[Cite as Cicoretti v. A&M Total Restoration, L.L.C., 2026-Ohio-1484.]
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
DEAN CICORETTI ET AL.,
Plaintiffs-Appellants,
v.
A&M TOTAL RESTORATION, LLC DBA NOCELLA ROOFING,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY Case No. 25 MA 0100
Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2025 CV 01368
BEFORE: Cheryl L. Waite, Mark A. Hanni, Katelyn Dickey, Judges.
JUDGMENT: Affirmed.
Atty. Bruce M. Broyles, for Plaintiffs-Appellants
Atty. Kristen E. Campbell, Pelini, Campbell & Ricard, LLC, for Defendant-Appellee
Dated: April 23, 2026 –2–
WAITE, P.J.
{¶1} Appellants Dean and Andrea Cicoretti filed this appeal challenging the
decision of the Mahoning County Court of Common Pleas to dismiss their complaint.
Appellants argue that the court dismissed their complaint solely for failure to comply with
Civ.R. 10(D), which requires a plaintiff to attach a written contract to the complaint.
Appellants claim they did comply with Civ.R. 10(D). However, Appellants did not attach
any contract to their complaint and did not explain the reason for this omission. Therefore,
they did not comply with Civ.R. 10(D). Further, the court did not dismiss the complaint
solely on the basis of their non-compliance with Civ.R. 10(D), as the court based its
decision on Civ.R. 12(B)(6). Appellants also contend the trial court prematurely ruled on
a Civ.R. 12(C) motion for judgment on the pleadings because the pleadings were not
closed. Our review of the record shows that the court did not address a Civ.R. 12(C)
motion for judgment on the pleadings. Instead, it dismissed the complaint for failure to
state a claim for which relief may be granted, pursuant to Civ.R. 12(B)(6). Finally,
Appellants argue that the court relied on documents outside of the pleadings in making
its ruling, but the record does not support this argument. As none of Appellants’
assignments of error have merit, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} This case involves a dispute over construction work done on Appellants’
roof. On November 30, 2022, Appellants filed a complaint against Appellee A&M Total
Restoration, Case No. 2022 CV 02125. Although the complaint was captioned as a
breach of contract action, the body of the complaint actually contained allegations of
negligent, defective, and unworkmanlike conduct. The complaint alleged that Appellants
Case No. 25 MA 0100 –3–
entered into a contract with Appellee in 2018 to replace the roof of their house located at
3755 Sugarbush Drive in Canfield. Appellants alleged that on December 28, 2020 they
suffered a loss at their house that was covered by insurance. It alleged that the loss was
due to the “negligent, defective, and unworkmanlike performance” of Appellee. (11/30/22
Complaint, ¶ 5.) Appellants claimed that Appellee and its employees and agents
“negligently performed roofing installation services[.]” (11/30/22 Complaint, ¶ 6.)
Appellants contended that their loss occurred as a “direct and proximate result of the
negligent, defective, and unworkmanlike conduct” of Appellee. The phrase “negligent,
defective, and unworkmanlike” was repeated three more times in their complaint to
describe the basis of their loss. Completely absent from their complaint was any
allegation that a breach of contract occurred. The complaint did not describe any of the
terms of a contract. The November 30, 2022 complaint was voluntarily dismissed on
October 26, 2023.
{¶3} Appellants refiled their complaint on May 27, 2025, Case No. 2025 CV
01368. This complaint was again captioned as a breach of contract matter, but the body
of the complaint alleged the sole claim of negligent construction, and the complaint
referenced the four year statute of limitations for negligent construction. This new
complaint, like the original, stated that Appellants entered into a contract with Appellee,
but no terms of the contract are set forth and the complaint asserts no allegation of breach
of contract. Just as in the original complaint, this complaint contains allegations that
Appellee negligently performed work on Appellants’ roof, and that all damages Appellants
incurred were as a result of the “negligent, defective, and unworkmanlike conduct” of
Appellee. (May 27, 2025 Complaint, ¶ 9-10.)
Case No. 25 MA 0100 –4–
{¶4} Appellee filed a motion to dismiss on July 16, 2025, alleging that the refiled
complaint was filed after the statute of limitations had expired for a negligence action, and
outside of the parameters of the saving statute, R.C. 2305.19.
