[Cite as Weiman v. Miami Univ., 2022-Ohio-4294.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Mackenzie Weiman, :

Plaintiff-Appellee, :

 No. 22AP-36

v. : (Ct. of Cl. No. 2020-00614JD)

Miami University, : (ACCELERATED CALENDAR)

Defendant-Appellant. :

Sarah Baumgartner, :

Plaintiff-Appellee, :

 No. 22AP-37

v. : (Ct. of Cl. No. 2020-00644JD)

Miami University, : (ACCELERATED CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 1, 2022

On brief: Climaco Wilcox Peca & Garofoli Co., LPA, Scott D. 

Simpkins; Bursor & Fisher, P.A., Joshua D. Arisohn; Francis 

Mailman Soumilas, P.C., and James A. Francis, for appellees. 

Argued: Joshua D. Arisohn.

On brief: Ice Miller LLP, Diane Menashe, and Alexandra 

Petrillo, for appellant. Argued: Diane Menashe.

APPEALS from the Court of Claims of Ohio
Nos. 22AP-36 and 22AP-37 2

KLATT, J.

{¶ 1} Defendant-appellant, Miami University ("Miami"), appeals from a decision 

and judgment of the Court of Claims of Ohio granting the motion for class certification filed 

by plaintiffs-appellees, Mackenzie Weiman and Sarah Baumgartner. Because the trial court 

failed to conduct a rigorous analysis of the Civ.R. 23(A)(2) and 23(B)(3) factors for class 

certification, we reverse the judgment.

I. Facts and Procedural History

{¶ 2} In March 2020, in response to the Ohio governor's declaration of a state of 

emergency (Executive Order 2020-01D) and to protect the health and safety of its students, 

faculty, and staff, Miami converted its in-person classes to remote-learning classes. The 

governor's executive order was issued in response to the COVID-19 global pandemic. 

Miami issued refunds to students for room and board, parking, some course fees, a portion 

of the general fee, and other miscellaneous fees on a pro rata basis for the weeks remaining 

in the spring semester. Miami did not refund the instructional fee and out-of-state 

surcharge. Classes by remote learning continued for the remaining portion of the spring 

semester, and students received academic credits for successful completion of those 

courses, and the credits counted toward earning a diploma. Miami's failure to refund any 

portion of the instructional fee and out-of-state surcharge for the spring 2020 semester is

the subject of this litigation.

{¶ 3} Appellees Weiman and Baumgartner were under-graduate students at Miami 

during the Spring 2020 semester. On October 22 and November 6, 2020, respectively, 

Weiman and Baumgartner filed suit against Miami asserting claims for breach of contract 

and unjust enrichment. These cases were later consolidated by the trial court. Appellees 

alleged that they paid for a full semester of in-person classes with access to Miami's campus, 

but that Miami instead provided them with online classes without access to the campus. 

Appellees sought damages predicated on the alleged difference in market value between inperson classes with access to Miami's campus, and online classes without access to the 

campus.

{¶ 4} On October 1, 2021, appellees filed a motion for class certification. Miami 

opposed the motion. The trial court held an oral, nonevidentiary hearing on the motion on 

November 19, 2021. During the hearing, the trial court indicated that it wanted the 

definition of the proposed class narrowed. It also stated during the hearing that it intended 
Nos. 22AP-36 and 22AP-37 3

to certify the class. (Tr. at 61.) On November 29, 2021, appellees submitted an amended 

class definition as follows:

All undergraduate students enrolled in classes at the Oxford 

campus of Miami University during the Spring 2020 semester 

who paid the Instructional Fee and/or the Non-Resident 

Surcharge, and who were not given a full refund of those fees 

(pro-rated for the number of days remaining in the semester 

from when classes transitioned online to the last day of exams).

(Nov. 29, 2021 Am. Class Definition Submission.)1

{¶ 5} In a decision filed December 13, 2021, the trial court found that appellees'

amended class definition satisfied the requirements for class certification by a 

preponderance of the evidence. Therefore, the trial court granted appellees' motion for 

class certification.2

{¶ 6} Miami appeals that determination and assigns the following error:

The trial court erred by granting Appellees' Motions for Class 

Certification.

II. Legal Analysis

A. Standard of review

{¶ 7} A trial court has broad discretion in determining whether to certify a class 

action, and an appellate court should not disturb that determination absent an abuse of 

discretion. Marks v. C.P. Chemical Co., 31 Ohio St.3d 200 (1987), syllabus. An abuse of 

discretion connotes more than error of law or judgment; it implies an unreasonable, 

arbitrary, or unconscionable attitude on the part of the trial court. Id. at 201. However, the 

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 v. Shamrock Towing, Inc., 

10th Dist. No. 20AP-266, 2022-Ohio-474, ¶ 15, citing Hamilton v. Ohio Savings Bank, 82 

Ohio St.3d 67, 70 (1998). In addition, as a trial court "does not have discretion to apply the 

law incorrectly[,] * * * courts apply a de novo standard when reviewing issues of law." 

1

 Miami did not object to the amended class definition assuming the trial court intended to certify the class. 

However, Miami expressly preserved its arguments against class certification and its right to appeal an

adverse ruling on that issue.

2 By entry dated January 10, 2022, the trial court dismissed the Baumgartner case (case No. 2020-

00644JD) without prejudice, incorporated the findings from that case into the Weiman case, and ordered 

that both appellees would become named plaintiffs in the Weiman case.
Nos. 22AP-36 and 22AP-37 4

Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 38; State v. Spirnak, 10th 

Dist. No. 19AP-261, 2020-Ohio-6838, ¶ 16 (no court has the authority within its discretion 

to commit an error of law).

B. Miami's Argument

{¶ 8} In support of its sole assignment of error, Miami makes a number of 

interrelated arguments. Its first argument is that the trial court abused its discretion in 

certifying the class because it failed to conduct the required rigorous analysis of the 

commonality and predominance factors set forth in Civ.R. 23(A)(2) and 23(B)(3). More 

specifically, Miami contends the trial court erred when it failed to rigorously analyze the 

appellees' theory of damages and their experts' proposed market analysis before certifying 

the class. We agree.

C. Class Actions Generally

{¶ 9} "[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, the party seeking class action 

certification must prove, by a preponderance of the evidence, that the proposed class meets 

the requirements. Egbert at ¶ 17. The trial court must carefully apply the requirements for 

class certification and conduct a "rigorous analysis" into whether those requirements have 

been satisfied. Madyda v. Ohio Dept. of Pub. Safety, 10th Dist. No. 20AP-17, 2021-Ohio956, ¶ 10, citing Hamilton at 70. A "rigorous analysis" often requires the trial court to 

" 'look[ ] into enmeshed legal and factual issues that are part of the merits of the plaintiff's

underlying claims' * * * and 'consider what will have to be proved at trial and whether those 

matters can be presented by common proof.' " Madyda at ¶ 10, quoting Felix at ¶ 26, and

Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, ¶ 17, citing 

7AA Wright, Miller & Kane, Federal Practice and Procedure, Section 1785 (3d Ed.2005). 

However, the trial court may consider the underlying merits of plaintiff's claims only to the 

extent necessary to determine whether the plaintiff has satisfied the requirements for class 

certification. Felix at ¶ 26; Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 

2013-Ohio-3019, ¶ 44. In explaining a trial court's duty to conduct a rigorous analysis prior 

to certifying a class for litigation, the Supreme Court of Ohio has emphasized that the
Nos. 22AP-36 and 22AP-37 5

requirements are not "a mere pleading standard." Felix at ¶ 26, quoting WalMart Stores, 

Inc. v. Dukes, 564 U.S. 338, 350 (2011). It is not sufficient for class certification purposes 

that the plaintiff's allegations merely raise "a colorable claim." Madyda at ¶ 15, quoting 

Cullen at ¶ 34. Rather, the court must determine whether the party seeking class 

certification affirmatively demonstrated compliance with the requirements for 

certification. Felix at ¶ 26.

D. Requirements for Class Certification

{¶ 10} "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. Felix at ¶ 24. Under Civ.R. 23(A), there are four requirements to 

certify a class:

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,

(4) the representative parties will fairly and adequately protect 

the interests of the class.

{¶ 11} In addition, the movant must show that the purported class action satisfies

at least one of the three requirements set forth in Civ.R. 23(B). In this case, the appellees 

sought certification of their proposed class under Civ.R. 23(B)(3), which sets forth the 

"predominance" and "superiority" requirements. Specifically, Civ.R. 23(B)(3) states that:

"[a] class action may be maintained if Civ.R. 23(A) is satisfied, 

and 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 
Nos. 22AP-36 and 22AP-37 6

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.

{¶ 12} Although Civ.R. 23(B)(3) sets forth a list of factors pertinent to both the 

predominance and superiority findings, the list is not exhaustive, and other relevant factors 

can be considered. Madyda, 10th Dist. No. 20AP-17, 2021-Ohio-956, at ¶ 17, citing State 

ex rel. Davis v. Pub. Employees Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, ¶ 28, 

citing 7AA Wright, Miller & Kane, Federal Practice and Procedure, Section 1777, 118 (3d

Ed.2005).

{¶ 13} Summarizing the Civ.R. 23 requirements, the Supreme Court of Ohio 

articulated the following 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, (4) there must be questions of law or fact 

common to the class, (5) the claims or defenses of the 

representatives must be typical of the claims or defenses of the 

class, (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, 10th Dist. No. 20AP-266, 2022-Ohio-474, at ¶ 16, citing Hamilton at 71, citing 

Warner v. Waste Mgt., 36 Ohio St.3d 91, 96 (1988); Civ.R. 23. The first two prerequisites 

are implicitly required while the remaining five are explicitly set forth in Civ.R. 23. Warner

at 94.
Nos. 22AP-36 and 22AP-37 7

{¶ 14} Miami has conceded that appellees satisfied four of the seven prerequisites

for class certification. (Tr. at 15-16.) However, it contested the first prerequisite, arguing 

that the proposed class is unidentifiable and overly broad. It contested the sixth 

prerequisite, arguing that the representative parties did not fairly and adequately protect 

the interests of the class. Lastly, Miami contested the fourth prerequisite, arguing that the 

appellees failed to meet their burden on the question of commonality (Civ.R. 23(A)(2)), and 

implicitly the predominance and superiority requirements contained in Civ.R. 23(B)(3). 

The trial court's analysis of the commonality and predominance factors contained in Civ.R. 

23(B)(3) is the main focus of Miami's first argument.

{¶ 15} "For a class action to be certified under Civ.R. 23(B)(3), the trial court must 

affirmatively find that: (1) 'the questions of law or fact common to class members 

predominant over any questions affecting only individual members'; and (2) 'a class action 

is superior to other available methods for fairly and efficiently adjudicating the 

controversy.' " Madyda, 10th Dist. No. 20AP-217, 2021-Ohio-956, at ¶ 14, quoting Civ.R. 

23(B)(3). A key purpose of the predominance requirement is to test whether the proposed 

class is sufficiently cohesive to warrant adjudication by representation. Madyda at ¶ 14, 

citing Felix, 145 Ohio St.3d 329, 2015-Ohio-3430, at ¶ 35. For common questions of law or 

fact to predominant, it is not sufficient that such questions merely exist; rather, they must 

represent a significant aspect of the case. Id., citing Cullen, 137 Ohio St.3d 373, 2013-Ohio4733, at ¶ 30, quoting Marks, 31 Ohio St.3d at 204. Additionally, they must be capable of 

repetition for all members in a single adjudication. Id.

{¶ 16} Moreover, it is not sufficient for class certification under Civ.R. 23(B)(3) that 

the allegations of the complaint merely raise " 'a colorable claim.' " Madyda, at ¶ 15, quoting 

Cullen at ¶ 34. Rather, the plaintiff must demonstrate the questions common to the class,

in fact, predominate over individual ones. " ' "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." ' " 

Madyda at ¶ 15, quoting Cullen at ¶ 34, quoting Randleman v. Fid. Natl. Title Ins. Co., 646 

F.3d 347, 352-53 (6th Cir.2011).

{¶ 17} As for the superiority requirement, the determination of whether a class 

action is the superior method of adjudication requires that the trial court " ' "make a 

comparative evaluation of the other procedures available to determine whether class action 
Nos. 22AP-36 and 22AP-37 8

is sufficiently effective to justify the expenditure of judicial time and energy involved 

there." ' " Madyda at ¶ 16, quoting Davis at ¶ 28, quoting Schmidt v. Avco Corp., 15 Ohio 

St.3d 310, 313 (1984).

{¶ 18} In this case, the appellees' market-based damage theory and their experts' 

proposed analysis raises significant questions with respect to the commonality and 

predominance requirements for class certification. " 'Perhaps the most basic requirement 

to bringing a lawsuit is that the plaintiff suffer some injury.' " Felix, 145 Ohio St.3d 329, 

2015-Ohio-3430, at ¶ 36, quoting Schwartz & Silverman, Common Sense Construction of 

Consumer Protection Acts, 54 U.Kan.L.Rev. 1, 50 (2005). "Although plaintiffs at the classcertification 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." (Emphasis omitted.) Id. at ¶ 33. "If the 

class plaintiff fails to establish that all of the class members were damaged 

(notwithstanding questions regarding the individual damage calculations for each class 

member), there is no showing of preponderance under Civ.R. 23(B)(3)." Id. at ¶ 35; see 

also Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733, at ¶ 15 (stating that, as 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)").

E. The Hearing on Class Certification

{¶ 19} Here, Miami contested whether appellees presented sufficient proof of actual 

injury amenable to resolution on a class-wide basis. Therefore, it was incumbent on the 

trial court to rigorously analyze at the class certification stage the validity of appellees' 

theory of damage and their experts' proposed analysis, even though that analysis would 

overlap in part with the merits of appellees' claims. The transcript of the nonevidentiary 

oral hearing on class certification reflects that the trial court did not conduct the required 

rigorous analysis of appellees' theory of damages to determine if all class members suffered 

some injury.

{¶ 20} Shortly after the commencement of the hearing, the trial court made the 

following statements:

But for those people who are not lawyers and may be clients, let 

me just explain to you exactly what this proceeding is all about. 

We are not here to try the merits, the factual issues of this case. 

That would happen at a later point in time. We are here for the 
Nos. 22AP-36 and 22AP-37 9

sole purpose of determining whether the plaintiffs' proposed 

class should be certified by this court, and thus whether this 

action should proceed to the next step, which would be dealing 

with the merits should it proceed as a class action.

So I am going to be hearing oral arguments. I have received the 

briefs of the parties, and I have had an opportunity to, you 

know, review basically all the issues, the legal issues, that have 

been presented. The attorneys, especially for defense counsel, 

and not just defense counsel in this particular case -- this case

deals with Miami University in Oxford, Ohio -- but I have cases 

dealing with Ohio State, Toledo University, Cincinnati, Case, I 

don't know, almost every state university in the state of Ohio is 

a defendant in one more of these cases.

So the issues involved in this case, which the Plaintiffs have 

identified, are relatively simplistic. The student body in these 

universities paid tuition to have in-person college experience 

during the spring of 2020, and that's not just the experience of 

the education, but the experience of the college atmosphere. 

They paid for in-person college training and they received 

online training, and they believe that there is a breach of what 

we called an implied contract.

And for those non-lawyers, an implied contract is one that isn't 

written. It is one that is understood between the parties 

because of different things that the parties have done during 

the creation of that agreement that implies a certain promise 

on behalf of the parties.

So the claim is that the students believe that they paid tuition 

for an in-college/in-person training and college experience, 

they got an online experience, and they believe that that was 

not what they paid for and they are suing the college for the 

difference in what they received and what they believe that they 

had agreed to buy in the legal concept of an implied contract.

(Tr. at 5-7.)

{¶ 21} After making some general comments about the doctrine of stare decisis and 

the impact of the pandemic on our society, the trial court further stated:

But, you know, now that we have some unique situations before 

us, we're going to create what we call precedent. I'm going to 

have to make a decision of whether a class should be certified 

under these circumstances, and that calls for probably just 

general precedent. But we're also going to have to decide some 
Nos. 22AP-36 and 22AP-37 10

of the legal issues involved in this case. I can tell the lawyers 

the most difficult part of this case is the alleged damages that 

the Plaintiffs have claimed.

But with that in mind, I am required to try to figure out exactly 

where we should proceed from this point and this point going 

forward. So I'm going to have an opportunity to hear the 

arguments with respect to the University of Miami, but I've got 

12 other cases, and I can tell the parties and the lawyers who 

are listening in, I'm not going to rule any differently on this 

case than I am on the other 12 cases. Law firms keep telling 

me, oh, my case is different, you know, Ohio State's different 

than Ohio University, it's different from Miami, and the 

answer is, no, it isn't. It is not different [at] all. The issues are 

did the students get what they paid for. I don't care what school 

they went to, that's the issue that's going to be presented.

Now, the legal issues with respect to the damages are totally 

separate, and I don't want discussions about that today. I 

don't want you arguing the merits of the case. I can tell 

Defense Counsel, in your brief you argued the merits of the case 

in half of your brief, and that's interesting, but that's not what 

we're here for. We're here to decide whether the Rules of Civil 

Procedure, Rule 23, are applicable to a -- this case and whether 

a class should be certified.

(Emphasis added.) Id. at 8-9.

{¶ 22} These statements indicate that the trial court believed all the university cases 

were the same and that it was not going to rule any differently on class certification in this 

case than it would in the other cases. In fact, the transcript of the hearing suggests that 

Miami was aware that the trial court had already certified the class in the case against the 

University of Toledo. (Tr. at 17, 47.)3 Most significantly, the trial court made it clear it 

wanted no discussion of damages at the class certification hearing.

{¶ 23} Later in the hearing, the trial court again expressed that "I have a real 

problem with the damage aspect of this case," but indicated that it would consider 

appellees' damage theory during the merits phase of the case. (Tr. at 59-61.) These 

comments indicate that the trial court was unaware that a rigorous analysis of the 

requirements for class certification often require a court to "look[ ]into enmeshed legal and 

3 The plaintiffs in the University of Toledo case presented a different damage theory and relied on a different 

proposed expert analysis in their motion for class certification than the appellees presented here. Cross v. 

Univ. of Toledo, 10th Dist. No. 21AP-279, 2022-Ohio-3825.
Nos. 22AP-36 and 22AP-37 11

factual issues that are part of the merits of the plaintiff's underlying claims." Felix, 145 Ohio 

St.3d 329, 2015-Ohio-3430, at ¶ 26. Whether or not every member of appellees' proposed 

class suffered some injury under appellees' theory of damages was at the core of Miami's 

argument contesting the commonality and predominance requirements of Civ.R. 23(B)(3). 

The trial court needed to rigorously analyze the appellees' theory of damages to determine 

if these requirements were met before certifying the class.

{¶ 24} Although the trial court clearly recognized that the issue of damages was the 

most difficult part of the case, it relegated that issue to its future merits ruling and expressly 

refused to consider it in determining whether to certify the class. It refused to evaluate 

appellees' damage theory even though Miami argued that appellees' damage theory was 

fundamentally flawed and did not support appellees' claim that all class members suffered 

injury. Therefore, even though the trial court's decision expressly found that appellees 

satisfied all the Civ.R. 23 requirements, the transcript of the hearing demonstrates that the 

trial court did not conduct a rigorous analysis of the commonality and predominance 

factors. The trial court failed to rigorously analyze whether appellees' theory of damages

established that all members of the proposed class suffered some injury as required by 

Felix, and whether common issues predominate over individual issues.

{¶ 25} Because the trial court failed to conduct a rigorous analysis of the Civ.R. 23

requirements for class certification, we sustain Miami's sole assignment of error and 

reverse the judgment of the Court of Claims of Ohio.

Judgment reversed; cause remanded.

SADLER and McGRATH, JJ., concur.