[Cite as Kardux v. Univ. of Cincinnati, 2012-Ohio-3996.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

SEAN KARDUX 

 Plaintiff 

 v. 

UNIVERSITY OF CINCINNATI 

 Defendant 

Case No. 2011-08253 

Judge Joseph T. Clark 

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

{¶ 1} On March 1, 2012, defendant filed a motion for summary judgment pursuant 

to Civ.R. 56(B). On March 7, 2012, plaintiff filed a motion to compel discovery. On 

March 8, 2012, defendant filed a response to plaintiff’s motion to compel, and on March 

14, 2012, plaintiff filed a response to defendant’s motion for summary judgment. 

Defendant filed a reply on March 20, 2012.1

 The motions are now before the court for a 

non-oral hearing pursuant to L.C.C.R. 4. 

{¶ 2} Civ.R. 56(C) states, in part, as follows: 

{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

 1

Defendant’s March 20, 2012 motion for leave to file a reply is GRANTED instanter. 
Case No. 2011-08253 - 2 - ENTRY

minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶ 4} In 2007, plaintiff enrolled at the University of Cincinnati (UC) to study 

organizational leadership. While at UC, plaintiff obtained part-time employment as an 

administrative assistant with the student newspaper, The News Record. Shortly 

thereafter, plaintiff was promoted to the position of assistant business manager, and 

eventually to business manager. Plaintiff’s duties included assisting the newspaper’s 

advertising representatives in establishing territories and developing plans to reach out 

to potential advertisers. Plaintiff reported directly to Len Penix, director of the 

Department of Student Media. 

{¶ 5} Sometime in the beginning of 2010, plaintiff became aware of the creation 

of a new full-time business management position at the newspaper. Plaintiff explained 

that the newspaper had been historically run by student workers, with the exception of 

Penix, rather than permanent full-time staff. Plaintiff stated that when students running 

the business side of the paper would move on every few years, they would take 

valuable institutional knowledge with them and that the full-time position was designed 

to give the newspaper a more stable business model. 

{¶ 6} Plaintiff subsequently applied for the position of assistant academic director 

and was interviewed by Penix. According to plaintiff, the position was an academic 

position that did not require any work be performed during the summer months; 

however, the salary was disbursed over a 12-month period. During this time period, 

plaintiff also interviewed with CMDS construction company for a position as an assistant 

project manager. Plaintiff received offers of employment from UC on May 21, 2010 and 
Case No. 2011-08253 - 3 - ENTRY

CMDS during that same week.2 The base salary at the newspaper was $23,660, while 

CMDS offered to pay plaintiff a $45,000 salary. 

{¶ 7} Plaintiff informed Penix that he had an offer from CMDS and that the 

assistant academic director’s $23,660 salary was insufficient. According to plaintiff, 

Penix asked if plaintiff would be interested in the position “if there’s a possibility that 

[UC] could match what this construction company was offering * * *.” (Plaintiff’s 

Deposition, p. 31.) Plaintiff indicated that he would be interested “if [UC] came very 

close to [CMDS’s salary] * * *.” Id.

{¶ 8} In late May, Penix had several conversations about plaintiff’s salary with 

Mike Sonntag, a member of the planning committee which oversees the newspaper. 

Plaintiff states that he was in Penix’s office when Penix discussed the issue with 

Sonntag over the telephone. 

{¶ 9} Nevertheless, plaintiff stated that the new offer of employment was for an 

additional $15,000 contingent upon successfully meeting various goals set by Penix. 

Performance reviews would occur every 90 days to determine whether plaintiff had 

successfully accomplished the goals. If plaintiff had performed successfully, plaintiff 

would receive a $5,000 raise and a new set of goals for the next 90 days. This process 

was to repeat itself until plaintiff completed three reviews over the first 270 days of his 

employment. Plaintiff’s first set of goals included increasing revenue and profit, 

reducing expenses, streamlining processes, and building new teaming ventures with 

other departments. Plaintiff began working as the assistant academic director at the 

newspaper on June 1, 2010. 

{¶ 10} On September 15, 2010, Penix sent Sonntag a letter requesting a $5,000 

salary increase for plaintiff. In the letter, Penix listed plaintiff’s numerous 

accomplishments over the summer months and noted that plaintiff had “surpassed all 

goals and objectives set for him at a meeting held upon his hiring on June 1, 2010.”3

 

 2

See Exhibit A-1 to defendant’s motion for summary judgment. 

3

See Exhibit A-2 to defendant’s motion for summary judgment. 
Case No. 2011-08253 - 4 - ENTRY

According to plaintiff, in late September 2010, Penix was told that he lacked authority to 

offer plaintiff a $15,000 increase in salary and that no such increase would be 

forthcoming. Plaintiff subsequently resigned his employment at UC and began working 

for LexisNexis in December 2007. Plaintiff alleges breach of contract, promissory 

estoppel, and unjust enrichment. 

{¶ 11} As an initial matter, plaintiff seeks an order compelling defendant to 

answer plaintiff’s second set of interrogatories and request for production of documents. 

In its response to the motion, defendant attached supplemental discovery including 

documents responsive to each request and answers to all but two interrogatories.4

 

Defendant objected to an interrogatory asking it to “state the name of each person who 

was a contracting authority for the University of Cincinnati after 11/17/2009 setting forth 

for each such person if that person’s contracting authority was increased or remained 

unchanged.” Defendant has objected to the request stating that the request is overly 

broad, unduly burdensome, and not reasonably calculated to lead to the discovery of 

admissible evidence. 

{¶ 12} The court notes that in defendant’s answer to plaintiff’s first set of 

interrogatories, defendant denied that Sonntag is a contracting authority for UC. 

Additionally, defendant provided plaintiff with a “list of all delegates authorized to 

approve and execute contracts under 3361:10-1-06(E)(1) [and (2)] of the U.C. Board of 

Trustees bylaws: execution of instruments rules.” 

{¶ 13} Civ.R. 26(B)(1) provides, in part, “Parties may obtain discovery of any 

matter, not privileged, which is relevant to the subject matter involved in the pending 

 4

Defendant partially answered interrogatory 2 of plaintiff’s second set of interrogatories, which 

states “Please identify by name, current address, telephone number and current employment status with 

the University of Cincinnati each and every individual whom had authority to contract on behalf of the 

University of Cincinnati for employment purposes, including but not limited to salary, performance based 

pay increases, beginning April 1, 2010 through October 31, 2010.” Although defendant objected that 

such a question was overly broad, it provided plaintiff with a list of individuals responsive to such a 

question. 
Case No. 2011-08253 - 5 - ENTRY

action * * *. It is not ground for objection that the information sought will be inadmissible 

at trial if the information sought appears reasonably calculated to lead to the discovery 

of admissible evidence.” The court finds that plaintiff’s discovery requests are overly 

broad and not reasonably calculated to lead to the discovery of admissible evidence 

inasmuch at they encompass the entire university system. Accordingly, defendant’s 

objections are SUSTAINED and plaintiff’s motion to compel is DENIED. 

{¶ 14} “Generally, a breach of contract occurs when a party demonstrates the 

existence of a binding contract or agreement; the non-breaching party performed its 

contractual obligations; the other party failed to fulfill its contractual obligations without 

legal excuse; and the non-breaching party suffered damages as a result of the breach.” 

Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 108 (1995). 

{¶ 15} UC argues that Penix and Sonntag had no authority to bind UC and that 

any agreement for an additional $15,000 between plaintiff and Penix is unenforceable. 

As noted above, defendant has submitted its answer’s to plaintiff’s first set of 

interrogatories and request for production of documents wherein it denies that Sonntag 

is a contracting authority for UC. Additionally, UC relies upon R.C. 3361.03 which 

provides: “The board of trustees of the university of Cincinnati shall employ, fix the 

compensation of, and remove the president and such number of professors, teachers, 

and other employees, as may be deemed necessary. The board shall do all things 

necessary for the creation, proper maintenance, and successful and continuous 

operation of the university and may adopt and amend bylaws and rules for the conduct 

of the board and the government and conduct of the university. The board may accept 

donations of lands and moneys for the purposes of such university.” 

