[Cite as Cleveland Hearing & Balance Ctr., Inc. v. N.E. Ohio Med. Univ., 2017-Ohio-2699.]




CLEVELAND HEARING AND BALANCE                         Case No. 2016-00102
CENTER, INC., et al.
                                                      Judge Patrick M. McGrath
       Plaintiffs                                     Magistrate Robert Van Schoyck

       v.                                             DECISION

NORTHEAST OHIO MEDICAL
UNIVERSITY

       Defendant



        {¶1} On January 10, 2017, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiffs were granted two separate extensions of time, until
February 23, 2017, to file a response. On February 24, 2017, plaintiffs filed a motion to
deem as timely a concurrently-filed response, which is GRANTED.                             Also on
February 24, 2017, defendant filed a motion for leave to file a reply brief, which is
GRANTED. The motion for summary judgment is now before the court for a non-oral
hearing pursuant to L.C.C.R. 4(D).
        {¶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
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
Case No. 2016-00102                        -2-                               DECISION


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} As set forth in the complaint, plaintiff, Cleveland Hearing and Balance
Center, Inc. (CHBC), was a corporation owned by plaintiff, Dr. Mohamed A. Hamid. The
complaint provides that CHBC and Dr. Hamid operated a medical practice focused on
“auditory and vestibular (hearing and balance) issues,” but that Dr. Hamid is now retired
and CHBC has been dissolved.
       {¶5} It is alleged that CHBC entered into a business relationship with the Saudi
Arabian Cultural Mission (SACM) under which CHBC and Dr. Hamid would provide
“educational fellowship clinical training for Dr. Fuad Alghamdi, a Saudi citizen, for
3 years beginning April 1, 2012 and ending March 31, 2015.” It is alleged that CHBC
separately made a subcontracting agreement with defendant, Northeast Ohio Medical
University (NEOMED), under which NEOMED was to provide 20 percent of
Dr. Alghamdi’s training, comprising the research component of his fellowship, and
CHBC would provide the clinical component that comprised the other 80 percent of the
training.
       {¶6} According to the complaint, the fellowship proceeded through the second
year but “Dr. Alghamdi experienced some personal issues in early 2014, and eventually
stopped attending the clinics with CHBC in early March 2014.” It is also alleged that
“Dr. Hamid and CHBC had concerns about the level of effort and progress Dr. Alghamdi
was putting into his fellowship.” The complaint states that “NEOMED used this as an
opportunity to deal directly with SACM in an attempt to receive the payment CHBC
would receive” for the third year of the fellowship and that NEOMED “encouraged
Dr. Alghamdi to obtain a lawyer to facilitate the breach of the agreement between CHBC
and SACM.” The complaint provides that ultimately “SACM and NEOMED reached an
agreement that SACM would pay NEOMED directly for Dr. Alghamdi’s third year of
Case No. 2016-00102                         -3-                                DECISION


fellowship training,” but in the end “Dr. Alghamdi returned to Saudi Arabia and did not
complete his fellowship.”
      {¶7} In their complaint, CHBC and Dr. Hamid named as defendants both
NEOMED and SACM, asserting claims for breach of the contractual duty of good faith
against NEOMED and SACM, declaratory judgment as to CHBC and Dr. Hamid’s rights
under both the contract with SACM and the subcontracting agreement with NEOMED,
and, as against NEOMED only, a claim of tortious interference with CHBC and Dr.
Hamid’s business relationship with SACM.          On February 16, 2016, SACM was
dismissed as a party on the basis that only state agencies and instrumentalities can be
defendants in original actions in the Court of Claims pursuant to R.C. 2743.02(E).
      {¶8} NEOMED, as the lone remaining defendant in the action, seeks summary
judgment as to all claims asserted against it.      In support of its motion, NEOMED
submitted a transcript of the deposition of Dr. Hamid, as well as an affidavit from Jeffrey
Wenstrup, Ph.D., who is employed with NEOMED as a Professor and Chair of the
Department of Anatomy and Neurobiology, Associate Dean of Research for the College
of Medicine, and Director of the Auditory Neurosciences Group.          Attached to both
Dr. Hamid’s deposition transcript and Dr. Wenstrup’s affidavit are several authenticated
documents.
      {¶9} The court shall first address the claim that NEOMED tortiously interfered
with CHBC and Dr. Hamid’s business relationship with SACM.             “‘The elements of
tortious interference with a business relationship are (1) a business relationship; (2) the
tortfeasor’s knowledge thereof; (3) an intentional interference causing a breach or
termination of the relationship; and (4) damages resulting therefrom.’” Walter v. ADT
Sec. Sys., Inc., 10th Dist. Franklin No. 06AP-115, 2007-Ohio-3324, ¶ 31, quoting
Diamond Wine & Spirits v. Dayton Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596,
2002-Ohio-3932, ¶ 23 (3rd Dist.).        “The preeminent difference between tortious
interference with a business relationship and tortious interference with a contractual
Case No. 2016-00102                         -4-                                DECISION


