Newman v. Univ. of Dayton
172 N.E.3d 1122
Ohio Ct. App.2021Background
- Peter Newman, a former adjunct UD professor, filed internal, EEOC, and OCRC complaints after a 2016 conflict with a female African‑American law student; those administrative claims were dismissed.
- UD did not renew Newman’s adjunct contract in late 2016; Newman sued in federal court (Newman I, May 2017), but the district court dismissed on judicial estoppel for nondisclosure in bankruptcy; the Sixth Circuit affirmed.
- Newman filed a second federal suit (Newman II) which was dismissed without prejudice; he then filed this state action (Newman III, Jan. 31, 2019) against UD, multiple UD employees, and UD’s outside counsel (Karen Dunlevey and Jackson Lewis) asserting claims including retaliation, aiding and abetting, breach, wrongful discharge, and fraud.
- Dunlevey/Jackson Lewis moved to dismiss under Civ.R. 12(B)(6) asserting absolute judicial/litigation privilege; UD and individual employees moved for judgment on the pleadings/summary judgment asserting res judicata and privilege; Newman moved to disqualify Dunlevey/Jackson Lewis.
- Trial court granted dismissal for Dunlevey/Jackson Lewis, granted judgment for UD and employee defendants (res judicata and privilege), and denied disqualification. Newman appealed; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UD defendants’ liability is barred by res judicata (claim preclusion) | Newman: prior dismissal was not a judgment on the merits; later concedes prior judgment exists but argues other elements fail | UD: federal dismissal on judicial estoppel is a prior valid judgment; claims in state suit arise from same transaction and involve same parties/privities | Court: claim preclusion applies — most claims against UD and employees barred because they were or could have been litigated in Newman I |
| Whether litigation (judicial/quasi‑judicial) privilege bars claims based on statements made in court/OCRC proceedings | Newman: privilege limited to lawyers and to statements (not alleged "actions"); some allegations concern non‑privileged conduct | Defendants: absolute privilege protects statements by parties, witnesses, attorneys in judicial or quasi‑judicial proceedings and extends to related claims (not limited to defamation) | Court: privilege applies to statements made in judicial/quasi‑judicial proceedings and bars related claims, and extends to parties/nonlawyers when statements are pertinent to the proceedings |
| Whether claims against Dunlevey and Jackson Lewis survive dismissal under Civ.R. 12(B)(6) | Newman: trial court misapplied dismissal standard; Dunlevey exceeded any privilege (e.g., extending campus ban as action, not statement) | Dunlevey/Jackson Lewis: alleged conduct was statements in litigation or in OCRC hearings and thus absolutely privileged; any other claim (July 31, 2017 ban) is barred by res judicata | Court: dismissal affirmed — most allegations involve privileged statements; the July 31, 2017 allegation also barred by res judicata because underlying ban was previously alleged |
| Whether Dunlevey/Jackson Lewis should be disqualified as counsel | Newman: Dunlevey expected to be a fact witness creates conflict; counsel should be disqualified | Defendants: no disqualifying conflict shown | Court: denial of disqualification is moot given other rulings and is affirmed (no reversible error) |
Key Cases Cited
- Surace v. Wuliger, 25 Ohio St.3d 229 (1986) (absolute privilege protects statements reasonably related to judicial proceedings)
- Hecht v. Levin, 66 Ohio St.3d 458 (1993) (privilege applies to statements relevant and material to disciplinary or quasi‑judicial proceedings; not limited to defamation)
- Willitzer v. McCloud, 6 Ohio St.3d 447 (1983) (distinguishes privileged statements during proceedings from conduct merely connected to litigation)
- Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995) (explains res judicata/claim preclusion principles)
- O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59 (2007) (discusses elements of claim preclusion and privity)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998) (summary judgment standard cited by the court)