Croce v. Ohio State Univ. Bd. of Trustees , 2021 Ohio 2242 ( 2021 )

[Cite as Croce v. Ohio State Univ. Bd. of Trustees, 2021-Ohio-2242.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Dr. Carlo M. Croce, :
Plaintiff-Appellant, :
No. 20AP-14
v. : (C.P.C. No. 18CV-10788)
Ohio State University, : (REGULAR CALENDAR)
Board of Trustees,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on June 30, 2021
On brief: Mowery Youell & Galeano, Ltd., Judith E. Galeano,
Justin A. Morocco, and Mark C. Zronek, for appellant.
Argued: Judith E. Galeano.
On brief: Carpenter Lipps and Leland, LLP, Michael H.
Carpenter, Timothy R. Bricker, and Michael N. Beekhuizen,
for appellee. Argued: Timothy R. Bricker.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Plaintiff-appellant, Dr. Carlo M. Croce, appeals from the judgment of the
Franklin County Court of Common Pleas granting defendant-appellee's motion for
summary judgment. Appellee has filed a motion to dismiss this appeal on the grounds of
mootness. For the reasons that follow, we dismiss the appeal as moot.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} As we are resolving this matter prior to reaching appellant's assignment of
error our recitation of the facts will be brief.
No. 20AP-14 2
{¶ 3} In 2004, the Ohio State University recruited appellant for several positions
within the university. Relevant to the instant case, appellee appointed appellant as Chair
for the Department of Molecular Virology, Immunology, and Medical Genetics at the Ohio
State University College of Medicine ("Department Chair")1 on July 9, 2004.
{¶ 4} Pursuant to Ohio Adm.Code 3335-3-35(A), once the president of the
university, or his or her designee, nominate a chair or director for the position, appellee
appoints the individual for a term of four years. Each chair or director is eligible for
reappointment. As set forth in Ohio Adm.Code 3335-3-35(B):
The president or his or her designee may remove a chair or
director 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.
{¶ 5} Appellant began his term as Department Chair effective October 1, 2004
through September 30, 2008. Consistent with Ohio Adm.Code 3335-3-35, appellant's
initial term was for a period of four years. There is no dispute appellant was reappointed as
Department Chair for a subsequent four-year term starting from October 1, 2008 through
September 30, 2012. Appellant contends he was reappointed as Department Chair for a
third and fourth term in 2012 and 2016, respectively.2 Appellee argues that appellant was
never formally reappointed and was the acting Department Chair during this period.
{¶ 6} On August 7, 2015, Dr. Robert Bornstein, Vice Dean for Academic Affairs,
College of Medicine, emailed appellant inquiring whether he would like to be considered
for a fourth term as Department Chair, which appellant responded in the affirmative.
Ultimately, Dr. Christopher Ellison, Interim Dean of the Ohio State University College of
Medicine, who was responsible for the reappointment review process, decided not to
recommend appellant's reappointment as Department Chair. Appellant was never
informed that he was not reappointed for the 2016 term and continued to serve as the
Department Chair consistent with his initial appointment in 2004. In November 2018,
1 The Department of Molecular Virology, Immunology, and Medical Genetics was later renamed the
Department of Cancer Biology and Genetics within Ohio State University's College of Medicine.
2 Roberta Houser, Human Resources Director, Office of Academic Affairs, stated at her deposition that there
was a flood around 2012, when appellant was purportedly reappointed, which resulted in some files being
destroyed. Houser was unable to determine whether any records relating to appellant were destroyed from
the flood.
No. 20AP-14 3
Dr. K. Craig Kent, Dean of the College of Medicine, informed appellant that he would no
longer serve as Department Chair for the upcoming year and offered appellant the chance
to resign from the position. When appellant refused, Kent removed appellant as
Department Chair effective January 1, 2019.
{¶ 7} On December 31, 2018, appellant filed his complaint in the Franklin County
Court of Common Pleas seeking declaratory judgment and injunctive relief alleging that
appellee failed to follow the removal procedures set forth in Ohio Adm.Code 3335-3-35(B).
