dissenting.
{¶ 15} The majority states, “Even construing the facts of this case in a light most favorable to DSI, DSI has failed to allege any facts establishing privity or a *417sufficient substitute for privity as required by Floor Craft. Contrary to DSI’s assertion, mere knowledge by the subcontractor of the identity of the project owner, without more, does not create a nexus sufficient to establish privity or its substitute.” I disagree. DSI alleged several facts that, if believed, would establish privity.
Thompson Hiñe, L.L.P., Michael W. Currie, O. Judson Scheaf III, and Paul Giorgianni, for appellant.{¶ 16} DSI and Corporex have common ownership and management, a fact that Shook does not dispute and that the majority opinion does not mention. That fact alone is likely sufficient to establish privity when construed, as we must, in DSI’s favor. The contract between Corporex and Shook contains several provisions that refer to the owner of the construction project, including a provision that Shook would not be paid until it furnished a signed statement acceptable to the owner, which Shook knew to be DSI. Further, in its brief, Shook refers to DSI and Corporex as the left and right pockets of Bill Butler, the owner of both companies. This tacit acknowledgement that Shook knew it was dealing with both companies and that DSI and Coporex are interconnected indicates that Shook was in privity with both companies. To suggest that Shook’s “mere knowledge” of DSI’s identity does not establish privity is misleading. To suggest that DSI has not alleged “any facts establishing privity” is contrary to the record. At the very least, DSI’s claims.ought to survive judgment on the pleadings.
{¶ 17} The majority opinion suggests that DSI should sue Corporex, that the left hand should sue the right hand, according to Shook, and then Corporex could sue Shook to recover damages. This approach might make sense if DSI and Corporex did not have common ownership and management. But they do, and it strains credulity to think that Corporex would vigorously defend itself. This court ought not to require a party to institute a sham action or defense.
{¶ 18} According to Shook, the original subcontract, which formed the basis of the agreement between it and Corporex, contained a provision holding Shook liable for delay damages that might be claimed by DSI. According to Shook, Corporex agreed to delete that provision from the contract it ultimately signed with Shook. If these contentions were proven to a jury, DSI would have grave difficulty prevailing on the merits, but it should not be foreclosed from seeking a remedy based on the pleadings before us.
{¶ 19} I would remand the cause and instruct the trial court to determine whether there was privity between Shook and DSI. I dissent.
Resnick, J., concurs in the foregoing dissenting opinion. Maguire & Schneider, L.L.P., Karl H. Schneider, and William C. Donahue, for appellee. Kegler, Brown, Hill & Ritter Co., L.P.A., Donald W. Gregory, and Robert G. Cohen, urging reversal for amicus curiae American Subcontractors Association. Schottenstein, Zox & Dunn and Roger L. Sabo, urging reversal for amicus curiae Ohio Contractors Association. Murray & Murray Co., L.P.A., Dennis E. Murray Jr., and James S. Timmerberg, for amicus curiae Murray & Murray Co., L.P.A.