### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON October 23, 2014 Session

MARY KINDRED V



### . NATIONAL COLLEGE OF BUSINESS AND

TECHNOLOGY, INC. ET AL



### .

Appeal from the Circuit Court for Shelby County

No. CT00402511 Robert L. Childers, Judge

No. W 2014

- 00413

- COA

- R3

- CV

- Filed March 19, 2015

A former student at National College of Business and Technology, Inc. ( “ National College ” ) sued the school and its director for breach of contract, intentional infliction of emotional distress, and violation of the Tennessee Consumer Protection Act following the

cancellation of her enrollment due to the fact her student file did not contain an official copy of her high school transcript or the equivalency certificate as required by the Tennessee Higher Education Commission. Plaintiff ‟ s claims for intentional infliction of

emotional distress and violation of the Tennessee Consumer Protection Act were

dismissed pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief could be granted. Th ereafter, Defendants moved to summarily dismiss Plaintiff ‟ s remaining claim for breach of contract. T he trial court found that Defendants negated two

essential elements of Plaintiff ‟ s breach of contract claim, n amely, breach and damages,

and summarily dism issed that claim. W e affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT

, J R

., P.J., M.S. , delivered the opinion of the Court, in which J.

S TEVEN S TAFFORD

, P.J., W.S.

, and A RNOLD B. G OLDIN

, J. , joined.

Al H. Thomas and Aaron Thomas, Memphis, Tennessee, for the appellant, Mary

Kindred.

W. Brantley Phillips, Jr., Nashville Tennessee, and Jonathan E. Nelson, Memphis,

Tennessee , for the appellee s
, National College of Business and Technology and Noel Denny.- 2

- OPINION

Mary Kindred ( “ Plaintiff ” ) enrolled at the Memphis campus of National College of Business and Technology ( “ National College ” ) 1 in March 2009 and eventually elected to pursue a degree as a medical assistant

. 2 When P laintiff enroll ed , the Tennessee Higher

Ed ucation Commission (the “ THEC ” ) allowed students to attest on their enrollment application that they had either received a high school transcript or some form of high school equivalency certificate, e.g., a General Educational Developmen t ( “ GED ” )

. However, that policy changed in September 2009, at which time National College informed all students, including Plaintiff, that THEC Rule 1540

- 01

- 02

- .15(6)(b) required National College to “ have on file an official copy of the high school transcr ipt, or the equivalency certificate with scores which meet the state ‟ s minimum for passing . . . ” for

each enrolled student. (Emphasis added). 3

On August 12, 2010, approximately two week s before the start of Term 107,

Plaintiff went to National College to obtain a copy of the Term 107 schedule

. National College advised Plaintiff that her student file did not contain an official copy of her GED and, thus, was not in compliance with the THEC

. Plaintiff allege s that she was “ shocked ”

to learn her student file was not in compliance, and further alleges that it was National College ‟ s responsibility to get her GED transcript from the Memphis Board of

Education. 4 At that time, instead of providing an official copy of her GED certificate,

Plaintiff presented her GE D diploma card , for the intended purpose of demonstrating that

she received a passing score on the GED. National College made a copy of Plaintiff ‟ s GED card and provided her with a copy of the Term 107 schedule; however, it is undisputed that prior to the start of Term 107, Plaintiff‟s student file did not contain an official copy of her GED certificate ; nevertheless, Plaintiff alleges that she reasonably

believed th at to be the end of the matter.

1 National College is a private post

- secondary education institution that is regulated by the Tennessee Higher Education Commission (the “THEC”).

2 Plaintiff attended classes without interruption until August 2010 when the alleged events underlying this action occurred.

3 Although THEC Rule 1540

- 01

- 02

- .15(6)(b) was promulgated in 1985, according to the Declaration of Cyndee P. Moore, the Vice President of Operations for National College‟s Tennessee campuses, it wasn‟t until July 2009 that the THEC r equired strict compliance with the rule.

4 It is undisputed that National College, on two different occasions, attempted to contact the Memphis Board of Education to request an official copy of Plaintiff‟s GED certificate in an attempt to bring her student file into compliance; however, for unknown reasons, the Board never complied with the
requests.- 3

-

Term 107 began on August 30, 2010, and Plaintiff attended classes for approximately one week before Noel Denn e y, the d irector of National College ‟ s Memphis campus, was informed of her attendance . Because Plaintiff ‟ s student file did not have an official copy of her GED certificate and, thus, was not in compliance with the THEC, Mr. Denney cancelled Plaintiff ‟ s enrollment in Term 107. Mr. Denney advised

Plaintiff of t he reason for the cancellation and that she would not be charged tuition for that term. Mr. Denney further informed Plaintiff that she could return to classes in the following term so long as her student file was in compliance at that time.

