John M. Worrell v. Court of Common Pleas of Athens County, Ohio

• Decision Date: 21 September 1993
• Docket Number: 1506,93-LW-4501
• Parties: JOHN M. WORRELL, Plaintiff-Relator v. COURT OF COMMON PLEAS OF ATHENS COUNTY, OHIO, Defendant-Respondent CASE
• Court: Ohio Court of Appeals

JOHN M. WORRELL, Plaintiff-Relator v. COURT OF COMMON PLEAS OF ATHENS COUNTY, OHIO Defendant-Respondent

No. 1506.

93-LW-4501 (4th)

Court of Appeals of Ohio, Fourth District Athens

September 21, 1993

Lee Fisher, Ohio Attorney General, by Gerald A. Mollica, 35 North College Street, P.O. Drawer 958, Athens, Ohio 45701.

Edward S. Robe, 14 W. Washington Street, P.O. Box 272, Athens, Ohio 45701.

DECISION

PER CURIAM.

This is an original action brought by John M. Worrell, Jr. M.D. relator herein, requesting a writ of prohibition permanently enjoining and prohibiting the Athens County Common Pleas Court (common pleas court), respondent herein, from entertaining subject matter jurisdiction and further proceeding in Walker v. Worrell Case No. CI 85-4-224, unless and until the Ohio Court of Claims makes an explicit determination that Worrell acted manifestly outside the scope of his employment or official responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner.

In the instant complaint, Worrell notes Bruce Walker, the plaintiff in Walker v. Worrell, filed an action against Ohio University and the State of Ohio in Walker v. Ohio University, Ohio Court of Claims Case No. 83-01395.

In his January 25, 1983 complaint in Walker v. Ohio University, Walker alleged he enrolled in Ohio University beginning fall quarter 1974 as a graduate student in the mathematics department. He further alleged that prior to his enrollment and continuing until the summer of 1981 various employees of Ohio University, including Worrell, then a mathematics professor, represented to him that he could earn a masters degree, and later a doctoral degree, by pursuing a nontraditional program of instruction which would not require him to attend classes or take comprehensive examinations, but would rather require him to teach classes and pursue an independent course of study under Worrell's direction. Walker alleged that as a result those representations, and as a result of Ohio University's refusal to grant him academic credit for the work he completed pursuant to those representations, he lost employment opportunities and wages, and he sustained a reduced earning capacity.

Walker based the Walker v. Ohio University complaint on breach of contract grounds. In the alternative, Walker alleged that if his non-traditional program was unauthorized then Ohio University:

(1) negligently misrepresented that an unauthorized program was authorized; (2) failed to adequately supervise, train and control its agents and employees; and (3) failed to exert sufficient direction and control over its curriculum and course of study. Walker prayed for $750,000 from the defendants, Ohio University and the State of Ohio.

Although Walker mentioned Worrell in the Walker v. Ohio University complaint, Walker made no allegation that Worrell acted manifestly outside the scope of his employment with Ohio University or with a malicious purpose, in bad faith, or in a wanton or reckless manner. Walker's complaint did not request the court of claims to determine whether Worrell acted manifestly outside the scope of his employment or with a malicious purpose, in bad faith, or in a wanton or reckless manner.

After a trial on the merits, the Ohio Court of Claims issued judgment in Walker v. Ohio University on August 10, 1984 finding that Walker failed to meet his burden of proving Ohio University breached a duty relative to the supervision of either Walker or Worrell with regard to Walker's degree progress. The court wrote in pertinent part:

"Plaintiff submits that beginning in 1978, when with Dr. Worrell's encouragement he decided to forego obtaining an M. Sc. and to go directly for a Ph. D., Dr. Worrell repeatedly told him not to be concerned about comprehensive examinations. Plaintiff's testimony on this point is corroborated by the testimony of a fellow student, Mr. Pilati. The totality of the evidence here, however, is not unequivocal. In his deposition, Dr. Worrell admits that he told plaintiff and Pilati not to be concerned about comprehensives, and that he thought them to be a nuisance. But he also told them that he would exert his efforts to see that comprehensives would not be required. The last question asked of Dr. Worrell in his deposition is illustrative:

'Q. * * * Did you ever promise Mr. Walker that (he) didn't have to take any form of comprehensive exams if he stayed at Ohio University?

