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Case Information
Filed
2023-06-27
Status
CLOSED
Type
Civil Boardman
Docket
23 entries
Disposition
dismiss
Parties
Plaintiff
Dimatteo, Candida
Defendant
Clossen, James|Ray, Cindy
Lawyers
Docket Entries
- $0.00
- ADDITIONAL DEFENDANTS Receipt: 304481 Date: 06/27/2023
- Issue Date: 06/29/2023 Service: SUMMONS ISSUED Method: (B) CERTIFIED MAIL Cost Per: $ CLOSSEN, JAMES 790 LARKRIDGE AVE BOARDMAN, OH 44512 Tracking No: 9414726699042203620479 RAY, CINDY 790 LARKRIDGE AVE BOARDMAN, OH 44512 Tracking No: 9414726699042203620486
- SUCCESSFUL SERVICE Method : (B) CERTIFIED MAIL Issued : 06/29/2023 Service : SUMMONS ISSUED Served : 07/03/2023 Return : 07/06/2023 On : CLOSSEN, JAMES Signed By : J. CLOSSEN Reason : (B) SUCCESSFUL Comment : Tracking #: 9414726699042203620479
- SUCCESSFUL SERVICE Method : (B) CERTIFIED MAIL Issued : 06/29/2023 Service : SUMMONS ISSUED Served : 07/03/2023 Return : 07/06/2023 On : RAY, CINDY Signed By : JAMES CLOSSEN Reason : (B) SUCCESSFUL Comment : Tracking #: 9414726699042203620486
- NOTICE OF APPEARANCE AS COUNSEL OF RECORD FOR DEFEDANT FILED BY Attorney: CERNI, NICHOLAS S (93260)
- ANSWER FILED
- MOTION TO DISMISS/MOTION FOR MORE DEFINITE STATEMENT FILED Attorney: CERNI, NICHOLAS S (93260)
- HEARING SCHEDULED Event: CIVIL PRE TRIAL (B) Date: 10/30/2023 Time: 9:45 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- COUNSEL PRESENT FOR PLAINTIFF: KEVIN DALEY COUNSEL PRESENT FOR DEFENDANT: NICHOLAS A CERNI DISCOVERY TO BE COMPLETED IN:60 DAYS DISPOSITIVE MOTIONS, IF ANY, IN:90 DAYS MOTION TO DISMISS FILED 8/3/23 TO BE SET FOR NON-ORAL HEARING IN 30 DAYS TRIAL TO:BENCH SET FOR BENCH TRIAL IN:120 DAYS OTHER: /S/ DONALD J DESANTO
- HEARING SCHEDULED Event: NON ORAL HEARING (B) Date: 12/04/2023 Time: 12:00 pm Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- HEARING SCHEDULED Event: CIVIL TRIAL (B) Date: 03/04/2024 Time: 10:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- The Proceedings This matter came on for non-oral hearing on December 4, 2023 on the defendants' motion to dismiss/motion for more definite statement filed August 2, 2023. Present Were Neither party nor counsel was required to appear as the matter was considered by way of a non-oral hearing. The Findings of Fact and Conclusions of Law 1. Plaintiff filed her complaint on June 27, 2023. Plaintiff's complaint is described as a Complaint for Breach of Contract. The complaint alleges that the parties entered into an agreement whereby plaintiff would lend the defendants money and that the defendants would repay same to the plaintiff. The complaint further alleges the amount lent, monthly payments to be repaid, amount repaid, and the balance owing. Plaintiff requests judgment in the amount of $1,300.00 plus attorney's fees and costs. Both parties were properly served with a copy of the summons and complaint on July 3, 2023. 2. The defendants filed their joint motion to dismiss/motion for more definite statement on August 2, 2023. To same the Plaintiff has filed no response. Defendants argue that the plaintiff has failed to provide proof of the existence of a valid, binding contract. Defendants argue that the plaintiff's failure to allege a legal foundation justifies a dismissal pursuant to the Ohio Supreme Court case of O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242 [71 O.O. 2d 223, 327 N.E. 2d 753]. The Court notes that O'Brien holds that a dismissal for failure to state a claim is appropriate where, [T]he plaintiff can prove no set of facts entitling him to recovery. Here, the plaintiff has failed to indicate whether there was a written or oral contract between the parties. Assuming the agreement that the plaintiff alleges existed between the parties was an oral contract then clearly there exists a set of facts entitling her to recovery which would preclude dismissal. 3. The defendants' motion for a more definite statement assumes that there is a written contract between the parties which was not attached to the complaint as per O.R. Civ. P. 10(D). Assuming that this Court is inclined to direct the plaintiff to provide a more definite statement such an order would simply require the plaintiff to amend her complaint to clarify whether the claimed contract was oral or written, and if written to attach a copy, or explain the reason for not attaching same, as per Civil Rule 10(D). Decision 1. Defendants' motion to dismiss is overruled. 2. Defendants' motion for a more definite statement is granted. Plaintiff is to provide an amended complaint within a period of 14 days clarifying whether the agreement upon which her complaint is premised was oral or in writing. ______________ ________________________________ Date Donald J. DeSanto, Magistrate
- THE ATTACHED DECISION WAS FILED BY THE MAGISTRATE OF THIS COURT ON DECEMBER 18, 2023 . THE COURT FINDS THAT NO WRITTEN OBJECTIONS HAVE BEEN TIMELY FILED. THE COURT HAS CONDUCTED AN INDEPENDENT REVIEW OF THE MAGISTRATE'S DECISION AND FINDS THAT SUCH DECISION IS WELL SUPPORTED AND THERE IS NO ERROR OR DEFECT ON THE FACE OF SUCH DECISION. ACCORDING, SUCH ATTACHED MAGISTRATE'S DECISION IS ADOPTED IN ITS ENTIRETY, PURSUANT TO CIVIL RULE 53(D)(4), AS A PERMANENT ORDER OF THE COURT. /S/ JOSEPH M HOUSER/MKD
- THIS MATTER CAME ON FOR HEARING ON 3/4/24. PARTIES AGREE THAT THE ALLEGED CONTRACT IN THE INTANT MATTER IS AN ORAL CONTRACT. PARTIES AGREE FOR THIS MATTER TO BE SET FOR TRIAL IN 30 DAYS. /S/JMH/DJD/MKD
- HEARING SCHEDULED Event: CIVIL TRIAL (B) Date: 04/08/2024 Time: 10:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- BY AGREEMENT OF THE PARTIES CASE DISMISSED WITH PREJUDICE AT PLAITIFF'S COSTS./S/JMH/DJD
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- Related cases and filings
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