Roger O'Connor, Appellant, vs. State of Minnesota, et al., Respondents, Independent School District No. 625, et al., Respondents. C6-97-1310, Court of Appeals Unpublished, January 27, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-97-1310

Roger O'Connor,

Appellant,

vs.

State of Minnesota, et al.,

Respondents,

Independent School District No. 625, et al.,

Respondents.

Filed January 27, 1998

Affirmed

Davies, Judge

Ramsey County District Court

File No. C79613449

Philip G. Villaume, Philip G. Villaume and Associates, 7900 International Drive, Suite 675, Bloomington, MN 55425 (for appellant)

Hubert H. Humphrey III, Attorney General, Steven M. Gunn, David A. Rowley, Kristine Legler Kaplan, Assistant Attorneys General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2128 (for respondent state)

Timothy J. Pawlenty, Karen A. Janisch, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402 (for respondent ISD No. 625)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Appellant seeks reversal of the district court's dismissal of his case against respondents State of Minnesota and its St. Paul Technical College and reversal of the court's grant of summary judgment in favor of respondents Independent School District No. 625 and Donovan Schwichtenberg. He also seeks reversal of the court's award of sanctions against him. We affirm.

FACTS

Appellant Roger O'Connor was employed by respondent Independent School District No. 625 (school district). In February 1990, the school district suspended O'Connor and proposed his immediate discharge. A resignation agreement was reached in April 1990 (1990 agreement), and O'Connor, as part of the agreement, resigned his employment. The school district agreed that it would thereafter respond to inquiries about O'Connor's employment with a confirmation of his employment dates and a recommendation letter.

O'Connor alleged that in 1994 the school district breached the terms of this 1990 agreement by improperly disclosing that he had been terminated. In June 1995, the school district and O'Connor entered into a settlement agreement (1995 agreement). The school district agreed to pay O'Connor $7,190 in cash, to restore his seniority, to reinstate him to a teaching position in the district effective June 10, 1995, and to assign him to a teaching position at St. Paul Technical College (technical college) beginning in the 1995 fall quarter. In return, O'Connor agreed to release the school district from all claims arising out of the 1990 agreement. He also agreed to waive "any and all rights * * * to employment with School District and * * * become an employee of the State of Minnesota effective July 1, 1995."

Effective July 1, 1995, Minnesota's vocational-technical colleges were merged with the state college and university system and the technical college was transferred from the school district to respondent State of Minnesota. Following the merger, the president of the technical college, respondent Donovan Schwichtenberg, now a state employee, refused to appoint O'Connor to a position at the school.

In October 1995, O'Connor initiated, by petition for writ of certiorari, an action against the Board of Trustees of the Minnesota State Colleges and Universities, the school district, the technical college, and Schwichtenberg, challenging the state's refusal to acknowledge him as a state employee despite his being listed on the faculty roster submitted by the school district. This court affirmed the refusal, holding that the school district's "promise of employment with the state, a stranger to the agreement, is plainly unenforceable against the state." O'Connor v. Board of Trustees, No. C1-95-2294, unpub. op. at 4 (Minn. App. Apr. 23, 1996) (O'Connor I), review denied (Minn. June 19, 1996).

Appellant then brought this lawsuit against respondents, alleging breach of contract and various tort claims. Respondents moved to dismiss or for summary judgment. The state collectively (respondents state, technical college, and Schwichtenberg) also moved for sanctions. The district court granted the motions for dismissal and for summary judgment and dismissed O'Connor's complaint with prejudice. The court also awarded $1,000 to the state in sanctions against O'Connor and his counsel "for commencement of frivolous litigation." O'Connor now brings this appeal.

D E C I S I O N

On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). "A reviewing court is not bound by a district court's determination of a purely legal issue." Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn. App. 1993). The availability of res judicata and collateral estoppel is subject to de novo review. In re Trusts Created by Hormel, 504 N.W.2d 505, 509 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993); Erickson v. Commissioner of Dep't of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992).

I. Claims Based on the 1995 Agreement

O'Connor argues that this court, in O'Connor I, was faced with the limited issue of whether the state improperly terminated his employment. O'Connor claims that, because this court did not determine any breach of contract or tort claims, the doctrines of collateral estoppel and res judicata do not now apply.

Collateral estoppel bars a subsequent suit, even if based on a different cause of action, if issues material to that claim were already decided in the earlier proceeding. Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). The doctrine applies where there are: (1) an identical issue; (2) a final judgment on the merits; (3) the same parties or privity between the parties; and (4) "a full and fair opportunity to be heard on the adjudicated issue." Id. We hold that collateral estoppel applies here, and we do not reach the res judicata issue.

A. Breach of Contract Claim

O'Connor argues that the state's refusal to acknowledge O'Connor as an employee of the technical college breached the 1995 settlement agreement. This issue is identical to the one before this court in O'Connor I. Although described by O'Connor as an employment termination action, he was, in fact, challenging the state's refusal to honor the promise of employment contained in the 1995 agreement. O'Connor I, unpub. op. at 3. In affirming the state's refusal, this court addressed the enforceability of the agreement and concluded:

The promise of employment is thus illusory--a hollow promise--because it merely gave O'Connor a district job with one clause and took it away with another. * * * The illusory promises here provide no basis for an enforceable settlement agreement and thus the state properly refused to recognize O'Connor as an employee.

