[Cite as Sweeney v. Youngstown State Univ., 2011-Ohio-2731.]

                                     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




SUSAN MARIE SWEENEY

       Plaintiff

       v.

YOUNGSTOWN STATE UNIVERSITY

       Defendant

        Case No. 2008-09929-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On September 25, 2008, plaintiff, Susan Marie Sweeney, filed a complaint
against defendant, Youngstown State University (YSU), alleging that YSU refused to
allow her to take a graduate level flute course that she had paid for in advance. Plaintiff
initially sought damages in the amount of $3,000, of which $2,000 represented loss of
tuition and $1,000 represented alleged emotional injury.
        {¶ 2} On October 19, 2009, a judge of the Court of Claims issued an entry
wherein plaintiff’s claim for emotional injury was dismissed and the case was transferred
to the administrative docket inasmuch as plaintiff’s claim for damages does not exceed
$2,500.00. See, R.C. 2743.10. Pursuant to the October 19, 2009 entry, plaintiff’s claim
is limited to her stated tuition loss of $2,000.00.
        {¶ 3} In her complaint, plaintiff alleges that she enrolled and was accepted into
the Dana School of Music and that YSU accepted a tuition payment of $4,800.00.
Plaintiff further alleges that she “had been a music student [there] from 1995 off and on
up until 2007 Spring semester.” According to plaintiff, she registered at YSU to take a
graduate level course in music during the Spring semester 2007,1 and that prior to
enrollment, she was not notified that she would have to pass an audition to continue in
the course. Plaintiff states that the flute instructor, Katherine Humble, did not schedule
the audition until more than thirty days after plaintiff paid her fees, and that the instructor
subsequently “denied my audition.” Thus, plaintiff seeks to recover a tuition refund of
$2,000.00 “for the flute course they never let me take.” In addition, plaintiff alleges that
YSU has placed her on academic probation and that, as such, she is prohibited from
receiving financial aid. Finally, plaintiff asserts that YSU has “basically black-balled me
in my chosen field of education.” Plaintiff paid the $25.00 filing fee.
        {¶ 4} Defendant denies liability and argues that plaintiff never applied to or was
admitted to YSU’s Dana School of Music. Rather, defendant contends that plaintiff was
accepted into graduate school as a non-degree applicant after she applied on January
18, 2008. Defendant acknowledges that the Spring semester started on January 14,
2008, and that on January 22, 2008, plaintiff registered via computer for Flute 6901,
which offered two credit hours in flute instruction.          According to the affidavit submitted
by Michael Crist, Director of the Dana School of Music, an undergraduate degree in
music is a requirement to study an instrument at the graduate level. He avers that
plaintiff was contacted in January 2008 and asked to withdraw from the course
inasmuch as plaintiff had not auditioned prior to registration and she did not have the
necessary prerequisites.        Crist asserts that plaintiff refused to drop the course and
instead requested an audition, which eventually took place on February 15, 2008. Crist
stated that plaintiff did not withdraw from the course and that therefore, she received a
failing grade.
        {¶ 5} Jeanne Herman, YSU’s registrar, also provided an affidavit which
defendant attached to the investigation report. Herman stated that plaintiff was advised
that she could file a petition to convert the failing grade to “W” and that if the petition
was approved such change would reflect that she had withdrawn from the course. In
addition, plaintiff was instructed that she could file an appeal to seek a refund of the
tuition paid to take the flute course and that to do so she would need to establish that
she never attended the class. Nonetheless, Herman averred that YSU never received

        1
          Although plaintiff lists Spring semester 2007, documentation submitted by plaintiff on December
24, 2008, establishes that plaintiff’s claim arose during the Spring semester 2008.
such petition or appeal.
       {¶ 6} Defendant also references portions of YSU’s Bulletin, Graduate Edition
2006-2008. As stated in the bulletin (copy submitted), non-degree status “provides an
opportunity for individuals who hold a baccalaureate or higher degree to enroll in
graduate classes for professional or personal development, * * * without completion of
the regular graduate admission process. Departments may require prior approval for
nondegree student registration in departmental courses. * * * Nondegree students are
ineligible for any financial aid or assistantships through the School of Graduate Studies
and Research.”
       {¶ 7} On page 36 of the bulletin, students are warned that “the student agrees
to pay all tuition and fees associated with the registration. Failure to withdraw does not
release the student from his or her financial obligation incurred by registration.”
Likewise, on page 37, students are reminded that “[w]ithdrawal from a course must be
accomplished through the online registration system.           Failure to attend class or
notification to an instructor is insufficient. A grade of F will be recorded unless a student
officially withdraws.”
       {¶ 8} Defendant argues that plaintiff was informed of the audition requirement
and that she chose to proceed with the audition rather than to drop the course. Once
plaintiff was notified that she would not be allowed to continue in the course, plaintiff
had the responsibility to file a petition for a late withdrawal and to seek reimbursement
of her fees via YSU’s appeal process. According to the documents submitted, plaintiff
failed to properly submit such appeals and she did not establish her entitlement to a
refund of her fees. Finally, defendant maintains that plaintiff’s claims that defendant is
in some way interfering with her ability to procure substitute teaching assignments is
baseless.2
       {¶ 9} Plaintiff filed a response which essentially reiterates the allegations of her
complaint.   According to plaintiff, the fact that she has passed auditions with other
professors in prior years signifies that she should not have been required to pass the
flute audition. Finally, plaintiff contends that she did not receive notice of the failed
audition until March 5, 2008.      Plaintiff failed to provide any evidence to support her

