I looked at the Appendix Table of Contents from the Supreme Court document linked by calmom, and believe that the statement on page App. 7a from the Judgment of the Court of Appeals is consistent with what I have posted: “In reviewing this decision de novo, we need not address whether a material breach occurred because the Adetus’ argument fails for another reason: they seek damages that may not properly be awarded under our case law.” Damages could not properly be awarded because the complaint was based on emotional distress. This applies to Counts 1, 2, and 5 of the amended complaint.
Because all four conditions are required for the court to find remediable breach, and damages are one of the required conditions, the Court of Appeals did not consider the facts of Counts 1, 2, and 5. If there had been damages that the court could consider (not emotional distress), then the facts would have been reviewed de novo. But they were not. This did let stand whatever conclusion the lower court had reached.
Sidwell Friends “agreed to recalculate ‘with explanation’ Dayo’s Math II grades for the 2011-2012 year” (App. 23a from the Superior Court). This agreement was apparently reached after Spring 2013, based on the mention of a Spring 2013 grade in the court record (see page App. 23a from the Superior Court). I don’t know how the school could have agreed to recalculate Dayo’s Math II grades, when the records had been shredded. From the timeline of events, it appears to me that they were already shredded by Spring 2013.
Perhaps the people drawing up the settlement on behalf of the school did not know at that point that the records from Math II had been shredded. I have to assume that, because I don’t know how one can agree in good faith to an element of a settlement that one knows is impossible to perform.
We don’t exactly know what happened or did not happen. I would not make an automatic presumption in favor of the school, based on all the information that is out there. The remarks against “possible, probable” seem mainly to be directed at anyone suggesting that Dayo was not exactly treated well. Maybe I am reading them wrong, though.