Cross v. Univ. of Toledo

[Cite as Cross v. Univ. of Toledo, 2022-Ohio-3825.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Trevor Cross, :

Plaintiff-Appellee, : No. 21AP-279
v. (Ct. of Cl. No. 2020-00274JD)
:
University of Toledo, (REGULAR CALENDAR)
:
Defendant-Appellant.
:

D E C I S I O N

Rendered on October 27, 2022

On brief: Merriman Legando Williams & Klang, LLC, Drew
Legando, Tom Merriman, and Edward S. Jerse; Milberg
Coleman Bryson Phillips Grossman, LLP, and Jennifer Kraus-
Czeisler; Evangelista Worley LLC, and James Evangelista;
Fink Bressack, David H. Fink, and Nathan J. Fink, for
appellee. Argued: Drew Legando.

On brief: Dave Yost, Attorney General, and Randall W.
Knutti, Peter DeMarco, Jeanna Jacobus, and Michelle Brizes,
for appellant. Argued: Randall W. Knutti.

APPEAL from the Court of Claims of Ohio

MENTEL, J.
{¶ 1} As the COVID-19 pandemic loomed early in the Spring 2020 semester,
defendant-appellant, University of Toledo ("UT"), moved all classes online, closed
dormitories, and sent on-campus students home. One student, plaintiff-appellee, Trevor
Cross, filed breach of contract and unjust enrichment claims against UT in the Court of
Claims of Ohio on behalf of three purported classes. The trial court granted Mr. Cross's
motion to certify those classes under Civ.R. 23 and UT has appealed. We have jurisdiction
to review "[a]n order that determines that an action may or may not be maintained as a
class action" under R.C. 2505.02(B)(5). Because our review concludes that the trial court
No. 21AP-279 2

abused its discretion by failing to perform the rigorous analysis class certification under
Civ.R. 23 requires, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Spring semester classes at UT began on January 21, 2020, and final exams
were scheduled to end on May 8, 2020, with on-campus students scheduled to move out of
their dormitories the next day. (Compl. at ¶ 21; 2nd Am. Answer at ¶ 21.) When COVID-
19 emerged, the university announced a number of responsive measures that disrupted this
schedule. On March 13, 2020, UT announced that all in-person classes would be converted
to online classes and that any student living on campus able to leave should do so, as "it was
closing residence halls and only students with extenuating circumstances would be
permitted to remain in on-campus housing." (Compl. at ¶ 26; 2nd Am. Answer at ¶ 26.)
The university offered a credit of $1,230 to students who had paid for room and board and
a meal plan but did not offer any refund or credit for tuition or other fees. (2nd Am. Answer
at ¶ 3, 28.)
{¶ 3} Mr. Cross, a "finance and professional sales major" who had paid tuition,
room and board, and "fees for the entire Spring 2020 semester," was living on-campus
when UT converted all classes online and shut the residence halls. (Compl. at ¶ 9-12.) He
moved back home after the university's announcement. Id. On April 28, 2020, Mr. Cross
filed suit against UT, purporting to represent the following three classes of students:
Tuition Class: All people who were charged for or paid tuition
for students enrolled in classes at the University for the Spring
2020 semester who were denied live in-person instruction and
forced to use online distance learning platforms for the last
quarter of the 2019-2020 academic year (the "Tuition Class").
Room and Board Class: All people who were charged for or
paid the costs of room and board (housing and meals) for
students enrolled in classes at the University for the Spring
2020 semester who moved out of their on-campus housing
prior to the completion of that semester because of the
University's policies and announcements related to COVID-19
(the "Room and Board Class").
Fee Class: All people who were charged for or paid fees for or
on behalf of students enrolled in classes at the University for
the Spring 2020 semester (the "Fee Class").
Id. at ¶ 47.
No. 21AP-279 3

{¶ 4} In a section captioned "Class Action Allegations," the complaint described
how Mr. Cross aimed to satisfy the requirements of Civ.R. 23. The impracticable joinder of
all individual student class members satisfied the numerosity requirement of Civ.R.
23(A)(1), and the "precise number of members" could "be ascertained from the University's
records." Id. at ¶ 50. The complaint listed a number of common questions of law or fact,
as required by Civ.R. 23(A)(2), including: "[w]hether there is a difference in value between
online distance learning and live in-person instruction;" whether UT's retention of "the
difference between the value of one half a semester of online distance learning and one half
a semester of live in-person instruction" amounted to unjust enrichment or a breach of UT's
contracts with the students; whether UT breached its contracts with students by not
refunding "the full prorated amount of housing expenses" to students who only lived on
campus for a portion of the semester; whether retaining those payments amounted to
unjust enrichment; and whether the failure to refund fees and retain them amounted to a
breach of contract or unjust enrichment. Id. at ¶ 51. Mr. Cross also alleged that his claims
were typical of the classes he described, as required by Civ.R. 23(A)(3), and that he would
adequately represent the class members when litigating those claims, as required by Civ.R.
23(A)(4). Id. at ¶ 52-53.
{¶ 5} As to the claims themselves, Mr. Cross's complaint asserted three breach of
contract claims and three unjust enrichment claims on behalf of each class. For the Tuition
Class, the breach of contract claim alleged that UT breached its contract with students by
moving all in-person classes online with no tuition refund, causing them to be "deprived of
the value of the services the tuition was intended to cover - live in-person instruction in
brick and mortar classrooms - while the University retained those fees and refused to
reduce outstanding charges." Id. at ¶ 60-61. Thus, he alleged that he and other class
members were entitled to both "a refund and a commensurate reduction in outstanding
charges," as well as the "equitable remedy" of "disgorgement of the difference between the
value of one half a semester of online learning versus the value of one half a semester of live
in-person instruction in brick and mortar classrooms." Id. at ¶ 62-63. Mr. Cross alleged
that UT unjustly enriched itself to the detriment of the Tuition Class by retaining charges
"for live in-person instruction in brick and mortar classrooms without providing the
services for which those funds were to be paid." Id. at ¶ 80.
No. 21AP-279 4

