Ohio Appellate Reports


(19-12-2006) 2006-Ohio-6732 DR. TIMOTHY S. KNOWLES,
Plaintiff-Appellant Cross-Appellee, v. OHIO STATE
UNIVERSITY, Defendant-Appellee Cross-Appellant. Nos.
05AP-727, 05AP-739. Court of Appeals of Ohio, Tenth
District. Rendered on December 19, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Ohio Court of Claims.

Smith & Hultin, LLC, and Pamela N. Hultin; Rocky L. Coe,
for plaintiff-appellant, cross/appellee.

Jim Petro, Attorney General, Peggy Corn and Susan M.
Sullivan; Porter, Wright, Morris & Arthur LLP, Fred
Pressley and Diane C. Reichwein, for defendant-appellee,
cross appellant.



{¶ 1} On June 10, 2005, the Ohio Court of Claims
entered judgment in favor of plaintiff-appellant
cross-appellee, Dr. Timothy Knowles (“Knowles”), on his
claim for slander against
defendant-appellee/cross-appellant, The Ohio State
University (“OSU”), and in favor of OSU on Knowles’ claims
for breach of contract and libel. Knowles now appeals,
seeking reversal of the trial court’s judgment insofar as
it found in OSU’s favor on his contract and libel claims.
He also assigns error as to the amount of damages the court
awarded on his slander claim. OSU cross — appeals,
seeking reversal of the portion of the judgment resolving
Knowles’ slander claim against it.

{¶ 2} The following facts are gleaned from the
record and are undisputed and unrebutted unless
specifically noted. In the spring of 1999, Knowles was
employed as Vice President for Students and Campus Support
at Meharry Medical College in Nashville, Tennessee. Pursuant
to an application Knowles had submitted to OSU the previous
fall, Isaac Mowoe (“Mowoe”), an OSU professor of African
-American Studies and African Studies, contacted
Knowles regarding the vacant position of OSU’s Vice Provost
for the Office of Minority Affairs (“OMA”).

{¶ 3} The Vice Provost is in charge of all
operations of OMA, which include the Frank W. Hale, Jr.
Black Cultural Center, minority scholarship services,
diversity initiatives, recruitment and retention of
minority students, and the Young Scholars Program (“YSP”),
which identifies and supports first-generation
college bound minority high school students in
Ohio and provides them an opportunity to attend OSU with
financial assistance.

{¶ 4} Mowoe was the chair of the search committee,
which had been seeking a permanent Vice Provost of OMA
since 1997. Knowles made two separate interview trips to
Columbus, after which Dr. Edward Ray (“Ray”), who was then
OSU’s Vice President and Provost, offered the position to

{¶ 5} By letter dated June 9, 1999, and
countersigned by Knowles on June 15, 1999, the parties’
agreement provided, in pertinent part:

This appointment will begin August 1, 1999 and is for a
period of five years subject to the results of an annual
performance review and continued acceptable performance.
You will be eligible for reappointment to a second term
subject to a broadbased performance review toward the end
of your first term of service. Should I determine that
terminating your appointment before the end of the five-year
period is appropriate, severance pay of one
year’s cash salary will be provided.

{¶ 6} On June 12, 2000, Larry Lewellen (“Lewellen”),
OSU’s Associate Vice President of Human Resources, sent a
memorandum to Ray and to Nancy Rudd (“Rudd”), OSU’s Vice
Provost of Academic Policy and Human Resources, advising
them of reports from OMA staff and others within the
university community that Knowles exhibited a coercive and
autocratic management style, promoted conflict and failure
among his staff, and communicated poorly his vision for the
office and his expectations of each staff member as it
related to that vision.

