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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032
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IN THE FRANKLIN COUNTY COMMON PLEAS COURT, OHIO
CIVIL DIVISION
STEED HAMMOND PAUL, INC. : CASENO: CV 17-001032
Plaintiff, : JUDGE: JEFFREY M. BROWN
v.
: PLAINTIFFS’ MEMORANDUM IN
BERARDI PARTNERS, INC : OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS
Defendant.
On January 30, 2017 Plaintiff Steed Hammond Paul, Inc. (“SHP”) filed its Complaint
asserting claims for breach of contract (Count I), professional negligence (Count II) and
indemnification (Count III). These claims stem from Defendant Berardi + Partners, Inc.’s
(“Berardi”) architectural services provided as a sub-consultant of Plaintiff Steed Hammond Paul,
Inc. on the housing portion of the construction project for the Ohio State Schools for the Blind
and Deaf. (Complaint, §3). On April 3, 2017, Berardi filed an answer to Plaintiff's Amended
Complaint as to all claims except the breach of contract claim. With regard to the breach of
contract claim it filed a motion to dismiss. The Motion to Dismiss asserts that the letters
attached to the complaint are insufficient to create a written contract (Motion to Dismiss, p. 1).
Although Berardi’s Motion to Dismiss correctly states the standard applicable to its such
motion (namely, that the allegations of the non-moving party, SHP, are assumed to be true and
all inferences are made in its favor [Memorandum in Opposition, p. 4]), Berardi errs in applyingFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032
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that standard to the facts and pleadings of this case. When the pleadings are properly construed,
the Court must overrule the Motion to Dismiss.
The law pertaining to the requirements for a contract are well established. To prove the
existence of a contract, it must be shown that both parties assented at the time of the contract,
that there was a meeting of minds, and that the terms of the contract are definite and certain
(Nilavar v. Osborn (Second District, 2000) 137 Ohio App. 3d 469, 738 N.E.2d 1271). For
contracts other than those involving the sale of goods, the essential terms are generally the
parties to the contract and its subject matter (Nilavar v. Osborn, supra; Rittersman v. Rapid—
Serve Cash Systems Inc. (Franklin Cty., 1998) 1988 Ohio App. Lexis 2882 [which involves a
contract for design]). As stated in the Restatement 2d of Contracts §33 (2): “The terms of a
contract are reasonably certain if they provide a basis for determining the existence of a breach
and for giving an appropriate remedy.”
When the parties intend to conclude a contract, uncertainty as to incidental or collateral
matters are seldom fatal to the existence of the contract. (Nilavar v. Osborn, supra; Mr. Mark
Corp. v. Rush Inc. (Cuyahoga Cty., 1983) 11 Ohio App. 3d. 167, 464 N.E. 2d 586; Restatement
2d of Contracts §33, Comment a). As stated by the Court in Mr. Mark Corp. v. Rush, Inc,
Supra.:
An agreement is enforceable if it encompasses the essential elements of
the bargain . . . Omission of less certain subjects leaves those matters for
later agreement or judicial resolution. The courts will not create
significant additional obligations for either party, nor excuse either party
from performance of agreed duties.” 11 Ohio App. 3d. at 169).
Missing terms may be supplied by implication or operation of law, or by the course of
dealing of the parties (Nilavar y. Osborn, supra; Mr. Mark Corp. v. Rush Inc., supra;
Restatement 2d of Contracts, §33). By these means, courts endeavor to attach a sufficientlyFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032
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definite meaning to a bargain. (Mr. Mark Corp. v. Rush Inc., supra; citing Restatement 2d of
Contracts §33).
In terms of architectural contracts, the standard of care may be expressly set forth in the
contract or, in the absence of any expressed contractual standards, by the implied requirement to
perform reasonably and in accordance with applicable professional standards. (Phillips v.
LW.Colburn and Associates Inc. (Montgomery Cty., 1979) 1979 Ohio App LEXIS 10542;
Crowninshield/Old Town Community Urban Redevelopment Corp. v. Campeon Roofing and
Waterproofing (Hamilton Cty., 1996) 1996 Ohio App. LEXIS 1514).
With regard to the requirement that an offer be accepted to form a contract, a party may
indicate its acceptance of an offer by beginning performance of the contract (General Metal Heat
Treating Inc. v. Precision Gear LLC (Cuyahoga Cty., 2013) 2013 Ohio Misc. LEXIS 8).
In the instant case, the requirements for a binding contract are present. Using the
Nilavar/Rittersman standard, the parties to the contract are defined as SHP (the author of
Exhibits 1 and 2 and Berardi (see, e.g., Exhibit 1 to SHP’s Complaint which identifies fees to be
earned by Berardi in the sum of $125,258.25 for schematic design services and requiring
“Berardi & Partners” to perform mechanical, electrical and plumbing and limited technology
design).
Not only are the parties identified but so too is the subject matter identified, 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 (Exhibit 1 to Complaint).
After the June 5, 2007 communication, the June 17, 2011 communication, four years
later, evidences that the parties knew what work was entailed by their contract as the secondFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032
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letter, Exhibit 2 to Plaintiff's Complaint, shows that in a four year time span over $206,000 in
fees was invoiced by Berardi and paid by SHP.
Not only are the parties and subject matter of the contract clear, but Berardi’s duties
under the contract were implied by law, requiring them to render services in accordance with the
standard of care for architects practicing in this area.
The cases cited by Berardi in support of its motion to dismiss are not to the contrary. In
Minster Farmers Coop Exchange Co. v. Meyer (2008) 117 Ohio St. 3d 459, 884 N.E.2d 1056,
the court merely held that an invoice unilaterally sent after the fact would not constitute a
contract because it is not a writing to which both parties have indicated assent. In the instant
case, as set forth above the parties indicated their consent to the terms set forth in the attached
letters by performing the work referenced in the subject matter of the correspondence. In
Kostelnik v. Helper (2002) 96 Ohio St.3d. 1, 2002-Ohio-2985, a letter was used to evidence the
terms of the parties’ oral agreement to settle a pending lawsuit. Last, in the case of Perlmuter
Printing Co. v. Strome Inc. (N.D. Ohio 1976) 436 F Supp. 409, at issue were the UCC
requirements for a contract, which interestingly provided the following:
“Even though one or more terms are left open a contract for sale does not
fail for indefiniteness if the parties have intended to make a contract and
there is a reasonably certain basis for giving an appropriate remedy.”
(436 F. Supp. at 414, quoting the Uniform Commercial Code §2-204, O.R.C. §1302.07(3)). The
law cited in Perlmuter is consistent with the Restatement 2d. of Contracts §33(2).
In short, the parties at all times acted in light of their contract, Berardi by performing
design services and SHP paying Berardi over $200,000 for those services. The crux of the issue
in this case is whether those 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.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032
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Construed most strongly in SHP’s favor, then, it is evident that a contract existed
between the parties and this Court must resolve the issue of whether that contract was breached
by Berardi. Toward that end, the Complaint should not be dismissed but Berardi should be
required to defend each claim set forth in Plaintiffs Complaint.
