Appendix — Yarcheski v. Reiner

APPENDIX A: MEMORANDUM OPINION OF

THE FIRST JUDICIAL CIRCUIT COURT

(YANKTON, SOUTH DAKOTA), THE

HONORABLE ARTHUR L. RUSCH, AUGUST

10, 2002, FILED AUGUST 12, 2002

Thomas J. Yarcheski,

Plaintiff

Vv.

Kevin Reiner, Celia Miner, and Johnson, Heidepreim,

Miner, Marlow & Janklow, LLP,

Defendants

(CV-00-44, Yankton County)

This matter is before the Court pursuant to the

derendants’ motion for summary judgment. Defendants filed

a brief in support of their motion on December 21, 2001.

Plaintiff (who is acting pro se in this matter) filed a 45-page

objection to the defendants’ motion for summary judgment

and response to their supporting brief on March 5, 2002.

Defendants filed a reply brief on April 1, 2002 and plaintiff

then filed a “Final Response to the Defendant’s Motion for

Summary Judgment and Addition to the Plaintiff's Counter-

Motion for Summary Judgment” dated April 8, 2002. Oral

argument was had on the motion on May 7, 2002.

FACTS

Plaintiff was employed by the University of South

Dakota as an Associate Professor in the School of Business

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for the 1991-1992 school year.’ During his first year of

employment the University determined not to renew his

contract.

Plaintiff then employed attorney Celia Miner to assist

him in taking appropriate appeals. Miner directed Kevin

Reiner, an associate in the Johnson, Heidepreim, Miner,

Marlow & Janklow law firm, to assist her. Miner and Reiner

pursued an appeal to the South Dakota Board of Regents and

South Dakota Department of Labor. Plaintiff lost at both

stages.

Plaintiff then directed Miner and Reiner to file an appeal

of the Department of Labor decision to the Circuit Court.

The Notice of Appeal was filed on March 10, 1994 (Hughes

County CIV 94-105). Although Reiner left the law firm in

1994, he prepared an opening brief to the Circuit Court

which was served on April 13, 1995.

The South Dakota Board of Regents moved to dismiss

the appeal because the brief had not been within one year.

On July 10, 1995, the Circuit Court in Hughes County

dismissed the appeal. Plaintiff appealed that dismissal to the

South Dakota Supreme Court (Appeal #19329). On

December 9, 1996, the South Dakota Supreme Court

summarily affirméd the decision of the Circuit Court

dismissing plaintiff s appeal.

PROCEDURAL HISTORY

On January 28, 2000, plaintiff commenced this action

alleging legal malpractice by Reiner, Miner and their law

firm. Initially plaintiff was represented by attorney Bruce

Anderson of Wagner and defendants were represented by

attorney William Fuller of Sioux Fails.

' His employment contract incorporated the COHE (Council of Higher

Education) contract by reference.

In February of 2000, Fuller removed this action to the

United States District Court. However, on its own motion,

the District Court held that removal was improper and

remanded the case back to the First Circuit Court.

Thereafter present counsel began _ representing

defendants. Beginning in September of 200, they made

extensive efforts to depose the plaintiff. On January 19,

2001 plaintiff's attorney moved this Court to determine

where plaintiffs deposition should be taken. On January 24,

2001 this Court heard that motion, construing it as a motion

for a protective order authorized under SDCL § 15-6-26(c.

The Court denied plaintiff's request to order that his

deposition be taken in Maine and set the deposition for

January 31, 2001.

Thereafter, attorney Bruce Anderson moved to withdraw

but, at plaintiff's request, filed a petition for an intermediate

appeal of this decision. Plaintiff objected to his attorney’s

withdrawal. On March 13, 2001, this Court allowed Bruce

Anderson to withdraw from the case effective after the

taking of the deposition on May 2" Later that order was

modified to be effective immediately.” In the fourteen

months that have elapsed since that time plaintiff has been

unable to find any other attorneys willing to represent him.

On February 14, 2001, defendants moved the Court for

an order compelling plaintiff to appear for his deposition.

On March 2, 2001, this Court entered an order compelling

plaintiff to appear to have his deposition taken on May 2,

* The Court allowed attorney Anderson to withdraw from the case

because of plaintiff's abusive and threatening conduct towards him.

Despite the fact that plaintiff was objecting to Anderson’s withdrawal, he

was sending communications to him threatening him with complaints to

the bar ethics committee, claiming that he was “professionally impaired”

and stating “Please seek clinical treatment.” The Court concluded that

these statements by plaintiff demonstrated such a breakdown of the

attorney/client relationship that no reasonable attorney could continue to

represent him under those circumstances.

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2001. On March 9, 2001, the Supreme Court denied the

petition for intermediate appeal.

On December 21, 2001, defendants moved for summary

judgment based upon two volumes of exhibits as well as

separate affidavits of Thomas Welk and Celia Miner. On

January 7, 2002, plaintiff moved to stay the motion for

summary judgment and for an expedited hearing on his

motion to stay. On January 14, 2002 this Court stayed the

proceedings to the extent of extending the briefing schedule.

On March 5, 2002, plaintiff filed a further motion for a

continuance in the summary judgment proceedings. On

March 6" this Court denied that motion. On March 5" the

plaintiff also filed a “Counter-Motion for Summary

Judgment.” At the hearing on May 7, 2002 the Court denied

plaintiff's motion for summary judgment. Plaintiff then filed

a petition for an intermediate appeal of that decision. On

June 26, 2002, the Supreme Court denied that petition for an

intermediate appeal.

