[Cite as Turner v. Univ. of Cincinnati, 2020-Ohio-248.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Jacob Turner,                                        :

                 Plaintiff-Appellant,                :
                                                                      No. 18AP-518
v.                                                   :          (Ct. of Cl. No. 2016-00769JD)

University of Cincinnati,                            :        (ACCELERATED CALENDAR)

                 Defendant-Appellee.                 :



                                            D E C I S I O N

                                    Rendered on January 28, 2020


                 On brief: Barkan Meizlish Handleman Goodin DeRose
                 Wentz, LLP, and Sanford A. Meizlish; Albeit Weiker, LLP, and
                 Leslie A. Albeit, for appellant. Argued: Sanford A. Meizlish.

                 On brief: [Dave Yost], Attorney General, Brian M. Kneafsey,
                 Jr., and Peter E. DeMarco, for appellee. Argued: Brian M.
                 Kneafsey, Jr.

                             APPEAL from the Court of Claims of Ohio

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Jacob Turner, appeals a decision of the Court of Claims of
Ohio granting summary judgment in favor of defendant-appellee, the University of
Cincinnati, on claims arising from injuries he sustained as a passenger in a vehicle crash
where the driver was a fellow student of the University. Because neither Turner nor the
University filed a claim (or counterclaim) for declaratory judgment and because a "motion
for a declaratory judgment" is a nullity, the trial court did not err by refusing to consider a
motion for summary judgment and the memorandum in opposition as "motions for
declaratory judgment." Construing the evidence most strongly in favor of Turner, we find
that the undisputed facts show that the student driver was not an agent of the University
No. 18AP-518                                                                                          2


and that the University cannot be nor is liable for the crash through the doctrine of
respondeat superior. We overrule all three assignments of error and affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On October 19, 2016, Turner sued the University for damages he sustained
on October 26, 2014, when a car, in which he was a passenger, crashed. (Oct. 19, 2016
Compl.; Oct. 27, 2016 Corrected Compl.) At the time of the crash, according to Turner's
deposition testimony, he was a sophomore student at the University and played on the club
ultimate frisbee team. (Turner Dep. at 9, filed Apr. 13, 2018.) He and his teammates had
driven from Cincinnati to Columbus, Ohio on Friday, October 24, 2014, for a frisbee
tournament known as the Fall Brawl. Id. at 15-16. Turner and his friends won the two-day
tourney and, after having dinner at Turner's house on Sunday, set out to return to
Cincinnati. Id. at 36. During this drive, near the outskirts of Cincinnati, for reasons not
clearly presented in the summary judgment record,1 the car crashed, seriously injuring all
of the occupants, including Turner. Id. at 36-37, 43-44, 52-53.
        {¶ 3} The driver of the car was an 18-year-old student by the name of Austin
"Connor" Messmore. Id. at 20. The vehicle in which Messmore, Turner, and three of their
other teammates were riding, was a car owned and insured by Messmore's family;
Messmore kept it on campus and used it frequently as a personal vehicle. Id. at 25. Turner
testified the ultimate frisbee club took a number of trips each season to tournaments. For
tournaments in Florida, Rockford, and Pittsburgh, the club rented vans through the
University. Id. at 27-30, 35. To go to California, the club flew. Id. at 28. He was not aware
at the time of the collision, but learned afterwards, that University policy required clubs to
procure rental vehicles through the University for trips in excess of 50 miles. Id. at 60. He
was aware that anyone driving such a rental vehicle was, by policy, required to be over 21
years of age. Id. at 63. Turner stated that student officers of the club were the persons who
made rental arrangements for the teams, that such officers went to University meetings
about club sports rules from time to time, but that such persons had not informed him of
any requirements regarding the use of rental vehicles as opposed to personal vehicles for
out-of-town club-related travel. Id. at 30-33, 54.



