Opinion
2020-00626JD
05-05-2023
CARLO M. CROCE, MD Plaintiff v. OSU BOARD OF TRUSTEES Defendant
Sent to S.C. Reporter 6/28/23
Holly True Shaver Magistrate Judge.
DECISION
PATRICK E. SHEERAN Judge
{¶1} This case presents the Court with unique circumstances that it has not previously addressed. On July 22, 2022, Defendant filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C) on the basis that Plaintiffs claims are barred by the doctrine of res judicata. After the motion was fully briefed, the magistrate issued an order notifying the parties that the Court was converting Defendant's motion into a motion for summary judgment in accordance with Civ.R. 12(B). Defendant's motion for summary judgment is now before the Court for a non-oral hearing pursuant to L.C.C.R. 4(D).
{¶2} In support of its motion for summary judgment, Defendant submitted the Affidavit of Timothy Bricker. Attached to Bricker's affidavit, Defendant submitted: (1) a certified copy of Plaintiff's complaint in the above captioned matter, (2) a certified copy of Defendant's answer in the above captioned matter; (3) a certified copy of Plaintiff's complaint for injunctive and declaratory relief filed in Croce v. Ohio State Univ. Bd. of Trustees, Franklin Cty. C.P. No. 18-CV-010788, which includes (a) a copy of Carlo Croce's June 25, 2004 offer letter marked "Confidential", (b) a November 22, 2018 email from Richard Fishel to K. Craig Kent, and (c) a December 21, 2018 letter from the tenured faculty of The Ohio State Wexner Medical Center (OSUWMC) Department of Cancer Biology and Genetics (DCBG) to Provost Bruce McPheron; (4) a certified copy of Franklin County Court of Common Pleas' December 16, 2019 decision granting summary judgment in favor of Defendant in Croce v. Ohio State Univ. Bd. of Trustees, Franklin Cty. C.P. No. 18-CV-010788; (5) a certified copy of Croce v. Ohio State Univ. Bd. of Trustees, 10th Dist. Franklin No. 20AP-14, 2021-Ohio-2242; (6) a certified copy of Croce v. Ohio State Univ. Bd. of Trustees, 165 Ohio St.3d 1426, 2021-Ohio-3730, 175 N.E.3d 579; (7) a certified copy of this Court's March 17, 2021 stay order; and (8) a certified copy of this Court's June 6, 2022 order vacating the March 17, 2021 stay.
{¶3} Also fully briefed and before the Court is Plaintiff's March 10, 2023 motion to set aside the magistrate's March 1, 2023 order converting Defendant's motion for judgment on the pleadings into a motion for summary judgment. For the reasons stated below, the Court GRANTS, in part, and DENIES, in part, Defendant's motion for summary judgment and DENIES Plaintiff's motion to set aside.
While Plaintiff's March 10, 2023 filing was captioned "Plaintiff Carlo M. Croce's Objections and Request to Set Aside and Stay Order of Magistrate Dated March 1, 2023", the magistrate issued an order, and not a decision. Accordingly, the Court construes Plaintiff's filing as a motion to set aside magistrate's order under Civ.R. 52(D)(2)(b) rather than objections to magistrate's decision under Civ.R. 53(D)(3)(b).
Background
{¶4} On June 25, 2004, The Ohio State University (OSU) offered Plaintiff positions of employment as a Professor with tenure in the College of Medicine, Chair of the Department of Molecular Virology, Immunology and Medical Genetics (Department Chair), and OSU Physicians Director of Cancer Translational Research for Hematological Malignancies and Solid Tumor Oncology. Particularly relevant here, the Department Chair position was "for a period of four years and [was] renewable upon review by the Dean of the College of Medicine and Public Health as established by university policies." Additionally, Plaintiff's June 25, 2004 offer letter from OSU indicates that his
OSU's Department of Molecular Virology, Immunology and Medical Genetics was later renamed the Department of Cancer Biology and Genetics (DCBG).
total OSU compensation will be $475,000 exclusive of benefits structured. You will have a primary appointment in the College of Medicine as Professor with tenure holding an endowed chair. Within the first two years, it is expected that you will seek and obtain grant funding to support your salary to 100% of the NIH salary cap. If after the first four years and in the unlikely event that your productivity declines with regard to your grant or research output your personal compensation may be adjusted accordingly. Similarly,
if you meet agreed upon annual productivity goals, you will be eligible for up to an annual bonus amount not to exceed 10% of your OSU salary.
