[Cite as Lovell v. Ohio Wesleyan Univ., 2012-Ohio-2139.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
ALISON B. LOVELL                                     :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. Sheila G. Farmer, J.
                        Plaintiff-Appellant          :       Hon. Julie A. Edwards, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2011-CAE-06-0053
OHIO WESLEYAN UNIVERSITY                             :
                                                     :
                     Defendant-Appellee              :       OPINION




CHARACTER OF PROCEEDING:                                 Civil appeal from the Delaware County
                                                         Court of Common Pleas, Case
                                                         No.10CVH010146

JUDGMENT:                                                Affirmed


DATE OF JUDGMENT ENTRY:                                  May 11, 2012




APPEARANCES:

For Plaintiff-Appellant                                  For Defendant-Appellee

CHRISTOPHER L. TROLINGER                                 WANDA L. CARTER
ROBERT PETTY                                             CHRISTOPHER E. HOGAN
BEVERLY J. FARLOW                                        NEWHOUSE, PROPHATER, LETCHER &
270 Bradenton Ave., Ste. 100                             MOOTS, LLC
Dublin, OH 43017                                         5025 Arlington Centre Blvd., Ste. 400
                                                         Columbus, OH 43220
[Cite as Lovell v. Ohio Wesleyan Univ., 2012-Ohio-2139.]


Gwin, P.J.

        {1}    Plaintiff-appellant Alison B. Lovell appeals a judgment of the Court of

Common Pleas of Delaware County, Ohio, entered in favor of defendant-appellee Ohio

Wesleyan University. Appellant assigns five errors to the trial court:

        {2}    “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT IN

FAILING TO DETERMINE WHAT SPECIFIC PROVISIONS CONSTITUTED THE

ENTIRETY OF THE CONTRACT.

        {3}    “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT IN

FAILING TO FIND THAT THE ENTIRE FACULTY HANDBOOK WAS PART OF THE

CONTRACTUAL RELATIONSHIP THAT EXISTED BETWEEN APPELLANT AND

APPELLEE.

        {4}    “III. THE TRIAL COURT ERRED IN FINDING THAT ‘COLLEGIALITY’

WAS PROPERLY CONSIDERED BY THE UNIVERSITY WITHIN THE CONTEXT OF

THE CRITERIA SET FORTH IN THE HANDBOOK.

        {5}    “IV. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT-

APPELLEES FOLLOWED THE UNIVERSITY’S PROCEDURES FOR REVIEWING

PLAINTIFF-APPELLANT’S REAPPOINTMENT OR NON-REAPPOINTMENT AND

SUBSEQUENT APPEALS, AND THUS, DID NOT BREACH THEIR CONTRACTUAL

OBLIGATIONS.

        {6}    “V. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT THE DEFENDANT-APPELLEE DID NOT BREACH THEIR CONTRACTUAL

OBIGATIONS TO PLAINTIFF.”
Delaware County, Case No. 2011-CAE-06-0053                                                 3


          {7}   This matter was tried without a jury. Appellee (hereinafter “the University”)

hired appellant for the position of Assistant Professor in the Department of Humanities

and Classics (the “Department”). The parties entered into one-year contracts for the

academic years 2007-2008, 2008-2009, and 2009-2010. Paragraph one of each

contract incorporated Chapter III of the University’s Faculty Handbook. Chapter III is

entitled “General Policies and Procedures Governing Faculty Contracts at Ohio

Wesleyan University”.

          {8}   At all times relevant to the lawsuit appellant was a probationary faculty

member. Chapter III of the University’s Faculty Handbook provides that reappointment

of a probationary faculty member will be proceeded by an evaluation by the Faculty

Personnel Committee. Chapter III also provides that written notice must be given to a

non-tenured faculty member if his or her contract will not be renewed.

          {9}   Appellant holds a Ph.D. in French with a certificate in Renaissance studies

and had twelve years of teaching experience at the post-secondary level. She was

hired with the assurance there was a maximum probationary period of seven years,

during which time her teaching, scholarship, and university service would be reviewed

and evaluated for a tenured position.

