[Cite as Craven v. Aultman College of Nursing & Health Sciences,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JAMIE CRAVEN, ET AL : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiffs-Appellants : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 2011-CA-00022 AULTMAN COLLEGE OF NURSING : AND HEALTH SCIENCES, ET AL : : OPINION Defendants-Appellees

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2010CV01841

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 26, 2011

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

RONALD J. HABOWSKI RICHARD S. MILLIGAN Christley, Herington & Pierce PAUL PUSATERI 215 West Garfield Road, Ste. 230 4518 Fulton Dr. N.W. Aurora, OH 44202 P.O. Box 35548 Canton, OH 44735 [Cite as Craven v. Aultman College of Nursing & Health Sciences,

.]

Gwin, P.J.

{¶1} Plaintiffs-appellants Jamie Craven, Amy Liossis, and Jennifer Weaver

appeal a summary judgment of the Court of Common Pleas of Stark County, Ohio,

entered in favor of defendants-appellees Aultman College of Nursing and Health

Sciences and Aultman Hospital. Appellants assign seven errors to the trial court:

{¶2} “I. THE TRIAL COURT ERRED BY FINDING THAT APPELLANTS WERE

AWARE THAT AULTMAN’S PROGRAM WAS NOT ACCREDITED AT THE TIME

APPELLANTS ENROLLED.

{¶3} “II. THE TRIAL COURT ERRED BY FINDING THAT AULTMAN

INFORMED APPELLANTS DURING ORIENTATION THAT AULTMAN COULD NOT

ASSURE ACCREDITATION WOULD BE IN PLACE BY THE TIME OF GRADUATION.

{¶4} “III. THE TRIAL COURT ERRED BY FINDING APPELLANTS WERE

NOTIFIED BY AULTMAN’S ADMINISTRATION, WHO SENT OUT AN INFORMATION

PAMPHLET AND HELD SEVERAL SMALL GROUP QUESTION AND ANSWER

SESSIONS REGARDING ACCREDITATION, THAT THE ACCREDITATION PROCESS

MIGHT NOT BE COMPLETED BY THE TIME THEY GRADUATED.

{¶5} “IV. THE TRIAL COURT ERRED BY FINDING APPELLANTS COULD

NOT SHOW THAT THEY HAD BEEN DENIED POSITIONS, OR EVEN

CONSIDERATION FOR POSITIONS, DUE TO GRADUATING FROM AN

UNACCREDITED PROGRAM.

{¶6} “V. THE TRIAL COURT ERRED BY FINDING THAT APPELLANTS

COULD NOT SHOW THAT THEY HAD BEEN DENIED ENTRY TO A Stark County, Case No. 2011-CA-00022 3

BACCALAUREATE PROGRAM IN NURSING AND THAT THEIR CREDIT HOURS

WOULD NOT TRANSFER.

{¶7} “VI. THE TRIAL COURT ERRED BY FINDING APPELLANTS PROVIDED

NO EVIDENCE OF ANY DAMAGES, THAT THEY CLAIM TO HAVE SUFFERED.

{¶8} “VII. THE TRIAL COURT ERRED IN FINDING THERE WAS NOT A

MATERIAL FACT SUBMITTED FOR THE COURT’S DELIBERATION.”

{¶9} The record indicates appellants applied for admission to the Aultman

College of Nursing’s two-year program in 2005. In 2005, the last class of Aultman

School of Nursing was completing its course work while the newly formed College of

Nursing was accepting its first class. The School of Nursing awarded its graduates a

diploma, while the College of Nursing anticipated awarding associate degrees.

Because the program was new, the College was in the process of applying for

accreditation from the National League of Nursing Accrediting Commission and the

Higher Learning Commission, but had not yet received accreditation.

{¶10} The College of Nursing was not accredited when appellants’ class

graduated.

{¶11} Appellants filed their complaint on May 10, 2010. They alleged they were

not aware of the difference between Aultman School and Aultman College, and they

assumed Aultman College was an accredited nursing program, as Aultman’s School

had been. They alleged accreditation was important because most institutions will not

accept transfer of class credits from an unaccredited institution and most employers

would not employ nurses who graduated from an unaccredited institution. They alleged

Aultman College knew or should have known it would not be accredited by the time Stark County, Case No. 2011-CA-00022 4

appellants graduated, but nevertheless represented to appellants the program would be

accredited by the time they graduated. The complaint alleged the issue of accreditation

was raised during appellants’ first semester of classes, in the fall of 2005, when Aultman

College represented to the students that it would receive accreditation. The complaint

alleged it was not until their third semester in fall 2006, that Aultman College finally

informed appellants that the program would not be accredited by the time they

graduated.

{¶12} Appellants’ complaint alleged eight causes of action: Breach of Contract;

Promissory Estoppel; Fraud; Negligent Misrepresentation; Civil Conspiracy; Violation of

Revised Code Section 4165.02; and Negligence. Appellants individually demanded

judgment in an amount exceeding $25,000, plus punitive damages, reasonable attorney

fees, costs and any further remedy or relief the court deemed just.

{¶13} The trial court’s judgment entry of January 12, 2011, found there was no

question of material fact as to any of appellants’ claims. The court made what it

referred to as “key” findings:

{¶14} (1) Appellants had not entered into a contract to attend appellees’ nursing

program until they enrolled in March 2005.

{¶15} (2) During their depositions, appellants admitted they knew that Aultman’s

program was not accredited when they enrolled.

{¶16} (3) Aultman’s administration sent out an informational pamphlet giving

Appellants notice that the accreditation process might not be completed by the time they

graduated and had several small-group question and answer sessions about

accreditation. Stark County, Case No. 2011-CA-00022 5

{¶17} (4) Aultman informed appellants during orientation that Aultman could not

assure accreditation would be in place by the time of graduation.

{¶18} (5) Appellants are all currently employed as nurses, two with Aultman

Hospital and one with Nationwide Children’s Hospital in Columbus. None could show

they had been denied positions, or even consideration for possessions, because they

graduating from an unaccredited program.

{¶19} (6) None of the appellants could show that they had been denied entry to

a baccalaureate program in nursing, or that if they were, their credit hours would not

transfer because they from an unaccredited program.

{¶20} (7) Appellants provided no evidence of any damages.

{¶21} The court concluded appellees were entitled to judgment as a matter of

law.

{¶22} Civ. R. 56 states in pertinent part:

{¶23} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being entitled to

have the evidence or stipulation construed most strongly in the party's favor. A summary Stark County, Case No. 2011-CA-00022 6

judgment, interlocutory in character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of damages.”

{¶24} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Houndshell v. American States Insurance Company (1981),

. The court may not resolve ambiguities in the evidence presented, Inland

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984),

. A fact is material if it affects the outcome of the case under the applicable

substantive law, Russell v. Interim Personnel, Inc. (1999),

.

{¶25} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court, Smiddy v. The

Wedding Party, Inc. (1987),

. This means we review the matter de

novo, Doe v. Shaffer,

,

.

{¶26} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim, Drescher v. Burt (1996),

. Once the

moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist,

The

non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary material showing a genuine dispute over material

facts, Henkle v. Henkle (1991),

. Stark County, Case No. 2011-CA-00022 7

I, II, & III

{¶27} In their first assignment of error, appellants assert the court erred in

finding it was undisputed that they knew Aultman’s program was not accredited when

they enrolled. In the second assignment of error they challenge the court’s finding that

the agents of the College told the students at orientation that they could not assure the

students that the program would be accredited by the time they graduated.

{¶28} Appellant Craven and appellant Weaver testified in their depositions that

the subject of accreditation was discussed at orientation. Appellant Liossis testified she

did not recall the matter being mentioned at that time, but was aware of the issue by

October of that year, when she was approached by other students. Liossis testified the

other students were concerned about how the lack of accreditation would affect their

future employment and future education. Liossis testified at least one other student

contacted the State of Ohio regarding the accreditation process. In her deposition

Liossis testified at some later time in the first semester, she learned the College would

not be accredited by the time she graduated, and she believed this information had

circulated among the students.

{¶29} Appellants Craven and Weaver both testified after attending the

orientation they believed the College would be accredited by the time they graduated.

All three testified appellees reassured them accreditation would not be a problem, but

no one testified the College guaranteed it would be accredited by the time they

graduated. Stark County, Case No. 2011-CA-00022 8

{¶30} Rebecca Crowl, president of the College of Nursing, deposed she told the

students at orientation the College was in the process of obtaining accreditation, and

the College’s plan was to be accredited by the time its first class graduated.

