443 N.E.2d 1021 | Ohio Ct. App. | 1981
This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.
Defendants-appellants (collectively, defendants) appeal from a summary judgment granted against them for the funds expended by two dissatisfied students who withdrew from the defendants' newly organized medical school after attending it for the first six weeks of its existence. While the case raises a series of questions about the relationship between a medical school and its students and about the remedies, if any, available to dissatisfied students, we dispose of this appeal on procedural grounds because under Civ. R. 56(C) summary judgment should not have been granted.
Plaintiffs moved for, and were granted, summary judgment on their cause of action for breach of contract, leaving unresolved the claim of fraud and certain other interpleaded claims not relevant to the current appeal. The judgment entry stated that there was no just reason for delay, thus complying with Civ. R. 54(B).
Defendants present two assignments of error, both of which have merit: first, the court erred in granting summary judgment; second, the court erred in not discharging a prejudgment attachment of defendants' accounts, the statutes having been held to be unconstitutional.
In order to determine whether there are genuine issues of material fact, the presence of which makes summary judgment inappropriate, we must first identify the causes of action alleged by plaintiffs and the defenses set up by defendants; these define the issues. Plaintiffs' claims as students dissatisfied with the medical school fall in that murky area where fraud, deceit, breach of contract and rescission converge and overlap. We can eliminate the tort claims in this appeal, because although the "First Count" of the complaint may be interpreted as sounding in both contract and tort, the parties and the court treated the motion and the judgment as being in contract only. What is not clear, however, is whether the judgment was sought or awarded on the basis of breach of contract by reason of want of consideration, breach of contract by reason of failure of consideration, or fraud in the inducement entitling the plaintiffs to rescission. It seems clear that they sued on an express contract rather than an implied one,4 because the claimed *30 misrepresentations were all set forth in defendants' brochure.
We find unresolved issues of material fact, no matter which of the three contract claims are examined. The unresolved issues are: whether certain of the representations were in fact false, whether the plaintiffs were actually deceived by any of the representations that were factually inaccurate, and if so, whether any of those representations were material to the contract or to plaintiffs' expenditure of funds.5 With such issues of material fact patent on the face of the record, the court erred in granting summary judgment.
The order from which the defendants appealed was the overruling of their second motion to discharge the attachments. Plaintiffs assert that defendants must be precluded from this appeal because they had failed to appeal an adverse ruling on their first motion to discharge the attachments. We are not persuaded. We note that the first motion attacked the insufficiency of plaintiffs' affidavit accompanying their motion for attachment, and that the trial court simultaneously overruled the first motion to discharge and allowed the plaintiffs to file a new affidavit that complied with R.C. Chapter 2715. The first motion to discharge merely pointed to a defect in the attachment affidavit that was simultaneously corrected. It is the rule that an order denying a motion to discharge is a final appealable order for matters expressly raised in the motion and all other issues that might have been raised. Toledo Paper Box Co. v. Jay Lane, Inc.
(Hamilton App. 1935), 20 Ohio Law Abs. 334; Farmers Bank TrustCo. v. Cooper Tire Battery Co. (1930),
We reverse the judgment below and remand this case for further proceedings.
Judgment reversed and case remanded.
BLACK, P.J., SHANNON and KLUSMEIER, JJ., concur.
— was being formed by a group of American scholars,
— was of high quality,
— incorporated the most advanced medical technology available,
— was "recognized" by the World Health Organization,
— had a main campus on the island of Montserrat, British West Indies,
— offered teaching techniques and an instructional approach equivalent to a United States medical school,
— offered clinical training in the United States,
— was part of a larger university, and that graduation from a foreign medical school and passing the required United States medical board examinations entitled the graduates to practice medicine in the United States.
"Summary judgment shall be rendered forthwith if the pleading,depositions, answers to interrogatories, written admissions,affidavits, transcripts of evidence in the pending case, andwritten stipulations of fact * * * show that there is no genuine issue as to any material fact * * *. No evidence or stipulationmay be considered except as stated in this rule." (Emphasis added.)