          {10} Appellant states the Department had a troubled history even before her

hiring.     She states during her employment at the University, she was ostracized,

excluded, bullied, and hazed by the senior members of the Department, and she and a

colleague repeatedly sought administrative intervention.        As a result, the University

placed an administrative dean as acting chair of the Department.
Delaware County, Case No. 2011-CAE-06-0053                                           4


      {11} Appellant was evaluated several times during her employment. The

University reappointed her in 2008. In January 2009, appellant received satisfactory

marks in all the categories of teaching, scholarly endeavors, and service. However, she

was informed that her collegiality and lack of cooperative spirit with her colleagues

within the Department could place her retention at risk.

      {12} Appellant was then evaluated in April 2009 to determine if she would be re-

appointed for the academic year 2010-2011. The student board gave appellant high

marks for teaching and her students evaluated her highly. In May 2009, the University

informed appellant they would not retain her for the academic year 2010-2011.

      {13} At the beginning of the 2008-2009 academic year, seven faculty members

were elected to serve on the Faculty Personnel Committee pursuant to the Faculty

Handbook. However, in February 2009, the only female member of the committee

recused herself from consideration of appellant’s reappointment, and on April 2, 2009,

she resigned from the committee. Chapter II of the Handbook requires the Faculty

Personnel Committee to have representatives of both genders. It also provides that in

the case of a vacancy, a new member shall be elected.

      {14} The University asserts the female committee member’s resignation came

at a time when there were a number of matters, including appellant’s review, which had

to be resolved before the end of the term. Due to time constraints, the Faculty

Personnel Committee asked the University’s Executive Committee how it should

proceed.   The Executive Committee directed the Faculty Personnel Committee to

resume its duties with the remaining elected members instead of delaying appellant’s

review until an election could be held.       The Faculty Personnel Committee then
Delaware County, Case No. 2011-CAE-06-0053                                              5


proceeded to recommend appellant not be re-appointed for the academic year 2010-

2011.

        {15} Appellant pursued her appeal through the University appeals process. The

University     administration   concurred   with   the   Faculty   Personnel   Committee’s

recommendation. The Provost sent appellant a letter informing appellant she would not

receive a contract for the academic year 2010-2011, and her contract for the academic

year 2009-2010 would constitute her terminal contract with the University. The Faculty

Personnel Committee conducted a review with its decision and found no grounds to

reverse itself. Appellant then appealed the Faculty Personnel Committee’s decision of

non-reappointment to the Faculty Reappointment Appeals Committee.

        {16} The Faculty Reappointment Appeals Committee upheld the Faculty

Personnel Committee’s decision, and appellant appealed to the President of the

University. The President found that all prescribed procedures had been properly

followed and that the Faculty Personnel Committee’s decision should not be overturned.

Appellant then brought suit in Common Pleas Court.

        {17}    The trial court found the University followed the proper procedures for

determining whether to reappoint appellant. The court found appellant’s collegiality or

lack thereof was properly considered by the University within the context of the criteria

set forth in the Handbook, and the University followed all the Handbook procedures as

stipulated in the employment contract.

        {18} The interpretation of a written contract is reviewed de novo as a matter of

law. Chan v. Miami University, 73 Ohio St. 3d 52, 652 N.E. 2d 664 (1995). The trier of

fact’s determination of the facts are reviewed under the manifest weight of the evidence
Delaware County, Case No. 2011-CAE-06-0053                                                 6


standard, and judgment supported by some competent and credible evidence going to

all the essential elements of the case may not be reversed. C.E. Morris Company v.

Foley Construction Company, 54 Ohio St. 2d 279, 376 N.E. 2d 578 (1978). This court

may not substitute our judgment for that of the trier of fact, because the trier of fact had

the opportunity to observe the witnesses and weigh the credibility of the testimony.