{¶ 16} Plaintiff relies upon UC’s Communications Board’s constitution and bylaws 

and the minutes of a November 17, 2009 meeting of the Board of Trustees for the 

proposition that Sonntag had been delegated contracting authority.5

 5

The court notes that plaintiff’s exhibits attached to its memorandum contra are not authenticated; 

however, defendant has not objected to the exhibits. 
Case No. 2011-08253 - 6 - ENTRY

{¶ 17} Section III entitled “Duties of the Communications Board” provides, in part, 

that “The Communications Board, working with the English Department and the Director 

of Journalism, has authority to recruit, hire, and supervise, evaluate and retain the 

professional Director of Student Media consistent with University rules and regulations 

and in consultations with the Senior Vice President and Provost, West Campus.”6 

However, it is not disputed that plaintiff’s position was the assistant academic director, 

not the Director of Student Media. 

{¶ 18} The minutes of the November 17, 2009, Board of Trustee’s meeting under 

the heading of Finance and Administration Committee indicates that the Board 

approved an amendment to the university rules “establishing limitations on the 

delegation of contracting authority, terminating prior delegations of contracting authority 

and increasing the signature authority dollar limits of the President and Contracting 

Officer.”7

{¶ 19} It is not disputed that plaintiff began work on June 1, 2010 and that plaintiff 

received biweekly compensation; however, plaintiff produced no written employment 

agreement, no evidence that the Board approved an employment agreement relating to 

plaintiff, and no evidence that either Penix or Sonntag had contracting authority on 

behalf of defendant. Although plaintiff, Penix, and Sonntag may have, in good faith, 

believed otherwise, R.C. 3361.03 makes it clear that only the Board and its designees 

have such authority. 

{¶ 20} It is well-settled that public officers cannot bind the state by acts beyond 

their authority. See Drake v. Medical College of Ohio, 120 Ohio App.3d 493, 495 

(1997); Hillard v. Univ. of Cincinnati, Ct. of Cl. No. 2008-07900, 2011-Ohio-1861. 

Likewise, promissory estoppel cannot be applied to contravene statutory authority. Id. 

 6

See Plaintiff’s Exhibit 9. 

7

See Plaintiff’s Exhibit 6. 
Case No. 2011-08253 - 7 - ENTRY

Accordingly, the court finds that plaintiff has failed to establish his claims of breach of 

contract and promissory estoppel. 

{¶ 21} Regarding plaintiff’s claim of unjust enrichment, plaintiff must establish that 

a benefit has been conferred by plaintiff upon defendant; that defendant had knowledge 

of the benefit; and that defendant retained the benefit under circumstances where it 

would be unjust to do so. Hummel v. Hummel, 133 Ohio St. 520, 528 (1938); DVCC, 

Inc. v. Medical College, 10th Dist. No. 05AP-237, 2006-Ohio-945, ¶26. Plaintiff claims 

that even though UC employees typically do not work during the summer, he did so on 

a voluntary basis. Plaintiff admits, however, that he was in fact paid by UC during the 

summer months. Accordingly, plaintiff’s claim of unjust enrichment must fail. 

{¶ 22} For the foregoing reasons, defendant’s motion for summary judgment is 

GRANTED and judgment is rendered in favor of defendant. All future events are 

VACATED. Court costs are assessed against plaintiff. The clerk shall serve upon all 

parties notice of this judgment and its date of entry upon the journal. 

 

 _____________________________________ 

 JOSEPH T. CLARK 

 Judge 

cc: 

 

Emily M. Simmons 

Randall W. Knutti 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Neal W. Duiker 

226 Reading Road 

Mason, Ohio 45040 

003

Filed May 8, 2012 

To S.C. Reporter August 31, 2012