In October 2004, Plaintiff accepted OSU's offer of employment.
{¶5} To date, Plaintiff is still employed at OSU. However, on November 4, 2018, the Dean of OSU's College of Medicine, Dr. K. Craig Kent, requested that Plaintiff step down as Department Chair. Plaintiff refused. Then, on November 15, 2018, Dr. Kent informed Plaintiff that he would be removed as Department Chair effective January 1, 2019.
{¶6} On November 20, 2018, Dr. Kent held a meeting with the DCBG faculty and informed them that Plaintiff would no longer serve as the Department Chair effective January 1, 2019. In a December 21, 2018 letter, the DCBG tenured faculty members informed Provost Dr. Bruce McPheron that they were not consulted prior to Plaintiffs removal. Additionally, the DCBG tenured faculty stated that "[i]n the absence of any information, if [they] had been consulted [they] would have expressed a strong and unanimous recommendation against the apparently arbitrary dismissal of Dr. Croce as Chair of our Department * * *" and recommended that the decision to dismiss Plaintiff be reconsidered and reversed.
{¶7} On December 12, 2018, Plaintiffs counsel submitted a complaint with Dr. McPheron demanding that Plaintiff be permitted to continue serving as Department Chair until September 30, 2020. On December 28, 2018, Dr. McPheron responded to Plaintiffs counsel and stated that a complaint may only be filed by "any student or university employee" pursuant to Ohio Adm.Code 3335-5-04.
{¶8} As a result, Plaintiff filed his December 31, 2018 complaint for declaratory and injunctive relief against Defendant in the Franklin County Court of Common Pleas (common pleas court). Plaintiff therein alleges that, before seeking to remove him as Department Chair, Defendant did not follow the procedure set forth in Ohio Adm.Code 3335-3-35(B), which provides that a department chair may be removed "during a four-year term after consultation with the voting faculty and dean of the unit involved. The views of the faculty shall be given substantial weight in arriving at any decision to remove a chair or director from office." Specifically, Plaintiff claimed that Defendant had renewed his appointment as Department Chair to serve a four-year term from October 2016 until September 2020 and, therefore, Defendant's January 1, 2019 removal was improper.
{¶9} Based on the same factual circumstances and legal theory, Plaintiff filed his October 28, 2020 complaint in this case asserting that Defendant is liable to him for money damages as a result of wrongful removal of department chair in violation of Ohio Adm.Code 3335-3-35(B), breach of contract, and promissory estoppel. Plaintiff also alleges that his June 25, 2004 offer letter from OSU provided, in part, "that upon meeting agreed upon annual productivity goals, Plaintiff would be eligible for an annual bonus." Plaintiff contends that he met all such productivity goals but was not paid his bonus in 2018. Additionally, Plaintiff asserts that he was entitled to a separate $60,000 annual bonus for serving as Department Chair and was not paid this bonus in 2018, 2019, and 2020. While Defendant admitted that Plaintiff did not receive any bonus in 2018, 2019, or 2020, Defendant denied that Plaintiff was entitled to a bonus for serving as Department Chair or that Plaintiff met the necessary productivity goals.
{¶10} On December 16, 2019, the common pleas court granted summary judgment in favor of Defendant after concluding that Plaintiff was not entitled to the procedure set forth in Ohio Adm.Code 3335-3-35(B) because he was serving as Department Chair in an "at-will" capacity at the time of his dismissal and was subject to removal at any time. Specifically, the common pleas court found that:
Dr. Croce was initially appointed to a four-year Department Chair term in 2004 and then reappointed for another four-year term to commence in 2008. However, there is no documentation that Dr. Croce was ever recommended for reappointment and the Board of Trustees minutes reflect that the Board never reappointed Dr. Croce to another four-year term following the expiration of his second term in 2012. Curiously, the evidence demonstrates that Dr. Croce and the relevant OSU personnel believed or acted as if reappointments had occurred in 2012 and 2016.
