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Chen v. Lowe

Court of Appeals of Kentucky

May 19, 2017



          BRIEF FOR APPELLANT: Joseph A. Bilby Louisville, Kentucky.

          BRIEF FOR APPELLEE: Andrew Thomas Lay Louisville, Kentucky.


          OPINION AND ORDER [1]


         Appellant, James M. Chen, brings this appeal challenging the Franklin Circuit Court's order denying his motion to dismiss. Appellee, Eric Lowe, moves this court to dismiss Chen's appeal as interlocutory. A review of the record shows that the appeal is interlocutory and must be dismissed.

         I. Background

         James Chen ("Dean Chen") was the dean of the University of Louisville's Brandeis School of Law (the "University") from 2007 to 2010. During Dean Chen's tenure, Eric Lowe ("Eric") was a student at the University. In September of 2010, Eric received notice from the University's Honor Council Committee that he was being accused of writing a term paper for another student, Dr. Christopher Grande ("Dr. Grande"), which is in violation of the University's Honor Code. Following appointment of a special prosecutor, Professor Sam Marcosson, and various forms of discovery, the Honor Council Committee held a formal hearing on October 10, 2010. The Honor Council tendered its official recommendation to Dean Chen by letter dated November 2, 2010. In the letter, the Council stated that Professor Marcosson had not presented evidence sufficient to support a finding by a preponderance of the evidence that an Honor Code violation had occurred. As such, the Council recommended no formal punishment.

         Rather than reviewing the Honor Council's recommendation and findings to make his final ruling, as is the protocol stated in the University's Student Handbook, Dean Chen chose to conduct his own investigation on the matter. On December 7, 2010, Dean Chen issued a 26-page memorandum in which he detailed the fruits of his independent investigation and ultimately came to the conclusion that both Eric and Dr. Grande had violated the Honor Code. Additionally, the memorandum notified the Honor Council that Dean Chen's investigation had uncovered evidence of further wrongdoing by Eric and Dr. Grande, and instructed the Council to initiate proceedings to determine if there was reasonable cause to believe that the students had committed other Honor Code violations. Dean Chen issued sanctions against both Eric and Dr. Grande, and ordered them to show cause as to why they should not be dismissed from the University. On December 22, 2010, Eric and Dr. Grande filed suit in Jefferson Circuit Court, seeking judicial review of Dean Chen's decision.

         Eric submitted a letter, dated January 5, 2011, to Dean Chen, pleading his case as to why he should not be dismissed from the University. Eric and Dean Chen met privately, per Eric's request, on January 10, 2011. During this meeting, Eric admitted to the extent of his involvement with Dr. Grande, which included Honor Code violations that he had not yet been charged with. Later that same day, Dean Chen went to the Honor Council and testified as to the information he had learned during his meeting with Eric. Based on the new information, the Honor Council again notified Eric that he was being investigated for Honor Code violations. Concerned about the new investigation against him, Eric requested another meeting with Dean Chen. According to Eric, during this meeting, Dean Chen assured him that, because Eric had come to him and admitted his guilt of his own volition, he would be offered a settlement agreement. Dean Chen further assured Eric that if he entered into the settlement agreement and dropped his suit against the University, he would be able to graduate from the University. Based on these assurances, Eric dismissed his case against the University. On February 22, 2011, Eric and Special Counsel for the second Honor Council investigation, Professor Kurt Metzmeir, submitted a Joint Motion to Approve Settlement Agreement to the Honor Council. The settlement agreement recommended that Eric be suspended until the beginning of the spring semester 2012.

         On March 12, 2011, the Honor Council held a formal hearing regarding the newly-discovered Honor Code violations. Approximately two weeks later, the Honor Council submitted its recommendation to Dean Chen, in which it recommended that Eric be dismissed from the University. Despite his previous assurance to Eric, Dean Chen officially adopted the Honor Council's recommendation and expelled Eric from the University on March 30, 2011. Eric appealed this decision to the University's Grievance Committee, which recommended to the Provost that Dean Chen's decision to expel Eric be affirmed. The Provost affirmed Dean Chen's decision on June 29, 2012; however, Professor Metzmeir assured Eric that he could petition the Board of Trustees for readmission to the University after three years. Eric petitioned for re-admission to the University, but this petition was denied without explanation on March 20, 2014. Eric then filed a complaint in the Franklin Circuit Court, in which he sought judicial review of the denial of his readmission and alleged damages for breach of contract, unjust enrichment, fraud, and misrepresentation. He named the University[2] and Dean Chen, both in his individual and official capacities, as defendants.

         Dean Chen moved to dismiss Eric's claims against him under CR 12.02 on May 30, 2014. In support of his motion, Dean Chen argued that he was not a party to the settlement agreement, and accordingly has no contract liability to Eric, and that Eric's claims against him are barred by official and qualified official immunity. Dean Chen additionally argued that, as he is no longer Dean of the University, he no longer has any authority to act on the promises he allegedly made to Eric. For purposes of his motion to dismiss, Dean Chen accepted all of Eric's allegations against him as true.

         By order dated June 15, 2015, the court denied Dean Chen's motion to dismiss in his individual capacity, finding that genuine issues of material fact remained "as to whether [Dean] Chen acted outside the scope of his authority as Dean by conducting his own investigation of [Eric's] conduct, by circumventing the procedures set forth in the student handbook, and by rejecting the proposed settlement agreement he had helped induce . . ." and, as such, "issues of material fact regarding Dean Chen's entitlement to [qualified] immunity." Dean Chen appealed the denial of his motion to dismiss to this Court. Eric responded by moving to dismiss Dean Chen's appeal as interlocutory. Eric's motion was ordered passed to this merits panel, so that the parties' arguments could be considered in light of a more developed record.

         II. ...

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