McKeny v. Ohio Univ. , 99 N.E.3d 1244 ( 2017 )

[Cite as McKeny v. Ohio Univ., 2017-Ohio-8589.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Timothy Scott McKeny, Ph.D., :
Plaintiff-Appellant, : No. 17AP-392
(Ct. of Cl. No. 2014-00984)
v. :
(REGULAR CALENDAR)
Ohio University, :
Defendant-Appellee. :
D E C I S I O N
Rendered on November 16, 2017
On brief: Farlow & Associates, LLC, Beverly J. Farlow,
Paul F. Rogers, and Zachary S. Gwin, for appellant.
Argued: Zachary S. Gwin.
On brief: Michael DeWine, Attorney General, Randall W.
Knutti, Richard N. Coglianese, and Erin E. Butcher, for
appellee. Argued: Randall W. Knutti.
APPEAL from the Court of Claims of Ohio
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Timothy Scott McKeny, Ph.D., appeals from a judgment
entry of the Court of Claims of Ohio rendering judgment in favor of defendant-appellee,
Ohio University ("OU") on McKeny's breach of contract and contractual due process
claims. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In 2006, OU hired McKeny as an assistant professor in the Department of
Teacher Education in a "tenure track" position. Pursuant to the April 28, 2006 letter
offering McKeny employment, McKeny's position on the OU faculty was subject to a
probationary period not to exceed seven years, and OU would conduct McKeny's tenure
No. 17AP-392 2
review in the 2011-2012 academic year. Any tenure granted to McKeny would become
effective the beginning of the year following his successful tenure review. On October 31,
2007, McKeny confirmed in writing that OU would make his tenure decision no later than
June 30, 2012 and that his probationary period would end on June 30, 2013.
{¶ 3} The OU Faculty Handbook ("the handbook") details the standards
candidates for tenure must meet. The handbook states at II(C)(6)(a) that "[t]enure is
awarded to those individuals whose records indicate that they are likely to continue to
make significant positive contributions to the academic life of the University throughout
their professional careers." (Pl.'s Dep. Ex. 15, Handbook at 21.) If OU does not intend to
retain a faculty member past the probationary period, the handbook requires OU to
provide written notification at least one year before the end of the probationary period.
The handbook requires department chairs to evaluate annually each probationary faculty
using the department's criteria for promotion and tenure. However, the handbook
explicitly states that "[a]lthough these evaluations may be indicators of progress toward
tenure and promotion, favorable annual reports do not guarantee positive tenure or
promotion decisions." (Pl.'s Dep. Ex. 15, Handbook II(E)(3)(a) at 32.)
{¶ 4} The handbook further states "[a]ll awards of tenure and all promotions in
rank must originate in a positive recommendation by the appropriate departmental
committee or after a formal hearing and presidential review in cases that have gone
through the grievance procedure as in Section II.F." (Pl.'s Dep. Ex. 15, Handbook II(E)(5)
at 32.) The chair of the departmental promotion and tenure committee must put the
department's recommendation in writing, and, if the recommendation is to grant tenure,
the chairperson then forwards the committee's recommendation to the dean along with
the chairperson's personal recommendation.
{¶ 5} If the dean rejects the department's recommendation, he or she must
inform the committee in writing along with an explanation of why the dean did not accept
the recommendation. A dean's rejection of a tenure recommendation ends the process
unless the faculty member appeals the dean's decision. A faculty member must originate
an appeal at the level at which the adverse decision was made "either within the
department, or at the level of the dean or of the Executive Vice President and Provost."
(Pl.'s Dep. Ex. 15, Handbook II(F)(1) at 34.) Further, "[s]hould the appeal be denied at
No. 17AP-392 3
any of these levels, the faculty member may take the appeal to the next level." (Pl.'s Dep.
Ex. 15, Handbook II(F)(1) at 35.) The "levels" of appeal include the department, the dean,
the provost, the Senate Standing Committee on Promotion and Tenure of the OU Faculty
Senate (the "Standing Committee"), and ultimately the president, who makes the "final
decision." (Pl.'s Dep. Ex. 15, Handbook II(F)(7)(g) at 39.)
{¶ 6} In November 2011, McKeny submitted a tenure and promotion dossier to
his department's promotion and tenure committee. Both the committee and the
department chair recommended to the dean of OU's College of Education and Human
Services ("College of Education") that OU award McKeny tenure. However, the dean of
the College of Education, Renée Middleton, denied McKeny's application for promotion
and tenure, finding that while McKeny's teaching and outreach had been "exemplary,"
McKeny had too few publications and an insufficient record of sustained scholarship.
