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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032
0D475 - N50
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
STEED HAMMOND PAUL, INC, Case No.: CV 17-001032
Plaintiff, JUDGE JEFFREY M. BROWN
v. DEFENDANT’S MOTION FOR MORE
DEFINITE STATEMENT
BERARDI PARTNERS, INC.,
Defendants.
Now comes Defendant Berardi Partners, Inc., (“Berardi”), by and through counsel, and
respectfully requests this Honorable Court Order Plaintiff Steed Hammond Paul, Inc., (“SHP”) to
provide a more definite statement pursuant to Civ. R. 12(E) and Civ. R. 10(D)(1).
As is more fully set out in the attached Memorandum, on January 30, 2017, SHP filed its
three-count Complaint alleging inter alia, Defendant “breached its contractual obligations.” See
Complaint, {{ 4. To support its allegations, SHP continually refers to “documents evidencing the
contract between SHP and Berardi are attached hereto as Exhibit 1 (collectively, the
“Contract”).” See Complaint. However, SHP failed to attach a single document showing the
existence of any contract between the parties, let alone any document showing Berardi’s alleged
“contractual obligations” which give rise to SHP’s claims. Further, in its Complaint, SHP failed
to state the reason for its omission of the contract as required by Civ. R. 10(D)(1). Therefore,
Berardi respectfully requests this Court Order SHP to provide a more definite statement and
4845-1068-6276.10D475 - N51
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032
amend its Complaint to include the contract which allegedly gives rise to its claims against
Berardi.
4845-1068-6276.1
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
ET
@lewisbrisbois. cour
Counsel for Defendant Berardi Partners, Inc.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032
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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 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 Complaint. Now, SHP seeks judgment
against Berardi pursuant to a contract SHP neither attached to its Complaint, nor explained in its
Complaint the reason for its failure to attach any documents showing any relationship between
the parties. See Id.
I. Law and Argument
Ohio Rule of Civil Procedure 12(E) states in part:
Motion for definite statement. If a pleading to which a responsive
pleading is permitted is so vague or ambiguous that a party cannot
reasonably be required to frame a responsive pleading, he may
move for a definite statement before interposing his responsive
pleading.
Here, in its Complaint, SHP has made allegations based upon a written contract. See
Complaint. However, SHP failed to attach a single document to its Complaint showing the
existence of any contract with Berardi. SHP also failed to give any reason for its omission of
these documents which allegedly provide the basis for its claims against Berardi. See Complaint.
Ohio Rule of Civil Procedure 10(D)(1) states:
Account or written instrument. When any claim or defense is
founded on an account or other written instrument, a copy of the
account or written instrument must be attached to the pleading. If
the account or written instrument is not attached, the reason for the
omission must be stated in the pleading.
4845-1068-6276.1Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032
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The Tenth District Court of Appeals stated:
The proper procedure in attacking the failure of a plaintiff to attach
a copy of a written instrument or to state a valid reason for his
failure to attach same is to serve a motion for a definite statement,
pursuant to Civ. R. 12(E).
See Point Rental Co. v. Posani, 52 Ohio App.2d 183, 186, 368 N.E.2d 1267 qo" Dist.1976).
Therefore, Berardi requests SHP be required to amend its Complaint and rectify its
pleading deficiencies by attaching the contract it relies on for the basis of its claims against
Berardi. In the event SHP fails to obey the order of this Court, the Court may strike SHP’s
Complaint, or make any other orders as it deems just, which would include involuntary dismissal
with prejudice pursuant to Civ. R. 41(B)(1). See Id; Civ. R. 12(E); Civ. R. 10(D)(1).
TI. Conclusion
Wherefore, Berardi respectfully requests this Court Order SHP to provide a more definite
statement and attach the contract which gives rise to the basis of its Complaint to allow Berardi
to properly frame its Answer.
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- O42 1
Tera, Sherman@
Counsel for Defendant Berardi Partners, Inc.
4845-1068-6276.1 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032
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CERTIFICATE OF SERVICE
Thereby certify on this 27th day of February, 2017, a true and correct copy of the foregoing has
been sent vie electronic mail to the following counsel of record:
David M. Rickert, Esq.
Dunlevey Mahan & Furry
110 North Main Street, Suite 1000
Dayton, Ohio 45402
dir @ deofdayton. com
Counsel for Plaintiff
/s/ Bradley J. Barmen
Bradley J. Barmen (0076515)
Theresa A. Sherman (0090971)
Counsel for Defendant Berardi Partners, Inc.
