Bremar v. Ohio Univ. , 2020 Ohio 4912 ( 2020 )

[Cite as Bremar v. Ohio Univ., 2020-Ohio-4912.]
AARON BREMAR Case No. 2020-00193JD
Plaintiff Judge Patrick McGrath
Magistrate Holly True Shaver
v.
DECISION
OHIO UNIVERSITY
Defendant
{¶1} On April 27, 2020, plaintiff filed a document captioned “Defendant’s Motion
to Dismiss Plaintiff’s Amended Complaint or, in the alternative, Motion for Summary
Judgment.” On June 3, 2020, this court issued an order, pursuant to Civ.R. 12(B),
notifying the parties that it converted defendant’s motion to dismiss to a motion for
summary judgment, as provided in Civ.R. 56. Plaintiff filed a timely response on June 8,
2020. Defendant filed a reply on June 14, 2020. Pursuant to L.C.C.R. 4(D), the motion
for summary judgment is now before the court for a non-oral hearing. For the reasons
stated below, defendant’s motion for summary judgment shall be granted.
Standard of Review
{¶2} Motions for summary judgment are reviewed under the standard set forth in
Civ.R. 56(C), which states, in part:
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 summary 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,
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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.
“[T]he moving party bears the initial responsibility of informing the trial court of the basis
for the motion, and identifying those portions of the record before the trial court which
demonstrate the absence of a genuine issue of material fact on a material element of
the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264(1996). To meet this initial burden, the moving party must be able to point to evidentiary
materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶3} If the moving party meets its initial burden, the nonmoving party bears a
reciprocal burden outlined in Civ.R. 56(E), which states, in part:
When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the party does not so respond,
summary judgment, if appropriate, shall be entered against the party.
Procedural History
{¶4} On March 19, 2020, plaintiff filed an original complaint seeking relief and
asserting claims for breach of contract, negligence, and intentional infliction of emotional
distress. The original complaint identifies February 2, 2018 as the date on which
plaintiff was dismissed from defendant’s Physician Assistant Practice Program
(Program). Complaint, ¶ 35-39, 53. Additionally, plaintiff identifies defendant’s
“arbitrary and capricious dismissal of Plaintiff from the Program” as the event when
damages began to accrue. See id. at ¶ 62, 66-68, 72, 74, 78, 88. On April 6, 2020,
defendant filed a motion to dismiss plaintiff’s complaint on the basis that plaintiff’s
Case No. 2020-00193JD -3- DECISION
claims were barred by the statute of limitations. On April 20, 2020, plaintiff timely filed
an amended complaint. As a result, defendant’s motion to dismiss plaintiff’s complaint
was denied as moot on April 27, 2020.
{¶5} In defendant’s motion for summary judgment and its reply, defendant
references facts alleged in both plaintiff’s original complaint and plaintiff’s amended
complaint. However, it is well-settled that, “[a]n amended complaint supplants the
original complaint, so the allegations in an amended complaint supersede those in the
original complaint.” DSS Servs., LLC v. Eitel's Towing, LLC, 10th Dist. Franklin No.
18AP-567, 2019-Ohio-3158, ¶ 6. Consequently, plaintiff’s original complaint is no
longer before the court. Accordingly, the facts alleged in plaintiff’s amended complaint
control for purposes of this analysis.
Factual Background
{¶6} According to the amended complaint, plaintiff enrolled as a student to obtain
a master’s degree in defendant’s Physician Assistant Practice Program (Program) in
May of 2016. Amended Complaint, ¶ 11, 13. Plaintiff paid tuition and fees, which
defendant accepted as a result of plaintiff’s enrollment. Id. at ¶ 14. As a requirement of
the Program, all enrolled students were required to participate in monthly clinical
rotations and electronically log the clinical cases and duty hours completed during said
clinical rotations. Id. at ¶ 16-17. On November 16, 2017, plaintiff informed defendant’s
Program staff that he would not be able to timely log some of his clinical rotation duty
hours. On November 17, 2017, defendant informed plaintiff he would not be permitted
to log those duty hours late. Id. at ¶ 21-23.
