Gens v. Casady School

Decision Date29 January 2008
Docket NumberNo. 104601.,104601.
Citation177 P.3d 565,2008 OK 5
PartiesLinda GENS, an individual, personally and as next friend of Thomas Gens, a minor, Plaintiff/Appellant, v. CASADY SCHOOL, an Oklahoma Not-For-Profit Corporation, Defendant/Appellee.
CourtOklahoma Supreme Court

Certiorari to the Court of Civil Appeals, Division I.

¶ 0 For, approximately eighteen years, the husband of the plaintiff/appellant, Linda Gens (Gens/mother), served on the faculty of the defendant/appellee, Casady School (Casady/school). After the husband was diagnosed with cancer, the Gens were promised orally by two Casady headmasters that their children would be allowed to attend the school with continued tuition support for as long as they wanted. Four years later, the mother was informed that if she did not voluntarily withdraw her son, he would be suspended. Gens withdrew the child "under protest." Subsequently, the mother sued Casady alleging: conversion of her son's and husband's records and for replevin; injunctive and declaratory relief; bad faith breach of contract; and invasion of privacy. The school moved for dismissal for failure to state a claim upon which relief could be granted. The trial court sustained the motion and the Court of Civil Appeals affirmed. We determine the second amended petition is sufficient to withstand a motion to dismiss for failure to state a claim upon which relief may granted.

CERTIORARI GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED; CAUSE REMANDED.

Wilbur C. Hall, Jr., Norman, OK, for plaintiff/appellant.

Jeremy Tubb, Daniel Johnson, Crowe & Dunlevy, Oklahoma City, OK, for defendant/appellee.

WATT, J.

¶ 1 The sole issue presented on certiorari is whether Gens, proceeding in her own right and as next friend of her child, pled adequate facts to avoid dismissal. Under the facts presented, we hold that Gens made arguments sufficient to avoid a summary dismissal for failure to state a claim for which relief may be granted1 on the theories of breach of contract, invasion of privacy and withholding of psychological records.

ALLEGED FACTS

¶ 2 For a period of almost eighteen years, from September 1982 until October 13, 2000, Gens' husband served on the faculty at Casady. After the husband was diagnosed with cancer, the Genses were promised orally by two Casady headmasters that their children would be allowed to attend the school with continued tuition support for as along as they wanted. The husband taught until the last days of his life.

¶ 3 Gens' son was in the Casady system from pre-kindergarten until the ninth grade. Casady honored their agreement with the Genses from October of 2000 until January of 2004. However, on January 8 and January 13, 2004, respectively, the child was suspended. Gens was informed that her son would be expelled on January 28, 2004, unless Gens voluntarily withdrew him from classes. Although Gens believes that the decision to remove her son from the Casady system was made in violation of the school's disciplinary procedures,2 Gens withdrew him "under protest" rather than allow his records to indicate that he had been expelled. The removal of her son from Casady required special schooling alternatives costing Gens in excess of $100,000.00.

¶ 4 Following the involuntary withdrawal of her son, Gens requested all the child's school and psychological records. To date, it is undisputed that Casady has not provided complete copies of the psychological records and results of the psychological tests performed on the child.3

¶ 5 Gens sued Casady alleging: conversion of her son's and husband's records and for replevin of the same; injunctive and declaratory relief; bad faith breach of contract; and invasion of privacy. After affording Gens the opportunity to amend her petition, the trial court granted Casady's motion to dismiss for failure to state a claim upon which relief may be granted. The Court of Civil Appeals affirmed on grounds that: Gens had no property interest in records maintained by Casady; no enforceable contract existed to allow the child to continue in the Casady system; and because the child's privacy rights were personal, Gens could not maintain a claim on his behalf. Today, with the promulgation of this opinion, we grant certiorari.

¶ 6 UNDER THE FACTS AND THE LAW, THE PLAINTIFF'S SECOND AMENDED PETITION IS SUFFICIENT TO WITHSTAND A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

¶ 7 Gens' certiorari petition does not require this Court to determine the merits of the cause. Rather, it necessitates review of the trial court's grant of the motion to dismiss for failure to state a claim upon which relief may be granted.

