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op527 - pefankiin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
STEED HAMMOND PAUL, INC., Case No.: CV 17-001032
Plaintiff,
JUDGE JEFFREY M. BROWN
ve
BERARDI PARTNERS, INC., DEFENDANT’S MOTION TO DISMISS
COUNT I, BREACH OF CONTRACT,
Defendants. OF PLAINTIFF’S AMENDED
COMPLAINT FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED
Now comes Defendant Berardi Partners, Inc., (“Berardi”), by and through counsel, and
respectfully requests this Honorable Court dismiss Count 1, Breach of Contract, of Plaintiff Steed
Hammond Paul, Inc.’s (“SHP”) Complaint pursuant to Ohio Rule of Civil Procedure 12(B)(6).
As is more fully set out in the attached Memorandum, on March 20, 2017, after this
Court granted Berardi’s Motion for More Definite Statement, SHP amended its Complaint. In the
Amended Complaint, SHP alleges Berardi breached a written contract with SHP. See Amended
Complaint, #§ 4-14. To support its allegations, SHP attached two letters. See Plaintiff's Exhibit 1
(attached to Amended Complaint). Taken together, these letters do not constitute a contract. See
Jd. As a contract requires terms which can be determined and enforced, as a matter of law,
Berardi is entitled to dismissal of Count 1, Breach of Contract, of SHP’s Amended Complaint.OD527 - E38
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032
See Civ. R. 12(B)(6); Minster Farmers Coop. Exch. Co. v. Meyer, 117 Ohio St.3d 459, 2008-
Ohio-1259, 884 N.E.2d 1056, { 28,
4824-6268-7558.1,
Respectfully submitted,
/s/ Bradley J. Barmen
Bradley J. Barmen (0076515)
Theresa A. Sherman (0090971)
Lewis Brisbois Bisgaard and Smith, LLP
1375 E. 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.Frankli i - : -
op527 - Eagan in County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032
MEMORANDUM IN SUPPORT
I. Facts
This case involves the construction of two campuses for the Ohio School for the Deaf and
Blind (the “Project”), See Complaint, § 3. SHP was retained as the architect of record. See Id. In
its Amended three-count Complaint for breach of contract, professional negligence, and
indemnification, SHP alleges it subcontracted a portion of the design work for the Project to
Berardi and Berardi subsequently breached its contractual obligations, See Amended Complaint.
To support its claim for breach of a written contract for housing design services, SHP attached
two letters to its Amended Complaint. See Plaintiffs Exhibit 1 (attached to Amended
Complaint).
A First Letter Dated June 5, 2007
The first letter titled “RE: OSB/OSD SD Housing Design Services Fees” opened with
these words “Below is our attempt at laying out design service fees.” See Id. {| 1. The letter
continued “Please review and be prepared to discuss after our design team update meeting on
Thursday.” See Id. In the body of the letter, SHP indicated Berardi could be paid $125,258.25 for
“SD Housing design services.” See Jd. page 1. This letter merely shows the parties are having a
preliminary discussion of unspecified services; there is no indication of exactly what Berardi is
to do. See Id. The letter closes with a single signature of “SHP Project Manager Joshua L.
Predovich.” See id. page 2.
B. Second Letter Dated June 17, 2011
The second letter titled “Additional Services Fee Agreement” sets out fees owed and
paid, offers a meeting to review invoicing, and is signed only by SHP Project Manager Joshua L.
4824-6268-7558.1Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032
0D527 - E40
Predovich. The second letter explicitly requests a signature from Berardi indicating “acceptance
of the additional services fee agreement outlined above.” The letter is not signed by Berardi. See
id, pages 3-4.
Il. Law and Argument
A. Civ. R. 12(B)(6)
In reviewing a motion to dismiss, the allegations of the nonmoving party are assumed to
be true and all inferences are made in favor of the nonmoving party. See Civ. R. 12(B)(6);
Mitchell v, Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). A claim can be
dismissed at the pleading stage only if it appears beyond doubt the nonmoving party can prove
no set of facts entitling it to relief. See Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279,
280, 649 N.E.2d 182 (1995).