{¶7} Thereafter, on January 29, 2018, plaintiff met with Melissa Bowlby, plaintiff’s
assigned faculty advisor, along with various other Program faculty members, where they
questioned plaintiff about the completion of his program requirements, specifically the
amount of duty hours he logged for his January 2018 clinical rotation. Id. at ¶ 27-29.
On January 31, 2018, plaintiff was subsequently informed that he failed his January
Case No. 2020-00193JD -4- DECISION
2018 clinical rotation and was required to repeat it. Id. at ¶ 31. Plaintiff acknowledges
that, at the conclusion of this meeting, he signed a Disciplinary Notification stating that
he failed his January 2018 rotation for “Academic Dishonesty” and “Insufficient Rotation
Experience.” Id. at ¶ 32.
{¶8} On February 2, 2018, Bowlby, among other faculty, informed plaintiff that
repeating his January 2018 clinical rotation was “no longer an option” and, instead, if
plaintiff did not voluntarily withdraw from the Program, defendant’s Student Progress
Committee (SPC) was recommending that plaintiff be dismissed from the Program. Id.
at ¶ 35. When plaintiff refused to voluntarily withdraw, Bowlby presented him with a
letter notifying him of the dismissal recommendation. Id. at ¶ 36. Prior to receiving this
letter, plaintiff claims he was not afforded a hearing or other meaningful opportunity to
challenge or respond to the issues regarding his clinical rotation or logged duty hours.
Id. at ¶ 29-30, 33-34.
{¶9} In its motion for summary judgment, defendant argues that plaintiff’s claims
are barred by the statute of limitations on the basis that his claims arose on February 2,
2018, the date upon which plaintiff received written notification regarding his dismissal
from the Physician Assistant Practice Program (Program). See Defendant’s Exhibit A,
February 2, 2018 letter. In support of its motion for summary judgment, defendant
attached a copy of the February 2, 2018 letter, a copy of defendant’s disciplinary and
appeals procedures, and an affidavit of Melissa Bowlby, defendant’s Program Director
at the College of Health Sciences and Professions.
{¶10} According to Bowlby, she signed and provided plaintiff with the February 2,
2018 letter “dismissing him from the Program” and plaintiff “signed this letter,
acknowledging that he has received written notification regarding dismissal from the
Ohio University PA Program.” See Bowlby Aff., ¶ 3. Specifically, the letter states that,
after a review of plaintiff’s standing in the Program, “[t]he recommendation made by the
Student Progress Committee is dismissal from the Ohio University Physician Assistant
Case No. 2020-00193JD -5- DECISION
Program effective February 2, 2018.” See Defendant’s Exhibit A, February 2, 2018
letter. The letter explains that defendant’s policy allows for dismissal from the Program
for “lapses in professionalism” and “lapses in academic integrity, especially involving
honesty and cheating”, and that “knowingly furnishing false information to faculty
members are breaches of integrity and are regarded as serious offenses, which can
result in dismissal, even on a first offense.” Id.
{¶11} Additionally, the letter provides a history of plaintiff’s standing in the
Program, including that plaintiff was given “a verbal warning for professionalism” on
November 11, 2017. Id. Then, plaintiff was placed on “professional probation” on
December 6, 2017. Id. Subsequently, the SPC found that plaintiff “violated three of the
conditions outlined in the professionalism probation during [his] January 2018 rotation.”
Id. The letter concludes with a signature above plaintiff’s name indicating that plaintiff
“knowledge[d] that [he] received written notification regarding dismissal from the Ohio
University PA Program.” Id. Plaintiff has represented to the court that this signature is
his. See Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss
Plaintiff's Amended Complaint or, in the alternative, Motion for Summary Judgment, p.
4.
{¶12} According to defendant’s disciplinary penalty procedure, the types of
disciplinary measures that may be appealed include grade penalties, formal letters of
reprimand, program of progressive improvement, and suspension or dismissal from a
program. See Defendant’s Exhibit B, College of Health Sciences and Professions
Grade and Disciplinary Appeals: College Policy and Procedure, p. 18. During the
appeal process, “a program may forbid a student from attending program courses or
engaging in other program-sponsored learning opportunities and events.” Id. at p. 5.