According to Plaintiff, Mr. Denney communicated to her that when she went to

obtain her Term 107 class schedule, National College gave her a deadline o f August 13, 2010, to bring her student file into compliance by providing an official copy of her GED certificate; because Plaintiff failed to comply with the deadline, Mr. Denney cancelled

her enrollment. Plaintiff contends that she was not given a deadline nor told by National College that it was her responsibility to provide the GED certificate . She further alleges

that Mr. Denney told her he was choosing to accept the word of his employees rather than

her version.

On th e same day Plaintiff was informed of the cancellation of her enrollment , she procured an official copy of her GED certificate from the Memphis Board of Education and delivered it to Mr. Denny. Plaintiff contends she reasonably believed she had cured

her co mpliance issue and return ed to Term 107 class es. However

, Plaintiff was informed

that Mr. Denny had affirmed his decision to cancel her enrollment because her student

file was not in compliance prior to the start of the term

.

Plaintiff alleges that the actions by Mr. Denny and National College ( “ Defendants ” ) in the termination of her enrollment w ere arbitrary, and unjustified, and

that she felt as though she could no longer pursue her educational goals because she could not continue at National College a nd could not start over somewhere else at her age. Nevertheless, Plaintiff contends that through the encouragement of others, she was

“ inspired to try and suppress her feelings of pain and distress and return to National College. ”

In November 2010, a pproximately t wo months after the cancellation of her enrollment, Plaintiff enrolled in Term 111

. Upon enrollment, Plaintiff was informed that she had an outstanding balance in the amount of $521 for textbooks she purchased during Term 107, and that she co uld not enroll until the balance was paid

. Plaintiff attempted to return her textbooks for a refund; however, the return and refund was not allowed. 5
Plaintiff alleges that she perceived this incident as abusive, degrading, and a continuation

of Defendants ‟ previous treatment towards her , that being the “ degrading termination of

5 According to Plaintiff, Mr. Denney sent her a letter after her disenrollment that stated she could return her Term 107 books for a refund; this letter, however, is not in the record.- 4

-

her enrollment [in Term 107]

. ” Nevertheless, according to Plaintiff, she continued to persevere in suppressing these feelings and paid the balance.

Plaintiff attended two additiona l terms at National College, Term 111 (November

2010

- February 2011) and Term 113 (March 2011

- May 2011)

. During this time, Plaintiff alleges that National College “ caused additional incidents to happen to [Plaintiff] ” which she alleges to be abusive, de grading, and a continuation of Defendants ‟ previous treatment towards her ; however

, Plaintiff only identifies one incident

. According to Plaintiff, the incident occurred at the conclusion of Term 113 in May 2011 when she challenged a failing grade “ that Na tional College gave her ” in one of her

courses. Plaintiff perceives “ the failing grade and National College ‟ s review of th e grade to be a continuation of [Defendants ‟ ] abusive and degrading treatment. ” Plaintiff allege s that after this incident, she could no longer suppress her pain and distress that began with National College ‟ s “ degrading termination of her enrollment eight months earlier. ” Plaintiff further allege s that this forced her to cease her attendance at Natio nal College and abandon her educational/professional goals. In June 2011, Plaintiff informed National College that she would not be enrolling in the following term

.

Plaintiff, acting pro se, initiated this action in September 2011. W ith the benefit of

c ounsel, Plaintiff filed a Second Amended Complaint ( the “ Complaint ” ) , the operative pleading i n this appeal, on June 21, 2013. Plaintiff alleges a cause of action under breach of contract against National College; intentional infliction of emotion al distre ss ( “ IIED ” ) against both Mr. Denney and National College ; and a violation of the Tennessee Consumer Protection Act ( “ TCPA ” ) against both Mr. Denney and National College

.

Defendants moved to dismiss the C omplaint for failure to state a claim upon

which r elief can be granted pursuant to Tenn essee Rule of Civil Procedure 12.02(6). Following a hearing , the trial court found that the Complaint did not allege viable claims for violations of the TCPA or IIED and dismissed those claims, but denied the motion to
dismiss the claim for breach of contract . Specifically, the court found that because National College is an educational institution whose activities are not subject to the TCPA, and th at, per the allegations in the C omplaint, National College had not e ngaged in a deceptive or unfair trade practice, Plaintiff failed to state a claim for violation of the

TCPA

. With respect to Plaintiff ‟ s claim for IIED

, the trial court found that because

D efendants had not engaged in conduct so egregious and outrageous as cannot be tolerated by a reasonable person, normally constituted, in a civilized society

, per the allegations in the C omplaint, Plaintiff failed to state a claim for IIED . Specifically, the

trial court stated that “ [f] or example, the Complaint alleges tha t, despite Defendants ‟ purported conduct towards her, Plaintiff re

- enrolled at National College and attended classes for several months following the incident at issue. ” Based upon the foregoing, t he

trial court dismissed Plaintiff ‟ s claim for recovery und er the TCPA and IIED

.

Following the trial court ‟ s order of dismissal

, Plaintiff filed two motions: a motion to revise the order dismissing her claims under TCPA and IIED, and a motion to amend- 5

-

the Complaint to add recovery for emotional distress damages under breach of contract

. Both motions were denied.

