Kyna Glasco v. State of Illinois

ORDER

BIRNBAUM, CJ.

THIS CAUSE comes before the Court on Respondent’s Motion for Summary Judgment pursuant to 735 ILCS 5/2-1005 and 74 Ill. Adm. Code §790.200, and the Court being fully advised in the premises. The Court denies Respondent’s Motion for Summary Judgment for Count I, but grants Respondent’s Motion as to Counts II and III.

SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is not to try an issue of fact but to determine if one exists. Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 31 (1992). A motion for summary judgment should be granted only when the pleadings, depositions, and affidavits reveal there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c).

In deciding a motion for summary judgment, inferences may be drawn from the undisputed facts. Kennedy v. Medtronic, 366 Ill.App.3d 298 (1st Dist. 2006). While a plaintiff need not prove its case during summary judgment, a plaintiff must present some evidentiary facts to support the elements of its cause of action. Gardner v. Navistar International Transportation Corp., 213 Ill.App.3d 242, 252 (4th Dist. 1991).

Count I: Breach of Contract: Summary Judgment is denied as to Count I

“The elements of a cause of action for breach of contract include: (1) an offer and acceptance, (2) consideration, (3) definite and certain contractual terms, (4) the plaintiff’s performance of his contractual obligations, (5) the defendant’s breach of the contract, and (6) damages resulting from the breach.” Green v. Trinity International University, 344 Ill.App.3d 1079, 1085 (2nd Dist. 2003).

The alleged statements of faculty and the University Catalog support Claimant’s allegations that SIU offered students the ability to obtain an LBS II Certificate if the students successfully completed the requirements for the certificate. Glasco alleges she accepted the offer by enrolling in these classes. Glasco alleges she gave the required consideration by successfully completing the coursework. Claimant’s position is that SIU breached the contract because it did [*186] not have the authority to offer the LBS II Certificate and Glasco was never able to secure the certificate. Glasco pleads damages in the form of all of the time and expenses that come from matriculating at a university.

Illinois law supports Claimant’s position. A college or university and its students have a contractual relationship, and the terms of the contract are generally set forth in the school’s catalogs and bulletins. Frederick v. Northwestern University Dental School, 247 Ill.App.3d 464, 471 (1st Dist. 1993). See also Brody v. Finch University of Health Sciences/The Chicago Medical School, 298 Ill.App.3d 146 (2nd Dist. 1998), affirming a breach of contract claim brought by student applicants against a university.

For these reasons, Summary Judgment is denied as to Count I. Count II: Consumer Fraud Act: Summary Judgment as to Count II is granted

“[T]he Consumer Fraud Act does not apply to every situation where…the only actual controversy is whether an isolated breach of contract occurred.” Brody, 298 Ill.App.3d at 158, citing Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill.App.3d 452, 458 (2nd Dist. 1995). “[D]epending on the nature of the case, when a claim under the Consumer Fraud Act is premised upon a breach of contract, a party must allege some nexus between the complained-of conduct and consumer protection concerns; furthermore, the complaining party also bears the burden to prove, by clear and convincing evidence, how the complained-of conduct implicates consumer protection concerns.” Brody, 298 Ill.App.3d at 160. To recover damages based on a consumer fraud claim, plaintiff must establish: (1) defendant committed a deceptive act, such as the misrepresentation or concealment of a material fact; (2) defendant intended to induce plaintiff’s reliance on the deception; (3) the deception occurred in a course of conduct involving trade or commerce; (4) actual damage to the plaintiff; and (5) plaintiff’s damages were proximately caused by the deception. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 501 (1996). If the plaintiff cannot establish each element of his or her cause of action, summary judgment for defendant is proper. Wallace v. Alexian Brothers Medical Center, 389 Ill.App.3d 1081, 1085 (4th Dist. 2009).