Appellant sought injunctive relief enjoining appellee from removing him as Department
Chair until appellee complies with Ohio Adm.Code 3335-5-04. On January 9, 2019,
appellant filed a motion for a temporary restraining order and preliminary injunction. The
case was referred to a magistrate pursuant to Civ.R. 53. On January 23, 2019, the magistrate
denied appellant's request for a temporary restraining order. On March 5, 2019, appellant
withdrew his motion for a temporary restraining order and preliminary injunction.
{¶ 8} On February 4, 2019, appellee filed a motion for summary judgment.
Appellee argued the case should be dismissed as Ohio Adm.Code 3335-3-35(B) does not
apply in this case since appellant was not serving a board-appointed four-year term and
could be removed from the position at any time. On February 18, 2019, appellant filed a
memorandum contra opposing appellee's motion and moving for additional time to file a
supplemental memorandum after conducting discovery. On April 23, 2019, the trial court
allowed appellant until June 28, 2019 to file a supplemental response. After an agreed order
extended appellant's time to respond, appellee filed a supplemental memorandum in
opposition on July 12, 2019. Appellant argued appellee's motion should be denied as there
was a genuine issue of material fact whether he was reappointed to a four-year term and
whether appellee failed to comply with Ohio Adm.Code 3335-3-35. A reply brief was filed
on August 2, 2019.
{¶ 9} On December 16, 2019, the trial court filed a decision and entry granting
appellee's motion for summary judgment finding that there was no dispute of material fact
that appellant was not reappointed to a four-year term as Department Chair in 2016.
Appellant filed a timely appeal on January 6, 2020.
{¶ 10} On October 2, 2020, appellee filed a motion to dismiss the appeal because
the term at issue had expired and the case was now moot. On October 12, 2020, appellee
No. 20AP-14 4
filed a memorandum in opposition arguing that the case met both exceptions to the
mootness doctrine. A reply brief was filed October 19, 2020.
{¶ 11} On October 29, 2020, appellant filed a motion for leave to file instanter a sur-
reply arguing that appellee made a misstatement of fact in its reply brief in support of its
motion to dismiss, and appellant should be allowed to file a sur-reply "to correct any
misconception the Court may have with respect to the basis for his Court of Claims action
and his intent to file it." (Oct. 29, 2020 Appellant's Mot. for Leave at 3.) Appellee filed a
memorandum in opposition on November 9, 2020.
II. ASSIGNMENT OF ERROR
{¶ 12} Appellant assigns the following as trial court error:
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT IN FAVOR OF THE OHIO STATE UNIVERSITY
BOARD OF TRUSTEES ON THE BASIS THAT DR. CROCE'S
POSITION AS DEPARTMENT CHAIR WAS AT-WILL AND
COULD BE TERMINATED WITHOUT FOLLOWING THE
PROCEDURE SET FORTH IN OHIO ADM. CODE § 3335-3-
35(B).
III. LEGAL ANALYSIS
{¶ 13} Before we address appellant's sole assignment of error, we must first resolve
the outstanding motions. Appellant filed a motion for leave to file instanter a sur-reply to
appellee's reply brief in response to its motion to dismiss arguing that he did not anticipate
appellee stating he suffered no monetary harm and asked to supplement his brief with
information regarding appellant's monetary damages that resulted from his removal as
Department Chair. Appellant provided as exhibits a copy of the proposed sur-reply, an
affidavit3, and a copy of a complaint in the Court of Claims.
{¶ 14} After careful review of the record, we deny appellant's motion for leave to file
instanter a sur-reply to appellee's motion to dismiss. Our review is confined to the record
as it existed at the time the trial court rendered judgment. Hughes v. Hughes, 10th Dist.
No. 19AP-865, 2020-Ohio-5026, ¶ 20, citing Leiby v. Univ. of Akron, 10th Dist. No. 05AP-
1281, 2006-Ohio-2831, ¶ 7. Here, appellant attempts to supplement the record with a new
3The affidavit submitted by appellant was "[s]worn to and subscribed" in the presence of the notary public on
"the 28th day of October." While no year was provided in the affidavit, appellant has asserted damages from
2020. As such, the only logical conclusion is that this affidavit was written after the trial court ruled on
appellee's motion for summary judgment.
