstances, do not enable the court to determine what the agreement is and to enforce it without, in effect, 'making a contract for the parties,’ no enforceable obligation results.” Litsinger Sign Co. vy. American Sign Co., 11 Ohio St.2d 1, 14 (1967). “[T]o prove a breach of contract, a plaintiff must establish the existence and terms of a contract, the plaintiff's performance of the contract, the defendant's breach of the contract, and damage or loss to the plaintiff.” Samadder v. DMF of Ohio, Inc., 154 Ohio App. 3d 770, 2003- Ohio-5340, 798 N.E.2d 1141, 27 (10th Dist.), citing Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 2002-Ohio-443, 771 N.E.2d 874, § 27 (10th Dist.). A plaintiff can show breach by demonstrating the defendant’s failure to perform one or more terms of a contract. 7ranscon. Ins. Co. v. Exxcel Project Mgmt., 10th Dist. Franklin No. 04AP-1243, 2005-Ohio-5081, | 13, citing Little Eagle Prop. v. Ryan, 10th Dist. Franklin No. 03 AP-923, 2004-Ohio-3830.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T73 As mentioned above, the Court afforded SHP the opportunity to provide a copy of the written contract upon which its claim for breach is based in the Entry granting Berardi’s Motion for More Definite Statement. SHP provided only the two “letters” as “documents evidencing in part the parties’ contract.” (PIf.’s Memo in Opp. to Mot. for More Definite Stmt.) This leads the Court to the inescapable conclusion, consistent with Berardi’s concession that the parties merely had an “oral understanding for which payment was made by SHP*,” that the documents appended to SHP’s Amended Complaint are the only writings associated with the alleged contract. See Landskroner y. Landskroner, 154 Ohio App.3d 471, 482, 2003-Ohio-5077, { 18 (8th Dist.). The two documents attached to SHP’s Amended Complaint do not establish the existence of a written contract between the parties. The “letters” only touch on one area of the purported contract between the parties: the fees SHP would pay Berardi. Even then the letters do not establish mutual assent. The first letter is SHP’s “attempt at laying out design service fees” and asks Berardi to “be prepared to discuss.” Berardi is correct that the letter merely shows the existence of preliminary discussions of indefinite services, without any acceptance by Berardi. SHP claims its contract with Berardi “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.” (Am. Compl. at § 11.) It states that “[t]he crux of the issue in this case is whether [Berardi’s] services were performed in accordance with the standard of care. If not, such breach violated a term of their contract which was implied by law.” (PIf.’s Memo in Opp. to Mot. to Dismiss at 4.) But, as Berardi correctly notes, SHP cannot establish that Berardi failed to perform its obligations under the contract in accordance with the standard of > Def.’s Reply in Support of Mot. to Dismiss at 3. 7Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T74 care because it has not demonstrated what those alleged obligations were. SHP’s allegations in its Amended Complaint of the services Berardi was to perform or the services it performed deficiently are not supported by the attached letters. “When the terms of a contract are not sufficiently definite, the contract is unenforceable.” Nilvar v. Osborn, 137 Ohio App.3d 469, 487 (2d. Dist. 2000), citing Isquick v. Classic Autoworks, Inc., 89 Ohio App.3d 767, 772 (8th Dist. 1993.). The terms are “sufficiently certain or definite where they ‘provide a basis for determining the existence of a breach and for giving an appropriate remedy.’” Nilvar at 487, citing Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169 (8th Dist 1983.). SHP claims Beradi breached its contractual obligations by 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. But nowhere in the two letters SHP submits as documents evidencing the parties’ contract are these obligations against Berardi set forth. Even SHP claims that the services for which it paid Berardi are “more fully described in the Contract.” (Am. Compl. at § 10.) But SHP did not supply the alleged contract and is therefore unable to prove Berardi’s breach. SHP argues that