However, a student “will not be suspended or dismissed from the University while the
appeal is in process.” Id. At the conclusion of the appeal process, the Dean has the
ability to “affirm, reverse or modify the disciplinary decision.” Id. at p. 22. According to
Case No. 2020-00193JD -6- DECISION
plaintiff, he timely appealed the SPC’s decision regarding dismissal according to the
required process on March 2, 2018. Amended Complaint, ¶ 38-39. Ultimately, plaintiff
was notified that his appeal was denied on May 16, 2018. Id. at ¶ 40.
{¶13} In his response, plaintiff argues that the letter provided to him on February
2, 2018 was merely a recommendation that he be dismissed from the program, which
plaintiff timely appealed. Amended Complaint, ¶ 35, 38. Plaintiff asserts that he was
not effectively dismissed from the Program until May 16, 2018, when his appeal
proceedings concluded and Randy Leite, the Dean of the College of Health Sciences
and Professions, accepted the SPC’s recommendation and dismissed him from the
University. See id. at ¶ 40; see also Plaintiff’s Memorandum in Opposition to
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint or, in the alternative,
Motion for Summary Judgment, p. 3. As a result, plaintiff alleges that he has suffered
actual damages by not being able to obtain a physician assistant practice degree and
pursue his desired “profession, calling and career as a physician assistant.” Amended
Complaint, ¶ 91, 99.
Law and Analysis
{¶14} Generally, “civil actions against the state * * * shall be commenced no later
than two years after the date of the accrual of the cause of action or within any shorter
period that is applicable to similar suits between private parties.” R.C. 2743.16(A).
Plaintiff brings four causes of action, all of which are subject to the two-year statute of
limitations period set forth in R.C. 2743.16(A). See Colaianni Construction, Inc. v. Ohio
School Facilities Commission, Ct. of Cl. No. 2017-00063, 2017-Ohio-7156, ¶ 24, 40
(breach of contract and declaratory judgment); see also Bell v. Ohio State Bd. of
Trustees, 10th Dist. Franklin No. 06AP-1174, 2007-Ohio-2790, ¶ 25 (intentional infliction
of emotional distress); see also Vellky v. Kent State Univ., 10th Dist. Franklin No. 85AP-
171, 1985 Ohio App. LEXIS 6767, 3 (Aug. 1, 1985) (negligence). In the absence of a
Case No. 2020-00193JD -7- DECISION
factual dispute as to when a plaintiff’s cause of action accrues, the application of the
statute of limitations is a question of law. Bell, supra, at ¶ 21.
{¶15} For a breach of contract claim, “the moment of breach is not always the
moment of accrual.” Merlitti v. Univ. of Akron, 10th Dist. Franklin No. 19AP-357, 2019-
Ohio-4998, ¶ 17. Instead, the statute of limitations begins to run “when the breach
occurs or when the complaining party suffers actual damages.” Bell at ¶ 27 (emphasis
added). When the alleged wrongful act involves a student being dismissed from a
university program, the student “suffer[s] a cognizable injury by no longer being enrolled
in the University’s program.” See Merlitti at ¶ 17. Moreover, to the extent plaintiff
alleges multiple breaches of his student contract with defendant, each breach of
contract claim would have accrued at each separate time of breach. Bell at ¶ 27 (when
a student alleged that the University in which she had been previously enrolled
committed various breaches of her student contract, the court found that plaintiff’s
“breach of contract claims accrued at the time of the alleged breaches,” and rejected the
argument that the “breach of contract claims did not accrue until she was formally
discharged from [the University].”).
{¶16} In his amended complaint, plaintiff alleges multiple instances where
defendant breached his student contract from November 2017 until February 2018.
Given that plaintiff filed his original complaint on March 19, 2020, the court finds that the
alleged breaches that occurred prior to March 19, 2018 all accrued more than two-years
before he first filed suit and are consequently time-barred.
{¶17} The sole remaining issue is whether plaintiff’s breach of contract claim
based on the assertion that defendant breached his student contract when it dismissed
plaintiff from the Program is time-barred. Specifically, the parties dispute the accrual
date of plaintiff’s dismissal. Plaintiff alleges defendant dismissed him on May 16, 2018
when Dean Leite denied his appeal and upheld the SPC’s decision regarding plaintiff’s
dismissal from the Program. However, defendant argues that this breach of contract
Case No. 2020-00193JD -8- DECISION
claim arose on February 2, 2018 when Bowlby informed plaintiff that the SPC decided
to dismiss plaintiff from the Program. The court agrees.
