Opinion
No. 2-20-0378
05-07-2021
FRANCES ENDENCIA, Plaintiff-Appellant, v. ADTALEM GLOBAL EDUCATION, INC. and HIGHER LEARNING COMMISSION, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County
No. 19-L-546
Honorable Dorothy French Mallen, Judge, Presiding.
JUSTICE BRENNAN delivered the judgment of the court.
Justices Zenoff and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in granting defendant's, Adtalem Global Education, Inc.'s, motion to dismiss plaintiff's fourth amended complaint on res judicata grounds. The trial court did not err in granting defendant's, Higher Learning Commission's, motion to dismiss plaintiff's fourth amended complaint for failure to state a claim. Affirmed.
¶ 2 Plaintiff, Frances Endencia, appeals from the dismissal with prejudice of her fourth amended complaint against defendants, Adtalem Global Education, Inc. (Adtalem) and Higher Learning Commission (HLC). For the reasons set forth below, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Plaintiff alleged that she attended DeVry University (DeVry), a private educational institution, intermittently from summer 2006 until her graduation with a bachelor's degree in computer engineering technology in July 2014. Adtalem, formerly known as DeVry Education Group, provides global education services. HLC is a regional accrediting agency and was the accrediting agency for DeVry.
¶ 5 A. The First Action
¶ 6 Plaintiff initiated the first action on May 5, 2017. After several iterations of the complaint and rounds of motion practice resulting in dismissals without prejudice, plaintiff filed a fourth amended complaint against Adtalem and DeVry Inc. on February 20, 2018. According to the fourth amended complaint, defendants "injured [plaintiff] by providing substandard educational program, causing inability to qualify for the job market" in her chosen field of software programming. Plaintiff's allegations included that she was advised to enroll in classes for which she was unprepared; that instructors suggested or forced her to withdraw from various classes; that her tuition was not refunded "despite DeVry's mistakes"; that she was not properly credited for her tuition payments; that a lab instructor improperly gave her a failing grade, thereby preventing participation in advanced labs; that in certain classes, she was treated unfairly, "bombarded" with material for tests, or received training that was "poor and incomplete for the job market"; that she was billed for "[q]uestionable charges" at a time when she was not enrolled; that potential employers told her that DeVry was not appropriately accredited; that instructors refused to provide references; and that DeVry required her to purchase health insurance that she later learned "did not exist."
¶ 7 The fourth amended complaint set forth seven counts based on these allegations: (1) violation of section 2-608 of the Illinois Uniform Commercial Code (810 ILCS 5/2-608 (West
2016), pertaining to the revocation of acceptance of nonconforming goods in a sales transaction; (2) fraud on the ground that, contrary to advertising on its website, DeVry was not "consistently accredited" by the applicable accreditation organization; (3) fraud on the ground that DeVry "could not provide information about" the health insurance she purchased "and [she] was not able to use it"; (4) DeVry "failed to meet minimum standards criteria for a programming internship *** so that she can be employed"; (5) DeVry "willfully interfered with [her] performance *** by causing low grades so she would not qualify for job or internship opportunities"; (6) violation of the Illinois Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2016)) on the ground that DeVry falsely advertised that it was properly accredited for the "Bachelor in Computer Engineering Technology program"; and (7) consumer fraud on the ground that a DeVry employee informed plaintiff that DeVry's computer engineering technology program was "similar to [the] software engineering program she wanted to pursue." In her prayer for relief, plaintiff sought an order "requiring DeVry University pay all student loans plus interest" and "requiring DeVry University pay [her] $50,000 for the cash payments made for tuition, books, and time she wasted at this university."
¶ 8 Defendants moved to dismiss the fourth amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)). The trial court dismissed the fourth amended complaint with prejudice. We affirmed. Endencia v. Adtalem Global Education, No. 2-18-0445 (2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)). We noted that "[plaintiff's] brief contains no discussion of the elements of any causes of action that would entitle her to relief based on the well-pleaded allegations of the complaint." Id. ¶ 7. We further noted that, "[w]hen plaintiff does allude to factual allegations, she fails to cite
exactly where in the record on appeal the allegations may be found." Id. Accordingly, we held that plaintiff failed to meet her burden of showing that the trial court erred. Id.