{¶5} On July 18, 2025, Appellants again refiled the complaint, explicitly stating
they were refiling the complaint that was filed in Case No. 2022 CV 02125. It was again
captioned as a breach of contract, but the allegations within the complaint only addressed
negligent construction, just as in the earlier complaints. Appellants again stated in the
complaint that they suffered a loss on December 28, 2020. A comparison of the
November 30, 2022 complaint with this July 18, 2025 complaint reveals that they are
identical except for an addition to the first line of the July 18, 2025 complaint stating that
it is intended as a refiling of Case No. 2022 CV 02125.
{¶6} On July 21, 2025, Appellant again refiled the July 18, 2025 complaint. It is
not clear from the record why this refiling occurred.
{¶7} On July 30, 2025, Appellee filed a Civ.R. 12(B)(6) motion to dismiss and/or
a motion for a more definite statement under Civ.R. 12(E). The motion to dismiss alleged
that Appellants failed to attach a copy of the contract to the complaint and that the
complaint failed to state that the alleged contract was for future construction. In its motion
Appellee concluded that, pursuant to Civ.R. 10(D), Appellants had not adequately alleged
a claim for breach of a written contract.
{¶8} On August 5, 2025, Appellants filed a document captioned “Compliance
with Civil Rule 10(D).” This document was intended as Appellants’ response to Appellee’s
motion for a more definite statement. Appellants’ response included their assertion that
the alleged contract was a written contract and that the contract was destroyed by water
Case No. 25 MA 0100 –5–
damage. Appellants also stipulated that if the complaint were construed as a complaint
for breach of an oral contract, it would be time-barred.
{¶9} On August 14, 2025, Appellee filed for judgment on the pleadings. On
August 15, 2025, Appellants filed a response. On October 9, 2025, the court granted
Appellee’s Civ.R. 12(B)(6) motion and dismissed the complaint. This timely appeal
followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN FINDING THAT APPELLANTS FAILED TO
COMPLY WITH CIV.R. 10(D).
{¶10} After Appellants filed their fourth (virtually identical) complaint in this matter,
on July 30, 2025, Appellee filed a Civ.R. 12(B)(6) “Motion to Dismiss, or in the Alternative,
Motion for a More Definite Statement.” The basis of the motion for a more definite
statement was that Appellants did not attach the written contract to their complaint as
required by Civ.R. 10(D), and did not set forth any of the terms of a contract in their
complaint. Appellee argued that Appellants could not pursue a claim for breach of a
written contract without attaching the contract to the complaint or explaining in the
complaint why it was not attached, as set forth in Civ.R. 10(D). Appellee also suggested
that without any further explanation from Appellants, all counts in the complaint were time-
barred, including their claims of negligence and breach of contract. The basis for
Appellee’s Civ.R. 12(B)(6) motion to dismiss was that the complaint lacked a cognizable
claim.
Case No. 25 MA 0100 –6–
{¶11} Without waiting for the court to act on Appellee’s motions, on August 5, 2025
Appellants filed a document they captioned “Compliance with Civil Rule 10(D).” This was
actually Appellants’ attempt to provide Appellee with a more definite statement pursuant
to Civ.R. 12(E). This document stated: “The contract entered in 2018 was a written
contract between Dean L. Cicoretti and Andrea Cicoretti and A&M Total Restoration, LLC.
A copy of the written contract is not attached to the amended complaint as Plaintiffs’ only
copy was destroyed when the new roof leaked and ruined everything in the office located
in the house.” This filing also noted that if the contract had been an oral contract it would
have been time-barred by the statute of limitations for oral contracts.
{¶12} On August 14, 2025 Appellee filed a motion seeking a Civ.R. 12(B)(6)
judgment on the pleadings, again also pointing out that Appellants did not comply with
Civ.R. 10(D).
{¶13} Civ.R. 10(D) states:
(D) Attachments to Pleadings.
(1) 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.
{¶14} The trial court dismissed the complaint on October 9, 2025 on the basis of
Civ.R. 12(B)(6), and because Appellants failed to comply with Civ.R. 10(D). The court
cited the requirement that a party must attach the contract to the complaint in a claim for
Case No. 25 MA 0100 –7–
breach of a written contract, and if it is not attached, the reason for this failure must be
contained in the complaint. The court noted that there was no reason set forth in the
complaint explaining why the contract was not attached. The court also explained that
any claims based on oral contract or negligence were time-barred. The court then
concluded that Appellants’ complaint must be dismissed under Civ.R. 12(B)(6), failure to
state a cognizable claim.
{¶15} “An appellate court applies a de novo standard of review to dismissals for
failure to comply with Civ.R. 10(D).” Colon v. Fortune, 2008-Ohio-576, ¶ 8 (8th Dist.).
{¶16} Appellants clearly did not comply with Civ.R. 10(D). If they intended to
pursue a claim for a breach of written contract, they were required to either attach the
contract to the complaint or include in the complaint the reason for failing to attach a copy
of the contract. Appellants did neither of these things. In addition, Appellants never
amended their complaint to include either a written contract or an explanation why the
contract was not included. The document they filed that was captioned “Compliance With
Civ.R. 10(D)” is not a pleading recognized in the Rules of Civil Procedure.
{¶17} Appellants claim, without any legal support, that an explanation for failing to
attach a written contract to a complaint can be supplied in a response to a motion for a
more definite statement, and that this suffices as a “pleading” to comply with Civ.R. 10(D).
The documents that constitute “pleadings” are listed in Civ.R. 7(A). A responsive memo
to a motion for a more definite statement is not among them. Hence, it is not a pleading.
{¶18} Some courts, including this Court, have held that failure to comply with
Civ.R. 10(D), by itself, does not provide an adequate basis to dismiss a complaint under
Civ.R. 12(B)(6). Jordan v. Giant Eagle Supermarket, 2020-Ohio-5622, ¶ 48 (8th Dist.);
Case No. 25 MA 0100 –8–
McCamon-Hunt Ins. Agency, Inc. v. Med. Mut. of Ohio, 2003-Ohio-1221, ¶ 5 (7th Dist.).
Failure to properly respond to a motion for a more definite statement in response to a
Civ.R. 10(D) is not, in and of itself, a reason for dismissing a complaint. Civ.R. 12(E);
Simpson v. City of Lakewood, 2003-Ohio-4953, ¶ 25 (8th Dist.).
{¶19} In this case, neither Appellants’ complaints nor their response to Appellee’s
motion for a more definite statement addressed or even alleged the most basic elements
of a breach of contract claim. A review of each of the complaints filed in this case reveals
that none of them actually contain breach of contract claims, even though the caption of
each complaint contains the words “breach of contract.” “When determining whether a
court has jurisdiction over a claim, we do not look to the label or caption, but rather, to the
substance of the complaint.” Williams v. Stillion, 2017-Ohio-714, ¶ 16 (7th Dist.). One of
Appellants’ four complaints was clearly based on negligence and stated so, repeatedly,
in these complaints, even though they were captioned as breach of contract actions. All
of the various versions of Appellants’ complaints failed to allege some of the most basic
aspects of a breach of contract claim, such as: the terms of the contract, even in a basic
form; the date of the contract; the scope of the contract; the price to be paid; the
consideration for the contract; that the plaintiff fulfilled its duties under the contract; that
there was a breach of a contract; or the part of the contract that was breached. A breach
of contract claim is properly pleaded by stating: the existence of the contract; the terms
of the contract; performance by plaintiff; breach by the defendant; and the amount of the
damage or loss. Cairns v. Ohio Sav. Bank, 109 Ohio App.3d 644, 647 (8th Dist. 1996);
Harper v. Miller, 109 Ohio App. 269, 271 (3d Dist. 1957); Enduring Wellness, L.L.C. v.
Roizen, 2020-Ohio-3180, ¶ 57 (8th Dist.).
Case No. 25 MA 0100 –9–
{¶20} Even under Ohio’s liberal “notice pleading” procedure governed by Civ.R.
8, a party cannot survive a Civ.R. 12(B)(6) motion if the complaint contains only “bare
assertions of legal conclusions.” Woods v. Sharkin, 2022-Ohio-1949, ¶ 30 (8th Dist.).
“Allegations in a complaint must be supported by facts.” Walas v. Leone, 2024-Ohio-
4791, ¶ 52 (8th Dist.). A complaint that fails to plead the most basic elements of a breach
of contract claim may be dismissed under Civ.R. 12(B)(6). Jordan, supra, at ¶ 50.
{¶21} The repeated refrain in all of the four filed complaints of “negligent,
defective, and unworkmanlike conduct” sounds in tort, rather than contract. Aldridge v.
Reckart Equip. Co., 2006-Ohio-4964, ¶ 27 (4th Dist.) (defective and negligent design is a
tort claim); M.L. Simmons, Inc. v. Bellman Plumbing, Inc., 1995 WL 396349, *4 (8th Dist.
July 6, 1995) (unworkmanlike performance is a tort claim); Cornell v. Mississippi Lime
Co., 2017-Ohio-7160, ¶ 53 (7th Dist.) (negligence is a tort claim). Therefore, the trial
court was justified in dismissing Appellants’ complaint for failure to state a claim on which
to base relief because no breach of contract claim was actually expressed, and any claim
for negligence was barred by the statute of limitations. Nicolescu v. Smith, 2023-Ohio-
3610, ¶ 1 (7th Dist.) (court may dismiss a complaint under Civ.R. 12(B)(6) if the complaint
on its face shows that the applicable statute of limitations has expired). “[N]either the
defendants nor the court is required to research or discover every possible legal claim
that may be supported by the facts.” Kramer v. Angel's Path, L.L.C., 2007-Ohio-7099,
¶ 14 (6th Dist.). Appellants’ attempt to manufacture a viable breach of a written contract
claim by simply stating in a subsequent filing that there was a written contract and that it
was destroyed does not change the nature of the complaints and causes of action
Appellants actually raised and filed.
Case No. 25 MA 0100 – 10 –
{¶22} The parties discuss the possibility that the claim of failure to perform in a
workmanlike manner could be a valid claim under a written contract, if there actually was
a written contract with a clause governing workmanlike performance. The trial court
acknowledged that a claim for failure to perform in a workmanlike manner may arise under
tort or contract. Netherlands Ins. Co. v. BSHM Architects, Inc., 2018-Ohio-3736, ¶ 32
(7th Dist.). Appellee argued, and the court agreed, that such a claim could only
contractually arise if the work performed was for future construction. Kishmarton v.
William Bailey Constr., Inc., 93 Ohio St.3d 226 (2001). Since Appellants have not alleged
in any of their complaints or other filings that the work Appellee performed was for future
construction, the court determined that this claim also could not survive the motion to
dismiss.
{¶23} Appellants’ first assignment of error has no merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN RULING ON A MOTION FOR JUDGMENT
ON THE PLEADINGS PRIOR TO APPELLEE FILING AN ANSWER.
{¶24} Appellants contend that the trial court prematurely ruled on Appellee’s
motion for judgment on the pleadings because the pleadings were not yet closed when
the court entered judgment. Civ.R. 12(C) states: “After the pleadings are closed but
within such time as not to delay the trial, any party may move for judgment on the
pleadings.” Appellants argue that Appellee had not yet filed an answer to their complaint
at the time the court dismissed it and that Appellee’s motion to dismiss was, itself,
premature.
Case No. 25 MA 0100 – 11 –
{¶25} A ruling on a motion for judgment on the pleadings is reviewed de novo.
Craig v. Amos, 2026-Ohio-129, ¶ 14 (5th Dist.).
{¶26} Appellants are correct that if the pleadings are not yet closed, a court cannot
rule on a Civ.R. 12(C) motion for judgment on the pleadings, and any such ruling is
premature. State ex rel. Kaylor v. Bruening, 80 Ohio St.3d 142, 143 (1997). The
documents that constitute “pleadings” are listed in Civ.R. 7(A). An answer is a type of
pleading. Appellee had not yet filed an answer because the time for filing an answer was
delayed when Appellee filed its Civ.R. 12(B)(6) motion to dismiss and its motion seeking
a more definite statement. Hence, Appellants are also correct that the pleadings were
not closed at the time the trial court dismissed their complaint.
{¶27} Nevertheless, Appellants’ argument fails for two reasons. First, the court
did not enter judgment pursuant to Civ.R. 12(C), judgment on the pleadings. The court
dismissed the complaint under Civ.R. 12(B)(6), failure to state a cognizable claim. A court
may enter judgment pursuant to Civ.R. 12(B)(6) at any time, and no motion is required to
initiate the court’s action: “a trial court can sua sponte grant Civ.R. 12(B)(6) dismissal for
failure to state a claim. Such action is appropriate if the complaint is frivolous or if the
claimant obviously cannot prevail on the facts alleged in the complaint.” Adlaka v.
Giannini, 2006-Ohio-4611, ¶ 28 (7th Dist.). A Civ.R. 12(B)(6) motion is directed solely at
the complaint and tests the legal sufficiency of the complaint. Ford v. Baska, 2017-Ohio-
4424, ¶ 6 (7th Dist.). Appellee filed a Civ.R. 12(B)(6) motion to dismiss on July 30, 2025.
That was the motion which formed the basis of the court’s ruling.
{¶28} Second, there is no error when a trial court treats a premature Civ.R. 12(C)
motion as a Civ.R. 12(B)(6) motion, since the same standards of review are applied at
Case No. 25 MA 0100 – 12 –
both the trial and appellate level. Cool v. Frenchko, 2022-Ohio-3747, ¶ 21 (10th Dist.).
