Ron Wine Consulting Grp. v. Wright State Univ.

LISA L. SADLER, JUDGE

Sent to S.C. Reporter 1/23/25

DECISION

LISA L. SADLER, JUDGE

I. Introduction

{¶1} Wright State University retained the services of Ron Wine (a consultant) and Ron Wine Consulting Group, LLC (Ron Wine's company) to perform certain work that benefited the operations of Wright State University (WSU), Wright State Research Institute (WSRI), and Wright State Applied Research Corporation (WSARC) n.k.a. Parallax Advanced Research Corporation. This original action stems from a dispute between Ron Wine, Ron Wine Consulting Group, LLC, and WSU about financial compensation owing to Ron Wine and Ron Wine Consulting Group, LLC, over and above financial compensation of $2.2 million previously paid by WSU to Ron Wine and Ron Wine Consulting Group, LLC for services rendered. WSARC is not a defendant in this original action.

On November 1, 2018, Plaintiffs filed a motion seeking joinder of Wright State Applied Research Corporation (WSARC) n.k.a. Parallax Advanced Research Corporation as a party in this case. The Court denied Plaintiffs' motion. Under R.C. 2743.02(E) "[t]he only defendant in original actions in the court of claims is the state." See R.C. 2743.01(A) (as used in R.C. Chapter 2743, the term "state" "means the state of Ohio, including, but not limited to, the general assembly, the supreme court, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, institutions, and other instrumentalities of the state"). Under Ohio law, in original actions filed in this Court, this Court has exclusive, original jurisdiction over certain actions against the "state," as defined in R.C. 2743.01(A) and interpreted by case law. See R.C. 2743.03(A)(1); Cameron v. Univ. of Toledo, 2014-Ohio-5587, ¶ 7 (6th Dist.).

{¶2} On motions for summary judgment, the Court previously has determined (1) that Defendant Wright State University (Defendant WSU) is entitled to summary judgment in its favor as to any individual claims asserted by Plaintiff Ron Wine and (2) that Plaintiff Ron Wine Consulting Group, LLC's claims of breach of contract (excluding any claim of a breach of a written contract) and promissory estoppel, as raised in Plaintiffs' Complaint, remained for determination at trial. A bench trial was held on June 25-27, 2024, on Plaintiff Ron Wine Consulting Group, LLC's surviving claims. Plaintiff Ron Wine Consulting Group, LLC urges in written closing arguments that, among its claims for equitable relief, is a claim for unjust enrichment. (Plaintiffs' Closing Argument, 16-17.) A claim of unjust enrichment, however, is not before the Court, as it was not pleaded in the Complaint.

In the Complaint Plaintiffs presented claims of breach of contract, breach of an implied-in-fact contract, promissory estoppel, liability for the actions of WSARC, and piercing the corporate veil of WSARC. Unjust enrichment is a quasi-contract claim, which, like a quasi-contract claim of promissory estoppel, applies in the absence of a contract. See Gevedon v. Gevedon, 2006-Ohio-2668, ¶ 21 (2d Dist.), fn. 3. To prove unjust enrichment a plaintiff "must demonstrate: (1) a benefit conferred upon the defendant; and (2) the circumstances render it unjust to permit the defendant to retain the benefit without making payment therefor." United States Health Practices v. Blake, 2001 Ohio App. LEXIS 1291, at *4-5 (10th Dist. Mar. 22, 2001), citing Natl. City Bank v. Fleming, 2 Ohio App.3d 50 (8th Dist.1981); Rice v. Wheeling Dollar Savings & Trust Co., 155 Ohio St. 391, 397 (1951).

{¶3} After carefully considering and weighing all the admitted evidence, as well as the parties' arguments, and for reasons explained below, the Court holds that Plaintiff Ron Wine Consulting Group, LLC has not proven its civil claims by the requisite degree of proof. The Court further holds that Defendant WSU is entitled to a judgment in its favor.

Admitted evidence includes in-person testimony of Plaintiff Ron Wine, in-person testimony from Dennis Andersh of WSARC, documentary evidence, and deposition testimony. At trial the depositions of Ryan D. Fendley (Plaintiffs' Exhibit 114) and David R. Hopkins, Ph.D. (Plaintiffs' Exhibit 115) were admitted into evidence. The Court makes the following rulings on the objections contained in these depositions:

Deposition of Ryan D. Fendley dated November 13, 2017: All objections are overruled.

Deposition of David R. Hopkins, Ph.D. dated June 21, 2017: All objections are either overruled or without consequence due to questions having been effectively withdrawn or rephrased.

II. Relevant Procedural History

{¶4} In September 2016 Plaintiff Ron Wine Consulting Group, LLC and Plaintiff Ron Wine (collectively "Plaintiffs") brought a civil lawsuit against Defendant WSU and Defendant Wright State Research Institute in this Court. Plaintiffs allege that, although Defendant WSU paid $2.2 million in performance-based compensation to Plaintiff Ron Wine Consulting Group, LLC; Defendant WSU nonetheless owes $4.53 million in back compensation to Plaintiff Ron Wine Consulting Group, LLC for $134.73 million in new revenues secured by Plaintiff Ron Wine. (Complaint, ¶ 10, ¶ 52.) Plaintiffs presented claims of breach of contract, breach of an implied-in-fact contract, promissory estoppel, liability for the actions of WSARC, and piercing the corporate veil of WSARC in their Complaint. (Complaint.)