{¶18} Upon review of the evidence, plaintiff had been given multiple warnings,
prior to February 2, 2018, regarding his professionalism violations of the Program’s
policy to the extent that he was placed on probation. Hence, plaintiff was on notice that
his academic standing in the Program was in jeopardy. Then, at the February 2, 2018
meeting, Bowlby provided plaintiff with a letter, which she attests informed plaintiff of his
dismissal from the Program due to continuing violations of the Program’s policy.
Furthermore, this letter explains the various grounds for plaintiff’s dismissal from the
Program and that his dismissal would be “effective February 2, 2018.” Plaintiff himself
admits that he was informed at the February 2, 2018 meeting that if he did not choose
to voluntarily withdraw himself from the Program, then the SPC would move forward
with its decision to dismiss him. Although plaintiff argues that the February 2, 2018
letter was merely a “recommendation made by the Student Progress Committee”, the
evidence shows this letter was understood by the parties to signify and effectuate
plaintiff’s dismissal from the Program. Furthermore, plaintiff did not provide any
Civ.R. 56 evidence to refute defendant’s evidence. See Civ.R. 56(E). Consequently,
the court finds that plaintiff was dismissed from the Program on February 2, 2018.
{¶19} Although plaintiff may have still had an ongoing contractual relationship
with defendant by being an enrolled student at Ohio University, this court disagrees with
plaintiff’s position that his damages did not occur until his appeal of the Program
dismissal was denied. Given plaintiff’s alleged injury is his inability to pursue his desired
profession, any damages that plaintiff suffered due to Dean Leite denying plaintiff’s
appeal are continuations of the damages that first arose when the SPC rendered its
decision regarding plaintiff’s dismissal from the Program. Thus, any failures to reverse
the SPC’s decision or reinstate plaintiff to the Program would, at most, speak to the
extent of damages plaintiff suffered as a result of the breach on February 2, 2018. They
Case No. 2020-00193JD -9- DECISION
do not constitute separate breaches or causes of action. Plaintiff’s complaint was
originally filed on March 19, 2020, more than two years after his claim accrued.
Consequently, this court finds that plaintiff’s cause of action is barred by the two-year
statute of limitations. Accordingly, defendant’s motion for summary judgment as to
plaintiff’s breach of contract claims shall be granted.
{¶20} As for plaintiff’s negligence and intentional infliction of emotional distress
claims, the statute of limitations does not begin to run until the actual injury occurs.
Thompson v. Ohio Dept. of Transportation, 10th Dist. Franklin No. 96API04-497, 1996
Ohio App. LEXIS 5307, 8 (Nov. 26, 1996); see also Bell at ¶ 22, quoting Biro v. Hartman
Funeral Home, 107 Ohio App.3d 508, 514, 669 N.E.2d 65 (8th Dist.1995). As
discussed above, plaintiff’s alleged injury accrued on or before February 2, 2018. Given
plaintiff’s complaint was originally filed more than two years after his claim accrued, the
court finds that plaintiff’s negligence and intentional infliction of emotional distress
claims are time-barred. Accordingly, defendant’s motion for summary judgment shall be
granted as to plaintiff’s claims for negligence and intentional infliction of emotional
distress.
Conclusion
{¶21} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment. The court finds that plaintiff’s claims accrued on or before
February 2, 2018. Plaintiff’s complaint was originally filed on March 19, 2020.
Consequently, plaintiff’s claims for breach of contract, negligence, and intentional
infliction of emotional distress are barred by the two-year statute of limitations. For the
reasons stated above, defendant’s motion for summary judgment shall be granted.
PATRICK M. MCGRATH
Judge
[Cite as Bremar v. Ohio Univ., 2020-Ohio-4912.]
AARON BREMAR Case No. 2020-00193JD
Plaintiff Judge Patrick McGrath
Magistrate Holly True Shaver
v.
JUDGMENT ENTRY
OHIO UNIVERSITY
Defendant
{¶22} 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 plaintiff. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.
PATRICK M. MCGRATH
Judge
Filed September 30, 2020
Sent to S.C. Reporter 10/15/20