{¶ 7} Ray informed Knowles about these complaints
and advised that, at his behest, Lewellen would conduct a
further investigation of the matter. Notwithstanding the
investigation, by letter dated June 21, 2000, Ray advised,
“[i]n order to provide for variation in increases, I have
treated a 3.5% raise as a signal of satisfactory
performance.With that in mind, I am forwarding a salary
increase for you of $5,280, or 4.00% for FY01, which will
result in a salary of $137,280 for next year.” Ray went on
to state:

I continue to believe that you can be a great success in
your position and I genuinely admire your values and your
willingness to take on tough issues. I hope that we have
both learned some lessons this year and that we can be
even more effective partners next year.

I know that this has been a particularly difficult year
in which we have contended with labor disputes,
demonstrations, public complaints about administrative
salaries and job performance, while striving to make
substantive progress on many fronts, including the
Academic Plan and the Diversity Plan. Please know how
much I have appreciated your patience, hard work and
professionalism during this period.

{¶ 8} Both Ray and Lewellen testified that most of
the language in the letter was taken from a form letter
that Ray sent to all vice provosts that year. They further
testified that Ray needed to approve the salary increase on
June 21, 2000, and could not wait until he received the
results of Lewellen’s investigation, because all salary
increase requests had to be submitted no later than June
22, 2000. Both testified that the four percent raise was a
“placeholder” to ensure that Knowles would receive that
increase if it turned out to be warranted, but that the
number could later be reduced. Knowles testified that he
considered the June 21, 2000 letter to be his annual

{¶ 9} On July 12, 2000, Lewellen reported to Ray the
results of his investigation. The next day, Ray and
Lewellen met with Knowles and advised him of the results of
the investigation. Ray told Knowles that he was being
relieved of his position as of July 31, 2000, and he could
choose to resign no later than July 21, 2000, or he would be
terminated. Plaintiff did not resign and Ray terminated him
on July 31, 2000, with one year’s salary as severance pay.

{¶ 10} On March 27, 2001, Knowles instituted this
action in the Court of Claims, asserting breach of
contract, defamation and denial of due process. Beginning
March 11, 2002, the court held a three-day trial.
After Knowles presented his case-in-chief
the court dismissed all of his claims pursuant to Civ.R.
41(B)(2). Following the issuance of findings of fact and
conclusions of law, Knowles appealed to this court, arguing
that the court erred in excluding certain evidence essential
to proof of his defamation claims, and that the court erred
in dismissing his contract claim. This court agreed with
Knowles’ position and reversed and remanded for a new
trial. See Knowles v. Ohio State Univ., 10 th Dist. No.
02AP-527, 2002-Ohio-6962 (“Knowles I”).

{¶ 11} On remand, the court held a new trial,
following which it issued a decision and judgment in favor
of OSU on Knowles’ breach of contract claim and his
libel-based defamation claim, and in favor of Knowles on
his slander-based defamation claim. The court
awarded damages to Knowles on the slander claim in the
amount of $25,025.

{¶ 12} Knowles timely appealed and advances the
following assignments of error for our review:

1 The court erred in failing to find that Provost Ray and
OSU breached the contract.

2 The court erred in finding an unreasonably low amount
of damages for the slander of Dr. Knowles.

3. The court erred in not finding the libelous releases
and publications to be false.

{¶ 13} OSU filed a notice of cross-appeal
and advances two assignments of error as follows:

1. The trial court’s finding that Dr. Ray made the
alleged defamatory statement is against the manifest
weight of the evidence.

2. The trial court’s award of damages is without any
legal or evidentiary basis.

{¶ 14} We begin with Knowles’ assignments of error.
His first assignment of error presents several legal and
factual issues related to his claim for breach of contract.
First, he argues that the parties’ contract required that
OSU have “just cause” in order to lawfully terminate him,
and that Ray did not have just cause to do so. In the
alternative, Knowles argues that even if the contract is an
“objective satisfaction” contract, the evidence does not
support that Ray’s dissatisfaction with Knowles was
reasonable or that Ray acted in good faith.