relationship is that interference with a business relationship covers intentional
interference with prospective contractual relations not yet reduced to contract.” Miller v.
J.B. Hunt Transp., Inc., 10th Dist. Franklin No. 13AP-162, 2013-Ohio-3892, ¶ 21.
       {¶10} There is no dispute that CHBC and Dr. Hamid had a business relationship
with SACM and that NEOMED had knowledge of that business relationship. According
to Dr. Hamid’s deposition testimony, he and CHBC never had any other business
relationship with SACM beyond the one pertaining to Dr. Alghamdi’s fellowship. (Dep.,
p. 15.)   The third element of the claim, going to whether there was an intentional
interference on the part of NEOMED causing a breach or termination of the business
relationship, is a matter of disagreement between the parties.
       {¶11} Regarding the course of events that led up to the termination of the
fellowship, Dr. Hamid testified in his deposition that problems started to arise several
months after the fellowship began. (Dep., pp. 23-24, 62.) Dr. Hamid explained that the
problems were tied to the arrival of Dr. Alghamdi’s wife and children from Saudi Arabia
to the United States as well as the wife’s pregnancy, as Dr. Alghamdi increasingly had
to spend time going to medical appointments with his wife and driving his children to
and from school, and according to Dr. Hamid these family commitments increasingly
interfered with the amount of time Dr. Alghamdi could commit to his clinical training at
CHBC. (Dep., pp. 23-24.)
       {¶12} As Dr. Hamid testified, despite his concerns about Dr. Alghamdi’s time
commitments, he and CHBC renewed the agreement with SACM upon the conclusion
of the first year of the fellowship, and in conjunction with renewing the agreement he
negotiated an increase in compensation for the second year of the fellowship. (Dep.,
p. 28.) Under the terms of the agreement, Dr. Hamid testified, he was supposed to
submit an annual progress report to SACM before the agreement would come up for
renewal. (Dep., pp. 34-35.) According to Dr. Hamid, when the time came to submit a
progress report for the second year of the fellowship, he had a series of conversations
Case No. 2016-00102                       -5-                                DECISION


with Dr. Alghamdi in which he recommended that Dr. Alghamdi either conclude the
fellowship after the second year, or, if he desired to complete the third year, have his
wife and children return to Saudi Arabia so that he could devote more time to the
fellowship. (Dep., pp. 58, 111.) For his part, Dr. Hamid stated that he wanted to end
the fellowship after the second year due to his concerns about Dr. Alghamdi’s time
commitments.    (Dep., p. 89.)   Dr. Hamid testified that he informally mentioned his
concerns to someone at SACM and was told that if he expressed such concerns in the
progress report it would result in SACM withdrawing its support of Dr. Alghamdi and he
would have to return to Saudi Arabia. (Dep., p. 60.)
      {¶13} Dr. Hamid related that on March 3, 2014, in conjunction with Drs. Jeff
Wenstrup and Alexander Galazyuk from NEOMED, he submitted the second-year
progress report to SACM, raising no concern about Dr. Alghamdi’s time commitments.
(Dep. Exhibit C.) Dr. Hamid stated that he subsequently began negotiating with SACM
on terms for renewing the agreement for a third year, proposing another increase in
compensation for himself and CHBC. (Dep., pp. 50-51.)
      {¶14} However, Dr. Hamid stated that Dr. Alghamdi stopped showing up at
CHBC and on March 19, 2014, Dr. Alghamdi sent an email voicing concerns about the
quality and value of the training that he had been receiving at CHBC. (Dep., p. 63.) Dr.
Hamid also testified that he and CHBC received a March 24, 2014 letter from an
attorney retained by Dr. Alghamdi. (Dep., pp. 76-77.) In this letter, concerns were
raised that the quality of training being provided to Dr. Alghamdi at CHBC was not what
it had been represented to be nor worth the money that CHBC and Dr. Hamid were
receiving, that Dr. Alghamdi would not authorize any more funds to be paid by SACM to
CHBC and Dr. Hamid, that Dr. Alghamdi was determined to complete the third year of
his fellowship at NEOMED, and that Dr. Alghamdi sought a final certification from CHBC
and Dr. Hamid as to the completion of their clinical portion of the program. (Dep.,
pp. 76-77.)
Case No. 2016-00102                         -6-                                DECISION


