Yuckman v. Ohio Univ.-Lancaster , 2011 Ohio 7047 ( 2011 )


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  • [Cite as Yuckman v. Ohio Univ.-Lancaster, 
    2011-Ohio-7047
    .]
    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
    PAUL YUCKMAN, PH.D.
    Plaintiff
    v.
    OHIO UNIVERSITY-LANCASTER
    Defendant
    Case No. 2009-08136
    Judge Clark B. Weaver Sr.
    Magistrate Lewis F. Pettigrew
    MAGISTRATE DECISION
    {¶1} Plaintiff brings this action against defendant, Ohio University (OU), alleging
    claims for breach of contract, specific performance, promissory estoppel, and
    declaratory relief.
    {¶2} Plaintiff was employed by OU as a professor for approximately 35 years and
    he taught both at OU’s main campus in Athens, Ohio and at its Lancaster branch (OU-
    L). Plaintiff entered into an Early Retirement Agreement (Complaint, Exhibit A) with OU
    in 2006. Under the terms of the agreement, plaintiff was permitted to retire from his
    full-time teaching position and receive a retirement benefit yet continue teaching until he
    reached the age of 70. The agreement incorporates within its terms the OU Early
    Retirement Policy (ERP). (Complaint, Exhibit B.)
    {¶3} In July of both 2006 and 2007, plaintiff received a letter from OU President,
    Roderick Davis, reappointing him as an Associate Professor, English, with “early
    retirement quarterly pay” of $27,113 and 27,926 respectively. In the 2006-2007 and
    2007-2008 academic years, plaintiff taught courses at OU-L Pickerington campus.
    Case No. 2009-08136                        -2-                MAGISTRATE DECISION
    {¶4} Plaintiff did not teach in the fall quarter of academic year 2008-2009. On
    October 2, 2008, plaintiff informed John Furlow, Dean of OU-L, that he could not teach
    during the winter quarter of that year but that he was still interested in continuing to
    teach. In the correspondence, plaintiff requested that his name not be removed from the
    roster for future teaching opportunities. However, on or about April 8, 2009, Dean
    Furlow notified plaintiff that his Early Retirement Agreement with OU had been
    terminated based upon his failure to teach at least one quarter for that academic year.
    {¶5} Plaintiff alleges that defendant violated his rights under the ERP and the
    parties’ agreement. Defendant argues that pursuant to the plain language of both the
    agreement and the ERP, plaintiff promised to teach full-time for one quarter each year
    until he reached the age of 70 in exchange for OU’s promise to pay plaintiff one-third of
    his regular nine-month salary each year until he reached age 70. Plaintiff believed that
    he was under no obligation to teach during the term of the agreement, but that if he
    chose to do so, he could teach no more than one quarter, or its equivalent, per year. In
    the alternative, plaintiff argues that even if he was obligated to teach at least one
    quarter per year, defendant failed or refused to offer him an acceptable teaching
    opportunity in the 2008-2009 academic year. Although plaintiff admits that he elected
    not to teach in the fall, and that he notified OU that he could not teach during winter
    quarter, he claims that he was never given the opportunity to teach in the spring quarter.
    {¶6} The relevant portions of the Early Retirement Agreement provide that:
    {¶7} “This Early Retirement Agreement * * * incorporates * * * the Ohio University
    Early Retirement Policy. It supplements the policy by specifying the dates and salary
    for early retirement for a specific faculty member identified above. The Early Retirement
    Agreement and the Early Retirement Policy contain the entire agreement of the parties *
    * *.
    {¶8} “As determined under the Faculty Handbook Early Retirement Policy
    (Section III.R), I agree to teach full time one quarter (or its equivalent) each year until
    Case No. 2009-08136                            -3-              MAGISTRATE DECISION
    age 70, each year’s term being determined after discussion with the academic
    department head and after due consideration of the needs of the department.
    {¶9} “I understand that I have no contractual right to continue part time teaching
    or resume teaching full time after age 70 years. * * *
    {¶10} “The salary * * * will be one-third of the base academic year salary plus a
    percentage increase determined in accordance with the Early Retirement Policy.”
    {¶11} The relevant portions of the ERP are as follows:
    {¶12} “1) General: A tenured faculty member eligible for retirement under the
    STRS and wishing to continue to teach part-time may elect to do so under the early
    retirement policy. In this event, an Early Retirement Agreement is signed by the faculty
    member, department head, dean, and Provost. * * * The Early Retirement Agreement
    remains in effect as long as the faculty member wishes to continue part-time teaching
    and has not reached 70 years of age * * *.
    {¶13} “2) Teaching: During early retirement, the faculty member will be permitted
    to teach the equivalent of one quarter each academic year. The term (Fall, Winter, or
    Spring) to be taught each year will be determined by the faculty member after
    discussion with his/her academic department head and after consideration of the needs
    of the department.” (Plaintiff’s Exhibit 2.)
    {¶14} Ordinarily, the presence of an integration clause in a written contract
    creates a strong, although not conclusive, presumption that the contract is complete.
    See Fontbank, Inc. v. CompuServe, Inc. (2000), 
    138 Ohio App.3d 801
    . And, “[i]f a
    contract is clear and unambiguous, then its interpretation is a matter of law and there is
    no issue of fact to be determined.” Inland Refuse Transfer Co. v. Browning-Ferris Ind.
    of Ohio, Inc. (1984), 
    15 Ohio St.3d 321
    , 322. Where contract terms are clear and
    unambiguous, the court cannot, in effect, create a new contract by finding an intent not
    expressed in the clear language employed by the parties.           Brandon/Wiant Co. v.
    Teamor (1998), 
    125 Ohio App.3d 442
    , 447.
    Case No. 2009-08136                         -4-                 MAGISTRATE DECISION
    {¶15} In denying defendant’s pretrial motion to dismiss, the court stated: “Upon
    review of the documents, the court finds that * * * the Early Retirement Agreement
    clearly states that the faculty member agrees to teach full-time for one quarter each
    year until the age of 70 * * *.”
    {¶16} Based upon the evidence admitted at trial, the court finds that plaintiff did
    not teach any classes in the 2008-2009 academic year. Plaintiff acknowledged that he
    lived in Indiana during that academic year, and that he did not teach at OU in the fall
    quarter. On October 2, 2008, plaintiff sent an email to Leigh Atkinson, Director, OU-L
    Pickerington campus, stating that he could not teach during the winter quarter. Dean
