[Cite as Danckaert v. Cuyahoga Community College Found., 2017-Ohio-1159.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 104600




                               EMILY DANCKAERT
                                                        PLAINTIFF-APPELLANT

                                                  vs.


               CUYAHOGA COMMUNITY COLLEGE
                    FOUNDATION, ET AL.
                                                        DEFENDANTS-APPELLEES




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CV-14-830312

       BEFORE:         Blackmon, J., E.A. Gallagher, P.J., and Stewart, J.

       RELEASED AND JOURNALIZED: March 30, 2017
ATTORNEY FOR APPELLANT

Brian J. Darling
Darling Duffy Co., L.P.A.
23823 Lorain Road, Suite 270
North Olmsted, Ohio 44070


ATTORNEYS FOR APPELLEE

Michael DeWine
Ohio Attorney General

Jeffrey Knight
Marissa J. Palumbo
Assistant Attorneys General
30 East Broad Street, 16th Floor
Columbus, Ohio 43215

Michael T. Fisher
Ohio Attorney General’s Office
615 W. Superior Avenue, 11th Floor
Cleveland, Ohio 44113
PATRICIA A. BLACKMON, J.:

      {¶1} Plaintiff, Emily Danckaert (“Danckaert”), appeals from the order of the trial

court awarding summary judgment to defendants Cuyahoga Community College

Foundation (“Tri-C”) and Dental Hygiene Program Manager              Mary Lou Gerosky

(“Gerosky”) (collectively referred to as “Defendants”), in Danckaert’s action for breach

of contract and other causes of action.   Danckaert assigns the following three errors for

our review:

      I.     The trial court erred in granting Tri-C and Gerosky’s motion for

      dismissal/summary judgment since Tri-C breached its promise to pass

      Danckaert under the modified contractual terms.

      II. The trial court erred in granting Tri-C and Gerosky’s motion for
      dismissal/summary judgment since promissory estoppel prevents Tri-C and
      Gerosky from dismissing Danckaert from the Dental Hygiene Program.

      III.    The trial court erred in granting Tri-C and Gerosky’s motion for

      dismissal/summary judgment since Tri-C’s decision to dismiss Danckaert

      from the Dental Hygiene Program was arbitrary and capricious and violated

      her due process rights.

      {¶2} Having reviewed the record and pertinent law, we reverse and remand for

further proceedings consistent with this opinion. The apposite facts follow.
       {¶3}   Danckaert worked as a dental assistant in Ohio since 2009.     In 2012, she

entered Tri-C’s Dental Hygiene Program in order to be authorized to perform additional

professional duties.

       {¶4} During the spring semester of her first year in the program, Danckaert

received deficient marks in one of her clinical courses, Preventative Oral Health Services

II (“POHS II”) or “DENT 1400.”      Danckaert explained that her instructor did not timely

sign off on a portion of her work, so she requested permission to receive an “Incomplete”

in the class. At this time, Danckaert was advised in writing that she would be placed on

academic probation.    She was further advised that no student is permitted to earn two or

more “Incompletes” in a class series, under the following provision in the program

handbook:

       Two consecutive incomplete grades in the clinical component of the
       POHS [Preventative Oral Health Services] I, II, III, or IV may lead to
       academic dismissal. Situational circumstances will be addressed on a case
       by case basis and a decision will be made by a consensus of the dental
       hygiene faculty.

       {¶5}   Danckaert finished the work after the term ended.    She received a B in the

class, and the Incomplete was removed.          The following year, Danckaert began

Preventative Oral Health Services III (“POHS III”).        The syllabus for this course

requires the students to have an end of the term average of at least 86% in the

Professional Development component of this course.      Danckaert struggled in POHS III.

 She    sought    counseling   from    the   course   instructor   Jane    Durocher-Jones

(“Durocher-Jones”) and preceptor Irina Novopoltseva (“Novopoltseva”).             Clinical
Coordinator Cynthia Quint (“Quint”) met with Danckaert to discuss how Danckaert

could bring up the grade and pass the course. Quint also conferred with instructor Jones,

and they agreed that   Danckaert was entitled to 60% rather than the 0 she had been given

in one of the Professional Development clinical sessions.         With the benefit of this

change, Quint and Jones calculated that if Danckaert received 100% in seven of the

remaining 11 sessions, she could pass the Professional Development component of POS

III and pass the course.   They emailed program manager Gerosky, advising her of their

calculations and asking Gerosky to inform Danckaert of their computations.

