This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Richard Schackmann, Sandra
Schackmann, parents and
natural guardians of Adam Schackmann,
The Cathedral High School,
St. Cloud, Minnesota,
Stearns County District Court
File No. C2-03-1352
Gordon H. Hansmeier, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for appellants)
Peter A. Donohue, Michael E. Novak, Donohue Novak at Law,
Considered and decided by Minge, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
Appellants challenge the dismissal by summary judgment of their claims against respondent school for defamation, negligent infliction of emotional distress, due process, and breach of contract. Appellants also contend that the timing of the summary judgment motion violated the scheduling order. We conclude that it was not an abuse of discretion for the district court to consider the summary judgment motion. Further, because appellants were not compelled to self-publish statements made by the school, because negligent infliction of emotional distress requires a viable defamation claim, because the school is not a state actor for purposes of due-process rights, and because there is no evidence of recoverable damages to sustain recovery on the breach-of-contract claim, we affirm.
was a senior at respondent
On Saturday, December 1, 2001, the school was burglarized and vandalized. Adam had basketball practice at the school early in the day. That evening, he and two of his classmates returned to the locked school. Adam represented that their reasons for returning were to retrieve items that he and one of his friends had left. Adam said he saw a police vehicle at the school as they arrived. Adam and his friends entered the school through a door that one of the friends had propped open earlier in the day. They brought a flashlight, walked through several areas of the school and were in the building for half an hour. Adam did not retrieve the items for which he had allegedly come. At one point, the three went to see what the police were investigating. They were arrested as they stepped out of an elevator. At the police station, the boys were interviewed, and according to one of the officers, their statements differed regarding when they saw the police and why they went to the school. Fingerprints, blood, and broken glass were found at the scene of the burglary; Adam and his friends consented to giving police fingerprint samples and turned over their shoes and sample clothing to be tested for physical evidence.
Police evaluation of the situation was mixed. On the night of the burglary, one unidentified officer informed a group of individuals, including the president of the school, that in that officer’s opinion, Adam and his friends were not involved in the burglary. This information was conveyed to the principal and the dean of students. However, the officer responsible for the investigation was suspicious of Adam and his friends because of inconsistencies in their statements. Although the boys’ prints and clothing did not match the evidence collected from the scene, the police continued to investigate them for a year. Ultimately, no charges were filed against them.
Approximately two days after the burglary, the school principal and the dean of students met with Adam and his parents, as well as the two other students. The principal and the dean of students found the students’ statements inconsistent and felt that Adam did not tell the whole truth. Adam and his parents left the meeting “feeling that [the principal] and [the dean of students] felt that our son had lied, and that he was involved in this incident at Cathedral with a fourth person.”
The principal and the dean of students determined that the three students had committed the following violations: entered the building without authorization, evaded the police, were not honest with the principal or the dean of students, and endangered their own safety. Although the principal and the dean of students are ultimately responsible for disciplining the students, they referred the matter to the Student Assistance Team (SAT) for review and possible sanctions. One of the members of SAT is a school counselor who is employed by the school district with public funds.
The SAT recommended
that the three students be suspended from school for the remainder of the
semester and from extracurricular activities for the remainder of the school
year. The principal and the dean of
students decided to follow that recommendation. The school then notified appellants that Adam
had three choices: accept the suspension, appeal the decision, or withdraw from
school. Adam chose to withdraw. Adam enrolled in
In March 2003, Adam and his parents filed a complaint against the school claiming negligent and intentional infliction of emotion distress, defamation, denial of due process, and breach of contract. On September 3, 2004, the school filed a motion for summary judgment, which the district court granted, dismissing the case. This appeal followed.
first issue is whether the district court erred in hearing the school’s motion
for summary judgment after the deadline established in the scheduling order for
dispositive motions. The scheduling
order was entered pursuant to Minn. R. Civ. P. 16, which governs pretrial
matters. A district court’s decision to
modify a pretrial order is reviewed under an abuse-of-discretion standard. See
Cortroneo v. Pilney, 343 N.W.2d 645, 648 (
In June 2003, the district court issued a scheduling order that stated that all dispositive motions must be served and filed no later than March 1, 2004. The scheduling order also stated that discovery should be completed by February 1, 2004; that the pretrial settlement conference should take place on March 1, 2004; that both parties should file complete witness and exhibit lists for the pretrial conference; and that the trial should begin on March 15, 2004.