However, “while the factual allegations of the complaint are taken as true, unsupported
conclusions of a complaint ate not considered admitted [for the purposes of a motion to dismiss]
and are not sufficient to withstand a motion to dismiss.” See Allstate Ins. Co. v. Electrolux Home
Prods., 8" Dist. Cuyahoga No. 97065, 2012-Ohio-90, ] 8 quoting State ex. rel, Hickman y,
Capots, 45 Ohio stad 324, 544 N.E.2d 639; See also Schulman v. Cleveland, 30 Ohio St.2d 196,
198, 283 N.E.2d 175 (1972). Legal conclusions, deductions, or opinions couched as factual
allegations are not given a presumption of truthfulness. See Jd. quoting Williams U.S. Bank
Shaker Square, 8" Dist. No. 89760, 2008-Ohio-1414, 4 9.
Although Ohio is a notice-pleading state which requires a plaintiff only plead sufficient
operative facts to support recovery under his claim, “to constitute fair notice, the complaint must
allege sufficient underlying facts that relate to and support the alleged claim; the complaint may
not simply state legal conclusions.” See Allstate Ins. Co. v. Electrolux Home Prods., 8" Dist.
Cuyahoga No. 97065, 2012-Ohio-90, 79. A court is not required to consider unsupportedFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032
O0D527 - E41
conclusions that may be included among, but not supported by, the factual allegations of the
complaint. See Boyd v. Archdiocese of Cincinnati, 2" Dist. Montgomery No. 25959, 2015-Ohio-
1394, 413 citing Wright v. Ghee, 10" Dist. Franklin No. OLAP-1459, 2002-Ohio-5487, { 19.
B. Requirements of a Written Contract
A contract is generally defined as a promise, or a set of promises, actionable upon breach.
See Minster Farmers Coop. Exch, Co, v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, 884
N.E.2d 1056, {| 28. Essential elements of a contract include an offer, acceptance, contractual
capacity, consideration, a manifestation of mutual assent and legality of object and of
consideration. See Jd. citing Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414
(N.D.Ohio 1976). A meeting of the minds as to the essential terms of the contract is a
requirement to enforcing the contract. See Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-
2985, 770 N.E.2d 58, 4 16.
SHP specifically relies on the two letters attached to its Amended Complaint to show a
breach of written contract as it states “Documents evidencing the contract between SHP and
Berardi are attached hereto as Exhibit 1 (collectively, the “Contract). See Amended Complaint, |
4. SHP’s thin allegations and attached letters do not show a written contract with Berardi.
Cc. SHP’s Allegations and Letters Do Not Show a Written Contract
SHP alleges the attached letters call for SHP to pay Berardi for its services, “which are
more fully described” in the attached letters, See Amended Complaint, { 10. In fact, the
attached letters do not describe, let alone even set forth, any services Berardi was to provide to
SHP. See Plaintiff's Exhibit 1 (attached to Amended Complaint). While SHP alleges Berardi
4824-6268-7558.1Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032
OD527 - E42
was to provide the design services for the Project’s housing portion, the first letter dated June 5,
2007, provides: “Structural design for housing will be performed by Shelly, Metz, Baumann, and
Hawk, Inc.” See Jd. page 2, C.
Further, neither letter gives any explanation of Berardi’s duties under any written contract
with SHP, nor do they contain a signature from Berardi. See Id. The first letter simply shows a
preliminary discussion for services, without any acceptance by Berardi, The second letter simply
shows payment for services of an unknown nature four years after the first letter was written.
SHP’s allegation the letters “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” is completely false; there is not a single description of
any duty or service under any contract in either letter. See Id; Amended Complaint, { 11.
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 tem
which can be determined or enforced; (2) any of the essential 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. See Id; Minster Farmers Coop. Exch. Co. v. Meyer, 117 Ohio
St.3d 459, 2008-Ohio-1259, 884 N.E.2d 1056, J 28. Therefore, SHP’s claim for breach of
written contract must be dismissed as a matter of law.
TH. = Conclusion
Even in construing all inferences in favor of SHP, there is no support for its allegation of
breach of any written contract with Berardi. As SHP did not allege a single fact supported by the
4824 6268-7558...OD527 - E43
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032
attached letters to show any written contract between SHP and Berardi, Berardi respectfully
requests this Court dismiss Count 1, Breach of Contract, of SHP’s Amended Complaint.
Respectfully submitted,
/s/ Bradley J. Barmen
Bradley J. Barmen (0076515)
Theresa A. Sherman (0090971)
Lewis Brisbois Bisgaard and Smith, LLP
1375 E. 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.
CERTIFICATE OF SERVICE
I hereby certify on this 3rd day of April, 2017, a true and correct copy of the foregoing has been
sent via electronic mail to the following counsel of record:
David M. Rickert, Esq.