        {¶6}   It is undisputed that Danckaert subsequently received scores of 100% on

nine of the remaining Professional Development sessions, but her final grade was

83.6%.     She also received passing grades in other coursework for that semester, but was

dismissed from the program.

        {¶7}   Danckaert met with Quint and Jones about options for extra credit and

improving her grade. Jones informed Danckaert that “everything is up for discussion”

and that “no single instructor” could determine if a student passed or failed. At that point,

according to Quint, faculty members discussed permitting Danckaert to continue and

make up some Professional Development sessions in order to have sufficient points to

pass.    Ultimately, however, Gerosky determined that Danckaert would not be given the

option of improving her grade after the formal end of the course because she had

previously received a grade of Incomplete.
       {¶8}   The faculty for the program reviewed Danckaert’s academic history and

determined, by consensus, that Danckaert should be dismissed from the program due to

the deficient grade in POHS III and the prior Incomplete in POHS II, DENT 1400.

Danckaert administratively appealed the failing grade and challenged her scores for two

Professional Development sessions.        In the first level of administrative review,

Associate Dean Barbara Mikuszewski concurred with the determination that Danckaert

failed the course.   In the second level of administrative review, a panel of faculty from

other programs also affirmed the determination.       In the third and final step of the

administrative review process, Campus President Dr. Michael Schoop (“Dr. Schoop”)

likewise affirmed the decision.

       {¶9} Gerosky and other faculty members encouraged Danckaert to seek

readmission to the program in order to repeat the failed course.     It is undisputed that

Danckaert sent Tri-C a letter asking for readmission but she did not receive permission

from Gerosky authorizing her to reapply.     According to Gerosky, Danckaert’s request

for readmission lacked a detailed plan for future academic success which is required

under the readmission policy; if this had been included, Gerosky would have voted to

readmit Danckaert into the program.

       {¶10} Danckaert subsequently filed suit against Defendants, alleging violations of

her right to procedural due process, breach of contract, breach of duty of good faith and

fair dealing, negligence, and unjust enrichment.         Defendants filed a motion to
dismiss/motion for summary judgment.          On May 16, 2016, the trial court granted

Defendants’ motion for summary judgment.

                             Review of Summary Judgment

       {¶11}     This court reviews a trial court’s grant of summary judgment under the de

novo standard.     Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336,

671 N.E.2d 241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when: (1)

there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a

matter of law; and (3) reasonable minds can come to but one conclusion and that

conclusion is adverse to the nonmoving party, said party being entitled to have the

evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio

St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus; Zivich v.

Mentor Soccer Club, 82 Ohio St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party

moving for summary judgment bears the burden of showing that there is no genuine issue

of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75

Ohio St.3d 280, 292-293,1996-Ohio-107, 662 N.E.2d 264.

               Breach of Contract, Duty of Good Fiath and Fair Dealing

       {¶12}     Danckaert set forth claims for breach of contract and breach of duty of

good faith and fair dealing. She argues that Defendants modified the provisions of the

parties’ contractual terms when Quint and Jones recalculated her grade and determined

that Danckaert would receive a passing grade in POHS III if she received 100% in seven

of the remaining eleven Professional Development sessions.        Danckaert further argues
that Defendants breached this modified contract by giving her a failing grade even after

she surpassed the modified requirements and received 100% in nine of the course

sessions.   In opposition, Tri-C argues that Quint’s and Jones’s calculations did not

modify the parties’ agreement.

       {¶13} In order to prevail on 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.   Prince v. Kent State Univ., 10th Dist. Franklin No. 11AP-493,

2012-Ohio-1016, ¶ 24, citing Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App.3d 213,

2010-Ohio-2902, 935 N.E.2d 70,¶ 32 (10th Dist.). The covenant of good faith and fair

dealing is part of a contract claim.    Third Fed. S & L Assn. of Cleveland v. Formanik,

8th Dist. Cuyahoga No. 103649, 2016-Ohio-7478, ¶ 46. “A breach of the covenant of

good faith and fair dealing ‘does not stand alone as a separate claim from breach of

contract.’” Id., quoting Stancik v. Deutsche Natl. Bank, 8th Dist. Cuyahoga No. 102019,

2015-Ohio-2517, ¶ 46.

       {¶14}    In Bleicher v. Univ. of Cincinnati College of Med., 78 Ohio App.3d 302,

604 N.E.2d 783 (10th Dist.1992), the court held that 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.’” Id. at 308, quoting Behrend v. State, 55 Ohio App.2d 135, 139,

379 N.E.2d 617 (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; Mahalati v. Ohio

State Univ., Ct. of Cl. No. 2006-02978, 2007-Ohio-3856, ¶ 11; Pham v. Case W. Res.

