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Plaintiff Judge Dale A. Crawford c..o 

v. DECISION 

UNIVERSITY OF TOLEDO 

Defendant 

Defendant University of Toledo (UT) has filed a motion labeled "Combined Partial 

Motion To Dismiss And Motion For A Definite Statement." Plaintiff Trevor Cross 

opposes UT's combined motion. 

I. Background 

On April 28, 2020, Cross, on behalf of himself and all others similarly situated, 

filed a Verified Class Action Complaint against UT in which Cross asserted claims of 

breach of contract and unjust enrichment. Cross's claims stem from UT's alleged 

"refusal to provide adequate restitution for tuition, room and board, fees, and other 

applicable costs after the Plaintiff and similarly situated students were forced to leave 

the University due to the Novel Coronavirus Disease of 2019 ('COVID-19') pandemic." 

(Complaint, 1f1.) Cross asserts that he and similarly situated students "lost the benefits 

of in-person instruction, housing, meals, and student activities for which they had 

already paid or been charged by the University for an entire semester. Plaintiff and 

similarly situated students seek refunds of the amounts they paid on a pro-rata basis or 

an equivalent reduction in amounts owing as well as other damages***." (Complaint, 

1f1.) Cross maintains that UT informed students on March 25, 2020, that 

UToledo students with housing and meal plans who moved off campus on 

or before March 25 will receive a credit of up to $1,230. Students who 

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lived in McComas Village and did not have a meal plan will receive a 

credit of up to $750. Students living in Honors Academic Village with a 

meal plan will receive a meal plan credit of up to $350. And students with 

a commuter meal plan will receive a credit of up to $200. 

Students have three options to receive these funds: a credit toward 

next fall's on-campus housing; a credit toward next fall's meal plan; or a 

credit applied to their student account with a refund determined after 

UToledo aid, non-refundable aid, any balances owed, and federal student 

financial aid are taken into consideration. If a student chooses a fall 2020 

credit option, the amount received may be treated as estimated financial 

assistance for the 2020-21 academic year. 

* * * 

(Complaint, 1J 40.) Cross maintains that the credits offered by UT are inadequate. 

(Complaint, 1J39, 41.) 

Cross seeks certification of three classes: (1) 'Tuition Class," (2) "Room and 

Board Class," and (3) "Fee Class."1 Cross demands (1) certification of the proposed 

classes, designation of Cross as class representative, and the appointment of Cross's 

counsel as class counsel; (2) a declaration that UT is financially responsible for 

1Cross asserts "Tuition Class" should be defined as: "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." (Complaint, 1f 47.) 

Cross maintains that the "Room and Board Class" should be defined as: "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 COVID19." (Complaint, 1f 47.) 

Cross contends that the Fees Class should be defined as: "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." 

(Complaint, 1f47.) 

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notifying the members of the proposed classes of the pendency of the lawsuit; (3) a 

declaration that the UT has wrongfully refused to reduce outstanding charges and that 

UT has wrongfully kept funds that have been paid for tuition, room and board, and fees; 

(4) disgorgement of amounts that have been wrongfully obtained for on-campus tuition, 

room and board, and fees; (5) an order requiring UT to reduce outstanding charges for 

tuition, room and board, and fees; (6) injunctive relief, including an order enjoining UT 

from refusing to reduce outstanding charges and from retaining the prorated, unused 

amounts paid for tuition, room and board, and fees; (7) an awa~d of reasonable 

attorney fees, costs and expenses; (8) an award of pre- and post-judgment interest on 

any amounts awarded; and (9) an award of other relief as may be just and proper. 

(Complaint, ,-r 92.) 

On June 1, 2020, UT filed a motion labeled "Combined Partial Motion To Dismiss 

And Motion For A Definite Statement." UT maintains in the motion that Cross's "tuitionrefund claims" are "educational malpractice" claims, which Ohio courts do not 

recognize. UT also maintains that Cross's unjust enrichment claims should be 

dismissed pursuant to Civ.R. 12(8)(6) because such claims could be pled as an 

alternative to Cross's contract claims only if Cross could show that UT committed fraud 

or bad faith, and then only if the parties disputed the existence of the contract that 

governs Cross's relationship with UT. In the combined motion UT also seeks an order 

under Civ.R. 12(E) that would direct Cross to prepare a definite statement regarding 

Cross's claims of breach of contract. 

Cross opposes UT's combined motion. Cross disputes UT's framing of Cross's 

breach-of-contract claims as educational-malpractice claims because Cross has not 

alleged that UT's decision to move to online classes was negligent or substantially 

departed from educational norms. Cross maintains that the unjust enrichment claims 

may be pleaded as an alternative to the contract claims and the unjust enrichment 

claims therefore should not be dismissed. Cross also maintains that UT's Civ.R. 12(E) 

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motion should not be granted because the Complaint complies with Civ.R. 8's 

requirements for notice pleading, and the Complaint "lays out a plain statement of the 

facts, a short, coherent legal theory, and an unambiguous prayer for relief." Cross 

further maintains that he is not required under Civ.R. 1 0(0)(1) to attach a copy of the 

parties' contract because, as noted in the Complaint, the contract is in UT's possession. 

UT maintains in its reply brief that Cross's response to UT's combined motion 

reduces to three propositions: (1) UT promised Cross that his courses would be taught 

through "live in-person instruction in a brick and mortar classroom;" (2) Cross's 

concession that an equitable action for unjust enrichment will not lie in the absence of 

fraud or bad faith when the subject of the claim is governed by an express contract; and 

(3) Cross refuses to respond to UT's specific requests for a definite statement about 

specific contract provisions that undergird Cross's tuition-refund, room-and-boardrefund or student-fee-refund claims. 

II. Law and Analysis 

A. Legal Standards 

A Civ.R. 12(8)(6) motion to dismiss for failure to state a claim "is procedural and 

tests the sufficiency of the complaint." Dunkle v. Ohio Dept. of Rehab. & Correction, 

1Oth Dist. Franklin No. 13AP-923, 2014-0hio-3046, 1l 7, citing Volbers-Kiarich v. 

Middletown Mgmt., 125 Ohio St. 3d 494, 2010-0hio-2057, 1J11, 929 N.E.2d 434. A 

Civ.R. 12(8)(6) motion does not test the merits of a claim. See Fifo v. Liberato, 2013-

0hio-1014, 987 N.E.2d 707, 1J15 (7th Dist.). Whether a plaintiff can prove the facts as 

a plaintiff presents them is an issue for a later determination. See Fifo at 1J15. When a 

court is presented with a Civ.R. 12(8)(6) motion to dismiss, the "factual allegations of 

the complaint and items properly incorporated therein must be accepted as true. 

Furthermore, the plaintiff must be afforded all reasonable inferences possibly derived 

therefrom. * * * It must appear beyond doubt that plaintiff can prove no set of facts 

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entitling [plaintiff] to relief." Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 280, 

649 N.E.2d 182 (1995). 

Civ.R. 12(E) governs a motion for definite statement. Pursuant to Civ.R 12(E), if 

a pleading to which a responsive pleading is permitted "is so vague or ambiguous that a 

party cannot reasonably be required to frame a responsive pleading, he may move for a 

definite statement before interposing his responsive pleading. The motion shall point 

out the defects complained of and the details desired." Under Ohio law, Civ.R. 12(E) "is 

designed to strike at unintelligibility, rather than want of detail. Hence, a motion for a 

definite statement should not be granted to require evidentiary detail that may be the 

subject of discovery." Columbia Gas v. Robinson, 81 Ohio Misc.2d 15, 16, 673 N.E.2d 

701 (M.C.1996), citing Woods v. Reno Commodities, Inc., 600 F. Supp. 574 (D.Nev. 

1984).2 

B. Discussion 

To support UT's request for partial dismissal under Civ.R. 12(8)(6), UT maintains 

that Cross's "tuition-refund" claims are "educational malpractice" claims and Cross's 

unjust enrichment claims could be pled as an alternative to Cross's contract claims only 

if Cross could show that UT committed fraud or bad faith and then only if the parties 

disputed the existence of the contract that governs his relationship with UT. 

Cross's Complaint presents claims of breach of contract and unjust enrichmentnot "tuition refund" or "educational malpractice" claims, as asserted by UT. When a trial 

court determines whether an action sets forth a claim upon which relief can be granted, 

2Accord Hopewell Mtge. Invests. v. Davis, Franklin C.P. No. 14-CV-000392, 2014 Ohio Misc. 

LEXIS 16429 (Aug. 4, 2014); Nelson v. Matheney, Franklin C.P. No. 12 CV 10430, 2013 Ohio Misc. 

LEXIS 10721 (Aug. 21, 2013); Gardens v. Maher, Hancock C.P. No. 2011 CV 218, 2011 Ohio Misc. 

LEXIS 7954 (Sep. 22, 2011); Chase Bank v. A/am, Franklin C.P. No. 10 CV 6351, 2010 Ohio Misc. LEXIS 

19311 (Aug. 17, 2010); Fogel v. Todd Dev. Co., Butler C.P. No. CV 2005 11 3515, 2006 Ohio Misc. 

LEXIS 403 (Apr. 24, 2006); Rickard v. Clapsaddle, Union C.P. No. 02-CV-0321, 2003 Ohio Misc. LEXIS 

1173 (Feb. 19, 2003). 

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a trial court should look to the body of the complaint. Guillory v. Ohio Dept. of Rehab. & 

Correction, 1Oth Dist. Franklin Nos. 07 AP-861, 07 AP-928, 2008-0hio-2299, ,-r 11. A trial 

court's role, however, generally does not include recasting a party's pleadings. See 

Greenlaw v. United States, 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) 

(stating that in "our adversary system, in both civil and criminal cases, in the first 

instance and on appeal, we follow the principle of party presentation. That is, we rely on 

the parties to frame the issues for decision and assign to courts the role of neutral 

arbiter of matters the parties present"). 

Pursuant to Civ.R. 8(A), a pleading that sets forth a claim for relief "shall contain 

(1) a short and plain statement of the claim showing that the party is entitled to relief, 

and (2) a demand for judgment for the relief to which the party claims to be entitled." 

According to Civ.R. 10(0)(1), when any claim is founded on an account or other written 

instrument, a copy of the account or written instrument "must be attached to the 

pleading. If the account or written instrument is not attached, the reason for the 

omission must be stated in the pleading." Cross's Verified Class Action Complaint 

contains plain statements showing that Cross is entitled to relief and a demand for relief. 

The Complaint thus generally satisfies Civ. R. 8(A)(1) and (2)'s requirements. While 

Cross has not appended copies of the contracts referenced in the Complaint, Cross 

indicates in paragraph 58 of the Complaintthat the contracts are in UT's possession; 

such an indication by Cross satisfies Civ.R. 1 0(0)(1 )'s requirements. 

Based on the Court's review, it does not appear beyond doubt that, after all 

reasonable inferences are afforded in favor of Cross, Cross can prove no set of facts 

entitling him, or members of the proposed class, to relief based on claims of unjust 

enrichment. See generally Nati.!Rs, Inc. v. Huff, 1Oth Dist. Franklin No. 1 OAP-306, 

2010-0hio-6530, ,-r 28 (a plaintiff "must establish the following three elements to prove 

unjust enrichment: (1) a benefit conferred by the plaintiff upon the defendant, 

(2) knowledge by the defendant of the benefit, and (3) retention of the benefit by the 

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defendant under circumstances where it would be unjust to do so without payment"). 

UT's request for a Civ.R. 12(8)(6) dismissal of Cross's claims of unjust enrichment is 

not well taken. 

To support UT's motion for a definite statement, UT asks the Court to issue an 

order directing Cross to submit a definite statement addressing certain contract 

allegations referenced in paragraphs 58, 60, 67, and 73 of the Complaint. UT's request 

does not claim that paragraphs 58, 60, 67, or 73 are unintelligible. Rather, UT 

essentially requests evidentiary detail that properly is the subject of discovery-not a 

Civ.R. 12(E) motion. See Columbia Gas v. Robinson, 81 Ohio Misc.2d 15, 16, 673 

N.E.2d 701 (M.C.1996) (Civ.R. 12(E) is designed to strike at unintelligibility and a 

Civ.R. 12(E) motion should not be granted to require evidentiary detail that may be the 

subject of discovery). UT's motion for a definite statement is not well taken. 

Ill. Conclusion 

The Court concludes that UT's "Combined Partial Motion To Dismiss And Motion 

For A Definite Statement" should be denied for reasons set forth above. 

Judge 

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IN THE COURT OF CLAIMS OF OHIO 

TREVOR CROSS Case No. 2020-00274JD 

Plaintiff Judge Dale A. Crawford 

v. JUDGMENT ENTRY 

UNIVERSITY OF TOLEDO 

Defendant 

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(;.,) 

For reasons set forth in the decision filed concurrently herewith, the Court 

DENIES Defendant University of Toledo's Combined Partial Motion To Dismiss And 

Motion For A Definite Statement of June 1, 2020. 

cc: 

Drew Legando 

Tom Merriman 

Edward S Jerse 

1360 West 9th Street Suite 200 

Cleveland OH 44113 

009 

Judge 

Randall W Knutti 

Peter E DeMarco 

Jeanna V Jacobus 

Assistant Attorneys General 

150 East Gay Street 18th Floor 

Columbus OH 43215-3130 

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