{¶ 15} The construction of a written contract is a
matter of law that we review de novo. Saunders v.
Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452,
¶ 9; Alexander v. Buckeye Pipe Line Co. (1978), 53
Ohio St.2d 241, 374 N.E.2d 146, paragraph one of the
syllabus. A court’s primary role when construing a written
contract is to ascertain and give effect to the intent of
the parties. Saunders, at ¶ 9. The intent of the
parties to a contract is presumed to reside in the language
employed in the agreement. Ibid.; DiMarco v. Shay, 154 Ohio
App.3d 141, 2003-Ohio-4685, 796 N.E.2d 572, ¶ 20.
Words will be given their ordinary meaning in a contract
unless manifest absurdity results or some other meaning is
clearly evident from the face or overall contents of the
document. Shifrin v. Forest City Enterprises, Inc. (1992),
64 Ohio St.3d 635, 638, 597 N.E.2d 499; Buckeye Pipe Line,
at paragraph two of the syllabus. The writing will be read
as a whole, and the intent of each party will be discerned
from a consideration of the whole. Foster Wheeler
Enviresponse, Inc. v. Franklin Cty. Convention Facilities
Auth. (1997), 78 Ohio St.3d 353, 361, 678 N.E.2d 519.

{¶ 16} The issue whether Knowles’ employment
contract was a “just cause” contract or a satisfaction
contract was decided in his first appeal, where we
determined that the contract is a satisfaction contract.
“The employment contract at issue contains a `satisfaction
clause,’ so that plaintiff’s continued employment was
contingent on his satisfactory performance in his position
as Vice Provost of OMA.” Knowles I, ¶ 40. “[T]he
decision of a reviewing court in a case remains the law of
that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and
reviewing levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1,
3, 11 OBR 1, 462 N.E.2d 410.

{¶ 17} Indeed, “[c]ontract clauses which make the
duty of performance of one of the parties conditional upon
his satisfaction are generally referred to as `satisfaction
clauses.’ ” Hutton v. Monograms Plus, Inc. (1992), 78 Ohio
App.3d 176, 203, 604 N.E.2d 200. In the present case, the
parties’ contract contains such a clause, to wit: “subject
to the results of an annual performance review and
continued acceptable performance[.]” Thus, as we previously
held, the parties’ contract is a satisfaction contract.

{¶ 18} Though we determined in Knowles I that the
parties’ contract is a satisfaction contract, we did not
determine whether it is a subjective or objective
satisfaction contract. “Courts have divided `satisfaction
clauses’ into two categories, subjective and objective.
Which standard applies in a given transaction is a matter
of the actual or constructive intent of the parties, which,
in turn, is a function of the express language of the
contract, or the subject matter of the contract. ” Ibid.
(Citations omitted.) See, also, Keeva J. Kekst Architects,
Inc. v. George (May 15, 1997), 8th Dist. No. 70835. The
language of the contract at issue in this case does not
expressly call for evaluation of OSU’s satisfaction either
subjectively or objectively; it contains merely a general
satisfaction clause.

{¶ 19} “Absent express contract language, courts
have looked to the nature of the contract as an indicator
of which standard governs. In these cases, there still is
no clear line of demarcation. Generally, the subjective
standard applies to contracts involving matters of
aesthetic taste, feasibility of operation, or management,
regardless of financial impact.” Id. at 184. The subjective
standard is likewise applied when the satisfaction clause
relates to matters involving fancy, personal taste, or
judgment. Id. at 181. “The objective standard of the
reasonable person is generally applied where commercial or
financial matters are involved.” Id. at 184.

{¶ 20} Here, the parties’ contract relates to
Knowles’ performance as Vice Provost of OMA. According to
Knowles, his duties in that position included managing,
directing and overseeing OMA’s operations, budget and
personnel. This contract required satisfaction as to matters
of management, operation and judgment, not matters of
commercial value or quality. Thus, we hold that the
parties’ employment contract is a subjective satisfaction

{¶ 21} Where a subjective standard is applied to
determine whether a party is “satisfied,” the test is
whether the party is actually satisfied. Id. at 181.
“Although application of a subjective standard to a
satisfaction clause would seem to give the obligor virtually
unlimited latitude to avoid his duty of performance, such
is not the case. In these situations, courts impose the
limitation that the obligor act in good faith. Thus, under
the subjective standard, the promisor can avoid the
contract as long as he is genuinely, albeit unreasonably,
dissatisfied.” Ibid.

{¶ 22} Accordingly, in the present case, OSU was
required to perform only so long as it was subjectively
satisfied with Knowles’ performance, subject to the
requirement that OSU act in good faith. The trial court
found that OSU (Ray, in particular) was indeed dissatisfied
with Knowles’ performance as Vice Provost and that OSU
acted in good faith. Resolution of Knowles’ first
assignment of error depends upon whether the trial court’s
findings in this regard are supported by competent and
credible evidence.

{¶ 23} It has long been held that judgments
supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by
a reviewing court as being against the manifest weight of
the evidence. The C.E. Morris Co. v. Foley Construction Co.
(1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578,
syllabus. With this standard in mind, we have thoroughly
reviewed the record to determine whether it contains
competent, credible evidence that Ray was indeed
dissatisfied with Knowles’ performance and that OSU
(through its agents, including Ray) acted in good faith.

{¶ 24} Knowles testified on his own behalf. He began
work under his appointment as Vice Provost on August 1,
1999, but arrived several days earlier in order to attend a
function of the YSP, which had recently come under the
auspices of OMA. According to Knowles, he was aware prior
to the commencement of his employment term that he would be
inheriting numerous institutional problems that had plagued
OMA in the recent past. Several people who interviewed him
told him about problems that existed within OMA, involving
budget, personnel and student services. Some of these
problems had precipitated a sit-in by a group of
African-American students who were protesting the
lack of communication between OMA and students, as well as
certain proposed organizational changes to OMA. Knowles
stated that the interviewers who advised him of OMA’s
problems specifically inquired how he would handle personnel
who were underqualified for their positions.

{¶ 25} He further testified that Human Resources
Consultant Tyrome Alexander (“Alexander”) told him, during
the first few days of his tenure, that several OMA
executive staff members, specifically, Tamra Minor
(“Minor”), Maurice Shipley (“Shipley”) and Rose Wilson-Hill
(“Wilson-Hill”), were overpaid and undermotivated and
that Knowles would have difficulty holding them accountable.
He testified that Alexander told him he should get rid of all
of them and start over. Knowles checked with Rudd,
who told him that Minor was not trained in the area in
which she was working.

{¶ 26} Knowles testified that in late October 1999,
when he presented Ray with a document outlining his
assessment of staffing issues, Ray told Knowles that his
assessment was on target and commended Knowles for the
completeness of his analysis and his willingness to work
closely with the Office of Human Resources. Also in October
1999, the two spoke about and agreed on specific goals for
OMA for the coming year.

{¶ 27} Knowles detailed numerous accomplishments
that he achieved during his tenure at OSU, including
organizing a “student coordinating council” by
mid-October 1999, visiting every office on campus to introduce
himself, twice meeting with the Black Faculty Council,
meeting with a group of black graduate students, holding a
staff retreat in February 2000 at the Faculty Club,
completing integration of the formerly separate business
and information technology operations of OMA and YSP,
establishing a professional staff development program to
fund seminars and conferences, meeting with Hispanic, Asian
and Native American student organizations, obtaining
participation and funding from an increased number of other
colleges for OMA’s annual Graduate/Professional School
Visitation Program, appointing a new business manager,
filling the vacant position of development officer, and
participating in drafting a report by the faculty senate
committee on ways to improve retention and graduation by

{¶ 28} Love Ali (“Ali”), who is an OSU alumnus and
was a member of the committee that interviewed and
ultimately recommended the hiring of Knowles, testified on
Knowles’s behalf. She testified that Knowles maintained
open communication with students and met with them anytime
they requested a meeting. She also stated that Knowles
formed the student advisory council, which was one of the
demands that she and other African-American
students, a group called the “African Student Union”
(“ASU”), had made during the 1998 sit-in.