As to the 2012 to 2016 timeframe, the record contains no clear explanation as to why OSU operated as if Dr. Croce was serving an appointed four-year term though the Board of Trustee minutes show that he was never reappointed to a third term. It is unknown whether, through
oversight, OSU failed to complete the reappointment process or whether Dr. Croce was intentionally not nominated for reappointment.
In contrast, there is evidence explaining what transpired when Dr. Croce was being considered for reappointment for a term to commence in 2016.
Because the evidence showed that Plaintiff was simply not recommended for reappointment in 2016, the common pleas court held that "[e]ven construing the facts in Dr. Croce's favor, reasonable minds could not conclude that Dr. Croce had been approved for reappointment to another four-year department chair term in accordance with OAC 3335-3-35(A)." The common pleas court further found that the significance of Plaintiff having not been formally reappointed to a four-year term in accordance with Ohio Adm.Code 3335-3-35(A) was that Plaintiff served as Department Chair from 2016-2019 in an at-will capacity and, consequently, "he was subject to removal at any time, and the procedure set forth in OAC 3335-3-35(B) is not applicable."
{¶11} Plaintiff thereafter appealed the common pleas court's decision to the Tenth District Court of Appeals (court of appeals). Pending his appeal, Plaintiff filed a February 26, 2021 motion to stay this case on the basis that "Plaintiffs right to recover damages in this case turns on the outcome of the pending state court action. Staying this action until the court of appeals issues its decision will further judicial economy and avoid inconsistent rulings." On March 17, 2021, the Court stayed this case.
{¶12} On June 30, 2021, the court of appeals dismissed Plaintiffs appeal as moot because the alleged four-year term starting from October 2016 through September 2020 had already expired and there was no genuine controversy regarding whether Defendant should be enjoined from removing Plaintiff as Department Chair. While the common pleas court's decision was left undisturbed, the court of appeals noted that its decision took "no position regarding the potential merits of appellant's appeal or applicability of the doctrine of res judicata on any collateral case in the Ohio Court of Claims." On June 6, 2022, the Court vacated the March 17, 2021 stay order.
Defendant's Motion for Summary Judgment
{¶13} Defendant argues that it is entitled to summary judgment on Plaintiffs claims because they are barred by the doctrine of res judicata. In response, Plaintiff argues that the doctrine of res judicata does not apply when a court lacks subject matter jurisdiction over the claims at issue or when the issues are found moot. Plaintiff also argues that a genuine issue of material fact persists as to whether he is entitled to the alleged bonuses.
{¶14} 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.
"[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.
{¶15} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which provides that "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." It is well-established that granting summary judgment is not appropriate unless,
construing the evidence most strongly in favor of the nonmoving party:
(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Robinette v. Orthopedics, Inc., 10th Dist. Franklin No. 97AP-1299, 1999 Ohio App. LEXIS 2038, 7 (May 4, 1999).
{¶16} Whether Plaintiffs claims are barred by the doctrine of res judicata is a question of law. Daniel v. Williams, 10th Dist. Franklin No. 17AP-203, 2014-Ohio-273, ¶ 18 (internal citations omitted). The doctrine of res judicata encompasses both claim preclusion and issue preclusion. Id. To promote "principles of finality and judicial economy by preventing endless relitigation of an issue upon which there was already a full or fair opportunity to be heard[,]" claim preclusion prevents the relitigation of the same cause of action and issue preclusion prevents the relitigation of an issue that has been decided in a prior action. Id. at ¶ 18-19.
