The opinion
[Cite as Saha v. Research Inst. at Nationwide Childrens Hosp., 2019-Ohio-1792.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kunal Saha, :
Plaintiff-Appellant, :
v. : No. 18AP-661
(C.P.C. No. 11CV-14336)
Research Institute at :
Nationwide Children's Hospital, (REGULAR CALENDAR)
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on May 9, 2019
On brief: Dagger, Johnston, Miller, Ogilvie & Hampson,
LLP, and D. Joe Griffith, for appellant. Argued: D. Joe
Griffith.
On brief: Vorys, Sater, Seymour and Pease LLP, Williams G.
Porter, and Daniel E. Shuey, for appellee.
Argued: William G. Porter.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Kunal Saha ("Dr. Saha"), appeals from the March 28,
2016 judgment entry of the Franklin County Court of Common Pleas granting the motion
for a protective order filed by defendant-appellee, Research Institute at Nationwide
Children's Hospital ("the Institute"), and from the August 2, 2018 judgment entry of the
Franklin County Court of Common Pleas finding judicial estoppel bars Dr. Saha's claims
against the Institute. For the following reasons, we affirm the judgments of the trial court.
No. 18AP-661 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The present appeal is the third time this court has addressed Dr. Saha's
claims arising out of his time as a jointly appointed research faculty member at the Institute
and a tenure track assistant professor at the Department of Pediatrics, College of Medicine
at The Ohio State University ("OSU").1 In Saha v. The Ohio State Univ., 10th Dist. No.
10AP-1139, 2011-Ohio-3824 ("Saha I"), and Saha v. Research Inst. at Nationwide
Children's Hosp., 10th Dist. No. 12AP-590, 2013-Ohio-4203 ("Saha II"), we set forth the
background of Dr. Saha's time with the Institute and OSU as follows:
[At OSU,] Dr. Saha's position was that of a primary
researcher. He was placed in charge of a lab and given a
support staff and post-doctoral students for his work in AIDS
research. Dr. Saha was simultaneously employed by both
OSU and the Columbus Children's Hospital as a member of
the Children's Research Institute ("CRI").
***
In December 2001, Dr. Saha travelled to India to lecture at an
AIDS conference. He was scheduled to return in a few weeks.
Dr. Saha testified that, while in India, his lawyers petitioned
the Federal Supreme Court of India to allow Dr. Saha's
criminal negligence case against his deceased wife's doctors to
proceed to trial. This was allowed by the court on the
condition that Dr. Saha attend the trial.
Dr. Saha remained in India through January and February
2002. In early March, Dr. Saha requested a leave of absence
which was approved by the OSU Board of Trustees at their
April 5, 2002 meeting.
Dr. Saha returned to Columbus at the end of April 2002. On
May 1, 2002, Dr. Saha was informed that his CRI internal
support package for his laboratory research would end
June 30, 2002.
***
Dr. Saha testified that the loss of internal support reduced his
lab staff from five or six to two or three with which he was
unable to continue with his research at the same level as
before.
Saha I at ¶ 4-12. At that point:
1While OSU is not a defendant in the present action, Dr. Saha's proceedings against OSU are pertinent to this
appeal.
No. 18AP-661 3
Dr. Saha continued his laboratory work, but the reduction in
financial support and resources "had a negative effect on [his]
overall research progress." (R. 24, Dr. Saha's Affidavit, at 1,
hereinafter "Saha Affidavit, at __.".) After a lengthy, multi-
level promotion and tenure review process, Dr. Saha was
informed on September 25, 2005, that OSU would not be
offering him tenure.
In July 2005, Dr. Saha filed a lawsuit against the Institute and
OSU in the United States District Court for the Southern
District of Ohio, Eastern Division ("[Federal] Lawsuit I"), but
the court dismissed the action on October 26, 2005 for lack of
subject-matter jurisdiction and failure to exhaust
administrative remedies. Saha v. The Ohio State Univ.,
S.D.Ohio No. 05-CV-675, 2005 U.S. Dist. LEXIS 44659
(Oct. 26, 2005). On March 13, 2006, Dr. Saha re-filed his suit
in the United States District Court ("[Federal] Lawsuit II"),
naming as defendants the Institute, OSU, and several
employees from the Institute and OSU. Saha v. The Ohio
State Univ., S.D.Ohio No. 2:06-CV-190, 2007 U.S. Dist.
