[Cite as Kardux v. Univ. of Cincinnati, 2012-Ohio-3996.]



                                                           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



SEAN KARDUX

       Plaintiff

       v.

UNIVERSITY OF CINCINNATI

       Defendant

Case No. 2011-08253

Judge Joseph T. Clark

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶ 1} On March 1, 2012, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). On March 7, 2012, plaintiff filed a motion to compel discovery. On
March 8, 2012, defendant filed a response to plaintiff’s motion to compel, and on March
14, 2012, plaintiff filed a response to defendant’s motion for summary judgment.
Defendant filed a reply on March 20, 2012.1 The motions are now before the court for a
non-oral hearing pursuant to L.C.C.R. 4.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable


        1
         Defendant’s March 20, 2012 motion for leave to file a reply is GRANTED instanter.
Case No. 2011-08253                       -2-                                   ENTRY

minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
      {¶ 4} In 2007, plaintiff enrolled at the University of Cincinnati (UC) to study
organizational leadership. While at UC, plaintiff obtained part-time employment as an
administrative assistant with the student newspaper, The News Record.             Shortly
thereafter, plaintiff was promoted to the position of assistant business manager, and
eventually to business manager. Plaintiff’s duties included assisting the newspaper’s
advertising representatives in establishing territories and developing plans to reach out
to potential advertisers.   Plaintiff reported directly to Len Penix, director of the
Department of Student Media.
      {¶ 5} Sometime in the beginning of 2010, plaintiff became aware of the creation
of a new full-time business management position at the newspaper. Plaintiff explained
that the newspaper had been historically run by student workers, with the exception of
Penix, rather than permanent full-time staff. Plaintiff stated that when students running
the business side of the paper would move on every few years, they would take
valuable institutional knowledge with them and that the full-time position was designed
to give the newspaper a more stable business model.
      {¶ 6} Plaintiff subsequently applied for the position of assistant academic director
and was interviewed by Penix. According to plaintiff, the position was an academic
position that did not require any work be performed during the summer months;
however, the salary was disbursed over a 12-month period. During this time period,
plaintiff also interviewed with CMDS construction company for a position as an assistant
project manager. Plaintiff received offers of employment from UC on May 21, 2010 and
Case No. 2011-08253                           -3-                                ENTRY

CMDS during that same week.2 The base salary at the newspaper was $23,660, while
CMDS offered to pay plaintiff a $45,000 salary.
       {¶ 7} Plaintiff informed Penix that he had an offer from CMDS and that the
assistant academic director’s $23,660 salary was insufficient. According to plaintiff,
Penix asked if plaintiff would be interested in the position “if there’s a possibility that
[UC] could match what this construction company was offering * * *.”            (Plaintiff’s
Deposition, p. 31.) Plaintiff indicated that he would be interested “if [UC] came very
close to [CMDS’s salary] * * *.” Id.
       {¶ 8} In late May, Penix had several conversations about plaintiff’s salary with
Mike Sonntag, a member of the planning committee which oversees the newspaper.
Plaintiff states that he was in Penix’s office when Penix discussed the issue with
Sonntag over the telephone.
       {¶ 9} Nevertheless, plaintiff stated that the new offer of employment was for an
additional $15,000 contingent upon successfully meeting various goals set by Penix.
Performance reviews would occur every 90 days to determine whether plaintiff had
successfully accomplished the goals. If plaintiff had performed successfully, plaintiff
would receive a $5,000 raise and a new set of goals for the next 90 days. This process
was to repeat itself until plaintiff completed three reviews over the first 270 days of his
employment.     Plaintiff’s first set of goals included increasing revenue and profit,
reducing expenses, streamlining processes, and building new teaming ventures with
other departments. Plaintiff began working as the assistant academic director at the
newspaper on June 1, 2010.
       {¶ 10} On September 15, 2010, Penix sent Sonntag a letter requesting a $5,000
salary increase for plaintiff.         In the letter, Penix listed plaintiff’s numerous
accomplishments over the summer months and noted that plaintiff had “surpassed all
goals and objectives set for him at a meeting held upon his hiring on June 1, 2010.”3

       2
       See Exhibit A-1 to defendant’s motion for summary judgment.
       3
       See Exhibit A-2 to defendant’s motion for summary judgment.
Case No. 2011-08253                               -4-                                         ENTRY

According to plaintiff, in late September 2010, Penix was told that he lacked authority to
offer plaintiff a $15,000 increase in salary and that no such increase would be
forthcoming. Plaintiff subsequently resigned his employment at UC and began working
for LexisNexis in December 2007.              Plaintiff alleges breach of contract, promissory
estoppel, and unjust enrichment.
        {¶ 11} As an initial matter, plaintiff seeks an order compelling defendant to
answer plaintiff’s second set of interrogatories and request for production of documents.
In its response to the motion, defendant attached supplemental discovery including
documents responsive to each request and answers to all but two interrogatories.4
Defendant objected to an interrogatory asking it to “state the name of each person who
was a contracting authority for the University of Cincinnati after 11/17/2009 setting forth
for each such person if that person’s contracting authority was increased or remained
unchanged.” Defendant has objected to the request stating that the request is overly
broad, unduly burdensome, and not reasonably calculated to lead to the discovery of
admissible evidence.
        {¶ 12} The court notes that in defendant’s answer to plaintiff’s first set of
interrogatories,     defendant denied that Sonntag is a contracting authority for UC.
Additionally, defendant provided plaintiff with a “list of all delegates authorized to
approve and execute contracts under 3361:10-1-06(E)(1) [and (2)] of the U.C. Board of
Trustees bylaws: execution of instruments rules.”
        {¶ 13} Civ.R. 26(B)(1) provides, in part, “Parties may obtain discovery of any
matter, not privileged, which is relevant to the subject matter involved in the pending