{¶17} Claim preclusion applies when "(1) there is a prior valid judgment on the merits; (2) the present action involves the same parties as the prior action (or the parties in the present action are in privity with the parties in the prior action); (3) the present action raises claims that were or could have been litigated in the prior action; and (4) both actions arose out of the same transaction or occurrence." Id. at ¶ 18. Issue preclusion applies when the fact or issue (1) was actually and directly litigated in the prior action, (2) was determined by a court of competent jurisdiction, and (3) when the party against whom issue preclusion is asserted was a party to the prior action (or the party in the present action are in privity with the parties in the prior action). Dehlendorf v. Ritchey, 10th Dist. Franklin No. 12AP-87, 2012-Ohio-5193, ¶ 14, quoting Thompson v. Wing, 70 Ohio St.3d 176, 183, 637 N.E.2d 917 (1994); Fort Frye Teachers Assn. OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395, 692 N.E.2d 140 (1998) ("a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different.").
Wrongful Removal of a Department Chair
{¶18} Plaintiff alleges that his fourth four-year term as Department Chair began on October 1, 2016 and would have run through September 30, 2020. Plaintiff claims that, because Defendant stripped him of his chairmanship without first consulting the faculty, Defendant violated Ohio Adm.Code 3335-3-35(B). Defendant argues that this cause of action is barred by claim preclusion because, based on the same transaction or occurrence at issue in this case, the common pleas court already issued a final judgment which concluded that Plaintiff was not entitled to the procedure provided by Ohio Adm.Code 3335-3-35(B). While it is undisputed that the complaint filed in common pleas court involved the same parties and arose out of the same transaction or occurrence as Plaintiff's complaint in this case, Plaintiff argues that the doctrine of res judicata does not apply here because he sought declaratory and injunctive relief in the common pleas court over which this Court does not have jurisdiction and, similarly, the common pleas court does not have jurisdiction over the economic relief sought in this Court.
{¶19} At the outset, the Court questions whether Plaintiff has statutory authority to bring a cause of action to recover money damages purely based on a violation of this administrative rule. Nevertheless, this decision takes no position regarding whether this cause of action constitutes a claim upon which relief could be granted. Instead, the Court finds that claim preclusion bars Plaintiffs cause of action for wrongful removal in violation of Ohio Adm.Code 3335-3-35(B) in this case.
{¶20} Initially, the Court notes that the common pleas court certainly had subject-matter jurisdiction to determine whether Ohio Adm.Code 3335-3-35 was applicable to the facts at issue. See Corder v. Ohio Edison Co., 162 Ohio St.3d 639. 2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14-16 (2020); see also R.C. 2743.03(A)(2). Additionally, the Court finds that the common pleas court issued a valid final judgment on the merits which operated as a dismissal with prejudice. See Stuller v. Price, 10th Dist. Franklin No. 02AP-29 and 02AP-267, 2003-Ohio-583, ¶ 23 ("A summary judgment pursuant to Civ.R. 56 is an adjudication on the merits that operates as a dismissal with prejudice"). Specifically, the common pleas court granted summary judgment in favor of Defendant after finding that, because Plaintiff was not formally reappointed to a four-year term in accordance with Ohio Adm.Code 3335-3-35(A), he served as Department Chair from 2016-2019 in an at-will capacity and, consequently, "he was subject to removal at any time, and the procedure set forth in OAC 3335-3-35(B) is not applicable." Additionally, the court of appeals' dismissal of Plaintiff's appeal for mootness did not insulate the preclusive effect of the common pleas court's adjudication on the merits. See, e.g., Dehlendorf at ¶ 16 (holding that a trial court's dismissal with prejudice barred a subsequent attempt to refile the same action after the court of appeals dismissed the appeal as premature and the trial court's judgment was left undisturbed).