       {¶15} Dr. Hamid testified that on March 24, 2014, he informed Dr. Wenstrup via
email that he could no longer provide Dr. Alghamdi’s clinical training and would
terminate the fellowship. (Dep., p. 86.) Dr. Hamid also testified that one day later he
emailed Drs. Wenstrup and Galazyuk a document in which he “expanded” upon the
progress report the three of them had sent to SACM earlier that month, setting forth
various criticisms of Dr. Alghamdi, and he asked for them to approve it for submission to
SACM, but they declined to do so on the grounds that in their view Dr. Alghamdi’s
performance in the NEOMED portion of his fellowship was satisfactory and had been
accurately portrayed in the progress report. (Dep., pp. 92, 96.)
       {¶16} Despite failing to obtain the approval of Drs. Wenstrup and Galazyuk, Dr.
Hamid stated that on April 28, 2014, he went ahead and emailed the document with his
criticisms of Dr. Alghamdi to SACM, knowing that once SACM became aware of his
concerns SACM would terminate the fellowship. (Dep., p. 94.) Dr. Hamid related that in
both this message and in later correspondence, including a May 3, 2014 email to
SACM, he offered two outcomes, being that he would either deem Dr. Alghamdi to have
“failed” the fellowship, or, in the alternative, if certain demands were met he would
provide a certificate of completion as had been requested by Dr. Alghamdi’s attorney,
and later by SACM. (Dep., pp. 85, 103-105, 117-119.) Dr. Hamid testified that the
demands he identified for providing the certificate of completion were as follows: (1) that
Dr. Alghamdi apologize in person at CHBC and provide a written retraction of his
March 19, 2014 email, (2) that Dr. Alghamdi successfully complete a brain-mind-body
course at NEOMED, (3) that Dr. Alghamdi perform a three-month clinical rotation
somewhere other than CHBC with any previous CHBC fellow by the end of 2014, and
(4) that SACM pay half the compensation that he and CHBC would have received for
the third year of the fellowship. (Dep., pp. 72-74.)
       {¶17} Dr. Hamid stated that SACM and Dr. Alghamdi did not accept the terms of
his proposal and he consequently deemed Dr. Alghamdi to have failed the fellowship
Case No. 2016-00102                        -7-                               DECISION


rather than issue the certificate of completion.   (Dep., pp. 113-114.) The following
month, in June 2014, Dr. Hamid retired from practice and dissolved CHBC due to his
own medical issues, he testified. (Dep., pp. 153-154.)
       {¶18} When asked how it was that NEOMED interfered with his and CHBC’s
relationship with SACM, Dr. Hamid testified that he faulted NEOMED for taking what he
considered to be a “passive position” when the problems arose, and he also felt that any
direct communications NEOMED may have had with SACM or Dr. Alghamdi that
excluded him would have been inappropriate as well.        (Dep., p. 134.)   Dr. Hamid
admitted that he does not know whether any such communications actually occurred.
(Dep., pp. 115, 128, 157-158.) Dr. Hamid also testified that he believes Dr. Alghamdi
wanted to leave CHBC because the clinical demands were simply too great for his
schedule and he therefore sought to spend the third year of the fellowship elsewhere,
and Dr. Hamid believes that Dr. Alghamdi may have worked with SACM toward that
goal. (Dep., pp. 93, 95, 112, 144.)
       {¶19} Dr. Wenstrup, in his affidavit, avers in part that “NEOMED had no
involvement with Dr. Alghamdi’s decision to terminate his fellowship with [CHBC and Dr.
Hamid].” (Affidavit, ¶ 12.) Rather, Dr. Wenstrup states that at some point in March
2014 Dr. Alghamdi notified NEOMED that he was terminating his fellowship with CHBC
and Dr. Hamid and that he wished to complete the remainder of his fellowship at
NEOMED. (Affidavit, ¶ 6.) And, as Dr. Wenstrup states, the March 24, 2014 letter in
which Dr. Alghamdi’s attorney notified CHBC and Dr. Hamid that Dr. Alghamdi was
terminating the fellowship was also copied to NEOMED. (Affidavit, ¶ 6.)
       {¶20} Dr. Wenstrup also states that NEOMED was informed by Dr. Hamid that he
and CHBC were ending their involvement in the fellowship when Dr. Hamid sent
NEOMED the critical report about Dr. Alghamdi, which he avers NEOMED would not
sign off on because Dr. Alghamdi performed well in the NEOMED portion of his
fellowship.   (Affidavit, ¶ 5.)   Additionally, Dr. Wenstrup states that NEOMED was
Case No. 2016-00102                          -8-                                DECISION