Plaintiff ‟ s claim for breach of contract allege s that an enforceable agreement, either written, oral, or a combination of both, was formed whereby in exchange for her enrollment and tuition, National College agreed to provide Plaintiff access to her chosen course of studies at National College. Plaintiff alleges that Defendants ‟ action in terminating her enrollment constitutes a breach of National College ‟ s contractual obligation to provide her access to her chosen course of study. Plaintiff further alleges she attempted to mitigate the damages but that she was either “ unable to ” or National College made it “ too hard for her. ” Plaintiff claims that, d ue to National Coll ege ‟ s alleged breach, she lost the “ expected value of her chosen course of studies ” that would have qualified her as a medical assistant

.

Defendants moved to summarily dismiss Plaintiff ‟ s remaining claim for breach of

contract for two primary reasons. Fi rst, with respect to Plaintiff ‟ s breach of contract claim against Mr. Denney, Defendants assert that, per the allegations of the Complaint , Plaintiff only allege d a cause of action against National College and not Mr. Denney in his individual capacity; thu s, Plaintiff ha d no legal basis to maintain the breach of contract action against Mr. Denny. Second, Defendants assert that , assuming, arguendo, there is an enforceable contract between National College and Plaintiff, and that the temporary suspension of P laintiff ‟ s enrollment rises to the level of a breach of the contract

, Plaintiff cannot establish the essential element of damages

. Specifically, Defendants assert

Plaintiff ‟ s claimed damages are impermissibly speculative and that Plaintiff is unable to show her alleged damages were caused by the alleged breach of contract, that being the

cancellation of her enrollment in Term 107

. Plaintiff filed a response in opposition

.

Following a hearing on Defendants‟ motion for summary judgment

, the trial court summarily dismissed Plaintiff ‟ s breach of contract claim against Mr. Denney based upon the finding that no contractual relationship existed between Plaint iff and Mr. Denney individually. 6 The trial court also summarily dismissed Plaintiff ‟ s br each of contract claim against National College based upon the finding that National College successfully negated two essential elements of Plaintiff ‟ s claim

.

This appeal followed. Plaintiff presents six issues for our review; however, w e consolidate and restate the issues as follows:

1. Whether the trial court erred in summar ily dismissing Plaintiff‟s breach of contract

claim.

6 At the summary judgment hearing, Plaintiff conceded that the Complaint did not alleg e any damages against Mr. Denney, and, therefore, Plaintiff did not object to his dismissal. This ruling is not challenged by either party on appeal.- 6

-

2. Whether the trial court erred in dismissing Plaintiff ‟ s claim of intentional infliction

of emotional distress.

3. Whether the trial c ourt erred in dismissing Plaintiff ‟ s claim under the Tennessee

Consumer Protection Act.

4. Whether the trial court abused its discretion in denying Plaintiff ‟ s motion to file a

third amend ed complaint to include a claim for emotion al distress damages as a component of her breach of contract claim.

We will begin our analysis with the summary dismissal of Plaintiff ‟ s breach of

contract claim.

A NALYSIS

I. S UMMARY J UDGMENT

Plaintiff ‟ s breach of contract claim was disposed of by means of summary judgment. Because the resolution of a motion for summary judgment is a matter of law,

we review the trial court ‟ s judgment de novo with no presumption of correctness. Martin v. Norfolk Southern Ry. Co. , 271 S.W.3d 76, 84 (Tenn. 2008) . This Court must make a fresh determination that all the requirements of Tennessee Rule of Civil Procedure 56

have been satisfied. Abshure v. Methodist

- Healthcare

- Memphis Hosps. , 325 S.W.3d 98, 103 (Tenn. 2010). As does the trial court, the appellate court considers the evidence in the light most favorable to the nonmoving party and resolve s all inferences in that party ‟ s favor. Martin

, 271 S.W.3d at 84; Stovall v. Clarke , 113 S.W.3d 715, 721 (Tenn. 2003); Godfrey v. Ruiz , 90 S.W.3d 692, 695 (Tenn. 2002). To be entitled to summary judgment, the moving party must affirmatively negate an essential element of the nonmoving
party ‟ s claim or demonstrate to the court that the nonmoving party ‟ s evidence is

insufficient to es tablish an essential element of the nonmoving party ‟ s claim. Tenn. Code. Ann. § 20

- 16

- 101 (effective on claims filed after July 1, 2011). Thus, as the moving party, National College had the burden to negate an essential element of Plaintiff‟s breach

of contract claim or demonstrate to the court that Plaintiff cannot prove an essential

element of her claim. See Tenn. Code. Ann. § 20

- 16

- 10

.

II

. B REACH OF C ONTRACT

P laintiff claims she has an enforceable contract with National College that provides her ac cess to her chosen course of studies in consideration for her enrollment

and tuition and that National College breached the contract when it cancelled her

enrollment in Term 107.

