An unpublished opinion of the North Carolina Court of Appeals does not constitute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