An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
-2-

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.”
-3-

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 
-4-

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 
-5-

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[.]”
-6-

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 
-7-

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 
-8-

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 
-9-

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 
-10-

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 
-11-

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,
-12-

[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).