Dunlevey Mahan & Furry
110 North Main Street, Suite 1000
Dayton, Ohio 45402
dmr@dmfdayton.com
Counsel for Plaintiff
4824-6268-7558.1
/s/ Bradley J. Barmen
Bradley J, Barmen (0076515)
Theresa A. Sherman (0090971)
Counsel for Defendant Berardi Partners, Inc.
Preview
op527 - pefankiin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO STEED HAMMOND PAUL, INC., Case No.: CV 17-001032 Plaintiff, JUDGE JEFFREY M. BROWN ve BERARDI PARTNERS, INC., DEFENDANT’S MOTION TO DISMISS COUNT I, BREACH OF CONTRACT, Defendants. OF PLAINTIFF’S AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Now comes Defendant Berardi Partners, Inc., (“Berardi”), by and through counsel, and respectfully requests this Honorable Court dismiss Count 1, Breach of Contract, of Plaintiff Steed Hammond Paul, Inc.’s (“SHP”) Complaint pursuant to Ohio Rule of Civil Procedure 12(B)(6). As is more fully set out in the attached Memorandum, on March 20, 2017, after this Court granted Berardi’s Motion for More Definite Statement, SHP amended its Complaint. In the Amended Complaint, SHP alleges Berardi breached a written contract with SHP. See Amended Complaint, #§ 4-14. To support its allegations, SHP attached two letters. See Plaintiff's Exhibit 1 (attached to Amended Complaint). Taken together, these letters do not constitute a contract. See Jd. As a contract requires terms which can be determined and enforced, as a matter of law, Berardi is entitled to dismissal of Count 1, Breach of Contract, of SHP’s Amended Complaint.OD527 - E38 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032 See Civ. R. 12(B)(6); Minster Farmers Coop. Exch. Co. v. Meyer, 117 Ohio St.3d 459, 2008- Ohio-1259, 884 N.E.2d 1056, { 28, 4824-6268-7558.1, Respectfully submitted, /s/ Bradley J. Barmen Bradley J. Barmen (0076515) Theresa A. Sherman (0090971) Lewis Brisbois Bisgaard and Smith, LLP 1375 E. 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.Frankli i - : - op527 - Eagan in County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032 MEMORANDUM IN SUPPORT I. Facts This case involves the construction of two campuses for the Ohio School for the Deaf and Blind (the “Project”), See Complaint, § 3. SHP was retained as the architect of record. See Id. In its Amended three-count Complaint for breach of contract, professional negligence, and indemnification, SHP alleges it subcontracted a portion of the design work for the Project to Berardi and Berardi subsequently breached its contractual obligations, See Amended Complaint. To support its claim for breach of a written contract for housing design services, SHP attached two letters to its Amended Complaint. See Plaintiffs Exhibit 1 (attached to Amended Complaint). A First Letter Dated June 5, 2007 The first letter titled “RE: OSB/OSD SD Housing Design Services Fees” opened with these words “Below is our attempt at laying out design service fees.” See Id. {| 1. The letter continued “Please review and be prepared to discuss after our design team update meeting on Thursday.” See Id. In the body of the letter, SHP indicated Berardi could be paid $125,258.25 for “SD Housing design services.” See Jd. page 1. This letter merely shows the parties are having a preliminary discussion of unspecified services; there is no indication of exactly what Berardi is to do. See Id. The letter closes with a single signature of “SHP Project Manager Joshua L. Predovich.” See id. page 2. B. Second Letter Dated June 17, 2011 The second letter titled “Additional Services Fee Agreement” sets out fees owed and paid, offers a meeting to review invoicing, and is signed only by SHP Project Manager Joshua L. 4824-6268-7558.1Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032 0D527 - E40 Predovich. The second letter explicitly requests a signature from Berardi indicating “acceptance of the additional services fee agreement outlined above.” The letter is not signed by Berardi. See id, pages 3-4. Il. Law and Argument A. Civ. R. 12(B)(6) In reviewing a motion to dismiss, the allegations of the nonmoving party are assumed to be true and all inferences are made in favor of the nonmoving party. See Civ. R. 12(B)(6); Mitchell v, Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). A claim can be dismissed at the pleading stage only if it appears beyond doubt the nonmoving party can prove no set of facts entitling it to relief. See Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 280, 649 N.E.2d 182 (1995). However, “while the factual allegations of the complaint are taken as true, unsupported conclusions of a complaint ate not considered admitted [for the purposes of a motion to dismiss] and are not sufficient to withstand a motion to dismiss.” See Allstate Ins. Co. v. Electrolux Home Prods., 8" Dist. Cuyahoga No. 97065, 2012-Ohio-90, ] 8 quoting State ex. rel, Hickman y, Capots, 45 Ohio stad 324, 544 N.E.2d 639; See also Schulman