Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2015 CV 002171.
R. Walker, Redmond, Walker & Murray, (For
Kane Smith, Smith Peters & Kalail Co., L.P.A., and Sarah
E. Kutscher, Smith Peters & Kalail Co., L.P.A., (For
COLLEEN MARY OTOOLE, J.
Patricia Ruez appeals from the grant of summary judgment by
the Lake County Court of Common Pleas to the Lake County
Educational Service Center ("LCESC") in her action
for breach of contract and age discrimination. Finding no
reversible error, we affirm.
Ms. Ruez was employed by LCESC as an intervention specialist,
working with pre-school children with special needs, on an
itinerant assignment. During the 2014-2015 school year, she
worked 2.5 days per week in the Kirtland School District, and
2.5 per week in the Fairport Harbor School District.
Tippi Foley is Director of Early Childhood for LCESC. In her
affidavit in support of LCESC's motion for summary
judgment, Ms. Foley testified that school districts contract
with LCESC for services annually, and make their own
determination of the extent of services required. Ms. Foley
further testified she was informed by the Kirtland and
Fairport Harbor school districts they would require fewer
hours of preschool intervention in the 2015-2016 school year.
As a consequence, LCESC decided to cut Ms. Ruez's days
for the upcoming school year from 183 to 72. LCESC's
board voted to this effect June 2, 2015; she received the
notice June 9, 2015.
In her affidavit, Ms. Foley testified she kept looking for
extra hours for Ms. Ruez, who did not respond to texts. She
testified Ms. Ruez inquired about a full-time teaching
position which had opened, and that she responded the
position paid less than what Ms. Ruez formerly made, after
which Ms. Ruez made no further inquiry. Finally, Ms. Foley
learned in early August 2015 that Ms. Ruez had retired, and
procured replacement teachers.
Ms. Ruez filed her complaint alleging breach of contract and
age discrimination December 18, 2015. LCESC answered, and
discovery ensued. LCESC filed for summary judgment September
26, 2016, attaching the affidavits of Ms. Foley and Brian
Bontempo, Superintendent of LCESC. Ms. Ruez filed her brief
in opposition October 6, 2016, and LCESC replied October 14,
2016. By a judgment entry filed November 7, 2016, the trial
court granted LCESC's motion. It found that LCESC had not
breached its contract with Ms. Ruez. It found both that she
had failed to make a prima facie case of age discrimination,
and that LCESC had articulated a legitimate business reason
for the reduction in her hours - i.e., reduction in funding
from the school districts requiring Ms. Ruez's services.
Ms. Ruez timely noticed appeal, assigning three errors.
"Summary judgment is a procedural tool that terminates
litigation and thus should be entered with circumspection.
Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64,
66 (1993). Summary judgment is proper where (1)
there is no genuine issue of material fact remaining to be
litigated; (2) the movant is entitled to judgment as a matter
of law; and (3) it appears from the evidence that reasonable
minds can come to but one conclusion, and, viewing the
evidence in the non-moving party's favor, that conclusion
favors the movant. See e.g. Civ.R. 56(C).
"When considering a motion for summary judgment, the
trial court may not weigh the evidence or select among
reasonable inferences. Dupler v. Mansfield Journal
Co., 64 Ohio St.2d 116, 121 (1980). Rather, all doubts
and questions must be resolved in the non-moving party's
favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,
359 (1992). Hence, a trial court is required to overrule a
motion for summary judgment where conflicting evidence exists
and alternative reasonable inferences can be drawn.
Pierson v. Norfork Southern Corp., 11th Dist. No.
2002-A-0061, 2003-Ohio-6682, ¶36. In short, the central
issue on summary judgment is, 'whether the evidence
presents sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.' Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-252 (1986). On appeal, we
review a trial court's entry of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105
(1996)." (Parallel citations omitted.) Meloy v.
Circle K Store, 11th Dist. Portage No. 2012-P-0158,
Ms. Ruez's first assignment of error reads: "The
trial court erred in granting summary judgment on
Plaintiff-Appellant's breach of contract claim based on
its reasoning that the Defendant-Appellee properly suspended
Plaintiff-Appellant's contract under R.C. 3319.17."
"A contract is generally defined as a promise or set of
promises actionable upon breach. Kostelnik v.
Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, * * *, ¶
16, quoting Perlmuter Printing Co. v. Strome, Inc.
(N.D.Ohio 1976), 436 F.Supp. 409, 414. To prove a breach of
contract claim, a plaintiff must show the existence of a
contract, performance by the plaintiff, a breach by the
defendant, and damage or loss to the plaintiff. Allied
Erecting & Dismantling Co. v. Uneco Realty Co.
(2001), 146 Ohio App.3d 136, 142, * * * The construction of
written contracts is a matter of law. Long Beach Assn.,
Inc. v. Jones (1998), 82 Ohio St.3d 574, 576, * *
*." McCamoh-Hunt Ins. Agency, Inc. v. Medical Mutual
of Ohio, 7th Dist. Mahoning No. 02 CA 23,
In this case, there is no question whether a contract existed
between the parties: the only question is whether LCESC
breached it. In finding no breach, the trial court relied
partly on R.C. 3319.17, "Reduction in number of teachers
- restoration, " citing ...