Seasons Coal Company, Inc. v. Cleveland, 10 Ohio St. 3d 77, 461 N.E. 2d 1273 (1984).

                                                I & II

       {19} In her first assignment of error, appellant argues the trial court erred in

failing to determine what specific provisions of the Faculty Handbook were part of the

contract between appellant and the University.           In her second assignment of error,

appellant argues the trial court erred as a matter of law and fact, in not finding the entire

Faculty Handbook was a component of the employment contract.

       {20} In each of the years appellant was employed, the University trustees and

appellant executed a one-page contract.          The contract incorporates by reference

Chapter III of the Faculty Handbook, and also references the terms of pension and

insurance benefits described in Chapter VI, which is incorporated by reference “insofar

as the scope of this agreement includes them.”

       {21} Appellant attached copies of each of the one-year contracts and only

Chapter III of the Handbook to her complaint.

       {22} Appellant argued the entire faculty handbook should be considered as part

of the contract between the parties.      Appellant cites us to Rehor v. Case Western

Reserve University, 43 Ohio St. 2d 224, 331 N.E. 2d 416 (1975) which held in

paragraph one of the syllabus:
Delaware County, Case No. 2011-CAE-06-0053                                                7


             Where a university faculty member is employed, using standard

      annual reappointment forms which do not set forth in full the terms and

      conditions of employment the university’s employment policies, rules and

      regulations become part of the employment contract between the

      university and faculty member.

      {23} The University replies because the contracts only incorporate Chapter III of

the Faculty Handbook and the section on benefits, only those sections were intended to

be part of the contracts between the parties.

      {24} The trial court did not make an express finding regarding which chapters of

the Faculty Handbook could be construed as part of the contract. However, the court

did discuss the provisions of Chapter II of the Handbook, namely, the requirements that

the Faculty Personnel Committee must consist of seven members, with both genders

represented, and any vacancy must be filled by election. The court found the Executive

Committee unanimously found the Faculty Personnel Committee could proceed.

      {25} We find while the trial court did not make express findings about

incorporating certain chapters or the entire Handbook into the contract, it nevertheless

did consider Chapter II in construing the contractual relationship between the parties.

      {26} The first and second assignments of error are overruled.

                                           III, IV & V

      {27} In her remaining assignments of error, appellant argues the court erred

when it found the University followed the proper procedures in reviewing her non-

renewal, because it found the University could properly consider collegiality in reviewing

her employment. The Handbook sets out three factors: teaching, scholarship, and
Delaware County, Case No. 2011-CAE-06-0053                                                  8


service. The Handbook specifies that the weight to be given to the factor of teaching is

60%, to scholarship 30%, and to service, 10%. Appellant asserts to insert collegiality as

a fourth criterion is a breach of the contract between the parties.

       {28} The University replies that collegiality, disposition and ability to work with

others are factors that relate to all three criteria of teaching, scholarship, and service.

The University asserts “collegiality” is a term which refers to a variety of behaviors

including those that are contentious, derisive, divisive, non-cooperative, disruptive, or

otherwise negatively impact the faculty member’s performance, her colleagues, and the

functioning of the Department as a whole. Dr. Musser, the chairman of the Faculty

Personnel Committee, testified collegiality was not an independent category but rather,

it “infuses” every one of the categories and everything that goes on.            The record

indicates appellant had not participated in committees and she created difficulties for

her students and for the faculty working with her.          Appellant objected to teacher

observations and did not release weekly syllabi as required.