{¶ 6} The complaint also alleged that UT breached its contract with the Room and
Board Class by not providing class members with the "housing for the entire semester" that
they had paid for, and they were therefore "entitled to a reduction in outstanding charges
or a refund." Id. at ¶ 67. UT also allegedly enriched itself to the detriment of the Room and
Board Class "by refusing to refund the amounts" class members paid, entitling them to "the
full prorated unused amounts charged * * * for their housing and meal expenses." Id. at
¶ 84.
{¶ 7} The Fee Class was entitled to "disgorgement of the prorated, unused amounts
of fees already charged and collected" for services never provided to class members,
Mr. Cross alleged, as a remedy for UT's alleged breach of contract. Id. at ¶ 73-76. He also
asserted that the Fee Class was entitled to the same remedy for after UT "stopped providing
the services these fees were intended to cover" and unjustly retained the fees paid by the
class. Id. at ¶ 89-91.
{¶ 8} In sum, Mr. Cross sought as relief for himself and other class members the
following: "a reduction in outstanding charges and a partial refund of tuition representing
the difference in value of a half semester of live in-person instruction versus the value of a
half semester of online distance learning; a reduction in outstanding charges and the return
of the unused portion of room and board costs proportionate to the amount of time that
remained in the Spring 2020 semester when students were forced to move out of their on-
campus housing; and, a reduction in outstanding charges and the full refund of the unused
portion of each meal contract and a refund of a prorated share of fees." Id. at ¶ 29.
{¶ 9} Two days before a scheduled hearing on the issue, Mr. Cross filed a motion
for class certification supported by an expert report prepared by Ted Tatos, an economist
and statistician. (Jan. 6, 2021 Pl.'s Mot. for Class Certification.) With regard to the Tuition
Class and the breach of contract and unjust enrichment claims asserted on its behalf,
Mr. Cross's motion presented a different theory than that stated in the complaint, based on
the purported deficiency of what he described as "emergency remote instruction:"
The University provided students with no refund whatsoever
for tuition. The University's position is that students still
received instruction, albeit by other means. Cross's position is
that he did not receive the benefit of his bargain, which was to
enroll in classes that would be conducted in-person, and he
No. 21AP-279 5

intends to show (through expert testimony) that he should
have been charged less for the substitute emergency remote
instruction the University did offer.
Id. at 4.
{¶ 10} The conversion to emergency remote instruction ("ERT") "meant faculty had
just a week to convert their coursework and method of instruction to remote learning,"
Mr. Cross argued. Id. at 5. He further explained:
The ERT used by the University during the pandemic should
not be confused with traditional online instruction, which is
carefully planned, deliberately designed, and executed by
teachers well-versed in technology-driven educational delivery.
Indeed, an instructor of a traditional online course typically
prepares for eight weeks. See Exhibit 1, Expert Report of Ted
Tatos, ¶ 34. Moreover, and as set forth in some detail in the
Tatos Report, there is substantial and burgeoning literature
about the differences, including their value in the marketplace,
between ERT on the one hand and in-person and traditional
online instruction on the other.
{¶ 11} Thus, Mr. Cross argued, the "numerous common questions" of law and fact
under Civ.R. 23(A)(2) that Tuition Class members shared included "[w]hether there is a
difference in value between ERT and in-person instruction" and "[w]hether UT breached
[its contracts with class members] by retaining the portion of their tuition representing the
difference in value of one half a semester of Emergency Remote Teaching and one half a
semester of live in-person instruction in brick and mortar classrooms," and whether such
retention unjustly enriched UT. Id. at 10. He also argued that these commonalities
predominated "over any relevant individual issues," as required to satisfy Civ.R. 23(B)(3),
because liability under the "common contract" between UT and its students "would be
determinative as to liability for all Tuition Class and Fee Class members," as well as for
Room and Board Class Members. Id. at 13-14. In Mr. Cross's view, "[n]o reason exists for
thousands of UT students to individually pursue breach of contract and unjust enrichment
claims when the members of the Classes were all subject to the identical conduct by the
same defendant." Id. at 14. In addition, Mr. Cross cited three mathematical formulas in
Mr. Tatos's report applicable to each class, asserting that "a common formula for
determining [class members'] potential damages and method for providing a refund is
possible." Id. at 15. Finally, Mr. Cross argued, a class action would be superior to other
No. 21AP-279 6

potential avenues of litigation, as Civ.R. 23(B)(3) required, because it was "not feasible for
class members to file and litigate their own small dollar cases," no other parallel litigation
had already commenced, the Court of Claims was the only court with jurisdiction over the
claims, and the case was "manageable as a class action due to the common proof and
liability issues" he had identified. Id. at 16-17.
{¶ 12} At the class certification hearing, UT's attorney expressed consternation that
the expert report had "found its way to us" only the day before. (Jan. 8, 2021 Tr. at 25.)
While the trial court agreed that it was "obnoxious" to disclose the report "the night before,"
it cautioned against UT's attempts to criticize its contents because "this hearing is not
dealing with that report." Id. at 26. When UT attempted to question one of its witnesses,
Claire Stuve, UT's Director of Curriculum, on her disagreement with Mr. Tatos's
assumptions and methodology, the trial court interrupted, stating that the questioning was
"getting to the merits of the issue of damages." Id. at 53. UT's attorney protested that he
was "responding to the motion, and * * * to the expert report that is attached to that
motion," but the trial court stressed that the report was "not in evidence" and shut down
the questioning: "You're done." Id. at 53-54. When UT's attorney attempted to question
UT's provost about whether the "allegation * * * in this case that the professors did not have
adequate time to prepare an online course and only had a matter of days" and whether that
"amount of time * * * was adequate," the trial court again shut down the questioning: "we're
not dealing with the merits in the case, and that's what you're doing right now." Id. at 93-
94.
{¶ 13} Mr. Cross presented no witnesses at the hearing. Id. at 30. His attorney
asserted that "[t]he facts on which the Court can determine whether Rule 23(a) is satisfied
are undisputed." Id. At the same time, however, he also "ask[ed] the Court to consider
those portions of the expert report that are relevant to class certification, which are those
very few portions which we reference by citation in the body of the motion." Id. at 114. The
trial ordered Mr. Cross's attorney to "extricate" the relevant information from the expert
report and submit it "as a declaration," after which UT would have five days to respond to
Mr. Cross's motion for class certification. Id. at 118.
{¶ 14} UT's memorandum opposing class certification asserted that Mr. Cross's
claim that all Tuition Class members suffered a common injury was "speculative," and that
No. 21AP-279 7

at the class certification stage, "[c]ourts are required to address the merits * * * when merits
issues overlap with certification issues." (Jan. 29, 2021 Memo in Opp. at 3-5.) UT criticized
many aspects of Mr. Tatos's methodology and assumptions and characterized his "opinion
that [ERT] is 'substandard' " as relying "solely on hearsay contained in a four-page-long e-
magazine article, four intra-university guidelines written by unknown authors (none from
UT), and a 'message' he says came from a Harvard dean." Id. at 5-6. UT pointed that
Mr. Tatos had "never tested" his assumption that "the relationship between instructors'
preparation time and the quality of their students' education is 'linear.' " Id. at 6. UT also
asserted that the proposed Tuition Class failed to meet the commonality requirement of
Civ.R. 23(A) or the predominance and superiority requirements of Rule 23(B)(3) because
the claims involved actions by "numerous decision makers:" "Mr. Cross and his would-be
tuition class members have * * * little in common because they enrolled in different courses
with different instructors who converted from in-person instruction to online instruction
in different ways." Id. at 7, 9.
{¶ 15} The trial court granted Mr. Cross's motion for certification. (Apr. 26, 2021
Decision at 10.) Its decision stated the following as the salient facts relevant to the issue of
class certification:
There is no dispute that UT students were not provided a
refund for tuition and fees during the period at issue, as UT has
admitted that UT students were not provided a refund for
tuition and fees. (Second Amended Answer, ¶ 28.) And the
evidence shows that UT students pay the same tuition for in-
person and online classes, except there is a $25 fee for online
courses (according to testimony presented during the
evidentiary hearing).
UT denies, however, that UT students were not provided a
refund for room and board and meal plan. [sic] (Second
Amended Answer, ¶ 28.) UT asserts that it offered a credit of
up to $1,230 for students who lived in the residence halls and
had a meal plan. (Second Amended Answer, ¶ 3.)
Cross alleges that he was enrolled at UT for the Spring 2020
semester and lived in university housing. (Complaint, ¶ 10.)
UT admits that Cross was enrolled at UT for Spring 2020
semester and that Cross lived in university housing. (Second
Amended Answer, ¶ 10.) Cross further alleges that, except for
a portion of his education that was paid with scholarships, the
No. 21AP-279 8

remaining balance of his cost for tuition, room, board, and fees
for the Spring 2020 semester was paid by him and his family
on an out-of-pocket basis. (Complaint, ¶ 10.)
Id. at 7-8.
{¶ 16} The following constituted the entirety of the trial court's application of Civ.R.
23 and analysis of the certification issue:
Based on the submitted evidence the Court finds that joinder of
all members of the proposed classes is impracticable due to,
among other things, the number of students who have been
affected by UT's response to the COVID-19 pandemic, judicial
economy, and potential requests for relief that would involve
future class members.
***
The Court finds that Cross, as the named representative, is a
member of the proposed three classes. Based on the evidence
submitted the Court finds that it has no reason to doubt that
Cross will fairly and adequately protect the interests of the
proposed classes.
Whether Cross, as well as those similarly situated, are entitled
to remediation for tuition, room and board costs, and fees are
questions of law or fact common to Cross and those similarly
situated, and, in the Court's view, Cross's claims relative to
remediation for tuition, room and board costs, and fees are
typical of the claims of the proposed classes. The Court
therefore finds that there are questions of law or fact common
to members of the proposed classes and the Court finds that the
claims relative to remediation for tuition, room and board
costs, and fees are typical of the proposed classes. * * *
The Court further finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy, especially given the desirability
of concentrating the litigation of the claims in this forum. * * *
In sum, the Court determines that Cross has satisfied
requirements for class certification by a preponderance of the
evidence. A class action would achieve economies of time,
expense and effort, as well as promote a uniformity of decisions
relative to similarly situated persons.
(Citations omitted.) Id. at 7-9.
No. 21AP-279 9

{¶ 17} The trial court made no alteration to the definitions proposed by Mr. Cross
before certifying them. Id. at 10.
II. ASSIGNMENT OF ERROR
{¶ 18} UT timely appealed from the trial court's order and states the following as its
single assignment of error:
The Court of Claims erred by certifying three separate classes,
each of which contains numerous members who have
sustained no injury at all. It did so without considering (a)
Trevor Cross's own expert's statistical model in support of the
argument that the existence of damages can be proven through
class-wide evidence "in one stroke"; (b) the University of
Toledo's two expert opinions debunking that model; (c) the
testimony of any witness who appeared at the court's
evidentiary hearing on class certification, in particular the
testimony of Claire Stuve, who was the only class member to
testify and who sustained no injury; and (d) the reasoning of
multiple United States and Ohio Supreme Court decisions that
preclude the certification of each class.
(July 7, 2021 Corrected Brief of Defendant-Appellant University of Toledo, hereinafter
"Appellant's Brief," at vi.)
{¶ 19} In this unwieldy formulation, UT incorporates the "statement of the issues
presented for review" and portions of the "argument[s] containing the contentions of the
appellant" into its "statement of the assignments of error presented for review," in spite of
App.R. 16(A) 's requirement that each be presented separately. See Grand Valley Local
School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 10th Dist. No. 15AP-
412, 2016-Ohio-716, ¶ 9 (noting that an appellant's "purported assignments of error are
framed as legal propositions," and that such propositions "would be more properly
presented in the statement of issues" for the assignment of error to conform with App.R.
16(A)). The criticism is not mere pedantry because "this court rules on assignments of error
only, and will not address mere arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079,
2010-Ohio-553, ¶ 70, citing In re Estate of Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-
1516, ¶ 5. For this reason, our ruling on UT's assignment of error should not be read to
endorse every legal argument stated in UT's assignment of error, as it will only address the
"place in the record" it specifies: the trial court's decision granting Mr. Cross's motion for
class certification. App.R. 16(A)(3).
No. 21AP-279 10

III. STANDARD OF REVIEW
{¶ 20} An abuse of discretion standard applies to appellate review of a trial court's
class certification ruling under Civ.R. 23. Marks v. C.P. Chem. Co., 31 Ohio St.3d 200
(1987), syllabus. A trial court abuses its discretion if its ruling is "unreasonable, arbitrary,
or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "[T]he
appropriateness of applying the abuse-of-discretion standard in reviewing class action
determinations is grounded not in credibility assessment, but in the trial court's special
expertise and familiarity with case-management problems and its inherent power to
manage its own docket." Hamilton v. Ohio Savs. Bank, 82 Ohio St.3d 67, 70 (1998). Thus,
"any doubts about adequate representation, potential conflicts, or class affiliation should
be resolved in favor of upholding the class, subject to the trial court's authority to amend or
adjust its certification order as developing circumstances demand, including the
augmentation or substitution of representative parties." Baughman v. State Farm Mut.
Auto. Ins. Co., 88 Ohio St.3d 480, 487 (2000). Although trial courts enjoy "broad
discretion in deciding whether to certify a class," such discretion "is not unlimited, and
indeed is bounded by and must be exercised within the framework of Civ.R. 23." Hamilton
at 70.
IV. ANALYSIS
{¶ 21} "A class action is a representative action in which a plaintiff sues a defendant
on behalf of a group or class of absent persons who have suffered harm similar in kind to
the named plaintiff." Paul Cheatham I.R.A. v. Huntington Natl. Bank, 157 Ohio St.3d 358,
2019-Ohio-3342, ¶ 37. "The class action is an invention of equity, designed to facilitate
adjudication of disputes involving common issues between multiple parties in a single
action." Planned Parenthood Assn. of Cincinnati v. Project Jericho, 52 Ohio St.3d 56, 62
(1990), citing 7A Wright, Miller & Kane, Federal Practice & Procedure, Section 1751 (1986).
The class action is "an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01
(1979). "To fall within that exception, the party bringing the class action must affirmatively
demonstrate compliance with the procedural rules governing class actions." Felix v. Ganley
Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430, ¶ 25. See also Cullen v. State Farm
Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, ¶ 15 (stating that "a party seeking
No. 21AP-279 11

certification pursuant to Civ.R. 23 bears the burden of demonstrating by a preponderance
of the evidence that the proposed class meets each of the requirements set forth in the
rule").
{¶ 22} "The procedural aspects of class-action litigation in Ohio are controlled by
Fed.R.Civ.P. 23 and Civ.R. 23, depending on whether the matter proceeds in a federal or
state court in Ohio." Felix at ¶ 24. The Supreme Court of Ohio has endorsed consulting
"federal law interpreting the federal rule" as "appropriate and persuasive authority in
interpreting" Civ.R. 23. Id. Under Civil Rule 23(A), there are four prerequisites to class
certification:
One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is
impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and class.
(4) the representative parties will fairly and adequately protect
the interests of the class.
{¶ 23} In addition, the movant must show that the purported class actions satisfy at
least one of the three requirements of Civ.R. 23(B). Relevant here is the Civ.R. 23(B)(3)
action, which a court may certify only if: "the court finds that the questions of law or fact
common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy." The rule provides four examples of "matters
pertinent to these findings" for the trial court to consider:
(a) the class members' interests in individually controlling the
prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.
Civ.R. 23(B)(3).
No. 21AP-279 12

{¶ 24} The requirements of the rule are "not 'a mere pleading standard.' " Felix at
¶ 26, quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Thus, the trial
court may have "to probe behind the pleadings before coming to rest on the certification
question," the resolution of which "involves considerations that are enmeshed in the factual
and legal issues comprising the plaintiff's cause of action." Wal-Mart at 350-51, quoting
Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160-61 (1982). To resolve the
certification question, the trial court must conduct a "rigorous analysis" of the Civ.R. 23
requirements. Hamilton at 70 ("The trial court is required to carefully apply the class action
requirements and conduct a rigorous analysis into whether the prerequisites of Civ.R. 23
have been satisfied.").
{¶ 25} UT argues that "the trial court confused the existence or non-existence of
class-wide damages with the 'merits' " of Mr. Cross's action, and, by doing so, "overlooked"
three of the "most important U.S. and Ohio Supreme Court decisions concerning class
certification:" Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), Comcast Corp. v.
Behrend, 569 U.S. 27 (2013), and Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 2015-
Ohio-3430. (Appellant's Brief at 14.) According to UT, the "rigorous analysis" a trial court
must undertake in order to decide questions of commonality and predominance under
Civ.R. 23 require some inquiry into the "merits" of a claim. Id. at 15-16. Describing
Mr. Cross's Tuition Class as "involving the decision-making of thousands of different
instructors," UT compares it to the unsuccessful employment discrimination class in Wal-
Mart, which failed the commonality requirement because evidence could not show that
thousands of workers who held different jobs under different managers suffered the same
injury. Id. at 17-18. UT also criticizes the trial court for failing to "address or even mention"
the declaration of Mr. Cross's expert, Mr. Tatos, the "sole basis for proving class-wide
damages through a common methodology." Id. at 21. In UT's estimation, Mr. Tatos's
theory is "pure speculation," based on hearsay, and soundly contradicted by its own
economic experts. Id. at 22-26. Mr. Cross's claims require "proof of individual damages,"
UT argues, because they are in essence educational malpractice claims clothed as breach of
contract claims. Id. at 27-30. UT claims that Mr. Cross "has offered no evidence that the
refund" of room and board UT provided to students after this litigation commenced "did
not give the students Mr. Cross purports to represent exactly—or nearly exactly—what they
No. 21AP-279 13

wanted." Id. at 31. Because Mr. Cross has conceded that Mr. Tatos's damages methodology
only applies to the Tuition Class, UT believes that he "has offered no just and reasonable
common methodology for determining room-and-board or fee damages on a class-wide
basis." Id.
{¶ 26} Mr. Cross states in response that UT has failed to demonstrate that the trial
court abused its discretion when granting his motion for class certification. (Brief of the
Appellee Plaintiff Trevor Cross, hereinafter "Appellee's Brief," at 12.) He argues that the
trial court "conducted the 'rigorous analysis' " required because it "articulated its decision
on each of the certification elements," citing portions of the trial court's decision that
correspond to the relevant prongs of Civ.R. 23. Id. at 16. According to Mr. Cross, UT has
failed to demonstrate that the trial court erred when certifying the Room and Board Class
or the Fee Class, each of which involve only "straightforward claims for pro-rata contractual
damages arising from the closure of housing, meal and other campus services." Id. at 17.
He also describes Mr. Tatos's report as "irrelevant" to the issue of class certification because
the trial court did not read the report or rely on its methodology, and in fact "did not
reference the expert, his report, or any of his opinions in [the] certification order." Id. at
18. Mr. Cross asserts that it was reasonable for the trial court "to certify classes based on
the common issue of liability" for breach of an implied contract, "which predominates over
any individual issues" concerning damages. Id. at 19. Finally, Mr. Cross argues that the
trial court properly certified the Tuition Class based on "a rational economic model" that
could value the "difference" between in-person or standard online instruction and ERT,
and, for purposes of class certification, it is enough to have "proposed a reasonable model
to value damages on a class-wide basis." Id. at 21-22.
{¶ 27} As a preliminary matter, we note that UT's appeal presents no argument
challenging the trial court court's Civ.R. 23(A)(1), (3), or (4) rulings on numerosity,
typicality, or Mr. Cross's ability to fairly and adequately represent the classes. Nor did UT
contest Mr. Cross's arguments on the Civ.R. 23(A)(1), (3), or (4) prongs when opposing his
motion for class certification in the trial court. (See Jan. 29, 2021 Memo in Opp.)
Consequently, UT has waived any challenge to those portions of the trial court's
certification order and we will not address them in our analysis. See Reed Estate v. Hadley,
4th Dist. No. 06CA14, 2007-Ohio-5462, ¶ 2 (affirming trial court's certification of class
No. 21AP-279 14

where appellants had failed to argue against ruling under Civ.R. 23(B)(2) before the trial
court, resulting in waiver); Sueoka v. United States, 101 F.App'x 649, 653 (9th Cir.2004)
(holding that cross-appellant had "waived any opposition" to trial court's ruling on
commonality because its appeal failed to challenge trial court's Fed.R.Civ.P. 23(a)(2)
determination). Because Mr. Cross fulfilled his burden to present evidence in support of
the Civ.R. 23(A)(1), (3), and (4) requirements with an affidavit and reference to undisputed
facts, there is no basis for disturbing the trial court's ruling on them without any affirmative
challenge from UT. Cullen, 2013-Ohio-4733, ¶ 15 (movant under Civ.R. 23 "bears the
burden of demonstrating by a preponderance of the evidence" that requirements for class
certification are met). See also Hadley at ¶ 2 (affirming certification of particular classes
supported by evidence introduced by appellee but reversing classes trial court had
erroneously certified without any evidence introduced to support ruling). Consequently,
our review of the trial court's decision will be limited to its conclusions that Mr. Cross
satisfied the requirements of Civ.R. 23(A)(2) and (B)(3).
{¶ 28} Civ.R. 23(A)(2) demands commonality: the existence of "questions of law or
fact common to the class." "Commonality requires the plaintiff to demonstrate that the
class members 'have suffered the same injury.' " Wal-Mart, 564 U.S. 338 at 349-50. The
class members' claims must "depend upon a common contention" that is "of such a nature
that it is capable of classwide resolution--which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke." Id. at 350. Here, however, the trial court did not identify the injury that members
of each class allegedly suffered or any common contention that a class action might resolve.
Its only description of the questions of law or fact common to the members of all three of
Mr. Cross's purported classes was whether such members should be "entitled to
remediation:"
Whether Cross, as well as those similarly situated, are entitled
to remediation for tuition, room and board costs, and fees are
questions of law or fact common to Cross and those similarly
situated, and, in the Court's view, Cross's claims relative to
remediation for tuition, room and board costs, and fees are
typical of the claims of the proposed classes. The Court
therefore finds that there are questions of law or fact common
to members of the proposed classes and the Court finds that the
No. 21AP-279 15

claims relative to remediation for tuition, room and board
costs, and fees are typical of the proposed classes.
(Apr. 26, 2021 Decision at 8.)
{¶ 29} As an analysis of commonality, the trial court's statement merely identifies
an element common to all litigation: whether the plaintiff is entitled to a remedy. Apart
from that self-evident observation, the trial court's circular reasoning simply repeats the
language of Civ.R. 23(A), offering it as both premise and conclusion. It fails to identify a
single question of law or fact raised by Mr. Cross's claims, much less describe any element
of commonality that makes a class action the ideal method for resolution.
{¶ 30} The trial court's sole statement concerning predominance is even less
rigorous, in spite of the fact that the Civ.R. 23(B)(3) requirement "is even more demanding"
than commonality under Civ.R. 23(A). Comcast, 569 U.S. 27, 34 (interpreting Fed.R.Civ.P.
23(b)(3), the federal counterpart to Civ.R. 23(B)(3)). The predominance discussion should
build upon the identified "questions of law or fact common to the class" under Civ.R.
23(A)(2), requiring an analysis of how those questions "predominate over any questions
affecting only individual members" before moving on to determine whether "a class action
is superior to other available methods for fairly and efficiently adjudicating the
controversy." Civ.R. 23(B)(3).
{¶ 31} Again, however, the trial court's discussion does little more than repeat the
language of the rule:
The Court further finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy, especially given the desirability
of concentrating the litigation of the claims in this forum.
(Apr. 26, 2021 Decision at 8.)
{¶ 32} Civ.R. 23(B)(3) requires more than a bare assertion that a court "finds"
predominance satisfied. " 'To meet the predominance requirement, a plaintiff must
establish that issues subject to generalized proof and applicable to the class as a whole
predominate over those issues that are subject to only individualized proof.' " Cullen, 2013-
Ohio-4733, ¶ 30, quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 544 (6th
Cir.2012). One such issue is that of liability:
No. 21AP-279 16

