King v. Baylor University ( 2022 )

Case: 21-50352 Document: 00516443696 Page: 1 Date Filed: 08/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 23, 2022
No. 21-50352
Lyle W. Cayce
Clerk
Allison King,
Plaintiff—Appellant,
versus
Baylor University,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CV-504
Before Jones, Higginson, and Duncan, Circuit Judges.
Edith H. Jones, Circuit Judge:
Allison King signed a Financial Responsibility Agreement (“FRA”)
with Baylor University to secure her enrollment for the Spring 2020
semester. The FRA required King to pay Baylor for “educational services,”
and she paid her tuition bill in full. During the second-half of the semester,
Baylor responded to the COVID-19 pandemic by severely limiting
on-campus activities and opportunities while conducting classes remotely. It
did not, however, refund any tuition or fees. King’s refund suit relies on
various doctrines of contract law. We espy a potential ambiguity in the
definition of “educational services” and remand for further consideration of
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No. 21-50352
that issue. Consequently, we AFFIRM IN PART, REVERSE IN
PART, and REMAND for further proceedings consistent with this
decision.
I. BACKGROUND
King followed the same process as all Baylor undergraduates to enroll
for the Spring 2020 semester. First, she “logged on to Baylor’s student
portal, BearWeb . . . , navigated to the Add or Drop Classes page, selected
Spring 2020 as the Term for which [she] wish[ed] to enroll, and either
entered the course numbers to register . . . , or used the class search function
to find desired classes and register.” Baylor listed available undergraduate
classes in a catalog that included the following disclaimers:
It is sometimes necessary or appropriate to change the
programs offered. Baylor University retains the right to
terminate or change any and all aspects of its educational and
other programs at any time without prior notice.
....
The provisions of this catalog do not constitute a contract,
expressed or implied, between Baylor University and any
applicant, student, student’s family, faculty, or staff member.
Baylor University reserves the right to withdraw courses at any
time, or change fees, tuition, rules, calendar, curricula, degree
programs, degree requirements, graduation procedures, and
any other requirement affecting students. Changes will become
effective at the time the proper authorities so determine, and
the changes will apply to both prospective students and those
already enrolled. This catalog is a general information
publication only, and it is not intended to, nor does it contain
all regulations that relate to students.
King attended her classes throughout the entire semester.
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Second, after receiving a bill from Baylor, King had “to either pay all
of the charges on [her] bill or enroll in a payment plan.” Before the Spring
2020 semester commenced, King paid $21,421.00 in tuition, a “General
Student Fee” of $2,261.00, $1,923.14 for meals (including $1,773.14 toward
a meal plan and $150.00 in dining dollars), a “Chapel Fee” of $90.00, and a
“Course Lab Fee” of $50.00. King satisfied her financial obligation.
Third, King had to log onto BearWeb and agree that she was
“attending Baylor University in [Spring 2020]” and that she read,
understood, and agreed to be bound by the FRA during that semester and all
future semesters. Numerous class offerings and two payment options were
available to King, but she had only one “choice” in the end: Affirm her
semester of attendance and consent to the FRA’s terms or face
disenrollment. King executed the FRA on December 20, 2019. The
following portions are most pertinent:
I understand that when I register or enroll in any class at Baylor
University (Baylor) or receive any service from Baylor, I accept
full responsibility to pay all tuition, fees, and other associated
costs assessed as a result of my registration and/or receipt of
services. I further understand and agree that my registration at
Baylor and acceptance of the terms of this Financial
Responsibility Agreement (Agreement) constitutes a
promissory note agreement (i.e., a financial obligation in the
form of an educational loan as defined by the U.S. Bankruptcy
Code at 11 U.S.C. 523(a)(8)) in which Baylor is providing me
educational services, deferring some or all of my payment
obligation for those services, and I promise to pay for all
assessed tuition, fees, and other associated costs by the
scheduled due date as reflected in emails to me; in the invoices,
statements, and schedules within the My Account tab of
Baylor’s electronic billing called the E-Bill System; or in the
following link: www.baylor.edu/sfs/duedates.
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....
This Agreement supersedes all prior understandings,
representations, negotiations, and correspondence between
the student and Baylor, constitutes the entire agreement
between the parties with respect to the matters described, and
shall not be modified or affected by any course of dealing or
course of performance.
The Spring 2020 semester began on January 13th and was scheduled
to conclude on May 11th. “But on March 11, 2020, as a result of the COVID-
19 pandemic, Baylor announced that spring break would be extended one
week, through March 22, 2020, and that beginning on March 23, 2020, all
on-campus classes would be moved online for the next two weeks, through
April 3, 2020.” Then, on March 16th, Baylor notified students that it would
“extend online instruction . . . for the remainder of the Spring 2020
semester.” Baylor further advised students that “dining options on campus
[would] be significantly limited, . . . recreational opportunities [would] be
unavailable, . . . . [and] that all university activities, events, conferences, and
large gatherings would be suspended through the end of the semester.”
“Given the closure of Baylor’s campus,” King alleges that she “lost
approximately half of the Spring 2020 semester’s on-campus classes,
activities, and meals.” Baylor, according to King, could have remedied these
losses by refunding tuition and fees along with meal plans and dining dollars.
With respect to tuition, Baylor decided not to issue any refunds. King,
however, complains that she “paid tuition for an on-campus experience with
in-person instruction and access to on-campus facilities.” King insists that
“Baylor charges significantly less for . . . online programs[,]” and that Baylor
breached an implied contract with her by not refunding the difference
between the amount she paid for in-person educational services and the
amount it would have charged for a half-semester of online instruction.
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To demonstrate the alleged price disparity between in-person and
online classes, King observes that “a student seeking an MBA from Baylor
through the traditional on-campus program would have been charged
approximately . . . .$3,570 per term hour”, while “the same student seeking
the same degree through Baylor’s online [MBA] program would have been
charged just $1,068 per term hour, representing a 70% discount.” She
attributes the premium price for in-person instruction to a variety of
experiences and amenities that are only available to those physically present
on Baylor’s campus.1
King concedes that there was no difference in “quality between the
in-person, on-campus education at Baylor vs. the online-only education from
Baylor.” Instead, she emphasizes “the simple premise that the in-person,
on-campus educational experience commands a higher price than the online-
only educational experience.” In other words, King is upset about the price
she paid for, as opposed to the quality of, Baylor’s online classes.
Baylor also decided not to refund money paid for fees, despite the fact
that the General Student Fee, Course Lab Fee, and Chapel Fee2 “specifically
cover on-campus facilities and activities.” King does not dispute that Baylor
continued to provide many student services online (and that the health center
1
King’s pleading linked to Baylor’s 2019-20 undergraduate tuition and fee
schedule, however, which states flatly that “Baylor charges tuition at a flat rate of $42,842
per academic year (fall and spring) for students taking 12 hours or more per semester.” She
also linked to Baylor’s cost of attendance calculator, which shows that every online
program is limited to graduate-level students. King also linked to another page depicting
only graduate-level online programs.
2
King avers that all Baylor students pay the Chapel Fee for two semesters, while
only “students enrolled in the on-campus program” had to pay the General Student Fee.
The Course Lab Fee appears to be tethered to certain classes, which may include online
classes.
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remained operational), but she faults Baylor for not providing these services
in-person as agreed to and for then refusing to refund the fees.
Baylor did prorate meal plans “by the daily rate associated with the
plan . . .” and gave students a commensurate credit while also rolling any
unused dining dollars forward. And certain dining facilities remained
operational, though King was unable to return to campus. King received
credits for her “meal plan[] and dining dollar payments[,]” but she insists
that Baylor must instead refund those payments because she “lost
approximately half of the Spring 2020 semester’s . . . meals.”
King filed this class action against Baylor in June 2020 on behalf of
herself and “[a]ll students who paid, or other persons who paid on a
student’s behalf, Baylor any of the following costs for the Spring 2020
semester: (a) tuition and/or (b) Fees and/or (c) meal plans . . . .”3 She
asserted a breach of contract claim, alternatively sought unjust enrichment,
and requested refunds of student fees and prorated tuition reimbursement
based on the difference between the fair market value of on-campus
education and the online educational product.
Baylor moved to dismiss, contending that the educational malpractice
doctrine barred King’s claims, and that she otherwise failed to state claims
for breach of contract or unjust enrichment.
The magistrate judge recommended granting Baylor’s motion and
dismissing King’s claims with prejudice.4 The district court adopted the
3
Given that the district court did not certify any class, this court assesses the
allegations and claims only with respect to King.
4
“The educational malpractice doctrine recognizes that professional educators—
not judges—are charged with the responsibility for determining the method of learning that
should be pursued for their students.” Winter v. Am. Inst. Of Med. Scis. & Educ., 242 F.
Supp. 3d 206, 221 n.11 (S.D.N.Y. 2017) (internal quotation marks and citation omitted).
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recommendation over King’s objections. The district court found that the
FRA was a valid, complete, and integrated contract between Baylor and
King; that it did not promise in-person classes or an on-campus educational
experience; and that it exclusively governed the parties’ relationship. King
timely appealed from the adverse judgment.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to provide
“a short and plain statement of [each] claim showing that [she] is entitled to
relief[.]” Rule 12(b)(6) entitles a defendant to seek dismissal if the plaintiff
fails “to state a claim upon which relief can be granted[.]” Read together,
Rule 8 “does not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 US 544, 555, 127 S. Ct. 1955, 1965 (2007)).
To survive a Rule 12(b)(6) motion, the plaintiff’s complaint must
articulate her “grounds for entitlement to relief—including factual
allegations that when assumed to be true ‘raise a right to relief above the
Neither this court nor any Texas court has adopted the doctrine, and the magistrate judge
did not address it. Baylor still invokes the doctrine in its response, and King replies that it
is inapplicable based on Metzner v. Quinnipiac Univ., where the court found that the
promise was not “to provide an effective or adequate education but instead to provide an
in-person education.” 528 F. Supp. 3d 15, 30 (D. Conn. 2021). We decline to address this
doctrine in the first instance.
The parties also dispute whether the Texas Pandemic Liability Protection Act
(“PLPA”) bars King’s claims. But the PLPA did not take effect until two months after the
district court entered its final judgment. At least one court has since found that the PLPA
is not “unconstitutionally retroactive” under the Texas Constitution. Hogan v. Southern
Methodist University, No. 3:20-CV-02899, 2022 WL 954344, *7-10 (N.D. Tex. March 29,
2022). That court did not, however, consider whether it violates the Federal Constitution,
which is what King argues. We decline to render an uninformed interpretation of the PLPA
and leave that for the district court in the first instance.
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speculative level.’” Cuvillier v. Sullivan, 503 F.3d 397, 401 (5th Cir 2007)
(quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). A complaint must
therefore contain “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. A claim is facially
plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (citing Twombly, 550 U.S.
at 556, 127 S. Ct. at 1965-66). Plausibility is “not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).
The reviewing court “must accept all well-pleaded facts as true,
and . . . view them in the light most favorable to the plaintiff.” Walker v
Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (2019) (quoting Campbell v.
Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th. Cir. 1986)). But courts “do
not accept as true conclusory allegations, unwarranted factual inferences, or
legal conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)
(citation omitted). The court “must limit itself to the contents of the
pleadings, including attachments thereto[,]” which in this case include
publicly available information from Baylor’s website. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
III. DISCUSSION
King argues that the district court committed several critical errors.
First, she contends that the FRA is not a valid and enforceable contract.
Second, the district court erred by not considering her extrinsic evidence
because even if the FRA is an enforceable contract, it is not fully integrated.
Third, the court should not have dismissed her implied contract claim based
on Baylor’s promise to provide in-person educational services. Finally, King
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argues that the district court erred by dismissing her unjust enrichment
claim.
The district court erred in certain respects. The FRA is an
enforceable contract, but the district court did not consider whether the
contractual term “educational services” is ambiguous. That a contract is
enforceable does not mean its terms are unambiguous. See Gallagher
Headquarters Ranch Dev., Ltd. v. City of San Antonio, 303 S.W.3d 700, 701-02
(Tex. 2010) (per curiam). Indeed, questions of validity are logically distinct
from questions of interpretation and construction.5 The district court also
failed meaningfully to interpret “educational services” in light of the
circumstances surrounding the FRA’s formation. But it did not err by
dismissing King’s implied contract or unjust enrichment claims. We discuss
each of these issues in turn.
A. The FRA is a valid, enforceable contract under Texas law.
The district court determined that the FRA is a valid, enforceable
contract that “incorporates all of the essential and material terms of King’s
registration for Spring 2020 academic classes[.]” Challenging this
conclusion, she insists that the FRA fails for lack of consideration. King also
disagrees with the conclusion that the FRA describes “the essential terms of
the agreement between [her] and Baylor[.]” And she faults the court for
“selectively” and “inconsistently” incorporating external sources to
elucidate certain essential terms. The FRA is not a fully integrated contract,
5
For example, in the arbitration context, the Texas Supreme Court has explained
that “[w]hether a valid arbitration agreement exists . . . .” and “[w]hether contractual
ambiguity exists . . . .” present two separate legal questions. In re D. Wilson Constr. Co.,
196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding) (citations omitted). And “[a]rbitration
agreements are interpreted under traditional contract principles[]” by Texas courts, so
these same separate inquiries are appropriate even outside of the arbitration context. J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) (collecting cases).
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King asserts, but “a simple promissory note that was part of a larger course
of dealing between the parties[.]”6 Acknowledging the general principle that
“the relationship between a private school and its student has by definition
primarily a contractual basis[,]” King contends that the contract here is
implied rather than express and therefore cannot be limited to the FRA’s
terms alone. Eiland v. Wolf, 764 S.W.2d 827, 838 (Tex. App.—Houston [1st
Dist.] 1989, writ denied) (citation omitted). None of these arguments
successfully rebuts the district court’s conclusion.
i. Adequate consideration
Lack of consideration is a weak reed.7 King contends, for instance,
that the FRA requires her to pay tuition without requiring Baylor to “provide
any services in the first instance.” “[M]utuality is . . . determined when
enforcement is sought, not when the promises are made.” Frequent Flyer
Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 224 (Tex. App.—Fort
Worth 2009, pet. denied) (citations omitted). Further, “[t]he modern
decisional tendency is against lending the aid of courts to defeat contracts on
technical grounds of want of mutuality.” Tex. Gas Util. Co. v. Barrett,
460 S.W.2d 409, 412 (Tex. 1970) (citation omitted). Contracts are therefore
“construed in favor of mutuality[.]” Id. (citation omitted). Moreover,
“[t]he existence of a written contract . . . presumes consideration for its
6
“In Texas, a promissory note is ‘a simple contract governed by the fundamental
rules applicable to contract law.’” Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 588 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (quoting Guthrie v. Nat’l Homes Corp.,
387 S.W.2d 158, 159 (Tex. Civ. App.—Fort Worth 1965), judgment reformed, 394 S.W.2d
494 (Tex. 1965)).
7
King does not raise this argument in her complaint and only did so for the first
time in her response to Baylor’s motion to dismiss. And neither the magistrate judge nor
the district court addressed this argument. We assume arguendo that the issue was raised
and preserved.
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execution[, so] [t]he party alleging lack of consideration has the burden of
proof to rebut the presumption.” Burges v. Mosley, 304 S.W.3d 623, 628
(Tex. App.—Tyler 2010, no pet.) (citation omitted).
King has not rebutted the presumption that the FRA is supported by
adequate consideration. Baylor promised to provide King with “educational
services.” In exchange, King committed “to pay for all assessed tuition, fees,
and other associated costs . . . .” Whatever “educational services” means,
King attended both in-person and online classes and does not “claim that
Baylor failed to fulfil a promise to provide an effective or adequate
education.” She therefore received some benefit after paying tuition and
fees, and Baylor shouldered the obligation of providing services to King while
benefitting from her payment. The FRA was presumptively supported by
adequate consideration, and both its text and the parties’ conduct support
that conclusion. See Tex. Gas Util., 460 S.W.2d at 412 (citation omitted).
ii. Essential terms
The district court determined that “the FRA incorporates [by
reference] the services to be rendered, the duration of such services, and the
price[.]” King disagrees, and she faults the district court for selectively
incorporating sources that, in her view, do not flesh out the requisite terms.
“To be enforceable, a contract must address all of its essential and
material terms with ‘a reasonable degree of certainty and definiteness.’”
Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016) (quoting Pace Corp.
v. Jackson, 284 S.W.2d 340, 345 (Tex. 1955)). Essential terms “are those
that the parties would reasonably regard as vitally important elements of their
bargain, an inquiry that depends primarily on the intent of the parties.”
McCoy v. Alden Indus., Inc., 469 S.W.3d 716, 725 (Tex. App.—Fort Worth
2015, no pet.) (citation omitted). Though essential terms vary from contract
to contract, they generally include “the time of performance, the price to be
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paid, . . . and the service to be rendered.” Port Freeport v. RLB Contr. Inc.,
369 S.W.3d 581, 590 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)
(quoting Kirby Lake Dev. Ltd. v. Clear Lake City Water Auth., 320 S.W.3d
829, 838 (Tex. 2010)).
Essential terms are reasonably certain and definite when they convey
both that the “parties actually intended to be contractually bound[]” and
“provide a basis for determining the existence of a breach and for giving an
appropriate remedy.” Fischer, 479 S.W.3d at 237 (citation omitted); FFSS v.
Playoff Corp. v. Blackwell, 300 S.W.3d 451, 455 (Tex. App.—Fort Worth
2009, pet. denied) (quoting Restatement (Second) of Contracts
§ 33(2) (1981)). “[B]ecause the law disfavors forfeitures, [courts] will find
terms to be sufficiently definite whenever the language is reasonably
susceptible to that interpretation.”8 Fischer, 479 S.W.3d at 239. Indeed,
“Texas courts will not construe a contract to result in a forfeiture unless it
cannot be construed in any other way.” Kirby Lake Dev., 320 S.W.3d at 842
(quoting Reo Indus., Inc. v. Nat. Gas Pipeline Co. of Am., 932 F.2d 447, 454
(5th Cir. 1991)). The presumption against forfeiture is even greater where at
least one party has performed under the contract. Fischer, 479 S.W.3d at 242
(citations omitted).
a. Time of performance
The district court found that the FRA covered King’s education for
the Spring 2020 semester because she selected that semester on BearWeb as
she simultaneously submitted the FRA. But King contends that the FRA
8
It is important to distinguish between contract interpretation and construction.
