NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0121n.06
Case No. 17-3392
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DORE & ASSOCIATES CONTRACTING, INC., Plaintiff-Appellant,

v. CITY OF COLUMBUS, OHIO, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

OPINION

BEFORE: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.
BERNICE BOUIE DONAL D, Circuit Judge. Plaintiff Dore & Associates Contracting, Inc. (“Dore”) appeals the district co urt’s grant of judgment on the pleadings in favor of Defendant City of Columbus, Ohio (the “City”). We find that the distri ct court was correct in finding that the plain language of the contract required Dore to perform the work as set forth therein, regardless of whether Dore agreed with the soundness or neces sity of that work. If Dore wished to alter the scope of the work it contracted to perform, there were prescribed methods for doing so. Dore failed to employ those mechan isms and was therefore bound to perform the contract as specified. We AFFIRM th e judgment of the district court.Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

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I On May 3, 2013, the City of Columbus issued a Construction Proj ect Proposal soliciting bids for the demolition of a building. The Proposal sought bids for the removal and disposal of asbestos-containing materials (“ ACM”) in accordance with the technical specifications for abatement of hazardous materials (“Hazmat Specs”). The specifications were set forth in the bid documents and incorporated into the contract, along with the Proposal a nd solicitation for bids. The Hazmat Specs referred bidders to “Attach ment 1,” a Hazardous Material Assessment Report (“Lawhon Report”) authored by Lawhon & Associates , a licensed hazardous materials inspection firm retained by the City. The Lawhon Repor t estimated 218,000 square feet of asbestoscontaining plaster on the site. Th e Hazmat Specs stated that the report should not be used for “bidding or notification purposes .” (RE 1-2, PageID #251.) The Hazmat Specs “included” the Lawhon Report, but qualified that the report was “ to be used as a reference only.” (RE 12- 1, Hazmat Specs § 1.3(A)(1), PageID #701.) The City expressly disclaimed any responsibility for the accuracy of the estimates. Section 1.3( B)–(C) of the Specif ications provided the following instructions:
B. Site Investigation . The Hazardous Materials Abatement Contractor shall conduct a site investigati on prior to submission of bid to verify asbestos containing materials locations and quantities within the building. The contractor will be responsible for removing and di sposing of all asbestos containing materials (except roofing materials) throughout the entire building. The contractor must submit in writing, with in 72 hours of bids, any exceptions or discrepancies to this sec tion. If no exceptions are made, the winning contractor will be held responsible for removal and disposal of all as bestos containing materials within the building, identified or not. C. Removal and Disposal . The Hazardous Material Abatement Contractor, as directed, shall remove and di spose of all regulated asbe stos containi ng materials (RACM), Category II and Category I asbestos containing materials ([e]xcept roofing materials) throughout [the site]. The quantities provid ed below are only estimations based on the [Lawhon Report]. The City, Architect and [Lawhon] assume no responsibility for the accuracy of these estimates. The contractor shallCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 3 - review the [Lawhon] Report in conjuncti on with site investigations, other specification sections and project drawings and confirm all existing site conditions prior to submission of his/her bid. ( Id. ) The Hazmat Specs also contained “G eneral Notes,” which explained: 1. Listed quantities and locations ar e only estimates. The contractor is responsible to verify al l quantities, special cond itions, locations and bidding according to their findings. It is strong ly encouraged that the bidding contractor conduct a site investigation to verify materials and qua ntities prior to bid. Any exceptions to the materials and quantities listed in [the Hazmat Specs] or the [Lawhon Report] must be submitted in writ ing prior to 72 hours before bids are due. If no exceptions are made, then the c ontractor will be re sponsible to remove and dispose of all asbestos containi ng materials, identified or not within the building. 2. Any materials which have not been listed in the [Law hon Report] and not tested for asbestos content must be test ed by the Hazardous Materials Abatement Contractor. Results of this testing must be submitted to the Project Architect for review and approval. [Law hon] reserves the right to conduct side-by-side testing to confirm results of the [contractor’s] testing. ( Id. , Hazmat Specs § 1.3(H), PageID # 705.) As a potential bidder, Dore conducted the mandated pr e-bid site inspection and concluded that the Lawhon Report over-estimated the amount of ACM in the building. Five days before bids were due, the City file d a document entitled Addendum No. 1 (“Addendum”), which was to “take full and complete precedence over anything stated or shown to the contrary in them,” and stated that “all of the plaster is confirmed to contain asbestos and is to be removed.” (RE 1-1, PageID #7.) Dore received the Addendum and did not file an exception or otherwise object, although it contemporaneous ly considered the Addendum incorrect and, according to its pleadings, had no intention of re moving all plaster or alte ring its bid to include the cost of such abatement. Based on its estimations, Dore submitted a bid of $1,677,000;Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 4 - $1,051,100 of Dore’s bid was allotted to hazardous materials abatement. Dore submitted no exceptions—to the Lawhon Report or otherwise. On August 2, 2013, the City aw arded Dore the contract. Before commencing its work, Dore hired another consultant to conduct detailed testing of the site plas ter. The consultant determined that there were 43,500 square feet of ACM in the building—similar to Dore’s estimate. Dore submitted the estimate to the Cit y, which rejected it. In hopes of reversing the City’s rejection, Dore submitted the consultant’s report to the Ohio Environmental Protection Agency, which determined that Dore’s estimate was an “accurate and safe finding of ACM.” (RE 1, PageID #3.) Nevertheless, the City rejected Dore’s s econd request for approval of its estimate. Undeterred, Dore notified the City th at it would begin abatement in accordance with its own estimates. The City then threatened to d eclare Dore in default. Dore relented and began its abatement of the materials identified in the Lawhon Report, including all plaster, under protest. In doing so, Dore spent $1,195,794.58 more in material and labor costs than if Dore had been permitted to abate only the asbe stos identified in its own estimates. On July 31, 2015, Dore filed a breach of cont ract claim against the City to recover damages for its additional material and labor costs. On March 14, 2017, the district court granted the City judgment on the pl eadings and dismissed the case. The district court ruled that the Hazmat Specs, including the Lawhon Report estim ates, were incorporated into the contract and that Dore had agreed to perform as specified therein. If Dore wished to remove less material than was identified in the Lawhon Report, the di strict court found, Dore was required to submit a pre-bid exception. The di strict court also found that the C ity’s Addendum provided Dore further notice of the City’s ex pectations and another opportunity to file an exception. The present appeal followed.Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