Plaintiffs in class-action suits must demonstrate that they can
prove, through common evidence, that all class members were
in fact injured by the defendant's actions. Although plaintiffs
at the class-certification stage need not demonstrate through
common evidence the precise amount of damages incurred by
each class member, they must adduce common evidence that
shows all class members suffered some injury.
(Internal citations omitted.) Felix, 2015-Ohio-3430, ¶ 33.
{¶ 33} The foregoing quotation is essentially the definition of commonality as stated
in Wal-Mart, but is a necessary precursor to Felix's explanation of how the predominance
inquiry must address injury and damages: "The inquiry into whether there is damage-in-
fact is distinct from the inquiry into actual damages: the '[f]act of damage pertains to the
existence of injury, as a predicate to liability; actual damages involves the quantum of
injury, and relate to the appropriate measure of individual relief.' " Felix at ¶ 34, quoting
Martino v. McDonald's Sys., Inc., 86 F.R.D. 145, 147 (N.D.Ill.1980). Felix further explained
the predominance inquiry by extensively quoting from Gonzales v. Comcast Corp., E.D.Cal.
No. 10-cv-01010-LJO-BAM, 2012 U.S. Dist. LEXIS 196, at *55-56 (Jan. 3, 2012):
When evaluating damages in the predominance inquiry, "[t]he
amount of damages is invariably an individual question and
does not defeat class action treatment." Blackie v. Barrack,
524 F.2d 891, 905 (9th cir.1975) (emphasis added); see also
Negrete v. Allianz Life Ins. Co. of North America, 238 F.R.D.
482 (C.D. Cal. 2002). While determining the amount of
damages does not defeat the predominance inquiry, a proposed
class action requiring the court to determine individualized
fact of damages does not meet the predominance standards of
Rule 23(b)(3). See In re Live Antitrust Litigation, 247 F.R.D.
98 (C.D. Cal. 2007) (recognizing the distinction between
demonstrating the fact of damages and the amount of damages,
and determining that while the latter does not preclude class
certification, the former does.); Catlin v. Washington Energy
Co., 791 F.2d 1343, 1350 (9th Cir.1986) ("[T]he requirement
that plaintiff prove 'both the fact of damage and the amount of
damage ... are two separate proofs.' ")
Id.
{¶ 34} These principles illustrate that a trial court analyzing predominance under
Civ.R. 23(B)(3) must identify the plaintiff's theory of injury and explain how it will be
proved in order to conduct the rigorous analysis the rule requires. For example, in
No. 21AP-279 17

Mr. Cross's breach of contract claims, the predominance inquiry must ask whether "the
'essential' breach element of the breach-of-contract claim is an individualized fact
question" that justifies class certification. Hoggard v. Nationstar Mtge. LLC, D.D.C. No.
17-99 (TJK), 2021 U.S. Dist. LEXIS 254141, at *26 (Dec. 30, 2021). Mr. Cross first proposed
that, for the Tuition Class, UT breached its contracts with class members "by moving the
second half of all classes for the Spring 2020 semester to online distance learning
platforms," causing class members to be "deprived of the value of the services tuition was
intended to cover - live in-person instruction in brick and mortar classrooms - while the
University retained those fees and refused to reduce outstanding charges." (Compl. at ¶ 60-
61.) This theory presumes that online and in-person classes each have distinct, market-
determinative valuations, and that class members were injured by that transition because
the in-person experience was more valuable than the online experience.
{¶ 35} However, by the time Mr. Cross filed the motion for class certification, his
theory of breach for the Tuition Class had evolved, as he proposed then that the issue was
"[w]hether UT breached its contractual relationship [with class members] by retaining the
portion of their tuition representing the difference in value of one half a semester of
Emergency Remote Teaching and one half a semester of live in-person instruction in brick
and mortar classrooms * * *." (Jan. 6, 2021 Pl.'s Mot. for Class Certification at 10.) Unlike
online classroom tuition, ERT is not a product available in the marketplace, so Mr. Cross
proposed valuing it according to Mr. Tatos's methodology. UT counters that common
evidence cannot prove the theory of breach proposed by the current iteration of Mr. Cross's
claim because it assumes that all class members experienced the same inferior educational
experience:
[Proposed Tuition Class members] number more than 19,000
different students in thousands of different course sections
taught by thousands of different instructors who used multiple
different methods of instruction. Mr. Cross and Mr. Tatos have
arrived at no just, reasonable, plausible and non-speculative
means of winnowing out all the students who performed the
same or better after the transition than before the transition.
That means they have not offered common evidence showing
that every member of that class sustained an injury at all, much
less the same injury as every other member.
(Appellant's Brief at 19.)
No. 21AP-279 18

{¶ 36} The parties' competing positions raise several questions, and a rigorous
analysis was required to answer them. Cullen at ¶ 16 (holding that the "rigorous analysis"
under Civ.R. 23 "requires the court to resolve factual disputes relative to each requirement
and to find, based upon those determinations, other relevant facts, and the applicable legal
standard, that the requirement is met"). What is the Tuition Class members' common
injury that amounted to a breach of contract? Did every class member suffer this injury?
May this injury be defined by reference to one administrative act - the replacement of in-
person classroom instruction for ERT - or does it depend upon the individual actions of
each instructor who converted their in-person classroom curriculum to ERT? Will common
evidence to prove that UT breached its contracts with class members predominate over any
individual questions? These questions are offered as examples, but no issue of
commonality or predominance may be answered without confronting them. The trial court
abused its discretion by ignoring these questions and the parties' conflicting positions on
how to resolve them. Howland v. Purdue Pharma L.P., 104 Ohio St.3d 584, 2004-Ohio-
6552, ¶ 21 (reversing class certification order where "the trial court failed to analyze or even
mention any of the specific problems argued by the appellants"); Williams v. Kisling,
Nestico, & Redick, LLC, 9th Dist. No. 29630, 2022-Ohio-1044, ¶ 33 (reversing class
certification order and holding that trial court that "failed to ultimately resolve some of the
foremost evidentiary conflicts regarding whether the plaintiffs' claims could be resolved by
evidence common to all parties in a single adjudication" did not conduct the rigorous
analysis required by Civ.R. 23). Instead of confronting the evolution of Mr. Cross's tuition-
based claims and the evidence he proposed would prove them, the trial court reached back
to the allegations as stated in the complaint. But "[a] colorable claim does not satisfy the
requirements of Civ.R. 23. Nor can compliance with the rule be presumed from allegations
in a complaint." Cullen, 2013-Ohio-4733 at ¶ 34. The trial court did acknowledge the
parties' competing factual positions on the issue of whether UT had "provided a refund for
room and board," but went no further in addressing how issues of commonality or
predominance applied to the claims of the Room and Board Class or the Fee Class either.
A "rigorous analysis" under Civ.R. 23 requires addressing these issues for all classes
proposed by Mr. Cross.
No. 21AP-279 19