We agree with Respondent that there is no evidence that the alleged deception occurred during a course of conduct involving trade or commerce. In determining if the deception occurred during a course of conduct involving trade or commerce, the general rule when a consumer fraud claim is based on a breach of contract is the Claimant must satisfy the consumer nexus test. Brody, 298 Ill.App.3d at 160. The consumer nexus test requires the Claimant to prove by clear and convincing evidence how the complained-of conduct implicates consumer protection concerns. Id. To sufficiently establish an implication of consumer protection concerns, Claimant must plead and otherwise prove (1) her actions were akin to a consumer’s actions to establish a link between her and consumers; (2) how Respondent’s representations regarding obtainment of the LBS II concerned consumers other than herself; (3) how Respondent’s particular breach of not being approved for the LBS II Certificate program involved consumer protection concerns; and (4) how the requested relief would serve the interests of consumers. Id.

[*187] We find that Claimant presents no evidence that the alleged breach affected consumers other than herself.

Count III: Common Law Fraud: Summary Judgment as to Count III is granted

Count III of the Complaint is based on common law fraud. To recover damages based on common law fraud, plaintiff must allege and prove: (1) there was a false statement of material fact; (2) defendant’s knowledge that the statement was false; (3) defendant’s intent that the statement induced the plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s damages resulting from reliance on the statement. Connick, 174 Ill.2d at 496. For a plaintiff to recover in a common law fraud claim, she must show by clear and convincing evidence the aforementioned elements of common law fraud. Cuculich v. Thomson Consumer Electronics, Inc., 317 Ill.App.3d 709, 718 (1st Dist. 2000). If the plaintiff cannot establish each element of his or her cause of action, summary judgment for defendant is proper. Wallace, 389 Ill.App.3d at 1085.

There is no evidence the statements made by faculty or in University publications were made with the belief or knowledge that they were false. The Claimant testified she is not aware of how the references to the LBS II Certificate came to be in the catalog nor has she talked to anyone about how or why they were put into the catalog. Dr. Waggoner stated, based on information she learned after the fact, the assumption was the LBS II curriculum would be approved by the State before anyone finished the program; however, it was only learned afterward that the certificate would not be given for coursework completed before approval of the program. Dr. May was also unaware of how the LBS II got into the catalog. However, he thought Dr. Foley may have placed it in the catalog with the expectation the curriculum would be approved by the time it appeared in the catalog. The evidence and facts are that the Respondent did not have the knowledge or belief the statements referencing the LBS II Certificate in the catalog were false, but rather the appearance of the statements in the catalog was due to anticipation that the curriculum would be approved. For those reasons, there is no evidence that Respondent knew the statements in the catalog were false.

IT IS HEREBY ORDERED that Summary Judgment is denied as to Count I and granted as to Counts II and III.

OPINION

This claim is before the Court by way of evidentiary hearing conducted January 11, 2017 before Commissioner Murphy. Claimant, Ms. Kyna Glasco, filed a Complaint alleging the Board of Trustees of Southern Illinois University (SIU-C) breached a contract between the parties. She seeks $23,687.70 in damages. Respondent denies the allegations.

CLAIMANT’S TESTIMONY

Claimant enrolled at SIU-C in its elementary education program in 1994. She graduated in 1998 with a Bachelor’s in Applied Science. In 2004, Claimant returned to SIU-C to pursue her [*188] Master’s in Special Education which she received in the summer of 2006. Claimant once again returned to SIU-C in 2007 and took courses through 2009.

When Claimant matriculated at SIU-C in 2007 she worked at Herrin Middle School. She has been employed with Williamson County as a special education teacher for a total of 16 years. Claimant first learned SIU-C was possibly offering an LBS II (Learning Behavior Specialist II) certificate in 2005 while attending one of Dr. Foley’s classes. Dr. Foley was a professor at SIU-C who headed the special education department. Claimant’s understanding was that she could take three more classes to earn the LBS II certificate. These classes, which Claimant eventually took, included 511B, 594B and 516.

Claimant looked at SIU-C’s course catalog in the summer of 2007 before pursuing the LBS II program. She first obtained the catalog in paper from the bursar’s office, and then looked at it again online. Claimant received a passing grade in all three of the courses, obtained paperwork from the Illinois State Board of Education’s website to apply for the certificate, completed the forms, and turned them in to the Regional Office of Education in Williamson County to get the certificate processed by the State.

In late 2009, Claimant discovered there was an issues with her application when it was returned to Dr. Bruns at SIU-C (special education department head). Dr. Bruns put a seal on the application and sent it back to the State. Ms. Cynthia Burger from the Illinois State Licensure Education Program then corresponded with Dr. Bruns. As Claimant understands, the State of Illinois would not issue the certificate because SIU-C did not have an approved program. During the time period between 2007 and 2009, Claimant took classes from Dr. Bruns, Dr. Mundschenk, and other SIU-C faculty. Claimant did not have any conversations with Dr. Foley or Dr. Mundschenk during this time. She exchanged emails with Dr. Foley in 2007. She did not discuss her reasons for returning to SIU-C with any other people. Dr. Foley did not notify Claimant that SIU-C did not have approval for its LBS II program. Dr. Bruns and Dr. Mundschenk both failed to notify Claimant that the program was not approved. Claimant did not otherwise receive any indication that SIU-C’s LBS II program was not approved.

Claimant ultimately abandoned her pursuit of the LBS II certificate when the State notified her that SIU-C’s program was not approved. She also understood, based on her conversation with Dr. Sarvela (SIU-C Vice President), that SIU-C was unable to issue her the certification.

Claimant received two increases to her salary as a result of earning more credits from SIU-C. The first increase was an additional $900 which occurred during the 2008-2009 school year after earning 16 credit hours beyond her master’s degree. She received another $900 increase in the 2009-2010 school year after earning 32 credit hours beyond her master’s degree.

Claimant received a tuition waiver because she supervised student teachers at SIU-C between 2007 and 2008. She has not taken on a student teacher since because it entails a considerable amount of work and duties.

[*189] Claimant returned to SIU-C to earn her LBS II certificate. Williamson County did not provide an increase in Claimant’s pay for receiving the certificate. However, it was important to Claimant because she wanted to include the certificate on her resume. She was uncertain what job opportunities she would experience in the future and because the certificate only required three more courses, she thought she should pursue it. An individual with the certificate has more expertise of curriculum adaptation and the techniques involved in implementing collaboration and assisting teachers in educating and accommodating students in their classrooms. In sum, the certification reflects an expertise and more practice. However, if Claimant had known she would not be issued the certificate, she would not have returned to school.

TESTIMONY ON BEHALF OF RESPONDENT

Respondent called Claimant to testify. Claimant first became a special education teacher in 1998. Through Williamson County Special Education, Claimant worked in Marion for one year and Herrin for 15 years. Claimant is currently with Johnston City. All of Claimant’s employment with Williamson County is covered by the Teachers’ Retirement System in the State of Illinois. She has taught special education for 19 years and is unsure of how much longer she will continue in this career. In addition to the raises she received for completing 32 hours beyond her master’s degree, Claimant also occasionally receives a yearly raise for experience. The raise she received for obtaining additional credit hours increased Claimant’s base salary.

Claimant testified she took SPED 516 in the fall of 2007 for which she attended 17 class sessions. Claimant reached this number using a calendar and referencing the amount of weeks in the semester. Claimant did not recall what day of the week SPED 516 met, but took into account time for various time off, such as Thanksgiving break. She did not remember the exact date the semester started, but believed it was probably the second or third week in August. Claimant accounted for canceled and missed classes in making her calculations. The course met once per week for 17 weeks. Claimant did not recall whether the class met once or twice per week, or how she specifically calculated the number of class sessions other than referencing an SIU-C calendar and knowing the days the class met. Claimant never missed a class.

The rate Claimant received for completing 32 credit hours beyond her Master’s degree adjusted Claimant’s base salary. Any additional raises she receives will be based on her base salary in regard to board percentages.

Claimant’s discovery deposition, dated April 13, 2015, and marked as Respondent’s Exhibit 1 was admitted into evidence subject to any objections in the deposition.

ARGUMENTS

Claimant’s counsel argued that this is a simple breach of contract case because Claimant’s consumer fraud claim was dismissed. The LBS II certificate program was advertised in the bulletin and course catalog. Claimant understood that SIU-C was an approved school, so she took the classes. There is no dispute that she took these three classes to earn the LBS II certificate. Claimant further testified as to why the certificate would be useful to her. Claimant then found out, years later, that she would not receive the certificate. A contract was formed [*190] wherein the terms indicated that if Claimant completed the three classes with satisfactory marks, SIU-C would be an approved institution where she could earn the certificate. Claimant applied for the certificate but did not receive it. SIU-C is in material breach.

Claimant’s counsel argued that Claimant does not have to set forth the exact time, down to the second, that she spent in these classes to prove her damages. The standard is a reasonable certitude. There has been no rebuttal testimony regarding the number of classes Claimant attended, or the length of each class. Similarly, there has been no rebuttal testimony regarding Claimant’s hourly rate, which is reasonable under the circumstance and predicated on how much her time is worth in Williamson County.

Special education is a very hands-on field, and the amount of time Claimant spent supervising student teachers was significant. Claimant has not taken a student teacher since 2009 and the only reason she did supervise student teachers was because she received a tuition waiver in return. Respondent believes that Claimant’s time spent student teaching is worth a waiver so they quantified that amount. Claimant calculated the amount as $12,000, set forth in Exhibit 29. Claimant began with the first entry after the summer of 2007, because that is when Claimant decided to pursue the certificate. She stopped with the last entry in 2009. Claimant did not consider 1999, 2004, or 2006.

Respondent’s counsel argued that Claimant was all over the board in her testimony. She testified that the sole reason she returned to SIU-C was to obtain the Learning Behavior Specialist II certification, and yet she also testified she returned to earn 16 additional credit hours as a salary enhancement for her teaching position. The purpose of a breach of contract award is not intended to be a windfall to Claimant, but to put her in the same position she would have been in but for the breach. In this particular case, Claimant derived some benefit by taking these classes that she wouldn’t have had she not. Claimant currently earns an additional $1,800 per year for taking the classes. This raise also increases her retirement, and any salary increases she receives that are tied to her higher base salary. Even if the Court awards Claimant damages, Respondent is entitled to some setoff for the benefits Claimant obtained.

Finally, Respondent’s counsel argued that Claimant has been somewhat contradictory in how she was damaged by an alleged breach. Claimant stated in one e-mail, “I came back to get 16 credit hours beyond my Master’s.” However, Claimant testified at hearing that “I just came back for the LBS II solely.” It is one or the other - it cannot be both.

CLOSING BRIEFS

Following the hearing on the merits, the parties submitted written briefs in support of their positions. Claimant reiterates the allegations of a breach of contract and argues Claimant is not required to prove damages with “mathematical certainty,” and “need only present evidence to allow the trial court to compute damages within a fair degree of probability.” Doornbos Heating and Conditioning, Inc. v. James D. Schlenker, M.D., S.C., 403 Ill.App.3d 468, 487 (1st Dist. 2010). Claimant points to Wall v. Amoco Oil, 92 Ill.App.3d 921 (5th Dist. 1981) to illustrate her point. There, the Fifth District affirmed the damages opining that it is reasonable to use the plaintiff’s testimony to determine a reasonable estimate of damages. Claimant argues she has [*191] proven with reasonable certainty the time spent taking classes for which she received no benefit, mileage incurred, and consequential damages in the form of supplies and the application fee. Claimant argues her claim for damages is reasonable. At trial, Claimant requested the amount of tuition waivers, but further research indicates this claim is too speculative.

