                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                  ANDREW SNYDER, Plaintiff/Appellant,

                                        v.

          ARIZONA BOARD OF REGENTS, Defendant/Appellee.

                             No. 1 CA-CV 14-0536
                              FILED 12-3-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-016957
                The Honorable J. Richard Gama, Judge

                                  AFFIRMED


                                   COUNSEL

Grundy Law Firm, PLLC, Phoenix
By Elvin G. Grundy, III
Counsel for Plaintiff/Appellant

Cohen Kennedy Dowd & Quigley, P.C., Phoenix
By Daniel G. Dowd, Rebecca van Doren
Counsel for Defendant/Appellee
              SNYDER v. ARIZONA BOARD OF REGENTS
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Jon. W. Thompson delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge John C. Gemmill joined.


T H O M P S O N, Judge:

¶1           Appellant Andrew Snyder (Snyder), a former Arizona State
University student, brought various claims against Arizona State
University/the Arizona Board of Regents (collectively, ASU) over what he
alleged was his right to admission into ASU’s WP Carey School of Business.
The trial court granted ASU’s motion for summary judgment, denied
Snyder’s request to amend his complaint, and awarded attorneys’ fees
against Snyder pursuant to Arizona Revised Statutes (A.R.S.) § 12-341.01
(2010). Snyder appeals. Finding no error, we affirm.

                        STANDARD OF REVIEW

¶2            We review the grant of summary judgment de novo. Lewis v.
Debord, 236 Ariz. 57, 59, ¶ 5, 335 P.3d 1136, 1138 (App. 2014). Summary
judgment should be granted “if the facts produced in support of the claim
or defense have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves,
166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). Summary judgment is
appropriate when no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. Johnson v. Earnhardt's
Gilbert Dodge, Inc., 212 Ariz. 381, 385, ¶ 15, 132 P.3d 825, 829 (2006).

¶3            After the moving party comes “forward with evidence it
believes demonstrates the absence of a genuine issue of material fact,” the
burden shifts to the non-moving party, who “must call the court's attention
to evidence overlooked or ignored by the moving party or must explain
why the motion should otherwise be denied.” Nat'l Bank of Ariz. v.
Thruston, 218 Ariz. 112, 115, 119, ¶¶ 14, 26, 180 P.3d 977, 980, 984 (App.
2008); Ariz. R. Civ. P. 56(a) (Supp. 2013).

¶4             The party opposing summary judgment ”shall file” a
statement of the facts in dispute which establish genuine issues of material
fact. Ariz. R. Civ. P. 56(c)(3). The party opposing summary judgment “may



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               SNYDER v. ARIZONA BOARD OF REGENTS
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not rely merely on allegations or denials in its own pleading; rather, its
response must, by affidavits or as otherwise provided . . . set forth specific
facts showing a genuine issue for trial. If the opposing party does not so
respond, summary judgment, if appropriate, shall be entered against that
party.” Ariz. R. Civ. P. 56(e)(4); see, e.g., Florez v. Sargeant, 185 Ariz. 521, 526,
917 P.2d 250, 255 (1996) (stating self-serving assertions which are not
supported by the factual record are insufficient to defeat a motion for
summary judgment); Margaret H. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 101,
104, ¶ 10, 148 P.3d 1174, 1177 (App. 2006).

                                 DISCUSSION

        A.     Summary Judgment

¶5             Although Snyder filed a response to ASU’s motion for
summary judgment, he did not file a separate statement of facts, submit an
affidavit, or dispute key facts at issue in this case as is required by Arizona
Rule of Civil Procedure 56(e)(4).

¶6            These basic facts are not merely undisputed on summary
judgment, but were testified to as part of Snyder’s deposition of July 12,
2013. Snyder entered ASU as a pre-business exploratory student in the fall
of 2007. 1 He was not granted admission directly into the WP Carey
Bachelor of Science degree program. In fall 2007, WP Carey revised the
admission standards for the Bachelor of Science program.2          All pre-
business students were notified by email of the changes on October 19, 2007.
Thereafter, a student could be admitted by direct admission, for students
meeting both the GPA and SAT/ACT score standards, or by a discretionary
process called Portfolio Review. The email advised students that



1Snyder graduated from high school in the spring of 2007 with a 2.79 GPA,
an SAT score of 890, and an ACT score of 22.

