NAILAH K. BYRD CUYAHOGA COUNTY CUERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas

Transcription

1 NAILAH K. BYRD CUYAHOGA COUNTY CUERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas OTHER Electronically Filed: September 26, :04 By: DANIEL J. MYERS Confirmation Nbr PAUL NEEL, ETAL. CV vs. A. PERRINO CONSTRUCTION, INC., ETAL. Judge: JANET R. BURNSIDE Pages Filed: 8 Electronically Filed 09/26/ :04 / OTHER / CV / Confirmation Nbr / BATCH

2 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO PAUL NEEL, et al., Plaintiffs, vs. A. PERRINO CONSTRUCTION, INC., et al., Defendants, vs. DANIEL J. MYERS New Party CASE NO.: CV JUDGE JANET R. BURNSIDE PLAINTIFFS REPLY TO DEFENDANTS PAT PERRINO AND A. PERRINO CONSTRUCTION, INC. S COUNTERCLAIM Plaintiffs Paul and Stephanie Neel, by and through their undersigned counsel, hereby file their Reply to the Counterclaim filed by Defendants A. Perrino Construction, Inc. ( Perrino Construction and Pat Perrino, (collectively Perrino Defendants against Plaintiffs Paul and Stephanie Neel ( Neel Family, and aver, allege, deny, and reply as follows: 1. In response to paragraph 1 of the Counterclaim, Plaintiffs incorporate the allegations of their Complaint as if fully re-written herein, and otherwise deny all statements and affirmative defenses in Perrino Defendants Answer which were not admissions of the allegations in the Complaint. 2. In response to paragraph 2 of the Counterclaim, Plaintiffs are without knowledge or information sufficient to form a belief, and therefore deny the allegation. 3. Plaintiffs admit the allegations in Counterclaim paragraph In response to paragraph 4 of the Counterclaim, Plaintiffs admit that they now live in Medina County, Ohio.

3 5. In response to paragraph 5 of the Counterclaim, Plaintiffs deny the allegations due to lack of information or knowledge sufficient to form a belief. 6. In response to paragraph 6 of the Counterclaim, Plaintiffs admit that venue is proper as to the Counterclaim counts as filed against them, but deny the remaining allegations. 7. In response to paragraph 7 of the Counterclaim, Plaintiffs admit that they entered into a contract with Perrino Construction, admit the amount identified for the original work, but deny that a true and accurate copy of the completed contract is attached to the Counterclaim. 8. In response to paragraph 8 of the Counterclaim, Plaintiffs move to strike the scandalous, impertinent, and frivolous allegations, admit that the misconduct of Perrino Defendants and life events were causing them stress, and deny that they ever stated or believed that they would file for divorce. All other allegations are denied. 9. In response to paragraph 9 of the Counterclaim, Plaintiffs deny the allegations. 10. In response to paragraph 10 of the Counterclaim, Plaintiffs deny that Perrino Defendants ever provided the cost sheets, admit that they had issues with being overcharged for various items, but deny the remaining allegations. 11. In response to paragraph 11 of the Counterclaim, Plaintiffs deny the allegations. 12. In response to paragraph 12 of the Counterclaim, Plaintiffs deny the allegations. 13. In response to paragraph 13 of the Counterclaim, Plaintiffs deny the allegations. 14. In response to paragraph 14 of the Counterclaim, Plaintiffs deny the allegations. 15. In response to paragraph 15 of the Counterclaim, Plaintiffs admit that they requested substandard and shoddy work be corrected and finished, but deny the remaining allegations.

4 16. In response to paragraph 16 of the Counterclaim, Plaintiffs deny the allegations. 17. In response to paragraph 17 of the Counterclaim, Plaintiffs deny the allegations. 18. In response to paragraph 18 of the Counterclaim, Plaintiffs deny the allegations. 19. In response to paragraph 19 of the Counterclaim, Plaintiffs admit that Daniel J. Myers of Myers Law, LLC was retained as counsel for Plaintiffs, but deny any other allegations. 20. In response to paragraph 20 of the Counterclaim, Plaintiffs admit that Myers posted a blog posting as attached as Exhibit 2 to the Counterclaim, but deny all remaining allegations. 21. In response to paragraph 21 of the Counterclaim, Plaintiffs admit that Myers posted a blog posting as attached as Exhibit 2 to the Counterclaim, but deny all remaining allegations. 22. In response to paragraph 22 of the Counterclaim, Plaintiffs deny the allegations. 23. In response to paragraph 23 of the Counterclaim, Plaintiffs deny the allegations. 24. In response to paragraph 24 of the Counterclaim, Plaintiffs deny the allegations. 25. In response to paragraph 25 of the Counterclaim, Plaintiffs admit only that Defendants filed a Counterclaim, but deny the remaining allegations. 26. In response to paragraph 26 of the Counterclaim, Plaintiffs incorporate the foregoing 27. In response to paragraph 27 of the Counterclaim, Plaintiffs deny the allegations. 28. In response to paragraph 28 of the Counterclaim, Plaintiffs deny the allegations. 29. In response to paragraph 29 of the Counterclaim, Plaintiffs deny the allegations. 30. In response to paragraph 30 of the Counterclaim, Plaintiffs deny the allegations. 31. In response to paragraph 31 of the Counterclaim, Plaintiffs incorporate the foregoing

