[Cite as Habegger v. Owens Community College, 2017-Ohio-8180.]



                            IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

Tiffany Habegger et al.,                          :

                Plaintiffs-Appellants,            :

v.                                                :                    No. 17AP-297
                                                                  (Ct. of Cl. No. 2010-07865)
Owens Community College,                          :
                                                                 (REGULAR CALENDAR)
                Defendant-Appellee.               :

                                                  :
Tiffany Habegger et al.,
                                                  :                    No. 17AP-301
                Plaintiffs-Appellees,                             (Ct. of Cl. No. 2011-09187)
                                                  :
Carianne Baird et al.,                                           (REGULAR CALENDAR)
                                                  :
                Plaintiffs-Appellants,
v.                                                :

Owens Community College,                          :

                Defendant-Appellee.               :


                                         D E C I S I O N

                                  Rendered on October 12, 2017


                On brief: Charles E. Boyk Law Offices, LLC, Michael A.
                Bruno and Charles E. Boyk, for appellants. Argued:
                Michael A. Bruno.

                On     brief:   Michael    DeWine,    Attorney   General,
                Christopher P. Conomy, Randall W. Knutti and Velda K.
                Hofacker, for appellee. Argued: Christopher P. Conomy.


                          APPEALS from the Court of Claims of Ohio
Nos. 17AP-297 and 17AP-301                                                              2


TYACK, P.J.
       {¶ 1} Tiffany Habegger, Carianne Baird and related parties are appealing from the
summary judgment granted in their lawsuit against Owens Community College. They
assign a single, lengthy error for our consideration:
               The trial court erred when it granted the Motion for
               Summary Judgment of the Defendant-Appellee because the
               trial court bifurcated the case as to the issues of liability and
               damages, the parties are presently solely litigating the issue
               of liability as to the existence of a contract and breach, the
               trial court has determined that there was a contract and that
               Defendant–Appellee breached the contract, yet the trial
               court improperly awarded Defendant-Appellee summary
               judgment based solely upon a "lack of damages" argument
               during this liability-only phase of the case – which is all the
               more improper given that Plaintiffs have produced
               voluminous evidence of their damages despite this being the
               liability-only phase of the case.

       {¶ 2} Habegger and Baird each filed lawsuits purporting to present the interests
of several nursing students against Owens Community College, a state entity. Their
attempts to make the lawsuits class actions were unsuccessful.
       {¶ 3} The Court of Claims of Ohio ordered that the issues of liability be addressed
separately. In legalese, the court ordered that the issue be bifurcated for trial.
       {¶ 4} In 2015, the Court of Claims granted summary judgment on behalf of
Owens Community College. A direct appeal resulted and we reversed, remanding the case
for further proceedings.
       {¶ 5} The Court of Claims granted summary judgment a second time, resulting in
the present appeal.
       {¶ 6}   The underlying issue in this case is the fact that Owens Community College
lost its accreditation from the National League for Nursing Accrediting Commission
("NLNAC") as a result of not employing sufficient faculty with graduate degrees in nursing
and as a result of not keeping adequate records. However, Owens Community College
retained accreditation with the Higher Learning Commission. Also, the nursing program
was still approved by the Ohio Board of Nursing, which meant graduates of the Owens
Nos. 17AP-297 and 17AP-301                                                                 3

Community College nursing program could still take the examination necessary for
licensure as a registered nurse ("RN") in Ohio.
       {¶ 7} The Court of Claims granted summary judgment as to several nursing
students because their academic challenges resulted in their not being accepted into the
RN program at Owens Community College. These students clearly have no claim for
breach of contract based on a theory that Owens Community College had contracted to
maintain all its accreditations.
       {¶ 8} Several other students enrolled in the RN program, but did not successfully
complete it. Still more students failed the examination for licensure. These two groups of
students did not have a breach of contract.        Owens Community College could only
promise to offer the opportunity for licensure. Owens Community College could not and
did not guarantee that its nursing students would become licensed RNs.
       {¶ 9} However, some of the nursing students did successfully complete the
program at Owens Community College and did pass the exam. As to these students, the
Court of Claims should have conducted separate damage proceedings to determine if the
students were harmed financially by the loss of the one accreditation. As to this last group
of students, the Court of Claims was wrong to grant summary judgment.
       {¶ 10} We note that the Court of Claims did not grant the class certification sought
on behalf of the nursing students. As a result, the prior decision of this appellate court as
to the parties specified that we were remanding the case to the Court of Claims to
ascertain as to each appellant whether Owens Community College breached a contract by
losing its NLNAC certification. We did not contemplate that the Court of Claims would
finalize the case based on the issue of damages, which were reserved for later proceedings.
Indeed, the plaintiffs are entitled to pursue additional discovery and acquire additional
evidence on that issue. The proceedings had been bifurcated with the mere fact of a
breach to be addressed initially and the harm suffered as a result of the breach to be
addressed later. The majority of this panel does not find that harm is an essential element
in the failure of a party to abide by the agreement between the parties. Some breaches
may involve only minimal damages. Some breaches may involve significant damages.
       {¶ 11} We therefore sustain the assignment of error as to the last group of
students. We affirm the summary judgment as to the other students discussed above,
Nos. 17AP-297 and 17AP-301                                                              4

namely those who did not successfully complete the nursing program at Owens
Community College and/or did not pass the required nursing examinations.
       {¶ 12} The sole assignment of error is sustained in part and overruled in part. The
case is remanded to the Court of Claims of Ohio for further proceedings consistent with
this decision.
                                                  Judgment affirmed in part and reversed
                                         in part; cause remanded for further proceedings.

                                  BRUNNER, J., concurs.
                               LUPER SCHUSTER, J., dissents.
LUPER SCHUSTER, J., dissenting.
       {¶ 13} Because I believe this court's prior decision in Baird v. Owens Community
College, 10th Dist. No. 15AP-73, 2016-Ohio-537 controls the scope of the issues presented
in this case, I respectfully dissent.
       {¶ 14} Though the majority states "[w]e did not contemplate that the trial court
would finalize the case based on the issue of damages," in our decision in Baird, we
reversed the judgment of the Court of Claims and remanded the matter to that court to
determine (1) whether appellee breached a contract with each individual student, and
(2) whether such breach caused damages, including those for diminished earning
capacity. Baird at ¶ 28. In Baird, we relied on the Supreme Court of Ohio's decision in
DeCastro v. Wellston City School Dist. Bd. of Edn., 94 Ohio St.3d 197 (2002), which
stated "summary judgment may be granted to the defendant in a breach-of-contract case
where the plaintiff has failed to provide evidence of economic damages resulting from a
breach of contract." Id. at 201. Because our remand order in Baird limited the review to
breach of contract and diminished earning capacity but rejected the other claims for
damages, we must have intended the trial court on remand to review the evidence already
in the record in determining whether the plaintiffs had proved damages for diminished
earning capacity.
       {¶ 15} The majority additionally states that the trial court's bifurcation of the
matters of liability and damages somehow precluded the trial court from considering
damages as an element of breach of contract. However, this conclusion is not supported
by our remand order in Baird and the pertinent case law on breach of contract claims.
Damage, or harm, is an essential element of a breach of contract claim.         See, e.g.,
Nos. 17AP-297 and 17AP-301                                                                   5

Pertoria, Inc. v. Bowling Green State Univ., 10th Dist. No. 13AP-1033, 2014-Ohio-3793,
¶ 21, quoting State Dept. of Dev. v. Matrix Centennial, LLC, 10th Dist. No. 14AP-47, 2014-
Ohio-3251, ¶ 16 (" 'For a breach of contract claim, several elements must be present: the
existence of a contract, performance by the plaintiff, breach by the defendant, and damage
or loss to the plaintiff.' "). The majority decision seems to conflate the issue of calculation
of exact damages with the element of damage, or harm, required to succeed on a breach of
contract claim.
       {¶ 16} Following the limits of our remand order in Baird, I would conclude the
trial court correctly granted summary judgment in favor of Owens Community College in
the present case. For these reasons, I respectfully dissent.