{¶31} Appellants argue the record shows appellees never told them the program

was not accredited. They argue reasonable minds could differ on whether appellants

should have understood, from the information they were given, that the program was

not accredited, and should have appreciated the impact the lack of accreditation might

have on the value of their associate degrees.

{¶32} In their third assignment of error appellants argue the court erred in finding

that in the fall of 2005, the College distributed pamphlets and held small group sessions

to discuss the fact the accreditation process might not be completed by the time they

graduated. Appellants raise two arguments: first, the very fact appellees felt it was

necessary to provide more information demonstrates that they knew they had not

answered the students’ questions at orientation, and secondly, that the information the

College gave the students in the pamphlets and in the small groups did not respond to

the questions of whether the program would be accredited and what the consequences

would be if it were not accredited by the time they graduated.

{¶33} The pamphlet advised the students they would be eligible to sit for the

Ohio licensing examination but might have problems with other states. It advised them it

was working with Walsh College to accept transfer of the credits earned at Aultman to

apply to Walsh’s baccalaureate program. It also advised that Aultman would employ any

graduate who completed an application prior to graduation, upon the graduate’s receipt

of his or her RN license. Appellants urge this offer is illusory because a student could Stark County, Case No. 2011-CA-00022 9

not receive a license until after graduation. This is a misreading of the offer. Aultman

only required the student to apply before graduation; the student was not required to

actually have the license when he or she completed the application, but needed to be

licensed in order to be employed as an RN.

{¶34} We find the court did not err. The record demonstrates appellees gave no

false information and took steps to inform its students about the status of the

accreditation process. The record shows that early in their studies appellants knew the

program would not be accredited.

{¶35} The first, second, and third assignments of error are overruled.

IV & V

{¶36} In their fourth assignment of error appellants argue the court erred in

finding they could not show the lack of accreditation had a negative impact on their

employment prospects. The court found appellants could not show potential employers

did not consider them for positions, and could not show they were denied positions. In

their fifth assignment of error they urge that construing the evidence most strongly in

their favor, reasonable minds could come to different conclusions as to whether they

would be accepted into a baccalaureate program and receive transfer credits earned

from appellees.

{¶37} In their depositions appellants testified they could not say their

applications were rejected by any potential employer because of their credentials. Some

of the institutions to which they applied did not respond, but appellants did not know

why. Each of the appellants was employed, and only appellant Liossis testified she had

applied to a baccalaureate program. Walsh College accepted her and gave her full Stark County, Case No. 2011-CA-00022 10

credit for the classes she took at Aultman College. The other two appellants had not

applied to any baccalaureate program at the time they were deposed.

{¶38} We agree with the trial court appellants did not produce evidence their

employment prospects were diminished because the College was not accredited. The

only evidence before the court demonstrated they were employed and at least one had

transferred her credits to a baccalaureate program. At most, appellants asked the trial

court and this court to speculate that their future options might be limited.

{¶39} The fourth and fifth assignments of error are overruled.

VI.

{¶40} In their sixth assignment of error, appellants argue the trial court erred in

finding they had suffered no damage as a result of appellees’ actions. The trial court

found a showing of damages is an essential element to a claim for breach of contract,

fraud, promissory estoppel, negligent misrepresentation, and ordinary negligence.

Judgment Entry at page 3, citations deleted. The court found none of the appellants

had provided any evidence of any damages, although they speculate it may be harder

to find employment in the nursing field or more difficult to gain admittance into a

baccalaureate program in nursing.

{¶41} The trial court found the Ohio Consumer Sales Practice Act provides for

private remedies for violations which include actual economic damages. Judgment

Entry at page 4, citing R.C. 1345.09. The court found appellants had brought no

evidence of actual economic damages, and found appellees did not act in an unfair

deceptive or unconscionable manner. The court found appellees had taken several Stark County, Case No. 2011-CA-00022 11

opportunities to inform its nursing students that accreditation was not guaranteed, and

the court found appellants continued in the program despite having been informed.

{¶42} The trial court found under the Ohio Deceptive Trade Practices Act, a

plaintiff must prove (1) a false statement or statement which is misleading; (2) which

statement actually deceived or has the tendency to deceive a substantial segment of

the target audience; (3) the deception is material in that it is likely to influence a

purchasing decision; and the plaintiff has been or is likely to be injured as a result.

Judgment Entry at page four, citing R.C. 4165.02. The court found there were no

deceptive acts and no damages, and found appellants had not shown they were likely to

suffer damages in the future.