(Pl.'s Dep. Ex. 41 at 3.) McKeny's dossier listed only one published monograph and one
published peer-reviewed article, with several more "in review" or "in press." (Pl.'s Dep.
Ex. 29.)
{¶ 7} McKeny appealed Dean Middleton's denial of his tenure application,
asserting that since the time he submitted his tenure dossier, he had more potential
publications in the review process. In a June 8, 2012 letter, Dean Middleton denied his
appeal, again noting his lack of scholarship. Dean Middleton noted that in McKeny's first
faculty evaluation in 2007, it was "strongly recommended" that he work in the area of
referred journals rather than grant work. (Pl.'s Dep. Ex. 45 at 1.) Additionally, in 2010,
the tenure and promotion committee informed McKeny his scholarship did not meet
expectations. In denying his appeal, Dean Middleton stated "[t]he body of your work you
are submitting is either under review, or in press," and noted that although McKeny
demonstrated a "flurry of activity" in 2011, he nonetheless exhibited a lack of sustained
scholarship throughout his probationary period with OU. (Pl.'s Dep. Ex. 45 at 4.)
{¶ 8} On September 4, 2012, McKeny appealed Dean Middleton's decision
denying his appeal to OU's provost, Pam Benoit. Provost Benoit also denied McKeny's
appeal, finding no evidence of inadequate consideration or of due process violations.
McKeny appealed from the provost's decision on November 14, 2012 to the Standing
Committee. The Standing Committee endorsed McKeny's appeal and returned the case to
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Dean Middleton for reconsideration. However, on January 28, 2013, Dean Middleton
denied McKeny's reconsidered appeal, again reiterating the lack of sustained scholarship.
{¶ 9} McKeny appealed from Dean Middleton's third denial of his appeal to the
Standing Committee on February 20, 2013, and the Standing Committee referred the
matter to Provost Benoit. In an April 29, 2013 letter, Provost Benoit denied McKeny's
appeal, concluding Dean Middleton "acted within her purview on the issue of college
research expectations and that there is not sufficient evidence to suggest that your bid for
tenure and promotion was subject to inadequate consideration in the area of scholarly
productivity." (Pl.'s Dep. Ex. 55.) Following Provost Benoit's denial of his appeal, the
Standing Committee granted McKeny a hearing before a Special Senate Committee of
faculty.
{¶ 10} The Special Senate Committee conducted a hearing on October 24, 2013
and recommended, in a November 1, 2013 letter, that McKeny's appeal be upheld and he
be granted tenure and promotion. In its decision, the Special Senate Committee noted
that the "only binding document governing tenure and promotion is the department's
Policy 60.111." (Pl.'s Dep. Ex. 59, Hearing Report at 2.) The Special Senate Committee
determined Policy 60.111 defines "scholarship" more broadly than Dean Middleton, who
relied solely on publication to assess scholarship.
{¶ 11} Pursuant to section II(F) of the handbook, the Special Senate Committee
made its recommendation to OU's president, Roderick J. McDavis, for a final
determination on McKeny's appeal. However, in a November 26, 2013 letter, President
McDavis denied McKeny's appeal. President McDavis noted McKeny had been repeatedly
advised throughout his time at OU that he needed a stronger record of journal
publications, and President McDavis concluded that the department's emphasis on the
importance of peer-reviewed publications is not inconsistent with Dean Middleton's
assessment of his scholarship. President McDavis also noted that the two outside
reviewers nominated by the Tenure and Promotion Committee both recommended
against granting McKeny tenure due to his insufficient level of scholarship. In a
December 20, 2013 letter to the chair of the Faculty Senate, President McDavis indicated
he again reviewed the materials related to McKeny's appeal and stated he is "standing by
[his] original decision to deny the appeal." (Pl.'s Dep. Ex. 61 at 3.)
No. 17AP-392 5
{¶ 12} On December 18, 2014, McKeny filed a complaint with the Court of Claims
of Ohio against OU asserting claims of breach of contract, violation of contractual due
process, sexual orientation discrimination, violations of R.C. 4112.02 and 4112.99,
interference with prospective advantage, civil conspiracy, and infliction of emotional
distress. The claims all related to OU's denial of McKeny's application for promotion and
tenure. Along with his complaint, McKeny filed a motion requesting a hearing to
determine whether Dean Middleton, Provost Benoit, and President McDavis were entitled
to statutory immunity. That same day, McKeny also filed a related complaint in the
United States District Court for the Southern District of Ohio against OU, Dean
Middleton, Provost Benoit, and President McDavis alleging violations of Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. 1983.
