Han v. Univ. of Dayton

• Decision Date: 30 January 2015
• Docket Number: No. 26343.,26343.
• Citation: 28 N.E.3d 547
• Parties: Sam HAN, Ph.D., Plaintiff–Appellant v. UNIVERSITY OF DAYTON, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

28 N.E.3d 547

Sam HAN, Ph.D., Plaintiff–Appellant

v.UNIVERSITY OF DAYTON, et al., Defendants–Appellees.

No. 26343.

Court of Appeals of Ohio, Second District, Montgomery County.

Jan. 30, 2015.

Sam Han, Beavercreek, OH, plaintiff-appellant.

Paul G. Hallinan, and Ana E. Perez, Dayton, OH, for defendants-appellees.

OPINION

PER CURIAM.

{¶ 1} Plaintiff-appellant Sam Han, Ph.D., appeals, pro se, a decision of the Montgomery County Court of Common Pleas, Civil Division, granting the motion for summary judgment of defendant-appellee University of Dayton, et al. (hereinafter “UD”), with respect to his claims for breach of contract, promissory estoppel, fraud, tortious interference with contractual relations, and respondeat superior. All of Han's claims derived from the University of Dayton School of Law's (hereinafter “UDSL”) decision to not renew his teaching contract for the 2012 school year. Han also appeals from the trial court's decision which denied his request to conduct additional discovery in order to respond to UD's motion for summary judgment. Lastly, Han appeals the trial court's decision denying his second motion to amend his complaint and add new parties. The trial court issued a Civ. R. 58(B) notice of a final appealable order in the instant case on July 11, 2014. Han filed a timely notice of appeal with this Court on August 11, 2014.

{¶ 2} Han was hired by UDSL in August of 2008 as a non-tenured faculty member to teach in the area of patent law and intellectual property. As a non-tenured professor, Han was subject to annual performance reviews from a Promotion, Retention, and Tenure (“PRT”) Committee comprised of six tenured UDSL professors appointed by the school administration for the task. The PRT committee voted to renew Han's teaching contract on two occasions after he was hired in 2009 and 2010. We note that in Han's 2010 performance evaluation, the PRT committee criticized his teaching methods, as well as two articles which he had drafted for publication in law reviews. In the evaluation, the PRT committee lauded Han for service to the educational and legal community, but cautioned him to reduce the time he spent pursuing such endeavors. Despite these criticisms, the PRT committee voted to renew Han's contract for an additional school term.

{¶ 3} In May of 2011, the PRT committee evaluated Han again and unanimously voted not to renew his teaching contract for the 2012 school term. The former dean of UDSL who had been instrumental in Han's hiring in 2008, Lisa Kloppenberg, agreed with the PRT committee and decided to not renew his contract, specifically citing his inadequate record of scholarly publication. Kloppenberg stepped down as dean of UDSL in June of 2011, and Paul McGreal took over as dean on July 1, 2011.

{¶ 4} After a failed attempt at mediation with UDSL over the non-renewal of his teaching contract, Han filed a complaint on December 16, 2011, naming UD, UDSL, McGreal, and each of the six members of his PRT committee as defendants. The initial complaint contained claims alleging breach of contract, promissory estoppel, fraud, tortious interference with contractual relations, respondeat superior, bad faith, attorney's fees, reliance damages, and punitive damages. We note that at the commencement of the instant litigation, Han was represented by counsel, but approximately eighteen months thereafter elected to proceed pro se. On February 14, 2012, UD filed a Civ. R. 12(B) motion to dismiss all of the claims in Han's complaint. On the same day, UD filed a motion for summary judgment in which it argued that since McGreal was not involved in either the hiring or non-retention of Han, he should be permitted to be dismissed from the case.

{¶ 5} Shortly thereafter, Han filed an amended complaint on February 27, 2012. UD responded by renewing its motion to dismiss and motion for summary judgment with respect to McGreal. Ultimately, the trial court granted UD's motion for summary judgment as to McGreal, and he was dismissed from the case. Additionally, the trial court granted UD's motion to dismiss in part regarding Han's claims for bad faith, reliance damages, and attorney's fees. Han's remaining claims for breach of contract, promissory estoppel, fraud, tortious interference with contractual relations, and respondeat superior survived UD's motion to dismiss. On April 19, 2012, Han filed a motion for partial summary judgment with respect to his claim for breach of contract.¹ UD filed a memorandum in opposition to Han's motion for partial summary judgment on May 4, 2012.

