The opinion
[Cite as Olentangy Preparatory Academy v. Howland Twp. Local School Dist., 2024-Ohio-783.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
OLENTANGY PREPARATORY CASE NO. 2023-T-0075
ACADEMY,
Plaintiff-Appellant, Civil Appeal from the
Court of Common Pleas
- vs -
HOWLAND TWP LOCAL Trial Court No. 2022 CV 01180
SCHOOL DISTRICT, et al.,
Defendants-Appellees.
OPINION
Decided: March 4, 2024
Judgment: Affirmed
Matthew W. Onest, Krugliak, Wilkins, Griffiths & Dougherty Co., LPA, 6715 Tippecanoe
Road, 2C, Canfield, OH 44406; and Kyle W. Rea, Krugliak, Wilkins, Griffiths & Dougherty
Co., LPA, 4775 Munson Street, N.W., P.O. Box 36963, Canton, OH 44735 (For Plaintiff-
Appellant).
Christian M. Williams and Brian J. DeSantis, Pepple & Waggoner, Ltd., Crown Centre
Building, 5005 Rockside Road, Suite 260, Independence, OH 44131 (For Defendants-
Appellees).
MARY JANE TRAPP, J.
{¶1} Plaintiff-appellant, Olentangy Preparatory Academy (“OPA”), appeals from
the judgment of the Trumbull County Court of Common Pleas granting summary judgment
to defendants-appellees, Howland Twp Local School District and Howland Local School
District Board of Education (collectively, “Howland”), on OPA’s claims for declaratory
judgment and injunctive relief.
{¶2} The case involves whether Howland was required to offer to sell an unused
school facility to OPA pursuant to R.C. 3313.411(B)(1), which requires a board of
education to offer to lease or sell any unused school facilities to the governing boards of
community schools that are located within the territory of the school district. The trial
court determined OPA is not a community school established under R.C. Chapter 3314
and is not located within the Howland Local School District.
{¶3} OPA raises a single assignment of error, contending the trial court erred by
granting summary judgment to Howland.
{¶4} After a careful review of the record and pertinent law, we find the trial court
properly granted summary judgment to Howland. Even assuming OPA is a community
school established under R.C. Chapter 3314, the record on summary judgment indicates
it is not located within the territory of the Howland Local School District. Thus, OPA’s sole
assignment of error is without merit, and we affirm the judgment of the Trumbull County
Court of Common Pleas.
Substantive and Procedural History
{¶5} On March 9, 2022, OPA incorporated as an Ohio nonprofit corporation with
its principal office located in Columbus, Franklin County, Ohio. On March 14, 2022,
OPA’s governing authority adopted a resolution authorizing OPA to negotiate and enter
into a charter contract with St. Aloysius to establish a community school.
{¶6} On May 7, 2022, OPA and St. Aloysius entered into the charter contract.
The contract lists OPA’s “corporate principal place of business” as “1550 Old Henderson
Rd. Suite W110, Columbus, OH 43220,” and states, “the School is located in the
Columbus City School District (school district).” (Emphasis sic.) Section 5.1, entitled
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“Location of Facility,” states, “The facility to be used for the School will be maintained at
_________________________.” (Emphasis and highlighting sic.) Section 11.17,
entitled “Changes or Modifications,” provides, “This Charter constitutes the entire
agreement among the parties and any changes or modifications of this Charter shall be
made and agreed to in writing, authorized and executed by both parties.”
{¶7} In a letter dated May 26, 2022, St. Aloysius stated that it approved OPA’s
“application” to change its location to the Howland Local School District. On June 22,
2022, OPA’s governing board adopted a resolution ratifying the charter contract without
amendments.
{¶8} On the same date, OPA’s governing board adopted a resolution requesting
that St. Aloysius suspend the school’s operations for up to one academic year because it
had been unable to find a suitable facility within the Howland Local School District.
Thereafter, St. Aloysius issued a notice of suspension pursuant to R.C. 3314.072.
{¶9} On August 15, 2022, OPA leased 1,200 square feet of office space at 8098
East Market Street, #3, Warren, Ohio 44483.
{¶10} On August 24, 2022, OPA filed a complaint for declaratory and injunctive
relief against appellee Howland Twp Local School District. On the same date, OPA filed
an amended complaint against both appellees. OPA alleged it is an Ohio community
school established under R.C. Chapter 3314; it is located at 8098 East Market Street,
Warren, Ohio 44483, which is within the territory of the Howland Local School District;
Howland owns an “unused school facility” located at 863 North Road, SE, Warren, Ohio
44484; Howland is required to offer to sell the facility to OPA pursuant to R.C.
3313.411(B)(1); and Howland refused to do so despite repeated requests. OPA sought
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a declaratory judgment that Howland is required to offer to sell the facility to it pursuant
to R.C. 3313.411 and an injunction prohibiting Howland from selling the facility without
complying with the statute.
{¶11} Howland filed an answer denying OPA’s allegations. Following discovery,
Howland filed a motion for summary judgment. OPA filed a brief in opposition, and
Howland filed a reply brief. On August 24, 2023, the trial court filed a judgment granting
summary judgment to Howland. It found that OPA failed to comply with the statutory
requirements in R.C. Chapter 3314 to establish itself as a community school, and that
even if it had, it is not located within the territory of the Howland Local School District.
{¶12} OPA appealed and raises the following assignment of error:
{¶13} “The trial court erred in granting summary judgment to the Appellees, the
Howland Twp. Local School Dist. and the Howland Local School Dist. Bd. of Educ., on
Appellant, Olentangy Preparatory Academy’s claims for declaratory judgment and
injunctive relief.”
Standard of Review
{¶14} We review summary judgment de novo, i.e., independently and without
deference to the trial court’s findings. Smathers v. Glass, 172 Ohio St.3d 84, 2022-Ohio-
4595, 222 N.E.3d 554, ¶ 30. Summary judgment is appropriate only when (1) there is no
genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of
law; and (3) it appears from the evidence that reasonable minds can come to but one
conclusion when viewing the evidence in favor of the nonmoving party, and that
conclusion is adverse to the nonmoving party. Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996); Civ.R. 56(C).
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{¶15} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d
264 (1996). “[I]f the moving party has satisfied its initial burden, the nonmoving party
then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing
that there is a genuine issue for trial * * *.” Id. at 293. “[I]f the nonmovant does not so
respond, summary judgment, if appropriate, shall be entered against the nonmoving
party.” Id.
Legal Requirements
{¶16} This case involves the application of R.C. 3313.411(B)(1), which provides:
{¶17} “Except as provided in section 3313.412 of the Revised Code, on and after
June 30, 2011, any school district board of education shall offer any unused school
facilities it owns in its corporate capacity for lease or sale to the governing authorities of
community schools, the boards of trustees of any college-preparatory boarding schools,
and the governing bodies of any STEM schools, that are located within the territory of
the district. Not later than sixty days after the district board makes the offer, interested
governing authorities, boards of trustees, and governing bodies shall notify the district
treasurer in writing of the intention to lease or purchase the property.
{¶18} “The district board shall give priority to the governing authorities of high-
performing community schools that are located within the territory of the district.”
(Emphasis added.)
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{¶19} “‘Community school’ means a community school established under Chapter
3314. of the Revised Code.” R.C. 3313.411(A)(2).
{¶20} Ohio adopted charter-school legislation when the Ohio General Assembly
enacted R.C. Chapter 3314 in 1997. State ex rel. Ohio Congress of Parents & Teachers
v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 5. As
legislatively created, community schools are independently governed public schools that
are funded from state revenues. Id. Once created, a community school may sue and be
sued, acquire facilities, contract for services, and enter into contracts with its sponsor
under R.C. Chapter 3314. R.C. 3314.01(B).
{¶21} Each community school is governed by a contract between the governing
authority of the school and its sponsor. Ohio Congress at ¶ 9; see R.C. 3314.03.
Sponsors are responsible for monitoring their performance and compliance with
applicable standards and requirements. Ohio Congress at ¶ 7. In turn, sponsors are
monitored and overseen by the Ohio Department of Education and Workforce. Id. “A
copy of every contract entered into under [R.C. 3314.03] shall be filed with the director of
education and workforce,1 who shall make available on its web site a copy of every
approved, executed contract * * *.” R.C. 3314.03; see also Ohio Adm.Code 3301-102-
05(B) (“A sponsor shall submit a copy of each * * * executed community school contract,
and any amendments thereto, * * * within ten business days of execution.”)2
{¶22} “Each contract entered into between a sponsor and the governing authority
of a community school shall specify” 33 particular items. R.C. 3314.03(A); see R.C.
1. Prior to October 3, 2023, the “superintendent of public instruction.”
2. Such documents are currently available at https://education.ohio.gov/Topics/Community-
Schools/Community-Schools-Documents (accessed February 21, 2024).
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3314.03(A)(1)-(33). R.C. 3314.03(A)(9) provides that the contract shall contain “[a]n
addendum * * * outlining the facilities to be used,” including “[a] detailed description of
each facility used for instructional purposes”; “[t]he annual costs associated with leasing
each facility that are paid by or on behalf of the school”; “[t]he annual mortgage principal
and interest payments that are paid by the school”; and “[t]he name of the lender or
landlord, identified as such, and the lender’s or landlord’s relationship to the operator, if
any.” Similarly, R.C. 3314.05(A) provides that “[t]he contract between the community
school and the sponsor shall specify the facilities to be used for the community school
and the method of acquisition.” Absent specific exceptions, “no community school shall
be established in more than one school district under the same contract.” Id.
Analysis
{¶23} As stated, the trial court determined OPA is not a community school
established under R.C. Chapter 3314, and even if it were, it is not located within the
territory of the Howland Local School District.
{¶24} OPA contends that the trial court incorrectly assumed that its charter
contract must strictly comply with R.C. 3314.03(A). According to OPA, substantial
compliance is sufficient. OPA makes this argument for the first time on appeal. Where a
party asserts an argument for the first time on appeal, it is waived. State ex rel. Masiella
v. Brimfield Twp. Bd. of Trustees, 2017-Ohio-2934, 91 N.E.3d 1, ¶ 43 (11th Dist.).
{¶25} In any event, we find the trial court’s second determination to be dispositive
of this appeal. Even assuming OPA is a community school established under R.C.
Chapter 3314, the record on summary judgment indicates it is not located within the
territory of the Howland Local School District.
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{¶26} OPA concedes it has not opened a school at any location, much less in the
Howland Local School District. In addition, OPA’s charter contract expressly states that
“the School is located in the Columbus City School District (school district).” (Emphasis
sic.) Section 5.1, entitled “Location of Facility,” states, “The facility to be used for the
School will be maintained at _________________________.” (Emphasis and
highlighting sic.). The contract also lists OPA’s “corporate principal place of business” as
“1550 Old Henderson Rd., Suite W110, Columbus, OH 43220.” Likewise, OPA’s articles
of incorporation list its principal office location as Columbus, Franklin County, Ohio.
{¶27} OPA contends that St. Aloysius’ May 26, 2022, letter constitutes a valid
modification to the contract that changes its location from Columbus to Howland.
However, section 11.17 of the contract, entitled “Changes or Modifications,” provides,
“This Charter constitutes the entire agreement among the parties and any changes or
modifications of this Charter shall be made and agreed to in writing, authorized and
executed by both parties.” OPA provided no evidence that its governing authority
authorized and executed a writing that modified the contract. In fact, on June 22, 2022,
i.e., nearly a month after St. Aloysius’ letter, OPA’s governing authority approved the
charter contract, including the provisions quoted above, without any amendments.
{¶28} OPA counters that it and St. Aloysius waived the contract’s formalities for
modifications and that Howland lacks standing to challenge the modification’s validity.
Once again, OPA raises these arguments for the first time on appeal.
{¶29} Even if we reviewed them, however, they would lack merit.
{¶30} “Ohio boards of education are creations of statute, and their authority is
derived from and strictly limited to powers that are expressly granted by statute or clearly
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implied therefrom.” Cincinnati City School Dist. Bd. of Edn. v. Conners, 132 Ohio St.3d
468, 2012-Ohio-2447, 974 N.E.2d 78, ¶ 9. To comply with its statutory obligations under
R.C. 3313.411(B)(1), a school board must necessarily identify all community schools
located within the territory of the district. To do so, a school board must be permitted to
rely on the documents posted on the Department of Education and Workforce’s website.
See R.C. 3314.03; Ohio Adm.Code 3301-102-05(B).
{¶31} In sum, Howland met its burden on summary judgment to establish that
OPA is not located within the territory of the Howland Local School District. OPA did not
meet its reciprocal burden to demonstrate a genuine issue of material fact. Consequently,
the trial court properly granted summary judgment to Howland.
{¶32} OPA’s sole assignment of error is without merit.
{¶33} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is affirmed.
EUGENE A. LUCCI, P.J.,
ROBERT J. PATTON, J.,
concur.
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