{¶21} Put simply, this Court cannot determine whether Plaintiff was wrongfully removed as Department Chair in violation of Ohio Adm.Code 3335-3-35(B) after the common pleas court found that, under the same circumstances, Plaintiff was not entitled to the procedure set forth in Ohio Adm.Code 3335-3-35(B). Therefore, the Court finds that there is a prior valid judgment on the merits conclusively determining whether Defendant wrongfully removed Plaintiff as Department Chair in violation of Ohio Adm.Code 3335-3-35(B) and the doctrine of res judicata operates to bar this cause of action. See Dehlendorf at ¶ 16 ("A dismissal entered with prejudice will, by application of the doctrine of res judicata, bar a subsequent attempt to refile the same action."). Consequently, the Court finds that Defendant is entitled to judgment as a matter of law as to Count One of Plaintiffs complaint.
Breach of Contract
{¶22} To recover for breach of contract, Plaintiff must show the "(1) existence of a valid contract, (2) performance by the plaintiff, (3) non-performance by the defendant, and (4) damages resulting from the defendant's breach." Yoder v. Hurst, 10th Dist. Franklin No. 07AP-21, 2007-Ohio-4861, ¶ 27. Plaintiff alleges three separate breaches: (1) Defendant breached when it failed to comply with Ohio Adm.Code 3335-3-35(B) prior to removing him as Department Chair in 2019 from an alleged four-year term that ran from 2016-2020; (2) Defendant breached when it did not pay him a bonus for serving as Department Chair in 2018; and (3) Defendant breached when it did not pay him a bonus in 2018 for meeting his productivity goals.
{¶23} Upon review, the Court finds that Plaintiff's claim for breach of contract based on Defendant's wrongful removal of Plaintiff as Department Chair in violation of Ohio Adm.Code 3335-3-35(B) is barred by issue preclusion. While claim preclusion would not bar this claim because Plaintiff's breach of contract claim was not and could not have been litigated in the prior action, the common pleas court did actually and directly decide the issue of whether Plaintiff was wrongfully removed as Department Chair. See R.C. 2743.03(A).
{¶24} For the reasons explained above, this Court cannot subsequently determine whether Defendant breached a contract with Plaintiff by failing to consult with the faculty prior to removing him as Department Chair after the common pleas court concluded that, at the time of his removal, Plaintiff served as Department Chair in an at-will capacity and Ohio Adm.Code 3335-3-35(B) did not apply to these circumstances since he was never reappointed to another four-year term in 2016. Therefore, even viewing the evidence in a light most favorable to Plaintiff, the Court finds that reasonable minds could come to but one conclusion that Defendant is entitled to judgment as a matter of law as to this issue. Because Plaintiff could be removed at any time and he did not actually serve as Department Chair in the years of 2019 and 2020, it follows that Plaintiff was not entitled to the alleged $60,000 annual bonuses in the years of 2019 and 2020 resulting from a breach of contract.
{¶25} However, viewing the evidence in a light most favorable to Plaintiff, the Court finds a genuine issue of material fact remains as to whether a contract exists entitling Plaintiff to a bonus for serving as Department Chair in 2018. Regardless of whether he served in an at-will capacity, it is undisputed that Plaintiff actually served as Department Chair for the year of 2018. While Defendant denies that Plaintiff was entitled to a $60,000 annual bonus for serving as Department Chair, Defendant admits that it did not pay Plaintiff such a bonus in 2018. Moreover, the doctrine of res judicata does not apply to this claim because Plaintiffs breach of contract claims neither were nor could have been brought in the prior action nor did the common pleas court actually and directly decide whether Plaintiff was entitled to a $60,000 bonus for serving as Department Chair in 2018. Because Defendant offered no further argument or Civ.R. 56 evidence for the Court to consider, the Court finds that Defendant failed to meet its burden to demonstrate the absence of a genuine issue of material fact.
{¶26} Similarly, the Court also finds that a genuine issue of material fact remains regarding whether Plaintiff was entitled to a productivity bonus in 2018 and whether Defendant was in breach by failing to pay the same. Plaintiff's June 2004 offer letter from OSU specifically provides for an annual bonus as a portion of Plaintiffs compensation in the event he meets certain productivity goals. While the parties agree that Defendant did not pay Plaintiff a productivity bonus in 2018, the parties disagree as to whether Plaintiff met the required productivity goals in 2018. For reasons already stated, the Court reiterates that claim preclusion does not bar this claim. Additionally, issue preclusion does not apply here because the common pleas court did not actually and directly decide whether Plaintiff was entitled to a productivity bonus in 2018. Because Defendant offers no further argument or Civ.R. 56 evidence for the Court to consider, the Court finds that Defendant failed to meet its burden to demonstrate the absence of a genuine issue of material fact.
{¶27} Therefore, the Court finds that Defendant is entitled to partial judgment as a matter of law on Plaintiffs breach of contract claims.
Promissory Estoppel
{¶28} Plaintiff alternatively pleads that, under a theory of promissory estoppel, he is entitled to: (1) the annual bonuses he would have received in 2019 and 2020 had Defendant not wrongfully removed him as Department Chair, (2) the annual bonus for serving as Department Chair in 2018, and (3) the annual bonus for meeting productivity goals in 2018. For promissory estoppel to apply, there must be: "(1) a clear, unambiguous promise; (2) reasonable and foreseeable reliance upon the promise by the person to whom the promise is made; and (3) resulting injury to the party who relied on the promise." Raabe v. Ohio Bd. of Speech-Language Pathology & Audiology, 10th Dist. Franklin No. 04AP-954, 2005-Ohio-2335, ¶ 28. Generally, "promissory estoppel does not apply against the state, its agencies, arms and agents" because a "properly functioning government cannot tolerate individual state actors binding the state to actions that exceed or contravene its authority." Id. at ¶ 29, quoting Ohio Assn. of Pub. School Emps. v. School Emps. Retirement Sys. Bd., Franklin No. 04AP-136, 2004-Ohio-7101, ¶ 48-50. However, promissory estoppel may apply when "the alleged promise of the state representative or agent was consistent with statutory authority" and "the application of estoppel would lead to compliance with the law rather than contrary to it." Id. Additionally, it is well-established that promissory estoppel claims may be argued alternatively to breach of contract claims when there is not an existing unambiguous, written agreement setting forth the parties' rights. Lippert v. Univ. of Cincinnati, 10th Dist. Franklin No. 96API03-349, 1996 Ohio App. LEXIS 4369, 10-11 (Oct. 3, 1996).
{¶29} Viewing the evidence in a light most favorable to Plaintiff, the Court cannot conclude that the doctrine of res judicata bars Plaintiffs claim that, under a theory of promissory estoppel, he was entitled to $60,000 annual bonus for the years of 2019 and 2020. As this Court has already stated, the issue of whether Plaintiff was removed as Department Chair in violation of Ohio Adm.Code 3335-3-35(B) cannot be relitigated. However, the issue of whether Defendant's agent made a clear, unambiguous promise to Plaintiff that induced reasonable and foreseeable reliance that Plaintiff was reappointed to a four-year term from 2016-2020 consistent with Ohio Adm.Code 3335-3-35 was not actually and directly decided by the common pleas court. Moreover, claim preclusion would not bar this claim because it was not and could not have been brought in the prior action. See R.C. 2743.03(A). Because Defendant offers no further argument or Civ.R. 56 evidence for the Court to consider, the Court finds that Defendant failed to meet its burden to demonstrate the absence of a genuine issue of material fact.
{¶30} For similar reasons, the Court finds that genuine issues of material fact exist as to whether Plaintiff is alternatively entitled to recover the unpaid 2018 bonuses for serving as Department Chair and for allegedly meeting productivity goals. Therefore, the Court finds that Defendant is not entitled to judgment as a matter of law as to Plaintiff's promissory estoppel claims.
{¶31} For the reasons stated above, the Court GRANTS, in part, and DENIES, in part, Defendant's motion for summary judgment.
Plaintiff's Motion to Set Aside the Magistrate's March 1, 2023 Order
{¶32} Plaintiff argues that the magistrate erred when she converted Defendant's July 22, 2022 motion for judgment on the pleadings into a motion for summary judgment. Plaintiff specifically asserts that, because the plain language of Civ.R. 12(C) does not explicitly provide for such a conversion, the Ohio Rules of Civil Procedure therefore do not permit such a conversion. Upon review, the Court disagrees.
