United States District Court, S.D. Ohio, Western Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS OF
PLAINTIFF ANNIE BORDEN AND DEFENDANT ANTONELLI'S
COUNTERCLAIM (Doc. 50)
S. Black United States District Judge
civil case is before the Court on Defendants' motion for
summary judgment on the claims of Plaintiff Annie Borden
(Doc. 50) and the parties' responsive memoranda (Docs.
Annie Borden and Kachena Richardson commenced this lawsuit,
which alleges that Defendants engaged in deceptive and
misleading marketing and advertising practices. Plaintiffs
are former students in Antonelli's Practical Nursing
Program (“PNP”). Plaintiffs' claims, which
are asserted on behalf of themselves and a putative class,
are premised on their contentions that Defendants
misrepresented facts about the PNP, including its quality and
approval from the Ohio Board of Nursing (“OBN”),
and failed to provide adequate instruction.
these bases, the Complaint asserts claims for violation of
the Ohio Deceptive Trade Practices Act (“ODTPA”),
breach of contract, fraud, constructive fraud, intentional
misrepresentation, negligent misrepresentation, promissory
estoppel and unjust enrichment. (Doc. 30).
response, Antonelli filed a Counterclaim against Ms. Borden.
(Doc. 47). The Counterclaim asserts that Ms. Borden is liable
for $6, 815.50 in unpaid tuition and asserts claims for
breach of contract and unjust enrichment.
Facts pertaining to Ms. Borden's claims.
Antonelli opens the PNP; encounters issues with its
approval from the OBN.
September, 2013, Antonelli opened the PNP. (Doc. 50-1 at
¶ 12; Doc. 56-1 at ¶ 12). At the time it opened,
the PNP was “conditionally approved” by the OBN.
(Doc. 50-1 at ¶ 13; Doc. 56-1 at ¶ 13). While
designated “conditionally approved, ” Antonelli
was still allowed to enroll and graduate students, and its
graduates were eligible to sit for the NCLEX-PN exam and to
become licensed practical nurses in the State of Ohio. (Doc.
50-1 at ¶ 15; Doc. 56-1 at ¶ 15).
November 2014, the OBN and Antonelli entered into a consent
agreement (“Consent Agreement”) (Doc. 50-1 at
¶ 14; Doc. 56-1 at ¶ 14). The Consent Agreement
recognized that the PNP had not met certain standards set
forth in the Ohio Administrative Code applicable to nursing
education programs and extended the PNP's conditional
approval until November 2015, at which time the OBN stated it
may grant or deny full approval status. (Doc. 50-8).
November, 2015, the OBN provided Antonelli with another
proposed consent agreement (“Second Consent
Agreement”) that would have extended the conditional
approval of the program until November, 2016. (Doc. 50-1 at
¶ 16; Doc. 56-1 at ¶ 16; Doc. 50-10). The proposed
Second Consent Agreement again explained that the PNP had not
met certain standards set forth in the Ohio Administrative
Code applicable to nursing education programs. (Doc. 50-10).
Antonelli was required to sign the proposed Second Consent
Agreement by November 12, 2015. (Id. at 2).
of signing the proposed Second Consent Agreement by the
required date, Ms. Barnette, then the Program Administrator
of the PNP, added proposed modifications and returned it to
the OBN. (Doc. 50-1 at ¶ 17; Doc. 56-1 at ¶ 17).
Ms. Barnette's changes were rejected and the deadline for
Antonelli to sign Second Consent Agreement passed. (Doc. 50-1
at ¶ 18; Doc. 56-1 at ¶ 18).
November 20, 2015, the OBN issued a Notice of Opportunity for
Hearing (“Notice”) to Antonelli. (Doc. 50-1 at
¶ 19; Doc. 56-1 at ¶ 19; Doc. 50-13). The Notice
informed Antonelli that the OBN “is authorized to
propose to deny full approval and withdraw conditional
approval of the [PNP] based on its failure to meet and
maintain the standards established in rules adopted under
Section 4723.07, ORC.” (Doc. 50-13 at 5). The Notice
gave Antonelli thirty days to request a hearing.
