Browsing Category



Shell v Gibbs


RoseMary Shell – The Jilted Bride and $150,000


Jilted bride calls $150,000 jury award ‘justice’

RoseMary Shell gave up her job for fiancé: ‘He made a promise to me’ (click on image above)

By Bob Considine contributor

updated 8:34 a.m. CT, Fri., July. 25, 2008

Men (or women) who decide to get on bended knee: Be warned. You could find yourself on both knees, facing a judge instead of a justice of the peace.

That’s what happened in Florida this week, when a woman was awarded $150,000 after suing her former fiancé for calling off their wedding.

For RoseMary Shell, the jilted bride-to-be who left a high-paying job in Pensacola to live with her prospective partner in Gainesville, there was a “wow” in lieu of a vow.

“[I was] a little bit [surprised], but I was thrilled,” Shell told TODAY’s Meredith Vieira on Friday. “But I felt like justice was really done.”

For Wayne Gibbs, the ex-fiancé, a case of cold feet came at a price.

“Mr. Gibbs feels that the verdict did not accurately reflect the evidence and will appeal,” Hammond Law, Gibbs’ attorney, told TODAY in a statement. “In addition, there are significant legal questions to address, including, but not limited to, whether or not breach of promise to marry is a viable action under Georgia law in 2008.”

From bliss to diss

It was 2001 when Shell and Gibbs, who were each divorced with grown children, met through mutual friends and began dating.

According to Shell, the couple had intended to get married when her youngest son went off to college in 2005. When that didn’t happen, she broke up with Gibbs and moved to Pensacola, where she landed a human resources job that paid $81,000 with benefits. Trying to carry on with her life, she started to date someone new.

But in October 2006, Gibbs asked her to move back to Gainesville — and he proposed with a 2-carat diamond ring. Shell said yes. A wedding date of Dec. 2 was set.

About a month after Shell moved back in with Gibbs, however, Gibbs expressed second thoughts in a note he left in their bathroom: He wanted to postpone the wedding.

Gibbs and Shell stayed together a few more months before officially parting in March 2007. Shell chose to take legal action and sued three months later.

“Primarily because he made a promise to me and I relied on that promise and gave up a lot of things because of that promise,” Shell explained.

“And I suffered significantly for it,” she added. “I just felt like people shouldn’t be allowed to do people that way.”

During the three-day trial, Shell testified that she had given up a good salary with benefits to move back with Gibbs. In her current job, in the accounting department at North Georgia College and State University, Shell is making $31,000 a year.

Gibbs testified that he took Shell on several skiing trips during their renewed partnership, made house payments for her, and gave her $30,000 to pay off some of her credit-card debt. He claimed he got cold feet after learning she had even more debt.

Shell disputed that Gibbs was unaware of her overall debt of $42,000. “It’s simply not true,” Shell told Vieira. “We discussed my debts before I left Florida. We discussed my debts when I came back from Florida. He had a list. He knew exactly what I owed. That’s all just kind of a smokescreen.”

A precedent?After hearing the case, a Hall County jury awarded Shell $150,000 on Wednesday.


Lydia Sartain, Shell’s attorney, said her only reservations about taking on the case were over the “conservative” nature of area residents who might make up the jury.

“We really debated quite extensively whether to bring the case,” Sartain said. “But we just felt so strongly that in this case he had told her to quit her job and she relied on his promise. He came to her in Florida and moved her back into his house, took steps above and beyond the usual ‘Will you marry me, let’s plan a wedding’ and then somebody backs out.”

“Really, we believe now that he never intended to follow through on the promise to marry,” Sartain added.

Sartain also told Vieira that she hopes the case sets a precedent that an engagement can be a binding contract: “When you give your word to do something and you cause people to rely on it to their detriment, then you may be held accountable for any damages that you cause.”

As for her engagement ring, which she displayed to Vieira and TODAY viewers, Shell said she does not know the value — but she will try to sell it.

“It means nothing now,” she said.