DECISION

I. STANDARD OF REVIEW

Summary judgment is proper only when the moving

party shows that such relief is merited as a matter of law

because there are no genuine issues of material fact. First

Western Bank v. Livestock Yards, 444 NW2d 387 (SD

1989). Caneva v. Miners and Merchants Bank, 335 NW2d

339 (SD 1983). Summary judgment is an extreme remedy,

which should only be granted when there are no genuine

issues of material fact.’ It is not a substitute for a trial when

3 In Weiss v. Van Norman, 1997 SD 40, 562 NW2d 113 the South

Dakota Supreme Court stated: “A disputed fact is not ‘material’ unless it

would affect the outcome of the suit under the governing substantive law

in that a ‘reasonable jury could return a verdict for the nonmoving

party.”” Parsons v. Dacy, 502 NW 2d 108, 110 (SD 1993) (quoting

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iin

there are genuine issues. The burden of proof is upon the

moving party to show clearly that there are no genuine issues

of material fact and that they are entitled to judgment as a

matter of law. Klatt v. Continental Ins. Co., 409 NW2d 366

(SD 1987). Summary judgment is only appropriate when the

court determines that the pleadings, depositions, answers to

interrogatories, and admissions on file, together with any

affidavits of the parties, reveal that there are no genuine

issues of material fact and that the moving party is entitled to

judgment as a matter of law. SDCL § 15-6-56(c); Breen v.

Dakota Gear & Joint CO., Inc., 433 NW2d 221, 223 (SD

1988). A mere surmise that a party will not prevail at trial is

not a sufficient basis to grant summary judgment.

In addressing a motion for summary judgment: (1) the

burden of proof is on the moving party; (2) the court views

the evidence most favorably to the non-moving party; (3)

summary judgment is not a substitute for trial: (4) summary

judgment is not appropriately granted just because the court

believes the non-moving party will not prevail at trial; and

(5) summary judgment is an extreme remedy and should be

awarded only on a clear showing of the necessary elements.

Wilson _v. Great Northern RR. Co., 157 NW2d 19 (SD

1968); Production Credit Ass’n v. Wynne, 474 NW2d 735,

737-38 (SD 1991).

While the moving party has the burden of showing that

there are no genuine issues of material fact, the non-moving

party cannot merely rest on the pleading, but must present

Anderson v. Liberty Lobby. Inc., 477 US 242. 248, 106 SCt 2505, 2510,

91 Led2d 202, 212 (1986); see also Celotex Corp. v. Catrett, 477 US 317,

322-23, 106 SCt 2548, 2552, 91 Led2d 265, 273 ( 1986) (stating that the

rule “mandates the entry of summary judgment...against a party who

fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden

of proof at trial. In such a situation, there can be ‘no genuine issue as to

any material fact,’ since a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all

other facts immaterial.”).

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specific facts by way of “...affidavits or as otherwise

provided in § 15-6-56...” setting forth specific facts showing

the existence of genuine issues of material fact. Baatz v.

Arrow Bar, 452 NW2d 138 (SD 1990). Mere general

allegations or denials will not prevent the issuance of

summary judgment. Weiszhaar Farms, Inc. v. Livestock

State Bank, 467 NW2d 752 (SD 1991); Werner v. Norwest

Bank of South Dakota, N.A., 499 NW2d 138 (SD 1993).

The party opposing summary judgment must establish the

specific facts which show that a genuine and material issue

for trial exists. Anderson v. Production Credit Ass’n, 482

NW2d 642, 644 (SD 1992).

Il. A “CASE WITHIN A CASE.”

This action is one for legal malpractice arising from

defendants’ failure to timely file a brief in plaintiff's appeal

from an adverse decision of the Department of Labor. This

resulted in a dismissal of the appeal. The dismissal was

upheld by the Supreme Court.

Because of the fact that this is an action for legal

malpractice, the plaintiff has the burden of proving a “case

within a case.”

In a legal malpractice case, the plaintiff

must prove:

1. the existence of an attorney-client

relationship giving rise to a duty;

> that the attorney, either my an act or

a failure to act, violated or breached

that duty;

3. that the attorney’s breach of duty

proximately caused injury to the

client; and

4. that the client sustained actual

injury, loss or damage.

(citations). Concerning the third element,

proximate cause, Meiselman states:

[I]n attorney malpractice, the causal

requirement is worded in the negative. For

example, it is often said that the plaintiff can

recover against the defendant-attorney only

when it can be shown that the injury would

not have occurred “but for” the negligence of

the lawyer. Thus, the plaintiff must establish

that the total or partial loss would not have

occurred had it not been for some act or

Omission on the part of the attorney. In other

words, the plaintiff must show that “but for”

the negligence of the lawyer, the client’s

cause of action or defense against a claim in

the underlying action would have been

successful. Meiselman, supra at 40.

A client’s burden of proving injury as a

result of his attorney’s negligence is

especially difficult to meet when the

attorney’s conduct prevented the client from

bringing his original cause of action or the

attorney’s failure to appear caused judgment

to be entered against him as a defendant. In

addition to proving negligence a client must

show that but for his attorney’s negligence he

would have been successful in the original

litigation. “‘Accordingly, the client seeking

recovery from his attorney is faced with the

difficult task of proving two cases within a

single proceeding.”” (citation).

The manner in which the plaintiff can

establish what should have transpired in the

underlying action is to recreate, i.e. litigate, an

action which was never tried. This procedure

of recreating the underlying action is know as

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a suit within a suit, a trial within a trial, an

action within an action, a case within a case,

to name but a few of the designations.

(citations). The objective is to establish what

the result would have been had the case been

filed. (citation). This is the accepted and

traditional means of resolving the issues

involved in the underlying proceedings in a

legal malpractice action. Id. This procedure

amounts to trying tow separate and distinct

lawsuits.

Thus, the plaintiff in a legal malpractice

case has not only to prove the four elements

basic to negligence cases, but may be asked to

prove three additional factors: 1) that the

underlying claim was valid, 2) that it would

have resulted in a favorable judgment had it

not been for the attorney’s error, and 3) the

amount of the judgment and that the judgment

was collectible. (citation).

