Williams v. Livingston Coll. ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-696
NORTH CAROLINA COURT OF APPEALS
Filed: 17 February 2015
MARIEL WILLIAMS,
Plaintiff,
v. Rowan County
No. 13 CVS 2791
LIVINGSTONE COLLEGE, INC.,
Defendant.
Appeal by plaintiff from order entered 3 March 2014 by
Judge Mark E. Klass in Rowan County Superior Court. Heard in
the Court of Appeals 22 October 2014.
Michael A. Jones & Assoc., PLLC, by Michael A. Jones, for
plaintiff-appellant.
Ruff, Bond, Cobb, Wade & Bethune, LLP, by Ronald L. Gibson,
for defendant-appellee.
McCULLOUGH, Judge.
Mariel Williams (“plaintiff”) appeals from an order
granting summary judgment in favor of Livingstone College, Inc.
(“Livingstone College”). For the following reasons, we affirm.
I. Background
Upon completion of Livingstone College’s “Bridge Program,”
plaintiff was accepted into Livingstone College’s general
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student body and enrolled as a full-time student beginning in
August 2008. Around that time, plaintiff received the
“Livingstone College Catalog 2008-2009” (the “Catalog”) setting
forth the requirements for graduation and signed the
“Livingstone Holistic College Contract[,]” (the “Contract”)
which incorporates the Catalog by reference. Once enrolled,
plaintiff completed the requirements to be admitted into
Livingstone College’s Teacher Education Program and, in November
2011, was accepted into the Teacher Education Program.
Plaintiff was formally inducted into the Teacher Education
Program in January 2012.
In order to complete the Teacher Education Program,
plaintiff was required to complete certain professional
education courses. As provided in the Catalog, “EDU 490 Student
Teaching/Seminar” (“EDU 490”) was the last of those mandatory
courses. Plaintiff took EDU 490 in the fall of 2012. A note at
the end of the syllabus provided to students enrolled in EDU 490
in the fall of 2012 indicated the following: “All teacher
candidates must take and pass Praxis II prior to exiting this
course. A grade of incomplete will be issued for EDU 490,
Student Teaching if the candidate fails to pass Praxis II. The
student teacher will be ineligible for graduation.”
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Plaintiff did not complete the Praxis II exam prior to
exiting EDU 490 and received a grade of incomplete. As a
result, Livingstone College refused to award plaintiff a
diploma.
On 6 December 2013, plaintiff initiated this action against
Livingstone College asserting claims for breach of contract and
negligent misrepresentation. In pertinent part, plaintiff
alleged the following in her claim for breach of contract:
25. The Livingstone Catalogue provided to and
accepted by Plaintiff upon entering the
college in 2008, and the Livingstone
Contract which incorporates by reference,
integrates and merges into its terms the
obligations of [sic] set forth in the
Livingstone Catalogue, created
contractual obligations between Plaintiff
and Defendant Livingstone as it related
to graduation requirements and the
issuance of a diploma.
26. Upon meeting the academic requirements
set forth under the Livingstone Catalogue
and as incorporated by reference,
integrated into, and merged into the
terms of the Livingstone Contract,
Defendant Livingstone was required to
issue Plaintiff a diploma and allow her
to graduate on time.
27. Specifically, Plaintiff has satisfied all
course requirements spelled out in the
Livingstone Catalogue and Livingstone
Contract, and is current on all financial
obligations with Defendant Livingstone.
28. Defendant Livingstone has breached and
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continues to breach its contractual
obligation by refusing to issue the
Plaintiff her diploma and removing the
“incomplete status” from her EDU 490
class.
29. Defendant Livingstone unreasonably
requires Plaintiff to complete the PRAXIS
II exam which is a teacher certification
requirement for those wishing to become
licensed as a teacher — but is not a
graduation requirement to receive her
diploma as set forth under the
Livingstone Catalogue and Livingstone
Contract.
30. Defendant Livingstone further breached
the agreement between the parties related
to academic requirements by unreasonably
adding additional educational
requirements to Plaintiff's graduation
curriculum without proper notice to
Plaintiff to fulfill such requirements in
a reasonable and timely manner.
31. Plaintiff was not informed of the PRAXIS
II exam requirement until well into her
senior year of education[.]
32. By failing to notify Plaintiff in a
timely and reasonable manner of the
change to her graduation requirements,
Plaintiff was unjustly deprived of
valuable time in which she could have
properly prepared through study to take
and successfully pass the PRAXIS II exam.