informed again in subsequent correspondence by Dr. Hamid on April 28 and May 3,
2014, that he and CHBC were terminating the fellowship, and on or about May 5, 2014,
NEOMED received notice that SACM suspended the third year of the fellowship.
(Affidavit, ¶ 7.)
       {¶21} Dr. Wenstrup goes on to aver, in part:
       {¶22} “8.       Meanwhile, NEOMED, through its affiliation with Kent State
University, was the sponsor of Dr. Alghamdi’s J-1 educational visa. Attached as Ex. O-
1 is a true and accurate copy of Dr. Alghamdi’s visa documents. Unless Dr. Alghamdi
continued his training, he would be sent home to Saudi Arabia without completing the
third and final year of his fellowship.
       {¶23} “9.       Pursuant to the terms of its agreement with CHBC, on May 7, 2014,
NEOMED provided CHBC with 60-day notice of termination of the subcontractor
agreement. A true and accurate copy of NEOMED’s Notice of Termination is attached
as Ex. L to Dr. Hamid’s deposition transcript.
       {¶24} “10.      On May 9, 2014, NEOMED, as Dr. Alghamdi’s visa sponsor,
agreed to expand NEOMED’s role in the third year of his fellowship. NEOMED agreed
to expand its role so that Dr. Alghamdi could complete his fellowship before returning to
Saudi Arabia. NEOMED agreed to this expanded role only after being notified that
Dr. Alghamdi intended to terminate the third year of his fellowship with Plaintiffs, that
Plaintiffs intended to terminate early the third year of Dr. Alghamdi’s fellowship at
CHBC, and that SACM suspended the third year of Dr. Alghamdi’s fellowship with
CHBC. Attached as Ex. O-2 is a true and accurate copy of NEOMED’s May 9, 2014
offer to SACM to complete Dr. Alghamdi’s training.
       {¶25} “11.      NEOMED did not interfere with Plaintiff’s business relationship with
SACM in any way, nor did it purposely cause or induce SACM or Dr. Alghamdi to end
their relationship with Plaintiffs.”
Case No. 2016-00102                        -9-                               DECISION


      {¶26} From the evidence submitted in relation to the motion for summary
judgment, there can be no doubt that it was Dr. Alghamdi who effectively terminated the
fellowship with CHBC and Dr. Hamid. It is undisputed that Dr. Alghamdi sent Dr. Hamid
an email on March 19, 2014, raising serious concerns about the quality of training
provided by Dr. Hamid and CHBC. Dr. Wenstrup’s affidavit shows that Dr. Alghamdi
notified NEOMED that month that he was terminating the fellowship with CHBC and Dr.
Hamid. Furthermore, the March 24, 2014 letter from Dr. Alghamdi’s attorney notified Dr.
Hamid and CHBC that Dr. Alghamdi would not authorize SACM to provide any more
funds to CHBC and Dr. Hamid. As Dr. Hamid admitted in his deposition (Dep., p. 51),
the funds for Dr. Alghamdi’s training were ultimately from the hospital that employed Dr.
Alghamdi in Saudi Arabia, not SACM, and the letter from Dr. Alghamdi’s attorney
affirmatively stated that Dr. Alghamdi would not give his authorization for any more of
those funds to be paid to CHBC and Dr. Hamid.
      {¶27} Dr. Wenstrup avers that NEOMED had no involvement in Dr. Alghamdi’s
decision to terminate his training with Dr. Hamid and CHBC. (Affidavit, ¶ 12.) Dr.
Hamid stated that he has “no idea” whether NEOMED had anything to do with Dr.
Alghamdi’s decision, and that he does not believe NEOMED desired for him and CHBC
to not succeed.    (Dep., pp. 138, 147.)         There is no evidence to controvert Dr.
Wenstrup’s assertion and demonstrate that Dr. Alghamdi’s decision resulted from some
intentional interference by NEOMED.
      {¶28} Not only is there a paucity of evidence that NEOMED caused Dr. Alghamdi
to make that decision, there is evidence that Dr. Alghamdi’s decision was influenced by
wholly separate factors. The reasoning cited by Dr. Alghamdi in his March 19, 2014
email and by his attorney in the March 24, 2014 letter was that he felt he was not
receiving a quality education at CHBC, that he was not getting the training from CHBC
that had been promised, and that the escalating financial costs for him to participate in
the program exceeded the value that he derived from the program.              Moreover,
Case No. 2016-00102                       -10-                               DECISION


Dr. Hamid testified that he had his own serious concerns about Dr. Alghamdi which
made him want to end the program once the second year concluded, and that he
previously advised Dr. Alghamdi to end the fellowship after two years because he did
not think Dr. Alghamdi could devote the necessary amount of time to complete the third
year, and he himself had hoped to end the fellowship after the second year for that
reason. The evidence shows that Dr. Hamid and Dr. Alghamdi each had their stated
reasons for wanting to terminate the fellowship as it existed, and those reasons in no
way show any tortious interference on the part of NEOMED.
      {¶29} On top of Dr. Alghamdi’s decision to terminate the fellowship, it is
undisputed that Dr. Hamid expressed multiple times that he was terminating the
fellowship, and he also understood, as someone at SACM explained to him previously,
that his submission of the critical report about Dr. Alghamdi would bring an end to the
fellowship. Dr. Hamid also acknowledged that under the proposal he made to SACM for
resolving the matter, there was no scenario in which he and CHBC would continue to
have a part in the fellowship. (Dep., pp. 77, 141-142.) Although all of this occurred
after Dr. Alghamdi’s decision to terminate the fellowship, even if these actions by Dr.
Hamid could be construed as having a causative effect upon the termination of the
fellowship, in no way does the evidence show that they resulted from any intentional
interference by NEOMED.
      {¶30} Although NEOMED eventually made an offer to SACM to provide the third
year of Dr. Alghamdi’s fellowship, this occurred after (1) Dr. Alghamdi’s decision to
terminate the fellowship, (2) repeated statements by Dr. Hamid that he and CHBC were
also terminating the fellowship, and (3) Dr. Hamid’s submission of the critical report to
SACM, which as he knew would result in SACM not renewing its agreement with him.
These circumstances do not permit the conclusion that NEOMED’s offer was an
intentional act of interference that caused the termination of the business relationship
surrounding the fellowship. The only reasonable conclusion to be drawn is that the
Case No. 2016-00102                          -11-                            DECISION


business relationship surrounding the fellowship had already terminated before
NEOMED made its offer to Dr. Alghamdi and SACM.
       {¶31} Dr.   Hamid    and    CHBC      argue   that   NEOMED   must   have   been
communicating with Dr. Alghamdi or his attorney leading up to the offer that NEOMED
made to Dr. Alghamdi and SACM, and they argue that some of the correspondence
between the various parties is suggestive of such conversations taking place without the
involvement of CHBC and Dr. Hamid, which they contend is evidence of tortious
interference. As previously stated, however, on or before March 24, 2014, several
weeks before NEOMED’s offer to Dr. Alghamdi and SACM, Dr. Alghamdi decided to
terminate his fellowship with CHBC and Dr. Hamid, and later on March 24, 2014, Dr.
Hamid notified NEOMED via Dr. Wenstrup that he and CHBC also regarded their
participation in the fellowship as having terminated, and there is no evidence to
conclude that some act of intentional interference by NEOMED caused the relationship
to end.   NEOMED, having already been notified that the relationship between Dr.
Alghamdi and CHBC and Dr. Hamid was ending, cannot be found to have tortiously
interfered with that relationship by then communicating with Dr. Alghamdi and his
sponsor organization, SACM, to arrange to provide the final year of training for Dr.
Alghamdi, whose educational visa was sponsored by NEOMED, and who would be
forced to leave the United States and not attain the education that NEOMED facilitated
in the first place by sponsoring his visa.
       {¶32} The only reasonable conclusion that can be drawn is that there was no
intentional interference on the part of NEOMED causing a breach or termination of the
relationship between CHBC, Dr. Hamid, and SACM.                 Because it has been
demonstrated that CHBC and Dr. Hamid cannot establish this element of their claim for
tortious interference with a business relationship, the court need not reach NEOMED’s
additional argument that CHBC and Dr. Hamid cannot establish damages. Accordingly,
Case No. 2016-00102                          -12-                               DECISION