{¶33} While the Court acknowledges that Civ.R. 12(C) does not explicitly permit such a conversion, there is also no express prohibition against such conversion contained therein. Although Plaintiff cites several cases to support his position, his reliance is misplaced given the circumstances present in this case. Initially, the Court notes that the cases on which Plaintiff relies are not binding authority and, in large part, the statements regarding a trial court's ability to convert a motion for judgment on the pleadings into a motion for summary judgment were obiter dicta. See Piersant v. Bryngelson, 61 Ohio App.3d 359, 363, 572 N.E.2d 800 (8th Dist.1989) (holding that the trial court's decision to grant defendants' Civ.R. 12(C) motion was premature because defendants filed their motion prior to filing its responsive pleading); see also Kuhn v. Schmidt Bros, 6th Dist. Lucas No. L-07-1235, 2008-Ohio-1567, ¶ 10 (holding that the trial court did not err when granting judgment on the pleadings after considering an affidavit outside the pleadings when the issue before the court was the lack of subject matter jurisdiction).
{¶34} Contrary to Plaintiff's position, Ohio appellate courts have permitted the conversion of a motion for judgment on the pleadings into a motion for summary judgment when the trial court has given the parties proper notice and a fair opportunity to supplement their pleadings with evidentiary material. See CSX Transp., Inc. v. Pub. Utils. Comm., 64 Ohio App.3d 10, 13, 580 N.E.2d 496 (10th Dist.1989) ("[T]he parties in effect converted the Civ.R. 12(C) motion to a motion for summary judgment. Since plaintiff and defendants had a full opportunity to present evidentiary material, this court will review the dismissal pursuant to Civ.R. 56(C)."); see also Beck Energy Corp. v. Zurz, 9th Dist. Summit No. 27393, 2015-Ohio-1626, ¶ 10-13, citing Business Data Sys. v. Figetakis, 9th Dist. Summit No. 22783, 2006-Ohio-1036, ¶ 15-17 (holding that it is harmless error pursuant to Civ.R. 61 for a trial court to convert a motion for judgment on the pleadings into a motion summary judgment when the court has given the parties fair notice of the conversion and a reasonable opportunity to respond to the converted motions).
{¶35} While the Ohio Supreme Court has yet to rule on this issue, the Ohio Supreme Court generally reads rules and statutes in pari materia with one another when they address similar matters. Thomas v. Freeman, 79 Ohio St.3d 221, 225, 1997-Ohio-395, 680 N.E.2d 997 (1997); see also, e.g., Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, ¶ 21; State ex rel. State Fire Marshal v. Curl, 87 Ohio St.3d 568, 570, 722 N.E.2d 73 (2000); Cecil v. Cottrill, 67 Ohio St.3d 367, 371, 618 N.E.2d 133 (1993); see generally Wells Fargo Bank, N.A. v. Hazel, 10th Dist. Franklin No. 14AP-93, 2016-Ohio-305, ¶ 29 (Brunner, J., dissenting), quoting McCormac, Ohio Civil Rules Practice (1st Ed.1970) (The Ohio Rules of Civil Procedure are "not a compendium of isolated rules; rather it is an integrated whole involving an interrelated series of procedural steps from commencement of the action through the entering of judgment."). With regard to a motion for judgment on the pleadings, the Ohio Supreme Court has historically characterized such a motion as nothing more than a belated motion to dismiss for failure to state a claim upon which relief can be granted. State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 592, 635 N.E.2d 26 (1994). For this reason, Ohio courts analyze motions pursuant to Civ.R. 12(B)(6) and 12(C) under the same standard of review. Estate of Sherman v. Millhon, 104 Ohio App.3d 614, 618, 662 N.E.2d 1098 (10th Dist.1995). Because a Civ.R. 12(C) motion is merely a delayed Civ.R. 12(B)(6) motion, the Court cannot conclude that the magistrate erred when applying the language in Civ.R. 12(B) to convert Defendant's 12(C) motion into a motion for summary judgment.