Haberer_v. Rice, 511 NW2d 279, 284-285 (SD 1994).

Consequently, one of the essential elements of plaintiff's

claim is that he would have succeeded in his appeal. It

doesn’t matter how negligent defendants were, unless

plaintiff would have prevailed on the appeal because he

suffered no damages as a result.

Il. THE TRIAL COURT MUST _ DECIDE

WHETHER THE APPEAL WOULD HAVE

BEEN SUCCESSFUL.

By this motion for summary judgment, defendants argue

that plaintiff's underlying appeal (from the decision of the

Department of Labor) was without merit and would not have

resulted in a favorable decision even if defendants had not

erred. If the issue of the success of the underlying appeal is

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for the jury to determine, then there is a genuine issue of

material facts and the motion for summary judgment must be

denied. However, if that issue is for the Court to decide,

then the matter can be reviewed by this Court and a

determination made as to whether the underlying appeal

would or would not have been successful.

Haberer talks about different ways in which the “case

within a case” or “trial within a trial” can be submitted to a

jury. However, this case is different in that the underlying

Case in where the error was allegedly made was an

administrative appeal (see SDCL chpt. 1-26). They are not

normally triable to a jury.

é An appeal shall be allowed in the circuit

court to any party in a contested case from a

final decision, ruling or action of an agency.

SDCL § 1-26-30.2.

The review shall be conducted by the court

without a jury and shall be confined to the

record. A trial de novo shall not be granted

unless otherwise authorized by law... SDCL

§ 1-26-35.

Two recent cases in which issues the same as, or similar to,

those in plaintiff's underlying appeal were decided by the

Court (without a jury) include Beville v. University of South

Dakota, 420 NW2d 9 (SD 1988) and McCauley v. South

Dakota School of Mines & Technology, 488 NW2d 53 (SD

1992).

The issue of whether the case within a case (plaintiff s

appeal) should be decided by the court or by a jury appears

to be a matter of first impression in South Dakota. However

this issue was addressed by the Supreme Court of Michigan

in Charles Reinhart Co v. Winiemko, 513 NW2d 773 (Mich,

1994). In that case the Court said:

“Since the basic premise of trying the

underlying action is to prove what the result

Should have been, the guiding principle in

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identifying issues of law and fact is to utilize

the same classification as should have been

applied in the underlying case." (citation).

Thus, whether an appeal lost because of an

attorney's negligence would have succeeded

if properly pursued is an issue for the court

because the resolution of the underlying

appeal originally would have rested on a

decision of law. (citation). With rare

exception, appeals are based on and resolved

as matters of law, not fact. (citation). Thus,

an appellate malpractice action presents an

issue of law regarding the success of the

underlying appeal within its proximate cause

analysis.

At 777. The Reinhart Court further quoted with approval the

reasoning of the Texas Supreme Court in Millhouse_v.

Wiesenthal, 775 SW2d 626, 628 (Tex 1989):

...[Plaintiff’s] petition that the jury should

make this determination as a question of fact

would require the jury to sit as appellate

judges, review the trial record and briefs and

decide whether the trial court committed

reversible error. A judge is clearly in a better

position to make this determination.

IV. ANALYSIS OF THE CASE WITHIN A CASE

The underlying case is an appeal from a decision of the

South Dakota Department of Labor. This is an administrative

appeal under SDCL chpt. 1-26. Plaintiff argued in his appeal

that: 1) the University failed to comply with the provisions

of the COHE contract in his termination and 2) the actions of

the University administration infringed on his academic

freedom.

1]

The appellant has a heavy burden in appeals such as this.

Great deference is given to findings of fact by the

administrative agency and decisions of the agency must be

upheld unless the decision is clearly erroneous or unless the

court is left with a definite and firm conviction that a mistake

has been made.

This court reviews the record of

administrative agencies in the same manner as

the circuit court. SDCL 1-26-37. Appeal of

Hendrickson’s Health Care, 462 NW2d 655

(SD 1990); Peery v. Department __of

Agriculture, 402 NW2d 695 (SD 1987); In

Matter of Application of Northwestern Bell

Tel. Co., 382 NW2d 413 (SD 1986). Since

the circuit court affirmed Department’s

findings of fact and conclusions of law in

their entirety, our review is of the agency’s

findings and conclusions. Matter of Midwest

Motor Exp., Inc., Bismarck, 431 NW2d 160

(SD 1988).

Conclusions of law are given no deference

on appeal and are freely reviewable. SDCL

1-26-36. Hendrickson’s, 462 NW2d at 656;

Karras v. State, Dept. of Revenue, 441 NW2d

678 (SD 1989); Sharp v. Sharp, 422 NW2d

443 (SD 1988)). Questions of fact, however,

are given greater deference. SDCL 1-26-36.

This court does not substitute its judgment for

Department’s on the weight of evidence

pertaining to questions of fact unless

Department’s decision is clearly erroneous, or

is arbitrary, capricious, or characterized by an

abuse of discretion or a clearly unwarranted

exercise of discretion. Finch v. Northwest

School Dist. No. 52-3, 417 NW2d 875 (SD

1988)); Perman_v. Dept. of Labor, Unemp.

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Ins. D., 411 NW2nd 113 (SD 1987)); Appeal

of Templeton, 403 NW2d 398 (SD 1987));

Anderson v. Western Dakota Insurors, 393

NW2d 87 (SD 1986). We will not reverse an

agency decision unless we are left with a

definite and firm conviction that a mistake has

been committed. Finck, 417 NW2d at 878;

Matter of Midwest, 431 NW2d at 162; Dakota

Harvestore v. S.D. Dept. of Revenue, 331

NW2d 828 (SD 1983); Fraser v. Water Rights

Commission, Etc., 294 NW2d 784 (SD 1980).

McCauley, supra at 55.

A. Violation of the COHE Contract

Plaintiff argues that, because defendants filed a brief on

his behalf claiming that his appeal had merit, they can not

now claim that he would have lost the appeal. In effect he

claims that every lawyer is a guarantor of the positions that

they take in court. If plaintiff's appeal is determined to be

meritorious merely because defendants filled a brief for him,

arguing that it was meritorious, then no attorney could afford

to take any novel, complicated or difficult case. This would

have a chilling effect on the availability of representation in

new or novel cases. See Charles Reinhart Co. v. Winiemko,

supra, footnote 16.

Plaintiff lost at both the ened of Regents and the

Department of Labor levels. Following the Department of

Labor hearing, the Administrative Law Judge (ALJ) made

the following conclusion of law:

Conclusion of Law II. The procedure

followed by the University of South Dakota in

connection with non-renewal of Petitioner’s

contract was lawful and complied in all

respects with the requirements of the

~

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negotiated labor agreement and the applicable

polices of the University of South Dakota.

Construction of contracts is a question of law for the

Court. Alverson v. Northwestern Nat’! Cas. Co., 1997 SD 9,

15, 559 NW2d 234, 235; Olson v. United States Fidelity and

Guar. Co., 1996 SD 66, 96, 549 NW 2d 199, 200. “The

primary rule in construction of contracts is that the court

must, if possible, ascertain and give effect to the mutual

intention of the parties.” § & S Trucking v. Whitewood

Motors, Inc., 346 NW2d 297 299 (SD 1994) (citing GMS,

Inc. v. Deadwood Social Club, Inc., 333 NW2d 442 (SD

1983); Forester v. Weber, 298 NW2d 96 (SD 1980)). “In

determining the intent of the parties, we must consider the

entire contract.” /d. (citing Chord v. Pacer Corp., 326 NW2d

224 (SD 1982).

An ambiguous contract will be construed against its

drafter but the fact that the parties differ as to the contract’s

interpretation does not create an ambiguity. Alverson, supra

at 98. In interpreting contracts, the Courts should use

reasonable interpretations without stretching terminology.

Opperman v. Heritage Mutual Ins. Co., 1997 SD 85, 914, 566

NW2d 487, 490 (citing State Farm Mut. Auto Ins. Co. v.

Vostad, 520 NW2d 273, 275 (SD1994)).

In his hearing before the ALJ, Plaintiff argued that the

University administration violated §§ 1.7 and 2.1 through 2.3

of the COHE contract. He claims that they failed to provide

him with the faculty evaluation which is mandated by those

sections.

It should first be noted that substantial compliance with

the contract procedures is all that is necessary. It need not be

perfect. The burden is on plaintiff to show that the claimed

contractual violations prejudiced his substantial rights.

Beville v. University of South Dakota, supra at 13-14.

The ALJ found that the procedure followed by the

University in connection with non-renewal of Petitioner’s

contract was lawful and complied in all respects with the

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requirements of the negotiated labor agreement and the

applicable policies of the University of South Dakota.

Plaintiff contends that the ALJ’s findings would have been

reversed on appeal because there were violations of § 1.7

(Nonrenewal of Tenure Tract Contracts). That section

provides, in relevant part:

Prior to the issuance of a written notice of

nonrenewal, the faculty unit member’s

immediate supervisor will provide the

opportunity for a meeting with the faculty unit

member to apprise the faculty unit member of

the proposed action. The faculty unit member

must be given at least five (5) working days

written notice of such meeting so that both the

faculty unit member and the immediate

supervisor may arrange to have present a

witness or a representative.

In order to facilitate the relocation of

faculty unit members who are not to be

rehired, the administration agrees to provide

notice of its intent not to rehire any faculty

unit members serving under a tenure track

contract. The notice will state the reasons for

the decision and will be given in accordance

with the following schedule.

l. A faculty unit member who has

completed less than one (1) academic

year of service under a tenure track

contract shall receive written notice of

nonrenewal from the institution before

March 1 of the current year of

appointment.

The facts of this case are undisputed. Plaintiff was a

faculty unit member who had completed less than one

academic year of service. He had a meeting with his

supervisor in which he was advised of the proposed action

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(February 27"). He received written notice of non-renewal

from the institution before March 1 of the current year of

appointment and the notice stated the reasons for the

decision (February 29").

Plaintiff argues that the institution’s internal working

papers should also have stated the reasons for the non-

renewal decision. There is nothing ambiguous about this

portion of the contract. The clear and plain meaning of the

terms of the contract do not impose this requirement. The

existence of the rights and obligations of parties to a contract

are determined by the language of the contract, which must

be construed according to the plain meaning of its terms.

Western Cas. & Sur. Co. v. Waisanen, 653 FSupp 825, 827

(DSD 1987) (applying South Dakota law on a duty to defend

issue); Alverson v. Northwestern Nat. Cas. Co., 1997 SD 9,

18, 559 NW2d 234, 236; Biegler v. American family Mut.

Ins. Co, 2001 SD 13, 20, 621 NW2d 592, __. The

contract doesn’t require that the internal working papers

contain a statement of the reasons as long as the notice to the

party being terminated contains the reasons. This Court will

not impose requirements in a contract that the parties didn’t

include. The ALJ was correct in finding that there was no

breach of this portion of the contract.

Plaintiff also claims that his supervisor had made up his

mind about non-renewal prior to the meeting held on

February 27". By the terms of the COHE contract,

plaintiff's supervisor was obligated to tell him at this

meeting of the “proposed action.” The supervisor

necessarily had to have made up his mind about what he was

going to do before the meeting, as he was obligated to

convey that information to the plaintiff at the meeting. The

ALJ was correct in finding that there was no breach of this

portion of the contract.

The ALJ made a determination that the evaluation had

taken place which is a factual finding to which this Court

must give great deference. The court must uphold this

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pene

finding if there is any evidence to support it. The court does

not substitute its judgment for Department’s on the weight of

evidence pertaining to questions of fact unless Department’s

decision is clearly erroneous, or is arbitrary, capricious, or

characterized by an abuse of discretion or a clearly

unwarranted exercise of discretion.

In this case there was evidence of an evaluation done by

plaintiff's supervisor. There was also evidence of numerous

other contacts between plaintiff, his supervisor and the

associate dean, in an effort to improve his teaching

performance.* Clearly there was a substantial compliance

with the evaluation portions of the COHE contract. This

court will not substitute its judgment for the Department of

Labor’s. The Department’s findings are not clearly

erroneous, or arbitrary, capricious, or characterized by an

abuse of discretion or a clearly unwarranted exercise of

discretion.

It also appears that the ALJ found that §§ 2.1 through

2.3 of the COHE contract have no application to the renewal

of a contract, which would be a conclusion of law subject to

a de novo review by this Court.

. § 1.7 is one portion of the COHE contract dealing with

“Nonrenewal of Tenure Track Contracts.” §§ 2.1 through

2.4 is a completely separate portion of the contract dealing

with “Evaluations.” No portion of 1.7 incorporates or refers

to the Evaluation portion. No portion of 2.1 through 2.4

incorporates re refers to non-renewal of employment

contracts. In fact, §2.1(5)(e) indicates that the evaluation

* Plaintiff admits that an evaluation took place because he attacks the

statements made in the evaluation. His supervisor indicated in the

evaluation that student evaluations of plaintiff were unfavorable.

Plaintiff attacks this as a violation of § 2.3(3) of Division II of the COHE

contract. However, plaintiff ignores the explicit language of § 2.3 which

allows the use of student opinion surveys as part of the evaluation

process provided that they are corroborated.

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process can be used to justify alternative disciplines but

makes no mention of non-renewal decisions.

Under different facts, but in a similar context, the

Supreme Court in Beville v. University of South Dakota,

supra held that a portion of the COHE Contract dealing with

prescriptive plans had nothing to do with portion of the

COHE Contract dealing with tenure decisions.

§ 1.7 of Division II of the COHE contract dealing with

“Nonrenewal of Tenure Track Contracts” appears to be a

complete and comprehensive procedure for handling non-

renewal decisions. No part of that complete procedure

involves evaluations. § 7.1(4) of Division I indicates that

one of the purposes of the evaluations is to provide

information for personnel decisions such as contract renewal.

Noting in this section indicates that evaluations are the sole

and exclusive source of information for personnel decisions.

Most importantly, nothing in this section indicates that

personnel decisions can not be made in the absence of an

evaluation. The caption for this section cross-references to

Division II, Article II and Division III, Article II but does not

cross-reference to Division II, Article I (which contains the

non-renewal sections). There is no portion of the COHE

contract which supports plaintiffs premise that a properly

completed faculty evaluation is a prerequisite to renewal

decisions. This Court concludes that ALJ was correct in

finding that §§ 2.1 through 2.3 of the COHE contract have

no application to the non-renewal procedure set out in § 1.7

of the contract.

Plaintiff also complains that the Student Opinion

Surveys were the “controlling criterion” in the non-renewal

decision. There is nothing in the\record which supports this

claim. As pointed out above (in footnote 4) Student Opinion

Surveys may be used as part of the evaluation process.

Plaintiff errs in equating the evaluation and the non-renewal

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process. In addition, the meaning of the term “controlling”

goes far beyond the meaning of “primary.”

B. Academic Freedom

The second issue raised by plaintiff is his claim that the

actions of the University Administration infringed on his

academic freedom. In regard to that claim the ALJ found as

follows:

Finding of Fact XI. Myers and Reinke made

no attempt to foist upon Petitioner certain

methods of teaching or course content.

And

Conclusion of Law _ III. Petitioner’s

academic freedom was not infringed in any

manner.

There were both findings of fact and a conclusion of law

involved in this issue. As pointed out above, conclusions of

law are given no deference on appeal and are freely

reviewable but, in regard to findings of fact, the court does

not substitute its judgment for the ALJ’s on the weight of

evidence pertaining to questions of fact unless the ALJ’s

decision is clearly erroneous, or is arbitrary, capricious, or

characterized by an abuse of discretion or a Clearly

unwarranted exercise of discretion.

After a full review of the facts in this case, this Court

can not find any evidence that either plaintiff's supervisor or

the associate dean infringed on his academic freedom in any

manner. Plaintiff's arguments are essentially contradictory.

He argues that his supervisor didn’t make enough of an

effort to help him change his teaching to comply with their

Control means to exercise control over, to dominate or direct while

primary means the first or highest in rank of importance. An item can be

primary without being controlling.

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rll

expectations but on the other hand, he argues that the efforts

which were made, infringed on his academic freedom. This

Court does not find that this finding by the Department is

clearly erroneous, or is arbitrary, capricious, or characterized

by an abuse of discretion or a clearly unwarranted exercise

of discretion. This Court will uphold the decision of the ALJ

in finding that there was no infringement on plaintiff's

academic freedom.

CONCLUSION

While not in any way justifying any negligence or

failure on the part of defendants which prevented plaintiff

from having his appeal fully and fairly heard, this Court

concludes that plaintiff would not have prevailed in his

appeal. Consequently, he did not suffer any loss or

detriment as a result of the alleged negligence on the part of

defendants. Defendants motion for summary judgment is

granted. Counsel for defendants may prepare an order in

accordance with this memorandum opinion.

Cc: Yankton County Clerk of Courts (original for the file)

20

APPENDIX B: OPINION, APPEAL #22617,

SOUTH DAKOTA SUPREME COURT,

APPEAL FROM THE FIRST JUDICIAL

CIRCUIT, YANKTON COUNTY, SOUTH

DAKOTA, HORABLE ARTHUR L. RUSCH,

JUDGE, FILED SEPTEMBER 3, 2003

Thomas J. Yarcheski

Appellant

Vv.