the motion for summary judgment shall be granted as to the claim of tortious
interference with a business relationship.
      {¶33} Next, the court shall address the claim for breach of contract. “To prevail
on a breach of contract claim, a plaintiff must prove the existence of a contract,
performance by the plaintiff, breach by the defendant, and damage or loss to the
plaintiff.” Prince v. Kent State Univ., 10th Dist. Franklin No. 11AP-493, 2012-Ohio-1016,
¶ 24. “Contracts should be interpreted so as to carry out the intent of the parties, which
is evidenced by the contractual language.” Sys. Automation Corp. v. Ohio Dept. of
Admin. Servs., 10th Dist. Franklin No. 04AP-97, 2004-Ohio-5544, ¶ 26.
      {¶34} “‘[T]here is an implied duty of good faith and fair dealing in every contract.’”
Pertoria, Inc. v. Bowling Green State Univ., 10th Dist. Franklin Nos. 13AP-1033 & 14AP-
63, 2014-Ohio-3793, ¶ 22, quoting Am. Contr’s. Indemn. Co. v. Nicole Gas Prod., Ltd.,
10th Dist. Franklin No. 07AP-1039, 2008-Ohio-5056, ¶ 13. “‘“Good faith performance or
enforcement of a contract emphasizes faithfulness to an agreed common purpose and
consistency with the justified expectations of the other party.”’” PHH Mtge. Corp. v.
Ramsey, 10th Dist. Franklin Nos. 13AP-925 & 14AP-129, 2014-Ohio-3519, ¶ 33,
quoting Littlejohn v. Parrish, 163 Ohio App.3d 456, 2005-Ohio-4850, ¶ 21 (1st Dist.),
quoting Restatement of the Law 2d, Contracts, Section 205, Comment d (1981). “‘Good
faith is a compact reference to an implied undertaking not to take opportunistic
advantage in a way that could not have been contemplated at the time of drafting, and
which therefore was not resolved explicitly by the parties.’”      Ed Schory & Sons v.
Francis, 75 Ohio St.3d 433, 444-445 (1996), quoting Kham & Nates Shoes No. 2, Inc. v.
First Bank of Whiting, 908 F.2d 1351, 1357-1358 (7th Cir.1990).
      {¶35} Similar to the allegations of tortious interference, CHBC and Dr. Hamid
argue that NEOMED exercised bad faith by communicating with and arranging for
Dr. Alghamdi to finish his fellowship at NEOMED rather than working with CHBC and
Dr. Hamid to resolve the problems “so the fellowship could conclude as contracted
Case No. 2016-00102                        -13-                               DECISION