{¶ 13} Following an immunity hearing on October 1 and 2, 2015, the Court of
Claims, in an October 23, 2015 decision, denied McKeny's motion to strip Dean
Middleton, Provost Benoit, and then-President McDavis of their statutory civil immunity,
concluding "that the evidence is clear and unambiguous that Dean Middleton, Provost
Benoit, and President McDavis were acting within the scope of their employment in their
decisions to deny [McKeny] tenure." (Oct. 23, 2015 Decision at 4.) Thus, the Court of
Claims stated it does not have jurisdiction over any civil actions that may be filed against
Dean Middleton, Provost Benoit, and President McDavis based on the allegations in
McKeny's case. The parties stipulated that the sworn testimony taken in the immunity
hearing would be combined with any testimony taken in the hearing on the merits.
{¶ 14} The parties then filed cross-motions for summary judgment. In a December
6, 2016 entry, the Court of Claims dismissed McKeny's claims for interference, civil
conspiracy, and infliction of emotional distress, finding there are no genuine issues of
material fact as to those claims. However, the Court of Claims determined there remained
genuine issues of material fact regarding McKeny's contract and discrimination claims.
{¶ 15} The Court of Claims then conducted a hearing on the merits of McKeny's
remaining claims against OU on December 12, 13, and 14, 2016. At the beginning of the
hearing, the Court of Claims granted OU's motion to exclude the expert testimony of
Heinz Ickert, stating it would take judicial notice of mathematical formulas and present
values of McKeny's pension and the statutory life expectancy tables. Upon the motion of
No. 17AP-392 6
OU at the close of the trial, the Court of Claims dismissed McKeny's discrimination
claims.
{¶ 16} The parties filed closing briefs on McKeny's remaining claims of breach of
contract and violation of contractual due process. In an April 24, 2017 decision, the Court
of Claims concluded that OU's "decision to deny [McKeny's] tenure was not made in bad
faith, arbitrary, or capricious," and that McKeny "produced no evidence to support a
violation of due process claim." (Apr. 24, 2017 Decision at 5.) Thus, the Court of Claims
found that "the decisions by the Dean, Provost, and President, although contrary to the
faculty committee's recommendation and what [McKeny] had hoped for, were compliant
with [OU's College of Education policy governing tenure and promotion applications] and
not a breach." (Apr. 24, 2017 Decision at 5.) The Court of Claims entered judgment in
favor of OU and assessed costs against McKeny in an April 24, 2017 judgment entry.
McKeny timely appeals.
II. Assignments of Error
{¶ 17} McKeny assigns the following errors for our review:
[1.] The trial court erred as a matter of law and fact in finding
that the decision of the dean, provost, and president, were
compliant with policy and Ohio University did not breach its
contractual obligations to Dr. McKeny.
[2.] The trial court erred as a matter of law and fact in finding
that Ohio University's decision to deny tenure was not made
in bad faith, arbitrary, or capricious.
[3.] The trial court erred as a matter of law and fact in failing
to find a substantial departure from accepted academic
norms.
[4.] The trial court erred as a matter of law and fact in finding
that no evidence was produced to support a violation of due
process claim.
[5.] The trial court erred as a matter of law and fact in failing
to consider terms of the contract within the faculty handbook.
[6.] The trial court abused its discretion in excluding
McKeny's expert witness.
No. 17AP-392 7
[7.] The trial court erred as a matter of law in refusing to
admit testimony and exhibit 180 which pertained to codified
college of education tenure guidelines.
[8.] The trial court erred as a matter of law in refusing to
admit exhibits 195-201 and testimony pertaining to
documents on Ohio University's website.
III. First, Second, Third, Fourth, and Fifth Assignments of Error – Legal and
Factual Conclusions
{¶ 18} McKeny's first five assignments of error are interrelated and we address
them jointly. In his first, second, third, fourth, and fifth assignments of error, McKeny
argues the Court of Claims erred in both its legal conclusions and factual findings
supporting those conclusions when it entered judgment in favor of OU on the contract
claims. More specifically, these five assignments of error implicate the interpretation of a
written contract and the manifest weight of the evidence.
A. Standard of Review and Applicable Law
{¶ 19} The construction and interpretation of written contracts involves issues of
law that an appellate court reviews de novo. Alexander v. Buckeye Pipeline Co., 53 Ohio
St.2d 241 (1978), paragraph one of the syllabus. The purpose of contract construction is
to realize and give effect to the parties' intent. Skivolocki v. E. Ohio Gas Co., 38 Ohio
St.2d 244 (1974), paragraph one of the syllabus. "[T]he intent of the parties to a contract
resides in the language they chose to employ in the agreement." Shifrin v. Forest City
Ents., Inc., 64 Ohio St. 3d 635, 638 (1992). When " 'the terms in a contract are
unambiguous, courts will not in effect create a new contract by finding an intent not
expressed in the clear language employed by the parties.' " Holdeman v. Epperson, 111
Ohio St. 3d 551, 2006-Ohio-6209, ¶ 12, quoting Shifrin at 638.
{¶ 20} In civil cases, a reviewing court will not reverse the judgment as being
against the manifest weight of the evidence if some competent, credible evidence supports
all the essential elements of the case. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d
279, 280 (1978). In determining whether a civil judgment is against the manifest weight
of the evidence, an appellate court is guided by a presumption that the findings of the trial
court are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984). "The
underlying rationale of giving deference to the findings of the trial court rests with the
No. 17AP-392 8
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony." Id.
B. Breach of Contract
{¶ 21} McKeny argues the Court of Claims erred when it concluded OU did not
breach its contract with McKeny when it denied his application for tenure and promotion.
To succeed on a claim of breach of contract, a plaintiff must demonstrate (1) the existence
of a contract, (2) plaintiff's performance, (3) defendant's breach, and (4) damages or loss
to the plaintiff. Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc. 10th Dist. No. 09AP-
788, 2010-Ohio-1649, ¶ 13, citing Jarupan v. Hanna, 173 Ohio App. 3d 284, 2007-Ohio-
5081, ¶ 18 (10th Dist.).
{¶ 22} The parties agree that a contract exists between McKeny and OU stemming
from the handbook and department Policy 60.111. The Court of Claims stated that
because the College of Education did not have its own criteria for granting tenure at the
time of McKeny's application, the only binding document governing McKeny's tenure and
promotion application was the department's Policy 60.111, which was a supplement to the
handbook. The "Procedures, Criteria and Worksheet for Evaluating Tenure and
Promotion for Group I Faculty by [Tenure and Promotion] Committee" contained in
Policy 60.111 provides:
Scholarship is broadly conceptualized in three distinct areas:
the Scholarship of Discovery, Integration, and Teaching. * * *
Scholarship includes such activities as research, publications,
the delivery of papers and other invited presentations in
professional settings; plus curriculum/product development
including software, multimedia forms, and testing/evaluation
instruments. The scholar shares his or her research findings
individually or collaboratively with professional peers and in
so doing subjects such findings to peer evaluation and
criticism.
(Pl.'s Dep. Ex. 13, Policy 60.111 at 1-2.) Further, under the heading "Expectations for
Scholarship," Policy 60.111 further provides:
Expectations for TENURE require invited and/or peer-
reviewed products of scholarship of discovery, integration
No. 17AP-392 9
and/or teaching that result in dissemination to an identifiable
audience.
(Emphasis sic.) (Pl.'s Dep. Ex. 13, Policy 60.111 at 7.)
{¶ 23} McKeny relies on the broad conceptualization of scholarship outlined in
Policy 60.111 to assert that OU breached its contract with him when it denied his
application for tenure based on a lack of sustained scholarship. McKeny asserts Dean
Middleton failed to follow the guidelines of Policy 60.111 and instead employed her own
subjective judgment as to whether to grant McKeny tenure.
{¶ 24} In essence, McKeny argues Dean Middleton, and President McDavis's
subsequent adoption of her reasoning, erroneously placed too much emphasis on his lack
of peer-reviewed publications in denying his application for tenure. However, we agree
with the Court of Claims that the plain language of Policy 60.111 places an emphasis on
the importance of peer-reviewed publications in determining whether a faculty member
obtains tenure. Further, to the extent McKeny argues Dean Middleton used her own
subjective judgment of which he had no notice, we note that the process of evaluating a
candidate for tenure, as outlined in the handbook and Policy 60.111, is inherently
subjective. See Saha v. Ohio State Univ., 10th Dist. No. 10AP-1139, 2011-Ohio-3824, ¶ 38
(stating a court uses its own judgment when interpreting a contract, but in a case alleging
breach of contract due to failure to award tenure, a court properly gives deference to a
university "when faculty members used their subjective judgment when they evaluated"
whether an applicant should obtain tenure).
{¶ 25} The record indicates that on separate occasions in 2007, 2009, 2010, and
2011, the members of the department instructed McKeny to place more emphasis on
refereed and peer-reviewed journals in order to improve his likelihood of obtaining
tenure. Under the terms of the handbook, the dean is under no obligation to accept the
department's recommendation for tenure and instead engages in a separate evaluation of
the application. It is notable that McKeny's own witnesses agreed that OU's tenure
procedures allowed Dean Middleton to make her own subjective determination of
McKeny's tenure application.
{¶ 26} Ultimately, the handbook places the final decision on a denial of tenure with
the university president. The handbook does not place any restrictions on the discretion
No. 17AP-392 10
of the president in granting or denying an appeal on a denial of tenure. Here, President
McDavis reviewed McKeny's entire file, including his dossier and application and the
record from the many stages of his appeal. Reviewing all of that information, President
McDavis affirmed Dean Middleton's denial of McKeny's application for tenure. We agree
with the Court of Claims that the decisions of the dean, provost, and president are all
compliant with Policy 60.111 and the handbook and thus do not constitute a breach.
Though the decisions of the dean, provost, and president are contrary to the faculty
committee's recommendation, the plain language of the handbook allows for the faculty
committee to arrive at a different outcome than the dean, provost, and president.
{¶ 27} McKeny also argues the Court of Claims erred in concluding the university's
decision was not made in bad faith, arbitrary, or capricious. "As a general rule, courts
defer to the academic decisions of colleges and universities unless there has been 'such a
substantial departure from accepted academic norms as to demonstrate that the person or
committee responsible did not actually exercise professional judgment.' " Saha at ¶ 36,
quoting Bleicher v. Univ. of Cincinnati College of Med., 78 Ohio App. 3d 302, 308 (10th
Dist.1992). Here, the university followed its own process, as outlined in the handbook, in
evaluating McKeny's application for tenure. That process plainly reserves independent
and professional judgment at the different levels of review. The record demonstrates that
the decision was made carefully and was heard at many levels of the university's
hierarchy. Though McKeny does not like the outcome, the fact that Dean Middleton,
Provost Benoit, and President McDavis all disagreed with the recommendations of the
faculty committee and the senate committee do not render their decisions in bad faith,
arbitrary, or capricious. The decisions of Dean Middleton and President McDavis are in
alignment with the guidance provided in Policy 60.111 in evaluating applications for
tenure. Thus, we do not agree with McKeny that the decision to deny his application for
tenure was made in bad faith, arbitrary, or capricious.
C. Breach of Contractual Due Process
{¶ 28} McKeny also argues the Court of Claims erred in concluding there was no
breach of McKeny's contractual due process. McKeny asserts OU did not adequately
follow its own grievance procedure in evaluating his application for tenure and his many
appeals. However, as we noted above, OU followed the grievance process as it is outlined
No. 17AP-392 11
in the handbook in handling McKeny's appeals. Though McKeny attempts to seize on key
words from the various written decisions made by the dean, provost, and president,
isolating those words from their context, we agree with the Court of Claims that McKeny
produced no evidence to support a violation of due process claim.
{¶ 29} Thus, we agree with the Court of Claims that OU did not breach its contract
with McKeny when it denied his application for tenure. Accordingly, we overrule
McKeny's first, second, third, fourth, and fifth assignments of error.
IV. Sixth, Seventh, and Eighth Assignments of Error – Evidentiary Rulings
{¶ 30} McKeny's sixth, seventh, and eighth assignments of error are interrelated
and we address them jointly. In his sixth assignment of error, McKeny argues the Court
of Claims erred in excluding his expert witness. In his seventh assignment of error,
McKeny argues the Court of Claims erred in refusing to admit documents related to the
College of Education's tenure guidelines. Finally, in his eighth assignment of error,
McKeny argues the Court of Claims erred in refusing to admit documents obtained from
the university's website. Taken together, these assignments of error challenge the Court of
Claims' evidentiary rulings.
{¶ 31} Generally, the admission or exclusion of evidence lies in the sound
discretion of the trial court, and we will not disturb that decision absent an abuse of
discretion. Peters v. Ohio State Lottery Comm., 63 Ohio St. 3d 296, 299 (1992). An abuse
of discretion implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
A. Expert Witness
{¶ 32} McKeny argues the Court of Claims erred when it granted OU's motion to
exclude the testimony of McKeny's expert witness, Heinz Ickert. Three business days
before the start of the trial, McKeny identified Ickert as an expert witness and included
Ickert's expert report. Pursuant to L.C.C.R. 7(E), supplemental reports of an expert
witness "must be supplied no later than thirty days prior to trial." The local rule also gives
discretion to the Court of Claims to exclude the testimony of the expert if the party does
not provide a report and does not demonstrate good cause for its failure to provide a
report. L.C.C.R. 7(E).
No. 17AP-392 12
{¶ 33} McKeny does not demonstrate that the Court of Claims abused its discretion
when it enforced the local rule as written. See Am. Hotel Group, LLC v. Wyandotte Plaza,
LLC, 10th Dist. No. 16AP-296, 2017-Ohio-5520, ¶ 16 (finding no abuse of discretion in the
trial court enforcing as written its local rule pertaining to requests for a jury trial). The
Court of Claims noted McKeny had previously represented he did not have any expert
witnesses. Additionally, although the Court of Claims excluded Ickert's expert testimony,
it took judicial notice of the mathematical formulas and present values upon which Ickert
relied. Accordingly, the Court of Claims did not abuse its discretion in enforcing L.C.C.R.
7(E) and not permitting McKeny to present expert testimony where McKeny waited until
three business days before the start of trial to disclose his expert witness. We overrule
McKeny's sixth assignment of error.
B. Exclusion of Exhibits
{¶ 34} In his seventh and eighth assignments of error, McKeny argues the Court of
Claims erred in refusing to admit various documents into evidence.
{¶ 35} Exhibit No. 180 contained policies and procedures related to granting
tenure the university enacted after McKeny had left OU. The Court of Claims determined
that exhibit No. 180 was not relevant.
{¶ 36} Evid.R. 401 defines "relevant evidence" as "evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence. Evid.R. 402 states
"[e]vidence which is not relevant is not admissible." The Court of Claims determined that
because exhibit No. 180 outlined the tenure policies OU had adopted after McKeny had
left the university, the document was not relevant to determining whether OU breached
its contract with McKeny. We agree. The policies contained in exhibit No. 180 did not
apply to McKeny or his application for tenure, and, thus, they were not relevant.
Accordingly, the Court of Claims did not abuse its discretion in refusing to admit exhibit
No. 180 into evidence. We overrule McKeny's seventh assignment of error.
{¶ 37} McKeny also asserts the Court of Claims erred in refusing to admit exhibit
Nos. 195-201. The documents contained in these exhibits came from OU's website. The
Court of Claims determined these documents did not satisfy the business records
exception to the hearsay rule contained in Evid.R. 803 and thus excluded the documents.
No. 17AP-392 13
{¶ 38} We need not determine whether the Court of Claims erroneously
determined the documents obtained from OU's website were inadmissible hearsay
because McKeny is unable to demonstrate any prejudice from the exclusion of this
evidence. McKeny sought to use the documents contained in exhibit Nos. 195-201 to
establish what his salary would have been had he not been terminated. This evidence was
arguably relevant to any damages McKeny may have suffered. However, as we explained
in our resolution of McKeny's first five assignments of error, the Court of Claims did not
err in concluding OU did not breach its contract with McKeny. Because there was no
breach of contract, it is immaterial what damages, if any, McKeny may have suffered.
Accordingly, McKeny does not demonstrate any prejudice from the Court of Claims'
evidentiary ruling in this regard. Amoako-Okyere v. Church of the Messiah United
Methodist Church, 10th Dist. No. 14AP-441, 2015-Ohio-3841, ¶ 41 ("A trial court has
broad discretion over the admission or exclusion of evidence, and a reviewing court
generally will not reverse an evidentiary ruling absent an abuse of discretion that
materially prejudices the affected party."). (Emphasis added.)
{¶ 39} We overrule McKeny's eighth and final assignment of error.
V. Disposition
{¶ 40} Based on the foregoing reasons, the Court of Claims did not err in
concluding OU did not breach its contract with McKeny and that OU did not violate
McKeny's contractual due process rights, and the Court of Claims did not abuse its
discretion in its evidentiary rulings. Having overruled McKeny's eight assignments of
error, we affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
TYACK, P.J., and SADLER, J., concur.