Kevin Reiner, Celia Miner, and Johnson, Heidepreim,

Miner, Marlow & Janklow, LLP,

Appellees

Considered on briefs on April 24, 2003

Judges: Before: Chief Justice David Gilbertson, Justices

Richard W. Sabers, John K. Konenkamp, Judith K.

Meierhenry, and Retired Justice Robert A. Miller (sitting

for Steven L. Zinter, disqualified); Opinion by

Konenkamp

21

[{1.] Following his unsuccessful challenge to the

procedures by which his university tenure-track contract was

not renewed, plaintiff appealed in circuit court. His appeal

was dismissed, however, when his attorneys submitted an

untimely brief. He then brought a legal malpractice suit

against his attorneys. In granting summary judgment for the

attorneys, the circuit court ruled that plaintiff would not have

prevailed in his administrative appeal even if his brief had

been timely filed.

I.

[{2.] Plaintiff, Thomas J. Yarcheski, Ph.D., was a first-

year tenure track faculty member employed at the University

of South Dakota during the 1991-92 school year. He served

as an Associate Professor, teaching Health Services

Administration at the School of Business. Early in his first

semester, several students came to Associate Dean Robert

Reinke with complaints about Yarcheski’s teaching. These

ranged from criticism of his arrogance in the classroom to

dissatisfaction with his disorganized teaching _ style.

Yarcheski later acknowledged that his teaching style differed

from what many students expected. In was his object to

pursue greater academic standards than those sought by his

colleagues on the faculty.’ To this end, he required more

student interaction, avoided lecturing directly from the text,

and chose not to design his lectures simply to provide an

outline of material.

His previous position was Associate Professor and Program Director

at St. Joseph’s College in Maine. Although Yarcheski quotes the

President of St. Joseph’s in rating his teaching performance as

“masterful,” his contract there was also not renewed because of his

teaching performance. He filed a grievance claiming that the college did

not follow proper procedures for nonrenewal. His grievance was

unsuccessful, as was his subsequent lawsuit.

22

[q3.] As a result of the complaints, Reinke and the

Director of the Department of Health Services

Administration, Professor Michael J. Myers, met with

Yarcheski informally several times to make suggestions on

how he might improve the organization and presentation of

his course material. Yarcheski was not altogether responsive

to these suggestions. For instance, he _ reacted

inappropriately to the suggestion that he refer to the textbook

during his lectures. He returned to his class and read the text

to the students—“If you want to be involved with the text,

Pll get you involved in the text.”

[94.] Reinke and Myers also suggested to Yarcheski that

they attend his classes and that a student committee be

created to expedite student feedback. Yarcheski declined

both suggestions. He said that their attending his classes

would undermine his credibility. He told them, “I [want to]

solve the problem myself.” As to the student committee

idea, Yarcheski thought that it would violate his academic

freedom. Although they had the authority to override his

requests, Myers and Reinke acquiesced. “Hang in there,”

Yarcheski told them, “Ill turn this around; I’ve been down

this road before.”

[q5.] As an alternative, -Yarcheski suggested that in

addition to the student evaluation forms used by the

university that “Harvard” evaluations forms be distributed.

Harvard evaluations are open-ended invitations to students to

evaluate their learning experience. After reviewing the

Harvard evaluations completed at the end of the fall

semester, Myers sent Yarcheski a memorandum dated

January 20, 1992, outlining steps to be taken in the next nine

days. The steps included attendance by Myers and Reinke in

Yarcheski’s classes, their review of student research papers

and examinations, a self-assessment and corrective action

plan to be prepared by Yarcheski, and a redistribution of the

Harvard evaluation forms. Myers explained the reason for

these measures:

fA HE STE Vs TS AR a VD ARR

aaa

The issue of contract renewal, as you can

appreciate, has arisen in the wake of the

widespread student criticism of your teaching

technique and presentation. That criticism

was generally affirmed in the “Harvard”

evaluations submitted by the students in your

Long-Term Care and Systems courses, offset

[by] a minority view that was favorable.

The memorandum explained that the university’s internal

deadline for recommending contract renewal was January

31. These steps, Myers wrote, “will allow us to substantiate

a rationale for contract renewal, or if we are unable to obtain

a more favorable assessment, provide a fair and objective

basis for nonrenewal.””

[16. ] Parts of this plan were never completed. Yarcheski

gave Myers two grocery bags containing student work

product, but Myers deemed this material irrelevant because it

“would not permit a basis for meaningful comparative

assessment of teaching performance.” Myers had previously

seen copies of student papers with Yarcheski’s commentary

and “markup,” and on at least one prior occasion, he

reviewed a draft copy of one of Yarcheski’s exams. Both

Reinke and Myers attended one of Yarcheski’s classes.

Although neither reduced their findings to writing, they

informed Yarcheski directly of their observations. Myers

told him on January 24 that his class presentation was “fairly

rambling” and that it was not “a particularly well-taught

class.” Reinke also told him that the class he observed was

“in general, poorly conducted.” Reinke also told Myers that

. In the fall semester, Reinke explained to Yarcheski that the

assessment “criteria we use is thoroughly described in the faculty

handbook under teaching, research, and service.” The handbook

categorizes performance as excellent, satisfactory, unsatisfactory, and

provides descriptions. Reinke and Myers told Yarcheski that their

assessment of his performance was directly related to “the competencies

described in the faculty handbook in regards to teaching.”

24

he “was not satisfied with the style and the content of the

class.” Myers passed this on to Yarcheski. In response,

Yarcheski sent Reinke a memorandum documenting their

communication on these observations.”

[97.] In a letter dated January 31, 1992, Myers

recommended to the Dean and Associate Dean that

Yarcheski’s contract not be renewed. In turn, the Dean sent

a memorandum to the Vice President of Academic Affairs:

Consistent with the guidelines set forth in the

BOR/COHE Agreement Division II, Section

1.7, I am recommending that [Dr.] Thomas

Yarcheski, Health Services Administration,...

be notified that [he] will not be offered a

faculty contract FY 93. Dr. Yarcheski began

his work with us FY 92 on a tenure track

contract and has been unable to provide the

Health Services program with the level of

teaching performance necessary to maintain

HSAD’s quality reputation. After numerous

meetings with related

supervisors/administrators, classroom

observations, and substantial student input, I

am not convinced that Dr. Yarcheski is

willing or perhaps able to change his teaching

behavior enough to meet the standards of our

program.

[98.] On February 20, 1992, Myers gave Yarcheski his

Professional Staff Evaluation, as required by the Agreement

between the South Dakota Board of Regents and the Council

of Higher Education (BOR/COHE). In his evaluation

3

When later questioned in the grievance hearing, Reinke said that he

thought Yarcheski was warm and caring with the students as individuals,

but his deficiencies were in the classroom. According to Reinke,

Yarcheski “would be an excellent graduate-level instructor,” having a

“great mind,” but he was not “communicating well.” was not “instructing

his undergraduate students well.”

25

instrument, Myers rated Yarcheski unsatisfactory in

teaching. The accompanying comment stated, “[s]tudent

evaluations indicated students did not learn relevant material.

Indicated assignments were not helpful, and there was a lack

of systematic presentations.” Yarcheski was also rated

unsatisfactory in research but excellent in service.

[99.] In a letter dated February 19, 1992, Yarcheski was

given written notice of his opportunity to meet with Myers

on February 27, 1992, before the issuance of a notice of

nonrenewal. This meeting was held as scheduled. Finally,

on February 29, 1992, University President Betty Turner

Asher informed Yarcheski by letter that his contract would

not be renewed for the 1992-93 academic year. The letter

explained “[t]he reason for this action is inadequate

teaching.”

[910.] Yarcheski filed three grievances. The first was

before the notice of nonrenewal, requesting abrogation of the

recommendations of nonrenewal and formal participation in

the process of professional evaluation. The second was on

the performance evaluation. The third was in response to his

notice of nonrenewal. The grist of his complaints was that

his nonrenewal resulted solely from student evaluations. As

he would later explain, “the evaluation of teaching

performance belongs to the professoriat; we have a duty to

evaluate each other; I don’t believe it’s the duty of students

to evaluate the professoriat.” The grievances were denied.

(911.] Yarcheski hired attorney Celia Miner of the

Johnson, Heidepreim, Miner, Marlow & Janklow law firm.

Kevin Reiner, an associate in the firm, assisted her. They

pursued an appeal to the South Dakota Board of Regents and

the Department of Labor. Both ruled against Yarcheski,

concluding that proper nonrenewal procedures were

followed.

26

[]12.] Yarcheski then directed his attorneys to appeal the

Department of Labor’s decision to the circuit court.* A

Notice of Appeal was filed on March 10, 1994. Although

Reiner left the law firm in 1994, he assisted in preparing an

opening brief, which was submitted on April 13, 1995. On

the motion of the South Dakota Board of Regents, the circuit

court dismissed the appeal because the brief had not been

timely filed. Yarcheski appealed to this Court, and we

summarily affirmed.

[713.] Yarcheski then brought this legal malpractice

action against Reiner, Miner, and their law firm. Following

the withdrawal of his new attorney, Yarcheski decided to

represent himself. Both sides moved for summary judgment.

The circuit court ruled that Yarcheski would not have

prevailed on his administrative appeal, and thus his legal

malpractice claim was deficient as a matter of law. The

court granted summary judgment to the defendant attorneys.

On appeal to this Court, Yarcheski presents the following

issues: (1) “Did [the defendant attorneys] commit legal

malpractice when they missed a filing deadline in the Sixth

Judicial Court in 1995 resulting in the [plaintiff's] case being

dismissed.” (2) “Would the plaintiff have prevailed, upon

appeal, in his original grievance against the University of

South Dakota?”

i.

[914.] Evaluating academic performance is a venture

beyond our expertise and our jurisdiction. In reviewing

decisions concerning academic performance, our role is

limited to inspecting the contract and examining the

administrative proceedings to learn whether the evidence

* Although Yarcheski wanted to proceed with this appeal, he had not

been paying the law firm’s bills. - Instead, he declared bankruptcy.

Nonetheless, his attorneys continued to represent him in the circuit court

appeal.

27

supported the determination. SDCL 1-26-37. We examine a

contract as a whole, giving meaning, if possible, to all its

provisions. Enchanted World Doll Museum v. Buskohl, 398

NW2d 149, 151-52 (SD 1986). Fundamental to maintaining

academic excellence, faculty evaluations retain a singular

importance in educational institutions. Universities have a

vital interest in retaining and promoting only the best faculty

members. Conversely, faculty members have an equally

vital interest in receiving fair evaluations. See generally

Ford v. Nicks, 741 F2d 858, 864 (6thCir 1984); Lieberman

v. Gant, 630 F2d 60, 67 (2ndCir 1980)(courts should not set

as “Super-Tenure Review Committees”).

[915.] In this case, the circuit court granted a summary

judgment. Our standard for reviewing summary judgments

has been recited in numerous cases and need not be repeated

in detail here. See Kobbeman v. Oleson, 1998 SD 20, 94,

574 NW2d 633m 635. In accord with this standard, we view

the facts in a light most favorable to Yarcheski as the

Opposing party. The burden remains on the defendant

attorneys to prove’ the absence of any genuine issue of

material fact and entitlement to judgment as a matter of law.

State Dep’t of Revenue v. Thiewes, 448 NW2d 1, 2 (SD

1989).

iil.