Id. at 4. Because the promise of employment was not enforceable, the state's decision not to assign O'Connor to a teaching position did not constitute breach of the 1995 agreement. O'Connor cannot now bring another action founded on breach of that same agreement, for the elements of collateral estoppel have been met.[1]

B. Tort Claims

O'Connor also asserts claims of intentional infliction of emotional distress, tortious interference with contract, and negligent supervision. O'Connor argues that these claims, because they are tort claims, are separate from the employment termination issue before this court in O'Connor I.

1. Intentional Infliction of Emotional Distress

O'Connor alleges that Schwichtenberg, acting within the scope of his employment, intentionally inflicted emotional distress on him. O'Connor also alleges that the school district and state are vicariously liable under the doctrine of respondeat superior. But O'Connor fails to support this claim. We do not assign error without having specific cause to do so. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) ("assignment of error based on

mere assertion and not supported by any argument or authorities" is waived on appeal unless there is obvious prejudicial error). Because O'Connor has failed to develop this claim, we do not consider it further.

2. Tortious Interference with Contract

O'Connor next alleges that Schwichtenberg intentionally, and without justification, procured the breach of the 1995 agreement. To establish a claim of tortious interference with contract, a party must show that: (1) a contract existed; (2) the interfering person had knowledge of the contract; (3) the interference was intentional; (4) the interference was not justified; and (5) damages resulted from the interference. Royal Realty Co. v. Levin, 244 Minn. 288, 292, 69 N.W.2d 667, 671 (1955)). Appellant's allegation fails, and collateral estoppel bars his claim, because this court determined in O'Connor I that the 1995 agreement was unenforceable against the state.

3. Negligent Supervision

O'Connor also alleges that the school district breached its duty to supervise by allowing Schwichtenberg "to refuse to acknowledge [O'Connor] as an employee of St. Paul Technical College." At the time of the alleged breach of the 1995 agreement, the school district no longer supervised Schwichtenberg. Authority and responsibility for Schwichtenberg and the technical college had been transferred from the school district to the state. For this reason, O'Connor's claim against the school district for negligent supervision fails.

II. 1990 Agreement

O'Connor also argues that respondent school district breached the 1990 agreement by disclosing to an inquirer that O'Connor's employment status was "terminated, do not rehire." This issue was not addressed by this court in O'Connor I and therefore is not barred by res judicata or collateral estoppel.

The claim is barred, however, by the terms of the 1995 agreement. According to the 1995 agreement, O'Connor agreed to release the school district from all claims arising out of the 1990 agreement. As consideration for this release, O'Connor accepted $7,190, as well as the school district's promises to reinstate him to a teaching position, restore his seniority, and assign him to teach in the technical school beginning with the 1995 fall quarter.

This 1995 settlement agreement, though in part unenforceable, constitutes an accord and satisfaction of any claims for breach of the 1990 resignation agreement. See Action Instruments Co. v. HI-G, Inc., 359 N.W.2d 664, 666 (Minn. App. 1984) (accord and satisfaction is discharge of contract or cause of action by substitution of another contract between parties, and execution of that contract); Ladwig & Ladwig, Inc. v. Orlin Ladwig, Inc., 372 N.W.2d 408, 411 (Minn. App. 1985) (if parties objectively intended new promise to constitute full settlement of original claim, defense of accord and satisfaction is established). The 1995 agreement specifically references the 1990 agreement and the alleged breach of that agreement. It also sets forth the parties' express intention that its promises are intended to "resolve all claims and matters" previously alleged by O'Connor against the school district. O'Connor admits that the school district (and Schwichtenberg, while a district employee) performed its duties under the agreement. O'Connor, therefore, is barred from bringing a suit on the 1990 agreement.

The district court did not err in granting summary judgment on O'Connor's claim against respondent district for breach of the 1990 agreement.

III. Sanctions

An award of sanctions pursuant to Minn. R. Civ. P. 11 is reviewed under an abuse of discretion standard. Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990). Under this standard, a reviewing court must determine whether there was

an objectively reasonable basis for pursuing a factual or legal claim or [whether] a competent attorney could form a reasonable belief [that] a pleading is well-grounded in fact and law.

Id. at 143.

Here, appellant's claims against the state lack "an objectively reasonable basis." The present action against the state is nothing more than an attempt to relitigate issues already decided in O'Connor I. The district court did not abuse its discretion in granting sanctions against O'Connor in favor of the state.

Respondent state's request on appeal for additional sanctions in the form of attorney fees against O'Connor and his counsel is granted. O'Connor should have realized that he had no actionable claims against the state under the 1995 agreement; his continued pursuit of these claims is frivolous. See Knecht Bros. v. Ames Constr., Inc., 404 N.W.2d 859, 861 (Minn. App. 1987) (pursuit of frivolous claim on appeal may justify award of attorney fees).

Respondent state shall file documentation of the fees incurred within 10 days after this opinion is filed. O'Connor has five days after service of the documentation to file a response.

Affirmed.

[ ]¹ Although O'Connor I dealt primarily with the enforceability of the 1995 agreement against the state (the board of trustees, technical college, and Schwichtenberg), the opinion also implied that O'Connor had no cause of action against the school district. See O'Connor, unpub. op. at 4 (illusory promises provide no basis for contract claim). Further, if O'Connor believed the school district was in any way responsible for the state's refusal to acknowledge him as an employee, O'Connor was obligated to raise the issue in O'Connor I.