       {29} Appellant cites us to Gogate v. Ohio State University, 42 Ohio App.3d 220,

537 N.E.2d 690 (10th Dist. 1987). In Gogate, the plaintiff challenged the denial of

tenure, alleging procedural irregularities, violation of his Due Process and Equal

Protection rights, and improper consideration of hearsay. The court of appeals found the

plaintiff was not prejudiced by the irregularities, which included allegations of failure of

notice, violations of university policy, improper members on the tenure committee, and

consideration of improper and irrelevant criteria. The plaintiff also complained that

several members of the committee abstained from voting, thus abdicating their

responsibilities. The Gogate case is not directly on point, but is similar to the one at bar.
Delaware County, Case No. 2011-CAE-06-0053                                                   9

The Gogate court stated:

       It was emphasized in Bassett v. Cleveland State Univ. (1982), Court of

       Claims No. 82-02100, unreported, that a court should intervene only

       where an administration has acted fraudulently, in bad faith, abused its

       discretion, or where the candidate's constitutional rights have been

       infringed. * * * We concur with the court's discussion in Kunda v.

       Muhlenberg College (C.A. 3, 1980), 621 F.2d 532, 548: “ * * *

       Determinations about such matters as teaching ability, research

       scholarship, and professional stature are subjective, and unless they can

       be shown to have been used as the mechanism to obscure discrimination,

       they must be left for evaluation by the professionals, particularly since they

       often involve inquiry into aspects of arcane scholarship beyond the

       competence of individual judges. * * * ”

Gogate at 225-226.

       {30}    In Kirsch v. Bowling Green State University, 10th Dist. No. 95API 11-1476,

1996 WL 284717(May 30, 1996), the plaintiff challenged the denial of tenure arguing the

university applied improper criteria, including collegiality, “fitting in” and his personality.

The Kirsch court found collegiality and personality were properly considered only as

they affected the plaintiff’s performance with regard to teaching, research and service.

Kirsch at 4.

       {31}    We find such determinations are necessarily highly subjective. The record

here supports the court’s finding the appellant’s collegiality was properly considered in

the context of the review of her teaching, scholarship, and service.
Delaware County, Case No. 2011-CAE-06-0053                                            10


      {32} Appellant also argues the University’s appeal process was a sham

because the Faculty Reappointment Appeals Committee did not adequately consider

the procedural irregularities of not having a female on the Faculty Personnel Committee,

did not overturn the consideration of collegiality in the evaluation process, and did not

take into account the weighting of the three criteria at 60%-30%-10%. Because we find

these were not procedural irregularities or improper considerations, we reject

appellant’s argument the University’s appeal process was a sham.

      {33} In order to prove her claim for breach of contract, appellant had to show: 1.

the existence of a contract; 2. performance by the plaintiff; 3. nonperformance by the

defendant; and 4. damages as a result. Textron Fin. Corp. v. Nationwide Mutual

Insurance Co., 115 Ohio App.3d 137, 144, 684 N.E.2d 1261 (9th Dist.1996), citing

Garofalo v. Chicago Title Insurance Co., 104 Ohio App.3d 95, 108, 661 N.E.2d 218 (8th

Dist.1995). A plaintiff must prove the elements of a breach of contract by a

preponderance of the evidence. Cooper & Pachell v. Haslage, 142 Ohio App.3d 704,

707, 756 N.E.2d 1248 (9th Dist. 2001).

      {34} We agree with the trial court the appellant did not demonstrate the

University breached the contract.

      {35} The third, fourth, and fifth assignments of error are overruled.
Delaware County, Case No. 2011-CAE-06-0053                                     11


      {36} For the foregoing reasons, the judgment of the Court of Common Pleas of

Delaware County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur




                                         _________________________________
                                         HON. W. SCOTT GWIN


                                         _________________________________
                                         HON. SHEILA G. FARMER


                                         _________________________________
                                         HON. JULIE A. EDWARDS


WSG:clw 0426
[Cite as Lovell v. Ohio Wesleyan Univ., 2012-Ohio-2139.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


ALISON B. LOVELL                                      :
                                                      :
                           Plaintiff-Appellant        :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
OHIO WESLEYAN UNIVERSITY                              :
                                                      :
                                                      :
                        Defendant-Appellee            :       CASE NO. 2011-CAE-06-0053




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed. Costs

to appellant.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN


                                                          _________________________________
                                                          HON. SHEILA G. FARMER


                                                          _________________________________
                                                          HON. JULIE A. EDWARDS