1Turner professed to have no recollection of the accident and was only able to recount what Austin Messmore
had told him about the crash. (Turner Dep. at 37-39.)
No. 18AP-518                                                                                3


       {¶ 4} Turner agreed that he had received a payout from Messmore's insurance
carrier and may have also received medical bill payments through his own health or auto
coverage. Id. at 49-52. However, he related that he did not have underinsured motorist
insurance. Id. at 50. He stated that the basis of his claim against the University was that
he thought it should have done a better job of providing reliable school transportation for
activities such as club team sports. Id. at 46-47.
       {¶ 5} The only other deponent to offer testimony in the case was Jeffrey Logsdon,
the program coordinator for club sports at the University. (Logsdon Aff. at ¶ 2, filed Apr. 13,
2018; Logsdon Dep. at 7, filed Apr. 13, 2018.) Logsdon testified that club sports are part of
the educational experience for students at the University and that running the clubs, filling
out the appropriate paperwork, and arranging their own transportation to club events is
also part of the educational process in that it teaches the students to navigate adult logistical
tasks. (Logsdon Dep. at 9, 112-13.) Logsdon testified that although the ultimate frisbee
club had existed in prior years, at the time of the crash, the ultimate frisbee club had not
filed the appropriate paperwork to register as an official University club sport for the 2014-
15 year. Id. at 19-20, 30-33, 41-42. The club eventually completed that task, however, after
the accident. Id. at 26. Logsdon explained that even assuming at the time of the accident
that the team had been a registered club sport of the University, it would have been required
to rent vehicles through the University for travel exceeding 50 miles from the Cincinnati
metropolitan area. Id. at 37-39, 48-49; see also Club Sport Handbook at 35, Ex. A to
Logsdon Aff. The University, he said, had a contract with Enterprise Rent-A-Car, through
which vehicles would be provided to club sports teams with substantially greater insurance
coverage than typically carried by individual drivers. (Logsdon Dep. at 49, 100.) This policy
was communicated to club sports student leaders at a kickoff meeting near the beginning
of the 2014-15 school year. Id. at 38-39, 106-09; see also Fall 2014 Kick-Off Meeting
PowerPoint at 32-40, Ex. 4 to Logsdon Dep. Logsdon testified that his department had no
records with which to verify that any representative of the ultimate frisbee club attended
the kickoff meeting. (Logsdon Dep. at 30-33.)
       {¶ 6} Based on the facts presented in the record, the University moved for
summary judgment on April 13, 2018. (Apr. 13, 2018 Mot. for Summ. Jgmt.) It argued that
the driver, Messmore, was not an agent of the University and that the ultimate frisbee club
No. 18AP-518                                                                             4


had failed to follow university policies that would have provided adequate insurance
coverage and prohibited Messmore from driving the team. Id. at 2. In addition to the
materials discussed above, the University also submitted a copy of its Joint Self-Insurance
Pool Automobile Liability Coverage Agreement with an authenticating affidavit. (Apr. 13,
2018 Conlin Aff., Ex. B.) This agreement reflects that coverage would extend to essentially
any automobile while any such automobile was "being used in the conduct of" University
"business." (Coverage Agreement, Automobile Liability Coverage at 4 of 12.) Covered
persons under the policy included:
               Any permitted user. Any person or organization to whom
               you've given permission to use a covered auto you own, rent,
               lease, hire or borrow is a protected person.

(Emphasis sic.) Id. at 6 of 12. The University argued that Turner had not made a claim
against its institutional automobile liability coverage and, even if he had, it would not
succeed as he was not a covered person in a covered automobile. (Mot. for Summ. Jgmt. at
5-6.)
        {¶ 7} Turner responded with a memorandum contra on May 18, 2018, requesting
the court "declare that Defendant's Insurance Policy covers his injuries and damages,
whereby rendering Defendant's Motion for Summary Judgment moot; or in the alternative,
[] request[ing] that Defendant's Motion for Summary Judgment be denied." (May 18, 2018
Memo. Contra at 1.) In other words, Turner argued that the University had filed a motion
for a declaratory judgment by asking the court to declare that its insurance policy did not
cover Turner and that Turner consequently requested that the court declare that he was
covered.   Id. at 3-4, 6-12.   Alternatively, Turner argued that the record shows that
Messmore, who allegedly drove negligently while transporting club sport athletes from an
athletic contest back to the University was acting as an agent of the University, attributing
negligence to the University. Id. at 12-14.
        {¶ 8} In its decision granting summary judgment to the University, the Court of
Claims observed that Turner did not seek declaratory judgment in his complaint and
declined to address such arguments or claims. (Decision at 4-5, 11-12.) The Court of Claims
concluded that it had jurisdiction to consider the motion for summary judgment before it
as a matter of statute, since the University (a State institution) was alleged to be negligent
based on the action of its employees, discussing issues of immunity under R.C. 109.36, 9.86,
No. 18AP-518                                                                             5