Univ., 8th Dist. Cuyahoga No. 71083, 1997 Ohio App. LEXIS 1307, 2 (“The terms of

[the parties’ contract] can be altered by mutual agreement, and any additional terms will

supersede the original terms to the extent the two are in conflict.”). See also Bleicher at

308.

       {¶15}   In general, courts have recognized that a university may modify course

requirements in order to permit a struggling student to remediate a potential failing grade.

 See    Marx v. Ohio State Univ. College of Dentistry, 10th Dist. Franklin No.

95APE07-872, 1996 Ohio App. LEXIS 798, 10 (Feb. 27, 1996) (discussing a remediation

program that modified course requirements in order to assist a struggling student); Pham

(considering whether a letter constituted a modification of the contractual relationship

between the university and a student who had deficient grades, was permitted to

remediate a failed course, but was later dismissed in the fourth year of his academic

program).

       {¶16}   In this matter, the parties’ contract, as set forth in the program handbook,

states that “no student is permitted to earn two or more incomplete grades in a series, or

permitted to earn consecutive incomplete grades.”      The syllabus for POHS III requies
students to obtain an average of at least 86% in the Professional Development portion of

the class. It further provides that the “Syllabus is the final word on course interpretation.

 Any modification to a syllabus will be communicated to the students in written form.”

       {¶17} The record clearly shows that Quint meets with students who are at risk of

failing courses and assists them with identifying what is needed to bring up their grades.

In this matter, Quint and Jones later determined that   Danckaert had improperly received

a 0 in one of the Professional Development sessions. After adjusting this grade, Quint

and Jones calculated that if Danckaert received 100% in seven of the remaining 11

sessions, she could pass the Professional Development component of POS III and pass the

course.   Quint also emailed program manager Gerosky of the grade correction and the

calculations she computed regarding Danckaert successfully completing the course.

Quint also instructed Gerosky to inform Danckaert of this information.               Despite

surpassing the necessary scores based upon Quint’s and Jones’s calculations and

receiving passing marks in the other portions of the coursework for that semester,

Danckaert was advised that she was failing the course.      Danckaert met with Quint and

Jones about options for extra credit and improving her grade.    Jones informed Danckaert

that “everything is up for discussion” and that “no single instructor” could determine if a

student passed or failed. Gerosky insisted that the failing grade could not be remediated,

however, based upon the prior Incomplete and notified Danckaert that she was dismissed

from the program.     She acknowledged, however, that the faculty engages in lengthy

discussions about each student who faces dismissal from the program. In addition, the
handbook does not require dismissal as it states that two Incompletes “may lead to

academic dismissal.   Situational circumstances will be addressed[.]”

       {¶18}   From the foregoing, we conclude that there is a genuine issue of material

fact as to whether Tri-C modified the parties’ contractual relationship when it corrected

one of Danckaert’s grades and determined that she could pass the Professional

Development component if she attained seven perfect scores.      We note that nothing in

case law, the handbook, or the syllabus bars such remediation. In addition, all of the

instructors admitted that they meet with struggling students in order to bring up their

grades to minimum competency.       Moreover, we conclude that there are genuine issues

of material fact as to whether Tri-C may have breached the contract modifications by

dismissing Danckaert from the program after she surpassed the competency calculations

derived by Quint and Jones, and passed the other courses for that semester. Although

the Handbook provision regarding two consecutive Incompletes was offered as the

justification for this decision, the handbook merely states that the student “may be

dismissed.”

       {¶19}    Tri-C insists that this matter is governed by Duncan v. Cuyahoga

Community College, 2015-Ohio-687, 29 N.E.3d 289 (8th Dist.), and that it’s contract was

not modified. In Duncan, the plaintiff (former student) testified that the instructor told

the students that if they showed up every day and listened to the instructions, they would

pass their Peace Officer certification.   This court noted that Duncan could identify no

writing or other evidence to demonstrate a contract promising her certification.   Rather,
the course documents promised only that she would receive training as to the Peace

Officer requirements. Id.

       {¶20}    Duncan is clearly distinguishable from this matter as       Danckaert had

presented far more than an instructor’s general remarks about how a student may pass a

course.   Danckaert presented clear evidence that she met with faculty about passing the

Professional Development portion of the class.    Thereafter, Quint, the clinic coordinator,

and Jones, the instructor for the course, calculated that it was possible for Danckaert to

pass when she had seven perfect scores in the remaining eleven sessions and notified

Gerosky of this fact. They also informed Gerosky to advise Danckaert of their

calculations.

       {¶21} In accordance with the foregoing, we conclude that there are genuine issues

of material fact regarding the breach of contract claim.

                                  Promissory Estoppel

       {¶22}    Danckaert next asserts that the trial court erred in awarding defendants

summary judgment on the promissory estoppel claim because she acted to her detriment

in reliance on Quint’s representations regarding the efforts needed to pass POHS III.

       {¶23}    In Prince, 2012-Ohio-1016, the court held that promissory estoppel is not

applicable to a case involving an academic dispute at a public university and stated:

       Prince next challenges the trial court’s rejection of her promissory estoppel

       claim. “‘It is well-settled that, as a general rule, the principle of estoppel

       does not apply against a state or its agencies in the exercise of a
       governmental function.’” Hortman v. Miamisburg, 110 Ohio St.3d 194,

       2006-Ohio-4251, ¶ 25, 852 N.E.2d 716, quoting Ohio State Bd. of

       Pharmacy v. Frantz, 51 Ohio St.3d 143, 145-146, 555 N.E.2d 630 (1990).

       The provision of higher education is a governmental function.      Hutsell v.

       Sayre, 5 F.3d 996, 1002 (6th Cir. 1993); Hall v. Med. College of Ohio at

       Toledo, 742 F.2d 299, 305 (6th Cir.1984). Therefore, applying the general

       rule, Prince cannot pursue a promissory estoppel claim against KSU.

Id. at ¶ 41.

       {¶24}   By application of Prince, Tri-C’s provision of higher education is a

governmental function so promissory estoppel does not apply herein. Therefore, this

assigned error lacks merit.

                                Procedural Due Process

       {¶25}   Danckaert next argues that Defendants violated her right to procedural due

process by dismissing her from the program and denying her request for readmission.

       {¶26}   It is well-settled that “‘while education is not a fundamental right, a

university may not arbitrarily dismiss a student without due process of law.’” Fabrotta v.

Meridia Huron Hosp. Sch. of Nursing, 102 Ohio App.3d 653, 658 N.E.2d 816 (8th

Dist.1996), quoting Morin v. Cleveland Metro. Gen. Hosp. School of Nursing, 34 Ohio

App.3d 19, 22, 516 N.E.2d 1257 (8th Dist.1986). The purpose of judicial relief is to

assure the student fair treatment, and not for the court to reweigh or reevaluate the grades

or the basis of the dismissal. Id.   The Fabrotta court explained:
          Courts should not intervene in academic decision-making where a student is
          dismissed, unless the dismissal is clearly shown to be arbitrary and
          capricious. Morin, 34 Ohio App.3d at 22, 516 N.E.2d at 1259. “As a
          general rule, the burden is upon the student to show the existence of
          arbitrariness, capriciousness, or bad faith in the grading procedure or
          system.” Johnson [v. Cuyahoga Cty. Community College], 29 Ohio Misc.2d
          [33]at 34, [489 N.E.2d 1088].

Id.

          {¶27} In this matter, the record demonstrates that Danckaert exceeded the

calculations set forth by Quint and Jones and passed the remaining portions of the course,

but does not demonstrate why she nonetheless failed the Professional Development

sessions and failed POHS III. Although Gerosky admitted that her interactions with

Danckaert were reflected in the final failing grade, she did not explain what those

interactions were or what exactly occurred that caused her to insist that Danckaert had

failed.     Further, although Tri-C maintains that Danckaert had to be dismissed by

operation of the handbook provisions regarding successive Incompletes, the handbook

does not require dismissal as it states that two Incompletes “may lead to academic

dismissal. Situational circumstances will be addressed[.]” Tri-C did not present any

evidence to demonstrate that situational circumstances were considered and why

dismissal occurred after such consideration.    In addition, Danckaert presented evidence

that Tri-C never responded to her request for readmission.   From all of the foregoing, the

trial court erroneously determined that Tri-C is entitled to summary judgment on the due

process claim because Danckaert presented evidence to present a genuine issue of
material fact as to whether the dismissal and the denial of her request to reapply were

arbitrary, capricious, or in bad faith.

       {¶28}    Therefore, the third assigned error is well-taken.

       {¶29}     Based upon all of the foregoing, the trial court erred in awarding

defendants summary judgment.

       {¶30}    Judgment is reversed, and matter is remanded for further proceedings

consistent with this opinion.

       It is ordered that appellant recover of appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY STEWART, J., CONCUR
