[Cite as Davis v. Ohio Peace Officers Training Academy , 2011-Ohio-3757.]



                                      Court of Claims of Ohio
                                                                                    The Ohio Judicial Center
                                                                            65 South Front Street, Third Floor
                                                                                       Columbus, OH 43215
                                                                             614.387.9800 or 1.800.824.8263
                                                                                        www.cco.state.oh.us




KEVIN R. DAVIS

       Plaintiff

       v.

OHIO PEACE OFFICERS TRAINING ACADEMY

       Defendant

        Case No. 2010-09604-AD

Deputy Clerk Daniel R. Borchert


MEMORANDUM DECISION


        {¶ 1} Plaintiff filed this action against defendant, Ohio Peace Officers Training
Academy (OPOTA), alleging his teaching contract was cancelled without proper notice
and he has been retaliated against by OPOTA members for exposing ethical violations
at the OPOTA-London campus. Plaintiff seeks $2,500.00 in unpaid instructional fees
for a course he taught and other courses he was scheduled to teach in 2009.
        {¶ 2} In his complaint, plaintiff states he has been an adjunct instructor at the
OPOTA-Richfield campus for four years and was scheduled to teach a rifle carbine
program from August 24-28, 2009. According to plaintiff, he normally signs the contract
on the first day of the course and, in the past, he has been allowed to amend the
contract by crossing through the sections that require him both to obtain liability
insurance and to hold the state harmless from any injury or damage claim pertaining to
the course.        Plaintiff asserts he was notified the contract would not be ready until
Tuesday and he went ahead and taught the class on the first day without a contract.
Plaintiff maintains that on Tuesday, when presented with the contract by OPOTA-
Richfield Director Fred Wolk he was not allowed to cross through the liability sections of
the contract as per his prior practice and he refused to sign the contract. According to
plaintiff, he received a telephone call on Wednesday morning from Wolk informing him
he would be allowed to amend the contract and he should return to teach the course.
Plaintiff recalled he arrived at the training site and worked through the afternoon
session; however, upon returning from his dinner break he was notified that “not only
was my contract being cancelled for the rest of the week, my classes for the rest of the
year were being cancelled as well by the OPOTA-London.”
       {¶ 3} Plaintiff maintains his services were terminated as the result of retaliation,
threats, and intimidation tactics employed by the OPOTA-London staff who resent
plaintiff for being outspoken about corruption and improper conduct taking place at or
being condoned by the London campus.
       {¶ 4} Defendant denies liability under either a breach of contract or promissory
estoppel theory.    According to defendant, OPOTA instituted a policy change in the
summer of 2009 and required every instructor to comply with the provisions relating to
the risk of liability, including those provisions regarding indemnification and liability
insurance. Defendant contends the parties were unable to reach an agreement, and
plaintiff refused to sign the contract. Thus, because the contract was never executed,
defendant asserts OPOTA is not authorized to pay plaintiff for the days of instruction he
provided. In addition, defendant maintains that without a valid contract, OPOTA is not
liable to plaintiff for the days he did not instruct classes. To the extent plaintiff relies on
advice or promises allegedly offered by Wolk, defendant cites Drake v. Medical College
of Ohio (1997), 120 Ohio App.3d 493, 698 N.E. 2d 463, wherein the Tenth District Court
of Appeals ruled mistaken or improper advice offered by a public employee or
governmental agent does not support a claim for promissory estoppel against the state.
Finally, defendant argues that should the court find liability against defendant, plaintiff’s
damages are limited to $900.00 for the three days of instruction.
       {¶ 5} On October 27, 2010, plaintiff filed a response claiming he was first
presented with the contract after the conclusion of class on the second day, and it is
unfair and unprofessional for defendant to change policies and practice after plaintiff
has already commenced instruction. In addition, plaintiff relates he returned to instruct
the course on Wednesday due to his reliance upon the verbal assurances offered to him
by Wolk.
       {¶ 6} According to plaintiff, defendant purportedly mailed him a new contract on
September 6, 2009, which he completed and returned along with an invoice seeking
payment, yet defendant has refused to compensate him.                        Plaintiff next argues
defendant violated the terms of the contract by failing to provide him with written notice
of termination. Finally, plaintiff reiterates his theories as to the underlying reason his
services were terminated and he requests the clerk conduct an administrative hearing
pursuant to C.C.R. 6, in order to compel testimony from Wolk and others “as to the facts
of this case and the veracity of [plaintiff’s] statements.”1 In essence, plaintiff requests
the clerk render judgment in his favor to “send a clear message that such conduct by
employees of the Ohio Peace Officers Training Academy will not be tolerated.”
       {¶ 7} “Generally, questions of contract formation and intent are factual issues to
be resolved by a fact finder after a review of the evidence. Mead Corp. v. McNally-
Pittsburg Mfg. Corp. (C.A. 6 1981), 654 F.2d 1197.” Smith v. Minnis (July 31, 1985),
Butler App. No. CA84-07-080.
       {¶ 8} "’A contract is generally defined as a promise, or a set of promises,
actionable upon breach. Essential elements of a contract include an offer, acceptance,
contractual capacity, consideration (the bargained for legal benefit and/or detriment), a
manifestation of mutual assent and legality of object and of consideration.’ Perlmuter
Printing Co. v. Strome, Inc. (N.D.Ohio 1976), 436 F. Supp. 409, 414. A meeting of the
minds as to the essential terms of the contract is a requirement to enforcing the
contract. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations (1991),
61 Ohio St. 3d 366, 369, 575 N.E.2d 134.” Kostelnik v. Helper, 96 Ohio St. 3d 1, 2002-
Ohio-2985 ¶16.
       {¶ 9} “Ohio law acknowledges three types of contracts: express, implied in fact,
and implied in law. See Legros v. Tarr (1989), 44 Ohio St.3d 1, 6. Unlike express
contracts, implied contracts are not created or evidenced by explicit agreement of the
parties; rather, they are implied by law as a matter of reason and justice. B & J Jacobs