While Appellee clearly sought Civ.R. 12(B)(6) relief, the trial court was well within its
power to dismiss this matter absent any answer by Appellee.
{¶29} Appellants’ second assignment of error is also meritless and is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN GRANTING THE MOTION TO DISMISS/
MOTION FOR JUDGMENT ON THE PLEADINGS BASED ON
DOCUMENTS OUTSIDE THE PLEADINGS.
{¶30} Appellants allege that the trial court improperly considered evidence outside
of the pleadings when the court dismissed this case. Civ.R. 12(B)(6) provides in part:
“When a motion to dismiss for failure to state a claim upon which relief can be granted
presents matters outside the pleading and such matters are not excluded by the court,
the motion shall be treated as a motion for summary judgment and disposed of as
provided in Rule 56.” Appellants allege that the court considered deposition evidence
from the previously dismissed Case No. 2022 CV 02125. Appellee did attach a page
from Appellant Dean Cicoretti’s deposition in Case No. 2022 CV 01215 to its August 14,
2025, motion to dismiss on the pleadings. There is no reference to this deposition
evidence in the trial court’s judgment, and there is no indication otherwise in the record
that the court considered this evidence. Again, as it is apparent that this matter was
properly dismissed on the basis of the allegations in the complaint, alone, the trial court
would have no need to seek out evidence outside of the four corners of the complaint to
support its judgment. Appellants’ contention is not supported by the record, here.
Case No. 25 MA 0100 – 13 –
{¶31} It is apparent the trial court relied on the allegations in the complaint when
dismissing it under Civ.R. 12(B)(6). The primary basis for dismissal was the expiration of
the applicable statutes of limitations. A claim for negligence is barred after four years.
R.C. 2305.09(D). Appellants have not contested the determination that their claim for
negligence is time-barred. A claim for breach of oral contract is also barred after four
years. R.C. 2305.07(A). Prior to June 16, 2021, the statute of limitations for oral contract
was six years. The notes to the amended statute state that if a cause of action for breach
of oral contract occurred prior to the effective date of the amended statute, “the period of
limitations shall be four years from the effective date of this act or the expiration of the
period of limitations in effect prior to the effective date of this act, whichever occurs first.”
Calculating four years after the effective date of the act, the limitations period would have
expired on June 16, 2025. In order to utilize the prior six-year statute of limitations for
oral contract, the court was required to have knowledge of the date the contract was
entered into. Appellants did not specify the exact date that Appellee performed work on
the roof of their house except to say it was in 2018. The court used the last possible date
in 2018 (December 31, 2018) to calculate that the prior six-year statute of limitations
would have expired on December 31, 2024. As this date is earlier than June 16, 2025,
the court used the December 31, 2024 date as the expiration of the statute of limitations.
Appellants did not file their complaint until May 27, 2025.
{¶32} Finally, the court determined that there was no claim for breach of a written
contract: no contract was attached to the complaint; no explanation was given why the
contract was not attached; and most importantly, Appellants failed to properly allege and
support a claim for breach of contract.
Case No. 25 MA 0100 – 14 –
{¶33} It is clear the court did not rely on any documents outside the pleadings to
make any of this analysis. Appellants’ third assignment of error is likewise overruled.
Conclusion
{¶34} Appellants raise three arguments in support of their contention the trial court
erred in deciding to dismiss their complaint. Appellants allege that the court improperly
dismissed the complaint solely for failure to comply with Civ.R. 10(D). Although it is clear
that Appellants did not comply with Civ.R. 10(D), a court may not dismiss a complaint
solely on that basis. The record shows, though, that the court dismissed the complaint
pursuant to Civ.R. 12(B)(6), and not solely due to Civ.R. 10(D). Appellants also contend
that the trial court’s ruling was premature, as Civ.R. 12(C) prevents dismissal if the
pleadings were not closed. Since the court did not dismiss the complaint under Civ.R.
12(C), Appellants’ argument is misdirected. The court granted Appellee’s Civ.R. 12(B)(6)
motion to dismiss, and this motion may be ruled on at any time. Finally, Appellants assert
that the court relied on documents outside of the pleadings when it dismissed the case,
but there is nothing in the record to support this assertion. None of Appellants’
assignments of error have merit, and the judgment of the trial court is affirmed.
Hanni, J. concurs.
Dickey, J. concurs.
Case No. 25 MA 0100 [Cite as Cicoretti v. A&M Total Restoration, L.L.C., 2026-Ohio-1484.]
For the reasons stated in the Opinion rendered herein, Appellants’ assignments of
error are overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.