{¶36} Additionally, setting aside the magistrate's order would be a vain act contrary to the interest of judicial economy. See generally Piersant at 364 (Krupansky, J., dissenting). Indeed, the Ohio Rules of Civil Procedure "shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice." Civ.R. 1(B). Under the circumstances presented in this case, converting Defendant's motion for judgment on the pleadings to a motion for summary judgment at this stage eliminated unnecessary delay to the expeditious administration of justice. See, e.g., Schisler v. Columbus Med. Equip., 10th Dist. Franklin No. 15AP-551, 2016-Ohio-3302, ¶ 17 (in the interest of judicial economy, the court effectively converted a motion for judgment on the pleadings into a motion for summary judgment when it "accepted] all the materials submitted by the parties as exhibits and reviewed] the trial court's decision to dismiss the complaint under the de novo summary judgment standard of review."). To the extent the Court found that the doctrine of res judicata applied in this case, Plaintiff had already had a full and fair opportunity to litigate his position. See Croce v. Ohio State Univ. Bd. of Trustees, Franklin C.P. No. 18CV-10788 (Dec. 16, 2019). Therefore, delaying consideration of Defendant's affirmative defense would be futile.
{¶37} To the extent that such a conversion could be construed as an error, Civ.R. 61 instructs that:
[n]o error or defect in any order * * * is grounds for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial right of the parties.
Because the parties were given fair notice of the Court's intention to convert the motion and they were provided a reasonable opportunity to supplement their briefing with evidentiary material, the Court finds that converting the motion for judgment on the pleadings into a motion for summary judgment did not affect any substantial right of the parties. See, e.g., Beck Energy Corp. at ¶ 13. Moreover, the Court thoroughly reviewed the evidence and did so in a light most favorable to Plaintiff before determining whether Defendant was entitled to judgment as a matter of law, as required. Therefore, the Court finds that converting Defendant's motion was not inconsistent with substantial justice.
{¶38} For these reasons, the Court finds no basis to modify the magistrate's March 1, 2023 order.
Conclusion
{¶39} For the reasons set forth above, the Court DENIES Plaintiff's motion to set aside the magistrate's March 1, 2023 order. Also, the Court GRANTS, in part, and DENIES, in part, Defendant's motion for summary judgment. Plaintiff's claim for wrongful removal of a department chair in violation of Ohio Adm.Code 3335-3-35(B) is barred by claim preclusion and is, therefore, DISMISSED with prejudice. Additionally, Plaintiff's breach of contract claim on the basis that Defendant did not comply with Ohio Adm.Code 3335-3-35(B) prior to removing him as Department Chair is barred by issue preclusion and, therefore, DISMISSED with prejudice. However, Plaintiff's breach of contract claims based on the assertions that Defendant did not pay him productivity and Department Chair bonuses in 2018 to which he was entitled remain for trial. Plaintiff's promissory estoppel claims also remain for trial.
JUDGMENT ENTRY
{¶40} For the reasons set forth in the decision filed concurrently herewith, the Court GRANTS, in part, and DENIES, in part, Defendant's motion for summary judgment and DENIES Plaintiffs motion to set aside the magistrate's March 1, 2023 order. As a result, Plaintiff's claim for wrongful removal of a department chair in violation of Ohio Adm.Code 3335-3-35(B) is barred by claim preclusion and is, therefore, DISMISSED with prejudice. Plaintiff's breach of contract claim on the basis that Defendant did not comply with Ohio Adm.Code 3335-3-35(B) prior to removing him as Department Chair is barred by issue preclusion and, therefore, DISMISSED with prejudice. However, Plaintiff's breach of contract claims based on the assertions that Defendant did not pay him productivity and Department Chair bonuses in 2018 to which he was entitled remain for trial. Plaintiff's promissory estoppel claims also remain for trial.