¶ 9 B. The Present Action
¶ 10 Plaintiff subsequently initiated this action. On May 16, 2019, she filed a complaint against "ADTalem Global Education Aka DeVry Education Group Inc & DeVry Inc." She filed an amended complaint, without leave of court, on June 21, 2019. In the amended complaint, plaintiff named as defendants "ADTalem Global Education Aka DeVry Education Group Inc & DeVry Inc as Lisa Wardell & Higher Learning Commission." HLC moved to dismiss, but before the trial court ruled on the motion, plaintiff moved for leave to amend the complaint. The trial court granted plaintiff's motion.
¶ 11 Ultimately, after the amended complaint was dismissed without prejudice, plaintiff filed what she labeled the fourth amended complaint on November 27, 2019, although it was procedurally the second amended complaint. For ease of reference, we nevertheless will refer to the pleading as the fourth amended complaint, as do the parties. In the fourth amended complaint, plaintiff named as defendants "ADTalem Global Education Aka DeVry Education Group Inc DeVry Inc & Higher Learning Com." Wardell was no longer identified in the caption, although the body of the pleading continued to identify her with the description "DeVry Inc as Lisa Wardell."
¶ 12 Plaintiff alleged in the fourth amended complaint that DeVry failed to provide her with a technology portfolio, failed to provide references, refused to provide credit for classes she was required to drop due to lack of prerequisite courses, lowered her grades, and failed to provide her with paperwork relating to student loans and health insurance. Plaintiff also alleged that she unsuccessfully applied for technology jobs; that she discovered in her job search that potential
employers sought Accreditation Board for Engineering and Technology (ABET)-accredited graduates; and that potential employers informed her DeVry was not an ABET-accredited school. She further alleged that HLC was the accrediting agency for DeVry; that "DeVry always maintained that they were an accredited school" by HLC; and that DeVry caused "confusion when they deviate from the norms of US schools by not being properly accredited by proper agencies and utilize substitute accrediting agencies like The Higher Learning Commission."
¶ 13 Plaintiff set forth seven counts based on these allegations: (1) "legal fraud" under section 175/3(a)(1) of the Illinois False Claims Act (740 ILCS 175/3(a)(1) (West 2018)); (2) "health insurance fraud" under section 175/3(a)(1) of the Illinois False Claims Act; (3) "unconscionable contract" under section 175/3(a)(1) of the Illinois False Claims Act; (4) DeVry's refusal to allow plaintiff to join the java internship program; (5) DeVry's "[f]ailure to provide students of technology a portfolio of adequate projects to be employable; (6) that DeVry's curriculum lacked the necessary courses to obtain employment as a software engineer; and (7) DeVry's alleged lowering of plaintiff's grades so that she would not qualify for a java internship or employment. In her prayer for relief, plaintiff sought to "[b]e provided with copies of all loans transactions made[] (discovery/new trial)"; that "DeVry pay [plaintiff] student loans plus interests"; and that "$50,000.00 be paid to [plaintiff] for her educational costs, computers, books, laboratory supplies and time etc."
¶ 14 Adtalem moved to dismiss the fourth amended complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2018)) on the ground that the action was barred by the doctrine of res judicata. HLC moved to dismiss the fourth amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2018)) on the ground that plaintiff failed to assert any claims against, or seek relief from, HLC. Plaintiff filed an objection to the motions and moved for leave
to amend her complaint. The trial court denied leave to amend and set a briefing schedule on the motions to dismiss.
¶ 15 On May 18, 2020, the trial court granted both motions to dismiss and dismissed the fourth amended complaint with prejudice. Regarding Adtalem, the trial court found that the second lawsuit was barred by the doctrine of res judicata. The trial court reasoned that "the Appellate Court affirmed the dismissal with prejudice of Plaintiff's prior lawsuit against this entity which lawsuit was based on the same core facts." The trial court dismissed the fourth amended complaint "with prejudice to the filing of any new lawsuit based on the same core facts or any cause of action that could be brought under the same facts."
¶ 16 The trial court also specified that the action was dismissed with prejudice against Wardell, as plaintiff never sought nor was given leave to name Wardell as an additional defendant and that "stating her name in the Caption is a nullity as to adding her as an additional Defendant." Moreover, the trial court concluded, if Wardell had been a proper defendant, "she was, in effect, dismissed as a defendant by the filing of the Fourth Amended Complaint [which did not include Wardell in the caption]."