       1
         C.C.R. 6(C) states in part “the clerk or deputy clerk * * * may, among other things, conduct
hearings, require the production of evidence, rule upon motions, determine admissibility and probative
value of, evidence, require submission of briefs or memoranda, summon and compel attendance of
witnesses, including parties, and call and examine them under oath.”
Co. v. Ohio Air, Inc., Hamilton App. No. C-020264, 2003 Ohio 4835, at ¶9. An implied-
in-fact contract arises from the conduct of the parties or circumstances surrounding the
transaction that make it clear that the parties have entered into a contractual
relationship despite the absence of any formal agreement. Id.” Fouty v. Ohio Dep't of
Youth Servs., 167 Ohio App. 3d 508, 526, 2006-Ohio-2957, ¶56.
        {¶ 10} In the instant case, plaintiff has failed to submit sufficient evidence to
support a finding that a contract was formed, either express or implied. Plaintiff failed to
show he signed the contract as prepared by defendant nor did he submit a document
bearing defendant’s signature approving said contract.                      Indeed, the evidence
establishes the parties never attained mutual assent to the terms and conditions
governing plaintiff’s employment as instructor of the August 24-28, 2009 course.
Inasmuch as the parties never entered into a binding contract, the court finds defendant
did not commit a breach of contract by failing either to pay plaintiff or to provide him with
written notice of the termination of his services. Further, plaintiff failed to show a tacit
meeting of the minds that would give rise to an implied contract2 for his continued
future employment with defendant.
       {¶ 11} Plaintiff also maintains that he relied on assertions made by Wolk such
that he returned to instruct the class on Wednesday afternoon. The court finds that
plaintiff’s allegations as to the conversation with Wolk are not supported by the evidence
and are not credible. Even assuming Wolk told plaintiff he would be allowed to alter the
contract, the court notes as a general rule, promissory estoppel cannot be utilized as a
basis for recovery against the state. Sun Refining & Marketing Co. v. Brennan (1987),
31 Ohio St. 3d 306, 31 OBR 584, 511 N.E.2d 112.
        {¶ 12} Exceptions to this general principle do apply. Any exception, however,
applies on a limited basis under rare circumstances.                 The Tenth District Court of
Appeals in Pilot Oil Corp. v. Ohio Dept. of Transp. (1995), 102 Ohio App. 3d 278, 283,
656 N.E. 2d 1379, cited such circumstances exist for applying promissory estoppel
against the state where: "(1) the state uses its discretion in the interpretation of a law or
rule, (2) the state's interpretation is not violative of legislation passed by the General


