Ajibola v. Ohio Med. Career Coll., Ltd.

122 N.E.3d 660

2018 Ohio 4449

Asia AJIBOLA, et al., Plaintiffs-Appellants

v.OHIO MEDICAL CAREER COLLEGE, LTD., et al., Defendants-Appellees

No. 27975

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on November 2, 2018

RICHARD A. F. LIPOWICZ, Atty. Reg. No. 0018241, 130 West Second Street, Suite 1900, Dayton, Ohio 45402, Attorney for Plaintiffs-Appellants

W. JOSEPH SCHOLLER III, Atty. Reg. No. 0072764 and CHARLES B. GALVIN, Atty. Reg. No. 0091138, 9277 Centre Point Drive, Suite 300, West Chester, OH 45069, Attorneys for Defendants-Appellees

OPINION

FROELICH, J.

{¶ 1} Felecia Madison and Yvette Hubbard appeal a Montgomery County Common Pleas Court judgment that dismissed with prejudice their claims for breach of contract, negligence, and fraud, as well as their claims brought under the Ohio Consumer Sales Practices Act ("OCSPA"). The judgment of the trial court will be reversed and the matter remanded for further proceedings consistent with this opinion.

Factual Background and Procedural History

{¶ 2} The Ohio Medical Career College, Ltd. ("the College") is a for-profit nursing school in Dayton, Ohio, that is owned and operated by Nick Xu and Daisy Deng, a married couple. Xu acts as the College's School Director and Deng as its Program Director.

{¶ 3} Sometime prior to February 29, 2016, Madison and Hubbard each explored the educational offerings available through the College. According to the complaint, representatives of the College orally represented to Madison and Hubbard that the College "offered clinical courses in hospital settings" and that Madison and Hubbard "would graduate with an Associate's Degree in Applied Sciences in Nursing" if they successfully completed the College's "One Plus One Nursing Education Program (RN)." However, Madison and Hubbard claimed that no one from the College disclosed that, in order to graduate from that program, students must score at least 850 on the Health Education Services, Inc. ("HESI") exam, a standardized test used to predict success on the NCLEX examination for licensure as a nurse. They further alleged that representatives of the College failed to disclose that the College's associate degree program was on "conditional" status with the Ohio Department of Nursing.¹

{¶ 4} According to the complaint, in reliance on the above representations and omissions, Madison and Hubbard enrolled in the College's One Plus One program in February 2016. Each received a student handbook that described the One Plus One program and sets forth the following "Student Completion Requirement Policy":

In order to graduate from the nursing program, the following criteria must be met:

1. Successful completion of all required credit hours and clinical instruction hours of the program. All assignments must be completed in the proper format.

2. Pass all courses (including general education courses) with a minimum grade of "C" or "Satisfactory".

3. Satisfactory attendance progress must be met as outlined in the Attendance Policy.

4. All financial responsibilities must be satisfied prior to graduation.

5. Return of all parking permits, locks, library books, as well as school and/or other ID cards.

The program does not implement changes to policies for requirements for completion of the program regarding students already enrolled in the program at the time the changes are adopted.

{¶ 5} In addition, the handbook provided that "[e]ach course has a syllabus which includes the title, number of theory hours, lab hours or clinical hours, course description, objectives or outcomes, outline, teaching strategies, methods of evaluation, and requirements for successful completion of the course." Listed among the courses required for graduation is "NUR 207: Professional Transitions," described in the handbook as follows:

This integrative course utilizes all previous course work to prepare the student to pass the NCLEX-RN. Topics include strategies and techniques for test taking [and] developing critical thinking and discrimination, and prepare the student for a successful career as a registered nurse. A lab component allows the student computer-assisted instruction to prepare for the NCLEX RN.

{¶ 6} In January 2017, Madison and Hubbard began what was to have been their program's final term of study, which included the "NUR 207" class. At the start of that course, they were given an "Assignments Schedule" advising that all students would be required to attain a score of at least 850 on the HESI exam in order to pass NUR 207.

{¶ 7} Despite taking the HESI exam twice during the term, Madison and Hubbard were among five of the College's students who failed to achieve the requisite 850 score and therefore did not graduate. Pursuant to Ohio Adm.Code 3332-1-18, those five students sought administrative relief by filing complaints with the Ohio Board of Career Colleges and Schools ("the Board"). In separate decisions issued on May 19, 2017, the Board advised each complainant that the Board found "no violations" of the College's "policies, procedures and NUR 207 syllabus," and recommended that the students "retake NUR 207 in order to pass your program and be eligible for the NCLEX."