¶ 17 Regarding HLC, the trial court found that plaintiff not only failed to allege any facts giving rise to a cause of action against HLC, but also failed to request any relief against HLC. The trial court noted that the dismissal was with prejudice, as "no set of facts against [HLC] could be plead by [plaintiff] to state a cause of action."
¶ 18 On June 16, 2020, plaintiff filed a motion to vacate the dismissal and sought leave to amend her complaint. On June 30, 2020, the trial court denied the motion to vacate the dismissal and denied leave to amend the complaint. Plaintiff timely appealed on July 7, 2020.
¶ 19 II. ANALYSIS
¶ 20 Initially, we address the procedural deficiencies in plaintiff's arguments on appeal. Plaintiff fails to provide record citation in support of her arguments in violation of Illinois Supreme Court Rule 341(h)(7). See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (an argument must "contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on"). Moreover, most of the arguments plaintiff sets forth on appeal fail to address the issues presented. We are reviewing: (1) whether the trial court erred in dismissing the fourth amended complaint against Adtalem on res judicata grounds, and (2) whether the trial court erred in dismissing the fourth amended complaint against HLC for failure to assert any claims against, or seek relief from, HLC. Plaintiff's arguments, however, largely consist of a multitude of statements regarding DeVry's practices, her dissatisfaction with the education and degree she received, and her inability to obtain desired employment after receiving the degree due to the lack of ABET accreditation. She also cites a litany of case law from other jurisdictions as support for her proposition that "[s]imilar practices [were] found" there. Plaintiff does not develop these arguments or present a reasoned basis for finding that error was committed.
¶ 21 "A reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive legal arguments presented [citation], and it is not a repository into which an appellant may foist the burden of argument and research [citation]." Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993). It is neither the obligation nor the function of a reviewing court to act as an advocate or search the record for error. Id. The consequences of failure to comply with these requirements is forfeiture of the arguments on appeal. Id. We note that plaintiff proceeds pro se in this court, as she did in the trial court. However, pro se litigants are not excused from compliance with these requirements. In re A.H., 215 Ill. App. 3d 522, 529-30 (1991).
¶ 22 Ultimately, these deficiencies aside, plaintiff fails to demonstrate any basis for reversal.
¶ 23 A. Res Judicata (Adtalem)
¶ 24 A motion to dismiss under section 2-619 of the Code admits the legal sufficiency of the pleading but asserts an affirmative defense or other matter that avoids or defeats the claim. Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011). Section 2-619(a)(4) allows the involuntary dismissal of an action that is "barred by a prior judgment." 735 ILCS 5/2-619(a)(4) (West 2018). "This provision allows a party to raise the affirmative defense of res judicata." Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000). "Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction acts as a bar to a subsequent suit between the parties involving the same cause of action." River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998). Application of res judicata to bar a claim requires: (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) identity of the causes of action; and (3) identity of the parties or their privies. Ward v. Decatur Memorial Hospital, 2019 IL 123937, ¶ 45. Res judicata applies "not only to what was decided in the first action but also includes those matters that could have been decided in the initial action." Id. ¶ 44. We review de novo the dismissal of a complaint under section 2-619(a)(4). Morris B. Chapman & Associates, Ltd., 193 Ill. 2d at 565.
¶ 25 The record demonstrates that the fourth amended complaint against Adtalem was barred by the doctrine of res judicata. First, there was a prior judgment on the merits rendered by a court of competent jurisdiction. The trial court dismissed with prejudice the fourth amended complaint in plaintiff's first action. This court affirmed. Endencia v. Adtalem Global Education, No. 2-18-0445 (2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)). Second, plaintiff and Adtalem were parties to both actions. Contrary to plaintiff's argument on appeal, the addition of HLC as a defendant does not defeat the application of res judicata. See Bonanno v.
LaSalle & Bureau County Railroad Co., 87 Ill. App. 3d 988, 995 (1980) ("the attempt to add new party defendants in order to evade the applicability of the doctrine of res judicata is without legal effect").
¶ 26 Third, there is an identity between the causes of action. Illinois has adopted the transactional test in determining whether an identity of cause of action exists for purposes of res judicata. See River Park, 184 Ill. 2d at 310-11. "[S]eparate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief." Id. at 311.
