Key v. Coryell
| Decision Date | 02 June 2004 |
| Docket Number | No. CA 03-1188.,CA 03-1188. |
| Citation | 185 S.W.3d 98 |
| Parties | Terri KEY, Individually and In Her Capacity as Next Friend, Guardian, and Parent of Taylor Key, a Minor v. Steve CORYELL et al. |
| Court | Arkansas Court of Appeals |
Taylor, Halliburton & Ledbetter, Memphis, by: P. Mark Ledbetter, Memphis, TN, for appellant.
Williams & Anderson PLC, Little Rock, by: Kelly S. Terry, Little Rock; and Barrett & Deacon P.A., Jonesboro, by: Ralph W. Waddell, Jonesboro, for appellees.
Terri Key, the mother of Taylor Key, appeals from the dismissal of her complaint against a Catholic school in West Memphis that Taylor attended for over two years, its current and former teachers and administrators, and the Bishop of the Catholic Diocese of Little Rock. She argues on appeal that she stated claims for breach of contract, outrage, breach of fiduciary duty, negligence, and gross negligence. We affirm the circuit court's decision in all respects.
In her complaint, appellant alleged that Taylor, who was born in 1992, had been diagnosed as having Tourette's syndrome, "OCD," and "ADHD."1 Appellant was not pleased with Taylor's experience in the Marion public schools, and she enrolled him in the second grade at St. Michael's Catholic School for the school year 1999-2000. Taylor remained at St. Michael's until just before Christmas of the fourth grade, when the school forced appellant to withdraw him because of his persistent behavior problems and because appellant purportedly caused trouble with other parents who, like appellant, felt that their children were not being treated well by the school.
On December 16, 2002, appellant filed this action in the Crittenden County Circuit Court, individually and on Taylor's behalf, against appellees St. Michael's; its principal, Steve Coryell; its former principal, Sister Georgia Felderhoff; his second-grade teacher, Lisa Hood; his third-grade teacher, Sister Christopher Flowers; Mary Jo Dagastino; Sara Wilbanks; and the Bishop of the Catholic Diocese of Little Rock. The gist of her complaint was that Taylor's special educational needs were not met at St. Michael's. She asserted causes of action for breach of contract, intentional infliction of emotional distress (outrage), breach of fiduciary duty, negligence, and gross negligence. On January 8, 2003, appellees filed a motion to dismiss for failure to state facts on which relief may be granted under Ark. R. Civ. P. 12(b)(6). Appellant filed a response to this motion and a brief, to which she attached a copy of the school handbook. She also filed a motion for leave to amend the complaint on February 10, 2003, and attached a proposed amended complaint to her motion. The amended complaint was not signed or filed. The court took no action on her motion for leave to amend.
On August 18, 2003, the circuit court granted appellees' motion to dismiss on all counts. The court stated that appellant did not allege facts arising out of a contractual obligation for which appellees would be obligated to appellant or her son; that appellant failed to state incidences of specific conduct so outrageous in nature as to go beyond all possible bounds of decency and to be regarded as intolerable in a civil society; that appellant failed to establish the existence of a fiduciary duty; that she failed to establish a standard of care owed or breached by appellees; and that she failed to state facts demonstrating any intentional failure on the part of any appellee to perform a manifest duty in reckless disregard of the consequences. From that dismissal, appellant pursues this appeal.
In reviewing the circuit court's decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Travelers Cas. & Sur. Co. of Am. v. Arkansas State Highway Comm'n, 353 Ark. 721, 120 S.W.3d 50 (2003). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint and the pleadings are to be liberally construed. Id. However, Arkansas law requires fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Rippee v. Walters, 73 Ark. App. 111, 40 S.W.3d 823 (2001). According to Ark. R. Civ. P. 8(a)(1), a pleading that sets forth a claim for relief shall contain a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. Rule 12(b)(6) provides for the dismissal of a complaint for failure to state facts upon which relief can be granted. These two rules must be read together in testing the sufficiency of a complaint. Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).