In plaintiff’s claim for negligent misrepresentation, plaintiff
alleged the following:
36. Plaintiff, as was her obligation, and at
all relevant times complained of in this
Compliant, used reasonable efforts to
keep abreast and apprised of her
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graduation requirements.
37. Plaintiff reasonably and justifiably
relied upon representations contained in
the Livingstone Catalogue and Livingstone
Contract that she was required to meet
the educational requirements set forth
thereunder, and would graduate on
schedule as long as she met all
requirements set forth thereunder.
Plaintiff reasonably relied upon these
written representations by Defendant
Livingstone to her detriment.
. . . .
40. Aside from receiving actual notice from
Defendant Livingstone, which Defendant
Livingstone has a duty to Plaintiff to
provide, in a reasonable and timely
manner, Plaintiff was unable and could
not have otherwise learned of any such
change to her academic requirements that
the PRAXIS II exam was required before
graduation.
Based upon plaintiff’s claims, plaintiff sought “injunctive
relief in the form of an order commanding [Livingstone College]
to immediately issue [p]laintiff her earned diploma, change the
status of [p]laintiff’s EDU 490 course/program from an ‘I’
(incomplete status) to the ‘A’ grade which she earned, and
release Plaintiff’s transcript containing her updated status.”
Plaintiff further sought the recovery “for all costs,
expenses[,] and attorney’s fee[s]” and “compensatory,
consequential[,] and incidental damages in excess of
$10,000.00[.]”
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Livingstone College responded to plaintiff’s complaint by
filing a motion to dismiss, or in the alternative, motion for
summary judgment on 4 February 2014. Livingstone College filed
an answer shortly thereafter.
In a memorandum filed in support of its motion to dismiss,
or in the alternative, motion for summary judgment on 18
February 2014, Livingstone College argued the Catalog did not
create a contract with respect to graduation requirements,
plaintiff had notice of the Praxis II requirement by the
beginning of the Fall 2012 semester, and plaintiff failed to
allege justifiable reliance to support her negligent
misrepresentation claim.
In response to Livingstone College’s memorandum, plaintiff
filed a memorandum in opposition to Livingstone College’s motion
on 26 February 2014. In the memorandum, plaintiff states that
[she] neither argues nor contends, as
Defendant Livingstone College seems to
infer, that it cannot modify or alter its
course requirements as set forth in its
catalogues. . . .
What [she] argues before the trial
court and alleges in her [c]omplaint is
that, as a student in good standing with the
college, at no time did she ever receive
reasonable or timely notice from Defendant
Livingstone College of any modification to
her course requirements until it unjustly
and adversely affected her right to graduate
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and receive her diploma. Plaintiff . . .
further asserts that as a paying student, in
good standing with the Defendant Livingstone
College, that it had a duty to notify her in
[a] reasonable and timely manner of any
changes to her requirement.
Livingstone College’s motion to dismiss, or in the
alternative, motion for summary judgment came on for hearing in
Rowan County Superior Court on 3 March 2014, the Honorable Mark
E. Klass, Judge presiding. Following the hearing, the trial
court entered an order granting Livingstone College’s motion for
summary judgment. Plaintiff appeals.
II. Discussion
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that ‘there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649
S.E.2d 382, 385 (2007)).
Plaintiff’s sole argument on appeal is that the trial court
erred in granting summary judgment in favor of Livingstone
College because there were genuine issues of material fact in
dispute. Specifically, plaintiff contends issues of fact
existed concerning the nature and extent of the contractual
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obligations and responsibilities owed to her by Livingstone
College under the Catalog. Plaintiff further argues a jury
could have found that Livingstone College breached the Contract
by failing to provide reasonable notice of changes to the
curriculum as stated in the Catalog, namely the requirement that
students pass the Praxis II exam. Plaintiff does not present
any argument in regard to her negligent misrepresentation claim;
thus, it is abandoned. See N.C. R. App. P. 28(a) (2015)
(“Issues not presented and discussed in a party's brief are
deemed abandoned.”).
In response, Livingstone College disputes that the Catalog
created a contract with respect to graduation requirements and,
in the event that it did, asserts that summary judgment was
appropriate based on the forecast of evidence.
In North Carolina, “[t]he elements of a claim for breach of
contract are (1) existence of a valid contract and (2) breach of
the terms of that contract.” Branch v. High Rock Lake Realty,
Inc., 151 N.C. App. 244, 250, 565 S.E.2d 248, 252 (2002)
(citation omitted). As this Court recognized in Ryan v. Univ.
of N.C. Hospitals, a student may bring a breach of contract
action related to an “educational contract” when the student is
able to point to an identifiable contractual promise that the
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university failed to honor. Ryan, 128 N.C. App. 300, 301-03,
494 S.E.2d 789, 790-91 (1998), citing Ross v. Creighton Univ.,
957 F.2d 410 (7th Cir. 1992). In Ross, on which this Court
relied in Ryan, the court further explained that “[i]t is held
generally in the United States that the basic legal relation
between a student and a private university or college is
contractual in nature. The catalogs, bulletins, circulars, and
regulations of the institution made available to the matriculant
become a part of the contract.” 957 F.2d at 416 (citations and
quotation marks omitted).
In the present case, it is undisputed that plaintiff
executed the Contract with Livingstone College, which
specifically referenced the Catalog stating, “[i]tems not
specifically addressed in this contract are addressed in either
the Livingstone College Student Handbook or College Catalog and
you are required to read and abide by them.” Thus, we hold the
relationship between plaintiff and Livingstone College was
contractual in nature and the Catalog was a part of the
contract.
As pointed out by plaintiff, in the section of the Catalog
providing the general requirements for graduation, the Catalog
notes that “[s]tudents are normally expected to graduate
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according to requirements listed in the catalog under which they
enter the College” and “[a] student will be allowed to
participate in graduation exercises only when ALL requirements
for the degree as specified in the applicable catalog have been
completed.” The Catalog, however, also explicitly provides that
“[t]he listing of a course or program in the catalog does not
constitute a guarantee or contract that the particular course or
program will be offered during a given year[,]” “[t]he College
reserves the right to make changes in its rules and regulations,
curricula, fees, and other matters of policy and procedure as it
may consider appropriate[,]” “[s]tudents are responsible for
keeping abreast and complying with current College policies[,]”
and “[t]he College urges students to consult with their advisors
and other appropriate college officials for clarification of
current policies and requirements related to their education at
the College.” Thus, the question is whether the listing of
course requirements provided in the Catalog obligated
Livingstone College to award plaintiff a degree upon the
completion of those requirements. In the present case, however,
we need not reach that question.
Although the Catalog did not specifically list Praxis II as
a graduation requirement, the Catalog did list EDU 490 as a
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required professional education course for all teaching majors.
The syllabus for EDU 490, in turn, notified plaintiff and other
teacher candidates taking the course in the fall of 2012 that
they must take and pass the Praxis II prior to exiting EDU 490
or they would be issued a grade of incomplete and be ineligible
for graduation. Thus, it appears from the evidence that passing
the Praxis II exam was a course requirement, not a general
graduation requirement. The Catalog does not list the
requirements for the successful completion of individual
courses. Because plaintiff did not complete the Praxis II exam,
she did not successfully complete EDU 490 and received a grade
of incomplete, resulting in her ineligibility to graduate.
Plaintiff had notice of this possibility when she began EDU 490
in the fall of 2012.
Moreover, even if the Catalog created a contract with
respect to graduation requirements and the completion of the
Praxis II exam was added to those requirements, plaintiff does
not contend that Livingstone College cannot amend the graduation
requirements. Just as Plaintiff indicated in her memorandum to
the trial court in opposition to Livingstone College’s motion to
dismiss, or in the alternative, motion for summary judgment, on
appeal, plaintiff states that,
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[a]t no time does [she] contend that
Livingstone College could not have altered,
changed[,] or modified its academic
curriculum and various policies in its sole
discretion. What [she] does argue, is that
reasonable notice concerning substantial
changes to her academic curriculum must be
given pursuant to well established
principles of good faith and fair dealing
that is inherent is [sic] all contractual
relationships, and that proper notification
of such changes and modifications must be
reasonable under the existing circumstances.
Livingstone College simply did not abide by
or adhere to these principles.
Although reasonableness is often a question of fact for the
jury, we hold the forecast of evidence in this case, which tends
to show that the syllabus provided to students enrolled in EDU
490 during the Fall 2012 semester included notice that they must
take and pass the Praxis II exam to successfully complete the
course and graduate, supports the trial court’s grant of summary
judgment in favor of Livingstone College.
III. Conclusion
For the reasons discussed above, we find the trial court
did not err in granting summary judgment in favor of defendant.
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).