5 32. In response to paragraph 32 of the Counterclaim, Plaintiffs admit that a dispute exists between Plaintiffs and Defendants. 33. In response to paragraph 33 of the Counterclaim, Plaintiffs deny the allegations. 34. In response to paragraph 34 of the Counterclaim, Plaintiffs deny the allegations. 35. In response to paragraph 35 of the Counterclaim, Plaintiffs incorporate the foregoing 36. In response to paragraph 36 of the Counterclaim, Plaintiffs deny the allegations. 37. In response to paragraph 37 of the Counterclaim, Plaintiffs deny the allegations. 38. In response to paragraph 38 of the Counterclaim, Plaintiffs deny the allegations. 39. In response to paragraph 39 of the Counterclaim, Plaintiffs incorporate the foregoing 40. In response to paragraph 40 of the Counterclaim, Plaintiffs deny the allegations. 41. In response to paragraph 41 of the Counterclaim, Plaintiffs deny the allegations. 42. In response to paragraph 42 of the Counterclaim, Plaintiffs deny the allegations. 43. In response to paragraph 43 of the Counterclaim, Plaintiffs incorporate the foregoing 44. In response to paragraph 44 of the Counterclaim, Plaintiffs deny the allegations. 45. In response to paragraph 45 of the Counterclaim, Plaintiffs deny the allegations. 46. In response to paragraph 46 of the Counterclaim, Plaintiffs deny the allegations. 47. In response to paragraph 47 of the Counterclaim, Plaintiffs incorporate the foregoing 48. In response to paragraph 48 of the Counterclaim, Plaintiffs deny the allegations. 49. In response to paragraph 49 of the Counterclaim, Plaintiffs deny the allegations.

6 50. In response to paragraph 34 of the Counterclaim, which should be numbered as paragraph 50 of the Counterclaim but is incorrectly numbered, Plaintiffs deny the allegations. 51. Plaintiffs deny all other allegations not specifically and expressly admitted herein. AFFIRMATIVE DEFENSES 1. Defendants fail to state a claim upon which relief may be granted. 2. Defendants waived any right to the payments claimed or demanded. 3. Defendants claims fail due to Defendants fraud, estoppel, and/or unclean hands. 4. Defendants claims fail due to laches. 5. Defendants claims fail due to Defendants failure to properly name and/or serve all necessary and indispensable parties. 6. Defendants claims fail due to Defendants initial and material breach of contract, as outlined in the Complaint. 7. Plaintiffs incorporate all allegations in their Complaint as affirmative defenses herein. 8. Plaintiffs at all times acted in good faith, reasonably, and by telling the truth and only the truth. 9. Plaintiffs are privileged or justified to make the statements that they made and to take the actions that they took. 10. Plaintiffs do not know and have never known others whom Defendants contract with. 11. Plaintiffs never acted with intent to harm, or with malice, in actions taken as alleged in the Counterclaim. 12. Defendants damages, if any, were the proximate and direct result of Defendants own negligence, actions, omissions, or over entities whom Defendants had control.

7 13. Defendants Counterclaim violates the First Amendment to the United Stated Constitution, as well as related Ohio Constitutional rights to free speech, expression, and the exercise thereof. 14. Defendants requested injunctions are not reasonably tailored, or tailored at all, and amount to a gag order on topics of public concern and import. 15. Defendants Counterclaim fails due to novation, accord and satisfaction, or waiver. 16. Defendants Counterclaims for intentional interference with contract fail due to Defendants own allegations of Plaintiffs financial interest. 17. Defendants Counterclaims for intentional interference with business relationship fail due to Defendants own allegations of Plaintiffs financial interest. 18. Defendants Counterclaims for defamation fail because the blog posting contained only true statements, about what the Complaint alleged or did not allege, which are all a matter of public record. 19. Defendants fail to state or plead any special damages required to be so plead, and fail to plead required particular matters as required under Civ.R Defendants failed to attach a full and true copy of the Complaint as required by Civ.R. 10, and failed to give reason why they did not attach the full copy as required by the same rule. 21. Defendants waived their alleged right to arbitration by specifically and expressly invoking the jurisdiction of the trial court. 22. Plaintiffs at all times told the truth. 23. Defendants Counterclaim was filed in order to embarrass or harass the Plaintiffs and not with probable cause.

8 24. Plaintiffs reserve the right to supplement these affirmative defenses once more information is obtained in discovery throughout this litigation. WHEREFORE, Plaintiffs request that this Court dismiss the Counterclaim with prejudice, enter judgment on all counts in favor of Plaintiffs, and award Plaintiffs all court costs, attorney fees, and all other relief this Court deems equitable and just, as well as all relief sought in their Complaint. Respectfully submitted, /s/ Daniel J. Myers, Esq. _ Samantha A. Vajskop ( Daniel J. Myers ( Myers Law, LLC 600 East Granger Rd, Second Floor Cleveland, OH (p; (f SVajskop@MyersLawLLC.com DMyers@MyersLawLLC.com Counsel for Plaintiffs JURY DEMAND Plaintiffs hereby request a trial by jury of the maximum size permitted by law for all claims so able to be tried. /s/ Daniel J. Myers

9 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing was served on this September 26, 2016, via on counsel for Defendants and via e-service with the Court. /s/ Daniel J. Myers _