Appellant argues throughout her brief that the circuit court should have made findings of fact. We disagree. As stated above, when a motion to dismiss has been made, the circuit court resolves all inferences in favor of the complaint and does not engage in determining questions of fact. Further, Ark. R. Civ. P. 52(a) provides that findings of fact are unnecessary on decisions of motions brought under the rules of civil procedure. In any event, appellant did not make this argument to the circuit court, and we need not consider an argument made for the first time on appeal. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). When a party fails to ask the court to make findings of fact, that issue is waived. See Hickman v. Culberson, 78 Ark.App. 96, 78 S.W.3d 738 (2002).
Appellant also argues throughout her brief that the circuit court should have granted her motion for leave to amend the complaint. Appellant, however, failed to obtain a ruling on her motion. Her failure to do so is a procedural bar to our consideration of that issue on appeal. Travelers Cas. & Sur. Co. of Am. v. Arkansas State Highway Comm'n, supra; Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002); Brown v. Fountain Hill Sch. Dist., 67 Ark.App. 358, 1 S.W.3d 27 (1999).
Appellant additionally argues that the circuit court should have considered her amended complaint and found it sufficient to state claims for relief under Rule 12(b)(6). Although Arkansas Rule of Civil Procedure 15(a) provides that a party may amend her pleadings at any time without leave of the court, appellant did not file her amended complaint. She had from January 8, 2003, when appellees' motion to dismiss was filed, until August 18, 2003, when the order of dismissal was entered, to file the amended complaint but did not do so. Obviously, the unsigned and unfiled copy of the amended complaint that appellant attached to her motion for leave to amend was ineffective. See David Newbern & John Watkins, Arkansas Civil Practice & Procedure § 8-16 (3d ed.2002). Therefore, the circuit court need not have considered it.
Appellant argues that the trial court erred in concluding that she did not establish claims for (1) breach of contract, (2) outrage, (3) breach of fiduciary duty, (4) negligence, and (5) gross negligence.
The elements of a contract are: (1) competent parties; (2) subject matter; (3) legal consideration; (4) mutual agreement; (5) mutual obligation. Cash in a Flash Check Advance of Ark., LLC v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002). Arkansas law recognizes that, to have a valid contract, all terms should be definitely agreed upon, Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992), and the terms must be "reasonably certain." ERC Mtg. Group, Inc. v. Luper, 32 Ark.App. 19, 795 S.W.2d 362 (1990). Terms are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Id.
In Ross v. Creighton University, 957 F.2d 410 (7th Cir.1992), the court recognized that, in Illinois, the relationship between a student and an educational institution is, in some of its aspects, contractual. The court cautioned, however, that to state a claim for breach of contract, the plaintiff must do more than simply allege that the education was not good enough. Instead, he must point to an identifiable contractual promise that the defendant failed to honor; the essence of the complaint would not be that the institution failed to perform adequately a promised educational service but that it failed to perform that service at all. In Ross, supra, the court held that the plaintiff, who set forth specific promises that the defendant failed to honor, stated a breach-of-contract claim.
Appellant's original complaint alleged the following facts about the school's agreement with appellant: (1) Sister Georgia assured appellant that her son's educational and special needs would be met and that he would be in a loving, supportive environment; (2) Steve Coryell told appellant during the summer before Taylor entered fourth grade that he would work with her to improve matters and that he talked her into re-enrolling Taylor; (3) Mr. Coryell told appellant that Taylor's fourth-grade teacher had twenty-seven years' experience in the Memphis schools and "could handle things." Here, because the terms of the purported contract set forth in the complaint were so indefinite, we have no choice but to hold that there was no contract between the parties of sufficiently definite terms by which a remedy could be fashioned in the event of a breach. Accordingly, the circuit court correctly concluded that appellant failed to state a claim for breach of contract.
Even if we were to consider the unfiled amended complaint, the result would be the same. In addition to the above allegations, appellant stated:
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