A. No, I have never made such a promise.'

Regardless of whether Dr. Worrell ever promised plaintiff that he would not have to take comprehensive examinations, it does appear that Dr. Worrell was sufficiently assertive so that plaintiff did indeed believe that they would be dispensed with in his case, and he planned and continued his academic program in accordance with that reliance for over three years. The court, however, finds that such reliance was not justified.

First, it must be borne in mind that plaintiff was not an uneducated teenager at the time the question of comprehensives arose. He was in his mid twenties, had already obtained a[n] undergraduate college degree, and had been-involved in a graduate degree program for nearly four years. Secondly, he was aware of catalogue requirements regarding comprehensive examinations as a prerequisite for a Ph. D. degree. He himself brought up the matter with Dr. Worrell in 1978 when he decided to work on a Ph. D. Thirdly, his acceptance of what Dr. Worrell told him as gospel, without further inquiry, was unwarranted, in light of the positive language of the catalogue. The evidence established that the office of the dean of the college, and of the chairman of the mathematics department, was always open to him.

Lastly, there was no evidence that Dr. Worrell, as a professor of mathematics, and not any member of any university governing body, had any authority to waive a university degree requirement. Neither was there any evidence that defendant did anything to lead plaintiff to believe that Dr. Worrell had such authority. Apparent authority on the part of an agent cannot be established solely by the acts and conduct of the principal. Logdon v. ABCO Construction Co. (1956), 103 Ohio App. 233; American v. Avis Rent-A-Car (1982), 7 Ohio App.3d 338.

For reasons given, this court accordingly finds that plaintiff has not met his burden of proof in establishing any of his alleged grounds for relief. * * *

(Emphasis added.)

Although the court of claims found there was no evidence to prove Worrell had authority to waive a university requirement, the court of claims made no express determination that Worrell acted outside the scope of his employment. The court of claims did not include the terminology "outside the scope of employment" in its judgment entry.

On April 30, 1985, within a year after the Ohio Court of Claims issued the judgment entry quoted above, Walker filed Walker v. Worrell in the common pleas court, alleging in pertinent part as follows:

"On August 10, 1984, the Court of Claims determined that the acts of defendant John N. Worrell, Jr. M.D. as described in the Complaint filed with that Court were manifestly outside the scope of said defendant's office or employment, entitling plaintiff to bring this action directly against said defendant."

Although the court of claims did not expressly determine whether Worrell acted outside the scope of his employment, Walker alleged the court of claims made such a determination.

Walker apparently made his allegation with R.C. 2743.02(A)(1) in mind. The statute provides that the filing of a civil action in the court of claims is a complete waiver of any cause of action against an employee based upon the same act or omission. Once an action is filed in the court of claims, the common pleas court has no jurisdiction unless and until the court of claims makes a special determination. The statute provides in pertinent part:

(A)(1) * * *

Except in the case of a civil action filed by the state, filing a civil action in.the court of claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any officer or employee, as defined in section 109.36 of the Revised Code. The waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer's or employee's off ice or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.

(Emphasis added.)

On June 18, 1985, Worrell moved to dismiss the complaint, arguing that Walker failed to state a claim upon which relief could be granted. In particular, Worrell cited R.C. 2743.02(A)(l) and argued that the court of claims found the evidence was not unequivocal. Worrell further argued that the court of claims found that even if Walker relied upon Worrell's representations, Walker's reliance was not justified. In conclusion, Worrell stated:

"It is respectfully submitted that all issues presented by the Complaint have already been tried in Case No. 83-01395 of the Ohio Court of Claims and the, further, Ohio Revised Code Section 2743.02 bars this action."

On December 19, 1985, the common pleas court overruled the motion to dismiss "given the current status of the record."

Worrell filed an amended motion to dismiss on August 26, 1987, citing several new cases. Worrell cited McIntosh v. University of Cincinnati (1985), 24 Ohio App.3d 116, 24 OBR 187, 493 N.E.2d 321, and Perotti v. Seiter (June 3, 1986), Franklin App. No. 86AP-90, unreported, for the proposition that, pursuant to R.C. 2743.01(A)(1), the court of claims must make a clear and precise finding that the employee acted outside the scope of employment,^[1] before the common pleas cour...