Whitaker v. Advantage RN, L.L.C.

Citation: 2012 Ohio 5959Docket: CA2012-04-082

Court: Ohio Court of Appeals; December 16, 2012; Ohio; State Appellate Court

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Gregory M. Whitaker filed a civil appeal against Advantage RN, LLC, its President Matthew Price, and employee Brandon Reynolds after the Butler County Area III Court granted summary judgment in favor of the defendants. Whitaker, acting pro se, had entered into a contract with ARN to work as a travel nurse at Pitt County Memorial Hospital for 13 weeks. The contract included a clause stating ARN would not guarantee the assignment if the background check or drug screening revealed derogatory information, and the traveler was responsible for meeting quality assurance standards. Additionally, if the traveler or client terminated the agreement for reasons not attributable to ARN, the traveler would need to reimburse ARN for various costs.

After failing a required Performance Based Development System (PBDS) examination on January 20, 2009, which led to Pitt Hospital terminating its agreement with ARN, Whitaker's contract was also terminated. He subsequently sought reimbursement of $1,001.96 for expenses incurred in preparation for the assignment, but ARN denied his request. Whitaker then filed a claim in small claims court, which evolved into an amended complaint alleging breach of contract, misrepresentation, and fraud, while seeking $12,168 in damages.

The court denied both parties' motions for summary judgment regarding the breach of contract claim, but granted summary judgment to ARN concerning misrepresentation and fraud. The magistrate ruled that Price and Reynolds could not be held personally liable as they acted within their employment scope, and determined there was insufficient evidence to support claims of misrepresentation or fraud.

The magistrate denied the motions for summary judgment on the breach of contract claim due to the lack of direct evidence regarding test results, finding the testimonies of Price and Reynolds as inadmissible hearsay. The magistrate emphasized the necessity for direct evidence and allowed the parties to supplement their motions. Pitt Hospital's response to an interrogatory indicated that the appellant did not meet the expectations for problem management in the PBDS test, prompting the appellant to move to vacate the magistrate's earlier ruling regarding the misrepresentation claim. The appellant argued that the PBDS test was not pass/fail, that ARN did not pay for it, that he received incorrect study materials, and that these issues were misrepresented by the appellees. However, on August 24, 2011, the magistrate denied the appellant's motion, stating that the hospital had determined the plaintiff was not a qualified candidate and that the defendants did not misrepresent anything. The court concluded that there were no genuine issues of material fact to support the plaintiff's claims and granted summary judgment for the defendants.

The appellant later filed objections, reiterating that the PBDS test was not pass/fail and claiming he had met ARN's standards for ICU nursing in North Carolina, arguing that ARN breached its contract by terminating him. On November 8, 2011, the trial court overruled these objections, maintained that Whitaker had not met the hospital's standards, and affirmed that ARN had no control over the hospital's hiring decisions. The court determined that Whitaker's failure to meet the specified standards relieved ARN of any contractual obligations, thereby granting summary judgment in favor of the appellees on all issues.

Price and Reynolds cannot be held personally liable under the contract with Whitaker as there is no evidence they acted outside their employment scope. After they moved for attorney fees and costs, Whitaker appealed the trial court's November 8, 2011 order, which was dismissed on February 6, 2012, due to unresolved issues regarding the attorney fees. Subsequently, Whitaker filed a renewed amended complaint and a second motion for summary judgment. On March 13, 2012, the trial court denied the motion for attorney fees, granted summary judgment to the appellees on the underlying complaint, and dismissed it. Whitaker then appealed, citing three assignments of error, particularly arguing that the trial court erred in granting summary judgment in his breach of contract claim. He contended that there were genuine issues of material fact regarding compliance with the contract's condition precedent related to Pitt Hospital's Quality Assurance standards. The appellate court reviews summary judgment de novo, requiring no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A condition precedent must be satisfied for the contract to be enforceable, and if not fulfilled, parties are excused from performance.

Appellant contends that test results are inadmissible hearsay because they were evaluated by PMS, Inc. consultants for Pitt Hospital, not by the hospital itself. However, the appellant fails to provide legal authority to support this claim, leading the court to decline further consideration of the issue. Additionally, while the appellant dismisses the hospital's response regarding the test results as hearsay, he simultaneously uses that response to argue that the test was not pass/fail.

Regarding allegations against Reynolds for misrepresenting himself as a registered nurse, the appellant does not clarify how this affects the material facts pertinent to ARN's contractual obligations or the appellant's compliance with contract conditions, prompting the court to disregard this issue as well.