* * *.” CHBC and Dr. Hamid argue that “[t]he parties were working together to provide a
fellowship training for Dr. Alghamdi” and that CHBC had a “duty to broker a resolution”.
         {¶36} The assertion that NEOMED had a duty to try to resolve the issues
between Dr. Hamid and Dr. Alghamdi “so the fellowship could conclude as contracted”
is incompatible with the fact that Dr. Hamid flatly informed NEOMED that he could not
continue to train Dr. Alghamdi. Indeed, Dr. Hamid resolved to not even communicate
with Dr. Alghamdi. (Dep., p. 78.) By no later than March 24, 2014, it was clear that the
fellowship could not conclude as originally intended because Dr. Alghamdi did not wish
to receive from CHBC and Dr. Hamid, nor would CHBC and Dr. Hamid provide, a third
year of fellowship training. Further, the terms of the subcontracting agreement in no
way reflect that CHBC or Dr. Hamid had a justified expectation that, after it was
determined that they would no longer provide Dr. Alghamdi’s third year of the fellowship,
NEOMED would step in and try to negotiate the terms of their exit. In fact, Dr. Hamid
admitted in his deposition that while he would have “preferred” for NEOMED to try to
step in and broker a comprehensive resolution as to all parties, the subcontracting
agreement did not require that. (Dep., pp. 120-121.)
         {¶37} Regarding Dr. Hamid’s request to Dr. Wenstrup and another faculty
member at NEOMED to join in a critical report about Dr. Alghamdi to be sent to SACM,
the uncontested averments from Dr. Wenstrup show that from NEOMED’s perspective
no such criticisms were justified relative to Dr. Alghamdi’s training there. The fact that
NEOMED did not give support to Dr. Hamid in that regard cannot be viewed as bad
faith.
         {¶38} At its core, the common purpose shared by all those involved at the outset
of the fellowship was to educate and train Dr. Alghamdi. From the beginning, NEOMED
worked toward that common purpose, both in sponsoring Dr. Alghamdi’s educational
visa and in providing him education and training.         Once it was determined that
Dr. Alghamdi would not be completing the fellowship with CHBC and Dr. Hamid,
Case No. 2016-00102                      -14-                               DECISION


unattended by any bad faith or tortious interference by NEOMED, the evidence shows
that NEOMED remained faithful to the original common purpose by offering to continue
providing education and training to Dr. Alghamdi and to expand its role to include the
clinical component that CHBC and Dr. Hamid would no longer provide.           Given the
collapse of the relationship between Dr. Alghamdi, CHBC and Dr. Hamid, it is
undisputed that Dr. Alghamdi faced the prospect of having to leave the United States
without completing the educational fellowship. For NEOMED, having responsibility both
for Dr. Alghamdi’s educational visa and for a component of his fellowship training, to
have carried on with the original purpose of the arrangement was consistent with the
expectations created by the underlying agreement. Neither the underlying agreement
nor the subcontracting agreement created an expectation that, if Dr. Alghamdi were
unable to complete his third year at CHBC, Dr. Alghamdi would be precluded from
finishing the balance of his training at NEOMED.
      {¶39} It also cannot be reasonably construed as taking opportunistic advantage
for NEOMED to have had communications with Dr. Alghamdi to which Dr. Hamid and
CHBC were not privy. Again, NEOMED was Dr. Alghamdi’s educational visa sponsor
and furnished a component of his fellowship training. The subcontracting agreement
cannot be understood to give rise to any expectation that NEOMED would not
communicate with its own student, Dr. Alghamdi, unless it included CHBC and
Dr. Hamid, much less that NEOMED could not have such communications when it was
on notice that CHBC and Dr. Hamid would no longer be training Dr. Alghamdi.
      {¶40} When asked in his deposition how he considered NEOMED to have acted
in bad faith, one basis Dr. Hamid identified was that he had a desire to work more
closely with NEOMED and do some teaching there in the future, but he did not get an
opportunity to pursue those endeavors. (Dep., pp. 136-137.) As Dr. Hamid admitted,
however, the subcontracting agreement did not provide for these things. (Dep., p. 138.)
A review of the terms set forth in the subcontracting agreement clearly demonstrates
Case No. 2016-00102                         -15-                               DECISION


that Dr. Hamid had no expectation thereunder to teach at NEOMED. “What the duty of
good faith consists of depends upon the language of the contract in each case which
leads to an evaluation of reasonable expectations of the parties.” Fultz & Thatcher v.
Burrows Group Corp., 12th Dist. Warren No. CA2005-11-126, 2006-Ohio-7041, ¶ 34.
Under Ohio law, the duty of good faith “‘describes how a party is to perform its
contractual obligations, i.e., it does not establish a duty independent of the contract.’”
Wells Fargo Bank, N.A. v. Fifth Third Bank, 931 F.Supp.2d 834, 840 (S.D.Ohio 2013),
quoting Tarquinio v. Equity Trust Co., 9th Dist. Lorain No. 06CA008913, 2007-Ohio-
3305, ¶ 14. Dr. Hamid’s inability to pursue any teaching opportunity that he sought at
NEOMED is a matter independent of the parties’ subcontracting agreement and does
not demonstrate an entitlement to relief under the theory that NEOMED breached the
implied duty of good faith relative to the subcontracting agreement.
          {¶41} Another reason identified by Dr. Hamid in his deposition for why he
considered NEOMED to have acted in bad faith was that during the formulation of the
subcontracting agreement, NEOMED sought to have the agreement drafted by an
attorney. (Dep., p. 135.) While Dr. Hamid may have preferred to keep his relationship
with NEOMED less formal and to not involve lawyers in formulating an agreement, the
mere fact that NEOMED sought the assistance of legal counsel to formulate or review
the agreement cannot reasonably be seen an act of bad faith.
          {¶42} Lastly, as a matter of law it cannot be considered an act of bad faith for
NEOMED to have terminated the subcontracting agreement with CHBC and Dr. Hamid
because, as acknowledged by Dr. Hamid (Dep., pp. 34, 120.), the terms of that
agreement expressly gave NEOMED the right to do so. See U.S. Bank Natl. Assn. v.
Mobile Assocs. Natl. Network Sys., 195 Ohio App.3d 699, 2011-Ohio-5284, ¶ 32 (10th
Dist.).
          {¶43} The only reasonable conclusion that can be drawn is that NEOMED did not
breach the implied duty of good faith in the parties’ subcontracting agreement.
Case No. 2016-00102                         -16-                                DECISION