Claimant alleges she relied on SIU-C’s statement that she could obtain an LBS II certificate after completing certain coursework. Restatement (Second) of Contracts (1981) provides that the injured party has a right to damages based on reliance interest, as an alternative to expectation damages, which are designed to put the injured party “in as good a position as [the injured party] would have been in had the contract not been made.” Claimant received some but not all of the benefit because of the coursework she took. She received a salary increase of $1,800 based on additional credit hours taken at SIU-C, including those required for the LBS II. Her pension and subsequent salaries will be based on this higher earnings amount. She additionally received educational benefits, which she sought.

Respondent argues in its closing brief that Claimant has failed to prove damages, offer and acceptance, and definite terms of the contract. Contract cases generally award damages sufficient to place the injured party in as good a position as she would have been had the breaching party fully performed. Respondent notes that it should not be ordered to compensate Claimant where such an award would result in Claimant receiving a windfall.

ANALYSIS

A college and its students have a contractual relationship, the terms of which are generally set forth in the university’s course catalog. Wilson v. Ill. Benedictine College, 112 Ill.App.3d 932, 937 (1983); see also Raethz v. Aurora Univ., 346 Ill.App.3d 728, 732 (2004); Sams v. Bd. of Trustees of Ill. State Univ., 65 Ill. Ct. Cl. 127, 132 (2013). To prevail on a breach of contract claim, Claimant must prove by a preponderance of the evidence that Respondent breached the contract and Claimant suffered damages as a result. Austin v. State, 54 Ill. Ct. Cl. 375, 377 (2002).

“Damages recoverable under a breach of contract theory are based upon the mutual expectations of the parties. The basic principle for the measurement of contract damages is that the injured party is entitled to recover an amount that will put [her] in as good a position as [s]he would have been in had the contract been performed as agreed.” Collins v. Reynard, 154 Ill.2d 48, 51 (1992). Reliance damages are an alternative form of contract damages which reimburse the injured party for loss caused by reliance on the contract by putting her in as good a position as she would have been had the contract never been made. Restatement (Second) of Contracts § 344 (1981).

Claimant testified that the certificate would not result in a pay raise or a promotion. The certificate was valuable to Claimant because it conveyed that she had an expertise. However, Claimant agreed that the classes themselves also reflect expertise. Thus, Claimant realized some of the benefits she expected from taking the three courses in pursuit of the LBS II certificate. In fact, she is actually in a better position than she would be had she not taken the courses because [*192] she received two increases in salary as a result of earning 32 credit hours beyond her master’s degree.

Claimant received an additional pay raise for completing 32 hours beyond her master’s degree. She testified she would not have pursued this pay raise if she knew she would be unable to obtain the LBS II certificate. Claimant received a tuition waiver for supervising a student, so Claimant was compensated for any additional time she spent on the practicum.

Claimant spent $140 in application fees for the LBS II certificate. Claimant is entitled to these expenses incurred in reliance on her belief that SIU-C’s LBS II program was authorized.

Despite the benefits that Claimant did in fact receive from completing the additional coursework, the Court finds that she did not receive the entire benefit of the coursework as represented by the Respondent. The LBS II certificate program was advertised in Respondent’s bulletin and course catalog. Ultimately, it has been shown that Respondent did not have the ability to put Claimant in a position to obtain this certificate.

CONCLUSION

For the foregoing reasons, Claimant has proven her case and is entitled to damages that represent the difference between the anticipated value of the coursework that she completed, compared to the actual value received. The Court finds this difference to be $11,500.00. Additionally, Claimant is awarded $140.00, representing the application fees that she spent. Thus, this Court finds for Claimant in the amount of $11,640.00 in full disposition of this claim.

IT IS SO ORDERED.