Abazari v. Rosalind Franklin Univ. of Med. & Sci., 2–14–0952.

• Citation: 40 N.E.3d 264
• Decision Date: 29 June 2015
• Docket Number: No. 2–14–0952.,2–14–0952.
• Parties: Armin ABAZARI, Plaintiff–Appellant, v. ROSALIND FRANKLIN UNIVERSITY OF MEDICINE AND SCIENCE, Dr. William M. Scholl College of Podiatric Medicine, and Rosalind Franklin University Health System, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

40 N.E.3d 264

Armin ABAZARI, Plaintiff–Appellant

v.ROSALIND FRANKLIN UNIVERSITY OF MEDICINE AND SCIENCE, Dr. William M. Scholl College of Podiatric Medicine, and Rosalind Franklin University Health System, Defendants–Appellees.

No. 2–14–0952.

Appellate Court of Illinois, Second District.

June 29, 2015.

Rehearing Denied July 24, 2015.

Armin Abazari, of Irvine, California, appellant pro se.

William M. McErlean, Jacob P. Zipfel, and Colleen J. Balek, all of Barnes & Thornburg LLP, of Chicago, for appellees.

OPINION

Presiding Justice SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 After the plaintiff, Armin Abazari, graduated from the Dr. William M. Scholl College of Podiatric Medicine (Scholl College) of the Rosalind Franklin University of Medicine and Science (RFUMS), he was unable to obtain a placement in any of the residency programs to which he applied. Frustrated by the shortage of residency slots available compared to the number of podiatry school graduates, he filed suit against Scholl College, RFUMS, and the Rosalind Franklin University Health System. The circuit court of Lake County dismissed his amended complaint with prejudice pursuant to section 2–615 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615 (West 2012) ) for failure to state a claim. The plaintiff, acting pro se, appeals the dismissal. We affirm the judgment but modify it to reflect that the dismissal of part of count II is without prejudice, and remand.

¶ 2 BACKGROUND

¶ 3 The following facts are drawn primarily from the allegations of the amended complaint which, at this point in the proceedings, must be taken as true unless contradicted by other allegations or by the contents of an exhibit attached to the complaint. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 8–9, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992) ; Farmers Automobile Insurance Ass'n v. Danner, 394 Ill.App.3d 403, 412, 338 Ill.Dec. 527, 924 N.E.2d 1053 (2009). The following is a summary; additional facts are discussed in the context of particular legal arguments.

¶ 4 In 2003, RFUMS applied to the Illinois Board of Higher Education (IBHE) for permission to operate a program (Scholl College) offering the degree of “Doctor of Podiatric Medicine” (DPM). In its description of the proposed program, RFUMS included the statement that “[a]fter graduation Scholl College places its graduates in 24[-] and 36[-]month residency training programs.” The application also stated that Scholl College expected to enroll about 90 students each year, for a total of 360 in the 4–year program. The IBHE approved the application for the DPM program.

¶ 5 The plaintiff alleges that, beginning no later than 2006, there was a nationwide shortage of residency placements for DPM graduates. That is, the schools granting DPM degrees were graduating more students than the number of available residency placements. This shortage was the subject of various resolutions passed by the American Podiatric Medical Association in 2005, 2006, and 2009, calling on the podiatry schools to limit class size to the number of residencies available. Nevertheless, according to the plaintiff, the gap between the number of residencies and the number of graduating students continued to grow because the number of residencies remained constant while the number of graduates increased. The plaintiff alleges that the gap was relatively small in 2009 (the year he enrolled at Scholl College): there were 496 residencies available nationwide and the graduating class of 2010 was 505, a discrepancy of only 9. However, by the 2013 (the year he graduated), there were 687 DPM graduates nationwide, with the result that, by the plaintiff's estimate, 191 graduates would be unable to obtain placements.

¶ 6 In 2008, the plaintiff applied to Scholl College. He was offered admission, and enrolled in the fall of 2009. His class was 103 students. The plaintiff alleges that, in deciding to enroll at Scholl College, he relied on the 2009–10 Scholl College catalog, which included the statement that there was “unprecedented opportunity for new doctors of podiatric medicine.” The catalog did not mention the shortage of available residency placements, and the plaintiff alleges that he could not reasonably have discovered that shortage prior to enrollment.

