# Mary Kindred v. National College of Business and Technology, Inc.

> Court of Appeals of Tennessee · March 19, 2015

URL: https://www.frixlaw.com/law-library/cases/2787763

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** March 19, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge Frank G. Clement, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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. W2014-00413-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. Thereafter, Defendants moved to summarily dismiss Plaintiff‟s
remaining claim for breach of contract. The trial court found that Defendants negated two
essential elements of Plaintiff‟s breach of contract claim, namely, breach and damages,
and summarily dismissed that claim. We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which J.
STEVEN STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, 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 appellees, National College of Business and Technology and Noel
Denny.
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 Plaintiff enrolled, the Tennessee Higher
Education 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 Development (“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 transcript, 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 weeks 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 alleges 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 GED 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 that 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 required 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.

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Term 107 began on August 30, 2010, and Plaintiff attended classes for
approximately one week before Noel Denney, the director 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 the 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 of 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 the 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 compliance issue and returned to Term 107 classes. 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 were 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 and 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, approximately two 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 could 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.

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her enrollment [in Term 107].” Nevertheless, according to Plaintiff, she continued to
persevere in suppressing these feelings and paid the balance.
Plaintiff attended two additional 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, degrading, 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 National College gave her” in one of her
courses. Plaintiff perceives “the failing grade and National College‟s review of the grade
to be a continuation of [Defendants‟] abusive and degrading treatment.” Plaintiff alleges
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 alleges that this forced her to cease her attendance at National 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. With the benefit of
counsel, Plaintiff filed a Second Amended Complaint (the “Complaint”), the operative
pleading in this appeal, on June 21, 2013. Plaintiff alleges a cause of action under breach
of contract against National College; intentional infliction of emotional distress (“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 Complaint for failure to state a claim upon
which relief can be granted pursuant to Tennessee 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 that, per the allegations in the Complaint, National College had not engaged
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
Defendants 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 Complaint, Plaintiff failed to state a claim for IIED. Specifically, the
trial court stated that “[f]or example, the Complaint alleges that, 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, the
trial court dismissed Plaintiff‟s claim for recovery under 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

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the Complaint to add recovery for emotional distress damages under breach of contract.
Both motions were denied.
Plaintiff‟s claim for breach of contract alleges 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, due to National College‟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. First, with respect to Plaintiff‟s breach of contract claim
against Mr. Denney, Defendants assert that, per the allegations of the Complaint, Plaintiff
only alleged a cause of action against National College and not Mr. Denney in his
individual capacity; thus, Plaintiff had 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 Plaintiff‟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 Plaintiff and Mr. Denney
individually.6 The trial court also summarily dismissed Plaintiff‟s breach 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, we
consolidate and restate the issues as follows:

1. Whether the trial court erred in summarily dismissing Plaintiff‟s breach of contract
claim.

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

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2. Whether the trial court erred in dismissing Plaintiff‟s claim of intentional infliction
of emotional distress.
3. Whether the trial court 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 amended complaint to include a claim for emotional 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.

ANALYSIS

I. SUMMARY JUDGMENT

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 resolves 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 establish 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. BREACH OF CONTRACT

Plaintiff claims she has an enforceable contract with National College that
provides her access 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 enforceable
contract, (2) nonperformance amounting to a breach of the contract, and (3) damages

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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 motion for summary 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 motion 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, or (iii) demonstrating that the fact is disputed,” and “[e]ach disputed fact must be
supported by specific citation to the record.” Id. (emphasis added). The “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 failed to
dispute the facts relied upon by Defendants as Tenn. R. Civ. P. 56.03 requires. Moreover,
she failed to identify evidence establishing material factual disputes that were overlooked
or ignored by the moving party, to produce additional evidence establishing 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 Martin, 271 S.W.3d at 84; see also McCarley, 960
S.W.2d at 588. Instead, Plaintiff merely relied upon the allegations in the Complaint.
Accordingly, all of the facts supporting Defendants‟ motion for summary judgment
remain undisputed. See Tenn. R. Civ. P. 56.06.

Because the material facts were undisputed, the issue for the trial court was to
consider whether Defendants were 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. DAMAGES

i. Uncertain, Contingent, or Speculative Damages

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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 National College, she
acknowledged that she was not guaranteed a job as a medical assistant and Plaintiff
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 National College of finding
work in that field.

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 those in Canady v. Meharry Medical 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 the 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.

The 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
grievance, 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
complaint; 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

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would thereby have attained admission to a further 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
irregularities 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).

Turning 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
ascertainable 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 are 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).
Accordingly, “[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.
1991) (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
speculative 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. Gov’t of Nashville and
Davidson Cnty., 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
assessment of damages.” Custom Build Homes, 1998 WL 960287, at *4 (citing Wilson v.

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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 National 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 received 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 provide 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 admitted that she had been given no
assurance or promise by National College of finding work in that field and 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 asserted 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 that 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
receiving 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 assistant
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; this unsupported allegation, however, is not evidence.

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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
inferences 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
Term 107, is not the cause of the damages claimed by Plaintiff.

B. BREACH

The trial court further found that National College negated a second essential
element of Plaintiff‟s breach of contract claim, that being that National 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 the 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 court;
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 claimed
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. TENN. R. CIV. P. 12.02(6) – FAILURE TO STATE A CLAIM

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 Rule 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 challenges 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).

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When a complaint is challenged by 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 Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997)).

A. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

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 Torts.‟” 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 to 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, “Outrageous!”

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.

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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 the 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 Torts § 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 sufficiently
extreme and outrageous to result in liability. Id.

Plaintiff relies upon the following allegations in the Complaint to support her
claim for IIED.

a) A college director arbitrarily (i.e., without being compelled by
regulation or protocol) terminating the 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 responsibility 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 the 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 because 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, National College is vicariously liable for Mr. Denney‟s actions.

On this issue, we 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

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that she had been, or would be, reinstated. 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 infliction of emotional 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 Runions.
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, does not rise to the sufficiently outrageous
standard required 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. TENNESSEE CONSUMER PROTECTION ACT

Plaintiff‟s claim for violation of the TCPA was dismissed upon the finding that the
allegations in the Complaint were insufficient to state a claim that National College had
engaged in a deceptive 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 Complaint 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 Complaint 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 other finding.

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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
under 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 value 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.
Therefore, “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 terminating Plaintiff‟s enrollment in Term 107 were “„unfair or
deceptive acts or practices affecting the conduct of any trade or commerce‟ within the
meaning of the [TCPA] (codified at Tenn. Code Ann. § 47-18-101 et seq.) and violated
Tenn. Code Ann. § 47-18-104.”

Although the Complaint 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 actions of Defendants that pertain to a violation of
the TCPA. Specifically, Plaintiff fails to plead with the required particularity proof
substantiating an intention on the part of Defendants to deceive her or the public. To the
contrary, Plaintiff acknowledges within the Complaint that Defendants informed her that
the termination of her enrollment was due to her student file not containing an official
copy of her GED certificate 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 defined under the TCPA. Id. (citing Lord v. Meharry Med. Coll. School of
Dentistry, No. 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 to 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, therefore, affirm the trial court‟s dismissal of Plaintiff‟s TCPA claim against
Defendants.

IV. MOTION TO AMEND COMPLAINT

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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 within 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 discretion 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
injustice to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)
(citations omitted).

The trial court denied Plaintiff‟s motion to amend finding that her requested
amendment was futile, untimely, 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 damages 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.

IN CONCLUSION

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2787763. Public record. Not legal advice.