Respectfully submitted,
/s/David M. Rickert
David M. Rickert (0010483)
Attorney for Plaintiff
DUNLEVEY MAHAN & FURRY
110 North Main Street, Suite 1000
Dayton, Ohio 45402
(937) 223-6003
dmr@dmfdayton.com
Fax: (937) 223-8550
CERTIFICATE OF SERVICE
Thereby certify on this 14" day of April, 2017, a true and correct copy of the foregoing
has been sent via electronic mail to the following counsel of record:
Bradley J. Barmen
Theresa A. Sherman
Lewis Brisbois Bisgaard and Smith, LLP
1375 E. 9th Street, Suite 2250
Cleveland, OH 44114
Brad.Barmen @ lewisbrisbois.com
Tera.Sherman @lewisbrisbois.com
/s/David M. Rickert
David M. Rickert (0010483)
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032 0D543 - M70 IN THE FRANKLIN COUNTY COMMON PLEAS COURT, OHIO CIVIL DIVISION STEED HAMMOND PAUL, INC. : CASENO: CV 17-001032 Plaintiff, : JUDGE: JEFFREY M. BROWN v. : PLAINTIFFS’ MEMORANDUM IN BERARDI PARTNERS, INC : OPPOSITION TO DEFENDANT’S MOTION TO DISMISS Defendant. On January 30, 2017 Plaintiff Steed Hammond Paul, Inc. (“SHP”) filed its Complaint asserting claims for breach of contract (Count I), professional negligence (Count II) and indemnification (Count III). These claims stem from Defendant Berardi + Partners, Inc.’s (“Berardi”) architectural services provided as a sub-consultant of Plaintiff Steed Hammond Paul, Inc. on the housing portion of the construction project for the Ohio State Schools for the Blind and Deaf. (Complaint, §3). On April 3, 2017, Berardi filed an answer to Plaintiff's Amended Complaint as to all claims except the breach of contract claim. With regard to the breach of contract claim it filed a motion to dismiss. The Motion to Dismiss asserts that the letters attached to the complaint are insufficient to create a written contract (Motion to Dismiss, p. 1). Although Berardi’s Motion to Dismiss correctly states the standard applicable to its such motion (namely, that the allegations of the non-moving party, SHP, are assumed to be true and all inferences are made in its favor [Memorandum in Opposition, p. 4]), Berardi errs in applyingFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032 0D543 - M71 that standard to the facts and pleadings of this case. When the pleadings are properly construed, the Court must overrule the Motion to Dismiss. The law pertaining to the requirements for a contract are well established. To prove the existence of a contract, it must be shown that both parties assented at the time of the contract, that there was a meeting of minds, and that the terms of the contract are definite and certain (Nilavar v. Osborn (Second District, 2000) 137 Ohio App. 3d 469, 738 N.E.2d 1271). For contracts other than those involving the sale of goods, the essential terms are generally the parties to the contract and its subject matter (Nilavar v. Osborn, supra; Rittersman v. Rapid— Serve Cash Systems Inc. (Franklin Cty., 1998) 1988 Ohio App. Lexis 2882 [which involves a contract for design]). As stated in the Restatement 2d of Contracts §33 (2): “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” When the parties intend to conclude a contract, uncertainty as to incidental or collateral matters are seldom fatal to the existence of the contract. (Nilavar v. Osborn, supra; Mr. Mark Corp. v. Rush Inc. (Cuyahoga Cty., 1983) 11 Ohio App. 3d. 167, 464 N.E. 2d 586; Restatement 2d of Contracts §33, Comment a). As stated by the Court in Mr. Mark Corp. v. Rush, Inc, Supra.: An agreement is enforceable if it encompasses the essential elements of the bargain . . . Omission of less certain subjects leaves those matters for later agreement or judicial resolution. The courts will not create significant additional obligations for either party, nor excuse either party from performance of agreed duties.” 