A claim for breach of contract requires “ (1) the existence of an enforceabl e contract, (2) nonperformance amounting to a breach of the contract, and (3) damages- 7

-

caused by the breach of the contract. ” ARC LifeMed, Inc. v. AMC

- Tennessee, Inc. , 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005).

National College filed a properly supported mot ion for su mmary judgment to
establish that Plaintiff ‟ s claimed damages are impermissibly speculative, and even if

Plaintiff ‟ s claimed damages had been less speculative, assuming a contractual relationship existed between Plaintiff and National College, and assuming National College breached that contract, National College ‟ s alleged acts or omission were not the proximate cause of any damages Plaintiff may have incurred.

When a motion for summary judgment is properly supported, “[a] ny party opposing the mo tion for summary judgment must . . . serve and file a response to each fact set forth by the movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undisputed for purposes of ruling on the motion for summary judgment only, o r (iii) demonstrating that the fact is disputed ,” and “ [e]ach disputed fact must be supported by specific citation to the record

. ” Id . (emphasis added). T he “ adverse party may not rest upon the mere allegations or denials of the adverse party ‟ s pleading, but his or her response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. ” Tenn. R. Civ. P. 56.06.

Plaintiff filed a response opposing summary judgment, however, she faile d to dispute the facts relied upon by Defendants as Tenn. R. Civ. P. 56.03 requires. Moreover, she failed to identify e vidence establishing material factual disputes that were overlooked or ignored by the moving party , to produc e additional evidence establ ishing the existence of a genuine issue for trial

, or explain the necessity for further discovery as permitted by

Tenn. R. Civ. P. Rule 56.06. See M artin , 271 S.W.3d at 84 ; see also McCarley , 960

S.W.2d at 588 . Instead, Plaintiff merely relied upon the all egations in the Complaint

. Ac cordingly , all of the facts supporting Defendant s‟ motion for summary judgment remain undisputed. See Tenn. R. Civ. P. 56.06.

Because the material facts we re undisputed, the issue for th e trial court was to
consider whether D efendant s w ere entitled to summary judgment, as a matter of law, as
to Plaintiff‟s claim for breach of contract. See Martin v. Norfolk Southern Ry. Co.

, 271 S.W.3d 76, 84 (Tenn. 2008); Hunter v. Brown , 955 S.W.2d 49, 50

- 51 (Tenn. 1977). Based upon the undisputed facts, the trial court found that National College negated two of the three essential elements of Plaintiff‟s breach of contract claim; specifically, the essential elements of breach and damages.

A. D AMAGES

i. Uncertain, Contingent, or Speculative Damages- 8

-

The trial court found that Plaintiff ‟s claimed damages

, the “expected value of her chosen course of studies,” was impermissibly speculative and uncertain because it was undisputed that, as a part of Plaintiff‟s alleged contract with Na tional College, she acknowledged that she was not guaranteed a job as a medical assistant and P laintiff conceded that, even if she had obtained a degree in her chosen course of study at National College, she had been given no assurance or promise by Nation al College of finding

work in that fi e ld.

In making its ruling that Plaintiff‟s claimed damages were impermissibly speculative, as a matter of law, the trial court found the facts of Plaintiff‟s case were consistent with th ose in Canady v. Meharry Medica l College , 811 S.W.2d 902 (Tenn. Ct. App. 1991).

In Canady , the plaintiff, a surgical resident at Meharry Medical College, had a residency/employment contract with Meharry that provided for certain procedures to be followed to address complaints as to th e plaintiff‟s performance and the termination of his residency. Id. at 903

- 05. After receiving written complaints as to the plaintiff‟s performance, Meharry did not renew the plaintiff‟s contract, and his residency was

terminated. Id . 904

- 05. The plaintiff filed suit against Meharry under a breach of contract theory alleging that he was not afforded the hearing procedures under the contract and sought damages equal to the value of “a successful and profitable specialized surgical practice.” Id . at 906.

Th e trial court determined that, although Meharry breached its contract with the plaintiff by failure to strictly comply with the contract in its conduct of hearings regarding complaints as to the plaintiff‟s performance, or regarding the plaintiff‟s grievan ce, the plaintiff‟s damages were impermissibly speculative and uncertain. Id . at 905. This court agreed stating:

Plaintiff conceives

. . . that he has a right of action for the failure of Meharry to contract with him for an additional year of residency

. . . which

would have enabled him to pursue further training in a medical specialty which would have produced for him a fabulous income, and that he should be compensated in damages for the inability to realize his hopes for the fabulous income. Plaintiff has no such right of action.

*** The damages claimed by plaintiff are based upon the theory that, if Meharry had meticulously followed its grievance procedure, he would have been successful in his defense against charges and in prosecution of his complain t; and that as a result of such success, he would have been reappointed for an additional year; that, at the conclusion of that year, his services would have received approval and certification; that plaintiff- 9

-

would thereby have attained admission to a fur ther specialized residency which he would have successfully completed; and that he thereafter would have engaged in a successful and profitable specialized surgical practice.

