This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Ryan Aldrich, et al.,


Northwest Technical College,


Filed July 11, 2001

Appeal dismissed in part, reversed and remanded in part

Peterson, Judge


Clay County District Court

File No. C600117


Todd W. Foss, Stefanson, Plambeck, Foss & Fisher, P.O. Box 1287, 403 Center Avenue, Suite 302, Moorhead, MN  56561-1287 (for respondents)


Mike Hatch, Attorney General, Francis C. Ling, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN  55101-2128


            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N



            In this appeal from an order denying its motion for summary judgment, appellant Northwest Technical College (NTC) argues that it has statutory and official immunity from respondents’ claims for breach of contract and fraud and misrepresentation.  We dismiss the appeal in part and reverse and remand in part.


            NTC is a public post-secondary educational institution.  Respondents are 20 former NTC students.  In fall 1998, NTC offered a two-year program in Internet design technology.  During the first two years that the program was offered, students had several concerns about the program and complained to NTC.  When the students were not satisfied with NTC’s efforts to correct the problems, they filed suit against NTC alleging claims for breach of contract and for fraud and misrepresentation. 

For their breach-of-contract claim, the students alleged that NTC made several representations about the Internet design technology program to induce them to enroll in the program, that they entered into a contractual relationship with NTC, and that NTC breached its contract with them by failing to provide the education that NTC expressly and impliedly promised to provide.

For their fraud and misrepresentation claim, the students alleged that certain representations that NTC made about the Internet design technology program were false.

NTC moved for summary judgment on several grounds, including that the students’ claims against it were barred by the doctrines of official and statutory immunity.  The district court denied the motion for summary judgment, and NTC appealed.


Contract Claim


A party may bring an immediate appeal from a trial court’s denial of a motion for summary judgment based upon a claim of immunity.  An order denying summary judgment is otherwise generally not appealable, and interlocutory review is not appropriate on issues which do not involve immunity from suit.


McDonough v. City of Rosemount, 503 N.W.2d 493, 496 (Minn. App. 1993), review denied (Minn. Sept. 10, 1993) (citations omitted).

            The students brought a breach-of-contract action against NTC.  Citing Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 473 (Minn. App. 1999), NTC argued in support of its summary judgment motion that the students’ contract claim is really an educational-malpractice claim.  NTC argued further that because educational malpractice is a tort, it is immune from suit under the doctrines of statutory immunity and official immunity. 

In Alsides, this court held that educational malpractice is not an actionable claim in Minnesota.  But this court also recognized in Alsides

that a student may bring an action against an educational institution for breach of contract, fraud, or misrepresentation, if it is alleged that the institution failed to perform on specific promises it made to the student and the claim “would not involve an ‘inquiry into the nuances of educational processes and theories.’”


Id. (quoting Ryan v. University of N.C. Hosps., 494 S.E.2d 789, 791 (N.C. App. 1998), cert. granted, 510 S.E.2d 655 (N.C. Jul. 8, 1998), and appeal dismissed, 507 S.E.2d 39 (N.C. Dec. 4, 1998)).

            The district court concluded that the claims the students asserted were sufficiently specific to state a viable contract claim and that the doctrines of statutory immunity and official immunity do not apply to contract claims.  NTC does not dispute that immunity does not bar a contract claim.  See McDonough, 503 N.W.2d at 497 (“Generally, sovereign immunity does not apply to contractual obligations.”).  Instead, NTC argues that because the district court determined as a matter of law that immunity does not bar the students’ contract claim, the order denying summary judgment on the contract claim is properly before us, and we should review the district court’s determination that the students asserted a viable contract claim.  We disagree.

            Whether the students alleged a viable contract claim or an educational-malpractice claim is not an immunity issue.  In fact, there is no way that resolving this question will lead to a conclusion that NTC has immunity.  If the claim were determined to be an educational-malpractice claim, it would be subject to dismissal because, under Alsides, such claims are not recognized in Minnesota.  And if the claim were determined to be a contract claim, NTC would not have immunity. 

            We conclude that NTC’s argument that the students’ claim is an educational-malpractice claim rather than a contract claim does not raise an immunity issue but, instead, raises a defense to liability.  Consequently, NTC is not entitled to interlocutory review of the denial of its motion for summary judgment on the students’ contract claim, and we dismiss this part of the appeal.

Fraud and Misrepresentation Claim

            NTC also argues that the students’ fraud and misrepresentation claim is barred by statutory immunity and by official immunity.  The district court determined that under Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988), statutory immunity “is limited to decisions which involve the balancing of competing public policy considerations.”  The district court also determined that courts distinguish between planning or policymaking decisions, which are protected by immunity, and operational level decisions, which are not protected.  The district court then concluded that NTC was not entitled to statutory immunity from the students’ fraud and misrepresentation claim because

the claimed misrepresentations do not involve the establishment of school policies or the wisdom of such policies, but rather the failure to follow established policy.  The failure to teach students to become web designers, to provide sufficient computers, syllabi, instructors, classroom space, network connections, tables and chairs, and software, and to hold classes as scheduled do not involve balancing policy considerations or discretion, but rather simple failure to put the web site design course plan into effect.


The district court did not address official immunity.

            We conclude that the district court improperly analyzed NTC’s claim that the students’ fraud and misrepresentation claim is barred by statutory immunity.  Citing Vandeputte v. Soderholm, 298 Minn. 505, 507-08, 216 N.W.2d 144, 146 (Minn. 1974), the district court recognized that the elements of a fraudulent misrepresentation claim are:

1.                  That there was a false representation regarding a past or present fact;

2.                  The fact must be material and susceptible of knowledge;

3.                  The representer must either know that the statement was false when made, or assert it as his or her own knowledge without knowing whether it was true or false;

4.                  The representer must intend to induce the claimant to act or justify the claimant acting;

5.                  The claimant must be induced to act or be justified in acting in reliance upon the representation;

6.                  The claimant must suffer damages; and

7.                  The representation must be the proximate cause of the claimant’s damages.


The students’ fraud and misrepresentation claim is based on statements that the students claim NTC made about the Internet design technology course.  Making the statements is the alleged tortious conduct.  The district court did not consider whether NTC balanced competing policy considerations when it made the statements that the students alleged were false.  Instead, the court considered whether NTC’s alleged failure to do the things that the students claim that NTC said it would do involved balancing policy considerations or discretion.  The court concluded that NTC’s failure to do what it said it would do was an operational decision to which immunity did not apply.  The court should have considered whether making the statements involved a policy decision or an operational decision.

Because the district court improperly analyzed NTC’s statutory immunity claim and did not address NTC’s official immunity claim, we reverse the denial of summary judgment on the statutory immunity claim and remand for further consideration of NTC’s claim that it is entitled to statutory and official immunity from the students’ fraud and misrepresentation claim.

            Appeal dismissed in part, reversed and remanded in part.