¶ 8 Generally, motions to dismiss are viewed with disfavor.4 This court reviews the dismissal de novo considering the legal sufficiency of the petition and taking all allegations in the plaintiffs petition as true.5 The function of a motion to dismiss is to test the law of the claims, not the facts supporting them.6 No dismissal for failure to state a claim upon which relief may be granted should be allowed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle relief.7 Plaintiffs need neither identify a specific theory of recovery nor set out the correct remedy or relief to which they may be entitled.8 If any set of facts can be established which is consistent with the allegations, a motion to dismiss should be denied.9 Dismissal is appropriate only for lack of any cognizable legal theory to support the claim or for insufficient facts under a cognizable theory.10 Where not all claims appear to be frivolous on their face or without merit, dismissals for failure to state a claim upon which relief may be granted are premature.11 The movant bears the substantial burden of demonstrating any insufficiency.12 Only under these standards may we uphold Gens' dismissal.13

¶ 9 In 1984, Oklahoma adopted the Oklahoma Pleading Code (Pleading Code) and we became a notice pleading state.14 All that is required under notice pleading is that the petition give fair notice of the plaintiffs claim and the grounds upon which it rests.15 Section 2008 of the Pleading Code merely requires that the pleading shall contain "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Any requirement that a litigant correctly identify a theory of recovery or describe the remedy affordable for an asserted right's vindication is abolished16 and the doctrine of mandatory election of remedies has become an anachronism.17 Finally, for most claims, the pleader need not utilize terms of art or legal phraseology.18

a. The petition adequately pleads and states a claim for bad faith breach of contract.

¶ 10 Casady argues that Gens' assertions that it breached a promise to allow her child to continue as a Casady student at a reduced tuition cannot withstand a statute of frauds19 defense as an unwritten contract intended to extend over a period of years. Nevertheless, an oral agreement may be a continuing contract and extend for more than one year and not be within the statute of frauds, if the contract may be terminated at any time by either party.20 Certainly, no one has asserted that Gens was required to leave her child in Casady's system if the mother decided that another educational environment would better suit her son's needs. In defense of the breach of contract claim, Casady points to a provision of the written annual contract that specifically provides its rights of termination.21

¶ 11 Even if Gens could not enforce the oral promise that her son could continue in the Casady system indefinitely, Gens alleges the existence of a written contract for the 2003-2004 school year22 and the record contains a contract for the year in which the child was dismissed. Although the contract contains a provision allowing the school to terminate enrollment,23 Gens asserts that the termination decision was done in violation of Casady's own procedures. Finally, every contract in Oklahoma contains an implied duty of good faith and fair dealing.24

¶ 12 Most certainly, Gens has asserted the existence of a contract, the breach thereof, and facts from which it might be determined that the breach was in bad faith. She has met all that is required under notice pleading. It is of little consequence whether the bad faith breach might result in independent tort liability. The allegations of breach of contract are sufficient to survive a motion to dismiss for failure to state a claim upon which relief may be granted.

b. The mother, as the child's next friend, may maintain a cause of action for invasion of privacy on the child's behalf.

¶ 13 As the caption in the instant cause clearly indicates, the mother is proceeding in her own behalf and as the "next friend" of her child. Casady contends that the mother may not assert a constitutional claim of invasion of privacy,25 because her constitutional rights are not at issue. The assertion is unconvincing.

¶ 14 Oklahoma's statutory law specifically provides that minors may protect their rights by suing through their next friend.26 Furthermore, Oklahoma jurisprudence has long held that where a minor brings suit by a parent as next friend, the minor is in court for all purposes.27

¶ 15 By bringing the invasion of privacy claim as her son's "next friend," the mother steps into her son's shoes for all purposes. She is not, as Casady would have us believe, asserting a claim on her behalf for the violation of her son's constitutional right of privacy.28

c. Although the mother may have mart fully pled the right to receive the child's psychological records, access may be obtained through court order. Furthermore, it is unclear whether Casady's assertion of the physician's/psychotherapist's privilege may withstand challenge.

¶ 16 Casady School contends that the minor's psychological records, which the mother argues...

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