Smith v. Ohio State Univ.

• Court: Ohio Court of Appeals
• Writing for the Court: BOGGS, J.
• Citation: Smith v. Ohio State Univ., 266 N.E.3d 1, 2024 Ohio 5887 (Ohio App. 2024)
• Docket Number: 22AP-125
• Decision Date: 17 December 2024
• Parties: Brooke SMITH, Plaintiff-Appellee, v. The OHIO STATE UNIVERSITY, Defendant-Appellant.

266 N.E.3d 1

2024-Ohio-5887

Brooke SMITH, Plaintiff-Appellee,

v.The OHIO STATE UNIVERSITY, Defendant-Appellant.

No. 22AP-125

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on December 17, 2024

APPEAL from the Court of Claims of Ohio (Ct. of Cl. No. 2020-00321JD).

On brief: Mansour Gavin LPA, and Scott D. Simpkins, Cleveland; Bursor & Fisher, P.A., and Joshua D. Arisohn, for appellee. Argued: Joshua D. Arisohn.

On brief: Squire Patton Boggs (US) LLP, and John R. Gall, Traci L. Martinez, Christopher F. Haas, Columbus, E. Jospeh D’Andrea, and Elizabeth P. Helpling, for appellant. Argued: John. R. Gall.

DECISION

BOGGS, J.

{¶ 1} This appeal is again before this court on remand from the Supreme Court of Ohio, which reversed our decision in Smith v. Ohio State Univ., 10th Dist., 2022-Ohio-4101, 200 N.E.3d 1249, and remanded the matter with instructions to determine whether defendant-appellant, The Ohio State University (“OSU”), “is protected by discretionary immunity regarding its decisions in response to the COVID-19 pandemic—namely, to suspend in-person instruction, transition to virtual learning, restrict access to its campus, and provide limited refunds to students.” Smith v. Ohio State Univ., 176 Ohio St.3d 289, 2024-Ohio-764, 247 N.E.3d 288, ¶ 1. After reviewing the record and the parties’ original and supplemental briefs, we answer the question proposed by the Supreme Court in the affirmative. Pursuant to the Supreme Court’s opinion, because OSU is entitled to discretionary immunity, the Court of Claims lacks jurisdiction over this action filed by plaintiff-appellee, Brooke Smith. Accordingly, we reverse the Court of Claims’ judgment certifying this matter as a class action, and we remand the matter to the Court of Claims for dismissal.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 2} In the spring semester of 2020, Smith was completing her final semester of college in OSU’s College of Education and Human Ecology and was enrolled in the last two classes she needed to graduate: a supervised student teaching internship and an in-person seminar that corresponded with her internship. Smith alleges that she paid $23,428 in tuition and fees to OSU for the spring 2020 semester.

{¶ 3} On March 9, 2020, the first day of OSU’s scheduled spring break and the same day that Ohio Governor, Mike DeWine, declared a state of emergency as a result of the developing COVID-19 outbreak,¹ OSU President, Michael V. Drake, advised the university community by email that he had convened a task force of senior university leadership and subject-matter experts to focus on the university’s response to COVID-19. President Drake announced that, in service of its dual goals of preventing illness and continuing the work of the university, OSU would be suspending face-to-face instruction and transitioning to virtual instruction through at least March 30, 2020. He stated, “I understand that our policy guidelines will cause measurable disruption, but the risk of not acting outweighs the inconvenience of these temporary measures.” (McPheron Dep., Ex. 10.)

{¶ 4} Three days later, on March 12, 2020, President Drake again emailed the university community with updates to OSU’s COVID-19 response. He emphasized, “[E]very step we take as a university is aimed at reducing any potential spread of the virus and ensuring the continuation of our academic mission.” (McPheron Dep., Ex. 12.) He then announced that virtual instruction in lieu of face-to-face instruction would continue through the end of the spring semester, that the university would facilitate a scheduled and orderly process for students to move out of residence halls, and that spring break would be extended for an additional week, through March 22, 2020, to facilitate that process and for faculty and staff to further prepare for virtual instruction. To make up for the extra week of spring break, OSU extended the last day of spring semester classes to April 24, 2020, and amended the dates of final examinations.

{¶ 5} Smith completed the remainder of her coursework through virtual instruction, and she graduated on schedule, on May 3, 2020.

{¶ 6} OSU’s academic policy, set out in a publication entitled A Buckeye’s Guide to Academic Policies (“Academic Policy”), requires every student to be “financially responsible to [OSU] for payment of all tuition, room and board fees, and related costs added to a student account,” including “fees, fines or penalties added to the account which are related to attendance.” (Sept. 1, 2021 Def.’s Memo in Opp. to Class Certification, Bricker Aff., Ex. A at 37.) Every student must “agree to [a] Financial Responsibility Statement” before registering for classes each semester. Id. The Financial Responsibility Statement sets out the student’s agreement to be “financially responsible to [OSU] for payment of all tuition, room and board fees, and related costs that are added to my student account” and sets out the student’s “promise to pay any fees, [f]ines or penalties” related to the student’s university attendance. (Id., Ex. J.) The Academic Policy describes the fees that may be assessed to a student’s account; they include, as relevant here, an instructional fee, general fee, learning technology fee, program fee, course fee, student activity fee, Central Ohio Transit Authority (“COTA”) bus fee, recreational sports fee, and student union facility fee. Out-of-state residents, like Smith, and international students also incur a surcharge as compared to students who are Ohio residents.

{¶ 7} On March 16, 2020, OSU announced that it would provide a prorated refund of room and board fees for the spring 2020 semester, although it continued to consider how to calculate those refunds. On or before March 18, 2020, OSU made the decision to issue pro rata refunds of students’ recreational sports fees. On March 18, 2020, OSU’s Senior Vice President and Chief Financial Officer, Michael Papadakis, informed business officers at other Big Ten universities that OSU did not plan to refund tuition or other fees, although conversations remained ongoing regarding certain fees. OSU did not provide any refunds of students’ instructional fees, general fees, learning technology fees, program fees, course fees, student activity fees, COTA fees, student union facility fees, or nonresident surcharges for the spring 2020 semester.

{¶ 8} On May 21, 2020, Smith filed a class action complaint in the Court of Claims against OSU and the Ohio Department of Higher Education, alleging claims for breach of contract, unjust enrichment, and conversion. Smith filed an amended compliant on May 27, 2020. She later voluntarily dismissed her claims against the Ohio Department of Higher Education and abandoned her conversion claim.

{¶ 9} In her amended complaint, Smith alleges that she and other students entered into binding contracts with OSU “through the admission agreement and payment of tuition and fees,” pursuant to which OSU promised to provide certain services, including “in-person educational services,” for the entirety of the spring 2020 semester. (May 27, 2020 Am. Compl. at ¶ 39-40.) She alleges that OSU has “not performed under the contract,” id. at ¶ 41, as upon the closure of its campus, OSU did not “deliver[] the educational services, facilities, access and/or opportunities that [she and other students] contracted and paid for,” id. at ¶ 6, 22. In particular, she alleges that the “online learning options” that OSU offered students were “subpar in practically every aspect” to the in-person education that students contracted and paid for. Id. at ¶ 6. Smith further contends that OSU has retained students’ moneys “without providing them the benefit of their bargain,” id. at ¶ 41, and that students “lost the benefit of the education for which they paid, and/or the services for which their fees paid, without having their tuition and fees refunded to them,” id. at ¶ 1. She seeks, for herself and members of the putative class, “disgorgement of the pro-rated portion of tuition and fees, proportionate to the amount of time that remained in the Spring Semester 2020 when classes moved online and campus services ceased being provided.” Id. at ¶ 9, 28.

{¶ 10} After unsuccessfully moving the Court of Claims to dismiss Smith’s complaint for failure to state a claim upon which relief could be granted, OSU filed an answer, in which it asserted discretionary immunity as one of many affirmative defenses.

{¶ 11} Smith moved the Court of Claims to certify her case as a class action, pursuant to Civ.R. 23. She sought certification of a class consisting of “[a]ll undergraduate students enrolled in classes at the Columbus campus of [OSU] during the Spring 2020 semester who paid tuition and/or fees.” (June 25, 2021 Pl.’s Mot. for Class Certification at 6.) OSU opposed Smith’s motion for class certification and filed a motion for summary judgment on the issue of liability, which the Court of Claims did not decide. With respect to class certification, OSU argued that Smith could not meet her burden of demonstrating that certification was appropriate under Civ.R. 23(B)(3) by showing “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” OSU argued, in part, that Smith failed to establish that common issues of fact exist, let alone predominate, since there is no common, class wide proof of a breach of contract or injury, and because the facts and extent of injury would require individual inquiries as to each student.

{¶ 12} The Court of Claims rejected OSU’s arguments and granted Smith’s motion, certifying a plaintiff class consisting of “all undergraduate students enrolled in classes at the Columbus campus of [OSU] during the Spring 2020 semester who paid tuition, the general fee, student activity fee, learning technology fee,...