[Cite as Marok v. Ohio State Univ., 2012-Ohio-6362.]



                                                       Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us



THEODORE K. MAROK, III

       Plaintiff

       v.

THE OHIO STATE UNIVERSITY

       Defendant

Case No. 2006-06736

Judge Joseph T. Clark
Magistrate Anderson M. Renick

JUDGMENT ENTRY

        {¶ 1} On July 25, 2011, this court entered judgment for defendant, The Ohio
State University (OSU). On June 12, 2012, the court of appeals reversed the judgment
of this court and remanded the case for further proceedings. Marok v. The Ohio State
Univ., 10th Dist. No. 11AP-744, 2012-Ohio-2593.
        {¶ 2} The facts and procedural history of this case were set forth in the opinion of
the court of appeals:
        {¶ 3} “Plaintiff filed a complaint ‘for monetary damages & injunctive relief,’ against
defendant. Marok v. The Ohio State Univ., 10th Dist. No. 07AP-921, 2008-Ohio-3170, ¶
2. According to the complaint, plaintiff was a student at OSU and was pursuing a
Bachelor’s degree until OSU dismissed him as a student on December 24, 1999. Id.
After filing an answer to the complaint, OSU filed a motion for judgment on the
pleadings, seeking judgment based on the applicable statute of limitations. Id. at ¶ 3.
OSU later added its assertion that res judicata barred plaintiff’s complaint to the extent
the complaint could be interpreted to assert a cause of action related to certain student
loans OSU administered. Id. at ¶ 5.
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       {¶ 4} “On October 3, 2007, the Court of Claims granted OSU’s motion for
judgment on the pleadings, concluding either the statute of limitations, res judicata, or
both barred plaintiff’s claims. Id. at ¶ 7. Plaintiff appealed, assigning nine errors, the
first two of which asserted the court erred in granting OSU judgment on the pleadings
based on the statute of limitations and res judicata. We agreed, reversed the judgment
of the Court of Claims, and remanded for further proceedings. Id. at ¶ 14.
       {¶ 5} “On remand, the Court of Claims ordered the trial bifurcated, with the
liability phase of the trial scheduled for November 2 and 3, 2009. The liability trial
began before a magistrate as scheduled, and the magistrate issued a decision on May
3, 2011, recommending judgment for OSU.
       {¶ 6} “On May 17, 2011, plaintiff filed five motions in the Court of Claims, only
one of which is significant to resolving this appeal: a motion regarding alternative
technology under Civ.R. 53. Plaintiff’s motion sought to have the court use its own
video and audio recordings of the trial before the magistrate, as opposed to a written
transcript of the proceedings, to review plaintiff’s objections to the magistrate’s decision.
On May 19, 2011, the Court of Claims filed an entry denying as moot plaintiff’s first four
motions. As to his Civ.R. 53 motion, the court stated that ‘[p]laintiff’s motion for leave to
view the court’s recording of the trial is GRANTED, such that plaintiff may view the
recording at the court.’ (Emphasis sic.)
       {¶ 7} “Plaintiff followed his May 17 motion regarding alternative technology with a
June 15, 2011 ‘Affidavit of the Evidence.’        In it, he asked the court ‘to accept the
attached Affidavit of the Evidence to complete its review of the magistrate’s
recommendations as this court has already granted leave to use alternative technology
Case No. 2006-06736                              -3-                         JUDGMENT ENTRY




or manner of reviewing the relevant evidence.’ (Emphasis sic.) Attached to the June 15
motion is plaintiff’s certification stating plaintiff took part in the liability trial, ‘[t]he court of
claims recordings and evidence are held safe by the clerk of courts, [and] they are true
to the best of my knowledge.’
       {¶ 8} “In reviewing plaintiff’s objections to the magistrate’s decision, the Court of
Claims specifically observed ‘that plaintiff has not filed a transcript of the proceedings
held before the magistrate in support of such objections.’ (Judgment Entry, 2.) The
court further noted that ‘the recording referred to in plaintiff’s affidavit is not a transcript
of proceedings pursuant to Civ.R. 53(D)(3)(b)(iii).’ (Judgment Entry, 2.) It likewise
pointed out that, ‘although Civ.R. 53(D)(3)(b)(iii) allows a party to submit an affidavit of
evidence in lieu of a transcript where the transcript of proceedings is ‘not available,’
plaintiff has made no showing of unavailability.’ (Judgment Entry, 3.) Because plaintiff
provided the court with neither a transcript of all the evidence nor an affidavit, the court
limited its review ‘to the four corners of the magistrate’s decision and to whether the
magistrate erred as a matter of law.’ (Judgment Entry, 3.)
       {¶ 9} “Based on its review of the magistrate’s decision, the Court of Claims
concluded the statute of limitations barred plaintiff’s contract claim, the doctrine of res
judicata barred plaintiff’s claims regarding his student loans, the doctrine of economic
loss barred recovery based on his theory of negligence, and the existence of contracts
between the parties precluded his claim of unjust enrichment. Accordingly, the Court of
Claims entered judgment for OSU.” Marok, supra, 2012-Ohio-2593, ¶ 2-8.
       {¶ 10} The court of appeals remanded the case to this court with the following
instructions:      “In light of the central role the magistrate’s factual findings served in
the Court of Claims’ decision to overrule plaintiff’s objections, we are compelled to
Case No. 2006-06736                          -4-                      JUDGMENT ENTRY