uncertainty as to incidental or collateral matters are seldom fatal to the existence of a contract. (PIf.’s Memo in Opp. to Mot. to Dismiss at 2, citing Ni/var, supra; Mr. Mark Corp. v. Rush, Inc. 11 Ohio App.3d 167 (8th Dist. 1983.) But the letters SHP submits as evidence of the contract are missing well more than incidental or collateral terms. As previously stated, the letters only identify a fee structure. There are no set of facts supported by the attached letters to SHP's Amended Complaint which form any written contract between the parties. Neither letter shows: (1) a single term which can be determined or enforced; (2) any of the essentialFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T75 elements required to form a written contract; or (3) a meeting of the minds between SHP and Berardi of any terms, let alone essential terms, of any written contract. SHP also argues that Berardi’s acceptance of the agreement can be established by its performance of work, as evidenced by the four-year span between the two letters. It is true that “[c]onduct sufficient to show agreement, including performance, is a reasonable mode of acceptance.” General Metal Heat Treating, Inc. v. Precision Gear LLC, Cuyahoga C.P. Nos. CV 11 759959 and CV 11 760036, 2013 Ohio Misc. LEXIS 8 (February 11, 2013), citing G. Herschman Architects v. Ringco Mfg. Co., 8th Dist. Cuyahoga No. 67758, 1995 Ohio App. LEXIS 1940 (May 11, 1995.). Although a signed writing by the offeree is the preferred method for establishing acceptance, the fact that a party does not signify acceptance by executing an agreement does not necessarily result in the unenforceability of an agreement. Berjian v. Telephone Co., 54 Ohio St.2d 147, 150 (1978). But Berardi’s performance does not change the conclusion that SHP cannot establish Berardi’s breach without providing the Court with the essential terms of the agreement—the services that SHP would pay Berardi to perform SHP’s claims for failing to perform in accordance with the applicable professional standards sound in tort rather than contract. Isquick v. Classic Autoworks, Inc., 89 Ohio App.3d 767, 772 (8th Dist. 1993.) “[T]he standards of reasonable care, which apply to the conduct of architects, are the same as those applying to lawyers, doctors, engineers, and like professional men engaged in furnishing skilled services for compensation * * * and that general negligence principles apply * * *.” Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 477 (8th Cir.1968), citing Peerless Ins. Co. v. Cerny & Assoc., Inc., 199 F.Supp 951, 953-54 (D.Minn. 1961.). IV. CONCLUSIONFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T76é Applying the standard of review applicable to a motion to dismiss, the Court finds that SHP’s Amended Complaint fails to establish that it can prove breach of contract by Berardi because it has not established the terms of the alleged agreement. The unsupported legal conclusion that Berardi breached the parties’ contract is not sufficient to survive the motion to dismiss. The essential terms to the contract simply cannot be established without reference to evidence or other materials beyond SHP’s Amended Complaint. Based upon the foregoing, Berardi’s Motion to Dismiss is well-taken and hereby GRANTED. Count I of SHP’s Amended Complaint is accordingly DISMISSED. This case should proceed on the remaining claims set forth in the Amended Complaint. IT IS SO ORDERED. Copy electronically to all counsel. 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T77 Franklin County Court of Common Pleas Date: 07-20-2017 Case Title: STEED HAMMOND PAUL INC -VS- BERARDI PARTNERS INC Case Number: 17CV001032 Type: DISMISS CERTAIN COUNTS OF COMPLAINT It Is So Ordered. Dah Wy bane /s/ Judge Jeffrey M. Brown Electronically signed on 2017-Jul-20 page 11 of 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jul 20 2:12 PM-17CV001032 OD687 - T78 Court Disposition Case Number: 17CV001032 Case Style: STEED HAMMOND PAUL INC -VS- BERARDI PARTNERS INC Motion Tie Off Information: 1. Motion CMS Document Id: 17CV0010322017-04-0399970000 Document Title: 04-03-2017-MOTION TO DISMISS - DEFENDANT: BERARDI PARTNERS INC Disposition: MOTION GRANTED