United States District Court, S.D. Ohio, Western Division, Cincinnati
THE DEVINE GROUP, INC. PLAINTIFF
OMNI HOTELS CORPORATION DEFENDANT
MEMORANDUM OPINION AND ORDER
William O. Bertelsman United States District Judge.
a run-of-the-mill contract dispute. Defendant Omni Hotels and
Plaintiff, The Devine Group, entered into a written
agreement. Defendant terminated the contract without cause
because it believed it had that right under the terms of the
contract. Plaintiff claimed the parties agreed to a longer
engagement and filed this lawsuit, asserting three counts:
(1) declaratory judgment; (2) anticipatory repudiation; and
(3) breach of contract.
September 20, 2018, this Court heard oral argument on
Defendant's first motion to dismiss (Doc. 5) and the
parties' cross-motions for judgment on the pleadings
(Docs. 10, 19). (Doc. 20). These motions were denied without
prejudice, and the Court granted Plaintiff 90 days “to
produce to [D]efendant any evidence to support
[P]laintiff's interpretation of the contract, ” and
60 days thereafter to conduct any depositions. Id.
Plaintiff produced thirty pages of e-mail communications that
preceded the formation of the Contract. With a few
exceptions, these e-mails are primarily between
Plaintiff's own personnel. (Doc. 25-3). The parties,
however, did not conduct any depositions.
matter is now before the Court on the following motions: (1)
Defendant's motion for judgment on the pleadings or, in
the alternative, motion for summary judgment (Doc.
(2) Defendant's renewed motion to dismiss Count I (Doc.
26);and (3) Plaintiff's motion for summary
judgment (Doc. 25). The Court dispenses with oral argument at
this stage because the materials before it adequately present
the facts and legal contentions. Accordingly, the matter is
ripe for disposition.
forth below, the parties' contract unambiguously
permitted Defendant to terminate the contract when it did,
and therefore the Court will grant Defendant's motion for
judgment on the pleadings.
AND PROCEDURAL BACKGROUND
material facts giving rise to this controversy are
undisputed. Plaintiff, The Devine Group, Inc.
(“Devine”), provides businesses with employee and
talent assessment services. (Doc. 1, ¶ 12). Defendant,
Omni Hotels Corporation (“Omni”), operates hotels
throughout the United States, Canada, and Mexico.
Id. at ¶ 13. On May 4, 2016, the parties
executed the Enterprise People Analytics Solutions contract
(the “Contract”). Id. at 22; see
Id. at ¶ 14. The Contract was drafted by Devine.
See id. at 17.
to the Contract, Devine agreed to provide its professional
services to Omni. (Doc. 1 at 18). Omni, in turn, agreed to
pay a monthly fee in accordance with Section III of the
Contract as follows:
ENTERPRISE MONTHLY FEE
at 19. The agreed duration of the Contract is set
forth in Section V, which is the center of this dispute. That
provision, under the heading "TERM," states:
The Term of this Enterprise License is equal to the Terms in
Section III above. At the end of the first term, ending
December 31st, 2016, Omni will have the option to
terminate the agreement. Notice must be provided in writing
no later than December 31st, 2016. There will be
additional annual renewals thereafter unless canceled by
either party with 60 days prior written notice.
uncontested that Omni did not exercise its option to
terminate the Contract on December 31, 2016. (Doc. 1,
¶21); (Doc. 3, ¶ 21). Hence, Devine continued to
provide its services and, for the next year, Omni paid the
increased monthly fee of $6, 875. See (Doc. 1,
¶¶ 19-24). Then, on October 26, 2017, Devine
received a “Termination Letter” from Omni, for
the stated purpose of “initiating the termination of
[the] contract” and “providing the required 60
day written notice to terminate the agreement and discontinue
service effective December 31, 2017.” (Doc. 1 at
time, Devine claims it responded to Omni that the Contract
Term ran through December 31, 2019, and that the Termination
Letter did not terminate the Contract. Id. at ¶
23. Omni, however, allegedly responded that it was
“firm in [its] resolve” and “well within
the terms of the [C]ontract to end the agreement” when
it did. Id. at ¶ 26. When Omni then refused to
pay Devine's January 2018 invoice, Devine filed suit in
state court on February 26, 2018. Id. at ¶ 25;
see Id. at 5. Omni timely removed the case to this
Court. Id. at 1.
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). “The standard of review for a Rule
12(c) motion is the same as for a motion under Rule 12(b)(6)
for failure to state a claim upon which relief can be
granted.” Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
survive a motion to dismiss, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “For purposes
of a motion for judgment on the pleadings, all well-pleaded
material allegations of the pleadings of the opposing party
must be taken as true, and the motion may be granted only if
the moving party is nevertheless clearly entitled to
judgment” as a matter of law. McGlone v. Bell,
681 F.3d 718, 728 (6th Cir. 2012) (citation and internal
quotation marks omitted).
evaluating a Rule 12(c) motion, a court may consider: (1)
“documents attached to the pleadings”; (2)
documents “referred to in the pleadings” that
“[are] integral to the claims”; and (3)
“matters of public record”-and may do so
“without converting the motion to one for summary
judgment.” Commercial Money Ctr., Inc. v. Illinois
Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007);
see also Brent v. Wayne Cty. Dep't of Human
Servs., 901 F.3d 656, 695 (6th Cir. 2018) (explaining
that if a party has “attached exhibits to their motion
for judgment on the pleadings, [a court] may consider those
exhibits so long as they are referred to in the Complaint and
are central to the claims contained therein.” (citation
and internal quotation marks omitted)); Henry v.
Chesapeake Appalachia, LLC, 739 F.3d 909, 912 (6th Cir.
2014); Fed.R.Civ.P. 10(c).
materials other than those listed above “are presented
to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56.” See,
e.g., Fed.R.Civ.P. 12(d); Max Arnold & Sons, LLC
v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir.
2006). Summary judgment under Rule 56 is appropriate only
when the Court, viewing the record as a whole and in the
light most favorable to the nonmoving party, determines that
there exists no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
summary judgment standard does not change simply because the
parties presented cross-motions.” Profit Pet v.
Arthur Dogswell, LLC, 603 F.3d 308, 311 (6th Cir. 2010).
“[R]ather, a court must evaluate each party's
motion on its own merits, taking care in each instance to
draw all reasonable inferences against the party whose motion
is under consideration.” Id. (citations and
internal quotation marks omitted).
I. Breach of Contract (Count III)
Court will first address Devine's breach of contract
claim because it is at the heart of Devine's Complaint
and necessarily encompasses the other two claims for
declaratory judgment and anticipatory repudiation.
Contract contains a choice-of-law clause that explicitly
provides that the terms shall be construed according to Ohio
law. (Doc. 1 at 21). The law of Ohio therefore governs this
required elements for a breach of contract claim under Ohio
law are: “(1) the existence of a contract; (2)
performance by the plaintiff; (3) breach by the defendant;
and (4) damage or loss to the plaintiff as a result of the
breach.” V&M Star Steel v. Centimark
Corp., 678 F.3d 459, 465 (6th Cir. 2012); Jarupan v.
Hanna, 878 N.E.2d 66, 73 (Ohio Ct. App. 2007). Only the
“breach” element is implicated by the
parties' dispositive cross-motions. But the issue here is
not whether Omni sent the Termination Letter and refused to
make any further payments. Instead, the question is whether
Omni had the right to terminate the Contract when it did.
Principles of Contract Interpretation
“interpretation of written contract terms, including
the determination of whether those terms are ambiguous, is a
matter of law for initial determination by the court.”
Savedoff v. Access Grp., Inc., 524 F.3d 754, 763
(6th Cir. 2008) (applying Ohio law). “When confronted with
an issue of contract interpretation, [the court's] role
is to give effect to the intent of the parties.”
Sunoco, Inc. (R&M) v. Toledo Edison Co., 953
N.E.2d 285, 292 (Ohio 2011). “[T]hat intent is presumed
to reside in the language [the parties] chose to employ in
the agreement.” State ex rel. Petro v. R.J.
Reynolds Tobacco Co., 820 N.E.2d 910, 915 (Ohio 2004);
Sunoco, Inc. 953 N.E.2d at 292. “Where a
contract is found to be integrated, courts consider the
language of the contract alone to define the obligations by
which the parties intended to be bound.” Dottore v.
Huntington Nat'l Bank, 480 Fed.Appx. 351, 352 (6th
Cir. 2012) (citing Bellman v. Am. Int'l Grp.,
865 N.E.2d 853, 856-57 (Ohio 2007)).
meaning of a contract is to be gathered from a consideration
of all its parts, and no provision is to be wholly
disregarded as inconsistent with other provisions unless no
other reasonable construction is possible.”
Savedoff, 524 F.3d at 763 (quoting Burris v.
Grange Mut. Co., 545 N.E.2d 83, 88 (Ohio 1989)). This
includes “writings executed as part of the same
transaction.” Textileather Corp. v. GenCorp
Inc., 697 F.3d 378, 382 (6th Cir. 2012) (citation and
internal quotations omitted). “Common, undefined words
appearing in a contract will be given their ordinary meaning
. . .” Sunoco, Inc., 953 N.E.2d at 292. But
courts do not give words their ordinary meaning if
“manifest absurdity results, ” id., or
“some other meaning is ...