Bittle v. Oklahoma City University

• Citation: 6 P.3d 509,2000 OK CIV APP 66
• Decision Date: 21 April 2000
• Docket Number: No. 93,684.,93,684.
• Parties: Paul Brandon BITTLE, Plaintiff/Appellant, v. OKLAHOMA CITY UNIVERSITY, a not-for-profit corporation, and the Board Of Trustees of Oklahoma City University, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

6 P.3d 509

2000 OK CIV APP 66

Paul Brandon BITTLE, Plaintiff/Appellant, v. OKLAHOMA CITY UNIVERSITY, a not-for-profit corporation, and the Board Of Trustees of Oklahoma City University, Defendants/Appellees.

No. 93,684.

Court of Civil Appeals of Oklahoma, Division No. 3.

April 21, 2000.

Elizabeth J. Bradford, Midwest City, Oklahoma, For Appellant.

James C. Chandler, G. David Ross, B. Gore Gaines, Lytle, Soul? & Curlee, P.C., Oklahoma City, Oklahoma, For Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. JOPLIN, Judge:

? 1 Plaintiff/Appellant Paul Brandon Bittle (Bittle) seeks review of the trial court's order granting judgment to Defendants/Appellees Oklahoma City University, a not-for-profit corporation (OCU), and the Board of Trustees of Oklahoma City University (Board), in Bittle's action to recover damages for alleged fraud, breach of contract and negligence after OCU dismissed Bittle for academic reasons. In this proceeding, Bittle asserts judgment for OCU and Board should be reversed because (1) his initial petition stated a valid claim for breach of contract, (2) the evidence on summary judgment relative to his claims was conflicting, and (3) the trial court erred in denying him both further discovery prior to ruling and permission to amend to cure any defect in pleading.

? 2 OCU is a private university, organized as a not-for-profit corporation and governed by Board. OCU admitted Bittle to the OCU Law School for the fall semester of 1997. But, when Bittle's cumulative grade-point average fell below the minimum required by OCU academic standards after the fall semester of 1998, OCU dismissed him. Pursuant to OCU policy, Bittle sought administrative review, but upon consideration of the matter, OCU denied him relief.

? 3 Bittle then commenced the instant action against OCU and Board. In particular, Bittle alleged that his constitutional law professor frequently arrived late for class, discharged class early, or canceled class altogether; that neither the professor nor OCU provided make-up classes or academic counseling to assist students as OCU implicitly agreed; and that the failures of the professor (OCU's agent), OCU and Board in these particulars caused his academic dismissal. Bittle also alleged that OCU's internal administrative appellate procedure denied him the fundamental protection of constitutional due process, including denial of the right to examine the evidence against him,¹ to present evidence on his own behalf, and even the right to a hearing at all. On these facts, Bittle asserted claims for fraud, breach of contract, tortious breach of contract, negligence, unjust enrichment and violation of his right to due process, seeking actual and punitive damages.

? 4 OCU filed a motion to dismiss, asserting Bittle's failure ?€” on the alleged facts of the case ?€” to state an actionable claim under any legally recognized theory of recovery.² Board filed a motion for summary judgment/motion to dismiss, asserting no liability ?€” as OCU's not-for-profit corporate governing body ?€” for any OCU act or omission of which Board had no knowledge or in which Board did not actively participate, and no contractual relationship between Bittle and Board.³

? 5 Bittle responded to OCU's motion to dismiss, arguing viability of all claims stated in his petition, or alternatively, in the event a ruling favorable to OCU, permission to amend to cure any defects in pleading.⁴ Bittle also responded to Board's motion for summary judgment/motion to dismiss, asserting ?€” in essence ?€” material facts in controversy concerning each of his legally recognized claims, precluding summary judgment.⁵ On consideration of the briefs, submitted materials and arguments of the parties, the trial court granted judgment to OCU and Board. Bittle now appeals, and the matter stands submitted on the trial court record.⁶

? 6 As a general proposition, "[t]he applicable test for appraising the sufficiency of a pleading challenged for failure to state a claim upon which relief may be granted teaches that no dismissal may be effected unless it should appear beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle her to relief." Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, ? 7, 861 P.2d 295, 298-299. Stated otherwise, "[a] petition can generally be dismissed only for lack of any cognizable legal theory or for insufficient facts under a cognizable legal theory." Miller v. Miller, 1998 OK 24, ? 15, 956 P.2d 887, 894.⁷ Yet, "if [a] dismissal motion also tenders for consideration materials [outside] the pleadings," the motion to dismiss is treated and reviewed as a motion for summary judgment. Dyke, 1993 OK 114, ? 7, 861 P.2d at 299.