       2
          Although defendant requests that Michael Crist be dismissed as a party, such was
accomplished on September 4, 2008, pursuant to the court’s pre-screening entry.
claim that defendant was interfering with her ability to obtain substitute teaching
assignments.    Moreover, the facts of the instant action show that the remainder of
plaintiff’s claim is solely based on the contention that YSU wrongfully collected tuition
funds and has failed to return the funds to plaintiff. Since this particular action is for the
recovery of an alleged wrongful collection, the claim is grounded solely in equity. Ohio
Hosp. Assn. v. Ohio Dept. of Human Servs. (1991), 62 Ohio St. 3d 97, 579 N.E. 2d 695.
“The reimbursement of monies withheld pursuant to an invalid administrative rule is
equitable relief, not money damages.” Ohio Hosp. Assn. at 105. “Thus, for restitution to
lie in equity, the action generally must seek not to impose liability on the defendant, but
to restore to the plaintiff particular funds or property in the defendant’ s possession.”
Great-West Life & Annuity Co. v. Knudson (2002), 534 U.S. 204, at 214, 122 S. Ct. 708,
151 L. Ed 2d 635.
       {¶ 10} “A suit that seeks the return of specific funds wrongfully collected or held
by the state is brought in equity.”         Santos et al. v. Ohio Bureau of Workers’
Compensation, 101 Ohio St. 3d 74, 2004-Ohio-28 at paragraph one of the syllabus.
R.C. 2743.03(A)(1) and (2) state:
       {¶ 11} “(A)(1) There is hereby created a court of claims. The court of claims is a
court of record and has exclusive, original jurisdiction of all civil actions against the state
permitted by the waiver of immunity contained in section 2743.02 of the Revised Code,
exclusive jurisdiction of the causes of action of all parties in civil actions that are
removed to the court of claims, and jurisdiction to hear appeals from the decisions of the
court of claims commissioners. The court shall have full equity powers in all actions
within its jurisdiction and may entertain and determine all counterclaims, cross-claims,
and third-party claims.
       {¶ 12} “(2) If the claimant in a civil action as described in division (A)(1) of this
section also files a claim for a declaratory judgment, injunctive relief, or other equitable
relief against the state that arises out of the same circumstances that gave rise to the
civil action described in division (A)(1) of this section, the court of claims has exclusive,
original jurisdiction to hear and determine that claim in that civil action. This division
does not affect, and shall not be construed as affecting, the original jurisdiction of
another court of this state to hear and determine a civil action in which the sole relief
that the claimant seeks against the state is a declaratory judgment, injunctive relief, or
other equitable relief.”
       {¶ 13} Additionally, 2743.10(A) states in pertinent part: “Civil actions against the
state for two thousand five hundred dollars or less shall be determined administratively
by the clerk of the court of claims . . .” R.C. 2743.10 does not confer equity jurisdiction
at the Administrative Determination level of this court. Administrative Determination
actions are solely for money damages. Equity jurisdiction in matters involving the state
are reserved for judicial review. Although plaintiff in the instant claim is seeking to
recover funds she asserted were wrongfully withheld, the funds sought for recovery
represent a claim for equitable relief and not money damages.             See, Thomas v.
Cleveland State Univ., Ct. of Cl. No. 2008-09422-AD, 2009-Ohio-7071.
       {¶ 14} Consequently, this court at the Administrative Determination level has no
jurisdiction over claims grounded in equity.    Plaintiff’ s remedy in seeking return of
wrongfully collected funds lies in mandamus. See State v. Brown, 156 Ohio App. 3d
120, 2004-Ohio-558. This court is without jurisdiction to grant such relief. State ex rel.
Washington v. Ohio Adult Parole Auth., 87 Ohio St. 3d 258, 1999-Ohio-53.




                               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




SUSAN MARIE SWEENEY

      Plaintiff

      v.

YOUNGSTOWN STATE UNIVERSITY

      Defendant

       Case No. 2008-09929-AD

Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE DETERMINATION



         Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Susan Marie Sweeney                               Cynthia A. Kravitz
648 South Salem Warren Road                       Assistant Attorney General
North Jackson, Ohio 44451                         Education Section
                                                  20 West Federal Street
                                                  Third Floor
                                                  Youngstown, Ohio 44503
SJM/laa
3/3
Filed 3/10/11
Sent to S.C. reporter 5/27/11
