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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767
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IN THE COMMON PLEAS COURT
FRANKLIN COUNTY, OHIO
HONDROS COLLEGE, INC., CASE NO. 17 CV 009767
Plaintiff, JUDGE CHRIS BROWN
vs.
DAVIS COLLEGE, INC., ET AL.,
Defendants.
COMBINED REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO MODIFY
AND/OR VACATE TEMPORARY RESTRAINING ORDER AND DEFENDANTS’
MOTION TO STAY TEMPORARY RESTRAINING ORDER
Plaintiff, Hondros College, Inc.’s (“Hondros”) Combined Memorandum in Opposition to
Defendants’ Motion to Modify and/or Vacate Temporary Restraining Order and their Motion to
Stay Temporary Restraining Order (“Memorandum in Opposition”) fails to rebut the meritorious
arguments made in Defendants’ Motion to Modify and/or Vacate Temporary Restraining Order
(“Motion to Modify/Vacate”) and in Defendants’ Motion to Stay Temporary Restraining Order
(“Motion to Stay,” and, collectively with the Motion to Modify/Vacate, “Defendants’ Motions”)
Consequently, the Court should grant Defendants’ Motions.
As a threshold matter, Hondros’ Memorandum in Opposition is entirely devoid of
argument in opposition to Defendants’ Motion to Stay, which seeks a stay of the temporary
restraining order entered herein (“TRO”) until after the Court rules on Defendants’ Motion to
Modify/Vacate. Notably, Hondros does not even mention the four-factor test for the entry of
stay orders, much less demonstrate that the relevant factors weigh against the entry of the
requested stay. Thus, Hondros has conceded Defendants’ entitlement to the stay order, and said
order should be entered forthwith.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767
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Additionally, Hondros’ arguments in opposition to Defendants’ Motion to Modify/Vacate
fall flat. As set forth in the Motion to Modify/Vacate, the primary reason that paragraph 2 on
page 2 of the TRO (“Paragraph 2”) should be stricken is that it would operate to disrupt, rather
than preserve, the status quo.
Significantly, Hondros does not dispute that the fundamental requirement for the issuance
of preliminary injunctive relief is the preservation of the status quo pending the court’s
determination of the merits of a dispute. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395,
101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); United States v. Edward Rose & Sons, 384 F.3d
258, 261 (6th Cir.2004), Gobel v. Laing, 12 Ohio App.2d 93, 94, 231 N.E.2d 341, 342 (10th
Dist.1967). Hondros fails to cite any legal authority to the contrary.
Hondros also does not dispute that Paragraph 2 is inconsistent with this Court’s clearly
articulated purpose in entering the TRO was the preservation of the status quo. See Transcript of
TRO Hearing (“Tr.”), p. 20 (‘THE COURT: I think a nominal bond is appropriate in that — right
now we’ re just maintaining the status quo...”).
Remarkably, Hondros does not even dispute that striking Paragraph 2 from the TRO
would disrupt, rather than preserve, the status quo by requiring Defendants to proactively send
Defendant Davis College, Inc.’s (“Davis”) students written notice of the purported existence of a
nonexistent dispute with the Ohio State Board of Career Colleges and Schools (the “Board”)
regarding the appropriate certification for Davis’ real estate pre-licensure courses (the
“Courses”).
Black’s Law Dictionary defines “status quo” as “[t]he situation that currently exists.”
Black's Law Dictionary (10th ed. 2014). It cannot be doubted that sending the written notice
required by Paragraph 2 would disrupt, rather than preserve, “the situation that currently exists.”Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767
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Specifically, the notice required by Paragraph 2 would cause irreparable harm to Defendants’
business reputation and goodwill, inasmuch as it will likely function to directly interfere with
Defendants’ existing business and contractual relationships with its students, who may choose to
un-enroll and/or not further pursue the Courses. As a result, Paragraph 2 is inconsistent with the
fundamental purpose of a temporary restraining order and should be stricken from the TRO.
Since it cannot argue that Paragraph 2 preserves the status quo, Hondros takes a different
tack, claiming that Defendants seek to “conceal” the status quo from Davis’ students. The Court
should reject this argument, which is completely lacking in legal support and is calculated to
distract the Court from the rights of the parties that are actually before it in this litigation.
Paragraph 2 will function to irreparably harm Defendants’ business. However, striking
Paragraph 2 will have no detrimental effect on Hondros’ business. The only persons who could
hypothetically be harmed by striking Paragraph 2 are Davis’ students. The Court should not
permit this hypothetical harm to influence its ruling on Defendants’ Motion to Modify/Vacate for
three reasons.
First, as set forth in Defendants’ Motion to Continue Hearing on Motion for Preliminary
Injunction (“Motion to Continue”), which is hereby incorporated by reference, and as will be
demonstrated at the preliminary injunction hearing in this matter, Defendants have not violated
the law by offering the Courses without Board approval. Under R.C. 3332.06(A)(1), Board
approval is only required of a “Program,” and the Courses do not qualify as a “Program” under
R.C. 3332.01(C) because they are not offered at the “certificate, diploma, or degree level.”
Second, Board approval is not required because the Courses fit within the express exception to
the applicability of Ohio Revised Code Chapter 3332 (and therefore the jurisdiction of the
Board) set forth in R.C. 3332.02(D), which provides as follows: “[t]his chapter does not apply toFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767
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the following categories of courses, schools, or colleges: ***Courses of instruction required by
law to be approved or licensed by a state board or agency other than the state board of career
colleges and schools Here, the Ohio Division of Real Estate is the state board or agency
charged with approving the Courses pursuant to Ohio Revised Code Chapter 4735, such that the
Board has no jurisdiction over the Courses.
Second, as is also set forth in Defendants’ Motion to Continue, Hondros’ request for
injunctive relief against Defendants’ alleged ongoing violation of Ohio law in offering the
Courses without Board approval is likely to be rendered wholly moot following the Board’s
November 15, 2017 meeting, at which the Board is expected to approve the Courses. Although
Hondros disputes this based upon Defendants’ alleged past violations of the law, the fact is that
any past violations can be adequately remedied through money damages, although Defendants
dispute that Hondros is entitled to recover any such damages. In other words, Hondros has an
adequate remedy at law, rendering injunctive relief inappropriate.
Third, Hondros lacks standing to assert the rights of Davis’ students. This is an action for
alleged harm caused to Hondros by Defendants’ alleged false advertising, and, as set forth above,
striking Paragraph 2 will have no detrimental effect on Hondros’ business. Any hypothetical
harm to Davis’ students is not properly before this Court.
For the foregoing reasons, this Court should grant Defendants’ Motion to Modify and/or
Vacate Temporary Restraining Order and Defendants’ Motion to Stay Temporary Restraining
Order.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767
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Respectfully submitted,
/s/ Stephen D. Jones
Stephen D. Jones (0018066)
Jeremy S. Young (0082179)
Roetzel & Andress, LPA
41 South High Street, 21' Floor
Columbus, Ohio 43215
Telephone: 614.463.9770
Facsimile: 614.463.9792
E-mail: sjones@ralaw.com
jyoung@ralaw.com
and
Ronald S. Kopp (0004950)
Roetzel & Andress, LPA
222 South Main Street
Akron, Ohio 44308
Telephone: 330.376.2700
Facsimile: 330.376.4577
E-mail: rkopp@ralaw.com
Attorneys for Defendants, Davis College,
Inc. and The CE Shop, Inc.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767
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PROOF OF SERVICE
A copy of the foregoing was served on November 13, 2017 pursuant to Civ. R. 5(B)(2),
by email to:
Thomas W. Hill
Timothy A. Kelley
Kegler, Brown, Hill & Ritter Co., L.P.A
65 E. State Street, Suite 1800
Columbus, Ohio 43215
dul@keglerbrown.com
Attorneys for Plaintiff Hondros College, Inc., d/b/a
Hondros College of Business
tephen D. Jones
Stephen D. Jones
120153401
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767 OD895 - 019 IN THE COMMON PLEAS COURT FRANKLIN COUNTY, OHIO HONDROS COLLEGE, INC., CASE NO. 17 CV 009767 Plaintiff, JUDGE CHRIS BROWN vs. DAVIS COLLEGE, INC., ET AL., Defendants. COMBINED REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO MODIFY AND/OR VACATE TEMPORARY RESTRAINING ORDER AND DEFENDANTS’ MOTION TO STAY TEMPORARY RESTRAINING ORDER Plaintiff, Hondros College, Inc.’s (“Hondros”) Combined Memorandum in Opposition to Defendants’ Motion to Modify and/or Vacate Temporary Restraining Order and their Motion to Stay Temporary Restraining Order (“Memorandum in Opposition”) fails to rebut the meritorious arguments made in Defendants’ Motion to Modify and/or Vacate Temporary Restraining Order (“Motion to Modify/Vacate”) and in Defendants’ Motion to Stay Temporary Restraining Order (“Motion to Stay,” and, collectively with the Motion to Modify/Vacate, “Defendants’ Motions”) Consequently, the Court should grant Defendants’ Motions. As a threshold matter, Hondros’ Memorandum in Opposition is entirely devoid of argument in opposition to Defendants’ Motion to Stay, which seeks a stay of the temporary restraining order entered herein (“TRO”) until after the Court rules on Defendants’ Motion to Modify/Vacate. Notably, Hondros does not even mention the four-factor test for the entry of stay orders, much less demonstrate that the relevant factors weigh against the entry of the requested stay. Thus, Hondros has conceded Defendants’ entitlement to the stay order, and said order should be entered forthwith.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767 OD895 - 020 Additionally, Hondros’ arguments in opposition to Defendants’ Motion to Modify/Vacate fall flat. As set forth in the Motion to Modify/Vacate, the primary reason that paragraph 2 on page 2 of the TRO (“Paragraph 2”) should be stricken is that it would operate to disrupt, rather than preserve, the status quo. Significantly, Hondros does not dispute that the fundamental requirement for the issuance of preliminary injunctive relief is the preservation of the status quo pending the court’s determination of the merits of a dispute. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir.2004), Gobel v. Laing, 12 Ohio App.2d 93, 94, 231 N.E.2d 341, 342 (10th Dist.1967). Hondros fails to cite any legal authority to the contrary. Hondros also does not dispute that Paragraph 2 is inconsistent with this Court’s clearly articulated purpose in entering the TRO was the preservation of the status quo. See Transcript of TRO Hearing (“Tr.”), p. 20 (‘THE COURT: I think a nominal bond is appropriate in that — right now we’ re just maintaining the status quo...”). Remarkably, Hondros does not even dispute that striking Paragraph 2 from the TRO would disrupt, rather than preserve, the status quo by requiring Defendants to proactively send Defendant Davis College, Inc.’s (“Davis”) students written notice of the purported existence of a nonexistent dispute with the Ohio State Board of Career Colleges and Schools (the “Board”) regarding the appropriate certification for Davis’ real estate pre-licensure courses (the “Courses”). Black’s Law Dictionary defines “status quo” as “[t]he situation that currently exists.” Black's Law Dictionary (10th ed. 2014). It cannot be doubted that sending the written notice required by Paragraph 2 would disrupt, rather than preserve, “the situation that currently exists.”Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767 OD895 - O21 Specifically, the notice required by Paragraph 2 would cause irreparable harm to Defendants’ business reputation and goodwill, inasmuch as it will likely function to directly interfere with Defendants’ existing business and contractual relationships with its students, who may choose to un-enroll and/or not further pursue the Courses. As a result, Paragraph 2 is inconsistent with the fundamental purpose of a temporary restraining order and should be stricken from the TRO. Since it cannot argue that Paragraph 2 preserves the status quo, Hondros takes a different tack, claiming that Defendants seek to “conceal” the status quo from Davis’ students. The Court should reject this argument, which is completely lacking in legal support and is calculated to distract the Court from the rights of the parties that are actually before it in this litigation. Paragraph 2 will function to irreparably harm Defendants’ business. However, striking Paragraph 2 will have no detrimental effect on Hondros’ business. The only persons who could hypothetically be harmed by striking Paragraph 2 are Davis’ students. The Court should not permit this hypothetical harm to influence its ruling on Defendants’ Motion to Modify/Vacate for three reasons. First, as set forth in Defendants’ Motion to Continue Hearing on Motion for Preliminary Injunction (“Motion to Continue”), which is hereby incorporated by reference, and as will be demonstrated at the preliminary injunction hearing in this matter, Defendants have not violated the law by offering the Courses without Board approval. Under R.C. 3332.06(A)(1), Board approval is only required of a “Program,” and the Courses do not qualify as a “Program” under R.C. 3332.01(C) because they are not offered at the “certificate, diploma, or degree level.” Second, Board approval is not required because the Courses fit within the express exception to the applicability of Ohio Revised Code Chapter 3332 (and therefore the jurisdiction of the Board) set forth in R.C. 3332.02(D), which provides as follows: “[t]his chapter does not apply toFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767 OD895 - 022 the following categories of courses, schools, or colleges: ***Courses of instruction required by law to be approved or licensed by a state board or agency other than the state board of career colleges and schools Here, the Ohio Division of Real Estate is the state board or agency charged with approving the Courses pursuant to Ohio Revised Code Chapter 4735, such that the Board has no jurisdiction over the Courses. Second, as is also set forth in Defendants’ Motion to Continue, Hondros’ request for injunctive relief against Defendants’ alleged ongoing violation of Ohio law in offering the Courses without Board approval is likely to be rendered wholly moot following the Board’s November 15, 2017 meeting, at which the Board is expected to approve the Courses. Although Hondros disputes this based upon Defendants’ alleged past violations of the law, the fact is that any past violations can be adequately remedied through money damages, although Defendants dispute that Hondros is entitled to recover any such damages. In other words, Hondros has an adequate remedy at law, rendering injunctive relief inappropriate. Third, Hondros lacks standing to assert the rights of Davis’ students. This is an action for alleged harm caused to Hondros by Defendants’ alleged false advertising, and, as set forth above, striking Paragraph 2 will have no detrimental effect on Hondros’ business. Any hypothetical harm to Davis’ students is not properly before this Court. For the foregoing reasons, this Court should grant Defendants’ Motion to Modify and/or Vacate Temporary Restraining Order and Defendants’ Motion to Stay Temporary Restraining Order.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767 OD895 - 023 Respectfully submitted, /s/ Stephen D. Jones Stephen D. Jones (0018066) Jeremy S. Young (0082179) Roetzel & Andress, LPA 41 South High Street, 21' Floor Columbus, Ohio 43215 Telephone: 614.463.9770 Facsimile: 614.463.9792 E-mail: sjones@ralaw.com jyoung@ralaw.com and Ronald S. Kopp (0004950) Roetzel & Andress, LPA 222 South Main Street Akron, Ohio 44308 Telephone: 330.376.2700 Facsimile: 330.376.4577 E-mail: rkopp@ralaw.com Attorneys for Defendants, Davis College, Inc. and The CE Shop, Inc.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 13 6:35 AM-17CV009767 OD895 - O24 PROOF OF SERVICE A copy of the foregoing was served on November 13, 2017 pursuant to Civ. R. 5(B)(2), by email to: Thomas W. Hill Timothy A. Kelley Kegler, Brown, Hill & Ritter Co., L.P.A 65 E. State Street, Suite 1800 Columbus, Ohio 43215 dul@keglerbrown.com Attorneys for Plaintiff Hondros College, Inc., d/b/a Hondros College of Business tephen D. Jones Stephen D. Jones 120153401