11 Ohio App. 3d. at 169). Missing terms may be supplied by implication or operation of law, or by the course of dealing of the parties (Nilavar y. Osborn, supra; Mr. Mark Corp. v. Rush Inc., supra; Restatement 2d of Contracts, §33). By these means, courts endeavor to attach a sufficientlyFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032 0D543 - M72 definite meaning to a bargain. (Mr. Mark Corp. v. Rush Inc., supra; citing Restatement 2d of Contracts §33). In terms of architectural contracts, the standard of care may be expressly set forth in the contract or, in the absence of any expressed contractual standards, by the implied requirement to perform reasonably and in accordance with applicable professional standards. (Phillips v. LW.Colburn and Associates Inc. (Montgomery Cty., 1979) 1979 Ohio App LEXIS 10542; Crowninshield/Old Town Community Urban Redevelopment Corp. v. Campeon Roofing and Waterproofing (Hamilton Cty., 1996) 1996 Ohio App. LEXIS 1514). With regard to the requirement that an offer be accepted to form a contract, a party may indicate its acceptance of an offer by beginning performance of the contract (General Metal Heat Treating Inc. v. Precision Gear LLC (Cuyahoga Cty., 2013) 2013 Ohio Misc. LEXIS 8). In the instant case, the requirements for a binding contract are present. Using the Nilavar/Rittersman standard, the parties to the contract are defined as SHP (the author of Exhibits 1 and 2 and Berardi (see, e.g., Exhibit 1 to SHP’s Complaint which identifies fees to be earned by Berardi in the sum of $125,258.25 for schematic design services and requiring “Berardi & Partners” to perform mechanical, electrical and plumbing and limited technology design). Not only are the parties identified but so too is the subject matter identified, 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 (Exhibit 1 to Complaint). After the June 5, 2007 communication, the June 17, 2011 communication, four years later, evidences that the parties knew what work was entailed by their contract as the secondFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032 0D543 - M73 letter, Exhibit 2 to Plaintiff's Complaint, shows that in a four year time span over $206,000 in fees was invoiced by Berardi and paid by SHP. Not only are the parties and subject matter of the contract clear, but Berardi’s duties under the contract were implied by law, requiring them to render services in accordance with the standard of care for architects practicing in this area. The cases cited by Berardi in support of its motion to dismiss are not to the contrary. In Minster Farmers Coop Exchange Co. v. Meyer (2008) 117 Ohio St. 3d 459, 884 N.E.2d 1056, the court merely held that an invoice unilaterally sent after the fact would not constitute a contract because it is not a writing to which both parties have indicated assent. In the instant case, as set forth above the parties indicated their consent to the terms set forth in the attached letters by performing the work referenced in the subject matter of the correspondence. In Kostelnik v. Helper (2002) 96 Ohio St.3d. 1, 2002-Ohio-2985, a letter was used to evidence the terms of the parties’ oral agreement to settle a pending lawsuit. Last, in the case of Perlmuter Printing Co. v. Strome Inc. (N.D. Ohio 1976) 436 F Supp. 409, at issue were the UCC requirements for a contract, which interestingly provided the following: “Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” (436 F. Supp. at 414, quoting the Uniform Commercial Code §2-204, O.R.C. §1302.07(3)). The law cited in Perlmuter is consistent with the Restatement 2d. of Contracts §33(2). In short, the parties at all times acted in light of their contract, Berardi by performing design services and SHP paying Berardi over $200,000 for those services. The crux of the issue in this case is whether those 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.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 14 1:56 PM-17CV001032 0D543 - M74 Construed most strongly in SHP’s favor, then, it is evident that a contract existed between the parties and this Court must resolve the issue of whether that contract was breached by Berardi. Toward that end, the Complaint should not be dismissed but Berardi should be required to defend each claim set forth in Plaintiffs Complaint. Respectfully submitted, /s/David M. Rickert David M. Rickert (0010483) Attorney for Plaintiff DUNLEVEY MAHAN & FURRY 110 North Main Street, Suite 1000 Dayton, Ohio 45402 (937) 223-6003 dmr@dmfdayton.com Fax: (937) 223-8550 CERTIFICATE OF SERVICE Thereby certify on this 14" day of April, 2017, a true and correct copy of the foregoing has been sent via electronic mail to the following counsel of record: Bradley J. Barmen Theresa A. Sherman Lewis Brisbois Bisgaard and Smith, LLP 1375 E. 9th Street, Suite 2250 Cleveland, OH 44114 Brad.Barmen @ lewisbrisbois.com Tera.Sherman @lewisbrisbois.com /s/David M. Rickert David M. Rickert (0010483)