and 2743.16. (Decision at 6-7.) The Court of Claims concluded that Messmore, as a student
who had not been delegated authority to act on the University's behalf, was not an agent of
the University for the purposes of establishing liability. Id. at 7-10. It therefore granted
summary judgment to the University. Id. in passim; May 30, 2018 Jgmt. Entry.
       {¶ 9} Turner now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 10} Turner presents three assignments of error for review:
               [1.] THE COURT ERRED AS A MATTER OF LAW WHEN IT
               FAILED    TO   CONSIDER    DEFENDANT-APPELLEE'S
               MOTION FOR DECLARATORY JUDGMENT, PURSUANT TO
               SECTION 2721.02(B) OF THE OHIO REVISED CODE,
               DISGUISED AS A MOTION FOR SUMMARY JUDGMENT,
               AND HELD THAT IT DID NOT HAVE AUTHORITY TO
               DECIDE IF MESSMORE WAS A PROTECTED PERSON
               AND/OR DRIVING A COVERED AUTOMOBILE UNDER
               THE INSURANCE POLICY.

               [2.] THE COURT ERRED AS A MATTER OF LAW BY
               CONCLUDING THAT MESSMORE WAS NOT AN AGENT OF
               THE UNIVERSITY.

               [3.] THE COURT ERRED AS A MATTER OF LAW BY
               GRANTING SUMMARY JUDGMENT IN FAVOR OF
               DEFENDANT-APPELLEE BECAUSE REASONABLE MINDS
               COULD DIFFER ON THE ISSUE OF WHETHER MESSMORE
               WAS AN AGENT UNDER THESE FACTS.

III. DISCUSSION
   A. First Assignment of Error - Whether the Trial Court Should Have
      Considered the "Motion for Declaratory Judgment"
       {¶ 11} Turner argues that the trial court misconstrued which side moved for
declaratory judgment, that it should have considered the motion for summary judgment to
be, in substance, a motion for declaratory judgment, that declaratory relief is not precluded
by the existence of other adequate remedies, and that the declaratory judgment statutes
show that a court must determine a declaratory judgment claim unless there is no real
controversy between the parties or the declaration would not terminate the controversy.
(Turner's Corrected Brief at 16-23.) These arguments, however, are inapposite to the
structure of the complaint and the posture of this case.
No. 18AP-518                                                                                    6


       {¶ 12} Whether the University's motion for summary judgment is construed as a
motion for declaratory relief or whether Turner's memorandum contra is so construed, the
point that lies at the center of the trial court's analysis is that no party to this litigation filed
a claim for a declaratory judgment. The court said:
               We wait for cases to come to us, and when they do we normally
               decide only questions presented by the parties[.] Turner's
               corrected complaint does not present a declaratory-judgment
               claim for the court to adjudicate[.] [W]hen Turner filed his
               lawsuit in this court he "was aware" of the university's
               insurance policy, yet Turner did not present a claim for
               declaratory relief in his corrected complaint[.] Turner has not
               sought to amend his complaint * * * for the purpose of adding
               a claim for a declaratory judgment[.] [The University]
               expressly has moved for a summary judgment * * * regarding a
               complaint that does not contain a claim for a declaratory
               judgment.

(Citations and numbering omitted.) (Decision at 4.)
       {¶ 13} This is significant because a declaratory judgment can only be brought as a
claim, not as a motion.
               Appellant's request for a declaratory judgment cannot be
               adjudicated because it was not appropriately initiated.
               Appellant filed a motion for declaratory judgment, but a
               "motion" for a declaratory judgment is procedurally incorrect
               and inadequate to invoke the jurisdiction of the court pursuant
               to R.C. Chapter 2721. The declaratory judgment statutes
               contemplate a distinct proceeding that a party generally
               initiates by filing a complaint, not by including the declaratory
               judgment request in a motion filed in the middle of already
               existing litigation, as appellant did. Because neither the Civil
               Rules nor R.C. Chapter 2721 provide for it, the procedure
               appellant used here is a nullity, and the trial court's decision
               based upon the nonexistent procedure is reversible error.

(Citations omitted.) In re J.D.F., 10th Dist. No. 07AP-922, 2008-Ohio-2793, ¶ 9; see also,
e.g., Galouzis v. Americoat Painting Co., 7th Dist. No. 08-MA-196, 2009-Ohio-204, ¶ 17;
Fuller v. German Motor Sales, Inc., 51 Ohio App.3d 101, 103-04 (1st Dist.1988). Thus, the
Court of Claims was not permitted to adjudicate the University's motion for summary
judgment or Turner's memorandum contra by construing one or both of them as "motions
for declaratory judgment."
No. 18AP-518                                                                          7


      {¶ 14} The trial court did not err in declining to consider issuing a declaratory
judgment when neither party to the action made a claim (or counterclaim) for declaratory
judgment. Turner's first assignment of error is overruled.
   B. Second and Third Assignments of Error - Whether Messmore was an
      Agent of the University
      1. Summary Judgment Standard
      {¶ 15} Civ.R. 56 provides that:
               Summary judgment shall be rendered forthwith if the
               pleadings, depositions, answers to interrogatories, written
               admissions, affidavits, transcripts of evidence, and written
               stipulations of fact, if any, timely filed in the action, show that
               there is no genuine issue as to any material fact and that the
               moving party is entitled to judgment as a matter of law.

Civ. R. 56(C). The Supreme Court of Ohio has explained:
               Summary judgment will be granted only when there remains
               no genuine issue of material fact and, when construing the
               evidence most strongly in favor of the nonmoving party,
               reasonable minds can only conclude that the moving party is
               entitled to judgment as a matter of law. Civ.R. 56(C); Temple v.
               Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio Op.
               3d 466, 364 N.E.2d 267. The burden of showing that no
               genuine issue of material fact exists falls upon the party who
               files for summary judgment. Dresher v. Burt (1996), 75 Ohio
               St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264.

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Beverage Co.
v. Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9.
      {¶ 16} The Supreme Court has also discussed in detail the relative burdens of a
summary judgment movant and nonmovant:
               [A] party seeking summary judgment, on the ground that the
               nonmoving party cannot prove its case, bears the initial burden
               of informing the trial court of the basis for the motion, and
               identifying those portions of the record which demonstrate the
               absence of a genuine issue of material fact on the essential
               element(s) of the nonmoving party's claims. The moving party
               cannot discharge its initial burden under Civ.R. 56 simply by
               making a conclusory assertion that the nonmoving party has no
               evidence to prove its case. Rather, the moving party must be
               able to specifically point to some evidence of the type listed in
               Civ.R. 56(C) which affirmatively demonstrates that the
               nonmoving party has no evidence to support the nonmoving
No. 18AP-518                                                                            8


               party's claims. If the moving party fails to satisfy its initial
               burden, the motion for summary judgment must be denied.
               However, if the moving party has satisfied its initial burden, the
               nonmoving party then has a reciprocal burden outlined in
               Civ.R. 56(E) to set forth specific facts showing that there is a
               genuine issue for trial and, if the nonmovant does not so
               respond, summary judgment, if appropriate, shall be entered
               against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In deciding summary judgment, the trial
court must give the nonmoving party "the benefit of all favorable inferences when evidence
is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25. When
reviewing a trial court's decision on summary judgment, our review is de novo and we
therefore apply the same standards as the trial court. Bonacorsi v. Wheeling & Lake Erie
Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.
       2. Whether Messmore was an Agent of the University
       {¶ 17} An agency relationship may be express or implied (sometimes called
"apparent"). " 'Express authority is that authority which is directly granted to or conferred
upon the agent or employee in express terms by the principal, and it extends only to such
powers as the principal gives the agent in direct terms; and the express provisions are
controlling where the agency is expressly conferred.' " Cincinnati Golf Mgt. v. Testa, 132
Ohio St.3d 299, 2012-Ohio-2846, ¶ 24, quoting Master Consol. Corp. v. BancOhio Natl.
Bank, 61 Ohio St.3d 570, 574 (1991). But even in the absence of express authority, an
agency relationship may be implied where "(1) the principal held the agent out to the public
as possessing sufficient authority to embrace the particular act in question, or knowingly
permitted him to act as having such authority, and (2) * * * the person dealing with the
agent knew of those facts and acting in good faith had reason to believe and did believe that
the agent possessed the necessary authority." State v. Billingsley, 133 Ohio St.3d 277, 2012-
Ohio-4307, ¶ 26, quoting Master Consol. at syllabus.
       {¶ 18} When an agency relationship of some sort exists, the Supreme Court has
explained how vicarious liability may be imposed:
               "[I]t is a fundamental maxim of law that a person cannot be
               held liable, other than derivatively, for another's negligence.
               * * * [T]he most common form of derivative or vicarious
               liability is that imposed by the law of agency, through the
               doctrine of respondeat superior." This doctrine of liability
No. 18AP-518                                                                                9


               depends on the existence of control by a principal (or master)
               over an agent (or servant), terms that we have used
               interchangeably.