Accordingly, the motion for summary judgment shall be granted as to CHBC and
Dr. Hamid’s claim for both breach of contract, as well as the ancillary claim for
declaratory relief, which seeks a determination that NEOMED breached the duty of
good faith.
       {¶44} Finally, it is noted that counsel for plaintiffs submitted a “declaration”
concurrent with the filing of plaintiffs’ response to the motion for summary judgment in
which counsel for plaintiffs states, in part, that Dr. Hamid has been out of the country
and he was therefore unable to obtain an affidavit from Dr. Hamid “to present the facts
needed to justify the Plaintiffs’ defense to the defendant’s motion for summary
judgment.” This document is not styled as a motion, but even if the intention in filing it
was to move for another continuance, it does not demonstrate sufficient reasons to
warrant another continuance. There is no suggestion as to what additional facts Dr.
Hamid could provide by affidavit that would justify plaintiffs’ opposition to the motion for
summary judgment. See State ex rel. Sinchak v. Chardon Local School Dist., 11th Dist.
Geauga No. 2012-G-3078, 2013-Ohio-1098, ¶ 35.
       {¶45} In addition, Civ.R. 56(F) states:
       {¶46} “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 just.” (Emphasis added.)
       {¶47} Rather than submitting an affidavit in accordance with Civ.R. 56(F),
counsel for plaintiffs submitted an unnotarized declaration pursuant to 28 U.S.C. 1746.
In federal proceedings 28 U.S.C. 1746 authorizes declarations under penalty of perjury
that are not sworn before a notary, but “Ohio has never recognized that these unsworn
declarations may serve as a substitute for a valid affidavit.” Disciplinary Counsel v.
Squire, 130 Ohio St.3d 368, 2011-Ohio-5578, ¶ 45, fn. 3.
Case No. 2016-00102                       -17-                               DECISION


      {¶48} Accordingly, the declaration of counsel for plaintiffs does not warrant a
continuance under Civ.R. 56(F).
      {¶49} Based upon the foregoing, the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law. As
a result, defendant’s motion for summary judgment shall be granted and judgment shall
be rendered in favor of defendant.




                                              PATRICK M. MCGRATH
                                              Judge
[Cite as Cleveland Hearing & Balance Ctr., Inc. v. N.E. Ohio Med. Univ., 2017-Ohio-2699.]




CLEVELAND HEARING AND BALANCE                         Case No. 2016-00102
CENTER, INC., et al.
                                                      Judge Patrick M. McGrath
       Plaintiffs                                     Magistrate Robert Van Schoyck

       v.                                             JUDGMENT ENTRY

NORTHEAST OHIO MEDICAL
UNIVERSITY

       Defendant



        {¶50} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.              For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. Court
costs are assessed against plaintiffs. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.




                                                        PATRICK M. MCGRATH
                                                        Judge

cc:
Jonathan P. Blakely                                   Stacy L. Hannan
P.O. Box 217                                          Velda K. Hofacker
Middlefield, Ohio 44062                               Assistant Attorneys General
                                                      150 East Gay Street, 18th Floor
                                                      Columbus, Ohio 43215-3130

Filed April 5, 2017
Sent to S.C. Reporter 5/5/17