The former “involves ascertaining the meaning of contractual words while [the latter]
involves deciding their legal effect.” 11 Williston on Contracts § 30.1 (4th ed.
Nov. 2021 update).
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must itself define the time of performance and that it fails to do so.9 This
contention is defeated by her pleadings and Baylor’s exhibits.
“A contract is not ambiguous nor too indefinite to be enforced in
regards to its duration so long as the language used fixes an ascertainable fact
or event by which the term of the duration of the contract can be
determined.” Brittian v. General Tel. Co., 533 S.W.2d 886, 891 (Tex. Civ.
App.—Fort Worth 1976, writ dism’d). To enroll, King visited a BearWeb
page that displayed the entire FRA and required her to check two boxes to
effectuate it. By clicking the first box, King confirmed that she was
“attending Baylor University in Spring 2020[.]” By clicking the second box,
King “agree[d] to be bound by the [FRA] for [that] term and all terms in
which [she] enroll[ed] at Baylor University.” The terms attached to the
boxes appeared on the same page as the FRA. And “a customer on notice of
contract terms available on the internet website is bound by those terms[.]”
One Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 268 (5th Cir.
2011) (citation omitted).10 When King clicked both boxes to effectuate the
FRA, she consented to the attached terms, including limiting her enrollment
9
King maintains that the district court erred by incorporating BearWeb to specify
the duration of the contract. She further contends that if the FRA does incorporate
BearWeb, then it should incorporate the portal’s provisions “about classes being provided
in-person and on-campus (as compared to online).” But incorporation is not relevant at all
with respect to time of performance because those terms were depicted alongside (as
opposed to referenced within) the FRA.
10
Texas courts are in accord when presented with similar circumstances in the
consumer and employment arbitration contexts. See Aerotek, Inc. v. Boyd, 624 S.W.3d 199,
205-09 (Tex. 2021); HomeAdvisor, Inc. v. Waddell, No. 05-19-00669-CV, 2020 WL
2988565, at *5 (Tex. App.—Dallas June 4, 2020, no pet.) (mem. op.); H.E.B. Grocery Co.
L.P. v. Perez, No. 13-18-0063-CV, 2019 WL 3331466, at *2 (Tex. App.—Corpus Christi-
Edinburg July 25, 2019, no pet.) (mem. op.); Hotels.com, L.P. v. Canales, 195 S.W.3d 147,
155-56 (Tex. App.—San Antonio 2006, no pet.).
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to the Spring 2020 semester. The time of performance was included with a
reasonable degree of certainty and definiteness.
b. Price
The district noted that the price, i.e. her tuition and fee obligation,
“was reported in King’s ‘My Account of Baylor’s . . . E-Bill System[.]’”
King argues that the separate bill does not suffice to render the FRA
reasonably certain and definite as to price.
“Under Texas law, a contract may incorporate an unsigned document
by reference ‘provided the document signed by the defendant plainly refers
to another writing.’” Sierra Frac Sand, L.L.C. v. CDE Glob. Ltd., 960 F.3d
200, 203 (5th Cir. 2020) (quoting Owen v. Hendricks, 433 S.W.2d 164, 166
(Tex. 1968)). “No specific words are required to incorporate a document as
long as the signed document plainly refers to another document.” Tex. Dep’t
of Pub. Safety v. Williams, 303 S.W.3d 356, 358 (Tex. App.—El Paso 2009,
no pet.) (citation omitted). But [p]lainly referring to a document requires
more than merely mentioning [it, rather] [t]he language in the signed
document must show the parties intended for the other document to become
part of the agreement.” Bob Montgomery Chevrolet v. Dent Zone, 409 S.W.3d
181, 189 (Tex. App.—Dallas 2013, no pet.) (citations omitted). Moreover,
“reference to a document for a particular purpose incorporates that
document only for the specified purpose.” Id. (citation omitted). “When a
document is incorporated into another by reference, both instruments must
be read and construed together.” In re C & H News Co., 133 S.W.3d 642, 645-
46 (Tex. App.—Corpus Christi-Edinburg 2003, no pet.) (citation omitted).
The FRA plainly refers to, and thereby incorporates, an individualized
invoice that defined the price required of King with a reasonable degree of
certainty and definiteness. King made two promises by assenting to the
FRA’s first paragraph. First, she promised to “pay all assessed tuition, fees,
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and other associated costs . . . .” Second, she promised to pay those amounts
“by the scheduled due date as reflected in emails to [her]; in the invoices,
statements, and schedules within the My Account tab of Baylor’s electronic
billing called the E-Bill System; or in the following link:
www.baylor.edu/sfs/duedates.” King contends that “the FRA incorporates
only the due date information from the three sources it references[.]” In
other words, King maintains that the FRA incorporated the when without
the what. But a due date in isolation is meaningless. What is due must be
apparent before the due date becomes relevant because it is impossible to
satisfy a due date without knowing what is due. Thus, even if the FRA only
incorporates “due date information” from the three referenced sources, that
information logically includes the amount charged for tuition, fees, and other
associated costs.11 If that were not the case, then the date alone would be
meaningless, and this court must resist that result by “striving to give
meaning to every sentence, clause, and word to avoid rendering any portion
inoperative.” Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex.
1998) (citation omitted).12
11
Baylor also explains that “the price each student pays depends on the courses
she chooses, additional services selected, and any outstanding credits or balances. [Thus,
t]he only way the FRA could possibly specify the price to be paid is by referring to
individually calculated figures in other documents.”
12
Even if the FRA did not plainly incorporate the referenced individual invoice,
“the absence of a fixed total price for services does not indicate a failure of the parties to
reach a meeting of the minds….” David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450
(Tex. 2008)(citations omitted). Assuming an otherwise binding agreement existed, courts
will “presume[] that a reasonable price was intended[].” Bendalin v. Delgado, 406 S.W.2d
897, 900 (Tex. 1966). That King later complains about the price she paid does not implicate
the degree of certainty and definiteness of the price term embodied in the FRA.
15
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c. Services rendered
The district court determined that Baylor’s promise to provide
“educational services” was reasonably certain and definite. It further
determined that Baylor provided “educational services” as contemplated by
the FRA even after administering classes virtually. King argues that, on the
contrary, the FRA insufficiently describes the services rendered because it
does not include “the type, format, or subject matter of the ‘educational
services’ to be performed, or anything else that would shed light on what
Baylor was required to provide to [her].” She additionally faults the court
for not “analyz[ing] what the term ‘educational services’ encompasses, or
point[ing] to any definition or explanation of the scope of ‘educational
services’ in either the FRA itself or any other document . . . incorporated by
reference into the FRA.”
For purposes of determining whether the FRA’s validity and
enforceability, there is no doubt that the term “educational services” is
“sufficiently definite to confirm that both parties actually intended to be
contractually bound.” Fischer, 479 S.W.3d at 237 (citation omitted). To be
sure, “educational services” is a broad term in isolation. But the FRA
specifically uses the terms class, classes, future classes, class day, and class
schedule a dozen times, suggesting that classes are the core of “educational
services.” Thus, at a minimum, Baylor bound itself to conduct classes, and
King bound herself to pay for those classes in which she chose to enroll.
Whether “educational services” further includes “benefits and services
above and beyond basic academic instruction” is a question of contract
interpretation, not validity, and the denial of such services may raise a
question of breach.
The parties’ conduct reinforces that they contemplated at least some
educational services with a reasonable degree of certainty and definiteness.
16
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No. 21-50352
See Clear Creek Indep. Sch. Dist. v. Cotton Commer. USA, Inc., 529 S.W.3d
569, 582-85 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); see also
Hous. Cmty. Coll. Sys. v. HV BTW, LP, 589 S.W.3d 204, 213 (Tex. App.—
Houston [14th Dist.] 2019, no pet.); see also Restatement (Second)
of Contracts § 33 cmt. a. King only seeks redress for one-half of the
Spring 2020 semester, suggesting that Baylor performed as the parties agreed
during the other half. And King did not challenge any aspect of Baylor’s
performance until nearly a month after the Spring 2020 semester concluded.
By that time, she had paid Baylor and Baylor had provided a semester’s worth
of classes. King “does not . . . assert that classes should have been taught
differently; nor does [she] claim that Baylor failed to fulfill a promise to
provide an effective or adequate education.” Instead, she contends “that the
in-person, on-campus educational experience commands a higher price than
the online-only educational experience.” Whether Baylor overcharged for
online classes does not, however, affect whether those classes constituted
“educational services.” The FRA therefore defines the services rendered,
and “educational services” in particular, with a reasonable degree of
certainty and definiteness.13
The FRA is a valid contract because it describes the essential terms
with a reasonable degree of certainty and definiteness. King failed to state a
claim for contract invalidity. But the crux of the parties’ dispute remains the
interpretation of “educational services,” to which we now turn.
13
King makes passing reference to the alleged inadequacy of the FRA to describe
her rights and remedies with respect to services rendered. This is a ludicrous ground of
alleged invalidity. The law provides rights and remedies of which she has sought to avail
herself. See Langever v. Miller, 76 S.W. 2d 1025, 1026-27 (Tex. 1934)(collecting cases); Igal
v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 92 (Tex. 2008), superseded by statute on
other grounds, Tex. Lab. Code §§ 61.051(c), 61.052(b-1). And neither the magistrate
judge nor the district court addressed this argument.
17
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B. “Educational Services” may be ambiguous but, even if
unambiguous, the court must interpret it in light of the circumstances
surrounding King’s effectuation of the FRA.
As noted above, contract validity and interpretation inquiries are
logically distinct. See Gallagher Headquarters Ranch Dev., 303 S.W.3d at 701-
02; see also Progressive Cty. Mut. Ins. v. Kelley, 284 S.W.3d 805, 806-08 (Tex.
2009); 1 Arthur L. Corbin on Contracts § 4.1 (2021). Reasonably
certain essential terms comprise a valid foundation while the full extent of
their precise meanings further shapes the contractual edifice; competing
notions of the latter do not necessarily fracture the former. At this point, the
parties’ competing understandings of “educational services” under the FRA
required the court to assess whether the term is ambiguous and, if so, how to
define it. The district court thus erred in holding that the FRA’s merger
clause extinguishes any “implied contract” or “promise” of in-person
instruction. The merger clause is unhelpful in construing the breadth of the
term “educational services.”14
Baylor, for its part, takes the position that educational services “is a
broad term that would include academic classes delivered over an online
medium[]” at its sole discretion because it charges an undifferentiated price
for all undergraduate course instruction. But King asserts that, even if the
FRA is a valid contract, educational services is an ambiguous and incomplete
term. Moreover, “[b]ecause the FRA is manifestly ambiguous,” “the
district court should have considered [her] extrinsic evidence allegations to
fill in the FRA’s gaping holes notwithstanding [its] limited merger clause.”
14
Put simply, “[a] merger clause can be disregarded upon pleading and proof of
ambiguity[.]” ISG State Operations, Inc. v. Nat’l. Heritage Ins. Co., 234 S.W 3d 711, 719-20
Tex. App.—Eastland 2007, pet. denied) (citation omitted).
18
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No. 21-50352
There is a legitimate question, which the district court did not
address, whether “educational services” is ambiguous. Moreover, even if
the term is unambiguous, it ought to be interpreted in light of the context
surrounding King’s entry into the FRA.
i. Latent ambiguity
Whether a contract is ambiguous is a question of law. Sage Street
Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993) (citations
omitted). “A contract is not ambiguous if it can be given a definite or certain
meaning as a matter of law.” Columbia Gas Transmission Corp. v. New Ulm
Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996) (collecting cases). “On the other
hand, if the contract is subject to two or more reasonable interpretations after
applying the pertinent rules of construction, the contract is ambiguous,
which creates a fact issue on the parties’ intent.” Id. (citations omitted).
Unlike construing contracts against forfeiture, the court “need not embrace
strained rules of interpretation which would avoid ambiguity at all costs[.]”
Neece v. A.A.A. Realty Co., 322 S.W.2d 597, 602 (1959); see also 11 Richard
A. Lord, Williston on Contracts § 30.40 (4th ed. 1999)).
Parol evidence is admissible to elucidate latent contractual
ambiguities. Latent ambiguities “arise[] when a contract which is
unambiguous on its face is applied to the subject matter with which it deals
and an ambiguity appears by reason of some collateral matter.” Nat’l Union
Fire Ins. Co. v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex. 1995) (citations
omitted). If, for example, “a contract called for goods to be delivered to ‘the
green house on Pecan Street,’ and there were in fact two green houses on the
19
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No. 21-50352
street, it would be latently ambiguous.”15 Id. at 520 n.4. Under such
circumstances:
extrinsic evidence of the parties’ true intent will then—and
only then—be admissible to settle the matter. But, when the
contextual evidence discloses no ambiguity, extrinsic evidence
that the parties actually intended for the goods to be delivered
to the blue house on Pecan Street would not be admissible to
alter unambiguous contract language requiring delivery to the
green house. Nor would the contract’s meaning be informed
by extrinsic evidence that the parties intended additional
requirements or constraints that were not expressed in the
agreement—such as delivery by 5:00 p.m. or only on Sundays.
....
Thus, extrinsic evidence may be consulted to give meaning to
the phrase the green house on Pecan Street, but cannot be used
to show the parties’ motives or intentions apart from the
language employed in the contract.
URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 765-67 (Tex. 2018) (internal
quotation marks and citations omitted).
The district court failed to consider whether “educational services”
as used in the FRA is latently ambiguous. Baylor contends that “[r]egardless
of whether it is framed as an ‘on-campus product’ or an ‘online product,’ a
course of instruction is an ‘educational service,’ and nothing in the [FRA]
supports [King’s] allegation that Baylor was contractually obligated to
15
The Texas Supreme Court has also found that “[w]here . . . [a] lease contain[ed]
a description of the demised premises that [was] so general that it seemingly describe[d]
more than one location, [it] contain[ed] a latent ambiguity.” Fort Worth Neuropsychiatric
Hosp., Inc. v. Bee Jay Corp., 600 S.W.2d 763, 766 (Tex. 1980). The parties’ intent as to the
number of insurance policies was also latently ambiguous where an insurer listed four
vehicles on one document and a fifth on a separate document with a different policy
number. Progressive Cty. Mut. Ins., 284 S.W.3d at 805-06, 808.
20
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provide in-person instruction during the COVID-19 pandemic.” King offers
a conflicting understanding of educational services by alleging that she “paid
for one product—an in-person, on-campus educational experience—and yet
received another[]” that commands a lower price. King further alleges that
she paid fees “for access to various on-campus services and facilities[]” that
Baylor prevented her from enjoying. Thus, King contends, “[t]o the extent
[the FRA is] a contract, Baylor breached that contract when it failed to
provide the educational services that it represented it would provide and then
failed to provide refunds for the educational services it failed to provide.”
The district court did not consider whether King’s capacious interpretation
of “educational services” is reasonable and, if so, whether the term is latently
ambiguous. Indeed, the fact that Baylor’s understanding of “educational
services” is reasonable does not render King’s interpretation automatically
unreasonable and eliminate any ambiguity. If both understandings are
reasonable, then “educational services” may be ambiguous. See RSUI
Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015) (citations
omitted). By the same token, the mere fact that the parties disagree on the
interpretation does not render the term ambiguous. Columbia Gas,
940 SW.2d at 589 (Tex. 1996) (citations omitted).
On remand, the district court must consider whether Baylor’s or
King’s interpretation of “educational services” prevails. If the term is
latently ambiguous, then further proceedings may be necessary to explore its
meaning.
ii. Circumstances surrounding the FRA’s formation
Also on remand, the court must examine the surrounding
circumstances pertinent to the making of the FRA. “In the same way that
dictionary definitions, other statutes, and court decisions may inform the
common, ordinary meaning of a statute’s unambiguous
21
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No. 21-50352
language, . . . circumstances surrounding the formation of a contract may
inform the meaning of a contract’s unambiguous language[.]” First Bank v.
Brumitt, 519 S.W.3d 95, 110 (Tex. 2017) (citation omitted). Surrounding
circumstances include “the commercial or other setting in which the
contract was negotiated and other objectively determinable factors that give
a context to the transaction between the parties.” Hous. Expl. Co. v.
Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011)
(quoting 11 Williston on Contracts § 32.7 (4th ed. 1999)). Phrased
differently, “evidence of surrounding circumstances may ‘aid the
understanding of an unambiguous contract’s language,’ ‘inform the
meaning’ of the language actually used, and ‘provide context that elucidates
the meaning of the words employed.’” Piranha Partners v. Neuhoff,
596 S.W.3d 740, 749 (Tex. 2020) (quoting URI, 543 S.W.3d at 757-59). But,
irrespective of whether they actually illuminate meaning, the court must
examine all parts of the contract and the surrounding circumstances to
ascertain the parties’ intention in making the writing.”16 See Columbia Gas,
940 S.W.2d at 591 (citations omitted).
The parol evidence rule, even when bolstered by a merger clause, does
not prohibit consideration of “surrounding facts and circumstances that
inform the contract text and render it capable of only one meaning.” Americo
16
For example, in Americo Life, Inc. v. Myer, the parties’ arbitration agreement
required arbitrators to be “independent” and incorporated rules that were later amended
to require both independence and impartiality. 440 S.W.3d 18, 20-21 (Tex. 2014). One
party argued that the arbitrator needed to have been independent, while the other insisted
that the arbitrator must have been both independent and impartial. Id. at 22. The Texas
Supreme Court “disagree[d] that ‘independent’ [could have been] read interchangeably
with ‘impartial[,]’” reasoning that “[v]arious dictionary definitions might support some
overlap between the two words, but when applied in the arbitration context, they carry
distinct meanings.” Id. And it ultimately “conclude[d] [that] the parties did not intend to
require impartiality of party-appointed arbitrators.” Id. at 24.
22
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Life, 440 S.W.3d at 22 (citations omitted). King emphasizes a litany of
Baylor’s representations. For example:
o “The Baylor college experience is special. We cultivate a
rich campus life that will help you grow intellectually,
spiritually and emotionally. Whether you’re enjoying
Diadeloso (our campus-wide “Day of the Bear”
celebration), taking some time to reflect in chapel or just
hanging out over coffee, you'll feel like a part of the Baylor
family from the moment you set foot on Fountain Mall[;]”
o “Explore the picturesque Baylor Campus and learn more
about our state-of-the-art facilities that blend historic
beauty with innovative function[;]”
o “Baylor is a charter member of the powerful Big 12
Conference, which means students enjoy the excitement of
Division I athletics and receive free tickets to all sporting
events! Not quite at that level of play yourself? No worries.
Baylor also offers competitive and recreational sports for all
students through club and intramural groups[;]”
o The McLane Student Life Center is “a 156,000 sq. ft.
multi-recreational facility that boasts the tallest free-
standing climbing structure in Texas, an aquatics center, 3-
tiered fitness facility, and four courts equipped to support
basketball or volleyball[;]”
o Baylor touts “over 330 student organizations, including
academic and professional clubs, traditional Greek
sororities and fraternities, honor societies, musical groups,
and religious and service organizations[;]”
o “Baylor University provides undergraduate students with a
truly transformational education—one in which students
develop their leadership potential, explore their faith and
beliefs, increase their desire for wisdom, and prepare for
service in a diverse and interconnected global society[;]”
23
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o “At Baylor, learning is more than just what happens in the
classroom. Our students’ educational experiences connect
their academic and creative strengths to the surrounding
world, providing experiential learning opportunities in the
local community and beyond that help prepare them to
become leaders who can resolve challenging problems in
our state, nation, and world[;]”
o “See what it’s like to sit in a classroom and learn from
Baylor’s world-class faculty[;]”
o “At Baylor, students are challenged to think beyond the
classroom by actively participating in domestic and global
research, engaging in study abroad opportunities, and
utilizing the resources of the university to lay the
groundwork for a successful future[;]” and
o “With an average class size of just 26 students and a 13:1
student to-faculty ratio, it’s easy to develop a strong
working relationship with each of your instructors.”
The Baylor course catalog’s disclaimers and course modification statements,
identified previously, are also pertinent among the representations and
circumstances surrounding King’s agreement to the FRA.17
On remand, the district court must interpret “educational services”
in light of the circumstances surrounding the contract. The circumstances
17
In Dean v. Chamberlain University, LLC, the Sixth Circuit encountered an
“Enrollment Agreement” in which the university “reserve[d] the right to revise, add, or
delete courses, alter the total number of class hours, suspend, cancel, or postpone a class
for reasons including natural occurrences or other circumstances.” No. 21-3821, 2022 WL
2168812, at *2 (6th Cir. June 16, 2022) (unpublished). That agreement, according to the
court, was a fully integrated contract that “did not promise that [the university] would
provide in-person education and clinical experience only–regardless of unforeseen
circumstances.” Id. Here, Baylor sought to retain “the right to terminate or change any
and all aspects of its educational and other programs at any time without prior notice[]” in
its course catalog. That catalog, unlike the agreement in Dean, disclaimed any pretense of
being a contract; yet, its provisions may still be relevant when interpreting the FRA.
24
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are, however, useful only to the extent they elucidate, rather than contradict
or supplement, the unambiguous term.18 Finally, evidence outside the
contract cannot be used to manufacture an ambiguity. Instone Travel Tech
Marine & Offshore v. Int’l. Shipping Partners, Inc., 334 F.3d 423, 432-33 (5th
Cir. 2003) (citations omitted).
C. No implied contract.
The district court determined that “[t]he FRA contains a merger
clause that extinguishes any implied contracts separate from the FRA,
including any promise of in-person instruction.” King argues that the merger
clause “does not even claim to extinguish all implied agreements between
Baylor and Plaintiff on subjects beyond the scope of the FRA.” Further, she
asserts, the limited scope of “matters” described in the FRA does not extend
to explaining what “educational services” Baylor was obliged to provide.
Baylor and King cannot have a valid implied contract for the
“educational services” explicitly covered by the FRA. “If a valid express
contract covering the subject matter exists there can be no recovery upon a
contract implied by law.” Black Lake Pipe Line Co. v. Union Constr. Co.,
538 S.W.2d 80, 86 (Tex. 1976), overruled on other grounds by Sterner v.
18
We disagree with the concurring opinion’s repeated focus on the absence of a
force majeure clause in the FRA. Using the concurrence’s phrase, that dog doesn’t bark if
it wasn’t around. The absence of such a clause cannot supplant or detract from interpreting
what the parties actually agreed on. The concurrence essentially opines on a contract the
parties did not confect. Additionally, the concurring opinion cites no Texas case in support
of the conclusion that a contract may lack limits unless it contains a force majeure clause.
Second, the point of our remand to further construe “educational services” is that the term
may be limited to the strict provision of knowledge or may encompass the entire “Baylor
experience.” And in this connection, the FRA’s multiple references to “classes” must
include the course catalog in toto, both in its description of classes, its references to
Baylor’s ability to alter them, and equally, its disclaimer of containing a contractual
promise. This majority opinion, in sum, refuses to opine based on a clause that was not in
the parties’ contract.
25
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Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) (citation omitted). As noted
above, “educational services” at a minimum include classes because the
FRA uses variations referencing classes twelve times. To the extent that
properly admitted evidence indicates “educational services” include more
than classes, those services may also be covered by the FRA.
Prior case law suggests that King may have implied contracts with
Baylor regarding a number of subjects aside from those expressly covered by
the FRA. See, e.g., Pacheco v. St. Mary’s Univ., No. 15-cv-1131 (RCL),
2017 WL 2670758, at *9 (W.D. Tex. June 20, 2017) (citation omitted)
(determining that “the university guidelines—and the Code of Conduct—
likely exists as part of a contract between [the plaintiff] and [the
university].”); see also Law v. William Marsh Rice Univ., 123 S.W.3d 786, 793
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“the crux of
[plaintiffs’] breach of contract claim [was] that [the university] breached its
contractual duty by failing to provide them a fair process in its disciplinary
proceedings[.]”); Doe v. William Marsh Rice Univ., No. 20-cv-2985, 2021
WL 4215501, at *13 (S.D. Tex. Sept. 16, 2021) (same). But because the FRA
is a valid express contract for the provision of “educational services,” King
cannot assert a claim for an implied contract covering that same subject
matter.
King’s reliance on other decisions finding implied contracts between
students and universities under Texas law is misplaced. Texas courts hold
that “where a private college or university impliedly agrees to provide
educational opportunity and confer the appropriate degree in consideration
for a student’s agreement to successfully complete degree requirements,
abide by university guidelines, and pay tuition, a contract exists.” Southwell
v. Univ. of Incarnate Word, 974 S.W.2d 351, 356 (Tex. App.—San Antonio
1998, pet. denied) (citation omitted); see also Villarreal v. Art Inst. of Hous.,
26
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Inc., 20 S.W.3d 792, 797 (Tex. App.—Corpus Christi-Edinburg 2000, no
pet.). These decisions did not, however, construe express contracts
resembling the FRA and are therefore inapposite.
King’s reliance on decisions from other jurisdictions finding implied
contracts is similarly mistaken. She cites dozens of cases involving students
seeking tuition refunds from universities in the wake of COVID-19
shutdowns. Of these many cases, three are most representative: Fiore v.
Univ. of Tampa, 568 F. Supp. 3d. 350 (S.D.N.Y. 2021), Ninivaggi v. Univ. of
Del., 555 F. Supp. 3d. 44 (D. Del. 2021), and Shaffer v. George Washington
Univ., 27 F.4th 754 (D.C. Cir. Mar. 08, 2022). But each is also
distinguishable. In Fiore v. Univ. of Tampa, the court applied Florida law and
determined that an agreement similar to the FRA was “missing essential
terms including the nature of the educational services [that the university
was] to provide and the amount of tuition and fees owed.” 568 F. Supp. 3d.
at 371 (citations omitted). The FRA, in contrast, contains all essential terms
under Texas law, and King has not identified any university catalogs,
handbooks, or policies and procedures that the court could consider as part
of an implied contract.19 With respect to Ninivaggi v. Univ. of Del., the
university there never argued that a valid, express contract governed the
parties’ relationship. See 555 F. Supp. 3d. at 47. And in Shaffer v. George
Washington Univ., the court “easily” dismissed the plaintiffs’ breach of
19
King twice cites the course catalog. But it disclaims any pretense of being part of
any contract and is therefore of no avail. See Eiland, 764 S.W.2d at 838 (“A basic requisite
of a contract is an intent to be bound, and the catalog’s express language negates, as a matter
of law, an inference of such intent on the part of the university.”); see also Tobias v. Univ.
of Tex. at Arlington, 824 S.W.2d 201, 211 (Tex. App.—Fort Worth 1991), cert. denied,
506 U.S. 1049, 113 S. Ct. 966 (1993) (citations omitted). The catalog may be instructive
when interpreting the FRA and resolving any ambiguities or ascertaining surrounding
circumstances, but it cannot alone form the basis of an implied contract.
27
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express contract claims while allowing their breach of implied contract claims
to proceed. 27 F.4th at 762-67. Here, however, the FRA, not an implied
contract, governs King’s and Baylor’s relationship with respect to
educational services.20
D. No grounds for unjust enrichment.
King pleaded “unjust enrichment” as an alternative basis for relief in
equity and seeks “disgorgement and restitution in an amount to be proven at
trial[]” as remedies. The district court determined that “unjust enrichment
is not an independent cause of action[,]” and that even if King sought relief
pursuant to another equitable theory like quantum meruit, she could not
recover in equity when a valid contract governs the services at issue. The
district court erred in its initial statement of Texas law, but not in its rejection
of unjust enrichment where the parties’ contract governs the services at
issue.
The district court erred by implying that unjust enrichment is a
facially invalid theory. Its availability in this circumstance is narrow, but the
claim exists. “Unjust enrichment occurs when a person has wrongfully
20
The Seventh Circuit’s decision in Gociman v. Loyola Univ. of Chicago is similary
of limited utility. No. 21-1304, --- F.4th ----, 2022 WL 2913751 (7th Cir. July 25, 2022).
There, the majority held that students stated “a claim for breach of an implied contract
under Illinois law, and [that they were] entitled leave to amend to save their alternative
claim for unjust enrichment[.]” Id. at *1. In reaching that conclusion, the majority
determined that the students had no express contract with the university and instead
reasoned that the university’s course catalog, registration portal, pre-pandemic practice,
and variable tuition rates (based on the method of instruction) constituted an implied
promise to provide in-person classes to those who paid the in-person rates. Id. at *6-7. The
dissent, however, concluded that “[n]one of the written materials the students cite[d]
contain[ed] a specific guarantee of in-person education or amenity access sufficient to
maintain an implied contract under Illinois law.” Id. at *10-12. We need not take sides
because King has an express contract with Baylor under Texas law, and any parol evidence
is only relevant to construe its meaning rather than to add terms.
28
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secured a benefit or has passively received one which it would be
unconscionable to retain.” Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 111
(Tex. App.—Houston [1st Dist.] 2013, no pet.) (citation omitted). It
essentially “characterizes the result or failure to make restitution of benefits
received under such circumstances as to give rise to an implied or quasi-
contract to repay.” Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor
Concepts, Inc., 300 S.W.3d 348, 367 (Tex. App.—Dallas 2009, pet. denied)
(op. on reh’g) (citation omitted). But “unjust enrichment does not operate
to rescue a party from the consequences of a bad bargain, and the enrichment
of one party at the expense of the other is not unjust where it is permissible
under the terms of an express contract.” First Union Nat’l Bank v. Richmont
Cap. Partners I, L.P., 168 S.W.3d 917, 931 (Tex. App.—Dallas 2005, no pet.)
(citation omitted).
King asserted unjust enrichment as “Count II” in her amended
complaint, and many Texas courts have recognized it as a valid alternative
basis for equitable relief when pled in that manner.21 “A party to a contract
may . . . seek alternative relief under both contract and quasi-contract
theories[]” like unjust enrichment. In re Kellogg Brown & Root Inc.,
166 S.W.3d 732, 740 (Tex.2005). But, “[g]enerally speaking, when a valid,
21
“Although several Texas courts of appeals hold that there is no such cause of
action, the Texas Supreme Court has suggested otherwise.” Michol O’Connor,
O’Connor’s Texas Causes of Action, Ch. 5-C § 7 (2022) (comparing Elledge v.
Friberg-Cooper Water Sup., 240 S.W.3d 869, 870 (Tex. 2007) (reaffirming two-year
limitations period for unjust enrichment claims), Wagner & Brown, Ltd. v. Horwood,
58 S.W.3d 732, 737 (Tex. 2001) (discussing limitations period for unjust enrichment
claims), Fortune Prod. v. Conoco, Inc., 52 S.W.3d 671, 685 (Tex. 2000) (referring to unjust
enrichment cause of action), and HECI Expl. Co. v. Neel, 982 S.W.2d 881, 885, 891 (Tex.
1998) (referring to unjust enrichment cause of action and two-year limitations period), with
Spellmann v. Love, 534 S.W.3d 685, 693 (Tex. App.—Corpus Christi-Edinburg 2017, pet.
denied) (unjust enrichment is not independent cause of action), R.M. Dudley Constr. Co. v.
Dawson, 258 S.W.3d 694, 703 (Tex. App.—Waco 2008, pet. denied) (same)).
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express contract covers the subject matter of the parties’ dispute, there can
be no recovery under [such] a quasi-contract theory[.]” Fortune Prod Co. v.
Conoco, Inc.., 52 S.W.3d 671, 684 (Tex. 2000) (citation omitted).
Texas courts have repeatedly expressed this limit. Once a court
determines that a “valid contract prescribes particular remedies or imposes
particular obligations, equity generally must yield unless the contract violates
positive law or offends public policy.” Fortis Benefits v. Cantu, 234 S.W.3d
642, 648-49 (Tex. 2007). In other words, when “the contract addresses the
matter at issue, [the party invoking equity] is limited to the contract rather
than equity when determining liability.”22 Gotham Ins. Co. v. Warren E &
P, Inc., 455 S.W.3d 558, 563 (citing Fortis Benefits, 234 S.W.3d at 648-
49). That is why the Texas Supreme Court pithily paraphrased its
decision in Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000),
as “holding unjust enrichment inapplicable when parties have an express
contract covering the subject matter of the parties’ dispute[.]” BMG Direct
Mktg., Inc. v. Peake, 178 S.W.3d 763, 770 (Tex. 2005).
Texas intermediate appellate court decisions’ reflect this limit as
well. For example, in ConocoPhillips Co. v. Koopmann, “the trial court
correctly dismissed the [non-participating royalty interest holders’] unjust
22
In Gotham, the Texas Supreme Court declined to condone dismissal of the
plaintiff’s equity claims at summary judgment because the plaintiff “that [a defendant’s]
misrepresentations concerning its working interest could, among other remedies, operate
to render the policy void.” 455 S.W.3d at 563 n.11. If the misrepresentation theory
prevailed and the plaintiff elected to void the policy, only then could it possibly recover in
equity. Id. That possibility was therefore predicated on the absence of a valid contract.
King, by contrast, has raised no misrepresentation theory or any other theory that
would permit her to void her contractual relationship with Baylor. The possibility that she
may not recover under the contract is not akin to her potentially voiding it. That distinction
is critical.
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enrichment claim against [the mineral lessee’s parent company] as a matter
of law because a valid lease cover[ed] the subject matter of th[at] dispute.”
542 S.W.3d 643, 666-67 (Tex. App.—Corpus Christi-Edinburg 2016), aff’d
on other grounds, 547 S.W.3d 858 (Tex. 2018). Similarly, in Double Diamond,
Inc. v. Hilco Elec. Co-op., Inc., “[t]he dispute between [the parties was] one
concerning failure to pay under a contract, the terms of which [were] in
dispute.” 127 S.W.3d 260, 268 (Tex. App.—Waco 2003, no pet.). And the
court held that “summary judgment on the basis of quantum meruit would
be improper[]” because “[t]f the delivery of services and materials, and
payment for them, are governed by a valid contract, the action sounds in
contract, not quantum meruit.” Id. (collecting cases). Yet another Texas
intermediate appellate court acknowledged that it was “unable to locate any
case in which an unjust enrichment remedy was allowed when the contested
issue was governed by a valid contract.” Burlington N. R.R. Co. v. Sw. Elec.
Power Co., 925 S.W.2d 92, 98 (Tex. App.—Texarkana 1996), aff’d sub nom.
Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467 (Tex. 1998)
(emphasis added).
The only conclusion that can be drawn from these authorities is that
although King could plead unjust enrichment as an alternative basis of
recovery, the terms of the FRA form the basis for the issues she raises. The
FRA is a valid express contract that covered Baylor’s provision of
“educational services” during the Spring 2020 semester, which is what this
entire dispute is about. And the ultimate interpretation of “educational
services” will not affect the FRA’s validity.23 King’s appeal to equity is
23
Some disputes involve both legal claims and equitable theories proceeding to trial
because the defendant did not seek to dispose of those claims. For example, in Houston
Med. Testing Serv., Inc. v. Mintzer, “[t]he trial court’s charge asked the jury to determine
[the defendant’s] personal liability for both breach of contract and quantum meruit.”
417 S.W.3d 691, 694 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (Busby, J.). There
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barred by her pursuit of available legal remedies under the FRA.24 See
Gotham, 455 S.W.3d 558, 563 (citing Fortis Benefits, 234 S.W.3d at 648-49);
see also BMG, 178 S.W.3d at 770 (citing Fortune, 52 S.W.3d at 684).
IV. CONCLUSION
For the reasons stated above, we AFFIRM IN PART, REVERSE
IN PART, and REMAND for further proceedings consistent with this
opinion.
is no mention of any motions to dismiss or for summary judgment. “The jury found in
Question 1 that the parties had an agreement with regard to the . . . services [at issue.]” Id.
at 696. “Because a contract covered the services at issue, the [appellate court held that the
plaintiff] [could] not recover in quantum meruit. Instead, the contract define[d] the
[plaintiff’s] s rights. Id. Again, the dual theories of recovery apparently only reached the
jury due to inaction, not by judicial sanction. Baylor, unlike defendants in other cases,
contests the dual theories of recovery, and the court must respond accordingly.
24
“[O]verpayments under a valid contract may give rise to a claim for restitution
or unjust enrichment.” Cypress Med. Ctr. Operating Co., Ltd. v. Cigna Healthcare, 781 F.3d
182, 204 (5th Cir. 2015) (quoting Sw. Elec. Power, 966 S.W.2d at 469-470). But most cases
involving overpayments under valid contracts feature parties asserting equitable claims
instead of breach of contract claims. See, e.g., Sw. Elec. Power, 966 S.W.2d at 469-470; Gulf
Oil Corp. v. Lone Star Producing Co., 322 F.2d 28, 29-33 (5th Cir. 1963); Natural Gas Pipeline
Co. v. Harrington, 246 F.2d 915, 916-19, 921 (5th Cir. 1957); Staats v. Miller, 243 S.W.2d
686, 687-88 (Tex. 1951). King’s pursuit of both legal and equitable relief renders these
cases inapt. See BMG, 178 S.W.3d at 770 (collecting cases).
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Stuart Kyle Duncan, Circuit Judge, concurring:
Baylor responded to covid-19 by turning itself into an online
university. Maybe that decision was wise. Maybe it was unavoidable.
Regardless, it has provoked the legal question in this case: did Baylor breach
its contracts with students by going online? The plaintiff, Allison King,
claims Baylor unilaterally changed her bargain with the school. She paid for
classes on a physical campus in real classrooms before flesh-and-blood
teachers. She wouldn’t have paid as much for zoom classes in the cloud.
Maybe Baylor has ironclad defenses to these claims, but we aren’t there yet.
We’re only at the motion to dismiss phase where King’s allegations are taken
as true. And she alleges a straightforward breach-of-contract claim: I paid for
something, you changed the deal to give me something worth less, and I want
some money back. Many courts around the country, faced with similar
allegations, have refused to dismiss them.1
Yet the district court threw King’s claims out. Why? It thought Baylor
never agreed to provide “in-person instruction” and “expressly” reserved
an absolute right to alter class offerings in response to catastrophes like a
pandemic. Nonsense. Baylor could have written contracts with those escape
hatches, but it didn’t. No contract Baylor points to says anything of the sort.
So, the majority correctly reverses and remands.
1
See, e.g., Gociman v. Loyola Univ. of Chicago, --- F.4th ----, No. 21-1304, 2022 WL
2913751 (7th Cir. July 25, 2022); Shaffer v. George Washington Univ., 27 F.4th 754, 765
(D.C. Cir. 2022); Ninivaggi v. Univ. of Delaware, 555 F. Supp. 3d 44, 52 (D. Del. 2021);
Fiore v. Univ. of Tampa, 568 F. Supp. 3d 350, 369 (S.D.N.Y. 2021); Patel v. Univ. of Vermont
& State Agric. Coll., 526 F. Supp. 3d 3, 20 (D. Vt. 2021); In re Univ. of Miami COVID-19
Tuition & Fee Refund Litig., 524 F. Supp. 3d 1346, 1353 (S.D. Fla. 2021); Student A v. Liberty
Univ., Inc., --- F.Supp.3d ----, No. 6:20-CV-00023, 2022 WL 1423617, at *5 (W.D. Va. May
5, 2022); Miranda v. Xavier Univ., --- F.Supp.3d ----, No. 1:20-CV-539, 2022 WL 899668,
at *6 (S.D. Ohio Mar. 28, 2022).
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I agree with that result. I write separately to explain why the district
court erred and to lay out what contract principles, in my view, should govern
the proceedings on remand.
I.
First, the district court’s rationale for dismissing King’s claim was
mistaken. It is worth explaining why so that such errors do not infect the
proceedings going forward.
According to the district court,2 the FRA’s merger clause
“extinguishes” any implied promise of “in-person instruction,” and
“expressly contemplates that any number of Jumanjian3 phenomena may
require Baylor to alter its anticipated methods in order to continue providing
‘educational services.’” So, that clause “expressly” secures Baylor’s right
to unilaterally respond to “catastrophic ex[i]gencies,” like a “flood,”
“tornado,” or the “Spanish influenza.” This is “clear and unambiguous,”
we are told, and “absent language regarding the mode of instruction in the
express terms of the instrument, King’s objection to remote instruction
merely reflects a preference that does not give rise to a claim.”
That is all wrong. The merger clause doesn’t breathe a word giving
Baylor carte blanche to change how it offers courses. It says nothing about
floods, tornadoes, diseases, or other catastrophes. It doesn’t contain force
majeure or “act of God” language.4 So, it’s not true that “the merger clause
2
The court adopted the magistrate judge’s report and recommendation.
3
As my children could tell you, “Jumanjian” refers to movie adaptations of a board
game (the first starring Robin Williams, the second starring Jack Black) in which zany and
unexpected things happen to pedestrian characters transported into a video game.
4
See, e.g., El Paso Marketing, L.P. v. Wolf Hollow I, L.P., 383 S.W.3d 138, 140 n.6
(Tex. 2012) (discussing force majeure clause); Guillory Farms, Inc. v. Amigos Canning Co.,
Inc., 966 S.W.2d 830, 837 (Tex. App.—Beaumont 1998, rev. denied) (“A typical force
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expressly contemplates” Baylor’s absolute right to alter course delivery in an
emergency. The clause thus provides no basis for dismissing as a matter of
law King’s claim that Baylor breached its contract by going online.
The majority agrees the district court misread the merger clause, ante
at 19, and adds that “[t]he merger clause is unhelpful in construing the
breadth of the term ‘educational services.’” Ibid. If the majority means the
clause does not define “educational services,” I agree. I would add, though,
that what is missing from the clause may well be relevant to assessing Baylor’s
obligations under the FRA on remand. As I’ve explained, the merger clause
says nothing suggesting Baylor can unilaterally go online in the event of a
pandemic or other emergency. The FRA has no force majeure clause and
courts can’t blue-pencil one in. Courts in similar cases have relied on the
absence of such reservation language in denying motions to dismiss.5 Nothing
bars King from pressing that argument on remand. See infra.6
majeure clause speaks of acts of God or unforeseeable powerful forces causing prevention
of performance of the contract.”).
5
See Shaffer, 27 F.4th at 765 (“But the reservation language does not specifically
address emergencies or other force majeure events. In particular, it says nothing about
allocating the financial risk of those events to the students, as the Universities contend.”);
Ninivaggi, 555 F. Supp. 3d at 52 (“No provision expressly reserves the school’s right to go
online or expressly limits students’ remedies. Nor is there any force majeure clause.”); and
cf. Lindner v. Occidental Coll., 2020 WL 7350212, at *8 (C.D. Cal. Dec. 11, 2020) (contract
claim failed in part due to express reservation of school’s right to make changes required
by “economic conditions or national emergency”); Dean v. Chamberlain Univ., LLC, No.
21-3821, 2022 WL 2168812, at *2 (6th Cir. June 16, 2022) (unpublished) (affirming
dismissal where enrollment agreement reserved to university the right to “revise, add, or
delete courses . . . for reasons” including “natural occurrences or other circumstances”).
6
Baylor makes two arguments that it reserved the right to alter its delivery method
of “educational services,” but both fail. The first is that if King may rely on extrinsic
evidence such as the course catalog, then Baylor may rely on the catalog’s general
reservation. But, as the majority recognizes, the course catalog provisions explicitly “do
not constitute a contract, expressed or implied.” Ante at 2. Second, Baylor argues that
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II.
The majority reverses and remands because the district court failed to
consider whether the FRA’s term “educational services” is ambiguous. Ante
at 1–2, 21. Fair enough: King’s back-up argument was that the FRA was
“incomplete and ambiguous,” specifically the scope of “educational
services.” Blue Br. at 22, 24.7 The majority also instructs the district court to
construe that term “in light of the circumstances surrounding King’s
effectuation of the FRA,” even if the term is unambiguous. Ante at 18, 22–
25. I agree the case should be remanded on both grounds. In my view, the
following principles should govern the analysis on remand.
A.
“absent an express promise not to modify its course offerings, a university is free to change
its ‘policies and requirements.’” Red Br. at 37–38 (citing Southwell v. Univ. of Incarnate
Word, 974 S.W.2d 351, 356 (Tex. App.—San Antonio 1998, pet. denied)). Baylor cites no
authority supporting that argument. Southwell doesn’t come close. Baylor overreads
Southwell’s modest statement of academic freedom, which had to do with academic
standards, not wholesale alterations from in-person to online instruction.
7
King spends most of her briefing contending the FRA isn’t a contract at all
because it lacks essential terms. The majority correctly rejects those arguments. Ante at 10–
18. Given its conclusion that the FRA is a valid contract for “educational services,” the
majority also correctly dismisses King’s argument that she had an “implied contract” with
Baylor for “in-person classes.” Id. at 25–26. As the majority points out, “[i]f a valid express
contract covering the subject matter exists there can be no recovery upon a contract implied
by law.” Ibid. (quoting Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80, 86
(Tex. 1976), overruled on other grounds by Sterner v. Marathon Oil. Co., 767 S.W.2d 686 (Tex.
1989) (citation omitted)); see also, e.g., Woodard v. Sw. States, Inc., 384 S.W.2d 674, 675
(Tex. 1964); Houston Med. Testing Servs. v. Mintzer, 417 S.W.3d 691, 695 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). I also agree with the majority’s holding that King’s
unjust enrichment claim, while a facially valid theory, is nonetheless foreclosed because the
FRA covers the matter at issue. Ante at 29–33.
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First, in assessing whether “educational services” is ambiguous, the
key question is whether that “contract language is susceptible to more than
one reasonable interpretation.” URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 765
(Tex. 2018) (citing Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd.,
940 S.W.2d 587, 589 (Tex. 1996)). Parties often disagree about what a
contract’s terms mean, but that doesn’t make the contract ambiguous. As the
majority points out, a contract is ambiguous only if both parties offer a
“reasonable” understanding of disputed language, such that a court may
consider extrinsic evidence to determine the parties’ intent. Ante at 22 (citing
RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015)); see also
URI, 543 S.W.3d at 764–65. On the other hand, “[i]f only one party’s
construction is reasonable, the [contract] is unambiguous and we will adopt
that party’s construction.” RSUI, 466 S.W.3d at 118 (citing Grain Dealers
Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 459 (Tex. 1997)).
Without deciding the issue, the majority suggests both parties may
have reasonable-but-conflicting views of what “educational services” covers.
Ante at 21–22. Baylor, the majority states, sees it as a “broad term” that
embraces “online” and “on-campus” classes, with the upshot being that
Baylor could honor the FRA by delivering either kind of instruction “at its
sole discretion.” Ante at 19, 21. King, by contrast, reads the term to mean the
specific “in-person” and “on-campus” classes and services she agreed to
pay for. Ante at 21. When Baylor shifted online, it “failed to provide the
educational services that it represented it would provide” and then failed to
reimburse her for the services she did not receive. Ibid.As I read its opinion, the majority does not decide whether the parties’
conflicting interpretations are both reasonable. That is as it should be. The
threshold question of ambiguity falls to the district court on remand.
Importantly, in doing so the court should “consider[] extrinsic evidence of
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the facts and circumstances surrounding the contract’s execution as ‘an aid
in the construction of the contract’s language.’” URI, 543 S.W.3d at 765
(quoting Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731 (Tex. 1981)).
This means that the question is not (as Baylor argues) whether the term
“educational services” embraces both on-campus and online instruction in
the abstract. The inquiry is more concrete. See ibid. (ambiguity asks whether
terms “can be given a definite or certain legal meaning . . . as applied to the
matter in dispute”) (emphasis added). Properly stated, the question is
whether, given the circumstances of this contract, Baylor’s agreement to
provide “educational services” allowed it to shift from on-campus to online
instruction “at its sole discretion” in the event of an emergency. Ante at 19.
One final point. In my view, the surrounding circumstances include
the fact that the FRA contains no force majeure clause or similar reservation.
See Shaffer v. George Washington Univ., 27 F.4th 754, 765 (D.C. Cir. 2022);
Ninivaggi v. Univ. of Delaware, 555 F. Supp. 3d 44, 52 (D. Del. 2021)
(discussing lack of force majeure clauses). As noted, Baylor could have written
such a clause into its contracts but did not. That raises a daunting question
for Baylor on remand. How it is “reasonable” to interpret the FRA as giving
by implication what an excluded force majeure clause would have expressly
given—i.e., a unilateral right to shift courses and activities online? Without a
convincing answer, the contract could not be considered ambiguous and
King’s interpretation of the FRA should prevail. RSUI, 466 S.W.3d at 118.
B.
Second, the majority instructs the district court to interpret the term
“educational services”—even if unambiguous—in light of the
“circumstances surrounding the formation of [the] contract.” Ante at 22
(quoting First Bank v. Brumitt, 519 S.W.3d 95, 110 (Tex. 2017)). I agree. Even
if the court were to decide that “educational services” unambiguously
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includes online courses and activities, King could still prevail by showing
that, under the particular circumstances, she plausibly contracted with
Baylor for on-campus services only.
“[E]vidence of surrounding circumstances may aid the understanding
of an unambiguous contract’s language, inform the meaning of the language
actually used, and provide context that elucidates the meaning of the words
employed.” Piranha Partners v. Neuhoff, 596 S.W.3d 740, 749 (Tex. 2020)
((quoting URI, 543 S.W.3d at 757–59 (and collecting authorities)).8
Illuminating circumstances include “the commercial or other setting in
which the contract was negotiated,” “trade custom,” “trade usage,” as well
as “[f]acts attending the execution” of the contract.” See URI, 543 S.W.3d
at 767–68. On remand, the district court should consider whether King has
plausibly alleged that these kinds of circumstances show she contracted with
Baylor for on-campus classes and activities.
For example, King’s operative complaint relies on “the
circumstances surrounding [the contract’s] formation, including the parties’
communications, conduct, and course of dealing,” to allege that her bargain
with Baylor encompassed “an entirely on-campus experience,” including
“face-to-face academic instruction.” Specifically, she points to Baylor’s
“website and recruitment brochures,” which distinguish on-campus from
online programs and price them differently. She also points to the registration
process, which “specifically emphasizes the distinction between [Baylor’s]
in-person and online class offerings,” the “BearWeb portal . . . [which]
8
See also, e.g., URI, 543 S.W.3d at 767 (evidence of “circumstances surrounding
the formation of a contract may inform the meaning of a contract’s unambiguous
language”); Brumitt, 519 S.W.3d at 110 (“If a court concludes that the parties’ contract is
unambiguous, it may still consider the surrounding facts and circumstances, but simply as
an aid in the construction of the contract’s language.”) (cleaned up).
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filter[s] between online only and all classes,” and the “registration portal,”
which differentiates “in-person classes . . . by meeting time and physical
classroom location.”9 And she alleges that, “when registering for classes,
students are specifically advised and aware of the instructional medium of the
classes for which they are registering,” including whether classes are “in-
person” and offered in a “physical classroom.”10
Furthermore, King alleges that she agreed to pay for the designated
in-person classes and activities “when [she] paid the monies due and owing
for the Spring 2020 semester.” Baylor didn’t keep its end of the bargain,
though: “Baylor failed to provide the agreed-upon on-campus classes and
services for which the tuition, Fees, and meal plan payments were paid for
the entire Spring 2020 semester.” Finally, King also alleges that no
contractual term allows Baylor to alter the bargain because of covid-19: “the
relevant contracts provide no such terms excusing performance given
nationwide pandemics.”
King’s principal theory, of course, is that the FRA is not a valid
contract at all—a theory the majority correctly rejects. But in the alternative
(“to the extent the [FRA] could be interpreted as a contract”), King pleads
that Baylor breached the FRA “when it failed to provide the educational
9
Her allegations also encompass the parties’ course of dealing. For instance, she
discusses “the parties’ prior course of conduct,” in which “students attended physical
classrooms to receive in-person instruction” and “most students were provided with
syllabi and other documents that referenced class meeting schedules, locations, and
physical attendance requirements.”
10
She makes similar allegations with respect to fees and meal plans. For instance,
she alleges that “Baylor does not charge the ‘general student fee’ to its students enrolled
in the online program,” that “Baylor refused to refund the pro-rated portion of the general
student fee,” and that she is “entitled to refund[]” of the “meal plan and dining dollar
payments.”
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services that it represented it would provide and then failed to provide
refunds for the educational services it failed to provide.” On remand, the
district court should consider whether, in light of the circumstances
surrounding the contract’s formation, King’s alternative theory validly states
a breach of contract claim based on the FRA and Baylor’s promise to provide
“educational services” in exchange for King’s payment of tuition and fees.
One last thing. The district court suggested that the FRA’s
incorporation of extra-contractual sources to flesh out “educational
services” weighs against King’s claim. I disagree. The court referenced
“three sources”—(1) email correspondence, (2) My Account invoices,
statements, and schedules, and (3) Baylor’s online payment schedule. But
none of those sources suggests “educational services” is so open-ended that
Baylor may go online without breaching the FRA. To the contrary, those
sources show the “educational services” bargained for in the FRA may well
be in-person classes and activities on Baylor’s physical campus. Baylor’s own
evidence supports that conclusion. The affidavit attached to Baylor’s motion
to dismiss shows that a student may register for specific classes which are
then listed on a “schedule” that specifies physical locations (“Old Main
274,” “Morrison Hall 110,” “Brooks College CHAPEL”) all on the “Main
Campus.” Such “details about the course’s campus location” support “a
reasonable inference of in-person instruction.” Gociman, 2022 WL 2913751,
at *6. So, to the extent these sources can elucidate the meaning of the FRA,
they may show the parties plausibly bargained for “educational services”
that are on-campus. By contrast, the district court pointed to no incorporated
source suggesting the parties left it up to Baylor’s discretion whether to
provide the paid-for services in-person or online.
***
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In sum, I respectfully concur in the majority’s decision that the
district court erred by dismissing King’s breach-of-contract claim. On
remand, King should have the opportunity to explain why, consistent with
settled Texas law, she has plausibly alleged that Baylor breached its contract
with her by converting to online instruction. Baylor, of course, can raise any
valid affirmative defenses at the appropriate time.
42