This Court agrees . . . that the proximate relationship between the irregulariti es of procedure and the failure of plaintiff to realize his dream is too speculative and subject to too many future variables to show a proximate causal relationship between the irregularities and the claimed injury

.

Id. at 906

- 07 (emphasis added).

Turn ing the present case, National College contends that the facts in the present case are analogous to those of Canady , and, thus, necessitates the same outcome. Further, National College asserts that Plaintiff has repeatedly failed to place a specific and

as certainable value on her alleged contract damages. Plaintiff , however, contends the facts of her case are distinguishable from those of Canady , and that the same type of uncertainty does not exist in her situation. Plaintiff further contends her damages ar e not speculative because the value of a medical assistant degree would “simply be the

estimated enhanced income that she could earn and the enhanced self

- esteem that a person attempting to become a medical professional gains by getting this degree.”

“Damages in breach of contract cases are nothing more than payment in money for actual losses caused by the breach of contract.” Custom Built Homes v. G.S. Hinsen Co.

, No. 01A01

- 9511

- CV

- 00513, 1998 WL 960287, at *4 (Tenn. Ct. App. Feb. 6, 1998). Accordingl y, “[a]n injured party is only entitled to be put in the same position he would

have been in had the contract been performed , and he should not profit by the defendant‟s
breach.” Hennessee v. Wood Grp. Enterprises, Inc. , 816 S.W.2d 35, 37 (Tenn. Ct. App.

1 991) (citations omitted) (emphasis added) . “The party seeking damages has the burden of proving them.” Overstreet v. Shoney ’ s, Inc. , 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999) (citing Inman , 634 S.W.2d at 272). “ Without proof of damages, there can be no award of damages.” BancorpSouth Bank, Inc. v. Hatchel , 223 S.W.3d 223, 229 (Tenn. Ct. App. 2006) (quoting Inman v. Union Planters Nat ’ l Bank , 634 S.W.2d 270, 272 (Tenn. Ct. App. 1982). However, parties are not entitled to recover uncertain, contingent, or

specu lative damages. See Moore Constr. Co. v. Clarksville Dep ’ t of Elec. , 707 S.W.2d 1, 15 (Tenn. Ct. App. 1985); Maple Manor Hotel, Inc. v. Metro

. Go v’t of Nashville and

Davidson C

nty

. , 543 S.W.2d 593, 599 (Tenn. Ct. App. 1975).

Although damages do not need to be proven with mathematical certainty, “[d]amages will be considered uncertain or speculative when their existence is uncertain

, or when the proof is insufficient to enable a trier of fact to make a fair and reasonable

asses sment of damages.” Custom Build Homes , 1998 WL 960287, at *4 (citing Wilson v.- 10

-

Farmers Chem. Ass’ n, Inc. , 444 S.W.2d 185, 189 (Tenn. 1969)) (internal citations omitted) (emphasis added)

.

Plaintiff ‟s alleged damages are based upon the theory that, if Nati onal College had

not terminated her enrollment in Term 107, she would have completed Term 107 and received a passing grade in each course; then, Plaintiff would have enrolled in all remaining courses required to obtain a medical assistant degree and receiv ed a passing grade in each course; and, as a result of the successful completion of all her courses, she would have obtained a medical assistant degree; and with said degree, Plaintiff would have obtained employment as a medical assistant that would provid e her enhanced

income. Nevertheless, it remains uncertain whether Plaintiff would have obtained employment as a medical assistant but for being removed from Term 107. In fact, it

remains uncertain whether she would have obtained a medical assistant degree

. This is due, in part, to the fact that she returned to school but failed a course during Term 113

.

Moreover, as a matter of contract, Plaintiff a dmitted tha t she had been given no assurance or promise by National College of finding work in that field an d she was not guaranteed employment as a medical assistant even if she had obtained a degree in her chosen course of study at National College. Further, although Plaintiff assert ed that there

is an “ intrinsic value to the medical assist degree that National College denied her, that

transcends the actual additional income that it would have brought her,” Plaintiff presented no evidence to support this assertion

.

The foregoing considered, we agree with the trial court that Plaintiff ‟ s claimed damages of the “ expected value of her chosen course of studies ” are uncertain and impermissibly speculative as a matter of law. See Canady , 811 S.W.2d at 907.

ii. Damages Caused by the Breach

The trial court additionally found that Plaintiff could not prove tha t she sustained damages as a result of National College‟s alleged breach.

It is undisputed that after Plaintiff‟s disenrollment in Term 107, she returned to classes at National College for two additional terms, and then voluntarily withdrew after

receivin g a failing grade. Significantly, the record reveals that no action or inaction on the part of National College is preventing Plaintiff from completing “her chosen course of studies” at National College and reaching her goal of obtaining a medical assistan t degree.

We acknowledge that Plaintiff alleges “ she was either unable to or National College made it too hard for her to ” remain in the negative atmosphere caused by National College ‟ s alleged breach ; t his unsupported alleg ation, however, is not evidence.- 11

-

Accordingly, Plaintiff failed to present any evidence to rebut that her claimed damages were caused by her voluntary withdrawal from National College

.

Considering the evidence in the light most favorable to Plaintiff and resolving all

inference s in her favor as summary judgment requires, Martin , 271 S.W.3d at 84 , we have determined the undisputed facts and conclusions permit a reasonable person to reach only one conclusion, the alleged breach, that being the cancellation of her enrollment in

Ter m 107, is not the cause of the damages claimed by Plaintiff.

B. B REACH

The trial court further found that National College negated a second essential

element of Plaintiff ‟ s breach of contract claim, that being that Nation al College breached

the contract. However, National College ‟ s motion for summary judgment did not raise any issue regarding the alleged breach, other than to provide that National College did not concede that there was a breach, but assuming there was a breach, Plaintiff could not
prove t he element of damages. Since this issue was not raised, Plaintiff ‟s obligation to respond to the non

- issue was never triggered. See Elliot v. Life of the S. Ins. Co. , 296 S.W.3d 64, 71 (Tenn. Ct. App. 2008). Moreover, the issue was not before the trial cou rt; accordingly, the court should not have granted National College summary judgment on the issue of breach, as distinguished from speculative damages. Nevertheless, since we have affirmed the summary dismissal of the contract claim on the basis that the c laimed damages were speculative, this ruling constitutes harmless error.

For the foregoing reasons, we affirm the summary dismissal of Plaintiff‟s breach

of contract claim. We will now turn to the dismissal of Plaintiffs claims for TCPA and

IIED.

III

. T ENN

. R. C IV

. P. 12.02(6)

– F AILURE TO S TATE A C LAIM

Plaintiff ‟ s claims against Defendants under TCPA and IIED were dismissed for failure to state a claim upon which relief can be granted, pursuant to Tennessee R ule of Civil Procedure 12.02(6).

The standards by which Tennessee courts are to assess a Rule 12.02(6) motion to dismiss are well established. As our Supreme Court stated in Webb v. Nashville Area Habitat for Humanity, Inc. , 346 S.W.3d 422, 426 (Tenn. 2011), “ [a] Rule 12.02(6)

motion chal lenges only the legal sufficiency of the complaint, not the strength of the plaintiff ‟ s proof or evidence. ” “ The resolution of a 12.02(6) motion to dismiss is determined by an examination of the pleadings alone. ” Id. (citations omitted). By filing a

motion to dismiss, the defendant “ admits the truth of all of the relevant and material allegations contained in the complaint, but . . . asserts that the allegations fail to establish

a cause of action. ” Id. (citations omitted).- 12

-

When a complaint is challenged b y a Rule 12.02(6) motion, the complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his or her claim that would warrant relief. Doe v. Sundquist , 2 S.W.3d 919, 922 (Tenn. 1999) (citing Riggs v. Burson , 941 S.W.2d 44, 47 (Tenn. 1997)). Making such a determination is a question of law. Our review of a trial court ‟ s determinations on issues of law is de novo, with no presumption of correctness. Id. (citing Stein v. Davidson H otel Co. , 945 S.W.2d 714, 716 (Tenn.1997)).

A

. I NTENTIONAL I NFLICTION OF E MOTIONAL D ISTRESS

The elements of a claim for intentional infliction of emotional distress are (1) the conduct about which the plaintiff complains must be intentional or reckless, (2) the conduct must be so outrageous that it is not tolerated by civilized society, and (3) the conduct about which the plaintiff complains must result in serious mental injury. Rogers
v. Louisville Land Co. , 367 S.W.3d 196, 205 (Tenn. 2012); Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997).

Our Supreme Court has held that it is “ not an easy burden to meet the essential elements of outrageous conduct and „ has adopted and applied the high threshold standard described in the Restatement (Second) of Tort s. ‟” Lane v. Becker , 334 S.W.3d 756, 762

- 63 (Tenn. Ct. App. 2010) (quoting Bain

, 936 S.W.2d at 622 ). The standard described in Restatement (Second) of Torts states in pertinent part:

The cases thus far decided have found liability only where the defendant ‟ s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he intended to inflict emotional distress, or even that his conduct has been characterized by “ malice

, ” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree as to go beyond all bounds of decency, and t o be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “ Out rageous! ”

Bain , 936 S.W.2d at 622 (quoting Restatement (Second) of Torts § 46 comment d (1965) ).

Moreover, outrageous conduct does not include “ mere insults, indignities, threats, annoyances, petty oppression or other trivialities. ” Levy v. Franks , 159 S .W.3d 66, 83 (Tenn. Ct. App. 2004); Arnett v. Domino ’ s Pizza I, LLC , 124 S.W.3d 529, 539 (Tenn. Ct.- 13

-

App. 2003) (quoting Bain , 936 S.W.2d at 622). A plaintiff seeking damages for

intentional infliction of emotional distress must meet an “ exacting standard. ” Miller v.

Willbanks , 8 S.W.3d 607, 614 (Tenn. 1999). “ Recovery for intentional infliction of emotional distress is limited to mental injury which is so severe that no reasonable person would be expected to endure it. ” Arnett , 124 S.W.3d at 540.9

It is t he trial court‟s determination, in the first instance, as to whether the defendant‟s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Lane , 334 S.W.3d 756, 763 (Tenn. Ct. App. 2010) (citing Restatement (Second) of Tort s § 46, cmt. h (1965) )

. “Thus, the trial court may reasonably dismiss this legal theory as a matter of law.” Id

. However, where reasonable persons may differ, it is for the jury to determine whether, in the particular case, the conduct has been sufficientl y extreme and out rageous to result in liability. Id

.

Plaintiff relies upon the following allegations in the Complain t to support her

claim for IIED.

a) A college director arbitrarily (i.e., without being compelled by regulation or protocol) terminating th e important, valuable, and irreplaceable vocational education of an industrious 59

- year

- old woman because she had not provided the college with her GED transcript; b) when the woman had provided her GED diploma card; c) when it was really the college ‟ s responsib ility to provide the GED transcript; d) when the college had not given the woman sufficient warning that she must provide the GED transcript or be terminated; and e) the director stubbornly refused to retract the arbitrary termination after the woman provided th e GED transcript on the same day she

was notified of her termination.

Plaintiff alleges the actions of Mr. Denney caused her “continuing great emotional pain and mental distress,” and that she “felt that she could no longer pursue her educational goals be cause she could not continue at National College and she could not start all over somewhere else at her age.” Plaintiff further alleges that Mr. Denney‟s outrageous conduct was done in the scope of his employment with National College, and, therefore, Nati onal College is vicariously liable for Mr. Denney‟s actions.

On this issue, w e find this court‟s decision in Runions v. Tennessee State University , No. M2008

- 01574

- COA

- R3

- CV, 2009 WL 1939816 (Tenn. Ct. App. July 6, 2009) instructive . In Runions , a woman attending a nursing program at Tennessee State University received a grade of D in one of her courses and was dropped from the

program. Id . at *1. She appealed to the provost of the university, who led her to believe- 14

-

that she had been, or would be, reinsta ted. Id . She learned that this was not so when she returned to class and the instructor physically escorted her from the classroom. Id . She brought suit against the university and four of its employees asserting a claim for

intentional i nfliction of emotio nal distress

. Id

. The trial court dismissed her suit for failure to state a claim upon which relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6)

. Id

.

In the appeal that followed, we reasoned:

Ms. Runions is understandably unhappy that she was expelled from TSU ‟ s nursing program and that her goal of earning a nursing degree has been frustrated. However, neither the administrators ‟ decision to expel her from the program because of her grades nor the instructor ‟ s action in physically removing her from the classroom meets the exacting standard for recovery on a claim of outrageous

conduct or intentional infliction of emotional distress.

Runions , 2009 WL 1939816, at *6.

We find Plaintiff‟s claim for IIED comparable to that of the student in R unions

. Plaintiff is understandably unhappy that her enrollment in Term 107 was cancelled, and, thus, briefly delayed her goal of completing her degree at National College. However, Mr. Denney‟s decision to cancel Plaintiff‟s enrollment in a single term because her student file was not in compliance with the THEC, and his decision to affirm the cancellation after Plaintiff provided the GED certificate because the student file was not in compliance prior to the start of the term, do es not rise to the sufficiently outrageous
standard r equired for recovery under IIED, for reasonable minds could not differ that his

conduct was “„atrocious,‟ „utterly intolerable,‟ and „beyond all bounds of decency.‟” Id. at *6 (quoting Goldfarb v. Baker , 547 S.W.2d 568, 569 (Tenn. 1977)).

We, therefore, affirm the dismissal of Plaintiff ‟ s claim for IIED

.

B

. T ENNESSEE C ONSUMER P ROTECTION A CT

Plaintiff ‟ s claim for violation of the TCPA was dismissed upon the finding that the allegations in the C omplaint were insufficient to state a claim that National College had engaged in a dece ptive or unfair trade practice. 7

7 The trial court also found that National College is an educational institution whose activities are not subject to the TCPA and concluded that the C omplaint failed to state a claim for that additional

reason. Because we affirm the dismissal of Plaintiff‟s TCPA claim upon the finding that the allegations in

the C omplaint were insufficient to state a claim that National College engaged in deceptive or unfair trade practice

, it is not necessary for us to examine the propriety of the trial court‟s o ther finding

.- 15

-

The TCPA prohibits “ [u]nfair or deceptive acts or practices affecting the conduct of any trade or commerce

. . . . ” Tenn. Code Ann. § 47

- 18

- 104(a). To recover damages

und er the TCPA, a plaintiff must prove: “ (1) that the defendant engaged in an unfair or deceptive act or practice declared unlawful by the TCPA and (2) that the defendant ‟ s conduct caused an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity or thing of v alue wherever situated[.] ” Tucker v. Sierra

Builders , 180 S.W.3d 109, 115 (Tenn. Ct. App. 2003) (citing Tenn. Code Ann. § 47

- 18

- 109(a)(1)). The key terms “ unfair ” and “ deceptive ” are not defined by the TCPA.