{¶5} A magistrate ordered the deletion of Wright State Research Institute from the case's caption as surplusage. Defendant WSU admitted in its Answer that Wright State Research Institute is part of Wright State University. (Answer, ¶ 6.) Given Defendant WSU's admission about Wright State Research Institute, Defendant WSU is deemed to be the sole defendant in this case, notwithstanding that Defendant Wright State Research Institute has not been formally dismissed as a defendant in this case and claims against Defendant Wright State University Research Institute have not been formally dismissed.

Magistrate Order dated September 16, 2016.

Civ.R. 61 requires that, at every stage of a proceeding, a court "must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." Civ.R. 61. The Court finds that Plaintiffs' failure to formally dismiss Wright State Research Institute as a defendant or formally dismiss claims against Wright State Research Institute does not affect the substantial rights of either party in this case and, consequently, such failures constitute harmless error under Civ.R. 61. Moreover, the Court notes that, under Ohio law, the invited-error doctrine prevents Plaintiffs from taking advantage of their failure to dismiss Wright State Research Institute as a defendant or formally dismiss claims against Wright State Research Institute in this case. See State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663 (1995), citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359 (1994) ("[u]nder the invited-error doctrine, a party will not be permitted to take advantage of an error which she herself invited or induced the trial court to make").

{¶6} Due to related litigation against WSARC in the Greene County Court of Common Pleas, this case was stayed on March 24, 2017. After the case in the Greene County Court of Common Pleas was resolved, the stay of this case was vacated on September 30, 2022.

{¶7} On the parties' motions, the Court denied Plaintiffs' Motion For Partial Summary and granted, in part, and denied, in part, Defendant's Motion For Summary Judgment. The Court determined that Defendant WSU is entitled to a summary judgment in its favor as to (1) any individual claims asserted by Plaintiff Ron Wine against Defendant WSU, (2) any claim of a breach of a written contract against Defendant WSU, (3) any claim that Defendant WSU should be held liable for the actions of WSARC, and (4) any claim of piercing-the-corporate-veil.

The denial of a motion for summary judgment "generally is considered an interlocutory order that is not subject to immediate appeal." Stevens v. Ackman, 91 Ohio St.3d 182, 186 (2001). A trial court has discretion to reconsider a denial of a motion for summary judgment before a trial court enters a final judgment. Syphard v. Peterson/Accordia, 2010-Ohio-6501, ¶ 14 (7th Dist.), citing Celebrezze v. Netzley, 51 Ohio St.3d 89, 90 (1990).

{¶8} The Court determined, however, that genuine issues of material fact existed as to (1) whether an enforceable contract exists between Plaintiff Ron Wine Consulting Group, LLC and Defendant WSU, and if so, the terms of the purported contract, (2) whether Defendant WSU breached an enforceable contract with Plaintiff Ron Wine Consulting Group, LLC, and (3) whether Plaintiff Ron Wine Consulting Group, LLC is entitled to relief based on a claim of promissory estoppel, as an alternative theory of recovery. The Court concluded that Plaintiff Ron Wine Consulting Group, LLC's claims of breach of contract (excluding any claim of a breach of a written contract) and promissory estoppel, as raised in the Complaint, remained for determination at trial.

III. Plaintiff Ron Wine Consulting Group, LLC's surviving claims are litigated at a bench trial.

{¶9} At a bench trial on Plaintiff Ron Wine Consulting Group, LLC's surviving claims, Plaintiff Ron Wine Consulting Group, LLC essentially maintained that (1) Plaintiff Ron Wine agreed to provide consulting services in exchange for compensation consisting of a retainer and a 5% performance-based incentive and that (2) Defendant WSU breached the portion of the agreement that provided for a 5% performance-based incentive. Plaintiff urged that Defendant WSU owes $4.53 million in back compensation to Plaintiff Ron Wine Consulting Group, LLC for $134.73 million in new revenues secured by Plaintiff Ron Wine.

{¶10} For Defendant WSU's part, Defendant WSU generally did not dispute that it had retained the services of Plaintiffs, that Plaintiffs performed certain services, and that, through the use of purchase orders and invoices, Defendant WSU paid Plaintiff Ron Wine Consulting Group, LLC for services rendered. However, according to Defendant WSU, after it retained Plaintiffs' services, it later expressly ordered Plaintiffs to stop their work, and it paid all invoices submitted by Plaintiffs. Defendant WSU contends that it owes no additional financial compensation to Plaintiff Ron Wine Consulting Group, LLC. Defendant WSU disputes that it agreed to pay a 5% performance-based incentive as part of its agreement with Plaintiffs, but it does admit that a retainer fee was paid to Plaintiffs.

IV. Discussion

A. Plaintiff Ron Wine Consulting Group, LLC has the burden to prove its claims by the requisite degree of proof.

{¶11} The Ohio Supreme Court has explained, "The burden of proof at all times rests upon him who affirms." Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 134 (1906). Defendant WSU's general denial of Plaintiffs' claims in the Complaint has put into issue allegations in the Complaint that are necessary to establish a right to recover by Plaintiffs.