reverse the judgment of the Court of Claims, and remand this matter to that court. On
remand, the Court of Claims should reconsider plaintiff’s motion, determine whether it
will grant plaintiff leave to have the court use the court’s recordings in lieu of a
transcript, and then resolve the objections accordingly.” Id. at ¶ 14.
       {¶ 11} In accordance with the order of remand, the court has considered anew,
plaintiff’s motion seeking leave for the court to consider alternative technology in
reviewing the evidence.        Plaintiff’s motion provides in relevant part:    “Pursuant to
Civ.R.53, Now comes Plaintiff Theodore Keith Marok III hereby requests this Honorable
Court to grant leave for this court to use its own video and audio recordings to review
the trial. For the following reason: Due to the length it took to render a Magistrate
decision the transcripts for the trial needs to be un archived from its files it will take
some time to receive a copy of the transcripts and to file a copy with this court. For the
forgoing reasons the plaintiff requests this Honorable Court to grant the Plaintiff
Leave for this court to use its own video and audio recordings to review the trial
and the Magistrate Decision.” (Original emphasis.)
       {¶ 12} The court notes that the transcript of proceedings was made part of the
record on appeal and it is now available to this court. Consequently, plaintiff’s argument
in support of his motion for leave is moot. Nevertheless, in an abundance of caution,
and in an effort to fully comply with the order of the court of appeals, plaintiff’s motion is
GRANTED. The court shall refer to its own recordings on Digital Video Disk in ruling
upon plaintiff’s objections.
Case No. 2006-06736                         -5-                       JUDGMENT ENTRY




       {¶ 13} Based upon the court’s independent review of both the transcript and the
DVD recordings, the court finds that plaintiff’s claims in this matter arise either out of his
student contract or the statutory provisions governing personal information systems.
       {¶ 14} As noted above, the magistrate recommended judgment in favor of
defendant as to each of plaintiff’s claims because plaintiff failed to file his complaint
within two years of the transaction or occurrence giving rise to such claims. In adopting
the magistrate’s decision, the court agreed with the magistrate’s legal conclusions
regarding the applicability of both the discovery rule and the rule of continuing
violations. However, due to the lack of a transcript, the court did not consider plaintiff’s
challenge to the magistrate’s factual findings.
       {¶ 15} In this regard, plaintiff claims that his cause of action upon the contract did
not accrue on February 29, 2002, as was the magistrate’s determination. The decision
relied largely upon the testimony of Deborah Terry, who was employed by the OSU
Bursar’s office, and the documents referred to by Terry during her testimony. The court
has reviewed such testimony and, based thereon, the court agrees with the magistrate’s
finding. Indeed, plaintiff’s claim that Terry’s testimony was inconsistent, contradictory
and lacking credibility is simply not supported by the evidence.
       {¶ 16} Accordingly, plaintiff’s objections shall be overruled as they relate to
Terry’s testimony and to the magistrate’s factual findings based upon such testimony.
       {¶ 17} Plaintiff also objects to the magistrate’s findings relating to his claims
brought pursuant to Chapter 1347 of the Revised Code. Specifically, plaintiff claims that
the magistrate ignored evidence tending to show that, as late as 2005, OSU failed or
refused to provide him with copies of his personal information. The court has reviewed
the transcript and DVD recording and makes the following determination:
Case No. 2006-06736                         -6-                       JUDGMENT ENTRY




       {¶ 18} In a letter dated March 28, 2005, plaintiff complains that documentation
regarding his student debt has not been forwarded to him per his numerous requests.
In a subsequent letter dated April 25, 2005, plaintiff seeks to negotiate his student debt
and, in this context, he requests copies of promissory notes, loan applications and
payment records.       Although both letters reference telephone conversations plaintiff
allegedly had with unidentified OSU employees, neither of the letters is addressed to
any particular employee or department at OSU.
       {¶ 19} Plaintiff claims that OSU violated Chapter 1347 of the Revised Code both
by failing to provide him with all documents related to OSU’s collection efforts, and by
failing to forward copies of his academic records to Bowling Green State University
(BGSU) upon his request.
       {¶ 20} R.C. 1347.08, entitled “Rights of subject of personal information,” provides
in relevant part:
       {¶ 21} “(A) Every state or local agency that maintains a personal information
system, upon the request and the proper identification of any person who is the subject
of personal information in the system, shall:
       {¶ 22} “* * *
       {¶ 23} “(2) Except as provided in divisions (C) and (E)(2) of this section, permit
the person, the person’s legal guardian, or an attorney who presents a signed written
authorization made by the person, to inspect all personal information in the system of
which the person is the subject * * *.”
       {¶ 24} R.C. 1347.10 imposes civil liability for violations as follows:
Case No. 2006-06736                         -7-                       JUDGMENT ENTRY