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II We review a district court’s grant of a Rule 12(c) motion for judgment on the pleadings de novo. See Kottmyer v. Maas , 436 F.3d 684, 689 (6th Cir. 2006) . “The manner of review under Rule 12(c) is the same as a re view under Rule 12(b)(6) . . . .” Vickers v. Fairfield Med.
Ctr. , 453 F.3d 757, 761 (6th Cir. 2006). We must construe the co mplaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff can prove no se t of facts in support of its claim that would entitle it to relief. See Mixon v. Ohio , 193 F.3d 389, 400 (6th Cir. 1999).
III To establish a claim for breach of contract, the plaintiff must prove “the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.” Siemaszko v. FirstEnergy Nuclear Operating, Co. , 932 N.E.2d 414, 419 (Ohio Ct. App. 2010) (citation omitted). Neith er party disputes that a valid contract existed. The only conflict for us to resolve is wh at that contract required. Under the plain language of the contract—whi ch incorporated the Lawhon Report and its estimates—Dore agreed to perfor m in accordance with the Hazmat Specs. The Hazmat Specs required the winning bidder to ab ate and remove all of the ACM identified in the Lawhon Report and any further ACM the contractor identified in its pre-bid inspection. If Dore disagreed with those estimates after performi ng its own required inspection, the contra ct specifically contemplated that Dore would “submit in writi ng, within 72 hours of bids, any exceptions or discrepancies.” (RE 12-1, Hazmat Specs § 1.3(A )(1), PageID #701.) Dore failed to do so, binding it to the estimates in the Lawhon Repor t. To hold otherwise would render § 1.3(B) meaningless. See Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention FacilitiesCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 6 - Auth. , 678 N.E.2d 519, 526 (Ohio 1997) (“In the constr uction of a contract courts should give effect, if possible, to every provision therein contained.”). Moreover, the City’s Addendum removed all doubt about what the contract required. Explicitly taking precedence “over anything stated or shown to the contrary,” the Addendum declared that all of the plaster contained asbest os and mandated its removal. (RE 1-1, PageID #7.) By again failing to file an exceptio n to the Addendum, Dore became bound by it and therefore obligated to remove all plaster. As addressed below, Dore’s unavailing argum ents are contrary to the plain language of the contract. First, the district court did not substitute itself for the jury, nor did it make any factual determination on disputed issues. Rath er, the district court properly made a legal determination regarding what the contract required. Sec ond, the general purpose of the contract—to remove all ACM—does not override its specific provisions. See Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd. , 525 F.3d 409, 420 (6th Cir. 2008) (“Well-founded principles of contract law establ ish that ‘specific terms and exact terms are given greater weight than general language.’”) (quoting Restatement (Second) of Contracts , § 203 (1981)); GibbonsGrable Co. v. Gilbane Bldg. Co. , 517 N.E.2d 559, 564 (Ohio Ct. App. 1986) (“It is also wellestablished in Ohio that where two clauses of a contract appear to be inconsistent, the specific clause prevails over the general.”) (citation omitted). Section 1.3(B) provides specific requirements that define the cont ours of the agreement’s genera l purpose. Were we to read § 1.3(B) as a joint-risk provision, as Dore urges, it would cede the determination over the scope of the work from the City to the contractor. In stead, the City controlled the scope of work and the contract prescribed a method for seeking modi fication—the filing of an exception. Similarly, while the phrase “identified or not” may be read to the benef it of each party, it nonethelessCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 7 - specifies that the contractor must, at the very least, remove all identified ACM. When drafted, the Lawhon Report identified a certain amount of AC M. Dore was thus required to remove that ACM, absent any subsequent exceptions, as we ll as any unidentified ACM. The provision did not state, as Dore seemingly c ontends, that the contractor was required to remove only the ACM that the contractor itself identified. Finally, Do re’s argument that the Addendum simply clarified the contract, rather than added specifications, is meritless. The Addendum was explicit in its mandate that it superseded all previous specifi cations and that all plaster be removed.
IV. Though we believe our decision is a clear one , a vociferous and lengt hy dissent follows. The dissent proposes a new rule of contract cons truction as well as a fanciful construction of facts preferred by the dissent. Because the diss ent touts “Dore’s superior understanding of the site’s asbestos content,” and, in turn, its own superior understanding of contract interpretation, controlling precedent, construction jurisprudence, and asbestos abatement, we are compelled to address some of its misapprehensions. We first note misconceptions underlying the enti rety of the dissent. First, it misconstrues the timing of most key events. For example, th e dissent states that “Dore found that there was less asbestos present than it initially thought” “[u]pon starting work.” This is demonstrably false. Dore believed there to be less ACM in the build ing long before starting work and prepared a bid accordingly, disregarding the specifications of the contract. This move allowed Dore to undercut the competition and to do so in the face of the Lawhon Report and the Addendum. Second, the dissent similarly misstates the timing of the a ddendum, intimating that it was only in-effect or enforced after Dore entered the winning bid. Th is misconception permeates the dissent, allowing it to describe the City’s compliance demand as a llowing it to extract free labor and attempting toCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 8 - win on a footnote. But Dore knew of the Addendu m and its clear provisions before it signed any contract. It ignored the Addendum at its own peri l. The Court is not permitted to redraft the bid documents, nor protect a party that chooses to blatantly disregard c ontract provisions. Much of the dissent attaches its reasoning to the plain language of th e contract, attesting that it required Dore “to remove only ‘asbestos containing materi als.’” Tellingly, the word “only” is present in the dissent, but is not found in the contract. Further, several of the dissent’s contract excerpts do not support th e dissent’s conclusion. For ex ample, § 1.3(B) indeed states that the contractor will be responsible for removing “all asbestos containing materials.” But the dissent disregards that the contract does not st ate that the contractor will be responsible for removing all asbestos containing materials as determined by the contractor . Similarly, when the contract states that if no exceptions were made , the contractor would be held responsible for removing all ACM “identified or not,” the dissen t chooses to ignore thatthe only ACM thenidentified was in the Lawhon Report. There can be no dispute that the Addendum confirmed those identified materials contained asbestos. Wh ile the contract’s directive was clear—to abate all materials that contain asbestos—the determin ation of what materials contained asbestos was also included in the contract and the pre-bid Addendum. While the dissent takes strong exception to our reasoning, the method employed in the dissent construing the requirement that Dore file an exception is tortured, and a gross deviation from the fundamentals of contract construction. If the purpose of that require ment is not to seek an exception from the Lawhon Report or Addendum, it apparently would exist only to require the contractor to file an exception