ABSENCE OF DETRIMENTAL RELIANCE EVIDENCE FATAL TO DPTA, MISREPRESENTATION, AND
ESTOPPEL CLAIMS - SUMMARY JUDGMENT FOR DEFENDANT AFFIRMED

Wood v. Texas Chiropractic College (Tex.App.- Houston [1st Dist.] July 24, 2008) (Jennings)
(suit by student against private educational institution, DTPA claim, misrepresentation, no-evidence
summary judgment for defendant school affirmed, no showing of reliance by plaintiff)
AFFIRM TC JUDGMENT: Opinion by Justice Terry Jennings
Before Justices Taft and Jennings, The Honorable Hudson
01-07-00952-CV Kelly Wood v. Texas Chiropractic College
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Jennifer Walker Elrod  

MEMORANDUM OPINION

Appellant, Kelly Wood, challenges the trial court's summary judgment rendered in favor of appellee, Texas
Chiropractic College ("TCC"), in Wood's suit against TCC for a violation of the Texas Deceptive Trade
Practices-Consumer Protection Act ("DTPA"), (1) fraud, negligent misrepresentation, and equitable
estoppel. In her sole issue, Wood contends that the trial court erred in granting TCC summary judgment as
she raised a genuine issue of material fact on the challenged elements of each cause of action.

We affirm.

Procedural Background

In her first amended petition, Wood alleged that, in the fall of 2000, she enrolled at TCC, seeking to obtain
a Doctor of Chiropractic degree. TCC, amongst other requirements, required students to complete ten
trimesters of coursework in order to establish eligibility for graduation. By December of 2003, Wood had
completed ten trimesters of coursework with a cumulative GPA of 3.26 and academic recognition. However,
on December 4, 2003, she took a clinical exit exam, the "Clinical Skill Competency Evaluation" (the
"CSCE"), which was "ostensibly" a requirement for graduation and she "ostensibly" failed. Due to Wood's
failing the CSCE, TCC refused to award Wood its Doctor of Chiropractic degree.

Because TCC refused to award her a degree, Wood sued TCC, alleging that TCC violated the DTPA,
committed fraud and negligent misrepresentation, and should be equitably estopped from refusing to
award her a degree because it misrepresented to her that she had to take and pass the CSCE as a
requirement for graduation. In her petition, Wood did not allege how she specifically relied on any
misrepresentation made by TCC.

In its summary judgment motion, TCC asserted both that no evidence supported Wood's claims that she
relied on any misrepresentations and that it was entitled to summary judgment as a matter of law. See Tex.
R. Civ. P. 166a(c), (i).

Standard of Review

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of
an essential element of the adverse party's cause of action or affirmative defense. Tex. R. Civ. P. 166a(i);
Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence
summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills
Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.-- Dallas 2000, no pet.). Although the
nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine issue
of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); see Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

A no-evidence summary judgment motion may not be properly granted if the nonmovant brings forth more
than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See
Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence "'rises to a level
that would enable reasonable and fair-minded people to differ in their conclusions.'" Merrell Dow Pharms.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d
497, 499 (Tex. 1995)).

When reviewing a no-evidence summary judgment motion, we assume that all evidence favorable to the
nonmovant is true and indulge every reasonable inference and resolve all doubts in favor of the
nonmovant. Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

Because the trial court's order granting TCC's no-evidence summary judgment motion does not specify the
grounds upon which the trial court relied, we must affirm the summary judgment if any of the grounds in the
summary judgment motion are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
872-73 (Tex. 2000).

Summary Judgment

In her sole issue, (2) Wood argues that the trial court erred in granting TCC's no-evidence summary
judgment motion as TCC's refusal to award her a Doctor of Chiropractic degree violated the DTPA,
constituted fraud and negligent misrepresentation, and violated the equitable principle of estoppel
because Wood did not need to take and pass the CSCE as a requirement for graduation.