        2
           See, Lucas v. Costantini (1983), 13 Ohio App.3d 367, 369, 13 OBR 449, 469 N.E. 2d 927,
holding that formation of an implied contract is determined by showing the circumstances surrounding the
parties’ transactions make it reasonably certain an agreement was intended.
Assembly of Ohio, and (3) the elements of promissory estoppel are otherwise met."
       {¶ 13} Moreover, the doctrine of promissory estoppel requires that the promise
made must induce an action on the part of the promisee and then the promise is binding
“if injustice can be avoided only by enforcement of the promise." Restatement of the
Law, Contracts 2d (1981), Section 90, as referenced in Ed Schory & Sons, Inc. v.
Francis, 75 Ohio St. 3d 433, 439, 1996-Ohio-194, 662 N.E. 2d 1074. A party claiming
promissory estoppel must show it reasonably relied, to its detriment, on the promise of
the opposing party. Shampton v. City of Springboro, 98 Ohio St. 3d 457, 461, 2003-
Ohio-1913. Plaintiff admits that he taught on Wednesday without first meeting with
Wolk or resigning the document. Thus, plaintiff continued to teach the course without
having first resolved the contract issue that still existed.        Based upon plaintiff’s
experience and past practices, the facts of the present claim do not establish plaintiff's
reasonable reliance on the alleged comments made by Wolk.               As such, plaintiff’s
request for a hearing pursuant to C.C.R.6 to compel the testimony of Wolk is denied.
       {¶ 14} The court further finds plaintiff’s argument that defendant is somehow
prohibited from changing its policy and practice with respect to contract enforcement is
without merit. Pursuant to the doctrine of discretionary immunity, "the state cannot be
sued for its legislative or judicial functions or the exercise of an executive or planning
function involving the making of a basic policy decision which is characterized by the
exercise of a high degree of official judgment or discretion.” Reynolds v. State (1984),
14 Ohio St. 3d 68, 70, 14 OBR 506, 471 N.E. 2d 776.
       {¶ 15} To the extent plaintiff asserts a claim of unjust enrichment, the court finds
plaintiff’s claim to be without merit. The court notes plaintiff willingly taught the classes
despite the fact that in past practice he had always negotiated such contracts either
prior to commencement of the class or on the first day of the course. See Awada v.
Univ. of Cincinnati (1997), 83 Ohio Misc. 2d 10, 680 N.E. 2d 258. Moreover, R.C.
2743.10 does not confer equity jurisdiction at the Administrative Determination level of
this court. Equity jurisdiction in matters involving the state are reserved for judicial
review.   For the foregoing reasons, the court finds plaintiff has failed to satisfy his
burden of proof in this case and accordingly, judgment shall be rendered in favor of
defendant.
                                 Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




KEVIN R. DAVIS

        Plaintiff

        v.

OHIO PEACE OFFICERS TRAINING ACADEMY

        Defendant

         Case No. 2010-09604-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION


         Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Kevin R. Davis                                    Robert Fiatal, Executive Director
6032 Kellar Road                                  Ohio Peace Officers Training Academy
Akron, Ohio 44319                                 1650 State Route 56 S.W.
                                                  London, Ohio 43140
SJM/laa
3/8
Filed 4/13/11
Sent to S.C. reporter 7/29/11
