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.





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