LEXIS 7442 (Feb. 1, 2007). On June 28, 2006, Dr. Saha filed
an amended complaint, which named additional OSU
employees as defendants. Dr. Saha's amended allegations
against the Institute included federal claims for breach of
contract, pursuant to 42 U.S.C. 1981, violation of equal
protection and due process, pursuant to 42 U.S.C. 1983, and
race and national origin discrimination under Title VII, as
well as state law claims for unjust enrichment, intentional
infliction of emotional distress, and discrimination under R.C.
4112.99.
In its February 1, 2007 decision, the federal District Court
held that Dr. Saha's federal law claims failed to state a cause
of action against the Institute. Having dismissed all of Dr.
Saha's federal law claims, the court declined to exercise its
supplemental jurisdiction over Dr. Saha's state law claims,
dismissing those claims without prejudice. The U.S. Sixth
Circuit Court of Appeals affirmed the United States District
Court's judgment on January 9, 2008. Saha v. The Ohio State
Univ., 259 Fed.Appx. 779 (6th Cir.2008).
In early 2007, Dr. Saha filed a new lawsuit * * * in the Court
of Claims of Ohio against OSU and several OSU employees
which set forth claims for breach of contract, discrimination,
and defamation. See Saha v. The Ohio State Univ., Ct of Cl.
No. 2007-02050, 2010-Ohio-5906. The Court of Claims
found in favor of OSU and the individual defendants.
Saha II at ¶ 4-7.
No. 18AP-661 4
{¶ 3} Dr. Saha appealed the judgment of the Court of Claims of Ohio on his case
against OSU. In December 2010, while his appeal of the OSU judgment was pending before
this court, Dr. Saha filed for Chapter 13 bankruptcy with the assistance of attorney Michael
Gunner. In his bankruptcy schedule, for "[o]ther contingent and unliquidated claims of
every nature," Dr. Saha included his then-pending OSU case as a potential asset and
identified the value of his interest in the claim as zero. (Pl.'s Ex. D at 1, attached to Feb. 22,
2018 Hearing Transcript.) He did not include his wrongful death lawsuit in India, which
had been pending since 1998, an open malpractice claim he had against a former attorney,
or potential claims against the Institute. A creditors' meeting (also called a "341 Meeting")
occurred on January 19, 2011. (Tr. at 97.) Dr. Saha amended his bankruptcy schedules in
January and February 2011 and did not add his wrongful death or malpractice claims or his
claims against the Institute. His bankruptcy plan was confirmed on February 25, 2011.
{¶ 4} On August 4, 2011, this court in Saha I affirmed the Court of Claims'
judgment in favor of OSU. Three month later, on November 18, 2011, Dr. Saha filed his
complaint in the instant action alleging two claims for breach of contract against the
Institute, including a breach of contract claim based on the 2002 termination of Dr. Saha's
internal support package.2 Dr. Saha amended his bankruptcy schedules on November 29,
2011 but did not disclose his claims against the Institute or the wrongful death or
malpractice lawsuits.
{¶ 5} On December 19, 2011, the Institute filed a motion to dismiss, asserting both
judicial estoppel and res judicata applied to bar Dr. Saha's claims. Dr. Saha then amended
his bankruptcy petition in January 2012 to include the claims against the Institute and filed
a memorandum contra the Institute's motion to dismiss on January 30, 2012. In his
memorandum contra, Dr. Saha noted that "while Dr. Saha had knowledge of a potential
cause of action against [the] Institute, he had no motive to conceal that cause of action as
evidenced by his disclosure of his claim against [OSU] for the same damages." (Jan. 30,
2012 Memo. Contra at 9.) Dr. Saha specified that "since my claims against [OSU] were still
pending, I was not sure if any claims against Nationwide Children's Hospital would be re-
2 Dr. Saha later withdrew a breach of contract claim premised on alleged failure to provide 30 days' notice of
termination.
No. 18AP-661 5
filed at all as of the time of the filing of my bankruptcy." (Jan. 30, 2012 Saha Aff. at 4,
attached to Memo. Contra.)
{¶ 6} On June 19, 2012, the trial court issued a decision and entry converting the
Institute's motion to dismiss to a motion for summary judgment pursuant to Civ.R. 12(B).
The trial court then denied the motion as to judicial estoppel but held the doctrine of res
judicata applied to bar Dr. Saha's claims. Thus, the trial court granted the motion in the
Institute's favor.
{¶ 7} Both parties appealed the trial court decision. In Saha II, we found: (1) the
trial court erred in granting summary judgment in favor of the Institute based on res
judicata; and (2) the trial court did not err in declining to grant summary judgment in the
Institute's favor pursuant to the judicial estoppel doctrine since a genuine issue of material
fact remained in dispute in regard to whether Dr. Saha's failure to disclose his claim against
the Institute in his prior bankruptcy proceeding was inadvertent.
{¶ 8} On remand, the Institute moved for a protective order to limit the scope of
expert discovery and evidence that could be presented at trial to exclude "speculative"
evidence related to and damages arising out of OSU's multifaceted decision to deny tenure
to Dr. Saha and the negative professional events occurring thereafter. (Nov. 24, 2015 Mot.
at 4.) Dr. Saha filed a memorandum contra the Institute's motion for a protective order.
The trial court found certain stated damages too speculative to recover and granted the
Institute's motion for a limited protective order.
{¶ 9} In 2014, the malpractice lawsuit was dismissed. On June 8, 2015, Dr. Saha
amended his bankruptcy schedules to disclose the India claim and his October 2013
judgment in that case awarding him $800,000. Dr. Saha was discharged in bankruptcy on
December 22, 2016, and the petition was terminated on April 4, 2017.
{¶ 10} On January 26, 2018, the Institute moved to bifurcate the trial and hold a
bench hearing on judicial estoppel to specifically address the issue identified by this court
for remand: whether Dr. Saha's failure to list his claims against the Institute on bankruptcy
filings was inadvertent. The trial court granted the motion on February 6, 2018, and a
hearing on judicial estoppel was held on February 22, 2018.
{¶ 11} At the hearing, Dr. Saha testified on his own behalf and was cross-examined
by the Institute. According to Dr. Saha, when the Court of Claims dismissed his claims
No. 18AP-661 6
against the Institute due to lack of jurisdiction but retained jurisdiction over the OSU
claims, he chose not to litigate both claims at the same time for financial reasons and
because, while the basic claims of the two cases were different, if he prevailed over OSU he
could not get those same damages against the Institute. Dr. Saha testified he did not
disclose the malpractice claim since he understood the claim to be "basically nonexistent"
due to lack of malpractice insurance. (Tr. at 177.) Dr. Saha agreed he signed the bankruptcy
petition attesting to it being true and correct under penalty of perjury, and the petition did
not include his malpractice claim, his suit in India, or claims against the Institute. Dr. Saha
testified he disclosed his claims against the Institute to his attorney and said he did not read
every word on the bankruptcy petitions that he signed. According to Dr. Saha, once the
Institute filed a motion to dismiss in the instant action, he realized he made a mistake and
amended the petition to include the claims against the Institute. Dr. Saha was "not clear"
had he disclosed the claims against the Institute and had won money, that money might
have been used to pay creditors. (Tr. at 59.) However, he agreed that he signed a document
stating that if the lawsuit he did disclose (the OSU suit) was successful, the money may have
to be used to pay creditors. Dr. Saha testified after he disclosed the lawsuit against the
Institute, his bankruptcy case did not change in any way.
{¶ 12} Gunner, Dr. Saha's bankruptcy attorney, testified on behalf of the defense.
Gunner testified the mandatory orientation Dr. Saha attended would have covered the
disclosure of assets. According to Gunner, all potential claims are required to be disclosed
in the bankruptcy schedule and, ultimately, it is the responsibility of the debtor to ensure
disclosures are true and accurate. Gunner testified Dr. Saha did not disclose claims against
the Institute or his malpractice lawsuit. Dr. Saha also did not disclose to him that he had a
pending lawsuit in India but told Gunner "about a matter in India but he was to check with
counsel or someone in India and advise [Gunner] if, in fact, there was anything there that
he had to disclose on it." (Tr. at 113.) Gunner further testified if a claim arises after the
petition is filed, the debtor is required to immediately disclose those claims to the
bankruptcy court. According to Gunner, he was not aware Dr. Saha had filed the instant
action against the Institute when the November 29, 2011 amendment (that also did not
disclose the claim) was filed.
No. 18AP-661 7
{¶ 13} Gunner testified timely disclosure of all claims in a Chapter 13 case is "very
important" to evaluate whether the plan will work and result in a feasible distribution of
dividend interest to the creditors and the maximum payment to creditors, particularly
because the trustee in a Chapter 13 bankruptcy does not go after the assets separately. (Tr.
at 91.) According to Gunner, in a Chapter 13 bankruptcy, the debtor retains possession and
control of all the assets and would have to advise the trustee about claims brought over the
course of the bankruptcy plan period. While a debtor in possession is required to disclose
a potential claim, the claim would not automatically become part of the bankruptcy estate
as the debtor can argue that it was "not an asset he owned at the time of the filing within six
months." (Tr. at 133.)
{¶ 14} Gunner further testified for purposes of the bankruptcy plan, he routinely
assigns "zero" to claims that have not been reduced to judgment and leaves it up to the
trustee to inquire further about such claims and that to assign a positive value would be
based on speculation. (Tr. at 130.) Regarding the amendment that disclosed the claim
against the Institute, Gunner testified he labeled its value "unknown" since it was filed more
than six months after the petition date, and he would attempt to argue it had no value to
the estate. (Tr. at 134.) Had the claim against the Institute been disclosed in the original
filing, Gunner would likewise have place a value of "zero, $1, unknown" and attempted to
argue it was not of value to the estate. (Tr. at 134.)
{¶ 15} When asked whether the disclosure or nondisclosure of the claim would
impact the dividend paid into the plan, Gunner testified "[n]ot necessarily" since if Dr. Saha
ultimately recovered on the claim he could still try to argue it was not property of the
bankruptcy estate. (Tr. at 135.) Gunner further testified after Dr. Saha did disclose the
claims against the Institute, although the trustee could have taken action regarding the
claim, the trustee in this case did not object to the amendment, and the bankruptcy plan
was not changed in any way.
{¶ 16} During the hearing, Dr. Saha attempted to ask Gunner "[b]ased upon what
you know about Chapter 13 bankruptcy and how you put these schedules together, would
Dr. Saha have any incentive to not disclose the existence of the [Institute's] claim when he
filed the claim?" (Tr. at 136.) The trial court sustained the Institute's objection, and Gunner
did not answer that question. The following exchange then took place:
No. 18AP-661 8
[DR. SAHA'S ATTORNEY]: Well, Mr. Gunner, as Dr. Saha's
bankruptcy attorney, as a matter of fact, after Dr. Saha filed
the amended disclosure in January of 2012, did Dr. Saha
obtain any advantages as a result of that?
[INSTITUTE'S ATTORNEY]: Objection.
THE COURT: Sustained.
***
[DR. SAHA'S ATTORNEY]: We are going to proffer that
based upon the last question and that was Dr. Saha's
bankruptcy attorney as matter of fact after Dr. Saha filed the
amended disclos[ur]e in January of 2012, did Dr. Saha obtain
any advantage as a result of that, and we believe the answer
would have been no, he obtained no advantage.
(Tr. at 137-38.)
{¶ 17} Dr. Saha's attorney then was permitted to ask whether, after disclosure of the
claims against the Institute, the dividend paid into the plan changed or the plan changed in
any other way. Gunner again testified the disclosure of the claims against the Institute in
January 2012 did not ultimately alter the plan. According to Gunner, disclosure of potential
claims is required whether or not the claim actually affects the bankruptcy plan, and the
debtor is not free to choose whether or not to disclose a claim to the bankruptcy court based
on their own assessment of whether it will be to the advantage of the estate.
{¶ 18} On August 2, 2018, the trial court issued a decision concluding judicial
estoppel was necessary to preserve judicial integrity and promote full disclosure to the
bankruptcy court. In doing so, the trial court stated as findings of fact: Dr. Saha knew about
the factual basis for his claim against the Institute when he filed for bankruptcy; Dr. Saha
failed to disclose his claim against the Institute to the bankruptcy court despite being
informed of his obligation to list all contingent and unliquidated claims, which includes
potential claims and "claims of every nature"; Dr. Saha also failed to disclose two other
claims to the bankruptcy court, which negates a finding of a "[l]ack of [b]ad [f]aith" and
undermines Dr. Saha's credibility; Dr. Saha amended his bankruptcy filings numerous
times, including after he filed the instant lawsuit, but still failed to disclose the claims; Dr.
Saha received judgments in the India wrongful death lawsuit in 2011 and 2013 but failed to
disclose that to the bankruptcy court; Dr. Saha knew if he disclosed his claims, any recovery
might be allocated to his bankruptcy plan; Dr. Saha did not disclose the claims to his
No. 18AP-661 9
bankruptcy lawyer; and Dr. Saha failed to take any action to apprise the bankruptcy court
of his claim until after the research institute filed its motion to dismiss. (Aug. 2, 2018 Jgmt.
at 3, 6.)
{¶ 19} In its conclusions of law, the trial court first noted the three elements of
judicial estoppel had been met, as Dr. Saha took a contrary position under oath in a
bankruptcy proceeding and that position was accepted by the bankruptcy court. The trial
court then found Dr. Saha's failure to list his claim was not the result of mistake or
inadvertence since Dr. Saha had knowledge of the factual basis of his claim, he had a motive
to conceal his claim as a matter of law, and the "evidence fail[ed] to demonstrate a lack of
bad faith." (Aug. 2, 2018 Jgmt. at 20.) Regarding Dr. Saha's motive to conceal his claim,
the trial court stated:
As an initial matter, "motive may be inferred from
knowledge." Chrysler [Group, L.L.C. v. Dixon, 8th Dist. No.
104628], 2017-Ohio-1161, at ¶ 19 ("It is undisputed that Dixon
knew of her counterclaims against Chrysler .... Therefore, the
trial court could reasonably infer that Dixon intended to
conceal her counterclaims in the hopes of keeping any
potential proceeds to herself rather than making them part of
the bankruptcy estate."); see also Tyler [v. Fed. Express Corp.],
420 F. Supp. 2d [849 (W.D.Tenn. 2005)] at 858 (motive
established where the plaintiff "was aware of yet failed to
disclose" her claim).
* * * Knowledge aside, a motive to conceal claims from the
bankruptcy court always exists as a matter of law, since "it is
always in a Chapter 13 petitioner's interest to minimize
income and assets." Lewis v. Weyerhaeuser Co., 141 F. App'x
420, 426 (6th Cir. 2005); see also Haysbert [v. Ziadeh], 2016
Ohio App. LEXIS 2889 [(June 22, 2016)], at *5-6 ("Haysbert
had a motive to conceal her claim to minimize the assets
available for distribution to her creditors."); Greer-Burger v.
Temesi, 116 Ohio St. 3d 324 (2007) ("[I]t can be inferred that
the failure to disclose the claim was not inadvertent because
... a motive to conceal can be inferred"); Wallace [v. Johnston
Coca-Cola Bottling Group, Inc.], 2007 U.S. Dist. LEXIS 21170
[(Mar. 26, 2007)], at *6-7 ("[Plaintiff] certainly did have a
motive for concealing his claims: if he had disclosed them,
they would have become the property of his estate in
bankruptcy, and any damages received would have been used
to satisfy his debts.").
No. 18AP-661 10
* * * Here, Plaintiff, like every bankruptcy petitioner, had a
motive to minimize assets by concealing his claim against the
Research Institute. In fact, the evidence demonstrates that
Plaintiff was fully aware that if he disclosed his claim any
recovery could be used to pay creditors.
(Aug. 2, 2018 Jgmt. at 15-16.) After also analyzing whether Dr. Saha lacked bad faith, the
trial court held judicial estoppel bars Dr. Saha's claim against the Institute and dismissed
the case with prejudice.
{¶ 20} Dr. Saha filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 21} Dr. Saha assigns the following as trial court error:
[1.] The Trial Court erred in applying inferred intent to create
motive on the part of Dr. Saha in applying the doctrine of
judicial estoppel to bar Dr. Saha's claim against Appellee.
[2.] The Trial Court abused its discretion in not allowing
Attorney Gunner to testify as to whether or not Dr. Saha had
anything to gain by not disclosing the claim against the
Research Institute.
[3.] The Trial Court abused its discretion in issuing a
protective order concerning Dr. Saha's proposed evidence
relating to damages.
III. LEGAL ANALYSIS
A. Dr. Saha's First Assignment of Error
{¶ 22} In his first assignment of error, Dr. Saha argues the trial court erred in
applying inferred intent to create Dr. Saha's motive to conceal his claim under the doctrine
of judicial estoppel. For the following reasons, we disagree with Dr. Saha.
{¶ 23} As we stated in Saha II, "[t]he judicial estoppel doctrine 'precludes a party
from assuming a position in a legal proceeding inconsistent with a position taken in a prior
action.' " Id. at ¶ 14, quoting Advanced Analytics Laboratories, Inc. v. Kegler, Brown, Hill
& Ritter, L.P.A., 148 Ohio App.3d 440, 2002-Ohio-3328, ¶ 37 (10th Dist.). Judicial estoppel
" 'applies only when a party shows that his opponent: (1) took a contrary position; (2) under
oath in a prior proceeding; and (3) the prior position was accepted by the court.' " Greer-
Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, ¶ 25, quoting Griffith v. Wal-Mart
Stores, Inc., 135 F.3d 376, 380 (6th Cir.1998). "[J]udicial estoppel is an equitable doctrine
No. 18AP-661 11
that a court may invoke at its discretion." Independence v. Office of the Cuyahoga Cty.
Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 29.
{¶ 24} Because "[a] debtor seeking shelter under the bankruptcy laws must disclose
all assets, or potential assets, to the bankruptcy court," that debtor's subsequent pursuit of
an undisclosed cause of action "creates an inconsistency sufficient to warrant application
of judicial estoppel." Chrysler Group, L.L.C. v. Dixon, 8th Dist. No. 104628, 2017-Ohio-
1161, ¶ 17, 18, citing 11 U.S.C. 521. Browning Mfg. v. Mims (In re Coastal Plains, Inc.), 179
F.3d 197, 208 (5th Cir.1999) ("Viewed against the backdrop of the bankruptcy system and
the ends it seeks to achieve, the importance of this disclosure duty cannot be
overemphasized.").
{¶ 25} Judicial estoppel applies in the bankruptcy setting where "inconsistent
claims were made in bankruptcy proceedings that predated a civil action." Greer-Burger
at ¶ 25. "A cause of action is an asset that must be scheduled" under federal bankruptcy
law. Chrysler Group at ¶ 17. The debtor need not " 'know all the facts or even the legal
basis for the cause of action, rather, if the debtor has enough information * * * to suggest
that it may have a possible cause of action, then it is a "known" cause of action such that it
must be disclosed.' " Id. at ¶ 19, citing Coastal Plains at 208.
{¶ 26} However, "judicial estoppel is not appropriate when a debtor's failure to
disclose a claim in a prior bankruptcy proceeding is inadvertent" or due to a "mistake."
Saha II at ¶ 16, citing Greer-Burger at ¶ 11. In Saha II, we stated "a debtor's omission is
inadvertent where the debtor lacks knowledge of the factual basis of the undisclosed claims,
where there is no motive for concealment, or where there is an absence of bad faith."
(Internal quotations omitted.) Id. at ¶ 16.
{¶ 27} In this case, Dr. Saha does not dispute he was required to disclose the claims
against the Institute and that each of the three elements set forth in Greer-Burger have
been met. Instead, his assignment of error only challenges the "no motive for concealment"
aspect inadvertence. Id.
{¶ 28} As a preliminary issue, Dr. Saha includes in the body of his analysis
arguments which do not support reversal based on the particular assignment of error.
Specifically, Dr. Saha mentions "bad faith" once and "good faith" twice but does not explain
how bad faith supports the assignment of error before us, set forth a legally supported
No. 18AP-661 12
argument regarding bad faith, or address the trial court's specific findings and discussion
on this issue. (Appellant's Brief at 18, 23.) Likewise, Dr. Saha's arguments regarding the
evidence of his subjective intent in this case demonstrating his nondisclosure was due to
inadvertence only becomes relevant if we agree his assignment of error has merit and move
on to assess the evidence.
{¶ 29} "This court rules on assignments of error, not mere arguments." Huntington
Natl. Bank v. Burda, 10th Dist. No. 08AP-658, 2009-Ohio-1752, ¶ 21, quoting App.R.
12(A)(1)(b) (stating "a court of appeals shall * * * [d]etermine the appeal on its merits on
the assignments of error set forth in the briefs"); Williams v. Barrick, 10th Dist. No. 08AP-
133, 2008-Ohio-4592, ¶ 28 (holding appellate courts "rule[] on assignments of error only,
and will not address mere arguments"). Moreover, it is not the duty of an appellate court
to create an argument on an appellant's behalf. McKahan v. CSX Transp., Inc., 10th Dist.
No. 09AP-376, 2009-Ohio-5359, ¶ 10. Because in his assignment of error Dr. Saha
challenged only the trial court's use of inferred intent to find he had a motive to conceal his
claims from the bankruptcy court, we will consider that question alone.
{¶ 30} In support of his assignment of error, Dr. Saha argues the trial court applied
the wrong legal standard by using "a rubber stamped inferred or imputed analysis, which
fails to take into consideration the subjective intent of Dr. Saha" and erroneously "inferr[ed]
intent based upon the general and vague argument that all debtors in bankruptcy have
something to gain by not disclosing a claim." (Appellant's Brief at 16, 27.) Dr. Saha cites to
AH Quin v. Cty. of Kauai Dept. of Transp., 733 F.3d 267 (9th Cir.2013); Ryan Operations
G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3rd Cir.1996); and Browning v. Levy,
283 F.3d 761 (6th Cir.2012), for the proposition that a trial court errs by "us[ing] a
presumption of deceit" and essentially imputing a motive to conceal claims to every
bankruptcy petitioner without further inquiry, rather than considering the individual
petitioner's subjective intent. (Appellant's Brief at 23.)
{¶ 31} Generally, we review a trial court's application of the equitable doctrine of
judicial estoppel for an abuse of discretion. Independence, 2014-Ohio-4650, at ¶ 29. See
also Hoeppner v. Jess Howard Elec. Co., 150 Ohio App.3d 216, 2002-Ohio-6167, ¶ 44 (10th
Dist.) (reviewing a lower court's application of the doctrine of equitable estoppel for abuse
of discretion). However, the question of whether the trial court applied the wrong legal
No. 18AP-661 13
standard presents a question of law, which we review de novo. E.W. v. T.W., 10th Dist. No.
16AP-88, 2017-Ohio-8504, ¶ 13; Johnson v. Ohio Fair Plan Underwriting Assn., 174 Ohio
App.3d 218, 2007-Ohio-6505, ¶ 4 (10th Dist.).
{¶ 32} Ohio precedent permits a trial court to infer from the evidence of the case that
a plaintiff's failure to disclose a claim to the bankruptcy court was not inadvertent. Greer-
Burger, 2007-Ohio-6442, at ¶ 29 ("a motive to conceal can be inferred"); Chrysler Group,
2017-Ohio-1161, at ¶ 19 ("[m]otive may be inferred from knowledge"). "When reviewing
potential motive, the relevant inquiry is intent at the time of non-disclosure." Love v. Tyson
Foods, Inc., 677 F.3d 258, 263 (5th Cir.2012), quoting Robinson v. Tyson Foods, Inc., 595
F.3d 1269, 1276 (11th Cir.2010).
{¶ 33} In this case, the trial court stated Dr. Saha, "like every bankruptcy petitioner,
had a motive to minimize assets by concealing his claim" because "a motive to conceal
claims from the bankruptcy court always exists as a matter of law." (Aug. 2, 2018 Jgmt. at
15.) Case law supports this position. The Sixth Circuit has repeatedly found "[i]t is always
in a Chapter 13 petitioner's interest to minimize income and assets." (Internal quotations
omitted.) Lewis v. Weyerhaeuser Co., 141 F.Appx. 420, 426 (6th Cir.2005); White v.
Wyndham Vacation Ownership, Inc., 617 F.3d 472, 479 (6th Cir.2010). Furthermore, in
Greer-Burger, the Supreme Court of Ohio inferred a plaintiff had a motive to conceal a
claim on her Chapter 13 bankruptcy schedule of assets since such concealment would
permit her to personally recover on the claim. Id. at ¶ 24.
{¶ 34} Regardless, in this case, the trial court found Dr. Saha had a motive to conceal
his claims against the Institute not only because bankruptcy petitioners always have a
motive to minimize assets but also because "the evidence demonstrates" such motive.
(Aug. 2, 2018 Jgmt. at 15.) The trial court judgment specifically notes the evidence
demonstrated Dr. Saha himself was fully aware if he disclosed his claim, any recovery could
be used to pay creditors. This reference corresponds to the trial court's finding of fact Dr.
Saha "acknowledged in writing in connection with his bankruptcy that any recovery in the
one lawsuit he did disclose (the lawsuit against OSU) might be allocated for use in his
bankruptcy plan," and, therefore, he knew disclosure of his other claims could result in
recovery on those claims being allocated to the plan. (Aug. 2, 2018 Jgmt. at 8.) Dr. Saha
has not challenged this finding of fact. Thus, contrary to Dr. Saha's argument in support of
No. 18AP-661 14
his assignment of error, the trial court in this case did not simply infer Dr. Saha had a motive
to conceal his claims based on a flat rule that all debtors in bankruptcy have a motive to not
disclose claims. As such, the premise supporting Dr. Saha's first assignment of error is
contrary to the record of the case.
{¶ 35} Considering all the above, we find the trial court did not err in applying
inferred intent to find Dr. Saha had a motive to conceal his claim against the Institute.
Therefore, Dr. Saha's assignment of error lacks merit.
{¶ 36} Accordingly, we overrule Dr. Saha's first assignment of error.
B. Dr. Saha's Second Assignment of Error
{¶ 37} In his second assignment of error, Dr. Saha contends the trial court abused
its discretion in not allowing Gunner to testify as to whether or not Dr. Saha had anything
to gain by not disclosing the claim against the Institute. We disagree.
{¶ 38} A trial court has broad discretion over the admission or exclusion of evidence
and will not be overturned absent a finding of abuse of discretion. State v. Walker, 10th
Dist. No. 17AP-588, 2019-Ohio-1458, ¶ 42, 48. An abuse of discretion implies the court's
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). Furthermore, "error in the admission of evidence 'may be considered
harmless where such [evidence] is cumulative of other, properly admitted [evidence].' "
Walker at ¶ 67, quoting State v. Fort, 10th Dist. No. 15AP-704, 2016-Ohio-1242, ¶ 53.
{¶ 39} On the facts of this case, Dr. Saha has not demonstrated the trial court acted
in a manner that was unreasonable, arbitrary, or unconscionable. First, it is unclear which
specific question Dr. Saha is challenging the trial court's action on. Although Dr. Saha's
assignment of error references pages 134 through 136 of the hearing transcript, his
argument in part relies on his proffer of evidence of what Gunner would testify, which was
specifically made in relation to a question on page 137 of the hearing transcript. Further
complicating matters, Dr. Saha's argument on appeal does not reflect the actual proffer
made at the hearing. On appeal, Dr. Saha contends he "proffered evidence that Mr. Gunner
would have testified that Dr. Saha had nothing to gain" and that the trial court abused its
discretion in refusing to allow Gunner to testify as to whether or not Dr. Saha had anything
to gain by not disclosing the claim against the Institute. (Appellant's Brief at 30-31.)
However, the proffer actually offered by Dr. Saha stated Gunner would answer Dr. Saha
No. 18AP-661 15
"obtained no advantage" as a result of filing the January amended disclosure. (Tr. at 138.)
This proffer was specifically based on a question concerning whether Dr. Saha ultimately
obtained any advantage after disclosing the claim against the Institute—not Gunner's
opinion on whether Dr. Saha had an incentive to not disclose the claim at issue in his earlier
bankruptcy filings.
{¶ 40} Regardless, Gunner testified regarding the particular importance of a
debtor's timely disclosure of potential claims in a Chapter 13 bankruptcy and that disclosure
of claims may result in those claims being a part of the bankruptcy estate and impacting the
plan. Gunner testified several times that after Dr. Saha did disclose the claims against the
Institute, although the trustee could have taken action regarding the claim, in this case the
bankruptcy plan was not changed. Dr. Saha also testified he had no incentive to conceal
the claim against the Institute, and the eventual disclosure did not change the plan. In
other words, whether Dr. Saha had an incentive to not disclose the claim and whether the
plan was ultimately effected was repeatedly discussed at the hearing. Therefore, even had
the trial court committed error in disallowing Gunner to answer these questions, such error
would have been harmless. Walker at ¶ 67.
{¶ 41} Considering all the above, Dr. Saha has not met his burden in demonstrating
the trial court abused its discretion in this matter. App.R. 16(A)(7); State v. Sims, 10th Dist.
No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an appellant bears the
burden of affirmatively demonstrating error on appeal).
{¶ 42} Accordingly, we overrule Dr. Saha's second assignment of error.
C. Dr. Saha's Third Assignment of Error
{¶ 43} In his third assignment of error, Dr. Saha contends the trial court abused its
discretion in issuing a protective order concerning Dr. Saha's proposed evidence relating to
damages. We previously overruled Dr. Saha's assignments of error pertaining to the merits
of the trial court's decision barring Dr. Saha's claims under the doctrine of judicial estoppel.
As a result, Dr. Saha's challenge to the trial court's handing of evidence of damages is moot.
{¶ 44} Accordingly, Dr. Saha's third assignment of error is rendered moot. App.R.
12(A)(1)(c).
No. 18AP-661 16
IV. CONCLUSION
{¶ 45} Having overruled Dr. Saha's first and second assignments of error and having
rendered Dr. Saha's third assignment of error moot, we affirm the judgments of the
Franklin County Court of Common Pleas.
Judgments affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
_____________