    Furlow was copied on the email. Plaintiff has also acknowledged that he did not teach
    in the spring. Although there is a dispute whether the academic year includes the
    summer quarter, it is stipulated that plaintiff did not teach in the summer quarter.
    {¶17} The parties’ agreement is clear and unambiguous. Contrary to plaintiff’s
    assertion, the language of the ERP does not conflict with the executed agreement. The
    language of the policy clarifies the parties’ intentions that teaching “full time one quarter
    (or equivalent) each academic year” is both the minimum required by and the maximum
    permitted by the agreement. Although plaintiff introduced extrinsic evidence at trial
    which, if believed, would contradict the clear meaning expressed in the agreement, such
    evidence is unavailing in this case.     Indeed, “[t]he parol evidence rule is a rule of
    substantive law that prohibits a party who has entered into a written contract from
    contradicting the terms of the contract with evidence of alleged or actual agreements.”
    Ed Schory & Sons, Inc. v. Soc. Natl. Bank (1996), 
    75 Ohio St.3d 433
    , 440.
    {¶18} Defendant contends that the early retirement agreement expired by its own
    terms at the close of the 2008-2009 academic year inasmuch as plaintiff did not teach
    during that year. In a letter dated April 8, 2009, Furlow thanked plaintiff for his service
    to OU and informed plaintiff that “the University’s agreement for early retirement with
    you is terminated.” Plaintiff continues to receive his retirement benefit.
    Case No. 2009-08136                          -5-               MAGISTRATE DECISION
    {¶19} Plaintiff argues that Furlow’s letter violates the revocation clause in the
    agreement which provides: “To revoke the early retirement agreement and fully retire
    before age 70, I will communicate that decision to the Provost of Ohio University.”
    However, it is clear that such language applies only where the agreement is terminated
    at plaintiff’s instance, which did not occur in this case.
    {¶20} Plaintiff next contends that his failure to teach during the 2008-2009
    academic year is legally excusable in light of the fact that OU made no effort to contact
    plaintiff about teaching opportunities in the spring quarter. In ruling upon defendant’s
    pretrial motion, the court also stated: “it is * * * clear in both the agreement and the OU
    policy that the decision of which term the faculty member teaches will be made ‘after
    discussion’ with the academic department head, and after ‘due consideration’ of the
    needs of the department.”
    {¶21} The agreement is silent, however, as to the relative obligations of the
    parties regarding such communications. The only evidence of communication between
    the parties for the 2008-2009 academic year is a series of email messages that were
    admitted into evidence as Plaintiff’s Exhibit 3 and Defendant’s Exhibit K.       Plaintiff’s
    Exhibit 3 purports to be plaintiff’s September 22, 2008 response to an email from
    Atkinson, the text of which also appears below plaintiff’s response.          The text of
    Atkinson’s undated email reads:
    {¶22} “Hi Paul, Hope all is well! We are getting ready to go to print with the
    winter schedule, and I wanted to touch base with you and make sure your plans to
    teach have not changed. Thanks! Leigh.”
    {¶23} Plaintiff’s response reads:
    {¶24} “Hi Leigh, Hope all is well with you, too. I will confirm my teaching within
    the next week (no later than October 1, as per our original conversation). Paul.”
    {¶25} Both Defendant’s Exhibit K and the second page of Plaintiff’s Exhibit 3
    purport to be the confirmation plaintiff spoke of in his response. The email message
    reads:
    Case No. 2009-08136                                 -6-                    MAGISTRATE DECISION
    {¶26} “Hi Leigh, Just wanted you to know that I will not be available to teach at
    Pickerington this winter quarter. I am, however, still interesting [sic] in fulfilling my 1/3
    teaching at OU, so do not interpret this as a final ‘NO’ to OU teaching. I’m also copying
    John Furlow on this e-mail so that he does not remove my name from future teaching at
    OUL-PC.       I’ll be in touch shortly to see what other options might be available for
    teaching. Hope all is going well with you. Paul.”
    {¶27} The course of performance convinces the court that the communication
    process between OU and plaintiff was relatively informal. Based upon the text of the
    email messages, the court finds that plaintiff was obligated to follow up with OU
    regarding a teaching assignment in the spring quarter if it was his desire to teach in that
    quarter. Plaintiff admitted upon cross-examination that he did not follow up on his
    representation that he would “be in touch shortly,” nor did he otherwise request a
    teaching assignment for the spring quarter.
    {¶28} With regard to the summer quarter, defendant argues that the summer
    quarter is not a part of the academic year. In fact, the ERP admitted into evidence as
    Plaintiff’s Exhibit 2 speaks only to the fall, winter and spring quarters. Although plaintiff
    argues that the termination of the early retirement agreement prevented him from
    teaching in the summer quarter, the version of the early retirement plan upon which he
    relies does not count the summer quarter as part of the academic year.1 Moreover,
    plaintiff has not convinced the court that he was willing to teach in the summer quarter.
    Rather, plaintiff was under the mistaken impression that his early retirement agreement
    did not obligate him to teach at all.
    1
    The ERP admitted into evidence as Defendant’s Exhibit A and the copy attached as an exhibit to
    plaintiff’s complaint contain an additional sentence which reads as follows: “For colleges that include
    summer quarter as a normal part of the faculty member’s annual contract, the faculty member may, after
    consulting with his/her department head, choose to fulfill his or her obligation during the summer quarter.”
    On September 23, 2011, plaintiff filed a motion to strike the portion of defendant’s brief that cites to this
    provision. The motion is DENIED, as moot.
    Case No. 2009-08136                              -7-                   MAGISTRATE DECISION
    {¶29} To the extent that plaintiff seeks declaratory relief, the court’s decision as to
    plaintiff’s contract claim precludes the declaration he seeks.2               Similarly, the court’s
    determination that OU had the legal right to terminate the agreement effectively
    disposes of plaintiff’s claim of specific performance. Finally, promissory estoppel is not
    available to plaintiff inasmuch as the parties’ written agreement governs the disputed
    subject matter. See J&B Fleet Ind. Supply, Inc. v. Miller, Mahoning App. No. 09MA173,
    
