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Ruez v. Lake County Educational Service Center

Court of Appeals of Ohio, Eleventh District, Lake

June 5, 2017

PATRICIA RUEZ, Plaintiff-Appellant,

         Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CV 002171.

          Gerald R. Walker, Redmond, Walker & Murray, (For Plaintiff-Appellant).

          David Kane Smith, Smith Peters & Kalail Co., L.P.A., and Sarah E. Kutscher, Smith Peters & Kalail Co., L.P.A., (For Defendant- Appellee).



         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} Ms. Ruez timely noticed appeal, assigning three errors.

         {¶7} "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).

         {¶8} "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, 2013-Ohio-2837, ¶5-6.

         {¶9} 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."

         {¶10} "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, 2003-Ohio-1221, ¶10.

         {¶11} 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 ...

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