{¶ 37} On remand, the trial court cannot avoid these complexities by dismissing
UT's arguments as impermissibly touching on the "merits," as it repeatedly did during the
hearing on Mr. Cross's motion for class certification. In Wal-Mart, the United States
Supreme Court expressly stated that "[f]requently th[e] 'rigorous analysis' " required to rule
on class certification "will entail some overlap with the merits of the plaintiff's underlying
claim. That cannot be helped." Wal-Mart at 351. See also Cullen at ¶ 17 ("Wal-Mart
instructs that in resolving a factual dispute when a requirement of Civ.R. 23 for class
certification and a merit issue overlap, a trial court is permitted to examine the underlying
merits of the claim as part of its rigorous analysis, but only to the extent necessary to
determine whether the requirement of the rule is satisfied."). The trial cannot recoil from
any reference to the evidence Mr. Cross puts forward to prove his claims, including the
report of Mr. Tatos, as off-limits for purposes of class certification. Id at ¶ 34 (stating that
the plaintiff "had to demonstrate, and the trial court had to find, that questions common to
the class in fact predominate over individual ones, and proof of predominance necessarily
overlaps with proof of the merits in this case"). To the contrary, because "deciding whether
a claimant meets the burden for class certification pursuant to Civ.R. 23 requires the court
to consider what will have to be proved at trial and whether those matters can be presented
by common proof." Id. at ¶ 17, citing 7A Wright, Miller & Kane, Federal Practice and
Procedure, Section 1785 (2005).
{¶ 38} As with predominance, the trial court's sole reference to the superiority
requirement under Civ.R. 23(B)(3) lacks the rigor required to determine whether "a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy." Civ.R. 23(B)(3). The trial court stated that "a class action [would be] superior
to other available methods for fairly and efficiently adjudicating the controversy, especially
given the desirability of concentrating the litigation of the claims in this forum." (Apr. 26,
2021 Decision at 8.) This statement references one of the four factors that Civ.R. 23(B) lists
to guide the analysis of predominance and superiority, "the desirability or undesirability of
concentrating the litigation of the claims in the particular forum." Whether a particular
forum is appropriate or not may be relevant in some purported class actions, but forum is
irrelevant to the superiority analysis in this case. There is no question of the "desirability
No. 21AP-279 20

or undesirability" of the forum because the Court of Claims "has exclusive, original
jurisdiction" over Mr. Cross's claims. R.C. 2743.03(A)(1).
{¶ 39} For the reasons discussed, we conclude that it was unreasonable for the trial
court to certify the classes proposed by Mr. Cross without a rigorous analysis of the issues
of commonality, predominance and superiority required by Civ.R. 23. The little discussion
it provided was perfunctory, conclusory, and failed to grapple with the relevant law and the
parties' arguments. It cannot be said to result from a sound reasoning process. "An
unreasonable decision is one that is unsupported by a sound reasoning process." Lias v.
Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 12, citing AAAA Ents. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). An abuse
of discretion includes an unreasonable decision. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983). We are mindful of the high bar for reversal in an appeal of a class
certification ruling reviewed under the abuse of discretion standard. However, reversal in
this instance does not implicate either of the justifications for applying a deferential
standard of review in class certification determinations, "the trial court's special expertise
and familiarity with case-management problems" or "its inherent power to manage its own
docket." Hamilton v. Ohio Savs. Bank, 82 Ohio St.3d 67, 70 (1998). Finally, our decision
should not be read to encourage or discourage certification on remand, a position on which
we remain necessarily agnostic. Williams, 2022-Ohio-1044, ¶ 37 (remanding and stating
that appellate court "takes no position as to whether the trial court should ultimately certify
the proposed class"); Midland Funding LLC v. Colvin, 3rd Dist. No. 5-18-15, 2019-Ohio-
5382, ¶ 53 (reversing denial of class certification but "offer[ing] no opinion whether the
trial court should ultimately certify the proposed class").
V. CONCLUSION
{¶ 40} For the foregoing reasons, we sustain UT's assignment of error insofar as it
asserts that the trial court erred in granting Mr. Cross's motion for class certification under
Civ.R. 23. The decision of the Court of Claims of Ohio is reversed and this cause is
remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
KLATT and DORRIAN, JJ., concur.
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