    2011-Ohio-3165
    ; Olympic Holding Co., L.L.C. v. ACE Capital Title Reinsurance Co.,
    
    122 Ohio St.3d 89
    , 
    2009-Ohio-2057
    .
    {¶30} Based upon the foregoing, the court concludes that plaintiff has failed to
    satisfy his burden of proof as to any of the claims set forth in the complaint.
    Accordingly, judgment is recommended in favor of defendant.
    {¶31} A party may file written objections to the magistrate’s decision within 14
    days of the filing of the decision, whether or not the court has adopted the decision
    during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
    objections, any other party may also file objections not later than ten days after the first
    objections are filed. A party shall not assign as error on appeal the court’s adoption of
    any factual finding or legal conclusion, whether or not specifically designated as a
    finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
    and specifically objects to that factual finding or legal conclusion within 14 days of the
    filing of the decision, as required by Civ.R. 53(D)(3)(b).
    _____________________________________
    LEWIS F. PETTIGREW
    Magistrate
    cc:
    2
    Plaintiff seeks a declaration that: 1) the agreement is valid, enforceable, and unambiguous; 2)
    OU breached the agreement; and 3) the agreement permits but does not require plaintiff to teach one
    quarter per academic year.
    Case No. 2009-08136               -8-              MAGISTRATE DECISION
    Amy S. Brown                       Daniel J. Fruth
    Randall W. Knutti                  109 North Broad Street, Suite 200
    Assistant Attorneys General        P.O. Box 130
    150 East Gay Street, 18th Floor    Lancaster, Ohio 43130-0130
    Columbus, Ohio 43215-3130
    LP/dms
    Filed December 20, 2011
    To S.C. reporter March 20, 2012
    

Document Info

Docket Number: 2009-08136

Citation Numbers: 2011 Ohio 7047

Judges: Pettigrew

Filed Date: 12/20/2011

Precedential Status: Precedential

Modified Date: 10/30/2014