Wood notes that TCC's "clinic[al] manual" provided that the CSCE "is mandatory for successful completion
of the TCC clinic[al] program," TCC's "Catalogue" provided that "[v]arious qualitative assessments" were
"[g]raduation [r]equirements for the Doctor of Chiropractic [d]egree," and TCC's "Student Handbook"
provided that "[c]ompletion of a clinic[al] exit examination with a passing score will be required for
graduation."

However, Wood asserts that, before taking the CSCE, "TCC informed Ms. Wood that her 'application for
graduation had been approved.'" Also, Dr. Phil Conklin allegedly explained to her that the CSCE "was an
exercise which had no effect on her graduation, going on to say, just before she went in to take the 'exit
exam[,]' to not worry about passing, even students who 'failed' Weiss'[s] test still received their degree."
Wood further opines that, after taking the CSCE, she "was certified by the [c]linic [d]irector to have
completed her internship according to the requirements," and TCC issued an official transcript which
showed that she had "receive[d] her Doctor of Chiropractic [d]egree."

Under section 17.50(a) of the DTPA, a consumer may maintain an action where any of the following
constitute a producing cause of economic damages or damages for mental anguish: (1) the use or
employment by any person of a false, misleading, or deceptive act or practice that is specifically
enumerated under section 17.46(b) of the DTPA and is relied on by a consumer to her detriment, (2)
breach of an express or implied warranty, (3) any unconscionable action or course of action by any
person, or (4) the use or employment by any person of an act or practice in violation of chapter 541 of the
Texas Insurance Code. See Tex. Bus. & Com. Code Ann. § 17.50(a) (Vernon Supp. 2007).

In order to prove fraud, a plaintiff must show that (1) the defendant made a material representation that
was false, (2) the defendant knew the representation was false or made it recklessly as a positive assertion
without any knowledge of its truth, (3) the defendant intended to induce the plaintiff to act upon the
representation, and (4) the plaintiff actually and justifiably relied on the representation, which caused the
injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).

In order to prove negligent misrepresentation, a plaintiff must show that (1) the defendant made a
representation in the course of her business, or in a transaction in which she has a pecuniary interest, (2)
the defendant supplied "false information" for the guidance of others in their business, (3) the defendant
did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the
plaintiff suffered a pecuniary loss by justifiably relying on the representation. Henry Schein, Inc. v.
Stromboe, 102 S.W.3d 675, 686 n.24 (Tex. 2002).

The doctrine of equitable estoppel requires (1) a false representation or concealment of material facts, (2)
made with knowledge, actual or constructive, of those facts, (3) with the intention that it should be acted
on, (4) to a party without knowledge or means of obtaining knowledge of the facts, and (5) who
detrimentally relied on the representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 515-16 (Tex. 1998).

The common element of all of Wood's causes of action is reliance. TCC moved for summary judgment,
asserting that there was no evidence of reliance. Neither in the trial court below nor in her briefing to this
Court has Wood shown how she relied on any of TCC's alleged misrepresentations that she did not have
to take and pass the CSCE as a requirement for graduation. Dr. Conklin's purported statement to her,
before she took the CSCE, simply noted that students who had failed the CSCE did eventually graduate.
Also, the fact that TCC had approved her application for graduation does not show that Wood did not have
to take and pass the CSCE as a requirement for graduation. Moreover, the clinic director's certification that
Wood satisfied the internship requirements and the transcript do not show that the CSCE was not a
requirement for graduation.

Accordingly, we hold that the trial court did not err in granting TCC's no-evidence summary judgment
motion because Wood did not show how she relied on any alleged misrepresentation by TCC.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Hudson. (3)

1. See Tex. Bus. & Com. Code Ann. § 17.41 (Vernon 2002).

2. Although Wood asserted as an issue in her brief that the trial court erred in considering as summary
judgment evidence "testimony from [TCC], while ignoring testimony by Kelly Wood," Wood filed a reply
brief, "remov[ing]" this issue from our consideration on appeal.

3. The Honorable J. Harvey Hudson, retired Justice, Fourteenth Court of Appeals, participating by
assignment.