2  The 2007-2008 ASU General Catalogue provided that “[c]ourses,
programs, and requirements described in the catalog may be suspended,
deleted, restricted, supplemented, or changed in any other manner, at any
time, at the sole discretion of the university and the Arizona Board of
Regents. The catalog does not establish a contractual relationship, but
summarizes the total requirements the student must currently meet before
qualifying for a faculty recommendation to the Arizona Board of Regents
to award a degree.” In his deposition Snyder admitted being
contemporaneously aware of the changes outlined in the catalog.


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              SNYDER v. ARIZONA BOARD OF REGENTS
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preference would be given to Portfolio Review students with a 3.0
cumulative GPA.

¶7            Snyder admitted, and the trial court found, that as of October
2007, Snyder did not meet the standard for direct admission into the WP
Carey Business program. Snyder admitted, and the trial court found, that
he did not have a 3.0 GPA at the time he submitted his portfolio for review.
Snyder was aware that there was no guarantee of admission via portfolio.
He was denied discretionary admission to the Bachelor of Science program.
Snyder testified that the letter denying him discretionary admission into the
program was clear and “unequivocal.”

¶8           After he was denied discretionary admission, Snyder had a
conversation with an ASU employee. Specifically, on March 4, 2010,
Snyder, Snyder’s father, and Tim Desch, WP Carey’s Assistant Dean for
Undergraduate Admissions, (Desch) met to discuss Snyder’s future with
WP Carey. One of the key items discussed at the meeting was Snyder’s
GPA. At the time Snyder submitted his portfolio his GPA was 2.86, below
the preferred 3.00 for discretionary admission into the Bachelor of Science
program. The three men discussed the fact that if Snyder raised his GPA
Snyder could submit a second, and final, request for discretionary
admission.3

¶9            As WP Carey had recently added a less stringent Bachelor of
Arts degree as an alternative for students not admitted into the Bachelor of
Science program, at that meeting Desch arranged for an override into the
Bachelor of Arts program as an accommodation to Snyder. Desch had the
authority to grant an override into the Bachelor of Arts program, but not
the Bachelor of Sciences program. It is undisputed that after the meeting
with Desch, Snyder sent Desch an email stating:

      Thank you for clearing that up today. I apprec[i]ate your
      time. I believe the BA in comm wi[ll] be ok for now. I just
      wanted to make sure I can continue to take classes this
      summer and next fall as I work on my ACT and GPA to help


3It is also undisputed that they discussed that a short-lived and inadvertent
“banner” was displayed on Snyder’s ASU web page welcoming him to the
WP Carey School of Business, before he received the letter denying him
admission.




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                SNYDER v. ARIZONA BOARD OF REGENTS
                          Decision of the Court

         myself move forward. I still am working for the Management
         degree so when it is time to switch degrees I will probably be
         coming to you for advice.

¶10           Snyder began asserting a belief that if he raised his GPA to 3.0
that Desch would give him an override into the Bachelor of Science
program. In his response to ASU’s motion for summary judgment, Snyder
asserted his promissory estoppel claim “stem[s] from Snyder’s reliance on
the oral promises made by [] Desch that should Snyder raise his GPA to 3.0
Snyder could possibly gain direct access (i.e. “automatic”) to the
Management program via an administrative override.”

¶11            Yet, Snyder admits in his deposition that Desch neither
explicitly said he would or could grant such an override.4 What is clear
from both Desch’s affidavit and Snyder’s deposition, is there were
statements made during the meeting that once Snyder raised his GPA they
could have a “meeting” to “talk about” and “discuss” Snyder getting into
the Bachelor of Science program. The following are representative
statements Snyder made during his deposition:

         Q. So if I understand what you’re saying, Mr. Desch said that
         if you raise your grade point to a 3.0, you could come back
         and talk to him about being admitted into the management
         program within the W. P. Carey School of Business?
         A. Tim Desch promised my father and I if I raised my GPA,
         that he would honor a meeting to discuss how I could get into
         management.
         Q. And what was your understanding as to how you could
         get into management if you did achieve a 3.0?
         A. Desch gave us three options: That I could change my ACT
         score, I could raise it, and that would automatically allow me
         into the program; I could get the 3.0, I could raise my GPA,
         and then that would allow me to do the admissions portfolio
         again and speak to them; or I could just continue with my
         bachelor of arts and graduate.
         …
         Q. So is it your testimony, Mr. Snyder, that Mr. Desch
         committed to you that if you raised your college GPA to a 3.0
         that you would be admitted into the management program?
         A. That they would review it; and, yes.
          Q. That they would review what?

4   In fact, Desch did not have the authority to grant such an override.


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              SNYDER v. ARIZONA BOARD OF REGENTS
                        Decision of the Court

       A. My transcript.
       Q. And then automatically admit you?
       A. No, that they would just discuss it.
      …
      Q. With no promises one way or the other; right?
      A. They promised that they would review it.
      …
      Q. There were no promises by Mr. Desch that if you achieved
      the 3.0 that you were guaranteed admission into the
      management program?
      A. Correct, it was never a guarantee.
      …
      Q. Did you have an expectation that if you had a 3.0 grade
      point average, that Mr. Desch would automatically put you
      into the BS management program?
      A. No.
      Q. You would talk to him about it?
      A. Correct.

¶12          After the March 2010 meeting with Desch, Snyder admits no
person or document from ASU ever strayed from saying there were only
two ways into the program: direct admission and the Portfolio Review. Not
one discussion or document mentioned the possibility of an override
admission into the Bachelor of Science program–not even communications
from Desch himself.5 It is undisputed that Desch had advised Snyder he


5Q. WeIl, as you sit here today, you can't identify a specific communication
you had with someone from ASU where they repeated the verbal
agreement you contend was made with Mr. Desch in March of 2010;
correct?
A. Not on written documents, no.
Q. Not in an email? No?
A. No.
Q. Not in a letter?
A. No.
Q. Not in a conversation?
A. No.
…
Q. In fact, there's not an email or a piece of paper generated by anyone from
May of 2004 --excuse me-- March of 2010 to May of 2012 that discusses the
agreement that you assert that Mr. Desch made with you; correct?



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              SNYDER v. ARIZONA BOARD OF REGENTS
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could still submit a second portfolio for review, and that while as of May 9,
2012, Snyder was still planning on submitting a second portfolio, he never
did.

¶13           Despite the fact that on appeal Snyder seeks to claim an oral
contract based on his conversation with Desch, his amended complaint
asserted contractual claims based on his compliance with ASU’s
requirements for admission. The complaint alleged that Snyder had been
denied admission without explanation. “To state a claim in contract the
complaint must allege an agreement, the right to seek relief, and breach by
the defendant.” Commercial Cornice & Millwork, Inc. v. Camel Const. Servs.
Corp., 154 Ariz. 34, 38, 739 P.2d 1351, 1355 (App. 1987); Bike Fashion Corp. v.
Kramer, 202 Ariz. 420, 423, ¶ 14, 46 P.3d 431, 434 (App. 2002) (holding that
implied covenant can be breached “both by exercising express discretion in
a way inconsistent with a party’s reasonable expectations and by acting in
ways not expressly excluded by the contract’s terms but which nevertheless
bear adversely on the party’s reasonably expected benefits of the bargain”).
The trial court concluded, as a matter of law, because Snyder did not
qualify for direct admission his complaint could not support a breach of
contract claim or a breach of the implied covenant of good faith and fair
dealing. We agree.

¶14            As to the issue of an alleged oral contract, which Snyder
raised for the first time in the proposed second amended complaint, Snyder
cannot argue the merits of an issue on appeal that are not comprehended
within his own pleadings. See Black v. Perkins, 163 Ariz. 292, 293, 787 P.2d
1088, 1089 (App. 1989) (“When a party by pleading or stipulation has
agreed to a certain set of facts, he may not contradict them. This is a rule
not of evidence but of pleading. When the parties have framed the issues
for resolution, they may not change them absent an amendment of the
pleadings or trial of the issue by consent. A party so bound is often said to
have made a judicial admission. “). (Citations omitted.)



A. I don't recall all the emails.
Q. Well, can you identify one where either you or someone from ASU
articulated the agreement that you contend Mr. Desch made with you?
A. Not off the top of my head.

Snyder admitted that all communications with ASU after March 4, 2010
were inconsistent with what he asserts he was told by Desch, even those
communications from Desch himself.



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              SNYDER v. ARIZONA BOARD OF REGENTS
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¶15           Even if it could be said that the amended complaint
contemplated an oral contract, summary judgment was appropriate.
Snyder repeatedly admitted that Desch’s statement to him was that if
Snyder brought his GPA up to a 3.0, he could have a discussion with Desch
about possible admission to the program. Snyder brought his GPA up to a
3.0 and Desch and he discussed possible admission. Any such oral contract
had been fulfilled.

¶16            Promissory estoppel requires a promise to do something in
the future that the promisee reasonably relied on to his detriment. Waugh
v. Lennard, 69 Ariz. 214, 224, 211 P.2d 806, 816 (1949); Sch. Dist. No. 69 of
Maricopa Cty v. Altherr, 10 Ariz.App. 333, 339, 458 P.2d 537, 544 (1969).
Agreeing to have a meeting about admission does not equate to promising
automatic admission into the Bachelor of Science program. We agree with
the trial court that Snyder failed to demonstrate the existence of a genuine
issue of material fact with respect to his estoppel claim and summary
judgment was appropriate. See Ariz. R. Civ. P. 56(c).

     B. Motion to Amend

¶17            Next, we assess the denial of Snyder’s motion to amend his
complaint pursuant to Arizona Rule of Civil Procedure 15. “We review a
trial court's denial of a motion to amend a complaint for an abuse of
discretion.” Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231
Ariz. 517, 519, ¶ 4, 297 P.3d. 923, 925 (App. 2013); Hall v. Romero, 141 Ariz.
120, 124, 685 P.2d 757, 761 (App. 1984) (finding no abuse of discretion when
trial court denied plaintiffs' motion to amend after summary judgment had
been entered against them).

¶18           The trial court concluded that granting leave to amend at the
summary judgment stage would prejudice ASU and be “futile on these
established facts.” We agree with the trial court that allegations in the
proposed second amended complaint directly contradicted undisputed
evidence in the record. The trial court did not err when it denied Snyder’s
motion. Moreover, we find no abuse of discretion in denying the motion to
amend as being untimely. Snyder’s argument that the delay was brought
about by his repeated changes of counsel and facts surfacing at his
deposition are insufficient to show timeliness.

        C. Attorneys’ Fees Below

¶19          Finally, Snyder argues on appeal that the trial court erred by
awarding attorneys’ fees to ASU. The trial court awarded ASU $45,000 in
attorneys’ fees pursuant to A.R.S. § 12-341.01. We review awards of


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attorneys’ fees for an abuse of discretion. In re Indenture of Trust Dated Jan.
13, 1964, 235 Ariz. 40, 51, ¶ 41, 326 P.3d 307, 318 (App. 2014). We cannot
find error in the trial court’s award of fees against Snyder.

                     ATTORNEYS’ FEES ON APPEAL

¶20         ASU requests attorneys’ fees on appeal pursuant to A.R.S. §
12-341.01. We will award ASU taxable costs and reasonable attorneys’ fees,
in an amount to be determined, after compliance with ARCAP 21.

                               CONCLUSION

¶21           The trial court is affirmed.




                                   :ama




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