{¶12} Under Ohio law a plaintiff generally is required to prove civil claims by a preponderance of the evidence. See Merrick v. Ditzler, 91 Ohio St. 256, 260 (1915) ("[i]n the ordinary civil case the degree of proof, or the quality of persuasion as some text-writers characterize it, is a mere preponderance of the evidence"); Weishaar v. Strimbu, 76 Ohio App.3d 276, 282 (8th Dist.1991). A preponderance of the evidence "is defined as that measure of proof that convinces the judge or jury that the existence of the fact sought to be proved is more likely than its nonexistence." State ex rel. Doner v. Zody, 2011-Ohio-6117, ¶ 54. Consequently, here, Plaintiff Ron Wine Consulting Group, LLC generally is required to prove its civil claims that have survived summary judgment by a preponderance of the evidence, unless a different requisite degree of proof is required under Ohio law.

{¶13} On trial of a civil case, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The Court is the trier-of-facts in this case. See R.C. 2743.03(C)(1) ("[a] civil action against the state shall be heard and determined by a single judge"). The Court, as the trier-of-facts, is free to believe all, part, or none of the testimony of the witnesses who have appeared before it in this case. See State v. Green, 2004-Ohio-3697, ¶ 24 (10th Dist.).

B. Plaintiff Ron Wine Consulting Group, LLC has not proven by the requisite degree of proof that it and Defendant Wright State University entered into an enforceable agreement that included a 5% performance-based incentive.

{¶14} At trial Plaintiff Ron Wine Consulting Group, LLC failed to produce a written agreement between itself and Defendant WSU that memorializes that Defendant WSU agreed to compensation that included a 5% performance-based incentive. After assessing the evidence presented, the Court is not persuaded by Plaintiff Ron Wine Consulting Group, LLC's assertion that certain documentary evidence should be collectively construed as constituting an enforceable contract. The Sixth District Court of Appeals has stated,

An enforceable contract requires a meeting of the minds as to the essential terms of the contract. Id., citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). The essential terms of a contract include identity of the parties, the subject matter of the contract, and consideration. Huntington v. R.R. Wellington, Inc., 11th Dist. No. 2012-P-0035, 2012 Ohio 5935, 983 N.E.2d 941, ¶ 25. "Terms of a contract are adequate if they provide a foundation for determining whether a breach occurred and for establishing an appropriate remedy." Id.

Heath Wallace, D.D.S., LLC v. Kalniz, Choksey Dental-Ralston, Inc., 2013-Ohio-2944, ¶ 21 (6th Dist.). After the evidence is weighed, the Court finds that testimony elicited at trial and the admitted documentary evidence fails to show that there was a "meeting of the minds" (i.e., an objective manifestation of assent) in which Defendant WSU agreed to pay "a 5% performance-based incentive" as part of the compensation that it agreed to pay Plaintiff Ron Wine Consulting Group, LLC for its services. Neither does the admitted documentary evidence provide a foundation for determining whether a breach occurred or provide for determining an appropriate remedy in the event of a breach by Defendant WSU.

Black's Law Dictionary (12th Ed. 2024) defines "meeting of the minds" as "[a]ctual assent by both parties to the formation of a contract, meaning that they agree on the same terms, conditions, and subject matter." Black's Law Dictionary notes: "Although a meeting of the minds was required under the traditional subjective theory of assent, modern contract doctrine requires only objective manifestations of assent." Id.

{¶15} The Court further finds that Plaintiff Ron Wine Consulting Group, LLC's suggestion that an oral contract was formed between Plaintiff Ron Wine Consulting Group, LLC and Defendant WSU that included "a 5% performance-based incentive" is not supported by substantial credible evidence. Ohio courts have determined that a party that seeks to enforce an oral contract is required to prove the existence of the contract by clear and convincing evidence. See Chuma v. Patterson, 2023-Ohio-1128, ¶ 38 (4th Dist.); Widok v. Estate of Wolf, 2020-Ohio-5178, ¶ 54 (8th Dist.); Ramun v. Ramun, 2014- Ohio-4440, ¶ 26 (7th Dist.). In Ramun the Seventh District Court of Appeals discussed the burden of proof under Ohio law for the enforcement of an oral contract as follows:

Ohio courts have held that "[t]he burden of proof on one seeking to enforce an oral contract requires that party to prove the existence of the contract by clear and convincing evidence. 'Clear and convincing evidence' is evidence that will produce in the fact-finder's mind a firm belief or conviction as to the facts sought to be established." (Citations omitted.) Bumgarner v. Bumgarner, 4th Dist. No. 09CA22, 2010-Ohio-1894, ¶20. Ohio applies this heightened burden because oral contracts are disfavored. Busch Bros. Elevator Co. v. Unit Bldg. Servs., 190 Ohio App.3d 413, 2010-Ohio-5320, 942 N.E.2d 404, ¶6 (1st Dist.), citing Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶15.

Ramun at ¶ 26. Applying Ohio law as to the heightened burden of proof, a federal district court in Ohio has remarked: "As a result, [a plaintiff] has the burden of proving the oral contract 'by such clear and convincing oral proof as will amount in effect to a written document.' 84 Ohio Jur. 3d Specific Performance § 133." Adams v. Karl, S.D.Ohio No. 2:13-cv-894, 2016 U.S. Dist. LEXIS 172149, at *11 (Dec. 13, 2016).

{¶16} At trial, Plaintiff Ron Wine testified that, at a lunch at a Longhorn Restaurant in Beavercreek, Ohio, with WSU's then-president, David R. Hopkins, Ph.D., Dr. Hopkins suggested that WSU could pay Plaintiffs a 5% performance bonus if Plaintiffs would be willing to take a monthly retainer that was less than Plaintiffs' standard retainer. Plaintiff Ron Wine further testified that Dr. Hopkins directed him to contact Dr. Narayanan at WSU and provide Dr. Narayanan with an agreement for Dr. Narayanan to review. According to Plaintiff Ron Wine, he provided Dr. Narayanan with Plaintiffs' standard agreement with a provision requiring WSU to pay a six-month retainer and a 5% performance bonus.

{¶17} In a video-taped interview with news reporters, Plaintiff Ron Wine retreated from the position that he was guaranteed a 5% performance bonus under his company's agreement with Defendant WSU. Plaintiff Ron Wine indicated that 5% was not a "firm figure" or a figure that was "etched in stone" or "etched in a contract" and denied that he was being paid a "commission," claiming that he was to be paid for work performed "going forward." Plaintiff Ron Wine explained that he was to be paid when "money was spent." When an interviewer noted that Defendant WSU had not yet paid Ron Wine and asked whether Defendant WSU owed money to Plaintiff Ron Wine, Ron Wine replied, "I wouldn't say that." Plaintiff Ron Wine contends, however, that the interview was an "ambush;" that, at the time of the interview, an investigation was ongoing; that, at the time of the interview, newspapers were "writing horrible things;" and that during the interview reporters "peppered" him with questions and took photographs of him that "came out not looking so good."

{¶18} At trial, with respect to Plaintiff Ron Wine Consulting Group, LLC's agreement with Defendant WSU, Dennis Andersh (who became CEO of WSARC n.k.a. Parallax in May 2014 and who previously served as the Executive Director of WSRI) testified that, on many occasions, he asked Ryan Fendley (whom Andersh relied on for information) to produce Ron Wine Consulting Group, LLC's contract and, according to Andersh, Fendley responded that "we'll get it to you" or "we'll look for it, that kind of thing." Andersh testified that, after he did not receive a copy of Ron Wine Consulting Group, LLC's contract from Ryan Fendley, he asked others for a copy of Ron Wine Consulting Group, LLC's contract, but he never received a copy of it. With respect to a spreadsheet that, according to Ron Wine, documented what Defendant WSU owed to Plaintiffs, Andersh testified that he thought the spreadsheet was a "budget." Andersh acknowledged that Ron Wine informed him that Dr. Hopkins and Ron Wine had a 5% work share agreement. But, according to Andersh, although he understood that "there was some agreement," Andersh did not know what the agreement was.

{¶19} Andersh further testified that in May 2015, when he was working for WSARC, he presented Ron Wine with a standard contract that, at that time, Andersh was trying to use with all consultants. According to Andersh, in Ron Wine's case, the initial draft of the contract included a 5% work performance bonus that Andersh heard that Dr. Narayanan wanted to have included in the contract. But, according to Andersh, after WSARC's general counsel indicated that the provision was "not legitimate," the provision was removed from the contract.

{¶20} Despite testimony about a 5% performance bonus having been a point of discussion at various times, whether a provision for a 5% performance bonus actually was included in a purported oral contract between Plaintiff Ron Wine Consulting Group, LLC and Defendant WSU is the pertinent issue. The Court finds that Plaintiff Ron Wine Consulting Group, LLC has failed to prove that an oral contract that included "a 5% performance-based incentive" was formed between it and Defendant WSU by clear and convincing evidence.

{¶21} Plaintiff Ron Wine Consulting Group, LLC maintains that it had an implied-in-fact contract with Defendant WSU. Under Ohio law, in implied-in-fact contracts, the parties' meeting of the minds "is shown by the surrounding circumstances, including the conduct and declarations of the parties, that make it inferable that the contract exists as a matter of tacit understanding." Dunn v. Bruzzese, 2007-Ohio-3500, ¶ 26 (7th Dist.), citing Point E. Condominium Owners' Assn. v. Cedar House Assocs. Co., 104 Ohio App.3d 704, 713 (8th Dist.1995). An implied-in-fact contract "requires assent, but the court must construe the facts and circumstances surrounding the offer and acceptance to determine the terms of the agreement." Linder v. Am. Natl. Ins. Co., 2003-Ohio-5394, ¶ 18 (1st Dist.). See Linn v. E. C. Ross & Co., 10 Ohio 412, 414 (1841) (an implied agreement "is where the terms of the contract are not expressed between the contracting parties, but the obligations of natural justice, by reason of some legal liability, impose the payment of money or the performance of some duty, and raise a promise to that effect. In the latter case, as the law creates the duty it also provides the exception, for if the party be disabled from performance without his own default, his obligation is discharged").

In a case arising under claims of age discrimination and breach of contract, and applying Connecticut law, a federal district court has stated,

"A contract implied in fact, like an express contract, depends on actual agreement. . . . Accordingly, . . . the plaintiff ha[s] the burden of proving by a fair preponderance of the evidence that the defendant had agreed, either by words or action or conduct, to undertake some form of actual contract commitment to him under which he could not be terminated without just cause." Reynolds v. Chrysler First Commer. Corp., 40 Conn.App. 725, 730, 673 A.2d 573 (Conn. App. Ct. 1996) (internal quotations and citations omitted); see also D'Ulisse-Cupo, 202 Conn. at 211, n. 2 (implied contracts require intent to bind).

"A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties." Reynolds, 40 Conn.App. at. 730.

Raymond v. Boehringer Ingelheim Pharmaceuticals, Inc., 578 F.Supp.2d 391, 398 (D.Conn.2008).

{¶22} An implied-in-fact contract "hinges upon proof of all of the elements of a contract." City of Akron v. Baum, 2021-Ohio-4150, ¶ 15 (9th Dist.), citing Dunn v. Bruzzese, 2007-Ohio-3500, ¶ 28 (7th Dist.2007). See Kostelnik v. Helper, 2002-Ohio-2985, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976) ("'[essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration'"). The Second District Court of Appeals has stated,

To constitute a valid contract the following must be present: "* * * parties capable of contracting; a lawful subject matter; a sufficient consideration; a meeting of the minds of the parties; an actual agreement between the parties to do or to forbear doing the thing proposed in the agreement; and a compliance with the law in respect of any formal requisites which may pertain to the contract." (Footnotes omitted.) 17 Ohio Jurisprudence 3d (1980) 440-441, Contracts, Section 11.

One of the elements essential to a valid contract is a meeting of the minds of the parties as to the terms of the contract. Noroski v. Fallet (1982), 2 Ohio St.3d 77, 2 OBR 632, 442 N.E.2d 1302.

Brads v. First Baptist Church, 89 Ohio App.3d 328, 334 (2d Dist.1993). The Twelfth District Court of Appeals has discussed what constitutes the essential elements of a contract and the validity of a contract as follows:

The essential elements of a contract include "an offer, an acceptance, a meeting of the minds, an exchange of consideration, and certainty as to the essential terms of the contract." Turner v. Langenbrunner, 12th Dist. Warren No. CA2003-10-099, 2004-Ohio-2814, ¶ 13. "A valid contract must be specific as to its essential terms, such as the identity of the parties to be bound, the subject matter of the contract, the consideration to be exchanged, and the price to be paid." Baird v. Crop Prod. Servs., 12th Dist. Fayette Nos. CA2011-03-003 and CA2011-04-005, 2012-Ohio-4022, ¶ 19.

Holloway v. Moritz, 2019-Ohio-83, ¶ 17 (12th Dist.). Accord Rottersman v. Rapi-Serv Cash Sys., Inc., 1988 Ohio App. LEXIS 2882, at *7 (10th Dist. July 21, 1988), quoting Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167 (8th Dist. 1983), paragraph one of the syllabus ("'[a]n agreement is enforceable if it encompasses the essential elements of the bargain. Omission of less central subjects leaves those matters for later agreement or judicial resolution according to accepted legal principles'").

{¶23} The existence of an enforceable contract "is a prerequisite to a claim for breach of contract." Ireton v. JTD Realty Invests., LLC, 2011 -Ohio-670, ¶ 38 (12th Dist.), citing Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 108 (8th Dist. 1995). The Tenth District Court of Appeals has stated,

It is well established that a contract is not enforceable when the terms are not sufficiently definite. Isquick v. Classic Autoworks, 89 Ohio App.3d 767, 772, 627 N.E.2d 624 (8th Dist.1993) (two-page typewritten "Notes" submitted by Fuller to Isquick concerning the restoration project upon which the claim was based contained absolutely no provision concerning the extent or scope of the restoration or methods to be followed to restore the vehicles). A valid contract must be specific as to its essential terms, such as the identity of the parties to be bound, the subject

matter of the contract, and consideration. Alligood v. Procter & Gamble Co., 72 Ohio App.3d 309, 594 N.E.2d 668 (1st Dist.1991).

Phu Ta v. Chaudhry, 2016-Ohio-4944, ¶ 13 (10th Dist.)

{¶24} Plaintiff Ron Wine Consulting Group, LLC's contention that part of its agreement with Defendant WSU consisted of a 5% performance-based incentive has some support in the deposition testimony of Ryan Fendley who, according to Fendley, served for a time as business manager of WSRI and later served as the director of WSRI after Dr. Narayanan (who led WSRI on a "hands-on-basis" through 2010) was selected as Dean of WSU's College of Engineering, Computer Science. (Fendley Deposition, 10, 13-17.) Mr. Fendley testified, however, that, "because of the timing of how the contract dollars came in and everything else, it was not a straightforward X to Y sort of thing, so it required some tracking, and that fell to me, and I did that and shared that with Dr. Narayanan and Dr. Hopkins." (Fendley Deposition, 14-15.)

{¶25} Notably, however, Dr. Hopkins testified about a "work-share agreement"- not a 5% performance-based incentive-with Ron Wine Consulting Group, LLC. (Hopkins Deposition at 83.) Dr. Hopkins testified:

A. My understanding in the conversation with [former provost] Dr. Narayanan was that it was a typical way of contracting in this domain, but it was involved in how many, in hours worked and the idea would be that as capacity grew that Ron's firm could be engaged in more work or more hours.

Q. Was it a bonus based on dollars brought in the door or was it an hourly pay up to this 5 percent work share that you mentioned?

A. My understanding was it was an hourly pay up to the guideline.

Q. Okay. So if $1 million came in, Ron Wine Consulting Group wasn't entitled to 5 percent of that contract, it was entitled to do work on said contract up to 5 percent of that value, was that your general understanding?

A. Absolutely. That was my understanding in my conversations, yes.

(Hopkins Deposition at 83.)

{¶26} After Mr. Fendley's deposition testimony and Dr. Hopkins's deposition testimony are weighed and considered with other evidence presented, the Court finds that Dr. Hopkins's deposition testimony calls into question the accuracy of Mr. Fendley's testimony about Plaintiff Ron Wine Consulting Group, LLC's supposed entitlement to five percent of funds that it was able to secure on behalf of WSU, WSRI, and WSARC. The Court further finds that Plaintiff Ron Wine's testimony in which Ron Wine claims his company was supposed to be paid five percent of funds that it was able to secure on behalf of WSU, WSRI, and WSARC lacks credibility-absent a written contract between Plaintiff Ron Wine Consulting Group, LLC and Defendant WSU that specified the details of Plaintiff Ron Wine Consulting Group, LLC's arrangement with WSU, and given Plaintiff Ron Wine's testimony about his custom of requiring a written agreement from clients as part of the terms of engagement.

{¶27} Rather, the evidence shows, and the Court finds, a lack of required certainty that Plaintiff Ron Wine Consulting Group, LLC was entitled to a 5% performance-based incentive as part of its agreement with Defendant WSU, which, in addition to a retainer that Defendant WSU agreed to pay, would constitute an essential term of Plaintiff Ron Wine Consulting Group, LLC's agreement with Defendant WSU. The Court further finds no tacit understanding, as inferred by the conduct of Plaintiff Ron Wine Consulting Group, LLC and Defendant WSU, that Defendant WSU agreed to pay five percent of funds that Plaintiff Ron Wine Consulting Group, LLC secured on behalf of WSU, WSRI, or WSARC. Stated differently, after a full review, Plaintiff Ron Wine Consulting Group, LLC's claim that an implied-in-fact contract was formed between Ron Wine Consulting Group, LLC and Defendant WSU that included a 5% performance-based incentive as part of its agreement with Defendant WSU is not supported by substantial credible evidence.

{¶28} Alternatively, even if for the sake of argument an implied-in-fact contract was formed between Plaintiff Ron Wine Consulting Group, LLC and Defendant WSU (which included a 5% performance-based incentive based on revenues received from contracts that Plaintiff Ron Wine Consulting Group, LLC secured), a preponderance of the evidence shows that the revenues (upon which the alleged "5% performance-based incentive" would have been based) typically were received over the course of years. Under such circumstances, the purported implied-in-fact contract likely would run afoul of Ohio's Statute of Frauds. See REDOT Dev. of Ohio, LLC v. Waste Mgt. of Ohio, 2013-Ohio-2364, ¶ 21 (6th Dist.) ("R.C. 1335.05, the statute of frauds, prohibits the enforceability of any alleged contractual agreement of a duration exceeding one year unless the agreement is written and executed by the parties"). R.C. 1355.05 ("[n]o action shall be brought whereby to charge the defendant . . . upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized"). But see Sherman v. Haines, 73 Ohio St.3d 125, 127 (1995).

In Sherman v. Haines, 73 Ohio St.3d at 127, the Supreme Court of Ohio explained:

For over a century, the "not to be performed within one year" provision of the Statute of Frauds, in Ohio and elsewhere, has been given a literal and narrow construction. The provision applies only to agreements which, by their terms, cannot be fully performed within a year; and not to agreements which may possibly be performed within a year, thus, where the time for performance under an agreement is indefinite, or is dependent upon a contingency which may or may not happen within a year, the agreement does not fall within the Statute of Frauds. Nonamaker v. Amos (1905), 73 Ohio St. 163, 172-175, 76 N.E. 949, 951-952; Jones v. Pouch (1884), 41 Ohio St. 146; Blakeney v. Goode (1876), 30 Ohio St. 350; Randall v. Turner (1867), 17 Ohio St. 262; Robnolte v. Kohart (1947), 81 Ohio App. 1, 36 O.O. 331, 76 N.E.2d 913. See, also, Warner v. Texas & Pacific Ry. Co. (1896), 164 U.S. 418, 17 S.Ct. 147, 41 L.Ed. 495; 72 American Jurisprudence 2d (1974) 573, Statute of Frauds, Section 9; 2 Corbin on Contracts (1950) 534-535, Section 444.

{¶29} Additionally, the evidence presented shows that Plaintiff Ron Wine Consulting Group, LLC has failed to prove the element of damages, as required in a breach-of-contract claim. See Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 41 ("[a] cause of action for breach of contract requires the claimant to establish the existence of a contract, the failure without legal excuse of the other party to perform when performance is due, and damages or loss resulting from the breach"). Here, Ron Wine Consulting Group, LLC essentially seeks damages for injury to its "expectation interest," i.e., that it be placed in as a good a position as if the alleged contract had been performed. The Second District Court of Appeals has explained,

In principle, a party's expectation interest represents the actual worth of the contract to him. Restatement, supra, at Comment b. Therefore, his recovery is limited to the loss he has actually suffered by reason of the

breach, and he is not entitled to be placed in a better position than he would have been in had the breach not occurred. 22 American Jurisprudence 2d (1988) 68, Damages, Section 45.

Because damages for injury to an expectation interest are limited to actual loss, that loss must be established with reasonable certainty. Restatement, supra, at Section 352.

(Emphasis sic.) Brads v. First Baptist Church, 89 Ohio App.3d 328, 339 (2d Dist.1993).

{¶30} A preponderance of the evidence, however shows, and the Court finds, that Plaintiff Ron Wine Consulting Group, LLC failed to establish its damages with reasonable certainty, with the result that Plaintiff Ron Wine Consulting Group, LLC's breach-of-contract claim fails. See Doner v. Snapp, 98 Ohio App.3d 597, 600 (2d Dist.1994) ("[generally, a plaintiff must present evidence on several elements to successfully prosecute a breach of contract claim. Those elements include the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff).

