Borden v. Antonelli Coll.

304 F.Supp.3d 678

Annie BORDEN, et al., Plaintiffs,

v.ANTONELLI COLLEGE, et al., Defendants.

Case No. 1:16–cv–519

United States District Court, S.D. Ohio, Western Division.

Signed March 29, 2018

Adam S. Brown, Cummins & Brown LLC, Phyllis Elaine Brown, Brown Law Firm LLC, Richard Stuart Wayne, Strauss & Troy, Cincinnati, OH, for Plaintiffs.

Adam P. Hall, Ryan Steven Lett, Frost Brown Todd LLC, Cincinnati, OH, Kathryn Jean Bushby, Pro Hac Vice, Ollie Ancil "Tres" Cleveland, III, Pro Hac Vice, Maynard Cooper & Gale, PC, Birmingham, AL, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF ANNIE BORDEN AND DEFENDANT ANTONELLI'S COUNTERCLAIM (Doc. 50)

Timothy S. Black, United States District Judge

This civil case is before the Court on Defendants' motion for summary judgment on the claims of Plaintiff Annie Borden (Doc. 50) and the parties' responsive memoranda (Docs. 56, 61).¹

I. BACKGROUND

A. Introduction.

Plaintiffs Annie Borden and Kachena Richardson commenced this lawsuit, which alleges that Defendants engaged in deceptive and misleading marketing and advertising practices. Plaintiffs are former students in Antonelli's Practical Nursing Program ("PNP"). Plaintiffs' claims, which are asserted on behalf of themselves and a putative class, are premised on their contentions that Defendants misrepresented facts about the PNP, including its quality and approval from the Ohio Board of Nursing ("OBN"), and failed to provide adequate instruction.

On these bases, the Complaint asserts claims for violation of the Ohio Deceptive Trade Practices Act ("ODTPA"), breach of contract, fraud, constructive fraud, intentional misrepresentation, negligent misrepresentation, promissory estoppel and unjust enrichment. (Doc. 30).

In response, Antonelli filed a Counterclaim against Ms. Borden. (Doc. 47). The Counterclaim asserts that Ms. Borden is liable for $6,815.50 in unpaid tuition and asserts claims for breach of contract and unjust enrichment.

B. Facts pertaining to Ms. Borden's claims.

1. Antonelli opens the PNP; encounters issues with its approval from the OBN.

In September, 2013, Antonelli opened the PNP. (Doc. 50–1 at ¶ 12; Doc. 56–1 at ¶ 12). At the time it opened, the PNP was "conditionally approved" by the OBN. (Doc. 50–1 at ¶ 13; Doc. 56–1 at ¶ 13). While designated "conditionally approved," Antonelli was still allowed to enroll and graduate students, and its graduates were eligible to sit for the NCLEX–PN exam and to become licensed practical nurses in the State of Ohio. (Doc. 50–1 at ¶ 15; Doc. 56–1 at ¶ 15).²

In November 2014, the OBN and Antonelli entered into a consent agreement ("Consent Agreement") (Doc. 50–1 at ¶ 14; Doc. 56–1 at ¶ 14).³ The Consent Agreement recognized that the PNP had not met certain standards set forth in the Ohio Administrative Code applicable to nursing education programs and extended the PNP's conditional approval until November 2015, at which time the OBN stated it may grant or deny full approval status. (Doc. 50–8).

In November, 2015, the OBN provided Antonelli with another proposed consent agreement ("Second Consent Agreement") that would have extended the conditional approval of the program until November, 2016. (Doc. 50–1 at ¶ 16; Doc. 56–1 at ¶ 16; Doc. 50–10). The proposed Second Consent Agreement again explained that the PNP had not met certain standards set forth in the Ohio Administrative Code applicable to nursing education programs. (Doc. 50–10). Antonelli was required to sign the proposed Second Consent Agreement by November 12, 2015. (Id. at 2).

Instead of signing the proposed Second Consent Agreement by the required date, Ms. Barnette, then the Program Administrator of the PNP, added proposed modifications and returned it to the OBN. (Doc. 50–1 at ¶ 17; Doc. 56–1 at ¶ 17). Ms. Barnette's changes were rejected and the deadline for Antonelli to sign Second Consent Agreement passed. (Doc. 50–1 at ¶ 18; Doc. 56–1 at ¶ 18).

On November 20, 2015, the OBN issued a Notice of Opportunity for Hearing ("Notice") to Antonelli. (Doc. 50–1 at ¶ 19; Doc. 56–1 at ¶ 19; Doc. 50–13). The Notice informed Antonelli that the OBN "is authorized to propose to deny full approval and withdraw conditional approval of the [PNP] based on its failure to meet and maintain the standards established in rules adopted under Section 4723.07, ORC." (Doc. 50–13 at 5). The Notice gave Antonelli thirty days to request a hearing. (Id. )

Ms. Barnette drafted a Request for Hearing ("Request") and mailed it to the OBN on December 14, 2015. (Doc. 50 at ¶ 21).⁴ On January 4, 2016, Ms. Barnette contacted the OBN to inquire as to the hearing date. (Doc. 50–1 at ¶ 22; Doc. 56–1 at ¶ 22). The OBN advised it had not received Ms. Barnette's request. (Doc. 50–1 at ¶ 23; Doc. 56–1 at ¶ 23).

