JAMES M. CHEN APPELLANT
ERIC LOWE APPELLEE
FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD,
JUDGE ACTION NO. 14-CI-00476
FOR APPELLANT: Joseph A. Bilby Louisville, Kentucky.
FOR APPELLEE: Andrew Thomas Lay Louisville, Kentucky.
BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES.
OPINION AND ORDER 
ALLISON EMERSON JONES JUDGE
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.
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.
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.
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.
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 and Dean Chen, both in his individual and
official capacities, as defendants.
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.
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.