{¶31} In short, for reasons explained above, the Court holds that Plaintiff Ron Wine Consulting Group, LLC has not proven by the requisite degree of proof that it and Defendant WSU entered into an enforceable agreement that included a 5% performance-based incentive. And, assuming for the sake of argument that an enforceable agreement that included a 5% performance-based incentive had been formed between Plaintiff Ron Wine Consulting Group, LLC and Defendant WSU, Plaintiff Ron Wine Consulting Group, LLC has failed to prove all the elements of a breach-of-contract claim related to such a purported agreement.

C. Plaintiff Ron Wine Consulting Group, LLC has not sustained its burden to show that it is entitled to relief under a theory of promissory estoppel.

{¶32} Promissory estoppel is equitable in origin. Hortman v. City of Miamisburg, 2006-Ohio-4251, ¶ 24. "The doctrine of promissory estoppel comes into play where the requisites of contract are not met, yet the promise should be enforced to avoid injustice.'" Olympic Holding Co., LLC. v. ACE Ltd., 2009-Ohio-2057, ¶ 39, quoting Doe v. Univision Television Group, Inc., 717 So.2d 63, 65 (Fla.App.1998), citing Restatement of the Law 2d, Contracts (1981) Section 90. Accord Americana Invest. Co. v. Natl. Contracting & Fixturing, LLC, 2016-Ohio-7067, ¶ 13 (10th Dist.) ("[a]s a quasi-contractual claim, promissory estoppel is an alternative theory of recovery to a breach-of-contract claim").

{¶33} In Ohio promissory estoppel generally does not apply against the state, its agencies, arms and agents, but some Ohio courts have applied promissory estoppel when the alleged promise of the state representative or agent was consistent with statutory authority. Ohio Assn. of Pub. School Emples. v. School Emples. Retirement Sys. Bd., 2004-Ohio-7101, ¶ 48, 50 (10th Dist.); see, e.g., Mechanical Contrs. Assn. of Cincinnati v. Univ. of Cincinnati, 2002-Ohio-3506, ¶ 11 (Ct. of Cl.) (finding that "if plaintiffs prove that they would have been awarded a subcontract if R.C. Chapter 153 had been followed, they may state a claim for damages under the equitable theory of promissory estoppel").

In Ohio Assn. of Pub. School Emples. v. School Emples. Retirement Sys. Bd., 2004-Ohio-7101, ¶ 48-50 (10th Dist.), the Tenth District Court of Appeals explained,

As a general rule, promissory estoppel does not apply against the state, its agencies, arms and agents. Sun Refining Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 307 ("equitable estoppel generally may not be applied against the state or its agencies"); Griffith v. J.C. Penney Co., Inc. (1986), 24 Ohio St.3d 112, 113 (Supreme Court of Ohio has "refused to apply principles of estoppel against the state, its agencies or its agents"); Gold Coast Realty, Inc. v. Bd. of Zoning Appeals of the City of Cleveland (1971), 26 Ohio St.2d 37, 39 ("It is axiomatic that courts have historically been loathe to apply doctrines of wavier, laches or estoppel to governmental entities and arms thereof.").

The reasons for this general rule are apparent. A properly functioning government cannot tolerate individual state actors binding the state to actions that exceed or contravene its authority. This court has consistently echoed the rationale for the general rule and has refused to apply promissory estoppel to contravene statutory authority. Drake v. Med. College of Ohio (1997), 120 Ohio App.3d 493, 496 ("Any representations made by the president or senior vice president would be contrary to express statutory law and, thus, promissory estoppel does not apply. * * * Mistaken advice opinions or a governmental agent do not give rise to a claim based on promissory estoppel."); Kirk Williams Co. v. Ohio State Univ. Bd. of Trustees (June 13, 1989), Franklin App. No. 88AP-697 ("It is also well-established that public officers cannot bind the government by acts outside their express authority, even though within their apparent powers * * *.").

However, some Ohio courts have applied promissory estoppel when the alleged promise of the state representative or agent was consistent with statutory authority. See, e.g., Mechanical Contrs. Assn. of Cincinnati, Inc. v. Univ. of Cincinnati, 119 Ohio Misc.2d 109, 2002-Ohio-3506, affirmed, 152 Ohio App.3d 466, 2003-Ohio1837; State v. First, Inc. (Apr. 3, 1990), Montgomery App. No. 11486. The rational for the general rule forbidding estoppel from being asserted against the state is absent when the application of estoppel would lead to compliance with the law rather than contrary to it.

{¶34} The Tenth District Court of Appeals has stated: "'A claim of promissory estoppel involves four elements: (1) there must be a clear and unambiguous promise, (2) the party to whom the promise was made must rely on it, (3) the reliance is reasonable and foreseeable, and (4) the party relying on the promise must have been injured by the reliance.'" Holt Co. v. Ohio Mach. Co., 2007-Ohio-5557, ¶ 30 (10th Dist.), quoting Patrick v. Painesville Commercial Properties, Inc., 123 Ohio App.3d 575, 583 (11th Dist. 1997), citing Doe v. Adkins, 110 Ohio App.3d 427, 437 (4th Dist. 1996).