Barnette drafted a Request for Hearing
(“Request”) and mailed it to the OBN on December
14, 2015. (Doc. 50 at ¶ 21). On January 4, 2016, Ms.
Barnette contacted the OBN to inquire as to the hearing date.
(Doc. 50-1 at ¶ 22; Doc. 56-1 at ¶ 22). The OBN
advised it had not received Ms. Barnette's request. (Doc.
50-1 at ¶ 23; Doc. 56-1 at ¶ 23).
the OBN issued an Order withdrawing the PNP's conditional
approval and denying full approval status for the program;
the Order was sent via Certified Mail to Antonelli on March
29, 2016. (Doc. 50-1 at ¶ 24; Doc. 56-1 at ¶ 24).
On March 30, 2016, the PNP was suspended. (Doc. 50-1 at
filed a Motion to Stay against the OBN in the Franklin
County, Ohio, Court of Common Pleas on April 11, 2016. The
Motion for Stay was granted and the program was re-opened
after less than 20 days. (Doc. 50-1 at ¶ 26; Doc. 56-1
at ¶ 26).
issue of whether Antonelli properly made a Request for
Hearing that must be honored by the OBN was then before the
Court of Common Pleas. A hearing was held on April 26, 2016.
On May 11, 2016, the Court ruled in Antonelli's favor and
ordered that Antonelli had complied with the requirements to
request a hearing and was, therefore, entitled to a hearing
before the OBN. (Doc. 50-1 at ¶ 27; Doc. 56-1 at ¶
Administrative Hearing with the OBN was conducted before
Hearing Examiner Ronda Shamansky on September 20-21, 2016.
(Doc. 50-1 at ¶ 28; Doc. 56-1 at ¶ 28). Thereafter,
Ms. Shamansky entered her Report and Recommendation
recommending that the OBN continue conditional approval of
the PNP for at least one additional year. (Doc. 50-1 at
¶ 29; Doc. 56-1 at ¶ 29).
November 17, 2016, the OBN adopted the Report and
Recommendation and ordered that conditional approval be
extended for the PNP through November 16, 2017. (Doc. 50-1 at
¶ 30; Doc. 56-1 at ¶ 30).
Ms. Borden's experience in the PNP.
Borden enrolled in the PNP in or around May 2014. (Doc. 50-1
at ¶ 1; Doc. 56-1 at ¶ 1). At the time she
enrolled, she signed and initialed several documents that are
of consequence to this litigation.
Ms. Borden executed an Enrollment Agreement. (Doc. 50-1 at
¶ 32; Doc. 56-1 at ¶ 32). In bold print, the
Enrollment Agreement expressly notified Ms. Borden that
Antonelli does not guarantee its credits will transfer to
Antonelli College does not guarantee transferability
of its credits to other institutions of higher education.
Transfer credit is always at the discretion of the receiving
institution. If you plan to transfer credit from Antonelli
College to another institution, please check with the other
institution before enrolling to determine if it will accept
credits and/or specific courses taken at Antonelli
(Doc. 50-2 at 3) (emphasis in original).
concurrent with the Enrollment Agreement, Ms. Borden executed
a State of Ohio Student Disclosure Form issued by the State
of Ohio Board of Career Colleges and Schools. (Doc. 50-1 at
¶ 34; Doc. 56-1 at ¶ 34). Ms. Borden initialed next
to the following disclosure: “I understand that the
transferability of credits to another institution is
determined exclusively by the receiving institution. No
person can imply or guarantee that my credits will be
transferable.” (Id.; Doc. 50-21 at 2).
Ms. Borden executed a Policies and Procedures disclosure
whereby she certified, inter alia, that she had
received a copy of the Antonelli College Catalog
(“College Catalog”). (Doc. 50-1 at ¶ 36;
Doc. 56-1 at ¶ 36; Doc. 50-22 at 2).
College Catalog that Ms. Borden certified she received
expressly stated that the PNP had been granted
“Conditional Approval” by the OBN:
Antonelli College Practical Nursing Program was granted
Conditional Approval by the Ohio Board of Nursing.
Conditional Approval is the initial approval status granted
to a new nursing education program that meets and maintains
the requirements of Chapter 4723-5, Ohio Administrative Code,
and is necessary for the implementation of the program.
Graduates of the Practical Nursing program are eligible to
sit for the NCLEX-PN and apply for licensure as a Licensed
Practical Nurse (LPN) in the State of Ohio.
(Doc. 50-1 at ¶ 37; Doc. 50-9 at 8).
Ms. Borden saw documentation within her first six months of
enrollment that identified the approval status of the PNP as
conditional. (Doc. 50-1 at ¶ 38; Doc. 56-1 at ¶
three terms, Ms. Borden withdrew from the program due to
pregnancy. (Doc. 50-1 at ¶ 3; Doc. 56-1 at ¶ 3).
She returned in May or July 2015.
Borden claims that, after Antonelli entered into the Consent
Agreement which provided conditional approval from the OBN
for a limited period of time, Ms. Barnette and Ms. Elkins
told her she “had nothing to worry about”
regarding the PNP's status with the OBN. (Doc. 56-21 at
¶¶ 13-14). Notwithstanding their representations,
the OBN withdrew the PNP's conditional approval and
denied full approval, causing the PNP to temporarily shut
down in March 2016. (Doc. 50-1 at ¶¶ 24, 25; Doc.
56-1 at ¶ 24).
the shut-down of the PNP, Ms. Borden returned in April 2016,
and she graduated in January 2017. (Doc. 50-1 at ¶ 5;
Doc. 56-1 at ¶ 5). Ms. Borden claims delays associated
with the shut-down caused her graduation date to be delayed
by five months and resulted in her paying an additional five
months of tuition. (Doc. 56-21 at ¶ 21).
passed the NCLEX-PN, became a licensed practical nurse with
the State of Ohio in April 2017, and obtained full time
employment as a licensed practical nurse. (Doc. 50-1 at
¶ 6; Doc. 56-1 at ¶ 6).
Facts pertaining to Defendants' Counterclaim.
signing the Enrollment Agreement, Ms. Borden agreed to pay
tuition and fees in exchange for educational services
provided by Antonelli. (Doc. 50-1 at ¶ 7; Doc. 56-1 at
Ms. Borden signed a Financial Aid Application in which she
certified to Antonelli that she would “be responsible
for a balance [of tuition and costs] due in cash that is not
paid by federal, state, or agency assistance.” (Doc.
50-1 at ¶ 8; Doc. 56-1 at ¶ 8; Doc. 50-6). To pay
for her tuition, Ms. Borden received Federal Student Aid,
including Pell Grants, Subsidized Loans and Unsubsidized
Loans, as well as cash payments. (Doc. 50-1 at ¶ 9; Doc.
56-1 at ¶ 9).
claim that Ms. Borden has not made a payment since January
25, 2017, and she has a balance due for unpaid tuition of $6,
815.50. (Doc. 50-1 at ¶¶ 10-11; Doc. 50-7 at 3).
Borden disputes this amount and claims that, pursuant to her
Student Statement dated August 2017, her outstanding balance
is only $4, 790.50. (Doc. 56-21 at ¶ 27).
STANDARD OF REVIEW
motion for summary judgment should be granted if the evidence
submitted to the court demonstrates that there is no genuine
issue as to any material fact, and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The moving party has the burden of
showing the absence of genuine disputes over facts which,
under the substantive law governing the issue, might affect
the outcome of the action. Celotex, 477 U.S. at 323.
All facts and inferences must be construed in a light most
favorable to the party opposing the motion. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
opposing a motion for summary judgment “may not rest
upon the mere allegations or denials of his pleading, but . .
. must set forth specific facts showing that there is a