[Cite as Patel v. Univ. of Toledo, 2016-Ohio-3153.]


CHANDNI PATEL                                         Case No. 2015-00228

        Plaintiff                                     Judge Patrick M. McGrath
                                                      Magistrate Anderson M. Renick
        v.
                                                      ENTRY GRANTING DEFENDANT’S
UNIVERSITY OF TOLEDO                                  MOTION FOR SUMMARY JUDGMENT

        Defendant



        {¶1} On February 16, 2016, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B).             On March 1, 2016, plaintiff filed a response and an
unopposed motion to extend the page limitations, which is GRANTED. On March 8,
2016, defendant filed a reply and a motion for leave to file the same, which is
GRANTED. The motion for summary judgment is now before the court for a non-oral
hearing. L.C.C.R. 4.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
Case No. 2015-00228                         -2-                                    ENTRY


       {¶4} On August 21, 2012, plaintiff enrolled in defendant University of Toledo’s
(UT) graduate bachelor of science in nursing to doctor of nursing program (BSN-DNP).
During the period in question, the BSN-DNP was pending accreditation by the
Commission on Collegiate Nursing Education (CCNE), the national accrediting
organization for college nursing programs. In support of its motion, defendant submitted
the affidavit of Kelly Phillips, the Interim Dean of the College of Nursing at UT. Phillips
avers that the CCNE accreditation process involves several phases and “takes several
years” to complete.    Attached to Phillips’ affidavit are numerous documents which
explain in detail CCNE standards, procedures, and guidelines for accreditation.
       {¶5} According to plaintiff, on the first day of classes, she expressed her concern
that the program was not accredited to Dean Timothy Gaspar, whereupon Dean Gaspar
informed the students that he believed the program would be accredited before the first
student graduated. (Plaintiff’s affidavit, ¶ 9-12.) In January 2014, plaintiff contacted her
advisor and asked whether she could graduate early, in August 2015. Plaintiff avers
that her advisor and the BSN-DNP program director, Dr. Chen, “indicated” that it was
possible for plaintiff to graduate early if she took courses during the summer of 2015.
Id. ¶ 25. Plaintiff subsequently learned that the program would not be accredited by
August 2015 and she inquired whether she could graduate from a master-in-nursing
(MSN) program which had “many overlapping courses.” Id. ¶ 30-31. After plaintiff
learned that she could not transfer to another program, she withdrew from defendant’s
program and transferred to another institution to complete her BSN-DNP.
       {¶6} In her complaint, plaintiff alleges negligent misrepresentation, breach of
fiduciary duty, fraud, breach of contract, unjust enrichment/promissory estoppel, and
negligence. Defendant contends that plaintiff’s rights as a student in the program were
contractual and that the contract did not support any of her claims. The court agrees.
Case No. 2015-00228                        -3-                                    ENTRY


BREACH OF CONTRACT
      {¶7} To recover upon a breach of contract claim, a plaintiff must prove “‘the
existence of a contract, performance by the plaintiff, breach by the defendant, and
damage or loss to the plaintiff.’” Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 2002-
Ohio-443 (10th Dist.), quoting Nilavar v. Osborn, 137 Ohio App.3d 469, 483 (2nd Dist.
2000). There is no dispute that a contractual relationship existed between plaintiff and
defendant.
      {¶8} “It is axiomatic that ‘* * * when a student enrolls in a college or university,
pays his or her tuition and fees, and attends such school, the resulting relationship may
reasonably be construed as being contractual in nature.” Bleicher v. Univ. of Cincinnati
College of Med., 78 Ohio App.3d 302, 308 (10th Dist.1992), quoting Behrend v. State,
55 Ohio App.2d 135, 139 (10th Dist.1977).        “This contract is typically found in a
handbook, catalogue, or other guideline.” Tate v. Owens State Community College,
10th Dist. Franklin No. 10AP-1201, 2011-Ohio-3452, ¶ 21.           “However, where the
contract permits, the parties may alter its terms by mutual agreement, and any
additional terms will supersede the original terms to the extent the two are
contradictory.” Lewis v. Cleveland State Univ., 10th Dist. Franklin No. 10AP-606, 2011-
Ohio-1192, ¶ 14.
      {¶9} Although plaintiff states in her complaint that she was concerned about the
lack of accreditation and that “without a guarantee of accreditation, no reasonable
person would choose to attend, or continue to attend, nursing school,” plaintiff admits
that, at the time she began taking classes at UT, she knew the program was not
accredited. Plaintiff does not allege that the terms of UT’s handbook, catalogue, or
other guideline either provided or suggested the BSN-DNP program had been
accredited by CCNE before she enrolled, or that it would be accredited by CCNE before
she graduated.
Case No. 2015-00228                          -4-                                    ENTRY


