United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1151

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Stacy Kellar, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Bob Wills, also known as W. B. Wills, *

doing business as Mountain Park * [UNPUBLISHED]

Boarding Academy, also known as *

Bobby Ray Wills; Betty Sue Wills; *

Sam Gerhardt, doing business as *

Mountain Park Boarding Academy; *

Deborah Gerhardt, doing business as *

Mountain Park Boarding Academy, *

*

Appellees. *

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Submitted: July 6, 2006

Filed: July 19, 2006 

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Before MELLOY, FAGG, and BENTON, Circuit Judges.

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PER CURIAM.
1

The Honorable Charles A. Shaw, United States District Judge for the Eastern

District of Missouri. 

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Following an adverse jury verdict on battery and negligence claims, Stacy

Kellar appeals the district court’s1

 sua sponte pre-trial dismissal of her claims of false

imprisonment and intentional infliction of emotional distress (IIED) against several

employees (defendants) at the Mountain Park Boarding Academy (MPBA).

The district court dismissed Kellar’s false-imprisonment and IIED claims at a

hearing on defendants’ motions in limine to bar evidence crucial to those claims.

Because the court considered evidence outside the pleadings, we view the dismissals

as effectively a sua sponte grant of partial summary judgment. See Kuhn v. Nat'l

Ass’n of Letter Carriers, Branch 5, 528 F.2d 767, 770 n.4 (8th Cir. 1976) (treating

dismissal as summary judgment because matters outside pleadings were considered).

Kellar had notice and an opportunity to oppose the dismissal of her claims because she

was aware of defendants’ affirmative defenses to the claims, she fully responded to

defendants’ motions in limine, and she argued the viability of her claims at the pretrial hearing. We therefore hold that it was not reversible error for the court to grant

summary judgment sua sponte. See Hubbard v. Parker, 994 F.2d 529, 531 (8th Cir.

1993) (district court may sua sponte grant summary judgment under Fed. R. Civ. P.

56 as long as party against whom judgment was entered was given sufficient advance

notice and adequate opportunity to show why summary judgment should not be

granted); cf. Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir. 1995) (where court

converted defendant’s request for dismissal into motion for summary judgment, lack

of formal notice was harmless because nonmoving party had adequate opportunity to

respond to motion, and material facts were neither disputed nor missing from record;

plaintiff had constructive notice that right of defendants to judgment as a matter of law

was at issue). 
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We conclude that, even when the record is viewed in the light most favorable

to Kellar, defendants are entitled to judgment as a matter of law on her falseimprisonment claim because Kellar cannot genuinely dispute the fact that her mother

consented to her enrollment at MPBA with full knowledge of MPBA’s programs and

restrictions. See Blair v. Wills, 420 F.3d 823, 828-29 (8th Cir. 2005) (de novo review

of grant of summary judgment; false imprisonment occurs under Missouri law when

plaintiff is confined without his consent and without legal justification; although

Missouri courts have not addressed specifically whether private school may be liable

for false imprisonment when custodial parent consents to child’s enrollment and

attendance at school, plaintiff cannot maintain an action when parents consented to

enrollment at boarding school with full knowledge of school’s programs and

restrictions, because under Missouri statutory law, parents exercise authority over

custody, care, and management of their children, and may delegate that authority on

behalf of their minor children), cert. denied, 126 S. Ct. 1470 (2006); Dairy Farmers

of Am., Inc. v. Travelers Ins. Co., 292 F.3d 567, 572 (8th Cir. 2002) (applying Erie

doctrine).

To the extent Kellar asserts that her mother was defrauded by MPBA officials

and would not have consented to enrolling Kellar at MPBA had she been aware of

how Kellar would be treated, we conclude that the issue was not properly before the

district court because it was a new theory of liability, not asserted in her complaint.

See Woods v. Wills, 400 F. Supp. 2d 1145, 1186 (E.D. Mo. 2005) (party cannot assert

new theory of case in defending summary judgment motion or expand claim in

attempt to create material issue of fact where none existed before). 

Regarding Kellar’s IIED claim, her expert witness, Dr. Jeffrey Kline, Ph.D.,

conceded that he is a psychologist, not a medical doctor, and does nothing related to

the practice of medicine. Therefore, we conclude that the court did not abuse its

discretion in excluding his non-medical testimony concerning Kellar's alleged

emotional distress. See United States v. Radtke, 415 F.3d 826, 840 (8th Cir. 2005)
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(court reviews exclusion of evidence for abuse of discretion); United States v. Malik,

345 F.3d 999, 1001 (8th Cir. 2003) (citing Fed. R. Evid. 103(a) (2000)) (once district

court makes definitive ruling excluding evidence, party does not need to renew

objection to preserve claim of error for appeal); Gordon v. City of Kansas City, Mo.,

241 F.3d 997, 1004 (8th Cir. 2001) (under Missouri law, to recover for emotional

distress where no physical injury is involved there must be expert medical testimony

that emotional distress or mental injury was medically significant).

We further hold that the district court did not commit reversible error in

granting summary judgment for defendants on Kellar’s IIED claim because, without

Dr. Kline’s testimony, Kellar could not create a genuine issue of fact as to whether she

suffered a medically diagnosable and medically significant emotional injury. See Bass

v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo. banc 1983) (absent allegation of

physical injury, plaintiff cannot prevail on IIED claim unless she demonstrates

“emotional distress or mental injury” which “must be medically diagnosable and must

be of sufficient severity so as to be medically significant”).

Accordingly, we affirm.

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