The appellant argues that summary judgment was improperly granted on his breach of contract claim due to inconsistencies between Price's affidavit and his deposition about knowledge of the test results. However, the court finds no conflict, noting that the summary judgment decision did not rely on Price's statements concerning his knowledge of the results. Initially, the summary judgment was denied due to hearsay concerns, but the appellant later addressed this by obtaining sworn answers from Pitt Hospital, leading to the eventual granting of summary judgment.

Lastly, the appellant claims that the trial court erred by concluding the test was not pass/fail based on Pitt Hospital's interrogatory responses. The hospital clarified that assessments were conducted by PMS, Inc. and indicated that the appellant did not meet expectations following the PBDS assessment. The contract stipulated that the appellant's assignment was contingent upon meeting the hospital's Quality Assurance standards, including passing the PBDS test. The court concluded that since the appellant did not satisfy this condition, the contract was unenforceable, affirming that the hospital's determination regarding the appellant's performance was decisive, regardless of the pass/fail nature of the test.

The contract between the appellant and ARN was deemed unenforceable, leading the trial court to appropriately grant summary judgment to the appellees on the breach of contract claim on November 8, 2011. The appellant's first assignment of error was overruled. In the second assignment of error, the appellant contended that the trial court erred by denying his second motion for summary judgment, which was filed after the dismissal of his first appeal. The appellant alleged that the appellees had materially contributed to the failure of a condition precedent by providing incorrect study materials and coaching for a PBDS exam, which he claimed was for the wrong nursing discipline. He argued that the appellees' actions prevented him from passing the PBDS test, a requirement for his employment at Pitt Hospital's ICU. Legal precedent established that if a party obstructs the occurrence of a condition precedent, that condition may be excused. The evidence indicated that the appellant, a certified ER nurse with ICU experience, had signed a contract with ARN to work at Pitt Hospital, understanding that passing the PBDS test was essential to his role. ARN had provided him with study materials and coaching, as well as access to the PBDS company website for additional resources.

Allen Ackley, a coach for a travel nurse preparing for the PBDS test, provided an affidavit stating he coached the nurse on test-taking strategies to enhance critical thinking skills. Ackley conducted multiple coaching sessions with the appellant, who did not express feeling unprepared for the test. He noted that the appellant initially resisted learning the test-taking process, despite having 16 years of nursing experience. Ackley confirmed his familiarity with the PBDS test format and that all nurses at the testing site received the same test, regardless of specialty. 

In his deposition, the appellant indicated he discussed the test format and preparation with his coaches, dedicated 40 to 60 hours to study, and felt ready for the exam. However, he claimed his coaches only provided preparation relevant to the Med/Surg PBDS test and had not taken the ICU version of the test he was scheduled for. The appellant also mentioned that he received a standard study guide, but was uncertain if it pertained solely to the Med/Surg test.

The document addresses the criteria for summary judgment, emphasizing that it is appropriate when no genuine issue of material fact exists. The court must determine if the evidence allows a reasonable jury to decide in favor of the plaintiff or if the evidence overwhelmingly supports the defendants. After examining the evidence, the court concluded that it was overwhelmingly in favor of the appellees, thus granting them judgment as a matter of law. The court noted that inconsistencies between the appellant's affidavit and deposition do not create a genuine issue of material fact, citing precedent from Byrd v. Smith.

A contradictory affidavit from a movant will bar summary judgment in that party's favor unless the nonmoving party sufficiently explains the contradiction, thereby creating a genuine issue of material fact. The appellant, as the movant, could not alter his deposition through a subsequent sworn statement, as his affidavit did not indicate confusion or provide reasons for the contradiction in his deposition. The contract between the appellant and ARN stated that it was the appellant's responsibility to take and pass the PBDS test to work at Pitt Hospital. The court found no evidence that the appellees’ lack of knowledge about different PBDS exams or their provision of incorrect materials and coaching impacted the appellant's ability to perform on the test, given his qualifications as a certified ER nurse with ICU experience. The appellant did not prove that the coaching staff needed specific qualifications for effective coaching or that the appellees guaranteed his success on the test. Consequently, there was insufficient evidence to create a genuine issue of material fact regarding whether the appellees obstructed the appellant's ability to pass the PBDS test, leading to the trial court's proper grant of summary judgment in favor of the appellees.

Regarding the appellant's motion to vacate the trial court's decision, he claimed the magistrate erred by denying it based on several factors, including the lack of direct evidence he failed the test and that he studied for the wrong exam due to the appellees’ actions. Under Civ.R. 60(B), the appellant must show a meritorious claim, entitlement to relief under specified grounds, and that the motion was made within a reasonable time. The court reviews such motions under an abuse-of-discretion standard, and the magistrate denied the motion because the appellant failed to establish a genuine triable issue. Therefore, the denial was deemed appropriate, and the appellant's arguments were essentially reiterations of earlier claims. The judgment was affirmed, with concurrence from the judges.