{¶ 29} Ali testified that whenever she would see Ray
he would ask whether Knowles was being responsive to
students and she would respond in the affirmative, saying
that Knowles was doing a good job. Ali further testified
that Knowles was kind, receptive, and well mannered at
meetings at which she was present. Ali stated that Ray never
told her that there were any complaints or concerns with
respect to Knowles and that, if there were any concerns,
she would have expected Ray to tell her because he had
promised, after the sit-in, to communicate with

{¶ 30} However, on cross-examination she
admitted she was aware that some students had complained
about Knowles. Specifically, she was aware that some were
upset at comments Knowles made indicating he thought that
black students should not attend OSU and should instead
attend only historically black colleges and universities.
Ali also admitted she was aware that faculty and staff had
complained about Knowles to Dara Cooper, another member of
ASU. She also stated that her perception was that Ray liked
Knowles. Ali conceded that she was out of the country from
the time she graduated in Spring 2000 until July 10, 2000,
so she was unaware of any events or complaints that would
have occurred during that time period.

{¶ 31} Kim Walton (“Walton”). also testified on
Knowles’ behalf. She first met Knowles in 1999, at which
time the two discussed Knowles’ desire to plan an event
celebrating OMA’s 30th anniversary. Walton, who had planned
the event at which the two met, holds a bachelor’s degree
and a master’s degree in public administration. Knowles
ultimately hired Walton for a contract term beginning
January 2000 and ending September 2000, for the purpose of
planning the 30th anniversary celebration. During her
tenure, Walton interacted with OMA staff and attended
executive staff meetings and the February 2000 retreat.

{¶ 32} Walton testified that his immediate
subordinates frequently challenged Knowles and that staff
meetings were very tense and sometimes volatile as a
result. Despite this, Walton stated, Knowles always used an
even tone of voice at meetings, he was very detailed and
would break things down to a “child-like level”
for his staff. Walton stated that Knowles never raised his
voice and clearly stated his vision for the office at every
meeting, always asking each staff member what he or she had
done lately to further that vision. In Walton’s opinion,
members of Knowles’ staff treated him in an unprofessional
manner. She acknowledged on cross-examination that
she did not work directly with many of the key members of
Knowles’ staff, so she could not evaluate their work

{¶ 33} Laurie Johnson (“Johnson”), also testified
for Knowles. At the time of trial she was employed as the
Director of Operations at OSU’s Department of Pathology,
but Knowles hired her in February 2000 as OMA’s business
manager. Her duties included overseeing all of the basic
business operations of OMA, including payroll. She stated
that she attended OMA executive staff meetings on a
bimonthly basis. She testified that Knowles was always well
organized at staff meetings and never yelled at or demeaned
anyone. She observed that several executive staff members,
specifically, Minor, Wilson-Hill and Shipley,
would always resist and challenge Knowles by either not
completing something that he had asked them to do, or by
disagreeing with him. Johnson stated that Knowles never
asked these staff members to do anything that was not part
of their jobs.She felt that Knowles was trying to hold his
staff accountable.

{¶ 34} On cross-examination, Johnson
admitted that she worked in a different office than the
other OMA employees did and thus did not observe their
day-to-day work, and she was not present when
Knowles gave staff their work assignments.

{¶ 35} Alexander testified on behalf of OSU. Though
in a different position with OSU at the time of trial,
Alexander was, during Knowles’ tenure at the university, a
Human Resources (“HR”) Consultant in OSU’s Office of Human
Resources. As an HR consultant he provided assistance to
offices within OSU with respect to employee relations,
compensation and training. He was assigned to the office of
Student Affairs, the Wexner Center for the Arts and OMA.
His assignment to OMA began in late summer of 1998, after
the student sit-in had taken place. Alexander
played no part in hiring Knowles.