Kelly Wood v. Texas Chiropractic College

Opinion issued July 24, 2008

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-00952-CV

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KELLY WOOD, Appellant

V.

TEXAS CHIROPRACTIC COLLEGE, Appellee

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On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2005-31007

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MEMORANDUM OPINION

Appellant, Kelly Wood, challenges the trial court's summary judgment rendered in favor of appellee, Texas Chiropractic College ("TCC"), in Wood's suit against TCC for a violation of the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA"), ⁽¹⁾ fraud, negligent misrepresentation, and equitable estoppel. In her sole issue, Wood contends that the trial court erred in granting TCC summary judgment as she raised a genuine issue of material fact on the challenged elements of each cause of action.

We affirm.

Procedural Background

In her first amended petition, Wood alleged that, in the fall of 2000, she enrolled at TCC, seeking to obtain a Doctor of Chiropractic degree. TCC, amongst other requirements, required students to complete ten trimesters of coursework in order to establish eligibility for graduation. By December of 2003, Wood had completed ten trimesters of coursework with a cumulative GPA of 3.26 and academic recognition. However, on December 4, 2003, she took a clinical exit exam, the "Clinical Skill Competency Evaluation" (the "CSCE"), which was "ostensibly" a requirement for graduation and she "ostensibly" failed. Due to Wood's failing the CSCE, TCC refused to award Wood its Doctor of Chiropractic degree.

Because TCC refused to award her a degree, Wood sued TCC, alleging that TCC violated the DTPA, committed fraud and negligent misrepresentation, and should be equitably estopped from refusing to award her a degree because it misrepresented to her that she had to take and pass the CSCE as a requirement for graduation. In her petition, Wood did not allege how she specifically relied on any misrepresentation made by TCC.

In its summary judgment motion, TCC asserted both that no evidence supported Wood's claims that she relied on any misrepresentations and that it was entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c), (i).

Standard of Review

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party's cause of action or affirmative defense. Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.--Dallas 2000, no pet.). Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not be properly granted if the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence "'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

When reviewing a no-evidence summary judgment motion, we assume that all evidence favorable to the nonmovant is true and indulge every reasonable inference and resolve all doubts in favor of the nonmovant. Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.--Houston [1st Dist.] 2002, no pet.). Because the trial court's order granting TCC's no-evidence summary judgment motion does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the grounds in the summary judgment motion are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000).

Summary Judgment

In her sole issue, ⁽²⁾ Wood argues that the trial court erred in granting TCC's no-evidence summary judgment motion as TCC's refusal to award her a Doctor of Chiropractic degree violated the DTPA, constituted fraud and negligent misrepresentation, and violated the equitable principle of estoppel because Wood did not need to take and pass the CSCE as a requirement for graduation.

Wood notes that TCC's "clinic[al] manual" provided that the CSCE "is mandatory for successful completion of the TCC clinic[al] program," TCC's "Catalogue" provided that "[v]arious qualitative assessments" were "[g]raduation [r]equirements for the Doctor of Chiropractic [d]egree," and TCC's "Student Handbook" provided that "[c]ompletion of a clinic[al] exit examination with a passing score will be required for graduation."

However, Wood asserts that, before taking the CSCE, "TCC informed Ms. Wood that her 'application for graduation had been approved.'" Also, Dr. Phil Conklin allegedly explained to her that the CSCE "was an exercise which had no effect on her graduation, going on to say, just before she went in to take the 'exit exam[,]' to not worry about passing, even students who 'failed' Weiss'[s] test still received their degree." Wood further opines that, after taking the CSCE, she "was certified by the [c]linic [d]irector to have completed her internship according to the requirements," and TCC issued an official transcript which showed that she had "receive[d] her Doctor of Chiropractic [d]egree."

Under section 17.50(a) of the DTPA, a consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish: (1) the use or employment by any person of a false, misleading, or deceptive act or practice that is specifically enumerated under section 17.46(b) of the DTPA and is relied on by a consumer to her detriment, (2) breach of an express or implied warranty, (3) any unconscionable action or course of action by any person, or (4) the use or employment by any person of an act or practice in violation of chapter 541 of the Texas Insurance Code. See Tex. Bus. & Com. Code Ann. § 17.50(a) (Vernon Supp. 2007).

In order to prove fraud, a plaintiff must show that (1) the defendant made a material representation that was false, (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth, (3) the defendant intended to induce the plaintiff to act upon the representation, and (4) the plaintiff actually and justifiably relied on the representation, which caused the injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).

In order to prove negligent misrepresentation, a plaintiff must show that (1) the defendant made a representation in the course of her business, or in a transaction in which she has a pecuniary interest, (2) the defendant supplied "false information" for the guidance of others in their business, (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the plaintiff suffered a pecuniary loss by justifiably relying on the representation. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 n.24 (Tex. 2002).

The doctrine of equitable estoppel requires (1) a false representation or concealment of material facts, (2) made with knowledge, actual or constructive, of those facts, (3) with the intention that it should be acted on, (4) to a party without knowledge or means of obtaining knowledge of the facts, and (5) who detrimentally relied on the representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998).

The common element of all of Wood's causes of action is reliance. TCC moved for summary judgment, asserting that there was no evidence of reliance. Neither in the trial court below nor in her briefing to this Court has Wood shown how she relied on any of TCC's alleged misrepresentations that she did not have to take and pass the CSCE as a requirement for graduation. Dr. Conklin's purported statement to her, before she took the CSCE, simply noted that students who had failed the CSCE did eventually graduate. Also, the fact that TCC had approved her application for graduation does not show that Wood did not have to take and pass the CSCE as a requirement for graduation. Moreover, the clinic director's certification that Wood satisfied the internship requirements and the transcript do not show that the CSCE was not a requirement for graduation.

Accordingly, we hold that the trial court did not err in granting TCC's no-evidence summary judgment motion because Wood did not show how she relied on any alleged misrepresentation by TCC.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Hudson. ⁽³⁾  

1.

See Tex. Bus. & Com. Code Ann. § 17.41 (Vernon 2002).

2.

Although Wood asserted as an issue in her brief that the trial court erred in considering as summary judgment evidence "testimony from [TCC], while ignoring testimony by Kelly Wood," Wood filed a reply brief, "remov[ing]" this issue from our consideration on appeal.

3.

The Honorable J. Harvey Hudson, retired Justice, Fourteenth Court of Appeals, participating by assignment.