COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60910 THOMAS W. JENKINS : : Plaintiff-appellant/ : Cross-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ST. EDWARD HIGH SCHOOL, ET AL.: : Defendants-appellees/ : Cross-appellants : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 125301 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: BARRY L. SWEET, ESQ. PHILLIP J. WEAVER, JR., ESQ. 22408 Lake Shore Blvd. CRONQUIST, SMITH, Euclid, Ohio 44123 MARSHALL & WEAVER 500 National City East Sixth Building 1965 East Sixth Street Cleveland, Ohio 44114 - 1 - DYKE, J.: Appellant filed a complaint in March of 1987 alleging a breach of his employment contract and negligent management against defendants-appellees, St. Edward High School and Brother William Dygert. Appellant also alleged an intentional and personal impairment of contract against Dygert. On October 17, 1988, the trial court granted defendant's motion for summary judgment on the issues of intentional tort and personal liability of Brother Dygert. The trial court also granted summary judgment in appellant's favor on the issue of appellee's failure to give him notice of eligibility to purchase insurance benefits, as required by R.C. 3923.38(C)(2). This issue was part of appellant's theory of negligent management against the appellees. The other part of appellant's theory was based on a non-statutory standard of conduct for school administration. On October 22, 1990 the trial court dismissed this second half of appellant's cause of action with prejudice for failure to state a cause of action. At the same time, the trial court also dismissed, with prejudice, Brother Dygert as a defendant. This left only the issues of breach of contract and the amount of damages to which appellant was entitled on appellee's statutory failure to notify him that he could remain with St. Edward's insurance carrier. The jury verdict was in appellant's favor. Appellant was awarded $6,258.26 plus costs. - 2 - Appellant was a school administrator at St. Edward High School in the year 1985-86. Specifically, he held the Dean of Men position. This position entailed many responsibilities, including counselling and disciplining the boys at St. Edward's. Appellant also taught one class, as did all other school administrators. Prior to becoming the Dean of Men, appellant had taught in the science department and coached several intramural sports. The practice at St. Edwards with regard to contracts was to have all staff, teachers and administrators sign a Teacher's Regular Contract by the end of April, the year preceding the school year covered by the contract. In the cases where a teacher or administrator was taking on more responsibility than a normal teaching schedule of five classes, he or she would also be given a second document in the form of a memo. This document would be signed by the principal, include the extra amount of money to be paid and also list the extra responsibility under the heading "Extracurricular." In appellant's case, the contract he signed to cover the year 1986-87 was a Teacher's Regular Contract. His second document was signed by Brother Dygert, listed an extra stipend of $5,398 and listed "Dean of Men" under "Extracurricular." This was standard practice at St. Edward's to indicate a commitment to fulfill the position of an administrator. - 3 - A short time prior to appellant's agreement to serve as Dean of Men the next year, he had requested more money to do the job. Brother Dygert had initiated some changes in the position, including the elimination of one of the staff positions directly under the Dean of Men, which would increase the responsibility of the Dean of Men for the following year. These changes were part of an effort to decrease costs due to a lower yearly enrollment at St. Edward's. Brother Dygert responded in the negative to appellant's request for an increase in pay. Appellant apparently accepted Brother Dygert's response and signed the Teacher's Regular Contract, knowing that his position for the next year was the Dean of Men. Within a month of signing the contract appellant requested a transfer back to full-time teaching. He knew that a vacancy had opened in his previous area of teaching. Brother Dygert told him that he could apply for the job. Dygert did not indicate that appellant could either take the Dean of Men position or nothing. Appellant taught that summer but did not hear whether or not he would be assigned to teach any classes in the fall. At one point, appellant submitted a request for tuition reimbursement for graduate courses in which he was enrolled, pursuant to St. Edward's policy. Brother Dygert returned the request with the typed message at the bottom that the courses would be approved for reimbursement if appellant was under contract the next year. This message did not clarify appellant's employment status. - 4 - Finally, in late July, appellant asked Brother Dygert whether or not he would get the biology teacher's position. He was told that he had not been hired in that position. On August 8, 1986, appellant asked for his employment status in writing so that he could apply for unemployment benefits. This writing indicated that appellant had resigned from his job as an administrator. Appellant worked at several different jobs over the next year. He operated a backhoe and substituted in the