[Cite as Marok v. Ohio State Univ., 2011-Ohio-2616.]

                                                       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

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging negligence, breach of contract, and
unjust enrichment. The issues of liability and damages were bifurcated and the case
proceeded to trial on the issue of liability.
        {¶ 2} In 1999, plaintiff was a student at defendant, The Ohio State University
(OSU), pursuing an undergraduate degree in the College of Agriculture. Plaintiff alleges
that problems relating to scheduling a required course, Agriculture and Construction
Systems Management 605, and other acts or omissions by defendant prevented him
from completing his degree curriculum. On December 24, 1999, Jill Pfister, Assistant
Dean of Academic Affairs, wrote a letter informing plaintiff that he was being dismissed
from OSU for failing to maintain “the minimum requirement” for scholastic achievement.
(Defendant’s Exhibit A.) In early 2000, plaintiff received statements from defendant
requesting payment of the balance owed on his student account. In May 2000, plaintiff
received a demand from defendant’s Office of Student Loan Services for payment on a
federal Perkins loan.         Plaintiff testified that he continued to receive demands for
Case No. 2006-06736                                -2-                    MAGISTRATE DECISION

payment from defendant and that he disputed with several employees of defendant the
amount of the payment that was owed according to the correspondence.
        {¶ 3} In October 2004, plaintiff received notice that his student accounts had
been referred to the Office of the Attorney General (OAG) for collection. (Plaintiff’s
Exhibit 16.) In response to OAG’s demands for payment, plaintiff continued to dispute
his debt and he alleged that OSU had made “mistakes” in record-keeping. Plaintiff also
contends that OSU failed to respond to his requests regarding re-admittance to the
College of Agriculture. (Defendant’s Exhibits E and F.) OSU subsequently brought an
action against plaintiff in the Franklin County Municipal Court which, on April 11, 2006,
resulted in a finding that plaintiff was liable to OSU and an order for repayment of his
student loans with interest. (Defendant’s Exhibit G.) Plaintiff testified that he did not
appeal the municipal court’s decision.
        {¶ 4} Plaintiff alleges that he was wrongfully dismissed from OSU and that he
has suffered both emotional distress and monetary damages as a result of OSU’s
inaccurate record-keeping. Plaintiff has asserted claims for relief sounding in contract,
tort, and in equity. Defendant argues that plaintiff’s claims are barred by the applicable
statute of limitations.1
        {¶ 5} R.C. 2743.16 provides, in part:
        {¶ 6} “(A) Subject to division (B) of this section, civil actions against the state
permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no
later than two years after the date of accrual of the cause of action or within any shorter
period that is applicable to similar suits between private parties.” (Emphasis added.)
        {¶ 7} At trial, plaintiff argued that the statute of limitations did not begin to run

1
 The Tenth District Court of Appeals reversed the October 3, 2007 decision of this court which had held
that plaintiff’s claims were barred either by the statute of limitations or by the doctrine of res judicata.
Marok v. Ohio State Univ., Franklin App. No. 07AP-921, 2008-Ohio-3170. The court of appeals noted
that although defendant had not properly raised those affirmative defenses, such defenses may be raised
in an amended pleading pursuant to Civ.R. 15(A). On October 1, 2009, the court granted defendant’s
motion to amend its answer.
Case No. 2006-06736                         -3-                MAGISTRATE DECISION

until he was able to “discover” errors in defendant’s accounting practices as a result of
information which he obtained from defendant through civil discovery in this action.
Plaintiff further contends that defendant engaged in a “continuing violation” regarding
his student account.
       {¶ 8} In general, statutes of limitation begin to run when some act is committed
that gives rise to a cause of action. O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d
84, 87. The discovery rule provides an exception where “a cause of action does not
arise until the plaintiff discovers, or by the exercise of reasonable diligence should have
discovered, that he or she was injured by the wrongful conduct of the defendant.”
Norgard v. Brush Wellman, Inc., 95 Ohio St.3d 165, 167, 2002-Ohio-2007; see also
Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111. However, the rule
has been limited in application to actions for medical and legal malpractice and actions
for bodily injury or injury to personal property, and courts have declined to extend the
rule unless it is specifically incorporated into a statute. See Investors REIT One, v.
Jacobs (1989), 46 Ohio St.3d 176, 181; Creaturo v. Duko, Columbiana App. No. 04 CO
1, 2005-Ohio-1342, ¶47.
       {¶ 9} Deborah Terry, who was employed in OSU’s Bursar’s Office, testified
regarding plaintiff’s student financial records.      Terry identified plaintiff’s account
statements and explained the various student fees that had been posted to his account.
Terry also identified copies of reports that contained entries related to promissory notes,
account refunds, and federal Perkins loans that had been issued to plaintiff. According
to Terry, plaintiff has had access to his student account records and there was nothing
“unusual” or inaccurate in those records.
       {¶ 10} Based upon the foregoing, the court finds that the “discovery rule” is
inapplicable to plaintiff’s claims. The court further finds that plaintiff’s cause of action
accrued at the latest on February 29, 2000, the date on which plaintiff was notified that
his “delinquent account” had been referred to OSU’s Accounts Receivable Office for
collection. (Plaintiff’s Exhibit 9.) Therefore, plaintiff would have had to file an action
Case No. 2006-06736                        -4-                MAGISTRATE DECISION

against defendant no later than February 29, 2002. Accordingly, plaintiff’s claims are
time-barred.
      {¶ 11} Furthermore, under the doctrine of res judicata, “[a] valid, final judgment
rendered upon the merits bars all subsequent actions based upon any claim arising out
of the transaction or occurrence that was the subject matter of the previous action.”
Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.             “‘[O]nce [a]
jurisdictional issue has been fully litigated and determined by a court that has authority
to pass upon the issue, said determination is res judicata in a collateral action and can
only be attacked directly by appeal.’” Citicasters Co. v. Stop 26-Riverbend, Inc., 147
Ohio App.3d 531, 2002-Ohio-2286, ¶33, quoting Squires v. Squires (1983), 12 Ohio
App.3d 138, 141. The doctrine of res judicata “‘applies to extinguish a claim by the
plaintiff against the defendant even though the plaintiff is prepared in the second action
(1) To present evidence or grounds or theories of the case not presented in the first
action, or (2) To seek remedies or forms of relief not demanded in the first action.’”
Grava, supra, at 383, quoting 1 Restatement of the Law 2d, Judgments (1982) 209,
Section 25.
      {¶ 12} A counterclaim against defendant regarding defendant’s debt collection
procedures could have been filed in the action in the Franklin County Municipal Court.
See Civ.R. 13(A) and R.C. 2743.03(E). Accordingly, the doctrine of res judicata bars
such claims in this case.
      {¶ 13} For the foregoing reasons, judgment is recommended in favor of
defendant.
      A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
Case No. 2006-06736                        -5-                 MAGISTRATE DECISION

finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).



                                         _____________________________________
                                         ANDERSON M. RENICK
                                         Magistrate

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
AMR/cmd
Filed May 3, 2011
To S.C. reporter May 26, 2011