{¶43} Appellees cite us to Spafford v. Cuyahoga Community College Eighth

Dist. App. No. 84786,

, where the college advertized it awarded a

“certificate” for completion of its polysomnography program but issued Spafford a

“competency award”. The court of appeals found no violation of R.C. 4165.02, because

the college never stated that program was approved by the Board of Regents or that

completion of program would result in automatic registration by the State of Ohio. The

court found the competency award was a form of certificate. The court found Spafford

had received significant benefits from her education, because she obtained a job

immediately upon completion of her course work, and the time she spent on course

work was credited toward the 18-month employment requirement to take the registry

examination. We agree the Spafford case is similar to the case at bar.

{¶44} The trial court found a claim for civil conspiracy required proof of four

elements: a malicious combination of two or more persons, resulting in injury to a Stark County, Case No. 2011-CA-00022 12

person or property, and the existence of an unlawful act independent of the actual

conspiracy. Judgment entry at page four, citing Davidson v. BP America, Inc. (1997),

. The court found there had been no showing of any injury to

person or property, and there was no evidence of an unlawful act.

{¶45} Appellants argue the trial court looked to what they actually received, and

did not address what they did not receive in this case. Appellants argue the trial court

reasoned that because they were all working as registered nurses, they received the

benefit of the bargain they entered into in March 2005 and would not incur any

damages. Appellants assert as a matter of law they did not need an associate degree

to be qualified to take the examination to obtain an R.N. license, and the fact they had

passed the examination did not demonstrate the value of their associate degrees.

Appellants argue the President of the College, Rebecca Crowl, testified all health-care

professionals should have at a minimum a baccalaureate degree.

{¶46} Appellants argue there is sufficient non-speculative evidence for a jury to

find appellants did not receive what they had bargained for when they entered the

program. We do not agree.

{¶47} We agree with the trial court appellants were aware of the issues

surrounding accreditation early in their schooling and continued to attend the College.

We agree the record contains only evidence they were aware there was a chance they

might not receive their associates degree from an accredited college.

{¶48} Appellants also argue a jury could conclude the appellants would have to

repeat their freshman and/or sophomore years in order to obtain a bachelor’s degree in

nursing. However, of three appellants, only appellant Liossis had attempted to obtain a Stark County, Case No. 2011-CA-00022 13

bachelor of science in nursing, and she testified Walsh University accepted all the

course work in everything she had done at Aultman College, and she was on course to

graduate on schedule. She testified in her deposition her bachelor’s degree would be

an accredited degree and she planned to go on, get a master’s degree, and teach at

some point in the future. We find a jury could not conclude the appellants might not get

credit for the schooling they had received.

{¶49} None of the three appellants could testify they were denied employment

because their associate degree did not come from an accredited institution. There is no

evidence in the record to support their claim their employment prospects were

diminished.

{¶50} We find the trial court did not err in finding appellants had not come

forward with evidence of any damages.

{¶51} The sixth assignment of error is overruled.

VII

{¶52} In their seventh assignment of error appellants argue the court erred in

finding there were no genuine issues of material fact. Appellants assert the court did not

construe the evidence and the reasonable inferences to be drawn most strongly in their

favor. We do not agree. The inferences appellants ask us to draw are unsupported by

the record and are speculative in nature. In some instances the arguments appellants

advance directly contradict the deposition evidence in the record. Based upon the

record as developed in the trial court we agree with the court reasonable minds could

not differ on any material fact.

{¶53} The seventh assignment of error is overruled. Stark County, Case No. 2011-CA-00022 14

{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, P.J., and

Farmer, J., concur;

Hoffman, J., concurs

separately _________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER WSG:clw 0829 Stark County, Case No. 2011-CA-00022 15

Hoffman, J., concurring

(¶55) I concur in the majority’s analysis and disposition of Appellant’s sixth

assignment of error. I would find all of Appellant’s other assignments of error moot

based upon the two-issue rule.

________________________________ HON. WILLIAM B. HOFFMAN [Cite as Craven v. Aultman College of Nursing & Health Sciences,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JAMIE CRAVEN, ET AL : : Plaintiffs-Appellants : : : -vs- : JUDGMENT ENTRY : AULTMAN COLLEGE OF : NURSING AND HEALTH : SCIENCES, ET AL : : : Defendants-Appellees : CASE NO. 2011-CA-00022

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to

appellants.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER