Vazquez v. Cleveland Chiropratic College, Inc. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,788
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JOSE H. VASQUEZ,
Appellant,
v.
CLEVELAND CHIROPRACTIC COLLEGE, INC.,
and
CLEVELAND UNIVERSITY, KANSAS CITY,
Appellees.
MEMORANDUM OPINION
Appeal from Johnson District Court; DAVID W. HAUBER, judge. Opinion filed November 4,
2022. Affirmed.
Andrew B. Protzman, of Leawood, for appellant.
Julie Parisi, of Seigfreid Bingham, P.C., of Kansas City, Missouri, for appellee.
Before BRUNS, P.J., ATCHESON and ISHERWOOD, JJ.
PER CURIAM: Jose H. Vasquez appeals the district court's dismissal of his lawsuit
against Cleveland Chiropractic College (Cleveland) for breach of contract. Vasquez
enrolled in a dual degree program at Cleveland in August 2009 because the graduation
requirements for his selected programs did not include passage of the board examination
offered by the National Board of Chiropractic Examiners (NBCE). But that policy
changed one month later, and students were now required to pass the first portion of the
NBCE exam in order to graduate. Roughly ten years later, Vasquez filed a lawsuit against
Cleveland alleging the new graduation requirement breached the contract he entered into
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with the college at the time of his enrollment. The district court granted Cleveland's
motion to dismiss finding that the 2008-09 school Catalog did not constitute a contract
and to the extent that it did, Vasquez filed his claim well out of time.
We find the district court's dismissal of the lawsuit was appropriate. Vasquez
failed to identify a precise contractual term that Cleveland allegedly breached in adopting
the graduation requirement. Moreover, the statute of limitations time clock began to run
in 2009 with the implementation of the complained of change, placing Vasquez' 2021
filing well outside the five-year statute of limitations. Finally, we reject Vasquez'
contention that the district court impermissibly considered factual matters outside the
record when analyzing the motion to dismiss. The decision of the district court is
affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Jose H. Vasquez selected the dual Bachelor of Science and Doctor of Chiropractic
medicine program at Cleveland because admissions representatives communicated that
graduation from those programs did not require him to take the NBCE exam. According
to Vasquez, their verbal guarantee was reaffirmed by the school's 2008-09 Catalog. The
opportunity to graduate with those degrees free of the requirement for that added exam
aligned well with Vasquez' goal of practicing chiropractic medicine in the Philippines,
because that country does not require passage of the NBCE to practice as a chiropractor.
A month after he enrolled, Cleveland released its 2009-10 Catalog which advised
that students must now successfully complete the first portion of the four-part NBCE
exam prior to enrolling in Clinic Internship II, a course required for graduation. Vasquez
allegedly remained oblivious of this change for the next seven years but after learning of
its existence, he submitted a request to be grandfathered-in or otherwise excused from the
new requirement. Cleveland denied his request.
2
Vasquez initially filed suit against Cleveland in July 2020 but voluntarily
dismissed it five months later following a motion to dismiss. Roughly one year later
Vasquez filed a new petition against Cleveland which it again promptly moved to
dismiss. Vasquez in turn submitted an amended petition in June 2021 which presented a
breach of contract claim.
Vasquez alleged that he entered into an express contract with Cleveland at the
time of his enrollment, the terms of which were set forth in the 2008-09 Catalog. That is,
he agreed to pay the costs and fees associated with tuition in exchange for Cleveland
providing curriculum and credits toward his selected degrees. To satisfy his end of the
bargain, Vasquez accumulated $356,856.75 in student loans, used $13,648 in Pell Grant
funds, completed 273.5 credit hours toward the Doctor of Chiropractic degree, and 155
credit hours toward the Bachelor of Science degree. But when Cleveland denied his
request for exemption from the NBCE exam requirement, it breached its obligation to
him, resulting in monetary damage, as well as emotional distress, embarrassment,
humiliation, damage to his reputation, and actual out-of-pocket expenses.
Cleveland moved to dismiss Vasquez' petition alleging that it failed to state a
claim. In support of its request, it asserted that (1) Vasquez failed to allege Cleveland
breached a specific term or provision of the purported contract; and (2) that Vasquez'
claim was barred by the five-year statute of limitations controlling claims for breach of a
written contract. As to its first contention, Cleveland explained that while Vasquez
alleged that an express contract existed between the two parties based on the language of
the 2008-09 Catalog, he never identified which particular term of that alleged contract
was breached by Cleveland's denial of his request for exemption from the NBCE exam.
Cleveland further asserted that it was clear from the 2008-09 Catalog that it retained the
latitude to change its curriculum at any time without notice and it was Vasquez'
responsibility to stay abreast of any curriculum changes. Cleveland specifically
highlighted the following language from the 2008-09 Catalog:
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"All statements in this Catalog are applicable September 2008 through August 2009 and
are provided for the information of the public. This Catalog applies to all students.
"All statements including those related to calendar, curriculum, fees, rules and
regulations are true and correct as of the date of this publication and are subject to change
without prior notice. It is the responsibility of students of Cleveland Chiropractic College
to be well acquainted with the rules, regulations, requirements and responsibilities
provided in this publication, as well as various updates posted throughout the year by the
College. Verbal communication that may have an impact on students, faculty, or staff will
be verified in writing."
Cleveland pointed out that the spirit of that language carried through to the 2009-
10 Catalog—Cleveland retained the right to implement curriculum changes without
notice, while the students continued to bear the responsibility of ensuring they were
aware of their respective educational requirements and obligations. Thus, according to
Cleveland, Vasquez' claim that it had an obligation to notify him of the policy change and
a duty to grant him an exemption from the NBCE requirement failed as a matter of law.
Cleveland fleshed out its second assertion, that Vasquez' claim was time barred, by
pointing out that the alleged breach Vasquez complained of actually occurred in
September 2009 when the graduation requirement was implemented. Therefore, the five-
year statute of limitations expired in 2014, placing Vasquez' 2021 petition seven years
out of time.
Not long after, Vasquez filed a motion opposing Cleveland's request for dismissal.
He first clarified his contention that he entered into an express contract with the college at
the time of enrollment. Next, he explained that he did not view the catalog as an
embodiment of the terms of the contract. Rather, it was simply evidence of the contract's
existence.
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Turning to Cleveland's arguments specifically, Vasquez argued that its request
contained contradictory assertions in that it suggested the catalog was not a contract, yet
then also argued the terms of the catalog imposed a contractual duty upon Vasquez to
stay apprised of any curriculum changes. He also highlighted language from his amended
petition to reiterate that Cleveland breached the contract by rejecting his request to be
excused from the NBCE requirement. Thus, according to Vasquez, he satisfied his
burden to plead a breach and identify the terms breached.
As for the statute of limitations, Vasquez asserted that the true trigger point was
Cleveland's 2017 denial of his request to continue toward graduation without the NBCE
examination because that was when Cleveland refused to perform their end of the
bargain. Vasquez offered the added point that his only obligation at the current stage of
the case was to properly plead that a breach occurred. So, when it occurred was irrelevant
to the inquiry. Cleveland responded and repeated that it was clear from the 2008-09 and
2009-10 Catalogs that Vasquez bore the responsibility to be aware of any curriculum
changes. Thus, it was under no obligation to personally inform him of the new NBCE
requirement. It also restated its position that any breach of contract action accrued when
the new policy was implemented in 2009 and Vasquez' characterization of the accrual
date as 2017 was simply an attempt to circumvent the five-year statute of limitations.
The district court held a hearing on the matter and, after hearing arguments from
both parties, granted Cleveland's motion to dismiss. In support of its decision the court
explained that, per the language of the catalogs, it was Vasquez' responsibility to be
aware of any curriculum changes. Additionally, in discussing how a reasonable person
would think under the circumstances, the court remarked that it failed to understand how
any student who was "remotely plugged in to his college" would be unaware of the policy
change as it most assuredly would have "spread like wildfire" throughout the chiropractic
class. Ultimately, the court concluded that (1) the catalog was not a contract, and (2) even
if it were, the statute of limitations expired because the breach occurred in 2009. Vasquez
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timely appealed and brings the matter before us to analyze whether the district court erred
in dismissing his suit against Cleveland.
ANALYSIS
The District Court Properly Granted Cleveland's Motion to Dismiss
Vasquez contends that he properly alleged a breach of contract claim and therefore
the district court erred by granting Cleveland's motion to dismiss. Cleveland counters that
the decision of the district court should be upheld because Vasquez' petition failed to
allege the existence of a contract.
Standard of Review
This court exercises unlimited review over a district court's decision to grant a
motion to dismiss. Lozano v. Alvarez, 306 Kan. 421, 423, 394 P.3d 862 (2017). "[T]he
question before this court is whether [Vasquez'] petition met the requirements of K.S.A.
2020 Supp. 60-208(a)—a short and plain statement of the claim showing that [he]was
entitled to relief and a demand for the relief sought." Kucharski-Berger v. Hill's Pet
Nutrition, 60 Kan. App. 2d 510, 515, 494 P.3d 283 (2021). When doing so, an appellate
court must accept the facts alleged by the plaintiff as true, along with any inferences that
can reasonably be drawn therefrom. Cohen v. Battaglia, 296 Kan. 542, 546, 293 P.3d 752(2013). If the facts and inferences state a claim based on plaintiff's theory or any other
possible theory, then the dismissal by the district court should be reversed. 296 Kan. at
546.
"A copy of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes." K.S.A. 2021 Supp. 60-210(c). Therefore, a contract attached
to a pleading may be considered by this court when analyzing the district court's motion
6
to dismiss. Limerick v. Barrett, 3 Kan. App. 573, 43 P. 853 (1896); see also Crosby v.
ESIS Insurance, No. 121,626, 2020 WL 6372266, at *2 (Kan. App. 2020) (unpublished
opinion) ("Kansas courts have long recognized that a written contract attached to a
pleading, whether it be a petition or answer, may be considered when determining
whether to dismiss a claim for breach of contract."). If there is a conflict between the
pleading and the written instrument, then the written instrument controls. Fleming v.
Campbell, 146 Kan. 294, Syl. ¶ 2, 69 P.2d 718 (1937).
A party asserting a breach of contract claim has the burden to establish the
existence of five components: (1) a contract between the parties; (2) sufficient
consideration to support the contract; (3) the plaintiff's performance or willingness to
perform in compliance with the contract; (4) the defendant's breach of the contract; and
(5) damages to the plaintiff caused by the breach. Stechschulte v. Jennings, 297 Kan. 2,
23, 298 P.3d 1083 (2013).
Whether a contract exists depends on the intentions of the parties and raises a
question of fact. U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 282, 286 P.3d 542 (2012).
That said, when the legally relevant facts are undisputed, the existence and terms of a
contract raise questions of law for the court's determination. 295 Kan. at 282. "'The
primary rule for interpreting written contracts is to ascertain the parties' intent. If the
terms of the contract are clear, the intent of the parties is to be determined from the
language of the contract without applying rules of construction.'" Waste Connections of
Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 963, 298 P.3d 250 (2013) (quoting
Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 [2011]).
Similarly, if there are no disputed material facts, the question of whether a party
breached a contract is decided as a matter of law. Daggett v. Board of Public Utilities, 46
Kan. App. 2d 513, 515, 263 P.3d 847 (2011). A breach of contract occurs when there is
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"'a material failure of performance of a duty arising under or imposed by agreement.'" 46
Kan. App. 2d at 515.
Here, the parties generally agree to the relevant facts: Vasquez enrolled in August
2009, the 2009-10 Catalog was published in September 2009, Vasquez learned of the
NBCE requirement in summer 2016, and he requested the exemption that Cleveland
denied in January 2017. Additionally, both parties have presented this court with the
catalogs and, according to Vasquez, the 2008-09 Catalog is the express contract at issue.
Since there are uncontested facts concerning the terms and the dates, we will conduct an
unlimited review over the whether a contract exists, its terms, and whether it was
breached.
The Amended Petition
The first of the five elements Vasquez must satisfy to succeed on his breach of
contract claim demands he prove the existence of a contract. He first contends that
Cleveland conceded the parties executed a contract and cites to page six of the hearing
transcript, when the parties discussed the statute of limitations. We reviewed that page,
and it includes no such admission by Cleveland.
Vasquez next asserts that even if Cleveland did not concede the existence of a
contract, the 2008-09 Catalog functioned as an express contract between Cleveland and
its students and includes support for this claim by citing those portions of the catalog that
discuss the relationship between tuition course credit, academic policies, and conduct and
discipline standards.
In granting the motion to dismiss the district court looked to language in both
catalogs that place the obligation upon the student to stay up to date with curriculum
requirements and any changes which impact their respective programs. In doing so, it
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cast this case in a light much like Coffman v. Hutchinson Community College, No. 17-
4070-SAC, 2018 WL 3093506 (D. Kan. 2018). In that case, Coffman was a student at
Hutchinson Community College who alleged that the college's handbook represented a
contract between students and the college. The reviewing court disagreed and cited the
following handbook language:
"This catalog is for informational purposes only and does not constitute a contract. Every
reasonable effort was made to ensure that all information contained herein is accurate.
Hutchinson Community College reserves the right, at any time, to change graduation
requirements, costs, curricula and content, without notice. The college further reserves
the right to add or delete course offerings and other information without notice.
Information about changes is available from college counselors and advisors or on the
college website." 2018 WL 3093506, at *16.
The court explained that this provision "plainly states that the catalog does not
constitute a contract and that all information found in it was subject to the college's
unilateral change." 2018 WL 3093506, at *17. See also Eiland v. Wolf, 764 S.W.2d 827,
838 (Tex. App. 1989) (finding a university catalog was not an enforceable contract
because the catalog suggested that it was not a contract and that its provisions were
subject to change without notice); Tobias v. University of Texas at Arlington, 824 S.W.2d
201, 211 (Tex. App. 1991) (finding a university catalog was not an enforceable contract
because the catalog explicitly stated it was not a contract).
We recognize that Cleveland's catalog does not contain a similar disclaimer.
Kansas law contemplates the following with respect to contract modification:
"One party to a contract cannot unilaterally change the terms thereof. Modification
requires the assent of all the parties to the contract. Their mutual assent is as much a
requisite in effecting a modification as it is in the initial creation of a contract. Mutual
assent may not only be shown by an express agreement, but also may be implied from the
circumstances and conduct of the parties. In either case, however, there must be a
9
meeting of the minds with respect to the proposed modification." Fast v. Kahan, 206
Kan. 682, 684-85, 481 P.2d 958 (1971).
Vasquez takes the position that the 2008-09 Catalog is an express contract, which
is defined as one "whose terms the parties have explicitly set out." See Black's Law
Dictionary 406 (11th ed. 2019). If so, then Vasquez agreed to the terms of that contract,
which explicitly gave Cleveland the latitude to change curricular requirements with no
notice to Vasquez. Thus, it cannot be said the curriculum change constituted a
modification that lacked mutual agreement. Cf. Capital Iron Works Co. v. Maryland
Casualty Co., 99 Kan. 45, 160 P. 1006, 1008 (1916).
It is not a foreign notion that the relationship between a university and a student is
contractual, and that the terms of the contract may be found in catalogs. See Zumbrun v.
University of Southern California, 25 Cal. App. 3d 1, 10 (1972) ("The basic legal relation
between a student and a private university or college is contractual in nature. The
catalogues, bulletins, circulars, and regulations of the institution made available to the
matriculant become a part of the contract."); University of Texas Health Science Center
at Houston v. Babb, 646 S.W.2d 502, 506 (Tex. App. 1982) ("a school's catalog
constitutes a written contract between the educational institution and the patron");
Wickstrom v. North Idaho College, 111 Idaho 450, 452, 725 P.2d 155 (1986) ("It is by
now well-settled that the principal relationship between a college and its students is
contractual."); Frederick v. Northwestern University Dental School, 247 Ill. App. 3d 464,
471, 617 N.E.2d 382 (1993) ("A college or university and its students have a contractual
relationship, and the terms of the contract are generally set forth in the school's catalogs
and bulletins."); Andre v. Pace University, 655 N.Y.S. 2d 777, 779 (1996) ("The
relationship between plaintiff and Pace University is contractual in nature
. . . . The rights and obligations of the parties, as contained in the university's bulletins
and catalogs became a part of the parties' contract.").
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Courts have not departed from that conclusion simply because, as here, the student
catalogs and other documents allow unilateral curriculum changes without notice. See
Jallali v. Nova Southeastern University, Inc., 992 So. 2d 338, 342-43 (Fla. Dist. Ct. App.
2008) (quoting University of Mississippi Medical Center v. Hughes, 765 So.2d 528, 535
(Miss. 2000) (agreeing with other courts "that 'implicit in the university's general contract
with students is a right to change the university's academic degree requirements if such
changes are not arbitrary or capricious'"); Hammond v. Auburn University, 669 F. Supp.
1555, 1562 (M.D. Ala. 1987) (citing Mahavongsanan v. Hall, 529 F.2d 448, 450 [5th Cir.
1976] (assuming that some form of contract existed between the student and the
university, noting the university bulletin's language allowed for unilateral curriculum
changes, and finding that "[i]mplicit in a student's educational contract with the
University is the duty of the student to comply with the University's rules and regulations
which the University can modify so as to properly exercise its educational
responsibilities"). Thus, despite viewing the relationship as contractual, courts do not
adhere to a rigid application of contract principles in their analysis of the issue. See
Gamble v. University System of New Hampshire, 136 N.H. 9, 12-13, 610 A.2d 357 (1992)
(The relationship between a university and its students is governed by contract principles,
however, a strict doctrinal approach is inappropriate.); Hughes, 765 So.2d at 534
(collecting cases and noting that "elements of the law of contracts have been applied to
the student-university relationship, but rigid importation of the contractual doctrine has
been rejected").
Mandawala v. Baptist School of Health Professions, No. SA-19-CV-01415-JKP-
ESC, 2020 WL 5250642 (W.D. Tex. 2020), offers some measure of guidance as there,
the United States District Court for the Western District of Texas faced a question much
like what Vasquez presented to us. In that case, Mandawala filed a complaint alleging,
among other things, that the university breached its contract with him because "it
promised to provide education sufficient to prepare him to work as a sonography
technician in exchange for payment for said education." 2020 WL 5250642, at *7. And
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while he participated in and paid for the courses, the university failed to provide
appropriate instructors to enable him to complete his coursework. The university moved
to dismiss, but the court found that "[w]hile the circumstances differ under which courts
have found contracts between students and education institutions, contracts have been
found to exist." 2020 WL 5250642, at *7. Accordingly, when the facts were construed in
a light most favorable to Mandawala and it drew all reasonable inferences in his favor, it
revealed that he alleged facts sufficient to state a contract claim. 2020 WL 5250642, at
*7.
In a case bearing even greater similarities to the one we have been asked to
analyze, the Supreme Court of Mississippi considered whether a curriculum change at the
University of Mississippi Medical Center breached the contract. Hughes, 765 So.2d at
533-534. Hughes enrolled in medical school in 1992 and at the time, the university did
not require passage of any steps of the United States Medical Licensing Examination
(USMLE) to graduate. But the next year, the school implemented a requirement that
students pass the first portion of the USMLE exam prior to beginning their junior year.
Hughes failed the exam three times and was then notified of the university's intent to
dismiss him as a student. He pursued an injunction in chancery court and prevailed. The
chancellor ordered the college to reenroll Hughes and allow him to sit for the exam again.
The college appealed.
On appeal, Hughes argued that the university catalog was a contract and that
"according to this contract, he was to receive a doctor of medicine degree if he paid his
tuition and satisfied the academic requirements found in the school's catalog at the time
of his enrollment." 765 So.2d at 534. The court ultimately found that Hughes had an
implied contract with the school that only protected him from arbitrary modifications of
academic requirements by the university. Since the imposition of the USMLE
requirement was not arbitrary, the university did not breach the contract. That is, the
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potential for modification standing alone did not undermine the contractual nature of the
university-student relationship. 765 So.2d at 542.
In this case, when ruling on Cleveland's motion to dismiss, the district court
rejected the notion that the parties entered into a contractual arrangement. Rather,
because the terms of their relationship contemplated unilateral conduct by Cleveland it
defied characterization as a valid contract. But as evidenced by the summarization of our
research, that conclusion deviates from the generally held position taken on the issue by
several jurisdictions. We find the analyses and conclusions discussed by those courts to
be persuasive and choose to follow their lead. In so doing, we find that the basic legal
relation between a student and their university or college is, in some aspects, contractual.
The catalogs and regulations the institution provides to the student are properly
considered part of that contract. Thus, Vasquez has satisfied the first step of the inquiry
which, again, was to prove the existence of a contract.
Vasquez' second pleading requirement for the breach of contract claim was to
show consideration. "'Consideration is defined as some right, interest, profit, or benefit
accruing to one party, or some forbearance, detriment, loss, or responsibility, given,
suffered, or undertaken by the other."' Varney Business Services, Inc. v. Pottroff, 275
Kan. 20, 32, 59 P.3d 1003 (2002) (citing 17A Am. Jur. 2d, Contracts § 113, p. 129). His
petition successfully demonstrated the existence of consideration by virtue of the specific
information he provided concerning the loans and grants he submitted in exchange for
academic instruction.
Next, Vasquez has the burden to establish he performed in compliance with the
contract or had the willingness to do so. This requirement is satisfied by Vasquez'
attestation in his petition that he "performed or was willing to perform in compliance
with the terms of the contract entered into."
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The fourth component of the analysis is one of the most critical. It is at this point
that Vasquez has the burden to prove an actual breach of that contract between him and
Cleveland. He contends that the breach occurred on January 12, 2017, when Cleveland
denied his request to continue towards graduation under the terms of their agreement as
he perceived them to be, rather than in accordance with the school's new NBCE exam
requirement. But the significant hurdle Vasquez faces is that he does not identify or
otherwise direct us to any terms from either the 2008-09 or 2009-10 Catalogs that
obligate Cleveland to honor such a request. In both his petition and his appellate brief,
Vasquez focuses largely on that portion of the 2008-09 Catalog which suggests that
students were not required to pass the NBCE exam in order to graduate. He then makes
the leap that Cleveland violated the terms of their contract when it refused to allow him to
proceed with his education in a manner consistent with the 2008-09 graduation
requirements. But Vasquez' argument simply arises out of what he believes Cleveland
should have done based on his own notions of fairness which falls well short of what is
needed to satisfy this point in the analysis. Rather, our inquiry is confined to whether
Vasquez successfully established a cause of action for breach of contract based on a
violation of the specific terms agreed upon by the parties.
University of Texas v. Babb, 646 S.W.2d 502, offers a valuable comparison. In
that case, Babb enrolled at the University of Texas School of Nursing under the terms of
the 1978-79 school Catalog, which included the following provision:
"A student may obtain a degree from the School of Nursing according to the
requirements in the catalog under which he enters the School, or the catalog governing
any subsequent year in which he is registered in the School, provided that he completes
the work for the degree within six years of the date of the catalog." 646 S.W.2d at 504.
Babb withdrew from the program and received WF (withdraw failing) marks for
her courses that semester. She then returned to the school under the 1979-81 Catalog,
which included a provision that required a student to withdraw from the program if he or
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she received a 'D' in more than two classes. That requirement was not part of the terms
set forth in the 1978-79 Catalog. Babb subsequently received two Ds which, combined
with her previous WFs, triggered the new policy, and she was asked to leave the school.
Babb filed a lawsuit against the school and, similar to Vasquez, argued that the
new requirement should not apply to her because she initially enrolled under the terms of
the 1978-79 Catalog. 646 S.W.2d at 504. The district court granted a temporary
injunction which allowed Babb to resume her classes and the university appealed. The
Court of Appeals of Texas affirmed the district court’s injunction on the grounds that the
1978-79 Catalog constituted a written contract. It explained that since the catalog
permitted a student to complete the degree requirements under its terms, within a six-year
period, regardless of the school's amendments to the catalog, then the new withdrawal
requirement was inapplicable to Babb because she elected to be bound by the 1978-79
Catalog. 646 S.W.2d at 506.
Unlike Babb, there is not similarly beneficial language in the 2008-09 Catalog
from which Vasquez can derive relief. Absent such precise terms, Cleveland was under
no obligation to exempt him from the new NBCE requirement. Without a duty to do so,
Cleveland's denial of Vasquez' request did not amount to a breach. See Coffman, 2018
WL 3093506, at *17 ("There are no alleged terms of any handbook, catalog, or policy to
support the plaintiff's claim that HCC could not dismiss a student for academic reasons,
unless the student's GPA falls below a certain level or until the grievance investigation
and appeal process is completed."); Polley v. Northwestern University, 560 F. Supp. 3d
1197, 1207 (N.D. Ill. 2021) ("Plaintiffs first allege that there were express terms in their
respective admissions letters that Northwestern would provide the named Plaintiffs with
in-person instruction. A review of the admissions letters sent to the named Plaintiffs,
however, do not show any promise of in-person instruction."). We decline to find that
Vasquez fulfilled his obligation to allege a breach.
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Fifth and finally, Vasquez must establish the damages he suffered as a result of
Cleveland's alleged breach. He sought to do so by asserting that he suffered monetary
damage, "emotional distress, embarrassment, humiliation, and damages to his reputation,
as well as out-of-pocket expenses." Although he admitted at the hearing on Cleveland's
motion that such damages were incurred because he simply "cho[se] not to [take the
test]," we find that damages were properly pled in his petition. See Kucharski-Berger, 60
Kan. App. 2d at 515 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 [2007] ["'a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and "that a recovery is
very remote and unlikely"'"]).
In order to successfully plead a breach of contract claim, Vasquez had the burden
to satisfy each of the five aforementioned factors. Because he failed to identify a precise
term in the contract that Cleveland neglected to honor, he cannot prevail on his claim that
Cleveland breached the contract between them. Accordingly, the district court properly
dismissed the suit he initiated against Cleveland. We recognize that we arrived at the
same result as the district court in dismissing Vasquez' suit but did so through an
alternative route. It found Vasquez failed to wholly establish the existence of a contract,
while we concluded a contract exists, but Vasquez failed to identify the precise term
allegedly breached. We are well within our right to affirm a finding of the district court as
right for the wrong reason. See State v. Parks, 312 Kan. 487, 489, 476 P.3d 794 (2020)
("Appellate courts may affirm a district court as right for the wrong reason 'if an
alternative basis exists for the district court's ruling.'").
The District Court Properly Concluded that Vasquez' Breach of Contract Claim
Exceeded the Five-Year Statute of Limitations.
Vasquez' next assertion of error consists of a claim that the district court erred
when it found any cause of action accrued in 2009 when Cleveland implemented its new
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graduation requirement and therefore Vasquez' 2021 petition was barred by the five-year
statute of limitations.
Standard of Review
A motion to dismiss for failure to state a claim may be granted if a statute of
limitations defense clearly appears on the face of the petition. Weaver v. Frazee, 219
Kan. 42, 52, 547 P.2d 1005 (1976). The interpretation and application of a statute of
limitations is a question of law over which an appellate court exercises unlimited review.
Garcia v. Ball, 303 Kan. 560, 571, 363 P.3d 399 (2015). "A cause of action for breach of
contract accrues when a contract is breached by the failure to do the thing agreed to,
irrespective of any knowledge on the part of the plaintiff or of any actual injury it
causes." Pizel v. Zuspann, 247 Kan. 54, 74, 795 P.2d 42, modified on other grounds 247
Kan. 699, 803 P.2d 205 (1990).
Date of Breach
"For purposes of the statute of limitations, '[t]he test to determine when an action
accrues is that point when a plaintiff could have first filed and prosecuted an action to a
successful conclusion.'" Hewitt v. Kirk's Remodeling & Custom Homes, Inc., 49 Kan.
App. 2d 506, 511-12, 310 P.3d 436 (2013) (quoting Jeanes v. Bank of America, 296 Kan.
870, 874, 295 P.3d 1045 [2013]).
Here, both parties agree the relevant statute of limitations is found in K.S.A. 60-
511(1), which provides that "[a]n action upon any agreement, contract or promise in
writing" must be brought within five years. As stated previously, Vasquez contends the
breach occurred on January 12, 2017, when Cleveland refused his request to be exempt
from the NBCE requirement, thus, the petition was filed within the appropriate
timeframe. According to this characterization of the breach, Vasquez had until January
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2022 to file the petition. But as we just concluded in the discussion of the previous issue,
Vasquez cannot direct us to any language in either catalog which expressly establishes
that Cleveland was required to exempt Vasquez from the new policy. Therefore, a breach
did not occur at the point Vasquez relies on.
In an effort to cast the matter in a bit of a different light. Vasquez alleges that the
contract included a promise that Cleveland would not require him to pass a NBCE exam
as a graduation requirement. See Black's Law Dictionary 1466 (11th ed. 2019) (defining
"promise" as "The manifestation of an intention to act or refrain from acting in a
specified manner, conveyed in such a way that another is justified in understanding that a
commitment has been made; a person’s assurance that the person will or will not do
something."); 23 Williston on Contracts § 63:1 (4th ed. 2022) ("As a contract consists of
a binding promise or set of promises, a breach of contract is a failure, without legal
excuse, to perform any promise that forms the whole or part of a contract."). Even still,
Vasquez cannot overcome the fact that the cause of action accrued in September 2009
because it was then that any alleged promise was broken. That is, it was from that point
forward that the Clinical Internship II program requirement included the prerequisite,
even if Vasquez was unaware of it. Stated another way, it was at that point that Cleveland
failed to offer a path to graduation that did not include the first NBCE exam. See Pizel,
247 Kan. at 74; Law v. Law Company Building Assocs., 295 Kan. 551, 574, 289 P.3d
1066 (2012) (noting that "[a] cause of action for breach of contract accrues on the date of
breach, not the date of discovery . . . . ").
Vasquez fails to enlighten us as to why he was precluded from raising this issue in
the fall of 2009. Moreover, even if we were to assume that breach is attached to
Cleveland's denial rather than its implementation of the policy, Vasquez likewise fails to
reveal what prevented him from requesting an exemption upon release of the 2009-10
Catalog. See Chavez v. Saums, 1 Kan. App. 2d 564, 565, 571 P.2d 62 (1977) (explaining
that "a cause of action accrues, so as to start the running of the statute of limitations, as
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soon as the right to maintain a legal action arises, the true test being at what point in time
the plaintiff could first have filed and prosecuted his action to a successful conclusion");
Edward Kraemer & Sons, Inc. v. City of Overland Park, 19 Kan. App. 2d 1087, 1093,
880 P.2d 789 (1994) (analyzing when a breach related to a construction contract occurred
by determining the earliest time the cause of action could have been pursued); Holder v.
Kansas Steel Built, Inc., 224 Kan. 406, 409-10, 582 P.2d 244 (1978) (analyzing when a
breach in an employment contract occurred by determining when the cause of action
could have been successfully maintained).
This court considered a somewhat similar set of facts in Addison Manufacturing,
Inc. v. National Farmers Union Property & Casualty Company, No. 66,453, 1992 WL
12944447 (Kan. App. 1992) (unpublished opinion). Addison was the president of
Addison Manufacturing and in 1979, Kenneth Wing, an insurance agent from National
Farmers Union Property and Casualty Company (NFU), contacted him about purchasing
insurance for the company. Throughout several of their conversations, Addison
communicated the need for product liability insurance and Wing assured him NFU could
provide the desired coverage. Wing delivered the insurance policy in 1979 and Addison
paid its corresponding premiums until 1984. That year, Addison Manufacturing was sued
in Oregon, and NFU denied Addison Manufacturing's claim because its policy did not
include product liability coverage. Addison Manufacturing settled the Oregon lawsuit
then sued NFU and Wing in 1989. The lawsuit was dismissed and refiled in 1990, but the
trial court ultimately granted Wing's motion for a directed verdict, finding for NFU on
each claim, including Addison Manufacturing's breach of contract claim.
On appeal, this court considered whether the statute of limitations barred Addison
Manufacturing's breach of contract claim. Addison argued that, during their
conversations, Wing promised him that product liability insurance was included in the
policy. This court explained that the promises discussed by the parties "could form the
basis for a breach of contract claim if the policy did not provide for product liability and
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completed operations coverage." 1992 WL 12944447, at *4. Because the provision at
issue was not in writing it was subject to a three-year statute of limitations. See K.S.A.
60-512(1). We concluded that the breach of contract claim was barred by the statute of
limitations because the breach occurred in 1979 when Wing delivered the contract that
lacked the promised product liability insurance. The court noted that "it is irrelevant that
Addison did not know of the breach until coverage was denied in 1984." 1992 WL
12944447, at *4. Accordingly, Addison's lawsuit, which was originally filed in 1989, was
barred by the statute of limitations.
Addison Manufacturing included three events. First, a promise was made. Second,
a policy was implemented that violated the promise, which constituted the breach. Third,
the promisee requested that promisor take an action regarding the initial promise, which
the promisor denied. Vasquez' case follows a similar pattern. First, Vasquez alleges a
contract was formed that included a promise not to require NBCE passage as a
prerequisite for graduation. Second, a policy was implemented in 2009 that violated the
initial promise. Third, Vasquez requested that Cleveland exempt him from the new policy
change, which Cleveland denied. We will follow the path established by Addison
Manufacturing and likewise conclude that Cleveland's policy change following the
promise, rather than Cleveland's denial, is the proper point at which any breach occurred.
Vasquez directs our attention to Turner and Boisseau v. Nationwide Mut. Ins. Co.,
944 F. Supp. 842, 847 (D. Kan. 1996), for the proposition that "when the statute of
limitations is at issue during a motion to dismiss, the dismissal should be denied." But
Turner and Boisseau was a case involving legal malpractice. The court determined that
the issue sounded in contract, rather than tort, and then faced the question of whether the
contract at issue was written or oral. The court determined that the three-year statute of
limitations for oral contracts controlled, and then turned to the question of when the cause
of action accrued. The court explained there were at least four theories to explain when
the statute of limitations began to run in Kansas legal malpractice cases. One theory, the
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doctrine of continuous representation, holds that "the statute of limitations is tolled during
the period the attorney continues to represent the client on the same matter out of which
the alleged malpractice arose." 944 F. Supp at 847. The court also explained that it was
unclear when the attorney ceased representing the client. Accordingly, the court found
that there was "a question of fact as to the applicability of the statute of limitations." 944
F. Supp at 847. As a result, the court dismissed the motion. 944 F. Supp at 847.
But that issue is not present in this case. Rather, the parties agree that the statute of
limitations accrued on one of two dates: September 2009 or January 2017. Thus, no
lingering factual question prevents us from assessing the proper date of the breach. In
fact, this court has rejected the view that the accrual date in a breach of contract action is
better left in the hands of a jury. See Jarvis v. Nationwide Ins. Co. of Am., No. 120,332,
2019 WL 4725239, at *5 (Kan. App. 2019) (unpublished opinion). Instead, a district
court's interpretation of a statute of limitations is a legal decision over which this court
has unlimited review. Garcia, 303 Kan. at 571. The district court properly concluded that
Vasquez' breach of contract claim was barred by the five-year statute of limitations.
Finally, Vasquez advanced an argument that the district court impermissibly
considered matters outside the pleadings when granting the motion to dismiss.
Specifically, Vasquez takes issue with the court noting "that a reasonable person on
campus would know of school policy changes" and argues that courts may not consider
matters outside the pleadings when ruling on a motion to dismiss. See Hemphill v. Shore,
295 Kan. 1110, 1117, 289 P.3d 1173 (2012).
The district court granted the motion to dismiss for two reasons. First, it found
there was no contract between the parties, so Vasquez was precluded from asserting a
breach of contract claim. Second, it found that even if there were a contract, the statute of
limitations had expired because any breach occurred in 2009. Neither of these findings
relied on the reasonable person comments or hinged on what a reasonable member of the
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chiropractic class would or would not have understood following issuance of the 2009-10
Catalog. Accordingly, the court's ruling only relied on the pleadings.
Vasquez failed to fulfill the requirements necessary to establish a valid breach of
contract claim. Even if those elements were satisfied, he failed to assert his claim within
the five-year statute of limitations governing written contracts. Accordingly, the district
court properly granted Cleveland's request for dismissal.
Affirmed.
***
ATCHESON, J., concurring: I concur in the result we reach and would affirm the
dismissal of Jose H. Vasquez' amended petition against Cleveland Chiropractic College
because the allegations in the pleading establish an insuperable statute of limitations bar
to any breach of contract claim. As an enrolled student, Vasquez had a contractual
relationship of some sort with the school—there was a bargained for exchange of his
tuition dollars for a service intended to impart training in a professional field. Ultimately,
we do not need to explore the contours of the legal relationship much beyond that to
decide this case.
Giving the factual assertions in the amended petition and any reasonable
inferences drawn from them the best construction for Vasquez, he sought and received
assurances from representatives of Cleveland Chiropractic that he would not have to take
any portion of the licensure examination for chiropractors as a graduation requirement.
See Rector v. Tatham, 287 Kan. 230, Syl. ¶ 1, 196 P.3d 364 (2008) (dismissal for failure
to state claim proper if factual allegations of petition and inferences reasonably drawn
from them favoring plaintiff fail to establish any theory of recovery). The representatives
made those assurances to Vasquez shortly before he started school in August 2009, and
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they gave him a copy of the school's then current catalog, which was consistent with what
they told him. The catalog, however, expressly stated it was "applicable [from]
September 2008 through August 2009."
For purposes of deciding the appeal, I would assume that exchange created a
contract between Vasquez and Cleveland Chiropractic, and a material term of the
agreement stated Vasquez would not have to sit for the licensure examination. The term
was necessarily material given its special importance to Vasquez. See Black's Law
Dictionary 1772 (11th ed. 2019) (defining "material term" as "a contractual provision
dealing with a significant issue"). Beginning with the fall semester in 2009—when
Vasquez started—the school adopted a new requirement that chiropractic students must
pass the first portion of the examination to graduate. Again, I would assume that
requirement was inconsistent with the contract between Vasquez and Cleveland
Chiropractic, even though the contract arguably was for a fixed period that ended in
August 2009, as provided in the catalog the representatives gave him.
The parties treat any contract between Vasquez and Cleveland Chiropractic as a
written one with a five-year statute of limitations for suing on any breach. See K.S.A. 60-
511(1) (statute of limitations for breach of written contracts). Although the contract may
have been partly oral and partly written and thus governed by a three-year statute of
limitations, that makes no difference in the outcome under the circumstances. See K.S.A.
60-512(1) (statute of limitation for contracts "not in writing"); Chilson v. Capital Bank of
Miami, Fla., 237 Kan. 442, 446, 701 P.2d 903 (1985) (contract partly written and partly
oral governed by K.S.A. 60-512 for limitations purposes). Based on Vasquez' factual
allegations, Cleveland Chiropractic breached a material term of the contract in 2009.
The statute of limitations begins to run when an actionable breach of the contract
occurs—not when it's discovered. Dunn v. Dunn, 47 Kan. App. 2d 619, 628, 281 P.3d
540 (2012). The breach of a material term is, almost by definition, actionable. Dexter v.
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Brake, 46 Kan. App. 2d 1020, 1034, 269 P.3d 846 (2012) (a material breach renders
something "substantially less [than] or different [from]" what the parties bargained for).
Cleveland Chiropractic's new requirement that students pass the first portion of the
licensing examination to graduate breached the contract I have assumed was formed and
remained in effect. Vasquez could then have sued Cleveland Chiropractic for specific
performance of the contract or for a declaratory judgment as to his contractual rights,
especially since he continued to pay tuition and to otherwise meet the requirements for
enrollment.
In short, the factual assertions in Vasquez' amended petition demonstrate a
material (and, thus, actionable) breach in late 2009, triggering what the parties agree
would be a five-year limitation period. Vasquez did not file this breach of contract action
until June 8, 2021, well beyond the statute of limitations. The district court properly
entered judgment against Vasquez on that basis. And I would affirm for that reason.
Vasquez tries to avert the adverse judgment by arguing the breach did not occur
until January 2017, when school officials denied his request to graduate without sitting
for the initial portion of the licensing examination. But the argument ignores the action of
Cleveland Chiropractic that breached their contract—the adoption of the licensing
examination requirement in 2009—and focuses only on when the effects of the breaching
action became the most acute for him as he neared completion of the other requirements
for graduation.
I would affirm the district court's ruling for those reasons and, therefore, choose
not to venture into the much vaster territory that generally encompasses the nature of the
contractual relationship between college students and the learning institutions they attend.
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