to permit it not to abate confirmed asbestos—the very purpose of the contract that the dissent so fervently advocates. Moreover, to allow a contractor to remove or destroy asbestos without the proper abatement procedures would likely violate variousCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 9 - regulations and laws. See, e.g. , 40 C.F.R. § 61(M); O.A.C. § 3745- 20. This cannot be true. The dissent also says that it is demonstrably false that “faili ng to file a pre-bid exception automatically incorporates” the ACM in the Lawhon Report. If the dissent is correct, what would be the purpose of filing an exception at all? There would be nothing to which to file an exception. If there is no incorporation of the Lawhon Report and Addendum, again, the only hypothetical exception would be to allow the c ontractor not to abate ACM, undermining the purpose for the contract’s entire existence. As to the Addendum, the dissent attempts to strip it of meaning by stating that it was buried it in a 300-page contract. True, the contract was voluminous. The Addendum, however, was not. It was filed separately, as a pre-bid doc ument, explicitly to “become as fully a part of the above named Contract Document s as if included,” and spans three pages in its entirety. It is wholly unclear how this concise and pointed Ad dendum could be ambiguous to basic parties, let alone a sophisticated contractor. One method the dissent uses to construe the Addendum as such is to hinge its reading on the fact that the Adde ndum states that the confirmed plaster is to be “removed.” The dissent contends that a contract or could reasonably unders tand that this required all plaster to be removed, rather than abated, thereby limiting the costs associated with it. Again, this ignores the realitie s of the contract, includ ing its overall purpose of the contract as extolled by the dissent—to abate the ACM as determ ined by the City—as well as the regulatory requirements that demand abatement of confirmed ACM pursuant to exact sp ecifications or face legal consequences. Finally, the dissent states that our readi ng of the Addendum renders the change-of-work and changed-circumstances provisions of the contract unwarrantedly meaningless. We disagree. Regardless, such a reading would be permissible and perhaps intended—it explicitly and overt ly took full and complete precedence over everything before itCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 10 - and was issued prior to the signi ng of any agreement. The dissent is correct that there are many things the “[A]ddendum doesn’t sa y.” But we do know what it does say: the party for whom the contract is to satisfy—the C ity—has confirmed that all plaste r contains ACM and any winning bidder must eliminate it accordingly. Though the dissent disagrees with much, if not all, of the majority opinion, on one point we agree: parties will be held to their written agreements, including the co nsequences of ignoring them.
V The contract required Dore to abate all AC M in the building to th e City’s satisfaction, and the parameters of that abatement work we re included in the contract, Lawhon Report, and Addendum. If Dore believed that the contract required more abatement than was necessary, it was obligated to file an exception. This require ment was explicit, bind ing, and cannot be read out of the contract by this Court. The di strict court was correct. Accordingly, we AFFIRM the decision of the district court.Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 11 - DAVID W. M C KEAGUE, Circuit Judge, dissenting. Dore and the City signed a contract requiring Dore to abat e all the asbestos from a build ing. The majority, somehow, concludes from this that Dore was required to ab ate things that were not asbestos. It also concludes that the City has the unreviewable aut hority to declare, as a matter of law, that something contains asbestos. Finally, it condemns Dore for “undercut[ting] the competition” in the competitive-bidding environment established by the State of Ohio, as if that conduct is somehow a vice. This reasoning is incomprehensib le, and is more fit for the Court of the Mad Hatter than the Court of Appeals. Because I cannot join the majority’s Adventure in Wonderland, I dissent from th e opinion of the Court.
I The background to this case is relatively ordinary. The City wanted to demolish a building in downtown Columbus. It thought the building contained asbestos. It was right. It hired an asbestos-abatement cont ractor (Dore) to abate the asbe stos. The contract held Dore responsible for “removing and disposing of all asbestos containing mate rials (except roofing materials) throughout the entire building.” R. 12-1, Hazmat Specs § 1.3(B), PID 701. During bidding, Dore inspected th e premises and, based on its profe ssional experience, suspected that there was less asbestos than the City thought. It bid accordingly, a nd won the contract. Afterwards, Dore hired a consultant to scientifically confirm the exact amount of asbestos in the building. The consultant report ed that there was 45,000 square feet of asbestos pr esent, rather than the 218,000 square feet estimated by the City’s consultant. Dore submitted a plan to remove the asbestos from the building. So far, so good. The City, however, did what owners sometimes do: It rejected the contractor’s plan. Instead, it demanded that Dore abate all the plaste r in the building as if it contained asbestos.Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 12 - This new project cost Dore an extra $1.1 million in expenses not covered by the contract price. So Dore sued. The procedural posture of this case is also ordinary. The City moved for judgment on the pleadings before any factual argument or discov ery, contending that the contract unambiguously required Dore to perform the extra work de manded. Under long-sta nding rules of civil procedure, the complaint could only be dismissed if the City was “clearly entitled to judgment” because it had the only tenable interpretation of the contract. Fritz v. Charter Twp. of Comstock , 592 F.3d 718, 722 (6th Cir. 2010). If Dore made any rational argument that the City’s interpretation of the contract was wrong, the di strict court was required to deny the motion to dismiss. Id. Moreover, the district cour t was obligated to use Dore’s version of the facts when conducting this analysis: because the City moved to dismiss the case, the non-movant’s facts are accepted as true. Id. Among these facts are Dore’s assertion that the building only contained 45,000 square feet of asbestos containing plas ter (not 218,000 square feet), and that the remaining plaster did not contain asbestos. See R. 1, Compl., ¶¶ 30–31, 36, PID 4–5. In other words, even if Dore’s tests were flawed and the City’s demand was justified, this was not the time to decide that issue. This is where we are dragged down the rabbit hole, and we find ourselves in the City of Wonderland—the fantastical, alternate dimension of the City of Columbus. The district court, inexplicably, accepted the City’s view of the fact s and held that Dore was required to abate all the plaster. Further, it held that this conclu sion was the only rational one to be drawn from the contract language. How, you ask, might a contract for the removal of asbestos indisputably have required a contractor to pretend th ings contain asbestos when the c ourt must assume that they do not? Your guess is as good as mine.Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 13 - Neither the majority nor the district court identify language in the contract requiring Dore to abate all the plaster in the building, regardle ss of whether it contained asbestos. Indeed, the contract is expressly limited to things that do contain asbestos. Take the following quotes, straight from the contract, which comprise the crucial language at issue in this case (emphasis added):