¶ 7 The plaintiff completed the coursework for his degree and was awarded a DPM degree in June 2013. In addition, he took two board examinations and passed both on the first try. However, he did not obtain a residency placement. Almost all states (46), including Illinois, require DPM graduates to complete a residency before they can be licensed to practice podiatry. Thus, although the plaintiff has earned his DPM degree, he cannot practice podiatric medicine.

¶ 8 The plaintiff is not alone in this predicament. As of April 5, 2013, 110 graduating DPM students nationwide had not obtained residency placements—about 17% of the total DPM graduates. A similar percentage of Scholl College 2013 graduates had not obtained residencies.

¶ 9 After he failed to obtain a residency, the plaintiff contacted various Scholl College officials to complain and seek their help. Scholl College decided to offer DPM graduates who had not received residencies the opportunity to obtain a certificate in health administration—which would require an additional four courses and approximately one more year of study—at no cost. Scholl College also offered “preceptorships” (unpaid teaching assistant positions) to graduates without placements. The stated purpose of both options was to allow the graduates a way to “keep current” with the field while waiting to see if they could obtain placements the following year. Citing his substantial student loans and financial pressure, the plaintiff declined to participate in either option.

¶ 10 In late 2013, assisted by counsel, the plaintiff filed suit against the defendants. The defendants moved to dismiss the complaint pursuant to section 2–615 of the Code (735 ILCS 5/2–615 (West 2012) ). After briefing and oral argument, the trial court dismissed the complaint but allowed the plaintiff to replead. In May 2014, the plaintiff filed a four-count amended complaint. The defendants again moved to dismiss the complaint pursuant to section 2–615. After briefing and argument, the trial court again granted the motion, this time with prejudice. The plaintiff filed a timely notice of appeal.

¶ 11 ANALYSIS

¶ 12 A motion to dismiss brought under section 2–615 of the Code attacks the sufficiency of the complaint, on the basis that, even assuming the allegations of the complaint to be true, the complaint does not state a cause of action that would entitle the plaintiff to relief. 735 ILCS 5/2–615 (West 2012) ; Kolegas, 154 Ill.2d at 8, 180 Ill.Dec. 307, 607 N.E.2d 201.

“In ruling on a section 2–615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom. [Citations.] In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. [Citation.] The question presented by a motion to dismiss a complaint for failure to state a cause of action is whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief. [Citation.]

A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover.” Bryson v. News America Publications, Inc., 174 Ill.2d 77, 86–87, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996).

We review the sufficiency of the complaint de novo. Wallace v. Smyth, 203 Ill.2d 441, 447, 272 Ill.Dec. 146, 786 N.E.2d 980 (2002).

¶ 13 The plaintiff's amended complaint encompasses four claims, which are labeled “fraud,” “fraudulent concealment,” “intentional misrepresentation,” and “negligent misrepresentation.” In order to adequately state a claim, the complaint must allege facts that, if proven, would establish the elements of the claim asserted. Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill.2d 428, 438, 137 Ill.Dec. 635, 546 N.E.2d 580 (1989). When a claim sounds in fraud, a higher degree of specificity is required. Id. at 457, 137 Ill.Dec. 635, 546 N.E.2d 580. “Thus, a plaintiff must * * * plead with sufficient particularity facts establishing the elements of fraud, including what misrepresentations were made, when they were made, who made the misrepresentations and to whom they were made.” Id. We examine each of the plaintiff's claims to see if these standards are met.

¶ 14 Counts I and III of the amended complaint assert claims of fraud. (Although count III is titled “intentional misrepresentation,” this is simply another name for fraud. Soules v. General Motors Corp., 79 Ill.2d 282, 286, 37 Ill.Dec. 597, 402 N.E.2d 599 (1980).) The elements of a fraud claim are: (1) a false statement of fact by the defendant, (2) made with the knowledge that the statement was false; (3) the defendant intended that the statement would induce the plaintiff to act; (4) the plaintiff justifiably relied upon the statement; and (5) the plaintiff suffered damages arising from that reliance. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 496, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996).

¶ 15 In count I, the plaintiff identifies two statements as allegedly false. The first is RFUMS's statement, made in its 2003 application to the IBHE for approval to offer the DPM program, that Scholl College “places its graduates” in residency programs. Given that this statement referred to a program that was not yet in existence, it cannot be construed as describing a current or past state of affairs. Rather, it was at most a promise of future assistance to DPM graduates in obtaining residency placements. However, “[g]enerally, under Illinois law there is no action for promissory fraud, meaning that the alleged...