        {¶ 25} “(A) A person who is harmed by the use of personal information that
relates to him and that is maintained in a personal information system may recover
damages in civil action from any person who directly and proximately caused the harm
by doing any of the following:
        {¶ 26} “* * *
        {¶ 27} “(4) Intentionally denying to the person the right to inspect and dispute the
personal information at a time when inspection or correction might have prevented the
harm.
        {¶ 28} “An action under this division shall be brought within two years after the
cause of action accrued or within six months after the wrongdoing is discovered,
whichever is later; provided that no action shall be brought later than six years after the
cause of action accrued. The cause of action accrues at the time that the wrongdoing
occurs.” (Emphasis added.)
        {¶ 29} The evidence supports the magistrate’s conclusions that the conduct
complained of by plaintiff occurred more than two years prior to the date when plaintiff
filed his complaint in this court. In fact, plaintiff’s correspondence specifically state that
he had been trying to resolve his OSU debt for the past five years. Plaintiff’s own
testimony establishes that his efforts to matriculate at BGSU occurred in 2003.
Moreover, there is insufficient evidence to support a finding that        OSU intentionally
denied plaintiff his right to inspect, dispute or make copies of any information in his OSU
records. The statute does not obligate OSU to send plaintiff copies of all of his records
simply because plaintiff makes a written request. Rather, the statute requires OSU to
make such records available to plaintiff for inspection and permits plaintiff both to
receive copies of documents and dispute information contained in such documents.
Case No. 2006-06736                         -8-                       JUDGMENT ENTRY




       {¶ 30} Plaintiff next contends that the magistrate erred in failing to find that OSU
wrongfully refused to forward a copy of his official academic transcript to BGSU. More
particularly, plaintiff claims that OSU’s policy of placing a “hold” on the transcripts of
students with delinquent accounts violates Chapter 1347 of the Revised Code. Again,
the evidence does not show that OSU failed or refused to permit plaintiff to inspect
academic records contained in OSU’s personal information system and then provide
him with copies.     Rather, the evidence demonstrates that OSU simply refused to
forward a copy of his official OSU transcript to BGSU without first receiving payment
from plaintiff of his student debt. Indeed, plaintiff testified that he entered into an oral
agreement with OSU in 2003, whereby OSU promised to release his academic records
to BGSU in return for his promise to begin making payments on his delinquent account.
Although plaintiff now complains that OSU failed to release his records, he failed to
prove or even allege that he made the payments as agreed.
       {¶ 31} In short, upon review of the transcript of proceedings, the DVD recordings
and the other evidence admitted in the trial, the court finds that the magistrate correctly
determined the date when plaintiff’s claims accrued and correctly concluded that each
of his claims for relief was barred by the R.C. 2743.16. Furthermore, to the extent that
plaintiff has alleged a claim for relief under R.C. 1347.10(A)(4), the evidence does not
show a violation by OSU within the limitations period prescribed therein. Accordingly,
plaintiff’s objections regarding the timeliness of his claims shall be overruled.
       {¶ 32} To the extent that plaintiff’s objections challenge the magistrate’s
application of the doctrine of res judicata in concluding that plaintiff was barred from
litigating claims in this court that could or should have been raised in the Franklin
Case No. 2006-06736                          -9-                        JUDGMENT ENTRY




County Municipal Court, this court has previously determined that the magistrate made
no error of law. Furthermore, a review of the evidence presented to the magistrate
confirms the magistrate’s factual finding regarding the subject matter of the claims
asserted by the parties to the municipal court action and the judgment entered thereon.
Thus, the facts support the application of the doctrine as a bar to plaintiff’s claims in this
case.   Moreover, as stated above, even if plaintiff’s claims were not barred by res
judicata, such claims were subsequently barred by the applicable statute of limitations.
Accordingly, plaintiff’s objection in this regard shall be overruled.
        {¶ 33} Plaintiff’s objection to the magistrate’s conclusion regarding his claim for
unjust enrichment are also without merit as there is no evidence to support a finding of
fraud, bad faith or other illegality which would permit an equitable claim for relief in lieu
of plaintiff’s claim upon the contract. See Aultman Hosp. Assn. v. Community Mut. Ins.
Co., 46 Ohio St.3d 51, 55 (1989).
        {¶ 34} Upon review of the record, the magistrate’s decision and the objections,
the court finds that the magistrate has properly determined the factual issues and
appropriately applied the law. Therefore, the objections are OVERRULED and the court
adopts the magistrate’s decision and recommendation as its own, including findings of
fact and conclusions of law contained therein.          Judgment is rendered in favor of
defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.


                                           _____________________________________
                                           JOSEPH T. CLARK
                                           Judge
Case No. 2006-06736               - 10 -                  JUDGMENT ENTRY




cc:


Douglas R. Folkert                   Theodore K. Marok, III
Assistant Attorney General           4146 Lyman Avenue
150 East Gay Street, 18th Floor      Toledo, Ohio 43612
Columbus, Ohio 43215-3130

006
Filed December 4, 2012
To S.C. Reporter March 22, 2013