        4
         Defendant partially answered interrogatory 2 of plaintiff’s second set of interrogatories, which
states “Please identify by name, current address, telephone number and current employment status with
the University of Cincinnati each and every individual whom had authority to contract on behalf of the
University of Cincinnati for employment purposes, including but not limited to salary, performance based
pay increases, beginning April 1, 2010 through October 31, 2010.” Although defendant objected that
such a question was overly broad, it provided plaintiff with a list of individuals responsive to such a
question.
Case No. 2011-08253                               -5-                                          ENTRY

action * * *. It is not ground for objection that the information sought will be inadmissible
at trial if the information sought appears reasonably calculated to lead to the discovery
of admissible evidence.” The court finds that plaintiff’s discovery requests are overly
broad and not reasonably calculated to lead to the discovery of admissible evidence
inasmuch at they encompass the entire university system. Accordingly, defendant’s
objections are SUSTAINED and plaintiff’s motion to compel is DENIED.
        {¶ 14} “Generally, a breach of contract occurs when a party demonstrates the
existence of a binding contract or agreement; the non-breaching party performed its
contractual obligations; the other party failed to fulfill its contractual obligations without
legal excuse; and the non-breaching party suffered damages as a result of the breach.”
Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 108 (1995).
        {¶ 15} UC argues that Penix and Sonntag had no authority to bind UC and that
any agreement for an additional $15,000 between plaintiff and Penix is unenforceable.
As noted above, defendant has submitted its answer’s to plaintiff’s first set of
interrogatories and request for production of documents wherein it denies that Sonntag
is a contracting authority for UC.          Additionally, UC relies upon R.C. 3361.03 which
provides: “The board of trustees of the university of Cincinnati shall employ, fix the
compensation of, and remove the president and such number of professors, teachers,
and other employees, as may be deemed necessary. The board shall do all things
necessary for the creation, proper maintenance, and successful and continuous
operation of the university and may adopt and amend bylaws and rules for the conduct
of the board and the government and conduct of the university. The board may accept
donations of lands and moneys for the purposes of such university.”
        {¶ 16} Plaintiff relies upon UC’s Communications Board’s constitution and bylaws
and the minutes of a November 17, 2009 meeting of the Board of Trustees for the
proposition that Sonntag had been delegated contracting authority.5

        5
        The court notes that plaintiff’s exhibits attached to its memorandum contra are not authenticated;
however, defendant has not objected to the exhibits.
Case No. 2011-08253                         -6-                                    ENTRY

       {¶ 17} Section III entitled “Duties of the Communications Board” provides, in part,
that “The Communications Board, working with the English Department and the Director
of Journalism, has authority to recruit, hire, and supervise, evaluate and retain the
professional Director of Student Media consistent with University rules and regulations
and in consultations with the Senior Vice President and Provost, West Campus.”6
However, it is not disputed that plaintiff’s position was the assistant academic director,
not the Director of Student Media.
       {¶ 18} The minutes of the November 17, 2009, Board of Trustee’s meeting under
the heading of Finance and Administration Committee indicates that the Board
approved an amendment to the university rules “establishing limitations on the
delegation of contracting authority, terminating prior delegations of contracting authority
and increasing the signature authority dollar limits of the President and Contracting
Officer.”7
       {¶ 19} It is not disputed that plaintiff began work on June 1, 2010 and that plaintiff
received biweekly compensation; however, plaintiff produced no written employment
agreement, no evidence that the Board approved an employment agreement relating to
plaintiff, and no evidence that either Penix or Sonntag had contracting authority on
behalf of defendant. Although plaintiff, Penix, and Sonntag may have, in good faith,
believed otherwise, R.C. 3361.03 makes it clear that only the Board and its designees
have such authority.
       {¶ 20} It is well-settled that public officers cannot bind the state by acts beyond
their authority.    See Drake v. Medical College of Ohio, 120 Ohio App.3d 493, 495
(1997); Hillard v. Univ. of Cincinnati, Ct. of Cl. No. 2008-07900, 2011-Ohio-1861.
Likewise, promissory estoppel cannot be applied to contravene statutory authority. Id.



       6
        See Plaintiff’s Exhibit 9.
       7
        See Plaintiff’s Exhibit 6.
Case No. 2011-08253                           -7-                                    ENTRY

Accordingly, the court finds that plaintiff has failed to establish his claims of breach of
contract and promissory estoppel.
         {¶ 21} Regarding plaintiff’s claim of unjust enrichment, plaintiff must establish that
a benefit has been conferred by plaintiff upon defendant; that defendant had knowledge
of the benefit; and that defendant retained the benefit under circumstances where it
would be unjust to do so. Hummel v. Hummel, 133 Ohio St. 520, 528 (1938); DVCC,
Inc. v. Medical College, 10th Dist. No. 05AP-237, 2006-Ohio-945, ¶26. Plaintiff claims
that even though UC employees typically do not work during the summer, he did so on
a voluntary basis. Plaintiff admits, however, that he was in fact paid by UC during the
summer months. Accordingly, plaintiff’s claim of unjust enrichment must fail.
         {¶ 22} For the foregoing reasons, defendant’s motion for summary judgment is
GRANTED and judgment is rendered in favor of defendant.                All future events are
VACATED. Court costs are assessed against plaintiff. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.




                                            _____________________________________
                                            JOSEPH T. CLARK
                                            Judge

cc:


Emily M. Simmons                                Neal W. Duiker
Randall W. Knutti                               226 Reading Road
Assistant Attorneys General                     Mason, Ohio 45040
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

003
Filed May 8, 2012
To S.C. Reporter August 31, 2012
