Cross v. Univ. of Toledo
| Citation | 199 N.E.3d 699 |
| Decision Date | 27 October 2022 |
| Docket Number | 21AP-279 |
| Parties | Trevor CROSS, Plaintiff-Appellee, v. UNIVERSITY OF TOLEDO, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
On brief: Merriman Legando Williams & Klang, LLC, Drew Legando, Tom Merriman, and Edward S. Jerse ; Cleveland, Milberg Coleman Bryson Phillips Grossman, LLP, and Jennifer Kraus-Czeisler; Evangelista Worley LLC, and James Evangelista ; Fink Bressack, David H. Fink, and Nathan J. Fink, for appellee. Argued: Drew Legando.
On brief: Dave Yost, Attorney General, and Randall W. Knutti, Peter DeMarco, Columbus, Jeanna Jacobus, and Michelle Brizes, for appellant. Argued: Randall W. Knutti.
DECISION
{¶ 1} As the COVID-19 pandemic loomed early in the Spring 2020 semester, defendant-appellant, University of Toledo ("UT"), moved all classes online, closed dormitories, and sent on-campus students home. One student, plaintiff-appellee, Trevor Cross, filed breach of contract and unjust enrichment claims against UT in the Court of Claims of Ohio on behalf of three purported classes. The trial court granted Mr. Cross's motion to certify those classes under Civ.R. 23 and UT has appealed. We have jurisdiction to review "[a]n order that determines that an action may or may not be maintained as a class action" under R.C. 2505.02(B)(5). Because our review concludes that the trial court abused its discretion by failing to perform the rigorous analysis class certification under Civ.R. 23 requires, we reverse and remand.
{¶ 2} Spring semester classes at UT began on January 21, 2020, and final exams were scheduled to end on May 8, 2020, with on-campus students scheduled to move out of their dormitories the next day. (Compl. at ¶ 21; 2nd Am. Answer at ¶ 21.) When COVID-19 emerged, the university announced a number of responsive measures that disrupted this schedule. On March 13, 2020, UT announced that all in-person classes would be converted to online classes and that any student living on campus able to leave should do so, as "it was closing residence halls and only students with extenuating circumstances would be permitted to remain in on-campus housing." (Compl. at ¶ 26; 2nd Am. Answer at ¶ 26.) The university offered a credit of $1,230 to students who had paid for room and board and a meal plan but did not offer any refund or credit for tuition or other fees. (2nd Am. Answer at ¶ 3, 28.)
{¶ 3} Mr. Cross, a "finance and professional sales major" who had paid tuition, room and board, and "fees for the entire Spring 2020 semester," was living on-campus when UT converted all classes online and shut the residence halls. (Compl. at ¶ 9-12.) He moved back home after the university's announcement. Id. On April 28, 2020, Mr. Cross filed suit against UT, purporting to represent the following three classes of students:
{¶ 4} In a section captioned "Class Action Allegations," the complaint described how Mr. Cross aimed to satisfy the requirements of Civ.R. 23. The impracticable joinder of all individual student class members satisfied the numerosity requirement of Civ.R. 23(A)(1), and the "precise number of members" could "be ascertained from the University's records." Id. at ¶ 50. The complaint listed a number of common questions of law or fact, as required by Civ.R. 23(A)(2), including: "[w]hether there is a difference in value between online distance learning and live in-person instruction;" whether UT's retention of "the difference between the value of one half a semester of online distance learning and one half a semester of live in-person instruction" amounted to unjust enrichment or a breach of UT's contracts with the students; whether UT breached its contracts with students by not refunding "the full prorated amount of housing expenses" to students who only lived on campus for a portion of the semester; whether retaining those payments amounted to unjust enrichment; and whether the failure to refund fees and retain them amounted to a breach of contract or unjust enrichment. Id. at ¶ 51. Mr. Cross also alleged that his claims were typical of the classes he described, as required by Civ.R. 23(A)(3), and that he would adequately represent the class members when litigating those claims, as required by Civ.R. 23(A)(4). Id. at ¶ 52-53.
{¶ 5} As to the claims themselves, Mr. Cross's complaint asserted three breach of contract claims and three unjust enrichment claims on behalf of each class. For the Tuition Class, the breach of contract claim alleged that UT breached its contract with students by moving all in-person classes online with no tuition refund, causing them to be "deprived of the value of the services the tuition was intended to cover - live in-person instruction in brick and mortar classrooms - while the University retained those fees and refused to reduce outstanding charges." Id. at ¶ 60-61. Thus, he alleged that he and other class members were entitled to both "a refund and a commensurate reduction in outstanding charges," as well as the "equitable remedy" of "disgorgement of the difference between the value of one half a semester of online learning versus the value of one half a semester of live in-person instruction in brick and mortar classrooms." Id. at ¶ 62-63. Mr. Cross alleged that UT unjustly enriched itself to the detriment of the Tuition Class by retaining charges "for live in-person instruction in brick and mortar classrooms without providing the services for which those funds were to be paid." Id. at ¶ 80.
{¶ 6} The complaint also alleged that UT breached its contract with the Room and Board Class by not providing class members with the "housing for the entire semester" that they had paid for, and they were therefore "entitled to a reduction in outstanding charges or a refund." Id. at ¶ 67. UT also allegedly enriched itself to the detriment of the Room and Board Class "by refusing to refund the amounts" class members paid, entitling them to "the full prorated unused amounts charged * * * for their housing and meal expenses." Id. at ¶ 84.
{¶ 7} The Fee Class was entitled to "disgorgement of the prorated, unused amounts of fees already charged and collected" for services never provided to class members, Mr. Cross alleged, as a remedy for UT's alleged breach of contract. Id. at ¶ 73-76. He also asserted that the Fee Class was entitled to the same remedy for after UT "stopped providing the services these fees were intended to cover" and unjustly retained the fees paid by the class. Id. at ¶ 89-91.
{¶ 8} In sum, Mr. Cross sought as relief for himself and other class members the following: "a reduction in outstanding charges and a partial refund of tuition representing the difference in value of a half semester of live in-person instruction versus the value of a half semester of online distance learning; a reduction in outstanding charges and the return of the unused portion of room and board costs proportionate to the amount of time that remained in the Spring 2020 semester when students were forced to move out of their on-campus housing; and, a reduction in outstanding charges and the full refund of the unused portion of each meal contract and a refund of a prorated share of fees." Id. at ¶ 29.
{¶ 9} Two days before a scheduled hearing on the issue, Mr. Cross filed a motion for class certification supported by an expert report prepared by Ted Tatos, an economist and statistician. (Jan. 6, 2021 Pl.’s Mot. for Class Certification.) With regard to the Tuition Class and the breach of contract and unjust enrichment claims asserted on its behalf, Mr. Cross's motion presented a different theory than that stated in the complaint, based on the purported deficiency of what he described as "emergency remote instruction:"
The University provided students with no refund whatsoever for tuition. The University's position is that students still received instruction, albeit by other means. Cross's position is that he did not receive the benefit of his bargain, which was to enroll in classes that would be conducted in-person, and he intends to show (through expert testimony) that he should have been charged less for the substitute emergency remote instruction the University did offer.
{¶ 10} The conversion to emergency remote instruction ("ERT") "meant faculty had just a week to convert their coursework and method of instruction to remote learning," Mr. Cross argued. Id. at 5. He further explained:
The ERT used by the University during the pandemic should not be confused with traditional online instruction, which is carefully planned, deliberately designed, and executed by teachers well-versed in technology-driven educational delivery. Indeed, an instructor of a traditional online course typically prepares for eight weeks. See Exhibit 1, Expert Report of Ted Tatos, ¶ 34. Moreover, and as set forth in some detail in the Tatos Report, there is substantial and burgeoning literature about the differences, including their value in the marketplace, between ERT on the one hand and in-person and traditional online instruction on the other.
{¶ 11}...
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