© 2012 MSNBC Interactive



Alta WILSON et al. v. Ronnie ADKINS et al.

For Educational Use Only

Alta WILSON et al.


Ronnie ADKINS et al.

57 Ark. App. 43; 941 S.W.2d 440; 1997 Ark. App.

Court of Appeals of Arkansas, Division One

April 2, 1997, Opinion delivered

Appeal from Sebastian Circuit Court; Don R. Langston, Judge.


COUNSEL: James B. Pierce, for appellant.

Davis & Cox, by: Hal W. Davis, for appellee.

JUDGES: Terry Crabtree, Judge. Robbins, C.J., and Stroud, J., agree.

OPINION BY: Terry Crabtree


Terry Crabtree, Judge.

Appellant Alta Wilson, a resident of Florida, sued her nephew, Ronnie Adkins, in chancery court for detrimental reliance, breach of contract, and fraud stemming  from an alleged agreement in which the appellant agreed to donate bone marrow to her ailing sister in exchange  for $ 101,500.00 as compensation for risk in the procedure. The chancellor granted appellees’ motion to dismiss on the detrimental reliance count, and the case was transferred to circuit court. Appellees again moved for dismissal, pursuant to Ark. R. Civ. P. 12(b)(6), and the circuit court granted the motion on all counts. Appellants bring this appeal of the trial court’s dismissal, arguing that the complaint on its face stated the three causes of action complained of, and dismissal was therefore inappropriate. We affirm the chancellor’s dismissal based on the blatantly illegal nature of the alleged contract.

Dismissal under Rule 12(b) is a ruling on the initial complaint alleging some critical deficiency, such as jurisdiction, service of process, or failure to state a claim.

In reviewing the denial of a dismissal granted pursuant to Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). When the trial court decides Rule 12(b)(6) motions, it must look only to the complaint. Id. This court has summarized Arkansas’ requirements for pleading facts as follows:

Arkansas has adopted a clear standard to require fact pleading: “a pleading which sets forth a claim for relief . . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . .” ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.; ARCP Rule 8(f).

Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 639, 846 S.W.2d 176, 178 (1993). Malone v. Trans-States Lines, Inc., 325 Ark. 383, 386, 926 S.W.2d 659, 661 (1996).

Despite this stringent review of grants of 12(b)(6) dismissal, courts are very reluctant to allow clearly illegal contracts to survive even the pleading stage of litigation. See Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438 (1957).

Here, the complaint states in paragraph II:

That on or about the 1st day of April 1992, the Plaintiff, Alta Wilson and the Defendant Ronnie Adkins and the Defendant Georgia Adkins, now deceased, entered into an agreement whereby the Plaintiff would elect and act as a bone marrow donor for the benefit of the Defendant, Georgia Adkins.

The complaint artfully characterizes the agreement as an exchange of $101,500.00 for the risk, difficulties, and insurance consequences of appellant’s marrow donation. While appellants’ attorney goes to great lengths to disguise the nature of the contract, it is, as the trial court noted, “so intertwined and commingled that [it] cannot be separated,” and clearly falls under the rubric of federal law on the sale of human organs. Here, the complaint essentially admits that the parties contracted for an illegal sale of organs. No matter how the appellants’ attorney characterizes the transaction, the dollar amount and the consideration are telling signs that the contract is one for the sale of an organ in violation of federal law.

Title 42 of the United States Code section 274(e) provides the following:

(a) Prohibition

It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.

(b) Penalties

Any person who violates subsection (a) of this section shall be fined not more than $ 50,000 or imprisoned not more than five years, or both.

(c) Definitions

For purposes of subsection (a) of this section:

(1) The term “human organ” means the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof, including that derived from a fetus) specified by the Secretary of Health and Human Services by regulation.(2) The term “valuable consideration” does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection  [***9]  with the donation of the organ. (3) The term “interstate commerce” has the meaning prescribed for it by section 321(b) of Title 21.