{¶35} The Court finds that Plaintiff Ron Wine Consulting Group, LLC has failed to satisfy all required elements for a promissory-estoppel claim. First, as previously discussed, the evidence does not support a finding that Defendant WSU made a clear and unambiguous promise that it would pay a 5% performance-based incentive as part of its agreement with Plaintiff Ron Wine Consulting Group, LLC. See Deposition of David R. Hopkins, Ph.D, at 83. Second, Plaintiff Ron Wine Consulting Group, LLC's reliance on purported oral representations between Ron Wine (who, by Ron Wine's own account, is an experienced professional), and former WSU President Dr. Hopkins (or other university officials) is unreasonable, because, as a matter of statutory law, the board of trustees of Wright State University-not the president of Wright State University-is authorized to make and enter into all contracts and agreements necessary or incidental to the operation Wright State University. See R.C. 3352.04 ("[t]he board of trustees of Wright state university may make and enter into all contracts and agreements necessary or incidental to the operation of such university"). Here, based on the evidence presented, Plaintiff Ron Wine Consulting Group, LLC failed to produce a board-approved contract between Ron Wine Consulting Group, LLC and Defendant WSU that contains a 5% performance-based incentive as part of the agreement.

{¶36} Moreover, Dr. Hopkins' oral representations, on which Plaintiff Ron Wine Consulting Group, LLC claims to have relied, reasonably would have resulted in an arrangement valued at millions of dollars based on testimony about the volume of work requested by Defendant WSU. However, according to Wright State University Policy No. 9320.1 (created/revised 5/1/13) (Defendant's Exhibit G), as of May 2013, WSU's Board of Trustees delegated to WSU's president the authority to make and enter into contracts that were worth less than $500,000-not contracts valued at $500,000 or more. Pursuant to Wright State University Policy No. 9320.1,

The Board of Trustees has delegated to the president of the university, with the authority to delegate further as he/she wishes, the power to make and enter into contracts and agreements that are less than $500,000 in amount, other than contracts for sponsored research or sponsored service. Procurements of $250,000 to $500,000 are reported to the Board of Trustees but do not require prior approval. Note: Authority to enter into sponsor/service agreements regardless of the amount has been delegated to the Office of Research and Sponsored Programs.

(Emphasis sic.)

{¶37} Plaintiff Ron Wine Consulting Group, LLC's assertion that, through oral representations, Dr. Hopkins created an arrangement with Plaintiff Ron Wine Consulting Group, LLC that is valued at $500,000 or more is contrary to the delegated authority given to Dr. Hopkins under Wright State University Policy No. 9320.1. The Court concludes that, after weighing the evidence, Plaintiff Ron Wine Consulting Group LLC's claim of promissory estoppel lacks merit. See Drake v. Med. College, 120 Ohio App.3d 493, 495-496 (10th Dist.1997); Kirk Williams Co. v. Ohio State Univ. Bd. of Trustees, 1989 Ohio App. LEXIS 2383, at *15 (10th Dist. June 13, 1989), citing City of Cincinnati v. Cameron, 33 Ohio St. 336 (1878) ("[i]t is . . . well-established that public officers cannot bind the government by acts outside their express authority, even though within their apparent powers; it is only where officers of the state perform their acts within the authority delegated them that the state is bound"); Marbury v. Cent. State Univ., 2000 Ohio App. LEXIS 5815, at *9 (10th Dist. Dec. 14, 2000) ("[a]ny representations made by the president or senior vice president would be contrary to express statutory law and, thus, promissory estoppel does not apply. Further, public officers cannot bind the state by acts outside their express authority").

In Drake v. Med. College, 120 Ohio App.3d 493, 495-496 (10th Dist.1997), in overruling an assignment of error based on a claim of promissory estoppel, the Tenth District Court of Appeals stated at 496:

[T]he sole authority to approve employment contracts for MCO [Medical College of Ohio] was given to the Board of Trustees by the General Assembly. Any representations made by the President or Senior Vice President would be contrary to express statutory law and, thus, promissory estoppel does not apply. Further, public officers cannot bind the state by acts outside their express authority. Kirk Williams Co. v. Ohio State University Bd. of Trustees (June 13, 1989), 1989 Ohio App. LEXIS 2383, Franklin App. No. 88AP-697, unreported (1989 Opinions 2047, 2057), citing City of Cincinnati v. Cameron (1878), 33 Ohio St. 336. Mistaken advice or opinions of a governmental agent do not give rise to a claim based on promissory estoppel. Halluer v. Emigh (1992), 81 Ohio App.3d 312, 610 N.E.2d 1092.

{¶38} In short, for reasons explained above, the Court holds that Plaintiff Ron Wine Consulting Group, LLC has not sustained its burden to show an entitlement to relief under a theory of promissory estoppel.

V. Conclusion

{¶39} Accordingly, after carefully considering and weighing all the evidence, and after assessing the credibility of witness testimony, the Court holds that Plaintiff Ron Wine Consulting Group, LLC has not proven its civil claims, which were tried to the Court, by the requisite degree of proof for reasons set forth above. Judgment shall be rendered in favor of Defendant Wright State University.

JUDGMENT ENTRY

{¶40} For reasons set forth in the Decision filed concurrently herewith, the Court holds that, following a bench trial, Plaintiff Ron Wine Consulting Group, LLC has not proven its civil claims by the requisite degree of proof. The Court further holds that, as determined on summary judgment, Plaintiff Ron Wine has not proven his individual civil claims for reasons set forth in the Court's Decision and Judgment Entry issued on October 13, 2023.

{¶41} Judgment is rendered in favor of Defendant Wright State University. Court costs are assessed equally to Plaintiff Ron Wine and Plaintiff Ron Wine Consulting Group, LLC. The Clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.