Cleveland School System. Appellant went to work as a school administrator in Twinsburg in August of 1987. At the time of the trial he was a principal at Lakewood High School. Appellant asserts three assignments of error and appellee asserts three cross-assignments of error. I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO PLAINTIFF'S MANIFEST PREJUDICE BY OMITTING FROM ITS JURY INSTRUCTIONS PLAINTIFF'S REQUESTED JURY INSTRUCTION THAT PLAINTIFF'S DAMAGES RECOVERABLE FOR BREACH OF EMPLOYMENT CONTRACT MAY BE MITIGATED ONLY BY WHAT HE COULD HAVE EARNED IN OTHER SIMILAR EMPLOYMENT IN THE SAME LOCALITY. Appellant's argument that the money earned from the jobs he performed before becoming assistant principal in Twinsburg should not be deducted by the jury in mitigation of his damages, is not well taken. The law in Ohio requires that one who has been wrongfully discharged must minimize his or her damages by seeking further employment. State, ex rel. v. Columbus (1979), 58 Ohio St. 2d - 5 - 260. The discharged employee is not required to accept employment which is in a different locale or dissimilar to the job he or she had previously held. State, ex rel. v. Columbus, at 264, citing James v. Allen County (1886), 44 Ohio St. 226. However, the Ohio Supreme Court has recently held that if the discharged employee does accept dissimilar employment, any income earned must be deducted in mitigation of his or her damages. [T]he usual remedy in breach of contract cases for wrongful discharge is to pay the injured party the difference between any wages due under the contract from the date of discharge until the contract term expires, and that amount is to be reduced by any wages the employee earned in subsequent employment. See, Dobbs, Law of Remedies (1973), 924-925, Section 12.25; Bramhall v. ICN Medical Laboratories, Inc. (1978), 284 Ore. 279, 586 P. 2d 1113. Worrell v. Multipress, Inc (1989), 45 Ohio St. 3d 241, 246. The Supreme Court found support for its ruling in Dobbs' Law of Remedies which states: If the employee obtains other employment after a wrongful dis- charge, he is ordinarily chargeable with the income from that employ- ment, so that his damage claims against his former employer are reduced by what he makes in his new job. This is because the wrongful discharge has ordinarily given him the free time to accept a new job, which becomes a substitute for the old. If the employee accepts a less satisfactory substitute job, he must still deduct the wages from that job from his damages claim. - 6 - Dobbs, Law of Remedies (1973), 925, Section 12.25, footnotes excluded. The trial court instructed the jury: You may decide to decrease the amount of damages recoverable if from all the facts and circumstances a reduction is warranted by way of mitigation. Mitigation of damages is defined as duty of a person to use reasonable efforts under all the circumstances to avoid loss or to lessen his damages, in this case, by seeking other employment or other means of earning income. This instruction is consistent with the law as expressed by the Ohio Supreme Court. The trial court did not error or abuse its discretion by omitting appellant's requested jury instructions. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DISMISSING AT TRIAL PLAINTIFF'S SECOND CAUSE OF ACTION FOR DAMAGES CAUSED BY DEFENDANTS' NEGLIGENT MANAGEMENT OF STATUTORY AND PROFESSIONAL PERSONNEL DUTIES. Appellant argues that his second cause of action for negligent management stated a valid cause of action. Appellant is partially correct. The statutory portion of his theory did state a valid cause of action. In fact appellant won a summary judgment motion on that issue on October 19, 1988. The appellant's argument that a cause of action exists for his theory - 7 - that appellees breached professional personnel duties owed to appellant is not well taken. The trial court dismissed the breach of professional duties portion of the second cause of action prior to trial. The lower court found that the theory did not state a cause of action. The court was not persuaded that any of the elements under appellant's second cause of action alleging breach of professional duties were separate and distinct from the consequences of the alleged breach of contract under appellant's first cause of action. This court agrees with the lower court's disposition of appellant's second cause of action. Appellant's complaint alleges at paragraph fourteen that "Defendants breached said statutory and professional management duties to Plaintiff by not scheduling him to perform teaching duties in any of the vacancies to which he is qualified to fill." This is essentially the same failure of which appellant complains in his breach of contract cause of action at paragraph nine: "On or about August 15, 1986, a biology teaching vacancy opened but in failing to perform pursuant to said employment agreement, Defendants failed to schedule Plaintiff to his lawful and contractual teaching position." The Ohio Supreme Court has held that "it is well established in Ohio that it is no tort to breach a contract, regardless of motive." Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St. 3d - 8 - 272, 276. Both parties agreed that there was a contract. Therefore, the second cause of action sounding in tort was properly dismissed. The statutory portion of appellant's second cause of action was not dismissed at trial. The issue of damages was left for the appellant to present evidence at trial. At the close of appellee's presentation of evidence the appellee moved for a directed verdict on the issue of damages arising from appellee's statutory breach. The directed verdict was granted due to appellant's failure to present the requisite proof of any damages arising from appellee's failure to notify him that he could take part in the insurance policy for a specified period of time, at his own expense. Appellant transferred to his wife's insurance policy through her employment. He failed to show that this was at any greater cost to him or that he incurred any other medical expenses that would otherwise have been covered under St. Edward's policy. This court overrules appellant's second assignment of error. The trial court's dismissal of the negligent management claim is affirmed. The trial court's grant of appellee's motion for a directed verdict on the issue of damages arising from its breach of a statutory duty is also affirmed. III THE LOWER COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING DEFENDANTS' MOTION IN LIMINE TO LIMIT TESTIMONY BY PLAINTIFF'S EXPERT WITNESS. - 9 - The earlier trial court limited the testimony of appellant's expert witness to "the nature of teaching and administrative contracts with school systems." Appellant argued that the testimony of his expert witness is necessary to prove his breach of statutory duty claim and explain the penalties involved. Appellant argues that the expert testimony was also necessary to prove his non-statutory breach of personnel management duties claims, although appellant admits that sudden dismissal of this claim rendered the testimony superfluous. From the discussion of appellee's motion in limine at the more recent trial, appellant would also have put his expert witness on to testify as a fact witness as to appellant's personal problems, including his marriage, resulting from the way his employment status was handled at St. Edward's. The court below stated that any claims based on marital difficulties, emotional distress and all similar claims would be denied. It is difficult to tell from which motion in limine appellant is appealing, the motion made at the recent trial or the motion granted by the earlier trial court to limit the expert's testimony to the "nature" of contracts in the education field. If appellant is appealing from the grant of the motion limiting testimony as to the effects of the breach of contract on appellant's personal life, the argument is not well taken. The appellee is not liable for such far reaching consequential - 10 - damages as marriage problems or emotional disturbances on the appellant's part. The law of damages for breach of an employment contract has already been expressed under the first assignment of error. Appellant is to be paid the wages due under the contract less any income he earned during the time period covered by the contract. Worrell v. Multipress, Inc., at 246. The trial court was correct to limit testimony on those irrelevant issues. If appellant is arguing against the motion granted by an earlier court in April of 1990, limiting appellant's expert's testimony to "the nature of teaching and administrative contracts with school systems," the argument is not well taken. The earlier court had already granted summary judgment on the statutory duty claim so expert testimony was not necessary on that issue. The resulting damages issue involved information which the appellant could have provided regarding additional medical or insurance expenses, which he failed to provide. Expert testimony was not necessary to explain the law or interpret the facts or the damages issue. Because the second cause of action alleging breach of professional duties was dismissed, limiting the expert's testimony to the "nature" of contracts used by educators and administrators did not affect appellant's ability to prove that point. The earlier motion in limine limiting appellant's expert testimony did not work any prejudice to appellant's presentation of his case. Any excluded - 11 - testimony would have been rendered irrelevant after the dismissal of appellant's second cause of action. Appellant's third assignment of error is overruled. The appellee raises three cross-assignments of error. I THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT TO ST. EDWARD HIGH SCHOOL ON THE BREACH OF CONTRACT CLAIM ASSERTED BY THOMAS JENKINS BECAUSE HE REFUSED TO PERFORM AS AGREED. At the close of appellant's argument the appellee moved for a directed verdict. Appellee argued that, on the breach of contract claim, reasonable minds could not differ on what the intent of the parties was because the appellant understood it to mean that he was to be the Dean of Men the next year. Appellant responded that he did not understand that the Dean of Men was the only job open to him when he signed the Teacher's Regular Contract. The court denied appellee's motion for a directed verdict because it found that there may have been a question of fact as to whether or not the memo indicating the Dean of men's stipend was part of the contract or not and whether or not the appellant was led to believe in any way that he had a choice as to whether to be Dean of Men or a full-time teacher. This court