While this statute does allow “reasonable payments” for the cost of the procedure and incidental expenses, it is clear that $101,500.00 is not payment for reasonable incidental expenses incurred in the organ donation, but is an illegal sale of an organ specifically prohibited by federal law.

Since the contract’s subject matter is so plainly illegal, long standing Arkansas precedent supports the trial court’s grant of 12(b)(6) relief even without a responsive pleading from the appellees.

The case of Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438 (1957), is on point in several respects. The appellant in Womack sought recovery of a bribe he allegedly paid to a local judge. The appellee demurred (roughly equivalent to a modern 12(b)(6) motion), and the trial court granted the demurrer on the grounds that a cause of action was not stated.

In considering Womack’s appeal, the Arkansas Supreme Court stated:

It is firmly established that in a situation such as is set out in the complaint the law will not aid either party to the  alleged illegal and void contract. According to the allegations in the complaint, the parties are pari delicto, hence, plaintiff cannot recover.

Id. at 787-88, 301 S.W.2d at 439. The Womack court went on to cite several instances where the plainly illegal nature of the contract was dispositive of the case.

Here, while the contract the appellants seek to enforce is not a bribe, the act of selling one’s organs is equally offensive, and just as clearly illegal as bribery. While the statute regarding organ sales is relatively modern (1986), its genesis is in a clear public policy based on long standing attitudes about transplantation of organs. “Laws regarding the removal of human tissues for transplantation implicate moral, ethical, theological, philosophical, and economic concerns which do not readily lend themselves to analysis within a traditional legal framework.” State v. Powell, 497 So. 2d 1188, 1194 (Fla. 1986). In commenting on Powell, another court noted:

For that reason, the courts should look instead to the particular statutes that were written on those subjects in an effort to balance the peculiar interests involved. Recently, the California Supreme Court said that courts should not look to conversion law but to the specialized statutes dealing “with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” Moore v. Regents of the University of California, 51 Cal. 3d 120, 271 Cal. Rptr. 146, 156, 793 P.2d 479, 489 (Cal.1990), cert. denied, 499 U.S. 936, 111 S. Ct. 1388, 113 L. Ed. 2d 444 (1991). The same could be said for resorting strictly to contract law when there is an alleged agreement for the transfer of human remains.

Perry v. Saint Francis Hosp. & Medical Ctr., 886 F. Supp. 1551, 1563 n.7 (D. Kan. 1995).

In Perry, the court addressed the issue of an alleged contract between a hospital nurse and a grieving family for the donation of tissues from a deceased patient. While the family did recover on other grounds for the hospital’s overreaching organ harvesting, the court rejected a contract approach to the communication between the family and the hospital, stating, “A contract approach is not reconcilable with societal beliefs and values on this subject.” Id. at 1563. In support of this contention, the Perry court cited the Uniform Anatomical Gift Act (1987), 8A U.L.A. 25 at § 10(a), and the federal law, discussed above, at 42 U.S.C. 274(e). Further, the court cited commentary on both the uniform law and the federal act that these laws “embody a commitment to the belief that organs should be given as a gift, either to a specific individual or to society at large.” Developments in the Law — Medical Technology and the Law, 103 Harv. L. Rev. 1519, 1622 (1990); See also Commentaries Vol. B, Ark. Code Ann. pp. 440-51 (Repl. 1995). Based on the reasoning in Perry, and the equitable concerns implicit in certain types of attempts to contract as summarized in Womack, it is wholly appropriate for a trial court to refuse to meddle in the illegal dealings of parties when the subject matter of their agreement is so clearly repulsive to public policy and federal law. Such an analysis is equally persuasive on each count (contract, detrimental reliance, and fraud) where, as in the present case, both parties were in pari delicto, or equally culpable or criminal. As stated in Womack, “Where an illegal contract has been made, neither courts of law  nor of equity will interpose to grant any relief to the parties, but will leave them where it finds them, if they have been equally cognizant of the illegality.” (Citation omitted.) Womack, 227 Ark. at 788, 301 S.W.2d at 439.