The refore, “ the standards to be used in determining whether a representation is „ unfair ‟ or

„ deceptive ‟ under the TCPA are legal matters to be decided by the courts. ” Id . at 116.

“ However, whether a specific representation in a particular case is „ unfair ‟ or „ deceptive ‟ is a question of fact. ” Id . (citing Davidson v. General Motors Corp. , 786 N.E.2d 845, 851 (Mass. App. Ct. 2003)). This court reviews questions of fact de novo with a presumption

of correctness. Tenn. R. App. P. 13(d); Rawlings , 78 S.W.3d at 296

.

Plaintiff alleges she is entitled to recovery under the TCPA because Defendants‟ actions in arbitrarily termin ating Plaintiff‟s enrollment in Term 107 were “ „ unfair or deceptive acts or practices affecting the conduct of any trade or commerce‟ within t he meaning of the [TCPA] (codified at Tenn. Code Ann. § 47

- 18

- 101 et seq .) and violated

Tenn. Code Ann. § 47

- 18

- 104.”

Although t he C omplaint is replete with particular and specific facts regarding the

actions of Defendants in the cancellation of Plaintiff ‟ s enrollment , it is lacking in the requisite facts regarding the alleged action s of Defendants that pertain to a violation of

the TCPA. Specifically, Plaintiff fails to plead with the required particularity proof substantiating an intention o n the part of Defendants to deceive her or the public

. To the contrary, Pla intiff acknowledges within the C omplaint that Defendants informed her that

the termination of her enrollment was due to her student file not containing an official copy of her GED c ertificate as required by the THEC

. Additionally, the facts, as alleged by Plaintiff, are insufficient to demonstrate that Defendants were engaged in trade or

commerce as defi ned under the TCPA

. Id . (citing Lord v. Meharry Med. Coll. School of Dentistry

, N o. M2004

- 00264

- COA

- R3

- CV , 2005 WL 1950119, at *2 (Tenn. Ct. App. Aug. 12, 2005)).

After separating the factual allegations concerning Defendants from the conclusory allegations, we find that Plaintiff ‟ s vague and conclusory allegations are

insufficient t o sustain a claim under the TCPA

. See McMillin v. Lincoln Mem ’ l Univ. , No.

E2010

- 01190

- COA

- R3

- CV, 2011 WL 1662544, at *8 (Tenn. Ct. App. May 3, 2011).

We, t herefore, affirm the trial cou rt ‟ s dismissal of Plaintiff‟s TCPA claim against

Defendants

.

I V

. M OTION TO A MEND C OMPLAINT- 16

-

Plaintiff ‟ s proposed Third Amended Complaint sought to incorporate recovery for mental damages in her breach of contract claim, due to the dismissal of her IIED claim.

The grant or denial of a motion to amend a pleading is wit hin the sound discretion

of the trial court. See Tenn. R. Civ. Pro. 15.01; Cumulus Broadcasting, Inc. v. Shim , 226 S.W.3d 366, 375 (Tenn. 2007). Although permission to amend should be liberally granted, the decision “ will not be reversed unless abuse of di scretion has been shown. ” Cumulus Broadcasting, Inc. , 226 S.W .3d at 366. Factors the trial court should consider when deciding whether to allow amendments include “ [u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving party , repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility

of amendment. ” Id

. “ A trial court abuses its discretion only when it applies an incorrect legal standard, or reaches a decision which is against logic or reasoning that causes an inj ustice to the party complaining

. ” Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

T he trial court denied Plaintiff ‟ s motion to amend finding that her requested amendment was futile, unt imely, and prejudicial to Defendants. The trial court found that the general rule which provides that there can be no recovery of damages for mental anguish occasioned by breach of contract to be controlling in the case

.

In Tennessee, the general rule is that there can be no recovery of damages for mental anguish occasioned by a breach of contract. See, e.g.

, Johnson v. Women ’ s Hospital , 527 S.W.2d 133, 141 (Tenn. Ct. App. 1975) ( “ The general rule is that punitive damages are not recoverable in a contract action and neither are d amages for mental anguish[.] ” ). The foregoing considered , we find the trial court did not abuse its discretion in denying Plaintiff ‟ s motion to amend her Second Amended Complaint.

I N C ONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal assessed against Mary Kindred.

_ _____________________________ FRANK G. CLEMENT, JR., JUDGE