{¶ 6} On March 27, 2013, UD filed an amended answer to Han's amended complaint. In their amended answer, UD also asserted a counterclaim against Han for frivolous conduct. On April 24, 2013, Han filed a motion to dismiss UD's counterclaim for frivolous conduct. UD filed its memorandum in opposition to Han's motion to dismiss on May 8, 2013. Trial counsel for Han, Randall Stevenson, filed a motion to withdraw on May, 13, 2013, which the trial court granted on May 20, 2013. On June 3, 2013, Han filed a notice of appearance with the trial court in which he stated his intent to proceed pro se.

{¶ 7} In mid-July, 2013, Han deposed McGreal, who was by that time a non-party witness. Counsel for UD suspended the deposition shortly after it began, arguing that Han's questions were not “even remotely designed to discover admissible evidence with respect to any claim or defense” pertinent to the case. Shortly thereafter on July 23, 2013, UD filed a Joint Motion for Two Protective Orders: 1) Regarding Plaintiff's Improper Conduct at McGreal's Deposition, and 2) For a Stay of Discovery. The trial court granted the motion to stay any further discovery in an entry issued on August 16, 2013. On August 27, 2013, UD filed its motion for summary judgment. On September 25, 2013, Han filed a memorandum in opposition to UD's motion for summary judgment. In support of his memorandum in opposition, Han filed his own affidavit, as well as two other affidavits from attorneys John A. Fischer and Mary Frances Sweeney. In their affidavits, both Fischer and Sweeney aver that after reviewing “the facts and evidence in support of [Han's] claims,” there “are reasonable factual bases for each and every element of all of the claims.”

{¶ 8} On September 25, 2013, Han also filed a Civ. R. 56(F) motion for a continuance requesting that the trial court reopen discovery in order for him to depose two additional witnesses, Eric Chaffee and Robert Lech, who were professors at UDSL at the same time as Han. Han argued that Chaffee and Lech had consented to being deposed, and both individuals possessed “relevant, discoverable knowledge with reference to Han's claims against [UD].” Without Chaffee and Lech's deposition testimony, Han argued that he would be unable to properly respond to UD's motion for summary judgment. The trial court denied Han's Civ. R. 56(F) motion in a decision and entry issued on November 6, 2013. Han subsequently filed his own motion for summary judgment on November 25, 2013. After a hearing on February 5, 2014, the trial court overruled Han's motion for summary judgment in an entry issued on February 6, 2014. On March 18, 2014, the trial court granted UD's motion for summary judgment with respect to all of the remaining claims advanced by Han.

{¶ 9} On April 14, 2014, Han filed a motion requesting leave to file a second amended complaint and add new parties. On May 23, 2014, the trial court overruled Han's motion to file a second amended complaint. UD dismissed its counterclaim against Han for frivolous conduct without prejudice in an entry filed on July 8, 2014. On August 11, 2014, the trial court issued a Civ. R. 58(B) notice of a final appealable order in the instant case.

{¶ 10} Han's appeal is now properly before this Court.

{¶ 11} Han's first assignment of error is as follows:

{¶ 12} “THE LOWER COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY EXTINGUISHING PLAINTIFF–APPELLANT'S RIGHT TO DISCOVERY.”

{¶ 13} In his first assignment, Han contends that the trial court erred when it overruled his Civ. R. 56(F) motion for a continuance in order to reopen discovery in order for him to depose two additional witnesses, Professors Chaffee and Lech. Han argues that by overruling his Civ. R. 56(F) motion, the trial court “extinguished” his right to discovery and rendered him unable to properly respond to UD's motion for summary judgment.

{¶ 14} Whether to grant or deny a Civ. R. 56(F) continuance is committed to the sound discretion of the trial court. Porter v. Ettinger, 2d Dist. Greene No. 2006 CA 31, 2006-Ohio-6842, 2006 WL 3759839, ¶ 14. We may then not reverse absent a demonstrated abuse of discretion. As the Supreme Court of Ohio has determined:

“Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.

AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 15} Civ. R. 56(F) states in pertinent part:

(F) When affidavits unavailable

Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is

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