573 N.E.2d 217
No. 89-05988.Court of Claims of Ohio.
Decided June 12, 1990.
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John S. Marshall, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and David C. Calderhead, for defendant.
RUSSELL LEACH, Judge.
This matter came on for trial on March 14, 1990, with counsel for all parties present. The plaintiff, Randy M. Diener, D.D.S., brought this action alleging breach of contract by defendant, the Ohio State University (“OSU”). Dr. Diener claims that an agent for OSU, Dr. Morris H. Reisbick, made certain offers to him regarding his employment. Dr. Diener claims that he accepted these alleged offers and that OSU subsequently breached the purported
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agreement. Upon the completion of the presentation of the evidence at trial, the parties agreed to file post-trial briefs in lieu of oral closing arguments.
The evidence shows that Dr. Diener contacted Dr. Morris H. Reisbick, Chairman of the Department of Restorative and Prosthetic Dentistry at the OSU College of Dentistry, in October 1986 concerning a position as a faculty member. In January 1987, Dr. Diener interviewed with a variety of OSU personnel, over a two-day period, regarding such position. Among the interviewers were Dr. Reisbick and Dr. William Wallace, Dean of the College of Dentistry. The alleged misconduct in question concerns certain representations made by Dr. Reisbick which Dr. Diener claims form the terms of his employment contract in addition to those set forth in the written agreement. Specifically, Dr. Diener alleges that prior to signing his contract, Dr. Reisbick promised that his teaching responsibilities would involve virtually no contact with undergraduate dental students. Further, Dr. Diener claims that Dr. Reisbick promised that the faculty practice, which provides the College of Dentistry faculty members a place to practice dentistry, would provide additional compensation above his base salary if he chose to participate. Dr. Diener claims he was told he could easily earn $25,000 per year in the faculty practice.
Dr. Diener was later offered the job and accepted the position pursuant to a telephone conversation with Dr. Reisbick. During the conversation, Dr. Diener was informed that a written contract would be forthcoming. Subsequently, on February 2, 1987, Dean Wallace sent Dr. Diener a contract setting forth the terms of his employment. Dr. Diener signed the contract and returned it to OSU. He began his employment at the College of Dentistry on June 1, 1987 and continued until resigning on September 1, 1988. Dr. Diener now claims that the terms of the employment contract, which he accepted, were breached by his employer, OSU.
The evidence submitted at trial consistently supports OSU’s contention that it is not liable. It is undisputed that Dr. Diener was informed by Dr. Reisbick that his duties would, in the future, entail the development of a third-year maxillofacial prosthodontics post-doctorate curriculum. This curriculum would add one year to the already existing two-year prosthodontics residency. It was Dr. Diener’s understanding that this development would not entail contact with undergraduate students. However, the evidence submitted at trial clearly indicated that Dr. Diener would head up the program when it was developed in the future. Dean Wallace testified that much of Dr. Diener’s future duties were contingent on the opening of the cancer research hospital which had been delayed through no fault of OSU.
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It is apparent to the court that Dr. Diener became impatient and dissatisfied with the delay of the OSU cancer hospital and the development of the third-year maxillofacial prosthodontics post-doctorate curriculum. Dr. Diener’s impatience and dissatisfaction with the progress of the post-doctorate curriculum does not manifest a breach of contract by OSU. Representations made by Dr. Reisbick to Dr. Diener were not incorporated into plaintiff’s employment contract. Absent from the contract signed by Dr. Diener is language promising “virtually” no contact with pre-doctoral students. The contract states in pertinent part, “if there is any other pertinent information that you would like in order to avoid any misunderstanding, do not hesitate to contact me.” Dr. Diener never made such contact concerning the terms of the contract. He simply signed the contract, returned it to OSU, and accepted the terms of employment as they were set forth.
Further, Dr. Diener has failed to prove by a preponderance of the evidence that he was informed he could easily earn $25,000 per year in the faculty practice. He admits being instructed during his interview that the faculty practice program worked on a fifty-fifty split. This was further explained in the contract of employment that he signed and returned to OSU. Dr. Diener stated that he received fifty percent of his gross billings but was not given enough time to devote to the faculty practice. However, the evidence submitted at trial reflects that Dr. Diener’s teaching load was the same, if not less, than most professors, and that he was permitted to devote twenty percent of his time to the faculty practice.
Dr. Diener argued at trial that Plaintiff’s Exhibit 1, a letter written by Dr. Reisbick, is evidence that Dr. Reisbick made the alleged representation concerning faculty practice earnings to him. This letter, addressed to “Whom it may concern,” states, “Dr. Randy M. Diener has the potential to easily earn $25,000 in the Ohio State University Faculty Practice.” This letter was written months after Dr. Diener’s interview. By his own admission this letter was written as a reference for Dr. Diener in an effort to help him secure a mortgage which was necessary for the purchase of a home. The letter does not convince this court that a promise was made to Dr. Diener that he would indeed earn $25,000 per year in the faculty practice. It is only a statement of opinion or prediction that he had the potential to earn that much.
As evidenced by the testimony at trial, the intentions and understanding of the parties as to the specifics of Dr. Diener’s duties are inconsistent; consequently, there was no meeting of the minds. Dr. Diener has failed to prove by a preponderance of the evidence that Dr. Reisbick or any other OSU agent made such provisions. As such, plaintiff has not shown that defendant breached the contract between the parties. Therefore, for all the above
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reasons and based upon all the evidence submitted, judgment is hereby rendered for the defendant.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.