finds that the trial court correctly denied the motion for a directed verdict. - 12 - Civ. R. 50(A) governs the court's decision to grant or deny a motion for directed verdict. The rule states that a directed verdict motion should be sustained if: [T]he trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party. Construing the evidence most strongly in favor of the appellant, this court finds that reasonable minds can not come to but one conclusion adverse to the appellant. Evidence was presented at trial indicating that several former Deans of Men had returned to full-time teaching. Although evidence also demonstrated that none of these former administrators had broken their contracts to return to teaching, the fact that there existed a precedent for the transfer which appellant hoped to make is relevant to the determination of appellant's understanding when he signed the Teacher's Regular Contract. Reasonable minds could determine that appellant thought he was eligible to return to teaching even after rejecting the position of Dean of Men after signing the contract. The directed verdict motion was properly denied. Appellee's cross-assignment of error is overruled. II - 13 - THE TRIAL COURT ERRED IN OVERRULING THE SUMMARY JUDGMENT MOTION AND THE MOTIONS FOR RECONSIDERATION OF ST. EDWARD HIGH SCHOOL PERTAINING TO THE BREACH OF CONTRACT CLAIM OF THOMAS JENKINS BECAUSE HE REFUSED TO PERFORM AS AGREED. As in the previous assignment of error, appellee argues that the intention of the parties to the employment contract was clear. Appellant and appellee expected that appellant would perform the job of Dean of Men for the following year at the time the contract was signed at the end of the year. Some evidence existed, as discussed in the prior assignment of error, to create a question as to whether appellant thought that a transfer to full-time teaching was an option under the Teacher's Regular Contract. It is not clear that appellant intended to resign from employment with St. Edwards when he resigned from his position as Dean of Men. Appellee's argument that appellant was in breach because he refused to perform as agreed is not well-taken. A question remained as to what the agreement actually was; Dean of Men, only, or the possibility of transferring to full-time teaching once a position opened. The jury resolved that question when it found in favor of the appellant. The question was properly before the jury because the requirements for summary judgment had not been met. Civ. R. 56(C) states the basis for granting or denying a motion for summary judgment. Summary judgment is appropriate if the evidence shows: - 14 - [T]hat there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. As the trial court noted below, genuine issues of fact remained as to the parties' understanding of the contract. Reasonable minds could have come to different conclusions from the evidence presented. The trial court properly allowed the issues to go to the jury rather than directing a verdict or granting appellee's motion for summary judgment. The appellee's second cross-assignment of error is overruled. III THE TRIAL COURT ERRED IN OVERRULING THE OBJECTION OF ST. EDWARD HIGH SCHOOL TO THE JURY INSTRUCTION GIVEN BY THE TRIAL COURT. Appellee argues that instructions should have been given to the jury to the effect that appellant "had no right to dictate to the school the functions he desired to perform." The objection to the trial court's failure to provide this instruction was properly made under Civ. R. 51(A) to preserve the issue on appeal. - 15 - This court finds the instruction to be an accurate statement of the law, but not necessarily applicable to this case. It is well established that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St. 2d 287, 75 O.O. 2d 331, 348 N.E. 2d 135. However, the corollary of this maxim is also true. Ordinarily requested instructions should be given if they are correct statements of the law applicable to the facts in this case and reasonable minds might reach the conclusion sought by the instruction. Markus & Palmer, Trial Handbook for Ohio Lawyers (3 Ed. 1991), 860, Section 36.2. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St. 3d 585, 591. For the trial court to give the jury this instruction would be prejudicial to the appellant. There was evidence presented which indicated that the appellant requested a transfer to full- time teaching. A jury instruction stating that an employee may not dictate his or her duties implies that the appellant was doing just that. No evidence was presented to support the assertion that appellant dictated anything to Brother Dygert, the principal. To the contrary, much evidence was presented to portray Brother Dygert as a principal who had a "take it or leave it" attitude. He was not the type of man to whom an employee would dictate anything. The jury instruction would be misleading and prejudicial given the state of the facts as presented at trial. - 16 - There being no evidence to support the issue of appellant's dictating his job duties, the trial court correctly excluded the requested instructions. Appellee's third cross-assignment of error is overruled. The trial court's rulings are affirmed. - 17 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN MCMANAMON, J., AND BLACKMON, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .