Adams v. Antonelli College et al
Filing
46
ORDER granting 36 Defendants' Motion for Summary Judgment on all claims in Plaintiff's Complaint (Doc. 2) and on Defendant Antonelli's Counterclaim for breach of contract (Doc. 34 at 19-23). Defendant Antonelli's Counterclaim for unjust enrichment (Doc. 34 at 24-27) is DISMISSED as MOOT. This case is TERMINATED on the docket of this Court.Signed by Judge Timothy S. Black on 3/30/18. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TENESHA ADAMS,
Individually and on behalf of those
Similarly situated,
Plaintiffs,
vs.
ANTONELLI COLLEGE, et al.,
Defendants.
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Case No. 1:16-cv-520
Judge Timothy S. Black
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (Doc. 36) AND
TERMINATING THIS CASE IN THIS COURT
This civil case is before the Court on Defendants’ motion for summary judgment
on the claims of Plaintiff Tenesha Adams (Doc. 36) and the Counterclaim filed by
Antonelli (Doc. 34) as well as the parties’ responsive memoranda (Docs. 40, 41). 1
I. BACKGROUND
A. Introduction.
Ms. Adams commenced this lawsuit, which alleges that Defendants engaged in
deceptive and misleading marketing and advertising practices. Ms. Adams is a former
student in Antonelli’s Practical Nursing Program (“PNP”). Ms. Adams’s claims, which
are asserted on behalf of herself and a putative class, are premised on her contention that
Defendants misrepresented facts about the PNP, including its quality and approval from
the Ohio Board of Nursing (“OBN”) and failed to provide adequate instruction.
1
“Defendants” are Technology Training Systems, Inc. d/b/a Antonelli College (“Antonelli”),
Mary Ann Davis, and Marre Barnette.
On these bases, the Complaint asserts claims for violation of the Ohio Deceptive
Trade Practices Act (“ODTPA”), breach of contract, negligent misrepresentation, and
promissory estoppel.
In response, Antonelli filed a Counterclaim which alleges that Ms. Adams is liable
for unpaid tuition and costs and asserts claims for breach of contract and unjust
enrichment.
B. The PNP.
In September, 2013, Antonelli opened the PNP. (Doc. 36-1 at ¶ 23; Doc. 40-1 at
¶ 23). The PNP had previously been granted “conditional approval” by the OBN on
November 15, 2012. (Doc. 36-1 at ¶ 24; Doc. 40-1 at ¶ 24).
In November, 2014, the OBN entered into a consent agreement (“Consent
Agreement”) with Antonelli that extended the conditional approval status of the PNP
until November, 2015. (Doc. 36-1 at ¶ 25; Doc. 40-1 at ¶ 25). During these “conditional
approval” phases, Antonelli was allowed to enroll and graduate students and its graduates
were eligible to sit for the NCLEX-PN exam and to become licensed practical nurses in
the State of Ohio. (Doc. 36-1 at ¶ 26; Doc. 40-1 at ¶ 26).
C. Ms. Adams enrolls in the PNP.
Ms. Adams enrolled in the PNP in or around November, 2014. (Doc. 36-1 at ¶ 1;
Doc. 40-1 at ¶ 1). Ms. Adams signed certain documents and disclosures pertaining to her
enrollment that are of consequence to this litigation. (Doc. 36-1 at ¶ 2; Doc. 40-1 at ¶ 2).
2
Ms. Adams executed an enrollment agreement (“Enrollment Agreement”) in
which she agreed to pay tuition and fees in exchange for educational services provided by
Antonelli. (Doc. 36-1 at ¶ 10; Doc. 40-1 at ¶ 10; Doc. 36-3).
Ms. Adams executed a Policies and Procedures disclosure whereby she certified
that she had received a copy of the current Antonelli Catalog (“College Catalog”). (Doc.
36-1 at ¶ 28; Doc. 40-1 at ¶ 28; Doc. 36-13). The College Catalog expressly stated that
the PNP was “conditionally approved” by the OBN:
Antonelli College Practical Nursing Program was granted
Conditional Approval by the Ohio Board of Nursing.
Conditional Approval is the initial approval status granted to
a new nursing education program that meets and maintains
the requirements of Chapter 4723-5, Ohio Administrative
Code, and is necessary for the implementation of the
program. Graduates of the Practical Nursing Program are
eligible to sit for the NCLEX-PN and apply for licensure as a
Licensed Practical Nurse (LPN) in the State of Ohio.
(Doc. 36-1 at ¶ 29; Doc. 36-12 at 6). 2
Ms. Adams signed a Financial Aid Application in which she certified to Antonelli
that she would “be responsible for a balance due in cash that is not paid by federal, state
or agency assistance.” (Doc. 36-1 at ¶ 11; Doc. 40-1 at ¶ 11; Doc. 36-8 at 2).
To pay for her tuition, Ms. Adams received Federal Student Aid, including Pell
Grants, Subsidized Loans and Unsubsidized Loans, as well as cash payments. (Doc. 36-1
at ¶ 12; Doc. 40-1 at ¶ 12).
2
Ms. Adams denies Paragraph 29 of Defendants’ statement of proposed undisputed facts
because she claims she never received a copy of the College Catalog (despite certifying that she
had). Ms. Adams does not cite to any affirmative evidence to rebut Defendants’ assertion that
the quoted language regarding conditional approval is in the College Catalog that Ms. Adams
certified she received. (See Doc. 36-12 at 6).
3
According to her Student Statement, Ms. Adams has a balance due for unpaid
tuition that was not covered by grants, loans, or cash payments to Antonelli of $1,832.00.
(Doc. 36-1 at ¶ 14; Doc. 40-1 at ¶ 14; Doc. 36-9).
Ms. Adams also participated in the Antonelli College Loan Program (“ACLP”).
(Doc. 36-1 at ¶ 13). 3 Under the ACLP, Ms. Adams entered into two Master Promissory
Notes (“MPNs”) with Antonelli on November 7, 2014, and August 3, 2015, respectively.
(Doc. 36-1 at ¶ 15; Doc. 40-1 at ¶ 15; Doc. 36-10). Under the MPNs, Ms. Adams agreed
to repay the loan amounts disbursed thereunder, plus interest and other charges and fees
due under the MPNs. (Doc. 36-1 at ¶ 16; Doc. 40-1 at ¶ 16; Doc. 36-10). In total, $718
was disbursed under the MPNs. (Doc. 36-1 at ¶ 17; Doc. 40-1 at ¶ 17).
Plaintiff agreed to repay the principal and interest on the ACLP loans to Antonelli
beginning 180 days after her separation from the college. (Doc. 36-1 at ¶ 18; Doc. 40-1
at ¶ 18; Doc. 36-10). Ms. Adams’ last day of attendance at Antonelli was October 22,
2015. (Doc.36-1 at ¶ 19; Doc. 40-1 at ¶ 19). Accordingly, her repayments came due on
April 19, 2016. (Doc. 36 at ¶ 20; Doc. 40-1 at ¶ 20). Under the terms of the MPNs,
Antonelli, at its option, can declare loans in default and demand immediate payment of
the entire balance, including principal, interest, and collection costs if scheduled
payments are not made when due. (Doc. 36-1 at ¶ 21; Doc. 40-1 at ¶ 21; Doc. 36-10). In
total, Ms. Adams owes Antonelli $718 plus interest for her unpaid ACLP balance and
3
Ms. Adams did not respond to Paragraph 13 of Defendants’ statement of proposed undisputed
facts.
4
$1,832 for unpaid tuition. (Doc. 36-1 at ¶ 22). 4
D. Ms. Adams departs the PNP after failing a course.
Ms. Adams began classes at the PNP in January, 2015. (Doc. 36-1 at ¶ 3; Doc. 401 at ¶ 3).
Ms. Adams’s last day in the PNP was October 22, 2015. (Doc. 36-4). On October
23, 2015, Ms. Adams was informed that she failed a course (Nursing II). (Adams Dep. at
36:13-20). 5 When Defendants informed Ms. Adams she would have to re-take the
course, she chose not to re-enroll. (Id. at 40:20-42:17).
Following her departure from the PNP, Ms. Barnette filed a complaint with the
OBN. (Doc. 36-1 at ¶ 5; Doc. 36-5). Antonelli was given the opportunity to respond and
provide supporting documentation. (Doc. 36-1 at ¶ 6; Doc. 40-1 at ¶ 6; Doc. 36-6). On
January 15, 2016, the OBN advised Antonelli that, based on its review of the materials
submitted, “the Rules of 4723-5, OAC, were met.” (Doc. 36-1 at ¶ 7; Doc. 40-1 at ¶ 7;
Doc. 36-7). 6
In March, 2016, Ms. Adams filed a complaint with the Ohio Attorney General’s
Office. (Doc. 36-1 at ¶ 8; Doc. 40-1 at ¶ 8). Besides an initial communication, Ms.
4
Ms. Adams denies paragraph 22 of Defendants’ statement of proposed undisputed facts because
she alleges her claims in this lawsuit offset any monies she owes Antonelli, however, she does
not cite to any evidence to rebut Defendants assertion of the amount owed for unpaid tuition or
the balance of Ms. Adams’s ACLP.
5
Ms. Adams’s deposition is filed at Doc. 36-2.
6
“4723-5” is the Chapter of the Ohio Administrative Code applicable to “Nursing Education
Programs.”
5
Adams has never heard anything further from the Attorney General’s Office. (Doc. 36-1
at ¶ 9; Doc. 40-1 at ¶ 9).
II. STANDARD OF REVIEW
A motion for summary judgment should be granted if the evidence submitted to
the court demonstrates that there is no genuine issue as to any material fact, and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The moving party has the burden of showing the absence of genuine
disputes over facts which, under the substantive law governing the issue, might affect the
outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be
construed in a light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment “may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (1986).
III. ANALYSIS
A. Ms. Adams does not have standing to assert the ODTA claim.
Count One of the Complaint alleges that Defendants violated the ODTPA by
making deceptive, false and misleading statements concerning the PNP. (Doc. 2 at ¶¶ 5260). Count One alleges that Defendants misrepresented the PNP and failed to advise
enrollees that it had entered into the Consent Agreement and that the State of Ohio could
revoke its approval for the PNP if certain deficiencies were not corrected. (Id.)
6
Defendants argue Ms. Adams does not have standing to pursue this claim because
she is an individual consumer and has not suffered a commercial injury. (Doc. 40 at 810). The Court agrees.
Under the ODTPA, a person engages in an unlawful “deceptive trade practice”
when, in the course of the person’s business, vocation, or occupation, he or she, inter
alia:
(7)
represents that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, or
quantities that they do not have, or that a person has a
sponsorship, approval, status, affiliation, or connection that
the person does not have;
(9)
represents that goods or services are of a particular
standard, quality, or grade, or that the goods are of a
particular style or model, if they are of another.
Ohio Rev. Code § 4165.02(A)(7) and (9).
The ODTPA confers standing on a “person who is likely to be damaged by a
person who commits a deceptive trade practice” or a “person who is injured by a person
who commits a deceptive trade practice.” Id. at § 4165.03(A)(1). The statute defines a
“person” as an “individual, corporation, government . . . or any other legal or commercial
entity.” Id. at § 4165.01(D).
The majority of courts to address the issue have held that an individual consumer
does not have standing to sue under the ODTPA. See Terlesky v. Fifth Dimension, Inc.,
Case No. 15-cv-374, 2015 U.S. Dist. LEXIS 155236, at ** 5-7 (S.D. Ohio Nov. 17,
2015) (Dlott, J.) (“a ‘consumer’ does not have standing to commence a civil action under
the ODTPA”); Citimortgage, Inc. v. Crawford, 934 F. Supp. 2d 942, 950 (S.D. Ohio
7
2013) (Black, J.) (“a consumer does not have standing to [s]ue under the DTPA”);
Phillips v. Phillip Morris Cos., 290 F.R.D. 476, 484 (N.D. Ohio 2013) (Lioi, J.)
(“consumers lack standing to bring claims under the DTPA”); Lester v. Wow Car Co.,
Case No. 2:11-cv-850, 2014 U.S. Dist. LEXIS 77567, at ** 30-35 (S.D. Ohio June 6,
2014) (Sargus, J.); Gascho v. Global Fitness Holdings, LLC, 863 F. Supp. 2d 677, 697-99
(S.D. Ohio 2012) (Smith, J.); In re Porsche Cars N. Am. Inc. Plastic Coolant Tubes
Prods. Liab. Litig., 880 F. Supp. 2d 801, 873-75 (S.D. Ohio 2012) (Frost, J.); Robins v.
Global Fitness Holdings, LLC, 838 F. Supp. 2d 631, 649-650 (N.D. Ohio 2012) (Polster,
J.).
A minority of courts have held individual consumers do have standing based on
the statute’s plain language that it applies to “individuals.” See Schumacher v. State Auto
Mut. Ins. Co., 47 F. Supp. 3d 618, 630-33 (S.D. Ohio 2014) (Spiegel, J.); Bower v. IBM,
495 F. Supp. 2d 837, 842-44 (S.D. Ohio 2007) (Rice, J.). 7
Courts in the majority have asserted two primary reasons in support of their
conclusion that individual consumers lack standing under the ODTPA. First, most courts
have reasoned that the ODTPA is analogous to Section 43(a) of the Lanham Act, which
similarly confers standing on “any person who believes that he or she is likely to be
damaged” by conduct prohibited under the Act. Despite this language, federal courts
have consistently held individual consumers lack standing under Section 43(a) because
7
The Supreme Court of Ohio has not resolved this conflict. In 2010, Judge O’Malley in the
Northern District of Ohio determined that the issue of whether an individual has standing under
the ODTPA should be certified to the Supreme Court of Ohio. McKinney v. Bayer Corp., 744 F.
Supp. 2d 733, 752 (N.D. Ohio 2010). However, the issue was never certified as the plaintiff in
that case dismissed the ODTPA claim. Robins, 838 F. Supp. 2d at 649, n. 3.
8
they are not within the class of persons that the Lanham Act was designed to protect, i.e.,
persons engaged in commerce. See Robins, 838 F. Supp. 2d at 650 (explaining
consumers lack standing under the ODTPA because it is analogous to the Lanham Act,
which only protects “persons engaged in commerce, not individual consumers, against
unfair competition”) (quotation omitted); see also In re Porsche Cars, 880 F. Supp. 2d at
873-75 (“the ODTPA is substantially similar to Section 43(a) of the Lanham Act and the
Lanham Act protects the interests of a purely commercial class that does not include
individual consumers”) (citation omitted); Terlesky, 2015 U.S. Dist. LEXIS 155236, at
* 6.
These courts find support for this reasoning in Dawson v. Blockbuster, Inc., a
decision from the Ohio Eighth District Court of Appeals which expressly holds
consumers do not have standing under the ODTPA because it is substantially similar to
the Lanham Act, which protects the interests of a purely commercial class. 8th Dist.
Cuyahoga No. 86451, 2006-Ohio-1240, ¶¶ 23-25. The state appellate court reasoned in
Dawson that claims under the ODTPA are to be analyzed like claims arising under
federal statutes concerning unfair competition. Id. at ¶ 23. More recently, the Ohio
Fourth District Court of Appeals agreed with Dawson and held that individuals do not
have standing under the ODTPA. Hamilton v. Ball, 2014-Ohio-1118, 7 N.E.3d 1241,
¶¶ 29-33 (4th Dist.).
The Sixth Circuit Court of Appeals expressly approved this analysis in affirming a
district court’s dismissal of a consumer’s ODTPA claim:
9
The district court dismissed [plaintiff’s] ODTPA claim based
on its determination that [plaintiff] and the other putative
class members, as consumers, lacked standing to bring claims
under the ODTPA. As the Ohio Supreme Court has not
considered the issue, we look for guidance to the Ohio Court
of Appeals. . . . In Dawson v. Blockbuster, Inc., 2006 Ohio
1240, 2006 WL 1061769, at *3-4 (Ohio Ct. App. 2006), the
court held that consumers do not have standing to raise
ODTPA claims because (1) the ODTPA and the federal
Lanham Act are “substantially similar,” and (2) all federal
courts of appeal to have considered the issue have held that
consumers do not have standing under the Lanham Act. The
Ohio Supreme Court declined to accept the appeal for review
in Dawson v. Blockbuster, Inc., 110 Ohio St. 3d 1442, 2006
Ohio 3862, 852 N.E.2d 190 (Ohio 2006).
Although [Plaintiff] asserts various reasons why we should
distinguish the ODTPA from the Lanham Act, he has failed to
make the requisite strong showing that the Ohio Supreme
Court would decide this issue differently. We therefore
affirm the district court’s decision that [plaintiff] does not
have standing to raise an ODTPA claim as a consumer.
Holbrook v. Louisiana-Pacific Corp., 533 Fed. App’x 493, 497-98 (6th Cir. 2013).
Second, courts have explained that conferring standing on consumers under the
ODTPA would render the Ohio Consumer Sales Practices Act (“OCSPA”) superfluous,
because both statutes regulate the same type of conduct, but the OCSPA expressly applies
to consumer transactions. See Phillips, 290 F.R.D. at 484 (explaining that the state
legislature’s subsequent passage of the OCSPA evidences an intent that the ODTPA not
apply to consumers); Gascho, 863 F. Supp. 2d at 699 (“the DTPA addresses commercial
injury, and not consumer injury (which is addressed by the CSPA)”); Robins, 838 F.
10
Supp. 2d at 650. 8
The Court appreciates that there is a split of authority on the issue of whether,
under Ohio law, individual consumers have standing to assert a claim under the ODTPA.
However, the Court agrees with the majority of courts to consider the issue and holds that
individual consumers do not have standing.
First, the Court finds the reasoning set forth in, inter alia, Terlesky, In re Porsche
Cars, and Robins that the ODTPA is to be interpreted consistently with the analogous
Lanham Act to be well-reasoned and persuasive.
Second, and importantly, the Sixth Circuit has expressly approved this analysis
and reasoning. Holbrook, 533 Fed. App’x at 497-98.
Third, two Ohio state appellate courts have expressly held that the ODTPA, like
the Lanham Act, does not apply to consumers. Hamilton, 2014-Ohio-1118, ¶¶ 29-33;
Dawson, 2006-Ohio-1240, ¶¶ 23-25. This Court is not to disregard these decisions from
Ohio’s intermediate appellate courts unless it is convinced the Supreme Court of Ohio
would decide the issue differently. See West v. American Tel. & Tel. Co., 311 U.S. 223,
237 (1940) (“Where an intermediate appellate state court rests its considered judgment
upon the rule of law which it announces, that is a datum for ascertaining state law which
is not to be disregarded by a federal court unless it is convinced by other persuasive data
that the highest court of the state would decide otherwise”). The Court is not convinced
8
The OCSPA proscribes suppliers from committing unfair or deceptive acts in connection with
consumer transactions, including, inter alia, that the subject of a transaction has “sponsorship,
approval, performance characteristics, accessories, uses, or benefits that it does not have,” or that
the subject of a consumer transaction “is of a particular standard, quality, grade, style,
prescription, or model, if it is not[.]” See Ohio Rev. Code § 1345.02(B)(2)-(3).
11
that the highest court of the state would decide otherwise. The Court agrees with Judge
Frost that the Supreme Court of Ohio is likely to agree with the position set forth in
Dawson. See In re Porsche Cars, 880 F. Supp. 2d at 875.
Fourth, and finally, the Court agrees that a contrary holding would render the
OCSPA superfluous. See Hamilton, 2014-Ohio-1118, ¶ 13 (“The proper remedy for
consumers seeking redress against unfair, deceptive, or unconscionable acts in the sale of
consumer goods or services is through the CSPA”) (emphasis supplied); Phillips, 290
F.R.D. at 484; Robins, 838 F. Supp. 2d at 650.
Here, Ms. Adams, as an individual consumer, does not have standing to pursue an
ODTPA claim. See Holbrook, 533 Fed. App’x at 497-98; Terlesky, 2015 U.S. Dist.
LEXIS 155236, at ** 5-7; Crawford, 934 F. Supp. 2d at 950; Phillips, 290 F.R.D. at 484;
In re Porsche Cars, 880 F. Supp. 2d at 873-74; Robins, 838 F. Supp. 2d at 649-650.
Accordingly, Defendants’ motion for summary judgment (Doc. 36) is GRANTED
on Count One of the Complaint.
B. Ms. Adams’s breach of contract claim fails on the facts and the law.
Count Two of the Complaint asserts a claim for breach of contract. (Doc. 2 at
¶¶ 61-67). Specifically, Count Two alleges Defendants breached the terms of the Student
Handbook and the Antonelli Loan Agreement (the “Contracts”).
The Complaint does not attach or describe any provision of the Antonelli Loan
Agreement. The Complaint identifies a few provisions of the Student Handbook.
Specifically, the Student Handbook’s mission statement provides:
12
Antonelli College’s Practical Nursing Program is offered by
the Department of Nursing.
The program prepares
knowledgeable nursing graduates by providing a caring,
diverse, and student-centered learning environment that
nurtures critical thinking and enriches holistic healthcare
across the lifespan. All activities of the nursing program are
guided by the college’s mission, as reflected in the specific
goals, purposes and philosophy of the nursing program.
(Doc. 2 at ¶ 19). The Student Handbook also states that the PNP “prepares students for
[the NCLEX-PN] required by the Ohio Board of Nursing for the licensure to practice as a
Licensed Practical Nurse.” (Id. at ¶ 20).
The Complaint alleges Defendants breached the Contracts by “not properly
preparing [Ms. Adams] for taking the tests associated with obtaining [her] licensure as an
LPN” and by “making it impossible for [her] to obtain [her] degree[]” (Doc. 2 at ¶¶ 6167).
Defendants argue Ms. Adams’s breach of contract claim is an impermissible
“educational malpractice” claim in disguise, and that the claim fails on the merits because
Ms. Adams voluntarily chose not to re-enroll in the PNP after failing a course. (Doc. 36
at 11-12). The Court agrees with Defendants.
First, Ms. Adams’s breach of contract claim is an impermissible claim for
“educational malpractice.” A claim that educational services provided were inadequate
constitutes a claim for educational malpractice. Rockwood v. Shoen, 145 F. Supp. 3d
718, 724 (S.D. Ohio 2015) (Frost, J.). Ohio does not recognize educational malpractice
claims for public policy reasons. Id.; see also Hutchings v. Vanderbilt Univ., 55 Fed.
App’x 308, 310 (6th Cir. 2003) (“Courts are not inclined to review educational
13
malpractice claims or breach of contract claims based on inadequate educational
services”); Lawrence v. Lorain Community College, 127 Ohio App. 3d 546, 549 (9th Dist.
1998) (plaintiff’s claim that school breached a contract by “providing substandard
education, guidance and supervision” failed because “Ohio does not recognize
educational malpractice claims for public policy reasons”).
Here, Ms. Adams confirmed in her deposition that the breach of contract alleged
in her Complaint arises from her allegation that Antonelli did not provide the quality of
education represented in the Student Handbook:
Q. Can you tell me, why are you suing Antonelli?
A. Antonelli did not—they misled me by telling me that they
were going to give me the material and the tools needed to sit
for the NCLEX. They lied to me. They promised me
quality education. That was not given to me. They did not
follow their syllabus. I just feel lied to.
....
Q. Okay. Who told you a lie?
A. I feel like all the representatives of the school told me a lie.
Q. Specifically what lies?
A. They told me that—they gave me—they gave me a
handbook, and in that handbook it has a statement in
there on the expectations of their students and our
expectations of them, what they were going to provide,
and it was not done. I went there—from the time I was there
until IV therapy, IV therapy on, no, it was not done.
Q. So what was promised to you as the level of quality and
education in the handbook was not provided to you?
A. It was not provided to me.
14
Q. Is that a good way to summarize what you’re telling me?
A. Yes. It was not provided to me.
(Adams Dep. at 97:21-98:3; 98:10-99:3) (emphasis supplied). Ms. Adams’s claim that
Defendants breached the Contracts by not providing an adequate education is an
impermissible educational malpractice claim. Rockwood, 145 F. Supp. 3d at 724.
Second, and additionally, Ms. Adams’s claim that Defendants breached the terms
of one of the Contracts by making it “impossible” for her to obtain her degree fails on the
facts. Ms. Adams admits that Defendants told her she could re-take a course she failed in
October, 2015, but she voluntarily decided not to continue her education in the PNP.
(Adams Dep. at 40:20-42:17).
Ms. Adams argues that Antonelli breached the Student Handbook by not providing
necessary supplies and books. (Doc. 40 at 13). This argument is not availing. The
Complaint does not allege that Defendants breached a contractual obligation by failing to
provide books or supplies. 9 The law is clear that a party may not expand a claim in
response to a motion for summary judgment in order to create an issue of fact. See
Pharos Capital Partners, L.P. v. Touche, L.L.P., 905 F. Supp. 2d 814, 831 (S.D. Ohio
2012) (Graham, J.) (“The Sixth Circuit has made clear that a party may not ‘expand its
9
While a plaintiff is not required to set out every fact in support of its claim in the complaint,
“[i]t is a basic tenet of contract law that a party can only advance a claim of breach of written
contract by identifying and presenting the actual terms of the contract allegedly breached.”
Harris v. Am. Postal Workers Union, No. 98-1734, 1999 U.S. App. LEXIS 26601, at * 14 (6th
Cir. Oct. 19, 1999). The Complaint does not identify any contractual term that was breached by
Defendants alleged failure to provide books and supplies.
15
claims to assert new theories’ in response to a motion for summary judgment”) (citing
Bridgeport Music, Inc. v. WB Music Corp., 508 F.3d 394, 400 (6th Cir. 2007)).
The breaches alleged in the Complaint—that Defendants did not properly prepare
Ms. Adams for the NCLEX-PN and prevented her from obtaining a degree—fail on the
law and the undisputed facts. Ms. Adams’s argument at the summary judgment stage that
Defendants also breached a contract by failing to provide books and supplies was not
pled in the Complaint and cannot be asserted now. Pharos Capital Partners, 905 F.
Supp. 2d at 831.
Accordingly, Defendants’ motion for summary judgment (Doc. 56) is GRANTED
on Count Two, for breach of contract.
C. Ms. Adams’s negligent misrepresentation claim fails as a matter of law.
Count Three of the Complaint asserts a claim of negligent misrepresentation.
(Doc. 2 at ¶¶ 68-73). The Supreme Court of Ohio has defined the tort of “negligent
misrepresentation” as:
One who, in the course of his business, profession or
employment or in any other transaction in which he has a
pecuniary interest, supplies false information for the guidance
of others in their business transactions, is subject to liability
for pecuniary loss caused to them by their justifiable reliance
upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
Delman v. City of Cleveland Heights, 41 Ohio St. 3d 1, 4, 534 N.E.2d 835 (1989)
(quotations omitted).
Ms. Adams asserts two “misrepresentations” in support of her negligent
misrepresentation claim; neither can survive summary judgment. First, Ms. Adams
16
alleges Defendants misrepresented that the PNP was “approved” by the OBN when it was
only “conditionally approved.” (Doc. 2 at ¶ 71).
Defendants argue that this claim is barred by Ms. Adams’s written
acknowledgment that she received the College Catalog. (Doc. 36 at 12-13).
The Court agrees with Defendants. A claim cannot be sustained when a plaintiff
seeks to contradict the plain language of a written contract or disclosure. Irvin v.
American General Financial, Inc., No. CR2004-0046, 2005 Ohio App. LEXIS 3271, at
** 10-11 (Ohio App. June 30, 2005) (affirming dismissal of fraud claims that were
directly contradicted by signed written disclosures); Williams v. CitiMortgage, Inc., No.
2:08-cv-368, 2011 U.S. Dist. LEXIS 35800, at ** 12-13 (S.D. Ohio Mar. 31, 2011)
(Watson, J.).
Here, Ms. Adams admits she signed the Policies and Procedures disclosure, which
states that she received a copy of the College Catalog. (Doc. 36-1 at ¶ 28; Doc. 40-1 at
¶ 28; Doc. 36-13). The College Catalog expressly states that the PNP was granted
“Conditional Approval” by the OBN. (Doc. 36-12 at 6). Ms. Adams’s certification that
she received the College Catalog bars her negligent misrepresentation claim to the extent
it is premised on Defendants’ allegedly misrepresenting that Antonelli was “approved,”
as opposed to “conditionally approved,” by the OBN. Irvin, 2005 Ohio App. LEXIS
3271, at ** 10-11; Williams, 2011 U.S. Dist. LEXIS 35800, at ** 12-13.
Second, Ms. Adams alleges Defendants failed to disclose “that [Antonelli] had
entered into a Consent Agreement under which the PNP could lose approval from the
OBN.” (Doc. 2 at ¶ 71).
17
Defendants argue this “misrepresentation” is not actionable because Ms. Adams
did not suffer any damage due to the Consent Agreement. (Doc. 36 at 13). The Court
agrees with Defendants. There is no evidence that the PNP “lost” approval during Ms.
Adams’s tenure, no evidence that the PNP’s approval status with the OBN affected Ms.
Adams’s ability to continue in the PNP, and no evidence that the PNP’s approval status
influenced Ms. Adams’s decision not to continue her education after failing a class in
October, 2015. Ms. Adams has not identified any affirmative evidence to even suggest
that she was damaged by the Consent Agreement or Defendants’ alleged concealment of
the Consent Agreement.
Additionally, the Court notes Ms. Adams’s allegation that Defendants failed to
disclose the Consent Agreement cannot give rise to a claim for “negligent
misrepresentation” as a matter of law. Under Ohio law, a claim for negligent
misrepresentation arises when one supplies false information; it does not provide a cause
of action based on an omission. See Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115
Ohio App. 3d 137, 149, 684 N.E.2d 1261 (9th Dist. 1996). In other words, “[n]egligent
misrepresentation does not lie for omissions, there must be some affirmative false
statement.” Id.; see also Meconi v. Verizon Wireless, Case No. 3:05-cv-7276, 2006 U.S.
Dist. LEXIS 79481, at * 13 (N.D. Ohio Oct. 17, 2006) (“Omissions by a defendant,
standing alone, are not sufficient for a negligent misrepresentation claim”).
Accordingly, Defendants’ motion for summary judgment (Doc. 36) is GRANTED
on Count Three of the Complaint, for negligent misrepresentation.
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D. Promissory Estoppel.
Count Four of the Complaint asserts a claim for promissory estoppel. (Doc. 2 at
¶¶ 74-80). The elements of a promissory estoppel claim are “(1) a clear, unambiguous
promise; (2) reliance upon the promise by the person to whom the promise is made; (3)
the reliance is reasonable and foreseeable; and (4) the person claiming reliance is injured
as a result of reliance on the promise.” Pappas v. Ippolito, 177 Ohio App. 3d 625, 2008Ohio-3976, ¶ 55, 895 N.E.2d 610.
Ms. Adams argues she relied on Defendants’ “representations and promises” in
enrolling in the PNP. (Doc. 2 at ¶ 77).
Defendants argue this claim is premised on alleged “promises” pertaining to the
PNP’s approval with the OBN, and accordingly, is barred by Ms. Adams’s certification
that she received the College Catalog. (Doc. 41 at 11-12).
The Court agrees with Defendants. The only “promise” identified by Ms. Adams
is Defendants’ alleged representation that the PNP had full approval, not conditional
approval, from the OBN. (See Doc. 40 at 23, “Plaintiff was injured when Antonelli failed
to disclose the PNP was only conditionally approved and Plaintiff relied on that promise
to her detriment in enrolling in the PNP”).
As explained in Section III(C), supra, Ms. Adams cannot advance a claim
premised on Defendants’ alleged misrepresentation of the PNP’s approval status because
Ms. Adams certified in writing that she received the College Catalog which expressly
stated the PNP is “conditionally approved” by the OBN. See Irvin, 2005 Ohio App.
LEXIS 3271, at ** 10-11; Williams, 2011 U.S. Dist. LEXIS 35800, at ** 12-13.
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Accordingly, Defendants’ motion for summary judgment (Doc. 36) is GRANTED
on Count Four of the Complaint, for promissory estoppel.
E. Antonelli is entitled to summary judgment on its Counterclaim.
As part of Defendants’ motion for summary judgment, Antonelli asks the Court to
enter judgment as a matter of law on its Counterclaim for breach of contract. (Doc. 36 at
14-15).
The elements of a claim for breach of contract are (1) that a contract existed,
(2) that the plaintiff fulfilled his obligations, (3) that the defendant failed to fulfill his
obligations, and (4) that damages resulted from this failure. Telxon Corp. v. Smart Media
of Del., Inc., 9th Dist. Summit Nos. 22098 & 22099, 2005-Ohio-4931, ¶ 53 (citation
omitted).
The Court finds that Antonelli has established each element of its claim for breach
of contract and is entitled to judgment as a matter of law.
First, it is undisputed that Ms. Adams is contractually obligated to pay Antonelli
(1) for tuition that was not covered by grants, loans, or cash payments; and (2) for loan
amounts, plus interest, advanced under the MPNs. (See Doc. 36-3; Doc. 36-8 at 2; 3610).
Second, it is undisputed that Antonelli provided the courses for which Ms. Adams
paid.
Third, it is undisputed that Ms. Adams has not fulfilled her contractual obligations
to Antonelli by failing to pay her ACLP balance and tuition that was not covered by
20
grants, loans, or cash payments. (Doc. 36-1 at ¶¶ 14, 17, 21; Doc. 40-1 at ¶¶ 14, 17; Doc.
36-9).
Fourth, Ms. Adams’s breach has damaged Antonelli in the amount of Ms.
Adams’s unpaid tuition ($1,832) and ACLP balance ($718 plus interest). (Id.)
Ms. Adams argues that Antonelli cannot maintain a claim for breach of contract
because Antonelli breached, and did not perform, its contractual obligations. (Doc. 40 at
25). Ms. Adams argues that any amount she owes to Antonelli should be offset by her
damages in this case. These arguments are not availing; the Court has already
determined that Defendants are entitled to summary judgment on all of Ms. Adams’s
claims, including her claim for breach of contract.
Accordingly, Defendants’ motion for summary judgment (Doc. 36) is GRANTED
on Antonelli’s Counterclaim for breach of contract (Doc. 34 at ¶¶ 19-23). 10
IV. CONCLUSION
Based upon the foregoing, Defendants’ motion for summary judgment (Doc. 36)
is:
1. GRANTED on all claims in Plaintiff’s Complaint (Doc. 2); and
2. GRANTED on Defendant Antonelli’s Counterclaim for breach of contract
(Doc. 34 at ¶¶ 19-23);
10
Antonelli also asserts a Counterclaim for unjust enrichment which is premised on the same
facts as its claim for breach of contract, i.e., that Ms. Adams breached her contractual obligations
to pay Antonelli tuition and amounts disbursed under the MPNs. (Doc. 34 at ¶¶ 24-27). In Ohio,
claims for unjust enrichment cannot be brought “where the subject matter of the claim[] is
governed by a contract between the parties.” Davis & Tatera, Inc. v. Gray-Syracuse, 796 F.
Supp. 1078, 1086 (S.D. Ohio 1992) (Kinneary, J.). Having found that Antonelli is entitled to
summary judgment on its breach of contract claim, the Court will dismiss the unjust enrichment
claim—premised on the same subject—as moot.
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3. Defendant Antonelli’s Counterclaim for unjust enrichment (Doc. 34 at ¶¶ 2427) is DISMISSED as MOOT; and
4. The Clerk shall enter judgment accordingly, whereupon this case is
TERMINATED on the docket of this Court.
IT IS SO ORDERED.
Date:
3/30/18
Timothy S. Black
United States District Judge
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