{¶ 8} Madison, Hubbard and the other three students² then filed a complaint against the College, Xu, and Deng in the Montgomery County Common Pleas Court, which complaint they later amended, setting forth claims for injunctive relief, breach of contract, negligence, fraud, and violations of OCSPA. The College, Xu and Deng moved pursuant to Civ.R. 12(B)(6) to dismiss the amended complaint in its entirety.

{¶ 9} On April 9, 2018, the trial court granted the defendants' motion and dismissed the entire complaint. In reaching that decision, the trial court took judicial notice of certain documents not attached to the complaint that the court nonetheless determined were verifiable and "beyond reasonable dispute."

{¶ 10} Madison and Hubbard appeal from that final judgment, asserting four assignments of error:

1. The trial court erred in dismissing Appellants' claim for fraud.

2. The trial court erred in dismissing Appellants' claims under [OCSPA].

3. The trial court erred in dismissing Appellants' breach of contract claim.

4. The trial court erred in dismissing Appellants' negligence claims.

Standard of Review

{¶ 11} "An order granting a Civ.R. 12(B)(6) motion to dismiss is subject to de novo review." Duer v. Henderson , 2d Dist. Miami No. 2009 CA 15, 2009-Ohio-6815, 2009 WL 4985475, ¶ 68, quoting Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. This means the appellate court "must independently review the complaint to determine whether dismissal is appropriate." Boyd v. Archdiocese of Cincinnati , 2d Dist. Montgomery No. 25950, 2015-Ohio-1394, 2015 WL 1600303, ¶ 13, quoting Ament v. Reassure Am. Life Ins. Co., 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246, ¶ 60 (8th Dist.).

{¶ 12} In conducting that review, we are "bound to assume that the facts pleaded in the complaint are true, but the same does not apply to conclusions of law that the pleader contends are proved by those facts." Thomas v. Progressive Cas. Ins. Co., Inc. , 2011-Ohio-6712, 969 N.E.2d 1284, ¶ 8 (2d Dist.). We are not to consider "unsupported conclusions that may be included among, but not supported by, the factual allegations of the complaint." Boyd at ¶ 13, quoting Wright v. Ghee, 10th Dist. Franklin No. 01AP-1459, 2002-Ohio-5487, 2002 WL 31262052, ¶ 19.

{¶ 13} Although the rule itself states that matters to be considered on a Civ.R. 12(B)(6) motion are limited to those that appear within the relevant pleading, material incorporated within a complaint is part of that pleading. Boyd at ¶ 14, citing State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, fn. 1, (1997) ("Material incorporated in a complaint may be considered part of the complaint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss."). Such material includes not only exhibits to a complaint, but also written instruments "upon which a claim is predicated," regardless of whether such material actually is attached to the pleading. Id. , citing Columbus Green Bldg. Forum v. State, 2012-Ohio-4244, 980 N.E.2d 1, ¶ 23 (10th Dist.), Fillmore v. Brush Wellman, Inc., 6th Dist. Ottawa No. OT-03-029, 2004-Ohio-3448, 2004 WL 1468337, ¶ 8, Irvin v. Am. Gen. Fin., Inc., 5th Dist. Muskingum No. CT2004-0046, 2005-Ohio-3523, 2005 WL 1607460, ¶ 6.

{¶ 14} To dismiss a complaint under Civ.R. 12(B)(6), "it must appear beyond doubt that the plaintiff can prove no set of facts * * * that would entitle the plaintiff to the relief sought." Bolin v. Allstate Property & Cas. Ins. Co. , 2d Dist. Montgomery No. 27764, 2018-Ohio-3396, 2018 WL 4049293, ¶ 16, quoting Ohio Bur. of Workers' Comp. v. McKinley , 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12 ; see also Sacksteder v. Senney , 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, 2012 WL 4480695, ¶ 35-46. "The standard for dismissal under Civ.R. 12(B)(6) is consistent with Civ.R. 8(A), which requires that a complaint ‘contain * * * a short and plain statement of the claim [or claims] showing that the [plaintiff] is entitled to relief.’ " Id. , quoting Cincinnati v. Beretta U.S.A. Corp. , 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29.

First Assignment of Error –Fraud Claims

{¶ 15} The elements of fraud are:

(1) a representation (or concealment of a fact when there is a duty to disclose), (2) that 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, and (4) with intent to mislead another into relying upon it, (5) justifiable reliance, and (6) resulting injury proximately caused by the reliance.

Schroeder v. Henness , 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 19, citing Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio...