Smith v. Ohio State Univ.

[Cite as Smith v. Ohio State Univ., 2022-Ohio-4101.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Brooke Smith, :

Plaintiff-Appellee, : No. 22AP-125
(Ct. of. Cl. No. 2020-00321JD)
v. :
(REGULAR CALENDAR)
The Ohio State University, :

Defendant-Appellant. :

D E C I S I O N

Rendered on November 17, 2022

On brief: Squire Patton Boggs (US) LLP, and John R. Gall,
Traci L. Martinez, E. Joseph D'Andrea, Elizabeth P. Helpling,
and Roger M. Gold, for appellant. Argued: John R. Gall.

On brief: Climaco Wilcox Peca & Corogoli Co., LPA, and
Scott Simpkins, and Bursor & Fisher, P.A., and John Arisohn,
Scott Bursor, and Sarah Westcot, for appellee. Argued: John
Arisohn.

APPEAL from the Court of Claims of Ohio

SADLER, J.
{¶ 1} Defendant-appellant, The Ohio State University ("OSU"), appeals a decision
and judgment of the Court of Claims of Ohio granting the motion for class certification filed
by plaintiff-appellee, Brooke Smith. For the following reasons, we reverse the trial court
judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2016, Smith was admitted to OSU as an undergraduate student at the
Columbus campus. By the spring semester of 2020, Smith was a fourth-year student in
OSU's College of Education enrolled in a supervised student teaching internship and an in-
No. 22AP-125 2

person seminar corresponding with the internship—the last two classes she needed to
graduate.
{¶ 3} According to OSU's policies, Smith, as well as every other enrolled student,
were "financially responsible to The Ohio State University for payment of all tuition, room
and board fees, and related costs added to the student account" including "fees."
(Appellant's Memo. in Opp. to Class Certification, Ex. A, A Buckeye's Guide to Academic
Policies, hereinafter "Academic Policy," at 37.) The Academic Policy described the fees that
could be accessed, in part pertinent to this case, as follows:
Instructional Fee
The Instructional Fee is used to fund instructional costs at the
university. Students who are taking classes at more than one
Ohio State campus during the same term are assessed fees
based on the campus where they are taking the most
instructional credit hours.
General Fee
The General Fee is mandated by the State of Ohio for the
funding of non-instructional student services. At Ohio State,
general fees provide student services that contribute to
students' emotional and physical well-being as well as their
cultural and social development outside formal instruction.
These student services include Counseling and Consultation
Services, Student Health Services, Disability Services and the
Multicultural Center.
Learning Technology Fee
Some majors charge a Learning Technology Fee to pay for
certain technology-related expenses within the primary
program. [And providing a link to a fee table for particular
majors.]
Program Fee
Some majors charge a Program Fee to pay for certain program-
related expenses. [And providing a link to a fee table for
particular majors.]
Course Fee
Course Fee(s) fund additional costs for specific courses. Any
courses that require added materials and/or equipment will
have this fee. [And providing a link to a fee table for particular
courses.]
***
No. 22AP-125 3

Distance Education fee
Instruction in distance education courses occurs via
technology; they have no scheduled in-classroom or on-site
activities. Students enrolled exclusively in distance education
courses are assessed a distance education administration
surcharge of $100 per student per term. For these students,
site-based fees (COTA Fee, Recreation Fee and Ohio Union
Fee) are waived. * * *
If a student has any regular or "hybrid" courses (regular
courses that also have a significant distance education
component but are not exclusively distance education) in
addition to distance education classes, all regular fees are
assessed. [And providing a link to a fee table for programs
specifically designed as distance learning.]
***
Student Activity Fee
All students at the Columbus campus are assessed a Student
Activity Fee each term. This fee is used to fund major campus
events planned by the Ohio Union Activities Board, student
organizations, student governments, the Discount Ticket
program, Buck-I-SERV (the alternative breaks program), local
community service initiatives, and some of Ohio State's largest
and most traditional campus programs.
***
COTA Fee
The COTA Fee provides students at the Columbus campus
unlimited use of Central Ohio Transit Authority (COTA)
services each term.
(Id. at 37-40.) Out-of-state residents, such as Smith, also incurred a surcharge as compared
to Ohio residents.
{¶ 4} The Academic Policy required students to "agree to [a] Financial
Responsibility Statement before they can register for classes each term." (Id. at 41-42.) The
Financial Responsibility Statement reiterates the student's agreement to be "financially
responsible to The Ohio State University for payment of all tuition, room and board fees
and related costs added to [the student's] account" and sets forth the student's "promise to
pay any fees, fines or penalties" related to attendance at the university. (Appellant's Memo.
in Opp. to Class Certification, Ex. J, Financial Responsibly Statement at 1.)
{¶ 5} According to Smith, for the spring 2020 semester, she paid OSU a total of
$15,548.77 in fees comprised of: $4,584.00 instructional fee (i.e., tuition), a $10,488.50
No. 22AP-125 4

non-resident surcharge on her tuition, a $186.00 general fee, a $37.50 student activity fee,
a $90.00 learning technology fee, a $74.87 recreational fee, a $74.40 student union facility
fee, and a $13.50 COTA bus fee. (Appellee's Brief at 28.) On or about January 6, 2020,
Smith began both her internship, which involved a 12-week field placement in a local public
school district classroom, and her reflective seminar, which was held in-person on OSU's
Columbus campus.
{¶ 6} The semester proceeded without incident until February 2020, when the
COVID-19 pandemic struck the United States. In response to the pandemic emergency, the
State of Ohio mandated, among other restrictions and with limited exceptions, stay-at-
home orders and the closure of schools. As a result, on March 16, 2020, following spring
break, OSU transitioned all in-person classes to remote instruction and closed its campus
facilities. The public school district where Smith was placed for her internship likewise
ceased in-person instruction. Consequently, Smith's in-person internship halted, and her
seminar transitioned to remote instruction. Smith participated in asynchronous student
teaching in the form of "read aloud[s]" and completed alternative assignments for her
seminar. (Smith Depo. at 80.) OSU considered the combination of in-person instruction,
the read alouds, and alternative activities sufficient for Smith to complete her course
requirements, and Smith graduated on-time in May 2020 with a degree in Early Childhood
Education. OSU provided Smith a partial, pro-rated refund for room and board and a
refund for the recreational fee but did not refund her tuition or the other fees it had charged.
{¶ 7} On May 21, 2020, Smith filed a class action complaint against OSU claiming
breach of contract, unjust enrichment, and conversion.1 In her complaint, Smith states the
class action lawsuit is brought "on behalf of all people who paid tuition and fees for the
Spring 2020 academic semester * * * and who, because of [OSU's] response to [the COVID-
19] pandemic, lost the benefit of the education for which they paid, and/or the services for
which their fees paid, without having their tuition and fees refunded to them." (Compl. at
1.) Smith alleged that she paid for a full semester of in-person classes with access to the
OSU campus, but, for approximately half the semester, OSU instead provided her with
online classes, which Smith asserted are "subpar" and "no way the equivalent" of in-person
education. (Compl. at 2, 7.) Smith contended OSU's tuition and fees for in-person

1 Smith voluntarily dismissed the conversion claim.
No. 22AP-125 5

instruction were higher than for on-line instruction because in-person instruction
encompasses a different, more robust experience beyond academic instruction. Smith's
theory of the case centered on her entering a binding contract with OSU through the
admission agreement and payment of tuition and fees, and that she and members of the
class "suffered damage as a direct and proximate result of [OSU's] breach, including but
not limited to being deprived of the education, experience, and services to which they were
promised and for which they have already paid." (Compl. at 11.)
{¶ 8} On June 30, 2020, OSU filed a motion to dismiss pursuant to Civ.R. 12(B)(6).
The trial court denied the motion to dismiss on September 9, 2020.
{¶ 9} Smith moved for class certification on June 25, 2021. Smith contended the
central question to be answered by the class action is: "Should [OSU] be allowed to keep
the tuition and fees that students paid for in-person instruction during the Spring 2020
semester, or should it instead be required to refund a portion of that money because it did
not provide the services that students paid for?" (Mot. for Class Certification at 1.)
According to Smith, the "handbooks, catalogs, policies, and brochures will provide the basis
for any contractual terms across the board on a classwide basis." (Mot. for Class
Certification at 12.) Smith asserted OSU breached its contract with her and class members
when it terminated in-person classes on March 9, 2020. (Mot. for Class Certification at 12.)
As to injury caused by the breach, Smith asserted: "none of the undergraduate students at
OSU received the full semester of in-person classes that they paid for" but instead received
online classes that "she intends to show (through expert testimony) that she should have
been charged less for the substitute remote instruction that OSU provided." (Mot. for Class
Certification at 3, 12.) She contended the trial court need not "adjudicate whether remote
instruction was an adequate substitute for in-person instruction, but rather whether such
a question raises a classwide issue" of "economics (i.e., what are the market differences in
pricing for in-person instruction vs. emergency remote instruction)." (Mot. for Class
Certification at 3.)
{¶ 10} These experts, according to Smith, "have also set out the methods that they
will use to measure damages on a classwide basis." (Mot. for Class Certification at 13.) Her
survey expert, Steven P. Gaskin, "has designed 'a market research survey and analysis' that
will enable him 'to assess the extent of any reduction in market value resulting from the
No. 22AP-125 6

closure of the OSU campus (measured in dollars and/or percentage terms), meaning the
difference in market value between in-person classes and full access to OSU's campus and
facilities, compared to the market value of virtual classes and no access to OSU's campus
and facilities' " using a survey methodology called "conjoint analysis." (Mot. for Class
Certification at 13.)
{¶ 11} According to Gaskin's declaration provided in support of the motion for class
certification, this methodology is appropriate where the objective is "to determine the
relative market values of a product or service with and without a particular product or
service feature or claim on the label or given the disclosure or non-disclosure of a product
or service feature at the time and point of acceptance" and "provide valid and reliable
measures of consumer choices." (Gaskin Declaration at 3, 4.) Gaskin used similar
methodologies in class actions involving consumer products such as motor vehicles,
software, internet modems, LED televisions, chainsaws, cereal, iPhones, and pain
medicine. In his deposition, Gaskin stated that he had not previously conducted a conjoint
survey regarding university tuition prices and could not recall any other conjoint surveys
used in this way.
{¶ 12} The nuanced survey design developed by Gaskin elicits responses based on
certain defined "features" or "attributes" of an educational experience but is "independent
from the pandemic"; it "assum[es] there are two safe * * * educational experiences
available." (Gaskin Depo. at 97, 107-08, 111, 147.) Although he agreed that some students'
preferences changed during the pandemic for health and safety reasons, he did not account
for those preferences in his survey design. (Gaskin Depo. at 107-09.) In other words, the
survey design is based on student preferences in a hypothetical safe world without "the
added glitch that it might kill them to do one or the other" when evaluating preferences.
(Gaskin Depo. at 109, 164.) Along these same lines, according to Gaskin, the design of the
survey did not account for students who valued graduating more than the mode of the
instruction. (Gaskin Depo. at 164.)
{¶ 13} Gaskin had not conducted the survey since he had not been asked to do so;
he proposed the conjoint analysis survey "will be" pretested at some point and then
conducted via a web-based software system that "will be" programmed. (Gaskin
Declaration at 12.) According to Gaskin, "[t]he results obtained from conducting the
No. 22AP-125 7

conjoint analysis survey will allow [him] to calculate the reduction in market value
(measured in dollars and/or percentage terms) attributable to the closure of OSU campus
in Spring 2020." (Footnote omitted.) (Gaskin Declaration at 25.) During his August 24,
2021 deposition, Gaskin agreed that he could not opine with a reasonable degree of
scientific certainty that there is a reduction in market value between in-person classes with
full access to the campus and virtual classes with no access to the campus at OSU since he
had not yet conducted any surveys or analysis. (Gaskin Depo. at 27-32; Gaskin Declaration
at 12.)
{¶ 14} According to Smith, once Gaskin issues findings expressed as a percentage of
an overpayment factor, Smith's damages expert, Colin B. Weir, would then calculate tuition
overpayment by multiplying the percentage overpayment factor by the total tuition that the
class paid, prorated for the time period of remote instruction at issue. In his deposition,
Weir stated that, although his client (Smith and her team of lawyers) expected a "likely"
outcome after the survey is performed, he declined to say he had an expectation of the
outcome. (Weir Depo. at 44.) The survey, according to Weir, "tests [a] hypothesis" that
could be disproven by the results of the survey—a scenario that Weir recalled occurring in
previous, unrelated surveys. (Weir Depo. at 44-45.)
{¶ 15} On September 1, 2021, OSU moved to strike the declarations and exclude the
testimony of Smith's experts, but the motion was denied by the trial court. OSU
additionally opposed the motion for class certification on its merits, arguing that Smith
failed to carry her burden to show class certification is warranted under the rigorous
analysis required under Civ.R. 23. In OSU's view, Smith failed to establish common issues
of fact exist, let alone predominate, since there is no common, class-wide proof of either
breach of contract or injury and because the fact and extent of injury requires individual
inquiries, which Smith's experts failed to take into account. OSU further argued the
conjoint analysis methodology proposed by Smith's expert's is unreliable and untested in
assessing university tuition, and, regardless, is "speculation"—no part of it had yet been
performed to stand as evidence of class-wide injury sufficient to meet Civ.R. 23
requirements. (Memo. in Opp. at 20.)
{¶ 16} To contrast Smith's experts' potential finding of economic injury, OSU
provided a supporting affidavit and official documents of the University Registrar showing
No. 22AP-125 8

OSU offered four different modes of instruction in Spring 2020—in-person, hybrid,
distance enhanced, and distanced learning—each "identical" in cost. (Bricker Aff., Ex. A at
3.) Further, each mode of instruction had, built-in, the potential for remote instruction
regardless of a state of emergency: an in-person course was generally defined to include up
to 24 percent of remote instruction; a hybrid course involved a combination go in-person
and online instruction with 25-74 percent of student activities completed online; a distance
enhanced course offered 75-99 percent of student activities online; and a distance learning
course would be conducted completely online. (Memo. in Opp. at 3; Bricker Aff., Ex. A at
2-3; July 6, 2021 Letter, Ex. C at 1.) OSU provided an expert report opining the proposed
class was not economically damaged by OSU's transition to online instruction for a few
weeks during the Spring 2020 semester, and that Smith's experts' proposed methodology
was flawed in several key respects. OSU emphasized that, "before registering for classes,
students agree to be financially responsible to OSU for the payment of all tuition, room and
board fees and related costs that are added to the student's account." (Bricker Aff., Ex. A at
5.) OSU additionally asserted that even if breach and injury could be shown, the amount
of damages is not capable of measurement on a class-wide basis, Smith is inadequate as a
representative of the class, and the stated class is overbroad, ambiguous, and indefinite.
{¶ 17} Smith filed a reply to the memorandum in opposition to class certification on
September 29, 2021. Smith argued that the post-COVID-19 "version of OSU should have
cost less." (Reply to Memo. in Opp. at 1.) Smith cited to Weir's deposition that explained
that, at the point of sale, "[i]f the value of that tuition would be less on a marketwide basis,
everybody is injured by an overpayment." (Reply to Memo. in Opp. at 1, citing Weir Depo.
at 136.) Therefore, in Smith's view, calculation of overpayment does not depend on
individual questions. Smith added, "[b]ecause there is no data on the market price for
online-only classes at OSU without campus access, a survey is required to calculate it."
(Reply to Memo. in Opp. at 5.) Smith included Gaskin's reply to the report of the OSU's
expert, a reply declaration from Weir, and part of a deposition in which Weir addressed
injury and explains, "[i]t remains to be seen what the outcome of the Gaskin survey will be.
* * * So if the value of that tuition would be less on a marketwide basis, everybody is injured
by an overpayment." (Weir Depo. at 135-36.)
No. 22AP-125 9

{¶ 18} The trial court held an oral hearing on class certification on December 13,
2021. During the hearing, the trial court expressed that it did not "want the issue of the
identification of the class being something that bogs this case down" and that it would like
to certify a class in order to reach the merits issues. (Dec. 13, 2021 Hearing Tr. at 23.) The
attorneys for both parties likewise acknowledged the trial court's reluctance to consider
issues related to the merits of the case at the class certification stage. Smith's attorney
stated, "[s]o I know the Court doesn't want to get into the merits at this stage, and I won't
do that," while OSU's attorney similarly stated, "[a]nd I understand Your Honor's position
here which is you want to get by the class phase and onto the merits." (Dec. 13, 2021
Hearing Tr. at 7, 28.)
{¶ 19} OSU declined the court's suggestion to agree to a class definition and
persisted in arguing Smith had not met her burden in adducing common evidence that class
members suffered an injury to warrant class certification. OSU argued that, in fact, no
evidence of common injury exists in this case: Smith's expert was unable to opine whether
there is a diminished value since the proposed survey had not yet been done. OSU
emphasized that under prevailing case law, "for the class phase, [presenting] the
methodology alone is not sufficient." (Dec. 13, 2021 Hearing Tr. at 29.) OSU additionally
argued against Smith as a representative of the proposed class. Smith countered that, at
the class certification stage, only a methodology for calculating damages is needed; she did
not separately address OSU's argument regarding the lack of any common evidence of
injury.
{¶ 20} In the trial court's view, "[t]he reason that the expert hasn't done [the survey
and analysis] is because the plaintiffs don't want to pay him [a large sum of money] to go
and do that" and, as a reason to certify the class, that the court believed "getting to the
merits of this case is something that is important to do." (Dec. 13, 2021 Hearing Tr. at 18-
19.) The trial court acknowledged the damages issue is "perplexing," but wanted "to give
the plaintiffs an opportunity to give their best shot, let me look at it. Let me see what it is."
(Dec. 13, 2021 Hearing Tr. at 20.) As to the issue of calculating damages, the trial court
signaled that the methodology presented, while "maybe improbabl[e] or difficult[]," was
nevertheless sufficient for class certification as long as "it is not in the realm of
impossibility." (Dec. 13, 2021 Hearing Tr. at 48.) The trial court added, "[b]ut that's not
No. 22AP-125 10

what I'm here to determine today * * * I'm here to determine whether a class should be
certified." (Dec. 13, 2021 Hearing Tr. at 48.)
{¶ 21} On January 21, 2022, the trial court issued its written decision and judgment
entry certifying a class consisting of: "All undergraduate students enrolled in classes at the
Columbus campus of The Ohio State University during the Spring 2020 semester who paid
tuition, the general fee, student union activity fee, learning technology fee, course fees,
program fees, and/or the COTA bus fee." (Jan 21, 2022 Decision at 4 and Judgment Entry
at 1.) In doing so, the trial court: accepted Smith's implied contract theory; determined the
proposed class is identifiable, unambiguous and not overbroad; found that the injury
suffered by the class is "losing the benefit for which they contracted: in-person classes and
access to the campus"; found the "proposed * * * model of determining that damages is
consistent with its liability case;" and agreed Smith was a proper representative of the class.
(Jan 21, 2022 Decision at 2-3, 15.)
{¶ 22} Appellant filed a timely notice of appeal.2
II. ASSIGNMENTS OF ERROR
{¶ 23} Appellant sets forth eight assignments of error for review:
A. In its Decision of January 21, 2022, the trial court erred and
abused its discretion in certifying the class because it failed to
conduct the "rigorous analysis" required by Civ.R. 23 in
determining whether Plaintiff had satisfied the prerequisites
for class certification.
B. In its Decision of January 21, 2022, the trial court erred and
abused its discretion when it found that Plaintiff's claims
satisfied the commonality requirement of Civ.R. 23.
C. In its Decision of January 21, 2022, the trial court erred and
abused its discretion by certifying the class when individual
issues of fact predominated as to the existence of an implied
contract, of a breach of that contract, of injury and of damages,
and a class action was not superior for resolving the
controversy.
D. In its Decision of January 21, 2022, the trial court erred and
abused its discretion when it certified the class, which was
overbroad and ambiguous as stated.

