Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 1 of 9. PageID #: 91
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`CASE NO. 1:21 CV 612
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`JUDGE PATRICIA A. GAUGHAN
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`Memorandum of Opinion and Order
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`Andrew Kitral, et al,
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`Plaintiffs,
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`Vs.
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`NVR, Inc.,
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`Defendant.
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`INTRODUCTION
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`This matter is before the Court upon defendant NVR, Inc.’s Motion to Dismiss (Doc. 5).
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`This action arises out of plaintiff’s home purchase. For the reasons that follow, the Court
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`GRANTS the motion.
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`FACTS
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`Plaintiffs, Andrew and Katie Kitral, brought this lawsuit in the Medina County Common
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`Pleas Court against defendant NVR, Inc. dba Ryan Homes (“NVR”). On March 17, 2021, NVR
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`removed this matter to federal court on the basis of diversity jurisdiction.
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`For purposes of ruling on the pending motion, the facts asserted in the Complaint are
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`1
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 2 of 9. PageID #: 92
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`presumed to be true.
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`In 2017, plaintiffs were searching for a home to purchase. One of plaintiffs’ specific
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`requirements for their future home was that it have, or have the potential to have, an in-ground
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`swimming pool. Plaintiffs approached NVR regarding building such a home. Plaintiffs made it
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`clear to NVR that whatever lot their home was to be built on must be able to have an in-ground
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`swimming pool.
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`NVR then marketed a particular lot to plaintiffs in the City of Brunswick, Ohio. NVR’s
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`sales representative, Tiffany Henn (Santee), indicated to plaintiffs that she contacted the City of
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`Brunswick and was told that an in-ground swimming pool could be built on this particular lot.
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`Plaintiffs executed a purchase agreement with NVR for the sale of the lot and home.
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`In November 2017, plaintiffs’ home was built and completed. Plaintiffs moved into the
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`home. Following the winter of 2018, plaintiffs began to obtain estimates for an in-ground
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`swimming pool. Plaintiffs chose a contractor and received homeowner association approval for
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`the pool. However, the City of Brunswick denied their request to have an in-ground swimming
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`pool built on their lot. Plaintiffs then attempted to obtain a zoning variance from the Brunswick
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`City Board of Zoning Appeals, but this request was denied in January 2019. Plaintiffs have been
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`unable to build an in-ground swimming pool on their lot, despite the representations made by
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`NVR.
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`The Complaint contains two claims for relief. Count One is a claim for breach of
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`contract. Counts Two alleges violations of the Ohio Consumer Sales Practices Act (“OCSPA”).
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`This matter is now before the Court upon NVR’s Motion to Dismiss. NVR seeks
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`dismissal on the basis of failure to state a claim. Plaintiffs oppose this Motion.
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`2
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 3 of 9. PageID #: 93
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`STANDARD OF REVIEW
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`When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
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`Civil Procedure, the allegations of the complaint must be taken as true and construed liberally in
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`favor of the plaintiff. Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999).
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`However, the complaint must set forth “more than the bare assertion of legal conclusions.”
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`Allard v. Weitzman (In Re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). Legal
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`conclusions and unwarranted factual inferences are not accepted as true, nor are mere
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`conclusions afforded liberal Rule 12(b)(6) review. Fingers v. Jackson-Madison County General
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`Hospital District, 101 F.3d 702 (6th Cir. Nov. 21, 1996), unpublished. Dismissal is proper if the
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`complaint lacks an allegation regarding a required element necessary to obtain relief. Craighead
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`v. E.F. Hutton & Co., 899 F.2d 485, 489-490 (6th Cir. 1990).
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`In addition, a claimant must provide “enough facts to state a claim to relief that is
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`plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 (2007). A pleading
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`that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of
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`action will not do.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1955 (2009). Nor does a complaint
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`suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.
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`To survive a motion to dismiss, a complaint must contain sufficient factual matter,
`accepted as true, to state a claim to relief that is plausible on its face. A claim has facial
`plausibility when the plaintiff pleads factual content that allows the court to draw the
`reasonable inference that the defendant is liable for the misconduct alleged. The
`plausibility standard is not akin to a “probability requirement,” but it asks for more than a
`sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
`that are “merely consistent with” a defendant's liability, it stops short of the line between
`possibility and plausibility of ‘entitlement to relief.’
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`Id. at 1949 (citations and quotations omitted). See also, Hensley Mfg. v. ProPride, Inc., 579 F.3d
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`603 (6th Cir.2009).
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`3
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 4 of 9. PageID #: 94
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`ANALYSIS
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`I.
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`Breach of Contract (Count One)
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`NVR argues that the purchase agreement executed between the parties does not set forth
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`any term or provision regarding an in-ground pool. Therefore, NVR contends, because plaintiffs
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`are unable to identify the term or provision that was breached, this claim must be dismissed.
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`Plaintiffs concede “that the written agreement contains no provisions regarding the
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`ability to build an in-ground pool.” Plaintiffs assert, however, that defendant’s representations to
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`them regarding an in-ground pool induced them to enter into the purchase agreement.
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`Under Ohio law, to prevail on a breach of contract claim, a plaintiff must establish that:
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`(1) a contract existed; (2) the plaintiff fulfilled his contractual obligations; (3) the defendant
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`breached; and (4) damages resulted. Kirkland v. St. Elizabeth Hosp. Med. Ctr., 34 Fed. Appx.
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`174, 178 (6th Cir.2002) (citing Nilavar v. Osborn, 127 Ohio App.3d 1, 11 (Ohio App. 2nd
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`Dist.1998)). Further, in the case of a written contract, the complaint must point to a specific
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`contract provision that has been breached. Northampton Rest. Group, Inc. v. First Merit Bank,
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`N.A., 492 Fed.Appx. 518, 521 (6th Cir.2012)
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`Upon review, the Court finds that plaintiffs have not sufficiently pled a claim for breach
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`of contract. The Complaint alleges that NVR “entered into a purchase agreement with Plaintiffs
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`for the sale of a lot and home.” The Complaint also alleges that NVR breached this purchase
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`agreement and “is in default of the terms and conditions of the agreement.” However, the
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`Complaint does not specify which terms of this agreement NVR breached. While the Complaint
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`alleges that NVR made “a material misrepresentation regarding the ability to build an in-ground
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`swimming pool,” the Complaint does not allege that this misrepresentation was incorporated into
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 5 of 9. PageID #: 95
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`the purchase agreement. Moreover, plaintiffs now concede that the purchase agreement does not
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`actually contain any “provisions regarding the ability to build an in-ground pool.”1 Accordingly,
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`because plaintiffs are unable to identify a single contract provision to support their breach of
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`contract claim, dismissal is appropriate. See Northampton Rest. Group, Inc, 492 F. App'x at 521
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`(“[I]t is a basic tenant of contract law that a party can only advance a claim of breach of written
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`contract by identifying and presenting the actual terms of the contract allegedly breached.”);
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`Wamen v. Goodyear Tire & Rubber Co., 2014 WL 185901 *5 (N.D. Ohio 2014) (dismissing
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`breach of contract claim where the complaint did not provide the provision of the agreement that
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`was breached).
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`The Complaint does allege that NVR’s sales representative assured plaintiffs that an in-
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`ground pool could be built on the lot they were looking to purchase. Plaintiffs argue these
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`representations regarding an in-ground pool induced them to sign the purchase agreement. They
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`assert the parol evidence rule allows these representations to be “introduced to prove fraudulent
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`inducement.” Plaintiffs are correct that under some circumstances, the parol evidence rule does
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`not bar the introduction of extrinsic evidence to support a fraudulent inducement claim. Galmish
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`v. Cicchini, 90 Ohio St.3d 22, 28 (2000). However, the Complaint does not contain a claim for
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`1
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`A review of the purchase agreement confirms that there is no provision regarding
`an in-ground pool. Defendant attached the purchase agreement to its Motion to
`Dismiss. The Court may consider such a document on a Motion to Dismiss
`because plaintiffs expressly referenced the purchase agreement in the Complaint.
`See Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008)
`(“When a court is presented with a Rule 12(b)(6) motion, it may consider the
`Complaint and any exhibits attached thereto . . . and exhibits attached to
`defendant's motion to dismiss so long as they are referred to in the Complaint and
`are central to the claims contained therein.”)
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 6 of 9. PageID #: 96
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`fraudulent inducement.2 Breach of contract and fraudulent inducement are two separate causes
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`of action. See Raze Internatl., Inc. v. Southeastern Equip. Co., Inc., 69 N.E.3d 1274, 1289-
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`1291(Ohio App. 7th Dist. 2016). The Court is unable to evaluate a cause of action that does not
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`exist in the Complaint.
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`Accordingly, because plaintiffs can point to no provision in the purchase agreement that
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`was breached, their breach of contract claim fails. The Court GRANTS this portion of NVR’s
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`Motion to Dismiss.
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`II.
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`OCSPA Claim (Count Two)
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`NVR argues that plaintiffs’ OCSPA claim is barred by the OCSPA’s two-year statute of
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`limitations. According to NVR, the date of the alleged OCSPA violation occurred “over five
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`years ago, in connection with the home purchase process that culminated in the Purchase
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`Agreement executed on April 9, 2017.”
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`Plaintiffs argue that their claim is timely because NVR’s misrepresentations regarding an
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`in-ground swimming pool “were continuing in nature” and “fell within the applicable statute of
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`limitations period.” Alternatively, plaintiffs argue that NVR waived the applicable statute of
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`limitations period.
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`“Although a motion under Rule 12(b)(6), which considers only the allegations in the
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`complaint, is generally not an appropriate vehicle for dismissing a claim based upon the statute
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`of limitations, if the allegations in the complaint affirmatively show that the claim is time-barred,
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`dismissing the claim under Rule 12(b)(6) is appropriate.” Cheatom v. Quicken Loans, 587 F.
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`2
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`The Court acknowledges that plaintiffs’ OCSPA claim is also partially premised
`on inducement. However, this claim is time-barred, as explained more fully
`below.
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 7 of 9. PageID #: 97
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`App’x 276, 279 (6th Cir. 2014). See also Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th
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`Cir. 2012) (affirming district court’s dismissal of complaint on statute of limitations grounds).
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`The statute of limitations under the OCSPA is set as follows:
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`An action under [the OCSPA] may not be brought more than two years after
`the occurrence of the violation which is the subject of suit, or more than one
`year after the termination of proceedings by the attorney general with respect
`to the violation, whichever is later.
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`O.R.C. § 1345.10(C). “[T]he statute of limitations commences to run from the date of the
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`occurrence of the violation, which is not necessarily the date of any underlying transaction.”
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`Montoney v. Lincoln Logs, Ltd., 2007-Ohio-236, at ¶ 26 (Ohio App. 10th Dist. 2007). “No
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`discovery rule applies to [OCSPA claims]; R.C. 1345.10(C) sets forth an absolute two-year
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`limitations period for such damage actions.” Id. (internal quotations omitted)
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`Upon review, the Court finds that plaintiffs’ OCSPA claim is time-barred based upon the
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`allegations contained in the Complaint. In the Complaint, plaintiffs allege that NVR’s sales
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`representative “indicated that she contacted the City of Brunswick prior to the purchase
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`agreement, and was told an in-ground swimming pool could be build on the lot in question.”
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`Plaintiffs’ home was then built and completed in November 2017. A fair reading of the
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`Complaint indicates that this alleged misrepresentation made by NVR occurred prior to April
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`2017, when the purchase agreement was executed. There are no factual allegations contained
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`within the Complaint regarding any other representations made by NVR after the purchase
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`agreement was signed. Plaintiffs did not bring this suit until March 8, 2021. Because more than
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`two years passed between the alleged violation and the Complaint, the Court finds that the
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`statute of limitations has lapsed.
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`Plaintiffs maintain that NVR continued to make misrepresentations regarding an in-
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 8 of 9. PageID #: 98
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`ground swimming pool within the statutory limitations period. In support, plaintiffs submit an
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`affidavit and emails which purportedly show that in January 2019, NVR’s sales representative
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`continued to assure plaintiffs that they would be able to have an in-ground swimming pool built
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`on their lot. However, these alleged “continuing violations” are not contained within the
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`Complaint. A complaint cannot be modified by submitting an affidavit in response to a motion
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`to dismiss. See Tate v. Comrie, 2018 WL 1409288, *8 (N.D. Ohio 2018) (striking affidavit filed
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`by plaintiff in response to a motion to dismiss because it provided “additional facts and attaches
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`additional documents outside of” the complaint.) Because these emails were not relied upon or
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`referenced in the Complaint, the Court is unable to consider them. As the Complaint is written,
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`the only allegations of OCSPA violations were the sales representative’s assurances made during
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`the sales process for the home.
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`Alternatively, plaintiffs argue that NVR waived the applicable statute of limitations.
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`However, the Complaint fails to plead any facts to support such a claim. Rather, plaintiffs
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`submit an affidavit and copies of several emails, which purportedly show that in January 2021
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`counsel for NVR agreed to “extend the time during which” plaintiffs “could file a CPSA claim
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`or any claim for that matter until March 1, 2021.”3 The Court cannot consider such evidence on
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`a motion to dismiss, but even if it did, this purported waiver did not occur until after the statute
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`of limitations had already expired. See Gex v. Toys “R” Us, Inc., 2007 WL 2852351, *3 (S.D.
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`Ohio 2007) (“[I]f a statute of limitations has run, it cannot be tolled.”)
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`Indeed, as the Complaint is written, the alleged OCPSA violation occurred in 2017.
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`Accordingly, the applicable statute of limitations expired in 2019. Any waiver purportedly made
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`3
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`The Court notes that this suit was not filed until March 8, 2021.
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`Case: 1:21-cv-00612-PAG Doc #: 10 Filed: 05/13/21 9 of 9. PageID #: 99
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`by NVR in 2021 was made nearly two years after the statute of limitations had already lapsed.
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`Dismissal under Rule 12(b)(6) is appropriate where, as here, “the allegations in the complaint
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`affirmatively show that the claim is time-barred.” Cataldo, 676 F.3d at 547.
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`Accordingly, the Court finds that plaintiffs’ OCSPA claim is time-barred under the two-
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`year statute of limitations.4 The Court therefore GRANTS this portion of NVR’s Motion to
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`Dismiss.
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`CONCLUSION
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`For the foregoing reasons, defendant NVR, Inc.’s Motion to Dismiss (Doc. 5) is
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`GRANTED.
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`IT IS SO ORDERED.
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`Date: 5/13/21
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`/s/Patricial A. Gaughan
`PATRICIA A. GAUGHAN
`United States District Judge
`Chief Judge
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`4
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`NVR makes the additional argument that both of plaintiffs’ claims are time-barred
`due to a one-year claims bar contained within the purchase agreement. Because
`the Court is dismissing both claims on other grounds, it declines to address this
`issue.
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