An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedur e.

NO. COA 14

- 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 , ”
p laintiff was accepted into Livingstone College’s general- 2

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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 Cata log 2008

- 2009” (the “Cata log ”) setting
forth the requirements for graduation a nd signed the “Livingstone Holistic College Contract [,] ” (the “Contract”) which incorporates the C ata log by reference. Once enroll ed , plaintiff completed the requirements to be admitted into Livingstone College’s Teacher Education P rogram and, in November 2011, was accepted into the Teacher Education P rogram. Plaintiff was formally inducted into the Teacher Education
P rog ram in January 2012. In order to complete the Teach er Education P rogram, plaintiff was required to complete certain professional education courses. As provided in the C ata log , “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 I I prior to exiting this course. A grad e of incomplete will be issued for EDU 490, Student Teaching if the candidate fail s to pass Praxis II. The student teacher will be ineligible for graduation. ”- 3

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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 an d negligent misrepresentation
. In pertinent part, plaintiff alleged the following in her claim for breach of contract:

2 5. The Livingstone Cata logue provided to and accepted by Plaintiff upon entering the college in 2008, and the Livingstone Contract whic h incorporates by reference, integrates and merges into its terms the obligations of [sic] set forth in the Livingstone Cata logue , 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 Cata logue and as incorporated by reference, integrated into, and merged into the terms of the Livingstone Contract, Defendant Livingstone was required to iss ue Plaintiff a diploma and allow her to graduate on time. 27. Specifically, Plaintiff has satisfied all course requirements spelled out in the Livingstone Cata logue and Livingstone Contract, and is current on all financial obligatio ns 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 requ ires 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 Cata logue and Livin gstone 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 Plainti ff to fulfill such requirements in a reasonable and timely manner. 31. Plaintiff was not informed of the PRAXIS II exam requirement until well into h er 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 success fully pass the PRAXIS II exam. In plaintiff’s claim for negligent misrepresentation, plai ntiff allege d 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 o f her- 5

- graduation requirements. 37. Plaintiff reasonably and justifiably r elied upon representations contained in the Livingstone Cata log ue 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 thereun der. Plaintiff reasonably relied upon these written representations by Defendan t 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 w as required before graduation. Based upon plaintiff’s claims, plaintiff sought “injunctive

re lief 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 Plai ntiff’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 damag es in excess of $10,000.00[.]”- 6

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Livingstone College responde d 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

a n answer shortly thereafter. In a memorandum filed in support of its motion to dismiss, or in the alternative, motion for summary judgment on 1 8 February 2014 , Livingstone College argued the C ata log did not create a contract with respect to graduation requirements , plaintiff had notice of the P raxis II requirement by the beginnin g of the Fall 20 1 2 semester , and plaintiff failed to allege justifiable reliance to support her negl igent 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 no r contends, as Defendant Livingstone College s eems to infer, that it cannot modify or alter its course requirements as set forth in its cata log ue s. . . . 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 requirem ent s 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] reasona ble and timely manner of a ny 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 Ma rk 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; suc h 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 For bis 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. Spe cifically, plaintiff contends issues of fact existed concerning the nature and extent of the contractual- 8

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obligations and responsibilities owed to her by Livingstone College under the C ata log . Plaintiff further argues a jury could have found that Livingsto ne College breached the C ontract by failing to provide reasonable notice of changes to the curriculum as stated in the C ata log , namely the requirement that students pass the P raxis II exam. Plaintiff does not present any argument in regard to her negligent misrepresentation claim ; t hus, 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 C ata log 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 an d (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 contra ct action related to an “educational contract” when the student is able to point to an identifiable contractual promise that the- 9

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u niversity 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 i n nature. The cata log s, bulletins, circulars, and regulations of the institution made available to the matricula n t become a part of the contract.” 957 F.2d at 416 (citations and quotation marks omitted).
In the present case, it is undisputed that plainti ff executed the Contract with Livingstone College, which specifically reference d the Cata log stating, “[i]tems not specifically addressed in this contract are addressed in either the Livingstone College Student Handbook or College Catalog and you are requi red to read and abide by them.” Thus, we hold the relationship between plaintiff and Livingstone Co llege was contractual in nature and the Cata log was a part of the
contract . As pointed out by plaintiff, in the section of the Cata log providing the general requirements for graduation, the Cata log notes that “[s]tudents are normally expected to graduate- 10

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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 o nly when ALL requirements for the degree as specified in the applicable catalog have been completed.” The Cata log , however, also explicitly provides that “[t]he listing of a course or program in the catalog does not constitute a guarantee or contract tha t t he 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 Cata log 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 Cata log did not specifically list Praxis II as a graduation requirement, the Cata log did list EDU 490 as a- 11

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required professional education course for all teaching majors.
The syllabus for EDU 490, i n 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 appe ars from the evidence that passing the Praxis II exam was a course requirement, not a general graduation requirement. The Cata log does not list the requirements for the successful completion of individual

courses . Because plaintiff did not complete the P raxis 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 bega n EDU 490 in the fall of 2012. Moreover, even if the Cata log 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 a ltered, 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 princ iples 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 ci rcumstances. Livingstone College simply did not abide by o r 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 incl uded notice that they must take and pass the Praxis II exam to successfully complete the course and graduate, support s 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).