? 7 In this respect, "Oklahoma procedural law dictates that summary judgment is appropriate only when it appears that there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law." Flanders v. Crane Co., 1984 OK 88, ? 10, 693 P.2d 602, 605; Rule 13(e), Rules for the District Courts of Oklahoma, 12 O.S., Ch. 2, App. More particularly:

Summary judgment is proper only when there is no genuine issue of material fact. (Citation omitted.) The burden is on the moving party to establish, through evidentiary material attached to the motion for summary judgment, that no genuine issue as to any material fact exists. (Citation omitted.) Thereafter, the opposing party must submit a statement of material facts which the party alleges are controverted and which are supported by evidentiary materials. (Citation omitted.)

Wynn v. Avemco Ins. Co., 1998 OK 75, ? 7, 963 P.2d 572, 574. "[A] summary judgment ruling must be made on the record actually presented by the litigants, not on a record potentially possible. (Citation omitted.)" Prudential Ins. Co. of America v. Glass, 1998 OK 52, ? 3, 959 P.2d 586, 588. That is, "[a]lthough the allegations of the pleadings standing alone may raise an issue of material fact, summary judgment is not to be denied if other documentation pertinent to the motions palpably show the absence of such an issue." Weeks v. Wedgewood Village Inc., 1976 OK 72, ? 12, 554 P.2d 780, 784.

? 8 On appeal from an order granting summary judgment, we review by a de novo standard. Prudential Ins. Co. of America, 1998 OK 52, ? 2, 959 P.2d at 588. That is, "this Court will examine [the] pleadings and evidentiary materials to determine what facts are material and whether there is substantial controversy as to one material fact. (Citation omitted.)" Sperling v. Marler, 1998 OK 81, ? 3, 963 P.2d 577, 579. "If [a] substantial controversy as to a[ny] material fact exists, then summary judgment is improper." Id.

? 9 In the present case, insofar as OCU's motions and Bittle's responses tendered for consideration evidentiary materials outside the pleadings, the parties and the trial court treated the motions to dismiss as motions for summary judgment. Accordingly, we review the trial court's order under summary judgment standards.

? 10 In two related propositions, Bittle complains the trial court should have granted him both further discovery prior to ruling and permission to amend his petition to cure any defects in pleading. As to the further-discovery issue, we find no affidavit of counsel attesting an inability to respond and need for further discovery contemplated by Rule 13(d), Rules for the District Courts of Oklahoma, 12 O.S., Ch. 2, App.⁸ In the absence of a specific request for further discovery supported by an affidavit of counsel attesting to the need therefor, we cannot say the trial court erred in refusing further discovery.

? 11 As to the permission-to-amend issue, "the trial court has always possessed discretion over whether to allow an amendment to a pleading," and "[i]ts decision will not be overturned absent an abuse of that discretion," but "the trial court's discretion is limited by the provisions of 12 O.S. 1991, ? 2015(A), requiring that leave to amend be given freely if justice requires." Prough v. Edinger, Inc., 1993 OK 130, ? 8, 862 P.2d 71, 75-76. That is, while the "`outright refusal to grant leave [to amend] without any justifying reason appearing for the denial' is an abuse of discretion, . . . there is no abuse if the court relies on a reason such as `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party. . . [or] futility of amendment.'" Prough, 1993 OK 130, ? 9, 862 P.2d at 76.⁹

? 12 In denying Bittle's alternative prayer to amend, the trial court in the present case must have implicitly believed Bittle could not amend to state a cognizable claim, i.e., that amendment would be "futile." In order to determine whether the trial court abused its discretion in denying Bittle's request to amend,¹⁰ we must consequently first determine whether Oklahoma law recognizes an actionable tort or contract claim arising out of the relationship between an educational institution and a student for the institution's alleged failure in its educational mission and obligation to its students.

? 13 Bittle asserts in four of eight propositions in his petition in error that his relationship with OCU is predominantly contractual in nature; that the law of contracts ?€” ignored by the trial court ?€” consequently governs the rights and remedies of the parties; that he presented evidentiary materials arguably demonstrating OCU's breach of the parties' contract to provide him educational services in accord with this state's regulatory norms; and that OCU presented no evidence to the contrary, requiring reversal of the trial court's order. In one of his two remaining propositions, Bittle complains the trial court erred in treating his claims as sounding in tort for educational malpractice.

? 14 The great weight...