Here, it is clear on the face of appellants’ complaint that the activity amounted to a sale of organs in violation of federal law. Accordingly, the trial court’s dismissal was appropriate.


Robbins, C.J., and Stroud, J., agree.


Deli v. University of Minnesota

Katalin DELI, Respondent,



578 N.W.2d 779

Court of Appeals of Minnesota.

May 19, 1998.

Review Denied July 16, 1998.

For Educational Use Only

The former coach of a university gymnastics team brought suit against the university, alleging, inter alia, a claim for promissory estoppel regarding the university athletic director’s breach of an oral promise not to view a videotape that contained both the gymnastics team’s performance and the coach’s sexual encounter with her husband. The District Court, Hennepin County, Andrew W. Danielson, J., awarded the coach $675,000 in damages for emotional distress suffered to the time of trial. The university appealed. The Court of Appeals, Short, J., held that: (1) absent an independent tort claim, emotional distress damages were not recoverable in on the promissory estoppel claim, and (2) in any event, the coach failed to prove compensable contract damages.


Syllabus by the Court

Absent an independent tort claim, emotional distress damages are not recoverable in a promissory estoppel action.

Ronald I. Meshbesher, Meshbesher & Spence, Minneapolis, John H. Gilmore, St. Paul, and Michelle A. Chez, Wayzata, for respondent.

Mark B. Rotenberg, General Counsel, Lorie S. Gildea, Associate General Counsel, Office of General Counsel, University of Minnesota, Minneapolis, for appellant.

Considered and decided by HARTEN, P.J., and SHORT and AMUNDSON, JJ.


SHORT, Judge.

Katalin Deli seeks to hold the University of Minnesota liable for emotional distress damages arising from its athletic director’s breach of an oral promise not to view a videotape that contained both the University’s gymnastics team performance at a 1992 Florida competition and Deli’s sexual encounter with her husband in a Florida hotel room. On appeal from an award in Deli’s favor, the University argues its legal obligation and the doctrine of immunity preclude Deli’s promissory estoppel claim. In the alternative, the University argues Deli cannot recover emotional distress damages on a contract-based claim and the trial court erred by submitting Deli’s equitable claim to the jury.


Deli was head coach of the University of Minnesota women’s gymnastics team from 1973 to 1992. Her husband worked as an assistant coach from 1976 to 1992. In January 1992, Deli and her husband videotaped the team’s performance at a Florida competition using University equipment. During their Florida stay, Deli’s husband also used the University’s equipment to videotape the couple having sexual relations in their hotel room. On the airplane home, one student asked Deli’s husband if she could borrow the videotape to review the team’s performance. Deli’s husband gave the student the videotape, which contained both the Florida competition and the Delis’ hotel room encounter. Before Deli could recover the videotape, several students and another assistant coach had watched the tape. A parent of one of those students complained to the women’s athletic director about the sexually explicit videotape.

The athletic director conducted an investigation. The Delis initially said the sex scenes were accidentally recorded while the camera’s batteries were being charged. However, the athletic director discovered students were given a 1991 videotape from a competition at UCLA that also contained an earlier sexual encounter between the Delis. On March 3, 1992, the athletic director asked Deli for the Florida videotape, and orally promised that she would not view it. On March 12, the athletic director sent Deli and her husband confidential memoranda advising that failure to surrender the unaltered tapes of both the Florida and UCLA competitions by noon the following day would result in disciplinary action. On March 13, Deli surrendered only the Florida tape because her husband had erased the UCLA videotape. At the direction of the University’s legal counsel, the director reviewed and took notes on the videotape’s contents.

On April 12, 1993, the University discharged Deli for reasons unrelated to the Florida videotape. Deli v. University of Minn., 511 N.W.2d 46, 53- 54 (Minn.App.1994), review denied (Minn. Mar. 23, 1994). Following an unsuccessful challenge to her termination, Deli filed this action against the University alleging violation of Minn.Stat. §§ 13.01-.99 (1996) (Data Practices Act), breach of contract, unjust enrichment, and promissory estoppel. The trial court granted summary judgment in the University’s favor. We affirmed that judgment in part, but reversed and remanded on the data practices and promissory estoppel claims. Deli v. Hasselmo, 542 N.W.2d 649, 658 (Minn.App.1996), review denied (Minn. Apr. 26, 1996). Before trial, the court again granted summary judgment on the data practices claim. The jury returned a special verdict in favor of Deli on her promissory estoppel claim. Concluding that injustice could only be avoided through enforcement of the director’s promise, the trial court awarded Deli $675,000 in damages for emotional distress suffered to the time of trial.


Absent the existence of an independent tort claim, are emotional distress damages recoverable in Deli’s promissory estoppel action?


While we afford due regard to a trial court’s opportunity to judge witness credibility, we do not defer to a trial court’s decision on purely legal issues. See Minn. R. Civ. P. 52.01 (mandating reviewing court afford due regard to trial court’s credibility determinations); Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984) (holding appellate court need not give deference to trial court’s legal determinations). We are asked to determine whether emotional distress damages are appropriate under the “special circumstances” of Deli’s promissory estoppel claim.

Promissory estoppel implies a contract in law where no contract exists in fact. Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 283, 230 N.W.2d 588, 593 (1975). Under the doctrine of promissory estoppel, a promise may be enforced when (1) it is clear and definite, (2) the promissor intended to induce the promisee to rely on the promise, (3) the promisee detrimentally relied on the promise, and (4) enforcement of the promise is required to prevent an injustice. See Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992) (providing elements of promissory estoppel). Thus, a promissory estoppel claim sounds in contract. See Cohen, 479 N.W.2d at 390 (concluding promissory estoppel variation of contract theory); Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981) (concluding promissory estoppel is principle of contract law); see generally Comment, Once More Into the Breach: Promissory Estoppel and Traditional Damage Doctrine, 37 U. Chi. L.Rev. 559, 562-63 (1970) (noting it is clear from systematics of Restatement and its legislative history that promises enforceable under § 90 entitled to whatever remedy prescribed for breach of contract); see, e.g., Pine Valley Meats, Inc. v. Canal Capital Corp., 566 N.W.2d 357, 363-64 (Minn.App.1997) (applying contractual damages limitation to promissory estoppel claim), review denied (Minn. Sept. 18, 1997).

In the absence of specific statutory provisions, extra- contractual damages, such as emotional distress, are not recoverable for breach of contract except in exceptional cases where the breach is accompanied by an independent tort. Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 561 (Minn.1996); Haagenson v. National Farmers Union Property & Cas. Co., 277 N.W.2d 648, 652 (Minn.1979); Olson v. Rugloski, 277 N.W.2d 385, 388 (Minn.1979); Wild v. Rarig, 302 Minn. 419, 440, 234 N.W.2d 775, 789 (1975); see William Lloyd Prosser, The Borderland of Tort and Contract, in Selected Topics On the Law of Torts 380, 426 (1953) (noting in contract actions, there is no recovery for mental suffering). The accompanying independent tort must be willful and support the extra-contractual damages in its own right. Lickteig, 556 N.W.2d at 561. A malicious motive in breaking a contract will not convert a contract action into a tort action. Id.; see Wild, 302 Minn. at 442, 234 N.W.2d at 790 (concluding bad faith breach of contract does not become tort).

Extra-contractual damages, such as emotional distress, are limited to those instances in which the breach is accompanied by an independent tort to insure that contract law is not swallowed by tort law. See, e.g., State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 572 N.W.2d 321, 324 (Minn.App.1997) (holding economic loss doctrine preserves boundary between tort and contract law); cf. Grant Gilmore, The Death of Contract 87-103 (1974) (arguing approaching point where there will be no viable distinction between liability in contract or tort). The preservation of a boundary between contract and tort law is necessary to protect the specific interests and expectations each embodies. See Restatement (Second) Contracts § 1 (1979) (defining contract as promise or set of promises for breach of which law gives remedy, or performance of which law in some way recognizes as duty); W. Page Keeton, et al., Prosser and Keeton on The Law of Torts §§ 1-2, at 6-7 (5th ed.1984) (noting common thread of tort law is unreasonable interference with interests of others and its primary purpose is to compensate injured party for damages suffered at expense of wrongdoer); see also Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 227, 765 P.2d 373, 389 (1988) (holding distinction between tort and contract well grounded in common law, and divergent objectives underlie remedies created in two areas); see, e.g., William Powers, Jr., Border Wars, 72 Tex. L.Rev. 1209, 1209-10 n. 3 (1994) (explaining advantages for plaintiffs who attempt to import tort principles into commercial litigation); Prosser, supra, at 425-26 (explaining tort remedy often more advantageous to injured party because it will permit greater recovery).

Deli argues promissory estoppel is not “a contract by another name” and the “special circumstances” of her promissory estoppel claim warrant an award of emotional distress damages. See Cohen, 479 N.W.2d at 392 (concluding plaintiff in promissory estoppel action entitled to recover damages that arise directly and naturally in course of breach or are consequences of special circumstances known to or reasonably contemplated by parties when contract made); see also Walser v. Toyota Motor Sales, U.S.A., Inc., 43 F.3d 396, 401-02 (8th Cir.1994) (concluding Minnesota courts treat damages decision under Restatement (Second) § 90 as being within discretion of district court). While the inherently personal nature of the images on the videotape make this case unusual, the gravamen of Deli’s promissory estoppel claim sounds in contract. See Cohen, 479 N.W.2d at 390 (awarding same damages on promissory estoppel claim as available to plaintiff in breach of contract action); see generally Susan M. Gilles, Promises Betrayed: Breach of Confidence as a Remedy for Invasions of Privacy, 43 Buff. L.Rev. 1, 38 n. 160 (1995) (citing Cohen to support proposition that damages under promissory estoppel claim are same damages available in contract action); cf. McNeill & Assocs., Inc. v. ITT Life Ins. Corp., 446 N.W.2d 181, 187 (Minn.App.1989) (refusing to permit recovery for emotional distress where damages caused by tort are same damages caused by breach of contract), review denied (Minn. Dec. 1, 1989).

Because promissory estoppel is a contract-based claim, to recover emotional distress damages, Deli was required to plead and prove the existence of an independent tort. Despite protracted litigation in this case, Deli has never alleged the existence of an independent tort. Furthermore, on the facts of this case, the only “tort” sufficient to compensate Deli for “mental distress from having been exposed to public view” is essentially an invasion of privacy tort. See Time, Inc. v. Hill, 385 U.S. 374, 384-85 n. 9, 87 S.Ct. 534, 540- 41 n. 9, 17 L.Ed.2d 456 (1967) (concluding in right to privacy case, primary damage is mental distress from having been exposed to public view); Morgan by Chambon v. Celender, 780 F.Supp. 307, 309-10 (W.D.Pa.1992) (examining elements of judicially created invasion of privacy tort); Sabrina W. v. Willman, 4 Neb.App. 149, 540 N.W.2d 364, 368-70 (1995) (examining Nebraska’s statutory cause of action for invasion of privacy tort). Because Minnesota does not recognize a statutory or judicially created cause of action for invasion of privacy, to allow Deli to recover for emotional distress would permit her to accomplish in contract that which she is barred from accomplishing in tort. See Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 28 (Minn.1996) (concluding Minnesota has never recognized cause of action for invasion of privacy); see also Stubbs v. North Mem’l Med. Ctr., 448 N.W.2d 78, 81 (Minn.App.1989) (concluding not function of court to establish new cause of action for invasion of privacy), review denied (Minn. Jan. 12, 1990). We decline to subvert the law of contract to fashion an exception to fit the unusual facts of this case. See generally Daniel A. Farber & John H. Matheson, Beyond Promissory Estoppel: Contract Law and the “Invisible Handshake,” 52 U. Chi. L.Rev. 903, 905 (1985) (concluding expansion of promissory estoppel not proof that contract in process of being swallowed by tort, but rather that promissory estoppel being transformed into new theory of distinctly contractual relationships); cf. Mark Gergen, A Cautionary Tale About Contractual Good Faith in Texas, 72 Tex. L.Rev. 1235, 1236 (1994) (concluding extension of tort of bad faith breach into contract cases to award emotional damages for breach is doctrinally unsound and bad policy).

Even assuming emotional distress damages were appropriate in this case, Deli failed to offer any medical testimony regarding her alleged emotional distress. See Lickteig, 556 N.W.2d at 560 (holding court reluctant to expand availability of emotional distress damages because concerned such claims may be speculative and so likely to lead to fictitious allegations that there is potential for abuse of judicial process); Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 257 n. 3 (Minn.1993) (concluding emotional distress is highly subjective, often transient, and easily alleged); see, e.g., Born v. Medico Life Ins. Co., 428 N.W.2d 585, 590 (Minn.App.1988) (holding lack of any medical testimony to substantiate plaintiff’s claim of physical manifestations and physical distress precluded finding of intentional infliction of emotional distress), review denied (Minn. Nov. 16, 1988). Deli argues the testimony of four witnesses sufficiently substantiates her distress and, alternatively, the facts of this case logically support her claims for mental anguish. However, the testimony provided by Deli to support her emotional distress claim consisted solely of her own testimony regarding her mental state and the testimony of three colleagues who based their conclusions on phone calls and personal observations. In the absence of any medical testimony, such testimony fails to provide the “guarantees of trustworthiness” necessary to overcome the speculative nature of this claim because we cannot be certain of the extent of her distress and can only speculate as to its source. See Lickteig, 556 N.W.2d at 559-60 (concluding, even where plaintiff establishes tortious conduct, court careful to award emotional distress damages to plaintiffs who prove emotional injury under circumstances tending to guarantee its genuineness); see, e.g., Potthoff v. Jefferson Lines, Inc., 363 N.W.2d 771, 777 (Minn.App.1985) (concluding plaintiff’s own testimony of mental state insufficient to establish emotional distress damages absent evidence plaintiff saw physician or psychologist for treatment of emotional problems). Because we conclude Deli failed to prove compensable contract damages, we need not address the University’s alternative grounds for reversal.


The trial court erred in awarding emotional distress damages on Deli’s contract-based claim because Deli failed to allege or prove the existence of an independent tort.



How to Brief a Case

Name of the Case:  Who are the parties involved in this dispute? Who (plaintiff) is suing whom (defendant)?




Procedural Posture: How did the case get to the court?  Where is this case being heard?

Case History:  What happened at the trial court level?

Case Description: What type of case is it?  A contract dispute?  A negligence claim?

Facts of the Case These are the underlying facts — not who sued whom or what the trial court did, but what happened to create the dispute in the first place.     What do the plaintiffs or defendants want?




Issues:  The issue should state the question before the court in a manner that captures the procedural posture, but also reflects the facts of the case. For example: “Did the trial court err by refusing to give the defendant’s proposed jury instruction on comparative fault where the evidence showed the plaintiff had been drinking before taking the boat out on the lake?”




Decision and Analysis:  The holding or decision is the answer to the question posed in the “Issue” statement. It is the reason, or the justification, for the court’s conclusion that the plaintiff or defendant ought to prevail on appeal. It is, more generally, a rule that explains how a case with similar facts should be decided. A court may answer the issue presented above in the following way: “If the defendant produces evidence that the plaintiff had been drinking before the accident, the trial court must instruct the jury on comparative fault.” What did the court hold and why?  Is there a dissent?