Newman v. Univ. of Dayton
| Decision Date | 07 May 2021 |
| Docket Number | No. 28815,28815 |
| Citation | 172 N.E.3d 1122 |
| Court | Ohio Court of Appeals |
| Parties | Peter K. NEWMAN, Plaintiff-Appellant v. UNIVERSITY OF DAYTON, et al., Defendants-Appellees |
PETER K. NEWMAN, 594 Garden Road, Dayton, Ohio 45419, Plaintiff-Appellant, Pro Se.
DANIEL G. ROSENTHAL, Atty. Reg. No. 0010119, 201 East Fifth Street, 26th Floor, Cincinnati, Ohio 45202 and GRETCHEN M. TREHERNE, Atty. Reg. No. 0074376, 8534 Yankee Street, Suite E, Centerville, Ohio 45458, Attorneys for Defendants-Appellees.
{¶ 1} Peter K. Newman appeals from three trial court judgments regarding his claims against the University of Dayton ("UD") and related individual defendants: (1) the trial court's dismissal of Newman's claims against attorney Karen T. Dunlevey and the law firm of Jackson Lewis, P.C.; (2) the trial court's entry of judgment in favor of UD and all UD employees named as defendants; and (3) the trial court's denial of Newman's motion to disqualify Dunlevey and Jackson Lewis from representing UD in this matter. The judgments of the trial court will be affirmed.
{¶ 2} From approximately 2014 to 2016, Newman, an attorney, was employed as an adjunct professor at UD, teaching primarily in the School of Business Administration ("SBA"). In September 2016, after a female African-American law student1 allegedly challenged Newman about certain course requirements in a summer 2016 class at UD's law school, Newman, who is male and white, filed an internal complaint against that student for discrimination and harassment. Dissatisfied with UD's handling of that complaint, Newman later filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). (See 3/25/19 Motion for Judgment on the Pleadings and/or Motion for Summary Judgment, Exh. 22.)
{¶ 3} Shortly after the EEOC dismissed that charge , Newman filed a series of retaliation charges with the Ohio Civil Rights Commission ("OCRC"), which the OCRC dismissed both initially and on Newman's motion for reconsideration.
{¶ 4} Purportedly unaware of Newman's dispute with the law student, the SBA in October 2016 notified Newman that his contract as an adjunct professor would not be renewed for the spring 2017 semester. Newman then filed a complaint in federal court, naming as defendants UD, multiple UD employees, and the law student with whom he had the indicated conflict, and setting forth claims for alleged violations of Title VII, Title IX, the Age Discrimination in Employment Act, Ohio's discrimination statutes, and related tort and contract claims. Newman v. Univ. of Dayton , S.D.Ohio No. 3:17-cv-179 (May 19, 2017 Complaint) ("Newman I "). (See 3/25/19 Motion for Judgment on the Pleadings and/or Motion for Summary Judgment, Exh. 1.) The federal trial court dismissed2 Newman's complaint on the basis of judicial estoppel, finding that Newman improperly failed to disclose his UD employment and earnings or his claims against the University and its employees in a then-pending personal bankruptcy action filed on behalf of Newman and his wife.3 Newman , S.D.Ohio No. 3:17-cv-179, 2017 WL 4919225 (Oct. 31, 2017).
{¶ 5} On Newman's appeal from that judgment, the Sixth Circuit Court of Appeals affirmed. Newman v. Univ. of Dayton , 751 Fed.Appx. 809 (6th Cir. 2018). The federal appellate court also denied Newman's subsequent petition for rehearing en banc. (See 3/25/19 Motion for Judgment on the Pleadings and/or Motion for Summary Judgment, Exh. 14.)
{¶ 6} While that federal appeal remained pending, Newman filed a second federal action against UD arising from the same operative facts. Newman v. Univ. of Dayton , S.D. Ohio No. 3:18-cv-252 (Jul. 25, 2018 Complaint) ("Newman II "). (See 3/25/19 Motion for Judgment on the Pleadings and/or Motion for Summary Judgment, Exh. 16.) The second lawsuit included causes of action identical to four asserted against UD in Newman I ,4 but also asserted new claims against Dunlevey and Jackson Lewis, UD's attorneys.
{¶ 7} On January 29, 2019, a federal magistrate judge recommended that Newman's second complaint be dismissed for failure to prosecute. Two days later, Newman moved to voluntarily dismiss his Newman II complaint without prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(A). (Id. , Exh. 20.) On February 4, 2019, the district judge adopted the magistrate judge's report and recommendation and dismissed Newman II without prejudice. (Id. , Exh. 21.)5
{¶ 8} In apparent anticipation of that dismissal, Newman filed the current action in the Montgomery County Court of Common Pleas on January 31, 2019 ("Newman III "). Again referencing the termination of his employment after he brought discrimination and harassment charges against a female African-American law student, Newman named as defendants UD, numerous UD employees,6 and UD's outside counsel, Dunlevey and Jackson Lewis. The complaint set forth claims against all defendants for aiding and abetting discrimination in violation of R.C. 4112.02(J)7 (Second Cause of Action), and against UD only for retaliatory harassment in violation of R.C. 4112.02(I)8 (First Cause of Action), breach of an implied contract (Third Cause of Action), wrongful discharge in violation of public policy (Fourth Cause of Action), and misrepresentation and fraud (Fifth Cause of Action). The claims against Dunlevey and Jackson Lewis were premised on conduct attributed to Dunlevey and alleged to have occurred after Newman I was filed. Some allegations targeted Dunlevey's purported conduct related to the original federal court action and before the OCRC; others related to her purported permanent extension to the entire UD campus of the UD law school dean's order banning Newman from law school property, and her supposedly conflicting explanations for that ban. (See 1/31/19 Complaint, ¶ 27, 30-31, 35-36, 44.)
{¶ 9} On March 4, 2019, Defendants Dunlevey and Jackson Lewis moved pursuant to Civ.R. 12(B)(6) to dismiss Newman's claims against them on the basis of judicial privilege. They urged that the actions on which their liability supposedly was premised all were undertaken by Dunlevey during the course of representing the UD defendants in judicial or quasi-judicial proceedings, and thus were absolutely privileged.
{¶ 10} On March 25, 2019, UD and its named employees, represented by a different attorney from the Jackson Lewis firm, moved for judgment on the pleadings and/or for summary judgment pursuant to Civ.R. 12(C) and/or Civ.R. 56(C), arguing that Newman's claims against them were barred by the doctrines of res judicata and judicial privilege. In support, they cited the federal court's entry of dismissal in Newman I and offered the same judicial privilege argument advanced by Dunlevey and Jackson Lewis in their own motion to dismiss.
{¶ 11} On March 11, 2019, Newman filed a motion to disqualify Dunlevey and Jackson Lewis from representing the other defendants herein. Newman argued that Dunlevey's status as a defendant expected to testify as a fact witness created conflicts of interest that rendered both her and her law firm unable to act as counsel for the UD defendants.
{¶ 12} On May 19, 2020, the trial court entered separate judgments on the three pending motions described above. One judgment granted Jackson Lewis and Dunlevey's motion to dismiss the claims against them; one granted the UD defendants’ motion for judgment on the pleadings and/or motion for summary judgment; and one denied Newman's motion to disqualify counsel.
{¶ 13} Newman timely filed this appeal from all three of those judgments, setting forth these three assignments of error:
{¶ 14} We will address those assignments of error in the order that best facilitates our analysis.
{¶ 15} After this appeal was filed, but before the date scheduled for oral arguments to this Court, the Montgomery County Court of Common Pleas entered an order declaring Newman "a vexatious litigator, pursuant to R.C. 2323.52." See Univ. of Dayton v. Newman , Montgomery C.P. No. 2020-CV-2221 (Sept. 3, 2020). The relevant statute provides that a person subject to a vexatious litigator order "may not * * * continue any legal proceedings that the vexatious litigator had instituted in a court of appeals prior to entry of the order, or make any application, other than the application for leave to proceed allowed by division (F)(2) of this section, in any legal proceedings instituted by the vexatious litigator or another person in a court of appeals without first obtaining leave of the court of appeals to proceed pursuant to division (F)(2) of this section." R.C. 2323.52(D)(3).
{¶ 16} In pertinent part, R.C. 2323.52(F)(2) provides:
A person who is subject to an order entered pursuant to division (D)(1) of this section and who seeks to institute or continue any legal proceedings in a court of appeals or to make an application, other than an application for leave to proceed under division (F)(2) of this section, in any legal proceedings in a court of appeals shall file an application for leave to proceed in the court of appeals in which the legal proceedings would be instituted or are pending. The court of appeals shall not grant a person found to be a vexatious litigator leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of appeals unless the court of appeals is satisfied that the proceedings or application are not an abuse of process of the court and that there are reasonable grounds for the proceedings or application. * * *
{¶ 17}...
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