(Citations omitted.) Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-
3601, ¶ 20, quoting Albain v. Flower Hosp., 50 Ohio St.3d 251, 255 (1990), citing Hanson
v. Kynast, 24 Ohio St.3d 171, 173 (1986).
       {¶ 19} Yet, students are not automatically agents of the universities they attend, and
universities are not automatically liable for their actions. As the Supreme Court put it:
               A university offers a diversified educational experience which
               includes classroom instruction in a great variety of subjects as
               well as optional participation in events such as school clubs,
               and intramural and intercollegiate sports. All of these offerings
               are designed to expand and enrich a student's overall
               educational experience. Students evaluate and determine
               which university best meets their needs, and then pay a fee to
               attend that university. The relationship formed under these
               conditions has previously been characterized as contractual.
               Zumbrun v. U.C.L.A. (1972), 25 Cal. App. 3d 1, 10, 101 Cal.
               Rptr. 499, 502. The student pays a fee and agrees to abide by
               the university rules. In exchange, the university provides the
               student with a worthwhile education.

               This relationship does not constitute a principal-agent
               relationship. The student is a buyer of education rather than an
               agent. Restatement of the Law 2d, Agency (1958) 73, Section 14
               J, states that a buyer retains goods primarily for his own
               benefit, while an agent is one who retains goods primarily for
               the benefit of the one who delivers those goods. In the instant
               case, the "goods" to be delivered is an education and the
               university delivers that education to the student for a fee. It is
               clear that a student retains the benefit of that education for
               himself rather than for the university.

Hanson at 174. This is not to say that a student who becomes employed by the University
(as students sometimes do) cannot become an agent of a university—just that an agency
relationship is not created merely by the fact of being a student.
       {¶ 20} The critical question in this case is, since Messmore was not an agent of the
University by virtue of being one of its students, do the undisputed facts in the summary
judgment record nonetheless establish that he either expressly or impliedly became an
agent of the University when he drove his teammates from Columbus back to the
No. 18AP-518                                                                           10


University? Even construing the evidence most strongly in favor of Turner, there can be no
genuine dispute that the answer to that question is "no."
       {¶ 21} Neither party contends that the University asked Messmore to drive Turner
to and from Columbus or that there was any sort of express agreement between Messmore
and the University. (Corrected Compl. in passim.) Hence, there is no express agency
relationship.
       {¶ 22} As to the question of implied agency, Turner testified he believed Messmore
was not an employee of the University and Messmore never claimed to be. (Turner Dep. at
20.) In addition, the policies of the University make clear that, for trips of more than 50
miles from the Cincinnati metropolitan area (such as the one taken by Turner and the other
members of the ultimate frisbee team), paperwork should have been filed, a rental vehicle
with appropriate insurance coverage obtained through the University, and someone older
than Messmore (who was age 18) at the wheel. (Turner Dep. at 60, 63; Logsdon Dep. at 37-
39, 48-49, 106-07, 119; Club Sport Handbook at 35; Fall 2014 Kick-Off Meeting PowerPoint
at 32-40.) No agency can be implied when 18-year-old Messmore drove his family's vehicle
to transport members of the University's ultimate frisbee club with no evidence of any
actions taken to even notify the University that its team members were traveling. (Turner
Dep. at 20, 25-26; Logsdon Dep. at 18, 23-24, 40-45.)
       {¶ 23} Nor did Messmore suggest to Turner that he had been authorized to drive as
the University's agent and the record does not reflect that Turner believed that to be the
case. We find no agency relationship to create derivative liability through respondeat
superior between Messmore and the University, either express or implied. Turner's second
and third assignments of error are overruled.
IV. CONCLUSION
       {¶ 24} Neither party to this case filed a claim (or counterclaim) for declaratory
judgment. Because a "motion for a declaratory judgment" is not recognized under the law,
the Court of Claims did not err by refusing to consider as related to the University's motion
for summary judgment and the memorandum contra to it, as "motions for declaratory
judgment." Construing the evidence most strongly in favor of Turner, the nonmoving party,
and giving him the benefit of all reasonable inferences, there is no genuine issue of fact as
to Messmore's status. Messmore was merely a student of the University, not its agent,
either express or implied. The University is not liable for any negligence of Messmore in
No. 18AP-518                                                                        11


causing the crash through the doctrine of respondeat superior. We overrule all three of
Turner's assignments of error and affirm the judgment of the Court of Claims of Ohio.
                                                                    Judgment affirmed.
                    DORRIAN and LUPER SCHUSTER, JJ., concur.