The scheduling order timetable was modified. Discovery continued throughout 2004 and included appellants serving a request for the production of documents in October 2004. The trial was rescheduled for December 2004.
Next, we apply the Cortroneo factors to this case. The first is prejudice to respondent. Respondent would have been prejudiced by a failure to depart from the scheduling order because disposition by summary judgment avoided the time and expense of proceeding with a trial. The second factor is prejudice to appellant. Prejudice to appellants was minimal because they already had the benefit of extended discovery. In any event, appellants had an opportunity to respond to the motion and did not indicate that they intended to file any additional evidence. The third factor is impact on the proceeding. Respondent filed its motion for summary judgment in September, approximately three months before the rescheduled trial was to begin. Except for the original scheduling order, nothing at that stage of the proceeding would preclude respondent from bringing a motion for summary judgment. Finally, there are no allegations of bad faith or inexcusable neglect. In these circumstances, the district court did not abuse its discretion in hearing the summary judgment motion.
The second issue is whether the district court erred in dismissing appellants’ claim for defamation.
In an appeal from
a grant of summary judgment, appellate courts determine if there are any
genuine issues of material fact and if the district court erred in its
application of the law. N. States Power Co. v.
To establish a
claim for defamation, the claimant must offer proof of (1) a false statement;
(2) communication to a third party; and (3) resulting harm to the claimant’s
reputation and standing in the community. Weinberger
In Lewis, four employees who were
discharged for gross insubordination brought an action against their former
employer arguing that they were defamed because the employer knew that they
would have to repeat the reason for their discharges to prospective
Here, the alleged
defamatory statements occurred during a conversation between appellants and
school officials held approximately two days after the burglary. Appellants claim that the defamatory
statements were accusations by school officials that “our boys were in fact
trespassing, that they were associated with the fourth person in the break-in,
with the vandalism.” Appellants argue
that they were compelled to self-publish the false statements because of their
disclosures to the following: the individual in charge of admissions, the
athletic director, and the principal at
Appellants concede that the self-publication cases arise primarily in the employment setting, and appellants ask us to extend the self-publication concept to withdrawals from school. Although it is possible for a claimant to be compelled to self-publish defamatory statements in the school setting, there is no evidence that appellants were so compelled in this case. Adam withdrew and the suspension was not on his record. We decline to assume appellants were compelled to self-publish the specific statements by the school officials. Because appellants have not made a prima facie showing that they were compelled to self-publish, their claim for defamation fails, and we do not need to decide whether there are genuine issues of material fact as to whether the statements were false or whether the school’s statements were privileged.
The third issue is
whether the district court erred in dismissing appellants’ claim for negligent
infliction of emotional distress. In a
claim for negligent infliction of emotional distress, a plaintiff “may recover
damages for mental anguish or suffering for a direct invasion of his rights,
such as defamation, malicious prosecution, or other willful, wanton or
malicious conduct.” Bohdan v. Alltool Mfg., Co., 411 N.W.2d 902, 907 (
The fourth issue
is whether the district court erred in finding that the school was not a state
actor and dismissing appellants’ due-process claim. The Fourteenth Amendment prohibits the states
from denying federal constitutional rights and guarantees due process, and it applies
to acts of the states, not to acts of private persons or entities. Rendell-Baker
v. Kohn, 457
argue that the school was a state actor because a school counselor position was
funded by the state. Respondent cites
Supreme Court precedent that states that public funding does not make a program’s
administrative decisions acts of the state. Blum v.
Here, it is undisputed that the school is a private, religious school. One of the nine members of the SAT committee is a publicly funded school counselor who was present during the SAT discussion and voted on SAT’s decision to recommend suspension for all three students. Without legal support, appellants reiterate their argument that because one member of the SAT committee was publicly funded and the SAT committee made a recommendation that the principal and the dean of students chose to follow, this transformed the school into a state actor. But according to Rendell-Baker, the school maintains its private character even though it receives partial government funding. In this case the funding is limited. Therefore, the district court did not err in dismissing appellants’ due-process claims because respondent is not a state actor.
The fifth issue is
whether the district court erred in dismissing appellants’ breach-of-contract
claim. Appellants argue that the school’s
handbook created a contract between appellants and the school.
“A breach of
contract claim fails as a matter of law if the plaintiff cannot establish that
he or she has been damaged by the alleged breach.” Jensen
Here, appellants concede
that it is not possible to put Adam back in the position he would have been in
had respondent not breached its alleged contract. Rather, they claim that they were damaged
because Adam did not receive a diploma from