 “The contractor will be responsible for removing and disposing of all asbestos containing materials (except roofing material s) throughout the entire building.” R. 12-1, Hazmat Specs § 1.3(B), PID 701.

 “If no exceptions are made, the winning contract or will be held responsible for removal and disposal of all asbestos containing materials within the building, identified or not.” Id.

 “The Hazardous Material Abatem ent Contractor, as directed, shall remove and dispose of all regulated asbestos containing materials (RACM) . . . throughout 99-109 North Front Street.” Id. § 1.3(C) (underlini ng in original).

 “Remove and dispose of the following asbestos containing materials . . . .” Id. at 702.

 “The following is a list of materials sampled and confirmed to contain asbestos .” Id. , Lawhon Report § 3.1, PID 735.

 “[T]he hard plaster base coat has been reported as a regulated asbestos containing material by EPA, ODH and OSHA and mu st be removed. . . .” Id. § 3.3, PID 736.

 “[A]ll of the plaster is confirmed to contain asbestos and is to be removed . . . .” Id. , Addendum 01, PID 511. The plain meaning of these words is obvious: Dore must abate materi als that contain asbestos. It need not abate materials that do not contain asbestos. Not so, in the City of Wonderland. Under the majority’s reasoning, “asbestos-containing materials” means “all the material the City says could contain asbestos,” even if the City is objectively wrong. This untenable conclusion rests on two bases: the failure-to-notify argumentCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 14 - and the addendum argument. The first is utter nonsense; the second is a dangerous oversimplification.
II I begin with the nonsense. Dore did not submit a pre-bid excepti on to the estimated quantities of asbestos listed in the Lawhon Report . This failure, according to the majority, has the effect of “binding it to th e estimates in the Lawhon Report” as a minimum amount of work. Maj. Op. at 5. This is a figment of the majority’s imagin ation. The contract never says anything even remotely close to that. Indeed, the clause cite d by the majority for this proposition expressly spells out the consequences for a failure to submit a pre-bid excep tion: “[T]he winning contractor will be held responsible for removal and disposal of all asbestos containing materials within the building, identified or not.” R. 12-1, Hazmat Specs § 1.3(B), PID 701 (emphasis added). Far from a “fanciful construction of f acts,” this is what the contract says , plain as day. This is simple enough. If you don’t submit an exception, then you must abate all the asbestos present in the building. The fact that the City “identified” it as such is unimportant. So is the fact that the City overlooke d it (i.e., accidentally labeling asbe stos as harmless chalk). If it turns out to be asbestos, the c ontractor is on the hook for it. Th at’s what the clause says. What the clause doesn’t say is that a defaulting contractor must pretend that harmless chalk is asbestos simply because the City thought it was asbestos during th e bidding process. If the scientists say that it is, indeed, harmless ch alk, then it falls completely outside the scope of the failure-to-notify clause—and probably outside the asbestos-aba tement contract entirely. The majority dismisses this argument by saying that specific clauses in a contract usually trump its general purpose. This is true as a matter of black-letter law, but it is irrelevant to the problemCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 15 - before us because the “specific” provision does not apply. A modifying clause cannot stand on its own, but attaches to the last antecedent. See Motorists Mut. Ins. Co. v. Dandy-Jim, Inc. , 912 N.E.2d 659, 665 (Ohio Ct. App. 2009); B RYAN A. G ARNER , T HE E LEMENTS OF L EGAL S TYLE 45– 48 (2d ed. 2002). In this contr act, that last antecedent to “i dentified or not” is “asbestos containing materials.” Therefore, if plaster does not actually contain asbestos, it is not a “material” covered by the failure-to-notify clause, a nd the fact that a party “identified” it as such is inconsequential. Neither does Dore’s interpretation render this provision “meaningless,” as the majority appears to think. Maj. Op. 5–6. Construction contracts are of ten drafted to cover as many factual contingencies as possible—and those pr ovisions do not become meaningless simply because their condition precedent or subsequent does not occur. Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp. , 16 N.E.3d 645, 648–49 (Ohio 2014) (descr ibing the dual outcomes possible when a contract is conti ngent on facts yet to occur); Lathrop Co. v. City of Toledo , 214 N.E.2d 408, 411–12 (Ohio 1966) (holding that promissory words are not nullified by words making them conditional on some event); see also Hersh v. Kelman , 104 N.E.2d 35, 36 (Ohio Ct. App. 1951) (stating that parties may, by contract, provide for factual contingencies). The failure-tonotify clause exists solely to protect the City if Lawhon under

- estimated the amount of asbestos on the premises and a contractor either (a) tried to avoid re moving the newfound asbestos, or (b) removed it without telling the City and then sought more compensation. 1 The Supreme Court

1 The majority claims that this position is erroneous becaus e “it would apparently exist only to require the contractor to file an exception to permit it not to abate confirmed asbestos,” and even disregarding this anomaly, it would be illegal to exempt asbestos from the contract. This complain t is easily dismissed. First, as demonstrated above, the exception clause exists so that a contractor can preserve its right to get paid for abating asbestos overlooked by Lawhon. In other words, if Lawhon did not adequately te st an area for asbestos, a contractor should file an exception to put the City on notice that the contractor is contemplating that there is more work to be done than the City thought. The clause has no application in the reverse situation (present here), where the contractor thinks there is less work to be done than Lawhon thought. And to the extent that the clause could be used to “illegally” exempt a contractor from abatement, the contract already does that—it says that a co ntractor need not remove asbestos-Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 16 - of Ohio has shown no sympathy to contractors in these situations. See, e.g. , Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Conven tion Facilities Auth. , 678 N.E.2d 519, 526–28 (Ohio 1997) (holding that these tactics are impermissibl e because they defeat the government’s efforts to engage in responsible fiscal planning). We have exactly the opposite situation here . Upon starting work, Dore confirmed its initial hunch that there was less as bestos present than initially thought. Prior to the City’s demand for more work, Dore never asked for mo re money, more time, or anything besides the agreed-upon compensation. The City’s characterization of this case as a demand for a 71% “markup” in the contract price is merely rhetorical sleight of hand—the only reason Dore filed this lawsuit is because the City forced it to abate materials that were not asbestos. The City has no right to blame Dore for an inequity or financial crisis of the City’s own creation. See Greer–Burger v. Temesi , 879 N.E.2d 174, 184 n.5 (Ohio 2007) (e quity will not assist one who comes to court with unclean hands). I therefore fail to see how a requirement that the contractor abate all “asbestos cont aining materials” requires it to ab ate things that do not contain asbestos. If contract terms mean the opposite of what they say, why bother with written contracts at all? But even assuming this (demonstrably false) position—that failing to file a pre-bid exception automatically incorporates the Law hon Report—the majority’s bizarre holding still fails to make any sense. The majority insists that the City “identifie d” 218,000 square feet of “asbestos containing material” through the Law hon Report. Therefore, Dore shamefully “disregard[ed] the specifications of the c ontract” and “undercut th e competition” because

containing roofing materials. Hazmat Specs, § 1.3. The ultimate legal obligation to remove the asbestos before demolition lies on the owner, not the contractor. If one co ntractor avoids the obligation by filing an exception, the City must simply find someone else to complete the rema inder of the work (as they did here—presumably a separate contractor removed the roofing materials).Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 17 - everything identified by the Lawhon Report was asbe stos. Not so fast. The contract documents repeatedly describe the Lawhon Re port as an estimate, as a refere nce, or as advi sory. R 12-1, Hazmat Specs § 1.3(A), PID 701 (“This report is to be used as a reference only.”); id. § 1.3(C) (“The quantities provided below are only estimations based on the su rvey report . . . . The City . . . . assume[s] no responsibility fo r the accuracy of these estimates.”); id. at 703 (“Quantities are only approximations and should be field verified . . . .”); id. § 1.3(H)(1), PID 704 (“Listed quantities and locations are only estimates.”); id. § 1.3(C)(2), PID 703 (“The following table represents estimated quantities which can be used for EPA and ODH notification purposes only.”); id. , Lawhon Report § 2.0, 5.0, PID 733, 738–39 (“This report . . . should not be used for bidding or notification purposes.”). How can an estimate be an absolute minimum floor of work under a contract, in the unambiguous sense requir ed by the legal standard here? And how can the courts punish a contractor for partially disreg arding an estimate that it believes to be factually incorrect? Never—at least in the real world. But I forgot: We’re in Wonderland. Those wo rds obviously mean “specification,” “scope of work” and “mandatory.” At least when the City wants them to. This, of course, is required by Wonderland’s rules of interpretation. Accordin g to the Mad Hatter, in an ideal Wonderland, “Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be. And wh at it wouldn’t be, it would. You see?” Indeed, as Humpty Dumpty points out to Alice, words used in Wo nderland mean whatever the speaker wants them to mean—never mind the listener. In the real world, of course, the listener’s perception matters . Even though linguistics is sometimes an imprecise science, there is stil l a definite universe of the possible (and the impossible) meanings from which the parties c hoose when they use particular words. TheCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 18 - meeting of the minds fundamental to contract law depends entirely on the partie s ascribing at least similar meanings to the same words. Minster Farmers Coop. Exch. Co., Inc. v. Meyer , 884 N.E.2d 1056, 1061 (Ohio 2008) (“A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract.”); R ESTATEMENT (S ECOND ) OF C ONTRACTS § 17(1) (“[T]he formation of a cont ract requires a bargain in whic h there is a manifestation of mutual assent to the exchange . . . .”). Going forward, how on earth is any contractor going to know what “asbestos containing materials” means if the owner can turn around once work has started and say that it includes non-asbestos, “just to be safe?” And why w ould a contractor bind itself to perform such a contract if the City can—as here—secure over a million dollars in free labor simply because it is paranoid? The majority complains that I read the words “only” and “as determined by the contractor” into the contract’s references to “a sbestos containing materials.” But this is not a quarrel with me; it is a quarrel with Ohio law and the Supreme Court of the United States. It is axiomatic that “the expression of one or more pe rsons or things implies the exclusion of those not expressed.” Mercer v. 3M Precision Optics, Inc. , 908 N.E.2d 1016, 1018 (Ohio Ct. App. 2009). If a contract calls for the abatement of “asbestos containing materials,” the fair, commonsense inference is that non -asbestos is excluded from the obligations imposed by the

contract. See id. (stating that the expression of one thing or things “justifies the inference that items not mentioned were excluded by deliberat e choice”) (internal quotation marks omitted). But, the majority protests, the City said the disputed plaster c ontained asbestos! True, but that’s not important right now. First of all, the Supreme Court has ordered us to accept the plaintiff’s version of the facts as true on a motion to dismiss. E.g. , Wood v. Moss , 134 S. Ct. 2056, 2065 (2014). Dore contends that the plaster did not contain asbestos. By fixating on theCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 19 - City’s resolution of that factual issue, the majori ty is virtually begging the Justices to summarily reverse this Court for ignoring its holdings, as it has repeated ly done on other issues. The majority can only justify its decision by claiming that, as a matter of law, the plaster contained asbestos. But under Ohio law, th e City’s declaration that something contai ns asbestos does not make it so. A purchaser in a satisfaction-base d commercial contract does not enjoy unlimited power to dictate what terms mean or to wi thhold its satisfaction from the other party’s performance. Blair v. McDonagh , 894 N.E.2d 377, 388 (Ohio Ct. App. 2008); Hutton v. Monograms Plus, Inc. , 604 N.E.2d 200, 203–04 (Ohio Ct. App. 1992). And it is abusive, arbitrary, and capricious to decl are that something contains as bestos when it does not. I therefore find it logically impossible to join the majority opinion on this point. The contract required Dore to abate asbestos-containi ng plaster. Some plaste r in the building did not contain asbestos. Dore’s failure to object to the advisory Lawhon Report only required it to abate all the asbestos in th e building. I cannot comprehend how this unambiguously required Dore to pretend things were as bestos when they are not.
III Nonsense aside, I turn to the majority’s only remaining argument. Although it is far from nonsensical, it rests on a dangerous oversimplification of the record before us. Before bids were due, the City issued an addendum to the contract which stated: “all of the plaster is confirmed to contain asbestos and is to be removed.” The majo rity argues that this required Dore to abate all the plaster, even if the plaster did not contain asbestos. Perhaps it did. But when this single sentence is placed in the context of the 300-pa ge contract, other equally plausible meanings emerge, rendering this perfunctory command more ambiguous than it appears at first blush. Cf. King v. Burwell , 135 S. Ct. 2480, 2489 (2015) (“[O]ftentimes the meaning—or ambiguity—ofCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 20 - certain words or phrases may only become evident when placed in context.”) (internal quotation marks omitted). In Ohio contract cases, choos ing between probable meanings is a question for the factfinder, and we lack the authority to answer it by looking at the pleadings. Lincoln Elec. Co. v. St. Paul Fire & Marine Ins. , 210 F.3d 672, 684 (6th Cir. 2000) (applying Ohio law). The majority’s decision to resolve this issue in the City’s favor anyway, despite the legal posture of this litigation and the City’s status as the m ovant, skips this crucial step in the process. The law is firmly on Dore’s side here. We r outinely reject attempts by parties and district courts to oversimplify the fact s and end cases prematurely, reas oning that factual judgments about intent and contract performance are “more appropriately made after a fair presentation of the evidence . . . rather than during th e summary judgment phase of litigation.” Nat’l City Bank v. Syatt Realty Grp. , 497 F. App’x 465, 470–71 (6th Cir. 2012) (Opinion of Donald, J.) (reversing grant of summary judgment in a breach -of-contract case because a genuine issue of fact remained as to whether the lender pe rformed according to the contract’s terms). See also Krumpelbeck v. Breg, Inc. , 491 F. App’x 713, 719–20 (6th Cir. 2012) (Opinion of Donald, J.) (reversing grant of summary judgment because district court impermissibly accepted the defendants’ interpretation of th e medical literature, even though the plaintiff’s interpretation was plausible). The majority claims that the contract is so unambiguous that there is no need for any factual hearings on intent. This is a drastic oversimplification of the contract, for three reasons. First, the majority reads fundamental assump tions out of the text of the addendum. The contract itself demands that “[ w]ords implied, but not stated, shall be inferred as the sense requires.” R. 12-1, Summary of Work § 1.8 (B)(1), PID 652. The addendum provides the contractor with two things: a fact and a command. It states that all the plaster contains asbestos (the fact), and that it must be abated (the co mmand). But the command makes little sense to anCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 21 - asbestos-abatement contractor if the fact is negated by reality. Thus, it makes perfect sense for a contractor to read this la nguage as presenting a command contingent on the truth of the fact: i.e., as saying, “All the plaster is conf irmed to contain asbestos and therefore must be removed.” To be sure, the parties were certainly entitled to stipulate that all the plaster must be abated, regardless of its asbestos content—and the City has a plausible argument that the addendum is such a stipulation. But this is not the only plausible argument. Second, the majority conflates plaster removal with asbestos abatement. It’s easy and cheap to remove plaster from a building, and Dore is not complaining about th at task. But it’s labor-intensive, tedious, and expensive to abate asbestos—and these are the expenses that Dore is complaining about. The Code of Federal Re gulations imposes strict requirements on owners who want to demolish buildings with asbestos content, including meticulous wrapping, bagging, wetting, and ventilation rules that must be followed regarding th e asbestos prior to general demolition and removal of non-asbestos material. 40 C.F.R. § 61.145(c). This process is called abatement in construction lingo. Only after the asbe stos-containing plaster has been successfully “abated” can the rest of the pl aster be safely “removed.” Thus, it is reasonable for a c ontractor to read that plaste r “must be removed” and think that the owner is referring to the second step of the process. He is unlikely to speak up, because such an adjustment to his workload is a minor one—or a “clarification,” 2 as this statement

2 The words clarification and specification mean very different things in a construction contract. The City’s decision to label this as a clarifica tion is a strong indicator that it did not intend to “change the contract sum or contract time,” or the scope of work, for that matter. T HE C ONSTRUCTION P ROJECT : P HASES , P EOPLE , T ERMS , P APERWORK , P ROCESSES , § 1.III.A.2, ASI (Architect Supplemental Instruction ); id. § 5.III.B.2, Coordination and Clarification . At the very least, no one could truly expect the contractor to think this addendum changed the scope of work in the contract—relying, as he must, on the customary meaning of words in his industry. A specification, on the other hand, can (and often does) change the scope of the contract, and should have been used here if the City truly wanted to change the scope of work. See B RUNER & O’C ONNOR , C ONSTRUCTION L AW § 5:27, ¶ 1.1.6, The Specifications (Definitional) (“Specifications are defined as ‘written requi rements for materials, equipment, systems, standards in workmanship’ and are part of the contract documents.”); Cedar Bay Constr., Inc. v. City of Fremont ,Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 22 - described itself. A contractor watching for subs tantial changes to the scope of the expensive abatement process would ordinarily expect to s ee that word used in any significant alterations released by the owner. In other words, had the addendum rea d, “all the plaster is confirmed to contain asbestos and must be abated as such,” I would agree that Dore must lose this case on the pleadings. As it stands, however, the City’s use of the word “removal” in the asbestos-abatement context is sufficiently confusing that we need extrinsic evidence to explain what was going through the parties’ minds. Third, the majority ignores strikingly similar precedent from the Supreme Court of Ohio. That Court—whose holdings govern the outcome he re—has specifically addr essed this issue. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth. , 678 N.E.2d 519 (Ohio 1997). Foster Wheeler was another hazardous material s abatement case, involving the same environmental engineer as this case (Lawhon). Id. at 521. Foster Wheeler therefore provides invaluable guidance on how the Ohio courts interpret contracts like the one before us.
In Foster Wheeler , the contractor, after excavation, found more hazardous waste than Lawhon had identified. Id. at 522–23. Without obtaining written authorization from the government owner, the contractor removed the extra waste and demanded payment. Id. at 523–24. The government refused. Id. at 525. The government relied on a provision in the contract stating that “[n]o alterations shall be made in the work shown or described by the pl ans and specifications, except upon the written order of the Owner.” Id. at 527. The contractor responded by arguing that the contract provided a “unit price,” which stated that the contractor would be paid a certain sum per unit for quantities “either in excess of or less than the base bid of 140 cubic yards.” Id. at 522. The contractor

552 N.E.2d 202, 204–06 (Ohio 1990) (forbidding parties from adding specifications, but not clarifications, after the bids have been opened but before the contract is signed).Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 23 - relied on this section (not without reason), sayi ng that the specific always controls the general, and that the language “in excess of . . . the base bid” clearly permitted it to do more work, and be paid for it, without notice or written authorization. Id. at 522, 527. The Supreme Court of Ohio sided with the government. Reading the whole contract, the Court held that the intent of the parties was to provide a flexible per-unit scheme up to the base bid amount (i.e., the unit price x 140 cubic yards). Id. at 527–28. However, lest the writtenapproval clause be rendered meaningless, the cont ractor must seek authorization for work above that amount—even though the attachment seemed to clearly permit payment “in excess of . . . the base bid” and did not mention notice or authorization. Id. at 522, 528. The Court reasoned that otherwise, a contractor could transform a limited enterprise into a “runaway project[]” and charge the City for a potentia lly infinite amount of labor. Id. at 528. Using the base bid as a presumptive ceiling made sense in light of the goal s of competitive bidding and thus was the best reflection of the parties’ intent. As the Court said, “The compensa tion to be paid was, therefore, based upon a price fixed as a result of competitive bidding, and was not left to [a time] when it might be possible for either to take adva ntage of the situatio n of the other.” Id. at 527. Foster Wheeler controls the outcome here. If Foster Wheeler held that a clear, specific provision cannot be interpreted to allow a cont ractor to charge the owner for an unlimited amount of labor, then the converse must also be true: The City cannot invoke a one-sentence clarification to extract as much free labor as it deems necessary, rega rdless of what the rest of the contract says. The Addendum here seems clear on its face; but so did the attachment in Foster Wheeler. The Ohio Supreme Court acknowledged this , but cautioned subordinate courts (which, in this context, includes ours) that “the point to readi ng the contract as a w hole is to avoid this very kind of abstract interpretation” where one party tries to win ba sed on a footnote. Id. at 527Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 24 - (“If the Unit Price Attachment constituted the entire agreement . . . we might find some merit in [the contractor]’s interpretation of the footnote . . . .”). Thus, th e majority is wrong when it says that the specific automatically controls the ge neral language of a constr uction contract—here, to get rid of the asbestos. Maj. Op. at 6. Foster Wheeler teaches that this is not always the case. True, Foster Wheeler is distinguishable because the addendum here purports to supersede all things “stated or shown to the contrary” in the contract . R. 12-1, Adde ndum 01, PID 511. For that reason, we cannot grant Dore’s request for judgment on the pleadi ngs, any more than we can grant the City’s. But exactly what parts of a 300-page contract are contrary to the addendum? The advisory warnings on the Law hon Report? The specifications? The changeorder provisions and changed-condition rules discussed below? We don’t know, because the addendum doesn’t say. This is a classic ambiguity that we cannot resolve by looking at the four corners of the agreement. Davis v. Loopco Industs. , 609 N.E.2d 144, 145 (Ohio 1993). We therefore cannot grant judgment on the pleadings in favor of the drafter (h ere, the City) without violating Ohio contract law. Lathrop Co. v. City of Toledo , 214 N.E.2d 408, 412 (Ohio 1966) (ambiguities in public-works contracts must be resolved in favor of the contractor). Oversimplifications are generally harmless. This one is not. We are bound to apply the laws of the state of Ohio, because we lack the au thority to change “the voice adopted by the State as its own.” Erie R.R. Co. v. Tompkins , 304 U.S. 64, 79 (1938). Moreover, having two rules of decision—one for state court and one for fe deral court—encourages forum-shopping and “render[s] impossible equal protection of the law.” Id. at 74. Today’s d ecision disregards the holistic approach to construction contracts us ed by the Supreme Court of Ohio, and instead fixates on one sentence of a 300-page documen t to deny relief when the Ohio courts would almost certainly find enough ambiguity to proceed past the pleadings. Now, there are twoCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 25 - standards to be applied to Ohio construction cases—one for out-of-state contractors suing in diversity, and one for in-sta te contractors who must sue in the st ate courts. In federal court, the most specific provision controls, no matter what else the contract might say. In state court, the contract will be viewed as a whole, even if one part seems to clearly favor one party. This is exactly what the Supreme Court has been trying to avoid since Erie . Because I think this oversimplification is dangerous to our judicial system, I cannot join the opinion of the court.
IV But even in Wonderland, Dore can still main tain a breach-of-contract claim. And that makes the majority’s opinion even more troubling, b ecause it doesn’t play by its own rules. The majority claims that “there were prescribed methods” for altering the scope of work under the contract (i.e., by submitting a pre-bid exception), and that “Dore failed to employ those mechanisms.” Maj. Op. at 1. False. Submitting an exception during bidding is not the only way the contract permits parties to change the scope of work. The contract expressly contemplates that the site conditions may be different than agreed to in the bid doc uments, and permits the parties to seek changes— even after the contract is signed. Specifi cally, Article 7.5 of the General Specifications ( Differing Site Conditions ) contemplates that, after work begins, 3 the contractor might encounter “otherwise concealed physical conditions . . . at th e Site that differ materi ally from the conditions indicated in the Contract Documents.” R. 12-1, Gen. Specs, Art. 7.5, PID 548. If this occurs, the contractor must immediately st op work and notify the Owner. Id. If the Owner agrees that the change is necessary, it must “process an appropriate Change Order.” Id. If the Owner disagrees,

3 As opposed to any discrepancies that arise during the bi dding process. Article 7.5 assumes the work has already begun at the time the differing condition is identified. See, e.g. , id. Art. 7.5.2, PID 548.Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 26 - the contractor may initiate administrative dispute resolution and file a laws uit to recover for extra costs or to seek extra time to comply. Id. ; see also id. , Art. 8. Dore invoked these procedures here. Perhaps the parties did agree, through the addendum at the bidding stage, that all the plaster contained asbestos . But, after the contract was signed, Dore (a) discovered th at the addendum was factually wrong, (b) notified the City of the error, and (c) proposed appropriate changes, which were blessed by the Ohio EPA. See R. 1, Compl. ¶¶ 23–29, PID 4–5. Completely aside fr om the failure-to-notify and the addendum issues, the General Specifications themselves oblig ated the City to consider Dore’s changes and approve them if they were reasonable. True, the contract required Dore to perform “to the City’s satisfaction,” Maj. Op. at 7, but Ohio law dict ates that a commercial party’s dissatisfaction cannot be arbitrary or unreasonable. Hutton v. Monograms Plus, Inc. , 604 N.E.2d 200, 203–04 (Ohio Ct. App. 1992). Thus, “the refusal of a public entity to give a cont ractor a written order for alterations, in accordance w ith a contract stipulation theref or, may constitute a breach of
contract.” Foster Wheeler , 678 N.E.2d at 528. In other words, a City’s unreas onable refusal to alter the scope of work when presented with new f acts can constitute a breach of contract, even if the contractor previously agreed to a different scope of work. The parties, of course, disa gree about whether the City’s actions were unreasonable. However, unreasonableness is a classic question of fact, and we can only dismiss the case if— assuming Dore’s version of the facts are true—the City’s refusal to alter the contract was not unreasonable. Dore says it has proof that the pl aster at issue did not contain asbestos. R. 1, Compl., ¶¶ 30–31, 36, PID 4–5. And if this is true, th en it is arbitrary, capr icious, and downright bizarre to force an asbestos cont ractor to pretend something contai ns asbestos when it, in fact, does not. Under these facts, Dore certainly had the right to “a wr itten order for alterations, inCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 27 - accordance with [the] contract stipulation theref or” contained in the General Specifications. Foster Wheeler , 678 N.E.2d at 528. This right should not be confused with Dore ’s ultimate case on the merits. The City was—and is—entitled to defend against Dore’s claims by proving that its demand was justified by the actual site conditions. For example, the City could show that Dore would have been obligated to abate certain non-asbestos in order to safely access the actual asbestos. Or it could prove that Dore’s experts were simply wrong about the asbestos c ontent of the site. District courts dispose of summary judgment motions on these grounds every single day, and the Supreme Court has provided us with excellent guidance on that subject. See, e.g. , Celotex Corp.
v. Catrett , 477 U.S. 317 (1986). The majority complains that Dore’s readi ng of the addendum renders it meaningless. Maj. Op. at 5. But the majority’s reasoning does the exact same thing to the change-of-work and changed-circumstances provisions of the contract—s ections that are far more elaborate, lengthy, and well-thought-out than a one-sente nce clarification. It is hard for me to believe that these sections were unambiguously superseded by the addendum. The clarifica tion was related to one stage of the process—the bidding and the specifi cations. The changed-circumstances provisions, however, are related to a completely different stage: post-bid, mid- stream problems. Thus, I can see how the addendum might have modified the specificat ions. I can see how it may have superseded the advisory labels on the Lawhon Report by saying that the plaster is “confirmed” to contain asbestos, rather than “es timated” to contain asbestos. It makes some sense that a pre-bid addendum woul d alter the substance of the pl ans on which the contractor was bidding. However, it makes far less sense to sa y that a pre-bid addendu m altered the post-bid processes by which a contractor was entitled to seek changes ba sed on new information. PerhapsCase No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 28 - this is what the parties intended at the time. Bu t that is not obvious from the perfunctory nature of the addendum. This ambiguity requires th at we deny the motions for judgment on the pleadings and remand for a factual determination of exactly what was co ntrary to the addendum in the minds of the parties.
V There are two ironies in this case. First, the majority concludes its opinion by tritely admonishing Dore that “[t]he contract required Dore to abate all ACM in the building to the City’s satisfaction.” Maj. Op. at 10. Of cour se it does—it’s an asbestos-abatement contract. Since the beginning of this case , Dore has said that it was mo re than happy to abate all the asbestos in the building for the agreed-upon price. R. 23, Dore’s Resp. to Mot. to Dismiss, PID 967. And Dore has freely acknowledged that it will lose this case if the di sputed plaste r actually did contain asbestos. Id. (“Dore was prepared to . . . accept the liability should there be more ACM in the building than identified in the bid do cuments.”). Dore simply wants us to compel the district court to adhere to the Federal Rules of Civil Procedure, which require that we assume, at this point, that the disputed plaster did not contain asbestos—r egardless of what the City thought. If that is true, then nothing in the contract unambiguously required Dore to pretend that it was asbestos. In a second irony, the majority tritely accuses me of inventi ng a “new rule of contract interpretation” and ignoring “controlling precedent” and “construction jurisprudence.” I have no idea what they are talking about. Indeed, in purpor ting to indict me for the error of my ways, the majority identifies neither the rule I have “invent ed” nor the precedent or construction practices I am accused of mutilating. Lawyers and judges can see for themselves the disparity between the substantial authority I have cited and the majo rity’s tepid analysis of the relevant law.Case No. 17-3392 Dore & Associates Contracting, In c. v. City of Columbus, Ohio

- 29 - No matter. Dore did a better job estimating the asbestos content of City property in a competitive-bidding system and offered the City a good deal—and for that, apparently, Dore must suffer. But this is nonsense from the heart of Wonderland. As Judge Learned Hand instructed us: “The successful competitor, havi ng been urged to compete, must not be turned upon when he wins.” United States v. Aluminum Co. of America , 148 F.2d 416, 430 (2d Cir. 1945). Today, the majority does exactly that by read ing a contract to say things it, quite frankly, doesn’t say, in order to save the City from its own competitive blunder. To future contractors who may find themselves litigat ing under Ohio construction law in federal court, beware: Anything you sign can and will be used against you, and it may mean exactly the opposite of what it says. I dissent.