2A motion for summary judgment filed on November 5, 2021 by OSU on the basis of liability remains pending
before the trial court.
No. 22AP-125 11

E. In its Decision of January 21, 2022, the trial court erred and
abused its discretion when it held that Plaintiff's claims were
typical of the class and that Plaintiff herself was a member of
the class she sought to represent.
F. In its Decision of January 21, 2022, the trial court erred and
abused its discretion when it held that that Plaintiff was an
adequate representative, where her alleged injuries differed
from other members of the class and where her interests were
inherently at odds with a substantial number of the class
members.
G. In its Decision of January 21, 2022, the trial court erred and
abused its discretion when it failed to conduct the "rigorous
analysis" required under Civ.R. 23 regarding Plaintiff's experts'
proposed methodology to determine liability and damages, and
when it failed entirely to consider OSU's expert's report and
testimony.
H. In its Decision of January 21, 2022, the trial court erred and
abused its discretion when it certified the class in a suit over
which the court lacked jurisdiction because OSU is an agency
or instrumentality of the State, and its decision to temporarily
close or restrict access to its facilities in the face of the COVID-
19 pandemic was a basic policy decision characterized by a high
degree of official judgment and discretion.
III. STANDARD OF REVIEW
{¶ 24} A trial court has broad discretion in deciding whether a class action may be
maintained, and that conclusion will not be disturbed absent a showing of an abuse of
discretion. Egbert v. Shamrock Towing, Inc., 10th Dist. No. 20AP-266, 2022-Ohio-474,
¶ 14, citing Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987), syllabus. However, "a
trial court's discretion in deciding whether to certify a class action is not without limits and
must be exercised within the framework of Civ.R. 23." Egbert at ¶ 15, citing Hamilton v.
Ohio Sav. Bank, 82 Ohio St.3d 67, 70 (1998). Moreover, as a trial court "does not have
discretion to apply the law incorrectly[,] * * * courts apply a de novo standard when
reviewing issues of law." Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 38.
IV. ANALYSIS
{¶ 25} Because OSU's last assignment of error, labeled "H," asserts the trial court
lacked jurisdiction to issue the instant decision on class certification, which, if correct,
would render the remaining assignments of error moot, we will address it first. Following
No. 22AP-125 12

analysis of the jurisdictional issue, we will proceed to address appellant's assignments of
error concerning the merits of the trial court decision on class certification.
A. Discretionary Immunity and Jurisdiction of the Court of Claims
{¶ 26} OSU argues that discretionary immunity applies in this case because it is an
agency or instrumentality of the state, and its decision to temporarily close or restrict access
to its facilities in the face of the COVID-19 pandemic was a basic policy decision
characterized by a high degree of official judgment and discretion. In OSU's view, because
OSU enjoys discretionary immunity, the trial court lacked jurisdiction over Smith's lawsuit
since Smith's claims do not fall within the waiver of sovereign immunity in R.C. 2743.02 as
required by R.C. 2743.03(A)(1). OSU believes that although it did not raise discretionary
immunity to the trial court, it can be raised at any time because it involves a jurisdictional
issue. Therefore, OSU contends this court should determine that the trial court erred and
abused its discretion when it certified the class in a suit over which the court lacked
jurisdiction.
{¶ 27} Smith counters that because discretionary immunity is an affirmative
defense, and OSU did not raise this issue to the trial court, it has been waived. Smith also
argues the discretionary immunity argument fails on the merits since not issuing a partial
refund to account for the campus closures is merely implementation of the larger policy
decision, and, regardless, courts have not applied discretionary immunity to defeat a breach
of contract claim (as opposed to a tort claim) against the state.
{¶ 28} The discretionary immunity doctrine provides that the "state cannot be sued
for its legislative or judicial functions or the exercise of an executive or planning function
involving the making of a basic policy decision which is characterized by the exercise of a
high degree of official judgment or discretion." Al-Jahmi v. Ohio Ath. Comm., 10th Dist.
No. 20AP-321, 2022-Ohio-2296, ¶ 80, quoting Reynolds v. State Div. of Parole &
Community Servs., 14 Ohio St.3d 68, 70 (1984). "Under Ohio law, immunity is an
affirmative defense." Allen v. Dept. of Adm. Servs. Office of Risk Mgt., 10th Dist. No. 19AP-
729, 2020-Ohio-1138, ¶ 21 (considering discretionary immunity issue arising in the court
of claims), citing Turner v. Cent. Local Sch. Dist., 85 Ohio St.3d 95, 97 (1999). See
Pottenger v. Ohio Dept. of Transp., 10th Dist. No. 88AP-832, 1989 Ohio App. LEXIS 4549,
at *6 (Dec. 7, 1989) (stating the defense of discretionary immunity is an affirmative defense
No. 22AP-125 13

within the contemplation of Civ.R. 8(C)). Considering precedent explaining the issue of
discretionary immunity is an affirmative defense, OSU has not demonstrated that
discretionary immunity is jurisdictional in nature.
{¶ 29} Since OSU has not shown that discretionary immunity is a jurisdictional bar,
it is an issue that OSU should have raised to the trial court to address in the first instance.
"A fundamental rule of appellate review is that an appellate court will not consider any error
that could have been, but was not, brought to the trial court's attention." Greenberg v.
Heyman-Silbiger, 10th Dist. No. 16AP-283, 2017-Ohio-515, ¶ 50, quoting Little Forest
Med. Ctr. v. Ohio Civ. Rights Comm., 91 Ohio App.3d 76, 80 (9th Dist.1993). For example,
this court declined to address an immunity issue where the state defendant raised public
duty immunity as an affirmative defense in an answer but did not argue it in the motion to
the trial court, and the trial court did not independently address public duty immunity. See,
e.g., Al-Jahmi at ¶ 46, fn. 10, 15 (declining to address public duty immunity for the first
time where the state defendant raised public duty immunity as an affirmative defense in an
answer but did not argue it in the motion to the trial court, and the trial court did not
address public duty immunity in its decision.). See also Supportive Solutions, L.L.C. v.
Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 22 (declining to
decide issues of immunity before the lower courts had the opportunity to address them in
the first instance).
{¶ 30} Overall, we find the assigned error lacks merit as to its assertion of a
jurisdictional bar, and additionally find it inappropriate to decide, in the first instance,
whether OSU is entitled to the defense of discretionary immunity. See Al-Jahmi at ¶ 46.
For these two reasons, OSU's assignment of error based on discretionary immunity and
jurisdiction fails.
{¶ 31} According, we overrule assignment of error H.
B. Merits of the Decision to Certify the Instant Class
{¶ 32} OSU in its remaining seven assignments of error makes a broad challenge to
the trial court's certification of the class in this case. For the following reasons, we find OSU
has demonstrated the trial court abused its discretion in failing to conduct a rigorous
analysis as required for class certification.
No. 22AP-125 14

1. Legal standard and analysis required to support class certification
{¶ 33} Ohio courts find seven prerequisites for certification of a class action
pursuant to Civ.R. 23: (1) an identifiable class must exist and the definition of the class must
be unambiguous, (2) the named plaintiff representatives must be members of the class, (3)
the class must be so numerous that joinder of all the members is impracticable
("numerosity"), (4) there must be questions of law or fact common to the class
("commonality"), (5) the claims or defenses of the representatives must be typical of the
claims or defenses of the class ("typicality"), (6) the representative parties must fairly and
adequately protect the interests of the class, and (7) one of the three requirements for
certification set forth in Civ.R. 23(B) must be met. Egbert at ¶ 16, citing Hamilton at 70, 71
(1998), citing Warner v. Waste Mgt., 36 Ohio St.3d 91, 96 (1988); Civ.R. 23.
{¶ 34} In this case, Smith moved for certification under Civ.R. 23(B)(3), which sets
forth the "predominance" and "superiority" requirement. Specifically, Civ.R. 23(B)(3)
states that "[a] class action may be maintained if * * *:
(3) 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 matters pertinent to these findings include:
(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).
{¶ 35} "[C]lass-action suits are the exception to the usual rule that litigation is
conducted by and on behalf of only the individually named parties." Felix v. Ganley
Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430, ¶ 25. "To fall within that exception,
the party bringing the class action must affirmatively demonstrate compliance with the
procedural rules governing class actions." Id. Specifically, "[t]he party seeking class action
certification pursuant to Civ.R. 23 must prove, by a preponderance of the evidence, that the
proposed class meets each of the requirements set forth in the rule." See Egbert at ¶ 17.
No. 22AP-125 15

See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54 ("A
preponderance of the evidence is defined as that measure of proof that convinces the judge
or jury that the existence of the fact sought to be proved is more likely than its
nonexistence."). Correspondingly, "[t]he trial court must carefully apply the requirements
of Civ.R. 23 and conduct a rigorous analysis into whether those requirements have been
satisfied." Egbert at ¶ 15, citing Hamilton at 70, Felix at ¶ 26, and Cullen v. State Farm
Mut. Auto Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, at ¶ 17.
2. The trial court failed to conduct a rigorous analysis as to the
common evidence of class-wide injury (Assignments of Error A
and G)
{¶ 36} In OSU's first assignment of error, labeled "A," OSU contends the trial court
abused its discretion in certifying the class despite failing to conduct the "rigorous analysis"
required by Civ.R. 23 in determining whether Smith had satisfied the prerequisites for class
certification. (Appellant's Brief at 1, 25.) In assignment of error G, OSU reiterates its
position asserting the trial court failed to conduct the required rigorous analysis
particularly with regard to Smith's proposed methodology to determine liability and
damages.
{¶ 37} Smith counters that OSU waived this argument, and, regardless, OSU is
incorrect that she failed to demonstrate classwide injury. Smith asserts, "[a]ll class
members were injured because they all paid for something that they did not receive: in-
person classes with access to the OSU campus. [Smith] is not required [to] provide more
at the class certification stage." (Appellee's Brief at 38.) Smith argues that under Felix at ¶
33, which relied on Comcast Corp. v. Behrand, 559 U.S. 27 (2013), and the "similar
standard" stated in Rikos v. Proctor & Gamble Co., 799 F.3d 497, 505 (6th Cir.2015), which
was decided a week prior to Felix, "class certification requires a methodology for
demonstrating classwide injury and damages, not an actual quantification." (Appellee's
Brief at 39.)
{¶ 38} Following precedent of this court and the Supreme Court of Ohio concerning
the level of analysis required at the class certification stage, we agree with OSU. In
explaining a court's duty to conduct a rigorous analysis prior to certifying a class for
litigation, the Supreme Court has emphasized that Civ.R. 23 is not "a mere pleading
standard." Felix at ¶ 26, quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
No. 22AP-125 16

Contrary to Smith's suggestion, it is not sufficient for class certification purposes that the
plaintiff's allegations merely raise " 'a colorable claim.' " Madyda v. Ohio Dept. of Pub.
Safety, 10th Dist. No. 20AP-217, 2021-Ohio-956, ¶ 15, quoting Cullen at ¶ 34. Rather, the
court must determine whether the party seeking class certification "affirmatively
demonstrat[ed] compliance with the rules for certification and [is] prepared to prove 'that
there are in fact sufficiently numerous parties, common questions of law and fact, etc.' "
Felix at ¶ 26, quoting Dukes at 350.
{¶ 39} To this point, "a trial court's rigorous analysis of the evidence often requires
looking into enmeshed legal and factual issues that are part of the merits of the plaintiff's
underlying claims," but review of the merits may "only [be conducted] for the purpose of
determining that the plaintiff has satisfied Civ.R. 23." Felix at ¶ 26, citing Stammco, L.L.C.
v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶ 40. This "analysis
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." Cullen at ¶ 16.
{¶ 40} Cullen serves as an illustration of a rigorous analysis of the underlying merits
of a plaintiff's claim, and review of the evidence presented, for purposes of determining
whether class certification is appropriate. At the outset, the Cullen court emphasized that
a court should not avoid evaluating evidence presented on contested issues of merit and
reiterated that sufficient evidence must support the trial court's findings on class
certification. Among other issues, the Cullen court examined the testimony and reports
provided by the plaintiff's experts and found that, contrary to the plaintiff's argument, the
experts fell short of establishing common proof of an element of the plaintiff's contract
claim. In doing so, the court remarked on the questionable reliability of the scientific theory
employed, the lack of sufficient evidentiary foundation for the experts' opinions, and the
failure of the experts' opinions to resolve individual questions raised by the facts of the case
that would overwhelm any classwide issue. Therefore, the Cullen court determined the trial
court abused its discretion in granting class certification since a rigorous analysis of the
evidence presented by the parties demonstrated that, under Civ.R. 23(B)(3), individual
questions predominated over issues common to the class.
No. 22AP-125 17

{¶ 41} This court had occasion to apply the Cullen and Felix standard recently in a
similar case. In Cross v. Univ. of Toledo, 10th Dist. No. 21AP-279, 2022-Ohio-3825, we
reversed the judgment of the trial court certifying a class of undergraduate students who
paid tuition and fees at the University of Toledo during the spring 2020 pandemic. In doing
so, while we were mindful of the high bar for reversal in an appeal of a class certification
ruling, we nevertheless found the trial court's "perfunctory, conclusory" decision and
"fail[ure] to grapple with the relevant law and the parties' arguments" to constitute an abuse
of discretion considering the novel and complex issues of the case and, particularly, the
plaintiff's theory of common injury as viewed under the Civ.R. 23(B)(3) predominance
requirement. Id. at ¶ 39. Therefore, we found the trial court failed to conduct a rigorous
analysis necessary for class certification and remanded the matter for further proceedings.
{¶ 42} Here, contrary to Smith's assertion of waiver, the parties hotly contested
whether Smith provided sufficient proof of injury amenable to resolution on a classwide
basis, and OSU contends the trial court's analysis on this issue lacked the necessary scrutiny
of the arguments and evidence. " 'Perhaps the most basic requirement to bringing a lawsuit
is that the plaintiff suffer some injury.' " Felix at ¶ 36, quoting Schwartz & Silverman,
Common Sense Construction of Consumer Protection Acts, 54 U.Kan.L.Rev. 1, 50 (2005).
"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." Felix at ¶ 33.
"If the class plaintiff fails to establish that all of the class members were damaged
(notwithstanding questions regarding the individual damages calculations for each class
members), there is no showing of predominance under Civ.R. 23(b)(3)." Felix at ¶ 35. See
also Cullen at ¶ 15 (stating that, as a part of a proper rigorous analysis, the trial court must
determine whether the party satisfied "through evidentiary proof at least one of the
provisions of Rule 23(b) "). (Emphasis added.)
{¶ 43} The trial court in this case concluded that each student in the class had been
injured by "losing the benefit for which they contracted: in-person classes and access to the
campus," and this conclusion served as the basis for nearly every class certification
requirement. (Trial Court Decision at 7 (identifiable class), 9 (class representative and
membership, numerosity), 11 (commonality, typicality), 12-13 (fair and adequate
No. 22AP-125 18

representation), and 15 (predominance, superiority). The trial court treated the fact of
closure of the campus and the cessation of in-person classes as dispositive to establishing
an injury on behalf of Smith and the class. The trial court explained, "[t]he determination
of whether in-person classes ceased and whether the campus was closed is well suited for
classwide determination." Id. at 15. The trial court then repeatedly treated Smith experts'
model as the means to, eventually, pin down the amount of damages owed to the class and
did not consider OSU's challenge to it: "the precise application of [Smith]'s [market value]
model to the students' various circumstances, and the resultant amount of damages for
each student, is not addressed at this time." Id. at 15.
{¶ 44} Several problems undermine this analysis. First, instead of considering
whether Smith presented sufficient evidence of the economic injury she claimed to have
occurred, the trial court here assumed a "benefit" was lost based only on the fact OSU closed
its campus and switched to remote classes and services in response to the pandemic. In
other words, the trial court either accepted Smith's allegations as true, as would occur under
a pleading standard, or believed the asserted breach in this case—closure of campus and
temporary termination of in-person classes and services—itself served as evidence of
economic injury. Either scenario constituted an abuse of discretion. See Felix at ¶ 26
(stating Civ.R. 23 is not "a mere pleading standard"); Leiby v. Univ. of Akron, 10th Dist.
No. 05AP-1281, 2006-Ohio-2831, ¶ 24, citing Metro. Life Ins. Co. v. Triskett Illinois, Inc.,
97 Ohio App.3d 228, 235 (1st Dist.1994) (finding that, to recover on a breach-of-contract
claim, the claimant must prove not only that the contract was breached, but that the
claimant was injured due to the breach); Alternatives Unlimited-Special, Inc. v. Ohio Dept.
of Edn., 10th Dist. No. 12AP-647, 2013-Ohio-3890, ¶ 23 ("Generally, to recover for breach
of contract, a plaintiff must prove the existence of economic damage as the result of the
breach. * * * Recovery does not require proof of the amount of the economic damage.").
Claris, Ltd. v. Hotel Dev. Servs., LLC, 10th Dist. No. 16AP-685, 2018-Ohio-2602, ¶ 28,
quoting Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 144, (9th
Dist.1996) ("[d]amages are not awarded for a mere breach of contract; the amount of
damages awarded must correspond to injuries resulting from the breach").
{¶ 45} Second, the trial court did not review the evidence and arguments raised by
OSU contesting proof of injury. OSU argued that, having not conducted any portion of the
No. 22AP-125 19

market survey or analysis, Gaskin admitted he could not opine to a reasonable degree of
scientific certainty that OSU students were injured in this case.3 Moreover, according to
Gaskin's report and testimony, the methodology presented to potentially answer the
question of whether the class suffered any common injury due to the campus closure and
switch to remote classes excludes any survey questions or consideration of market
preferences during an emergency such as the pandemic that forced the closure here. OSU
submitted an expert report that made this point, as well as evidence that students paid the
same for in-person and online learning and that the in-person teaching modality carried
the possibility of substantial remote instruction even in a normal semester.
{¶ 46} The trial court, in assuming an injury from the fact of closure and termination
of in-person classes, did not assess these complicated and difficult considerations,
particularly as they relate to whether Smith presented any common evidence—or even a
method to possibly determine—that class members suffered an economic injury
considering the effect of the pandemic.4 As demonstrated by statements during the oral
hearing, the trial court did not believe that issues of merit should be considered at the class
certification stage and sought to expediate defining a class in order to examine those merits
issues at the next stage of litigation. Thus, having accepted the closure of campus and
temporary termination of in-person classes and services as an injury per se, and having
failed to consider how the pandemic affects class certification in this case at all, the trial
court did not undertake a rigorous analysis with respect to the number and nature of
individualized inquires that might be necessary to establish liability with respect to both
tuition and fees.
{¶ 47} Finally, the trial court folded Smith's unjust enrichment claim and arguments
as to certain fees into the same generalized injury analysis without providing any
individualized consideration of those issues. See, e.g., Cross at ¶ 36 (finding the trial court
failed to conduct a rigorous analysis as to certain fees where the trial court acknowledged

3 In other words, without an expert opinion as to this issue, the plaintiff's case here is arguably weaker than
that presented in Cullen, which included experts' opinions as common proof of a breach of contract claim
under the predominance requirement, but, according to the Supreme Court, those opinions lacked a sufficient
evidentiary foundation.
4 We note that even Smith agrees speculation is insufficient to "tip the scales in a class certification ruling."

(Reply to Memo. in Opp. at 3, citing Bridging Communities Inc. v. Top. Fin. Inc., 843 F.3d 1119, 1125 (6th
Cir.2016).)
No. 22AP-125 20

the parties' competing factual positions on the fees but "went no further in addressing how
issues of commonality or predominance applied to [them]").
{¶ 48} Considering all the above, we find the trial court's conclusion that OSU's
(alleged) breach of implied contract to hold in-person classes on an open campus
constituted—in and of itself—proof of a common injury suffered by the class was an error
of law, and the trial court's failure to rigorously analyze the requirements for class
certification due to this error constitutes an abuse of discretion. Therefore, we conclude
OSU's assignments of error challenging the trial court's rigorous analysis, labeled A and G,
have merit. We further find that, because the error permeated the trial court's reasoning
throughout its decision, our decision in this regard renders the remaining assignments of
error, labeled B, C, D, E, and F, moot at this juncture. App.R. 12(A)(c).
{¶ 49} Accordingly, assignments of error A and G are sustained.
V. CONCLUSION
{¶ 50} Having overruled assignment of error H, sustained assignments of error A
and G, and determined assignments of error B, C, D, E, and F to be moot, we reverse the
judgment of the Court of Claims of Ohio. The cause is remanded for further proceedings
consistent with this decision.
Judgment reversed and cause remanded.
BEATTY BLUNT and McGRATH, JJ., concur.
_____________