No. 20AP-14 5
affidavit and copy of his complaint filed in the Ohio Court of Claims. These exhibits are
outside the record and cannot be considered. Moreover, even if we were to take into
consideration appellant's complaint in the Court of Claims, it would have no bearing in our
resolution of this case as appellant's requested remedy is limited to declaratory judgment
and injunctive relief. Accordingly, we deny appellant's motion for leave to file instanter a
sur-reply and will disregard it in our consideration of this case.
{¶ 15} Next, appellee argues that appellant's appeal should be dismissed as the
dispute is now moot. We agree.
{¶ 16} As a general matter, this court will not resolve issues that are deemed moot.
" 'The doctrine of mootness is rooted in the "case" or "controversy" language of Section 2,
Article III of the United States Constitution and in the general notion of judicial restraint.' "
Bradley v. Ohio Dept. of Job and Family Svcs. 10th Dist. No. 10AP-567, 2011-Ohio-1388,
¶ 11, quoting James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 791 (1991). It is well-
established law in Ohio that a court does not have jurisdiction over a moot question. Id. An
action is deemed moot when "they are or have become fictitious, colorable, hypothetical,
academic or dead. The distinguishing characteristic of such issues is that they involve no
actual genuine, live controversy, the decision of which can definitely affect existing legal
relations." (Internal quotations omitted.) Doran v. Heartland Bank, 10th Dist. No. 16AP-
586, 2018-Ohio-1811, ¶ 12. " 'It is not the duty of a court to decide purely academic or
abstract questions.' " Id. at ¶ 13, quoting Keller at 791. When an appeal is deemed moot, the
moving party is entitled to dismissal as a matter of right. Id., citing Lund v. Portsmouth
Local Air Agency, 10th Dist. No. 14AP-60, 2014-Ohio-2741, ¶ 6, citing United States v. W.T.
Grant Co., 345 U.S. 629, 632 (1953).
{¶ 17} In the case sub judice, appellant sought declaratory and injunctive relief
regarding his removal as the Department Chair, a four-year term starting from
October 2016 through September 2020. Appellant has not alleged that he is entitled to a
subsequent four-year term. According the complaint, appellant sought to enjoin appellee
from removing him as Department Chair until appellee complies with Ohio Adm.Code
3335-5-04. Even construing the facts in favor of appellant, the 2016 term expired on
No. 20AP-14 6
October 1, 2020. As there is no longer any genuine controversy regarding whether appellee
should be enjoined from removing appellant as Department Chair the matter is moot.4
{¶ 18} Appellant argues even if the case is moot, this court should consider the legal
issues in this case as both exceptions to the mootness doctrine are applicable. We disagree.
{¶ 19} The Supreme Court of Ohio has acknowledged two exceptions to the
mootness doctrine. First, a reviewing court may address a case that is moot if the issue or
topic is capable of repetition yet evading review. In re Appeal of Suspension of Huffer from
Circleville High School, 47 Ohio St.3d 12 (1989). The "capable of repetition, yet evading
review" exception "applies only in exceptional circumstances in which the following two
factors are both present: (1) the challenged action is too short in its duration to be fully
litigated before its cessation or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action again." State ex rel. Calvary v.
Upper Arlington, 89 Ohio St.3d 229, 231 (2000), citing Spencer v. Kemna, 523 U.S. 1, 17-
18 (1998).
{¶ 20} The second recognized exception is if the case "involves a matter of public or
great general interest." Huffer at 14, citing Franchise Developers, Inc. v. Cincinnati, 30
Ohio St.3d 28 (1987). The application of this exception is only used with caution and on
rare occasions. Rithy Props v. Cheeseman, 10th Dist. No. 15AP-641, 2016-Ohio-1602, ¶ 24,
citing In re L.W., 10th Dist. No. 05AP-317, 2006-Ohio-644, ¶ 12. "Generally, the invocation
of this exception remains the province of the highest court in the state, rather than the
intermediate appellate courts, whose decisions do not have binding effect over the entire
state." Rithy Props at ¶ 24, citing Althof v. Ohio State Bd. of Psychology, 10th Dist. No.
05AP-1169, 2007-Ohio-1010, ¶ 83.
{¶ 21} Appellant relies heavily on Huffer in his analysis. A brief review is instructive.
{¶ 22} In Huffer, a high school student was suspended from school for appearing
"under the influence" of alcohol at wrestling practice. The board of education affirmed the
suspension and the case was appealed to the Pickaway County Court of Common Pleas. The
trial court reversed the board of education's order suspending the student finding the policy
was unreasonable and overly broad. The appellate court affirmed the trial court's decision
4We note that today's decision takes 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.
No. 20AP-14 7
on the same grounds. The Supreme Court of Ohio granted the board's petition to hear the
matter. Before addressing the merits of the case, the Huffer court first considered whether
the matter was moot as the student had graduated from high school. The court determined
that both exceptions to the mootness doctrine applied as the issue was capable of repetition
yet evading review since a student that challenges a school board's rules will often graduate
before the case makes its way through the court system. The Huffer court also concluded
that the authority of a local school board to make rules is a matter of "great general interest."
Huffer at 14.
{¶ 23} Here, appellant argues that this case is not moot as the matter is capable of
repetition yet evade review. As set forth previously, while this is a recognized exception to
the mootness doctrine, it is not applicable in the instant case. First, the challenged action
was not too short in duration to be fully litigated. Appellant filed his complaint in December
2018. After his motion for a temporary restraining order was denied, appellant withdrew
his motion for a preliminary injunction. The case then proceeded on a regular schedule
until the trial court filed a decision and entry granting appellee's motion for summary
judgment on December 16, 2019. Appellant could have sought available remedies to
expediate the process such as requesting a stay or expedited briefing based on the facts of
the case. We also find the second element is not met as the complaining party, appellant, is
unlikely to again to be personally subject of the removal proceedings under Ohio Adm.Code
3335-3-35. Unlike the petition in Huffer, appellant is a tenured professor removed from his
position as Department Chair. This is a far more unique set of facts than a high school
student appealing a suspension. Even considering this element more broadly, the removal
of another department chair under these particular facts seems speculative. To meet the
"capable of repetition, yet evading review" exception "there must be more than a theoretical
possibility that the action will arise again. There must exist a ' "reasonable expectation" or
a "demonstrated probability" that the same controversy will recur involving the same
complaining party.' "James A. Keller v. Flaherty at 792, quoting Murphy v. Hunt, 455 U.S.
478, 482 (1982), citing Weinstein v. Bradford, 423 U.S. 147 (1975). Here, a probability of
repetition of these issues has not been sufficiently demonstrated to this court. As such, we
find appellant does not meet the first exception to the mootness doctrine.
No. 20AP-14 8
{¶ 24} We are also unpersuaded that this case is of such public importance that we
should disregard our lack of jurisdiction. While certain public employees are subject to
removal proceedings under Ohio Adm.Code 3335-3-35, the use of this exception is
generally reserved for matters of more substantial impact on our society. While we do not
minimize the importance of this case to appellant, the scope of the issues presented for
appeal are far too limited to qualify under this exception. Moreover, the invocation of
matter of public or great general interest exception generally remains in the sphere of the
highest court in the state, rather than an intermediate appellate court such as this one.
Rithy Props at ¶ 24, citing Althof at ¶ 83.
{¶ 25} Accordingly, since this case is moot, we must dismiss the appeal for lack of
jurisdiction.
IV. CONCLUSION
{¶ 26} For the foregoing reasons, we deny appellant's motion for leave to file
instanter a sur-reply to appellee's motion to dismiss, and we grant appellee's motion to
dismiss as moot. Appellant's appeal is dismissed.
Motion for leave to file instanter a sur-reply denied;
Motion to dismiss granted; appeal dismissed.
LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.
_____________