¶ 27 Here, the claims in both the first and second actions arise from a single set of operative facts—plaintiff's dissatisfaction with her education and degree from Adtalem and inability to obtain desired employment after receiving the degree. Both actions included allegations regarding her enrollment and withdrawal from classes based upon a lack of prerequisite courses and knowledge; the alleged refusal of DeVry instructors to provide employment references; and the allegations that potential employers informed plaintiff that DeVry was not ABET-accredited. Both actions also included allegations regarding the application and procurement of student loans without the provision of financial statements and the purchase of illusory health insurance without the provision of paperwork.
¶ 28 Moreover, while not necessary to a determination of res judicata, we note that plaintiff sought the same relief in both actions—payment of student loans and compensation for her educational costs and time. Accordingly, plaintiff's fourth amended complaint was barred by the doctrine of res judicata. The trial court, therefore, did not err in granting Adtalem's motion to dismiss the fourth amended complaint with prejudice.
¶ 29 B. Failure to State a Claim (HLC)
¶ 30 "A motion to dismiss under section 2-615 of the Code challenges only the legal sufficiency of the complaint." Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 27. When ruling on a motion to dismiss under section 2-615, "[t]he critical inquiry is whether the allegations of the complaint, when considered in a light favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Id. For purposes of a motion to dismiss, the complaint's well-pleaded facts are taken as true. Id. A complaint should not be dismissed "unless it clearly appears that no set of facts can be proved that would entitle the plaintiff to recovery." Henderson Square Condominium Ass'n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 61. Moreover, allegations of fraud must be alleged "with specificity and particularity *** including what misrepresentations were made, when they were made, who made the misrepresentations and to whom they were made." Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496-97 (1996). We review de novo the dismissal of a complaint for failure to state a cause of action. Henderson Square Condominium Ass'n, 2015 IL 118139, ¶ 61.
¶ 31 A review of the fourth amended complaint demonstrates that plaintiff did not raise any claims against HLC. The fourth amended complaint merely alleged that HLC was the accrediting agency for Adtalem. There were no allegations that HLC engaged in any wrongdoing, and plaintiff did not specify any basis for relief against HLC. Accordingly, the trial court properly determined that plaintiff failed to state a claim against HLC pursuant to section 2-615.
¶ 32 On appeal, plaintiff raises for the first time allegations against HLC that were not pled in the fourth amended complaint, including fraud under the Illinois False Claims Act and common law fraud. In her reply brief, she also adds new allegations of a conspiracy between HLC and Adtalem. She further seeks on appeal, for the first time, "a Declaratory judgment order to have
DeVry University and The Higher Learning Commission to pay all student loans and interest of Plaintiff plus $50,000 in cash and removal of student loan debt in her credit history/credit score."
¶ 33 HLC argues that plaintiff is precluded from raising new allegations for the first time on appeal. It also argues that, regardless, the claims fail to state a cause of action. Namely, HLC argues, the Illinois False Claims Act is not applicable because it pertains only to claims made to the State of Illinois or any public entities. See 740 ILCS 175/2(a) (West 2018). HLC also argues that any claim for common law fraud fails because plaintiff did not allege that HLC made any false statements; that HLC intended for plaintiff to rely on the statements, that plaintiff relied on the statements; or that plaintiff suffered resulting damages. See Adler v. William Blair & Co., 271 Ill. App. 3d 117, 125 (1995) (enumerating the elements of a claim for common law fraud). Moreover, HLC argues, any claim for common law fraud would be barred by the five-year statute of limitations. See Gillespie Community Unit School District No. 7, Macoupin County v. Wright & Co., 2014 IL 115330, ¶ 51.
¶ 34 We need not address HLC's argument that plaintiff fails to state a claim as to these new theories of liability, as we disregard the allegations that plaintiff raises for the first time on appeal. See Shaun, Fauley Sabon, Inc. v. Metropolitan Life Insurance Co., 2016 IL App (2d) 150236, ¶ 33 ("[It] is well settled that issues not raised in the trial court cannot be raised for the first time on appeal."); Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036, 1038 (2009) ("Plaintiffs cannot raise a new theory [of liability] for the first time on appeal[.]").
¶ 35 In sum, plaintiff's fourth amended complaint did not raise claims against HLC and did not seek relief against HLC. Accordingly, the trial court did not err in granting HLC's motion to dismiss the fourth amended complaint with prejudice pursuant to section 2-615.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.
¶ 38 Affirmed.