Subsequently, the OBN issued an Order withdrawing the PNP's conditional approval and denying full approval status for the program; the Order was sent via Certified Mail to Antonelli on March 29, 2016. (Doc. 50–1 at ¶ 24; Doc. 56–1 at ¶ 24). On March 30, 2016, the PNP was suspended. (Doc. 50–1 at ¶ 25).

Antonelli filed a Motion to Stay against the OBN in the Franklin County, Ohio, Court of Common Pleas on April 11, 2016. The Motion for Stay was granted and the program was re-opened after less than 20 days. (Doc. 50–1 at ¶ 26; Doc. 56–1 at ¶ 26).

The issue of whether Antonelli properly made a Request for Hearing that must be honored by the OBN was then before the Court of Common Pleas. A hearing was held on April 26, 2016. On May 11, 2016, the Court ruled in Antonelli's favor and ordered that Antonelli had complied with the requirements to request a hearing and was, therefore, entitled to a hearing before the OBN. (Doc. 50–1 at ¶ 27; Doc. 56–1 at ¶ 27).

The Administrative Hearing with the OBN was conducted before Hearing Examiner Ronda Shamansky on September 20–21, 2016. (Doc. 50–1 at ¶ 28; Doc. 56–1 at ¶ 28). Thereafter, Ms. Shamansky entered her Report and Recommendation recommending that the OBN continue conditional approval of the PNP for at least one additional year. (Doc. 50–1 at ¶ 29; Doc. 56–1 at ¶ 29).

On November 17, 2016, the OBN adopted the Report and Recommendation and ordered that conditional approval be extended for the PNP through November 16, 2017. (Doc. 50–1 at ¶ 30; Doc. 56–1 at ¶ 30).

2. Ms. Borden's experience in the PNP.

Ms. Borden enrolled in the PNP in or around May 2014. (Doc. 50–1 at ¶ 1; Doc. 56–1 at ¶ 1). At the time she enrolled, she signed and initialed several documents that are of consequence to this litigation.

First, Ms. Borden executed an Enrollment Agreement. (Doc. 50–1 at ¶ 32; Doc. 56–1 at ¶ 32). In bold print, the Enrollment Agreement expressly notified Ms. Borden that Antonelli does not guarantee its credits will transfer to another institution:

Antonelli College does not guarantee transferability of its credits to other institutions of higher education. Transfer credit is always at the discretion of the receiving institution. If you plan to transfer credit from Antonelli College to another institution, please check with the other institution before enrolling to determine if it will accept credits and/or specific courses taken at Antonelli College.

(Doc. 50–2 at 3) (emphasis in original).

Second, concurrent with the Enrollment Agreement, Ms. Borden executed a State of Ohio Student Disclosure Form issued by the State of Ohio Board of Career Colleges and Schools. (Doc. 50–1 at ¶ 34; Doc. 56–1 at ¶ 34). Ms. Borden initialed next to the following disclosure: "I understand that the transferability of credits to another institution is determined exclusively by the receiving institution. No person can imply or guarantee that my credits will be transferable." (Id. ; Doc. 50–21 at 2).

Third, Ms. Borden executed a Policies and Procedures disclosure whereby she certified, inter alia , that she had received a copy of the Antonelli College Catalog ("College Catalog"). (Doc. 50–1 at ¶ 36; Doc. 56–1 at ¶ 36; Doc. 50–22 at 2).

The College Catalog that Ms. Borden certified she received expressly stated that the PNP had been granted "Conditional Approval" by the OBN:

Antonelli College Practical Nursing Program was granted Conditional Approval by the Ohio Board of Nursing. Conditional Approval is the initial approval status granted to a new nursing education program that meets and maintains the requirements of Chapter 4723–5, Ohio Administrative Code, and is necessary for the implementation of the program. Graduates of the Practical Nursing program are eligible to sit for the NCLEX–PN and apply for licensure as a Licensed Practical Nurse (LPN) in the State of Ohio.

(Doc. 50–1 at ¶ 37; Doc. 50–9 at 8).⁵

Additionally, Ms. Borden saw documentation within her first six months of enrollment that identified the approval status of the PNP as conditional. (Doc. 50–1 at ¶ 38; Doc. 56–1 at ¶ 38).

After three terms, Ms. Borden withdrew from the program due to pregnancy. (Doc. 50–1 at ¶ 3; Doc. 56–1 at ¶ 3). She returned in May or July 2015.⁶

Ms. Borden claims that, after Antonelli entered into the Consent Agreement which provided conditional approval from the OBN for a limited period of time, Ms. Barnette and Ms. Elkins told her she "had nothing to worry about" regarding the PNP's status with the OBN. (Doc. 56–21 at ¶¶ 13–14). Notwithstanding their representations, the OBN withdrew the PNP's conditional approval and denied full approval, causing the PNP to temporarily shut down in March 2016. (Doc. 50–1 at ¶¶ 24, 25; Doc. 56–1 at ¶ 24).

Following the shut-down of the PNP, Ms. Borden returned in April 2016, and she graduated in January 2017. (Doc. 50–1 at ¶ 5; Doc. 56–1 at ¶ 5). Ms. Borden claims delays associated with the shut-down caused her graduation date to be delayed by five months and resulted in her paying an additional five months of tuition. (Doc. 56–21 at ¶ 21).

Plaintiff passed the NCLEX–PN, became a licensed practical nurse with the State of Ohio in April 2017, and obtained full...