       {¶10} To the extent that plaintiff argues certain “promises” were made to induce
her to remain in the program and that such promises manifested a modification of the
original agreement, “‘absent fraud, mistake or other invalidating cause, the parties’ final
written integration of their agreement may not be varied, contradicted or supplemented
by evidence of prior or contemporaneous oral agreements, or prior written
agreements.’” Miller v. Lindsay-Green, Inc., 10th Dist. Franklin No. 04AP-848, 2005-
Ohio-6366, ¶ 36, quoting Galmish v. Cicchini, 90 Ohio St.3d 22, 27, 2000-Ohio-7.
Plaintiff has not alleged a conflict, mistake, ambiguity, or uncertainty as to interpretation
of the contract terms. Although Dean Gaspar testified that he is certain that he did not
and “would never” tell students that the program would be accredited before the first
student graduated, even if the court accepted that Dean Gaspar made the alleged
comments, such comments would not constitute a mutual agreement which would alter
the original terms of the contract.     The court finds that UT is entitled to summary
judgment on plaintiff's claim of breach of contract.

UNJUST ENRICHMENT/PROMISSORY ESTOPPEL
       {¶11} Plaintiff pleads the theories of unjust enrichment and promissory estoppel
as a single claim. Plaintiff alleges that UT made promises which were ultimately untrue
and that she reasonably relied on those promises to her detriment.              A claim of
promissory estoppel requires: 1) a clear and unambiguous promise, 2) reliance by the
party to whom the promise was made, 3) reasonable and foreseeable reliance, and 4)
the party relying on the promise must have been injured by the reliance. Callander v.
Callander, 10th Dist. Franklin No. 07AP-746, 2008-Ohio-2305, ¶ 33, citing Patrick v.
Painesville Commercial Properties, Inc. 123 Ohio App.3d 575, 583 (11th Dist.1997). “In
Ohio, [w]here the parties have an enforceable contract and merely dispute its terms,
scope, or effect, one party cannot recover for promissory estoppel.” (internal citation
omitted)) Valente v. Univ. of Dayton, 438 F.Appx. 381, 386 (6th Cir.2011), quoting
O’Neill v. Kemper Ins. Cos., 497 F.3d 578, 583 (6th Cir. 2007).
Case No. 2015-00228                         -5-                                     ENTRY


       {¶12} Plaintiff’s claims involve alleged promises regarding future events that
plaintiff believes modified the contractual relationship between the parties. Even if the
alleged promises were proved to have been made, it was not reasonable or foreseeable
either for plaintiff to believe that Dean Gaspar had the authority to guarantee that the
program would be accredited by CCNE prior to graduation, or for plaintiff to rely on his
promise. Furthermore, “under Ohio law, the state cannot be estopped by acts of its
agents not within their actual authority, even if such acts, under similar circumstances,
might be within the implied or apparent authority of the agent of a private person.”
Raabe v. Ohio Bd. of Speech-Language Pathology & Audiology, 10th Dist. Franklin No.
04AP-954, 2005-Ohio-2335, ¶ 37. Moreover, “Ohio law requires that ‘whoever relies on
the conduct of public authorities must take notice of the limits of their power.’” Id.,
quoting Nealon v. Cleveland, 140 Ohio App.3d 101, 109 (8th Dist.2000).
       {¶13} There is no question that Dean Gaspar did not have the authority to
guarantee the nursing program would be accredited by a certain date.             Therefore,
plaintiff cannot prevail on her unjust enrichment/promissory estoppel claim.

TORT CLAIMS
       {¶14} “[U]nder Ohio law, the existence of a contract action generally excludes a
cause of action based upon the same conduct sounding in tort.” Hanlin v. Ohio Builders
& Remodelers, Inc., 196 F.Supp.2d 572, 579 (S.D.Ohio 2001) citing Wolfe v.
Continental Cas. Co., 647 F.2d 705 (6th Cir.1981); Valente v. Univ. of Dayton, 689
F.Supp.2d 910, 923 (S.D.Ohio 2010).          Inasmuch as the relationship between a
university and its students is contractual and all of plaintiff’s tort claims arise from the
same course of events, such claims can be disposed of summarily.               Valente, 438
F.Appx. at 386.

BREACH OF FIDUCIARY DUTY
Case No. 2015-00228                           -6-                                   ENTRY


       {¶15} A fiduciary is a person or entity that has a duty, created by his undertaking,
to act primarily for the benefit of another in matters connected with his undertaking.
State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, ¶ 35. “The elements for a
breach-of-fiduciary-duty claim include the following: ‘(1) the existence of a duty arising
from a fiduciary relationship; (2) a failure to observe the duty; and (3) an injury resulting
proximately therefrom.’” Valente, 438 F.Appx. at 387, quoting Wells Fargo Bank, N.A.
v. Sessley, 188 Ohio App.3d 213, 2010-Ohio-2902 (10th Dist.).
       {¶16} Plaintiff cites authority from outside Ohio in support of her claim. However,
the Sixth Circuit Court of Appeals has observed that Ohio courts have not applied a
breach of fiduciary duty claim to the university-student context.       Furthermore, Ohio
“‘courts have been reluctant to characterize relationships between individuals as being
fiduciary in nature, with the obvious exception of those relationships that involve
statutorily-imposed duties.’” Id., quoting Casey v. Reidy, 180 Ohio App.3d 615, 2009-
Ohio-415, 1145 (7th Dist.).
       {¶17} The court finds that the relationship between plaintiff and UT regarding the
accreditation status of the program was purely contractual and not fiduciary. Therefore,
plaintiff’s claim for breach of fiduciary duty is without merit.

NEGLIGENT MISREPRESENTATION
       {¶18} Negligent misrepresentation is defined as “’[o]ne 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.’” (Emphasis sic.) Rece v.
Dominion Homes, Inc., 10th Dist. Franklin No. 07AP-295, 2008-Ohio-24, ¶ 23, quoting
Delman v. Cleveland Heights, 41 Ohio St.3d 1, 4 (1989).
Case No. 2015-00228                          -7-                                    ENTRY


       {¶19} In Valente, 689 F.Supp.2d, supra, the federal district court found that
comments allegedly made by a dean of the University of Dayton to a student regarding
proceedings before a university honor council panel did not support a claim of negligent
misrepresentation inasmuch as the dean had no pecuniary interest in her interaction
with the plaintiff. Id. at 928. Likewise, Dean Gaspar had no pecuniary interest in his
alleged interaction with plaintiff regarding the accreditation process. Furthermore, in
this case, the court finds that plaintiff could not have justifiably relied on any promise by
Dean Gaspar that CCNE would necessarily decide to accredit the program at a certain
time in the future. Accordingly, defendant is entitled to judgment as a matter of law on
       {¶20} Plaintiff’s negligent misrepresentation claim.

FRAUD
       {¶21} “Fraud is defined as: (1) a representation or, where there is a duty to
disclose, concealment of a fact; (2) which is material to the transaction at hand; (3)
made falsely, with knowledge of its falsity, or with such utter disregard and recklessness
as to whether it is true or false that knowledge may be inferred; (4) with the intent of
misleading another into relying upon it; (5) justifiable reliance upon the representation or
concealment; and (6) a resulting injury proximately caused by the reliance.” Martin v.
Ohio State Univ. Found., 139 Ohio App.3d 89, 98 (2000).            Generally, promises or
representations concerning future actions or conduct cannot serve as a basis for fraud
because such statements are merely opinions or predictions, not fraudulent
misrepresentations. Id.
       {¶22} In this case, the allegedly fraudulent statements of fact are pled as mere
promises that the program would be accredited in the future. Plaintiff has not offered
any proof of fraudulent intent on the part of Dean Gaspar, or any other UT official.
Accordingly, plaintiff cannot prevail on her fraud claim.

NEGLIGENCE
Case No. 2015-00228                         -8-                                     ENTRY


       {¶23} In addition to her negligent misrepresentation claim, plaintiff alleges a claim
for ordinary negligence. In order for plaintiff to prevail upon her claim of negligence, she
must prove by a preponderance of the evidence that defendant owed her a duty, that
defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81,
2003-Ohio-2573, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77
(1984).
       {¶24} Plaintiff alleges that UT owed her a duty of reasonable care in structuring
her nursing program in a way that ensured accurate information would be received by
its students. Plaintiff contends that UT breached its duty regarding the accreditation
status of the program.
       {¶25} Although plaintiff seeks to recover economic loss through UT’s negligence,
absent tangible physical harm to persons or tangible things, there is generally no duty to
exercise reasonable care to avoid economic losses to others. Clemens v. Nelson Fin.
Grp., Inc., 10th Dist. Franklin No. 14AP-537, 2015-Ohio-1232, ¶ 34. Furthermore, “an
action of tort for negligence cannot be maintained unless the defendant's conduct
constituted the breach of a duty imposed by law, apart from it being a breach of an
obligation created by agreement of the parties, either express or implied.” Valente, 438
F.Appx. at 387.
       {¶26} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment is GRANTED.              Judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. All
other pending motions are DENIED as moot. 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.
Case No. 2015-00228               -9-                                 ENTRY




                                        PATRICK M. MCGRATH
                                        Judge

cc:
Avonte D. Campinha-Bacote          Ashley A. Barbone
Joseph B. Russell                  Assistant Attorney General
Two Miranova Place, Suite 500      30 East Broad Street, 17th Floor
Columbus, Ohio 43215               Columbus, Ohio 43215




Randall W. Knutti
Stacy L. Hannan
Assistant Attorneys General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Filed April 15, 2016
Sent to S.C. Reporter 5/25/16