v. Cleveland, 30 Ohio St.2d 196, 198, 283 N.E.2d 175 (1972). Legal conclusions, deductions, or opinions couched as factual allegations are not given a presumption of truthfulness. See Jd. quoting Williams U.S. Bank Shaker Square, 8" Dist. No. 89760, 2008-Ohio-1414, 4 9. Although Ohio is a notice-pleading state which requires a plaintiff only plead sufficient operative facts to support recovery under his claim, “to constitute fair notice, the complaint must allege sufficient underlying facts that relate to and support the alleged claim; the complaint may not simply state legal conclusions.” See Allstate Ins. Co. v. Electrolux Home Prods., 8" Dist. Cuyahoga No. 97065, 2012-Ohio-90, 79. A court is not required to consider unsupportedFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032 O0D527 - E41 conclusions that may be included among, but not supported by, the factual allegations of the complaint. See Boyd v. Archdiocese of Cincinnati, 2" Dist. Montgomery No. 25959, 2015-Ohio- 1394, 413 citing Wright v. Ghee, 10" Dist. Franklin No. OLAP-1459, 2002-Ohio-5487, { 19. B. Requirements of a Written Contract A contract is generally defined as a promise, or a set of promises, actionable upon breach. See Minster Farmers Coop. Exch, Co, v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, 884 N.E.2d 1056, {| 28. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration, a manifestation of mutual assent and legality of object and of consideration. See Jd. citing Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract. See Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio- 2985, 770 N.E.2d 58, 4 16. SHP specifically relies on the two letters attached to its Amended Complaint to show a breach of written contract as it states “Documents evidencing the contract between SHP and Berardi are attached hereto as Exhibit 1 (collectively, the “Contract). See Amended Complaint, | 4. SHP’s thin allegations and attached letters do not show a written contract with Berardi. Cc. SHP’s Allegations and Letters Do Not Show a Written Contract SHP alleges the attached letters call for SHP to pay Berardi for its services, “which are more fully described” in the attached letters, See Amended Complaint, { 10. In fact, the attached letters do not describe, let alone even set forth, any services Berardi was to provide to SHP. See Plaintiff's Exhibit 1 (attached to Amended Complaint). While SHP alleges Berardi 4824-6268-7558.1Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032 OD527 - E42 was to provide the design services for the Project’s housing portion, the first letter dated June 5, 2007, provides: “Structural design for housing will be performed by Shelly, Metz, Baumann, and Hawk, Inc.” See Jd. page 2, C. Further, neither letter gives any explanation of Berardi’s duties under any written contract with SHP, nor do they contain a signature from Berardi. See Id. The first letter simply shows a preliminary discussion for services, without any acceptance by Berardi, The second letter simply shows payment for services of an unknown nature four years after the first letter was written. SHP’s allegation the letters “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” is completely false; there is not a single description of any duty or service under any contract in either letter. See Id; Amended Complaint, { 11. 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 tem which can be determined or enforced; (2) any of the essential 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. See Id; Minster Farmers Coop. Exch. Co. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, 884 N.E.2d 1056, J 28. Therefore, SHP’s claim for breach of written contract must be dismissed as a matter of law. TH. = Conclusion Even in construing all inferences in favor of SHP, there is no support for its allegation of breach of any written contract with Berardi. As SHP did not allege a single fact supported by the 4824 6268-7558...OD527 - E43 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Apr 03 2:02 PM-17CV001032 attached letters to show any written contract between SHP and Berardi, Berardi respectfully requests this Court dismiss Count 1, Breach of Contract, of SHP’s Amended Complaint. Respectfully submitted, /s/ Bradley J. Barmen Bradley J. Barmen (0076515) Theresa A. Sherman (0090971) Lewis Brisbois Bisgaard and Smith, LLP 1375 E. 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. CERTIFICATE OF SERVICE I hereby certify on this 3rd day of April, 2017, a true and correct copy of the foregoing has been sent via electronic mail to the following counsel of record: David M. Rickert, Esq. Dunlevey Mahan & Furry 110 North Main Street, Suite 1000 Dayton, Ohio 45402 dmr@dmfdayton.com Counsel for Plaintiff 4824-6268-7558.1 /s/ Bradley J. Barmen Bradley J, Barmen (0076515) Theresa A. Sherman (0090971) Counsel for Defendant Berardi Partners, Inc.