4845-1068-6276.1 3
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032 0D475 - N50 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO STEED HAMMOND PAUL, INC, Case No.: CV 17-001032 Plaintiff, JUDGE JEFFREY M. BROWN v. DEFENDANT’S MOTION FOR MORE DEFINITE STATEMENT BERARDI PARTNERS, INC., Defendants. Now comes Defendant Berardi Partners, Inc., (“Berardi”), by and through counsel, and respectfully requests this Honorable Court Order Plaintiff Steed Hammond Paul, Inc., (“SHP”) to provide a more definite statement pursuant to Civ. R. 12(E) and Civ. R. 10(D)(1). As is more fully set out in the attached Memorandum, on January 30, 2017, SHP filed its three-count Complaint alleging inter alia, Defendant “breached its contractual obligations.” See Complaint, {{ 4. To support its allegations, SHP continually refers to “documents evidencing the contract between SHP and Berardi are attached hereto as Exhibit 1 (collectively, the “Contract”).” See Complaint. However, SHP failed to attach a single document showing the existence of any contract between the parties, let alone any document showing Berardi’s alleged “contractual obligations” which give rise to SHP’s claims. Further, in its Complaint, SHP failed to state the reason for its omission of the contract as required by Civ. R. 10(D)(1). Therefore, Berardi respectfully requests this Court Order SHP to provide a more definite statement and 4845-1068-6276.10D475 - N51 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032 amend its Complaint to include the contract which allegedly gives rise to its claims against Berardi. 4845-1068-6276.1 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 ET @lewisbrisbois. cour Counsel for Defendant Berardi Partners, Inc.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032 0D475 - N52 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 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 Complaint. Now, SHP seeks judgment against Berardi pursuant to a contract SHP neither attached to its Complaint, nor explained in its Complaint the reason for its failure to attach any documents showing any relationship between the parties. See Id. I. Law and Argument Ohio Rule of Civil Procedure 12(E) states in part: Motion for definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a definite statement before interposing his responsive pleading. Here, in its Complaint, SHP has made allegations based upon a written contract. See Complaint. However, SHP failed to attach a single document to its Complaint showing the existence of any contract with Berardi. SHP also failed to give any reason for its omission of these documents which allegedly provide the basis for its claims against Berardi. See Complaint. Ohio Rule of Civil Procedure 10(D)(1) states: Account or written instrument. When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading. 4845-1068-6276.1Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032 0D475 - N53 The Tenth District Court of Appeals stated: The proper procedure in attacking the failure of a plaintiff to attach a copy of a written instrument or to state a valid reason for his failure to attach same is to serve a motion for a definite statement, pursuant to Civ. R. 12(E). See Point Rental Co. v. Posani, 52 Ohio App.2d 183, 186, 368 N.E.2d 1267 qo" Dist.1976). Therefore, Berardi requests SHP be required to amend its Complaint and rectify its pleading deficiencies by attaching the contract it relies on for the basis of its claims against Berardi. In the event SHP fails to obey the order of this Court, the Court may strike SHP’s Complaint, or make any other orders as it deems just, which would include involuntary dismissal with prejudice pursuant to Civ. R. 41(B)(1). See Id; Civ. R. 12(E); Civ. R. 10(D)(1). TI. Conclusion Wherefore, Berardi respectfully requests this Court Order SHP to provide a more definite statement and attach the contract which gives rise to the basis of its Complaint to allow Berardi to properly frame its Answer. 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- O42 1 Tera, Sherman@ Counsel for Defendant Berardi Partners, Inc. 4845-1068-6276.1 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Feb 27 3:17 PM-17CV001032 0D475 - N54 CERTIFICATE OF SERVICE Thereby certify on this 27th day of February, 2017, a true and correct copy of the foregoing has been sent vie electronic mail to the following counsel of record: David M. Rickert, Esq. Dunlevey Mahan & Furry 110 North Main Street, Suite 1000 Dayton, Ohio 45402 dir @ deofdayton. com Counsel for Plaintiff /s/ Bradley J. Barmen Bradley J. Barmen (0076515) Theresa A. Sherman (0090971) Counsel for Defendant Berardi Partners, Inc. 4845-1068-6276.1 3