[916.] This legal malpractice action originates from the

failure to timely file a brief in Yarcheski’s appeal. Because

the brief was filed late, the appeal was lost. However, that

result, by itself, does not mean that Yarcheski wins his suit.

To prevail in his legal malpractice action, Yarcheski must

first prove the four basic elements of negligence: (1) an

attorney-client relationship giving rise to a duty; (2) the

attorneys, either by an act or a failure to act, violated or

breached that duty; (3) the attorney’s breach of duty

proximately caused injury to the client; and (4) actual injury,

28

loss, or damage. Keegan v. First Bank of Sioux Falls, 519

NW2d 607, 611 (SD 1994)(citation omitted). On the

element of proximate cause, Yarcheski must prove that the

underlying claim was valid and would have resulted in a

favorable and collectible judgment had it not been for the

attorney’s error.” Haberer v. Rice, 511 NW2d 279, 284-85

(SD 1994). Thus, Yarcheski must prove two distinct cases in

a single proceeding.

[917.] As did the trial court, we probe one element

necessary in an appellate legal malpractice claim, i.e., proof

that the client would have prevailed in the appeal. That

element behooves us to touch on an issue of first impression

in South Dakota: is the question whether the appeal would

have been successful a question for the court or the jury?

Haberer addressed methods by which a legal malpractice

claim can be submitted to a jury. /d. at 285. This case is

different, however, because the action giving rise to the

malpractice claim was an administrative appeal. See SDCL

Ch 1-26. Administrative appeals, like all appeals, are not

decided by juries. SDCL 1-26-30.2 provides that “[a]n

appeal shall be allowed in the circuit court to any party in a

contested case from the final decision, ruling or action of an

agency.” And “[t]he review shall be conducted by the court

without a jury and shall be confined to the record.” SDCL 1-

26-35.

[q18.] In examining this question, the Supreme Court of

Michigan ruled that whether an appeal would have

succeeded if it had been properly pursued is an “issue for the

court because the resolution of the underlying appeal

originally would have rested on a decision of law.” Charles

° In an action for appellate legal malpractice the plaintiff must prove

two aspects of causation: whether the attorney’s negligence caused the

loss or unfavorable result of the appeal, and whether the loss or

unfavorable result of the appea! in turn caused a loss or unfavorable

result in the underlying litigation. ZRONALD E. MALLEN & JEFFREY

M. SMITH, LEGAL MALPRACTICE § 24.39, (3dEd 1989).

29

Reinhart Co. v. Winiemko, 513 NW2d 773, 777 (Mich

1994). The Reinhart court adopted the reasoning of the

Texas Supreme Court in Millhouse v. Wiesenthal, 775 SW2d

626, 628 (Tex 1989):

The question of whether an appeal would

have been successful depends on an analysis

of the law and the procedural rules. [The

plaintiff’) petition that the jury should make

this determination as a question of fact would

require the jury to sit as appellate judges,

review the trial record and briefs, and decide

whether the trial court committed reversible

error. A judge is clearly in a better position to

make this determination. Resolving legal

issues On appeal is an area exclusively within

the province of judges....

We find this rationale persuasive and conclude that in an

appellate malpractice action the question whether the appeal

would have been successful if it had been properly pursued

is a legal matter to be resolved by the court.

IV.

[919.] Although his attorneys filed an untimely brief,

Yarcheski does not contend that its content was deficient.

Indeed, he makes essentially the same arguments in this

appeal that his attorneys made for him in the aborted circuit

court appeal. The essence of his claim is that the evaluation

and nonrenewal processes are contractually sequenced so

that the decision not to renew must follow only from an

adequate written evaluation in compliance with the

BOR/COHE agreement.

[20.] Division II, 2.1 of the BOR/COHE contract,

entitled “Performance Evaluation Guidelines,” provides that

“all faculty unit members will be evaluated annually.”

Yarcheski was a “faculty unit member” under Division I,

30

1.7. The performance evaluation must be in “written form,”

as required by Division II, 2.1 (2). Division II, 2.2 (3) states:

“Included in the evaluation must be comments about the

faculty unit member’s performance in each of the areas of

teaching, research and scholarship, and service.” Under

Division II, 2.2 (5), one of the purposes of the written

evaluation is to allow the vice president or dean to review it

and “make appropriate comments to the president about

contract renewal....” In Division II, 2.3, the contract states

that “Student opinion surveys will be used as part of the

evaluation of faculty unit members, along with other

procedures set forth in this article.” However, per Division

II, 2.3(3), “Student opinion surveys will not be used as the

controlling criterion for personnel actions.”

[{21.] | A written evaluation was given to Yarcheski by his

immediate administrative supervisor on February 20, 1992.

By the terms of Division II, 2.2, evaluations must be

completed “[p]rior to the last day of February,” and under

Division II, 1.7, notices of nonrenewal must be given before

March 1. Obviously, February 19 is “prior to the last day of

February,” thus it appears that the evaluation was completed

in a timely manner. Although the evaluation was timely,

Division II, 2.2(3) further states that “[o]bservations may

include, but do not require, classroom observations, unless"

there is good cause to suspect serious deficiencies in

performance.” Yarcheski’s evaluation required classroom

observation because the administration had suspected

“serious deficiencies in performance.”

[9]22.] Yarcheski argues that his written evaluation was

deficient in failing to state any criteria other than student

evaluations. It simply states: “Teaching—Student

evaluations indicated students did not learn relevant material,

indicated assignments were not helpful, and there was a lack

of systematic presentations. Rating—Unsatisfactory.”

While student opinion surveys may not be the determinative

factor in “personnel actions,” an evaluation itself is not a

»

31

personnel action. According to Division I, VII, 7.1 (4), a

personnel action includes “discipline, contract renewal,

salary and pay matters, tenure, and promotion.”

[23.] Despite Yarcheski’s objections to the form of his

written evaluation, the record contains ample evidence that

he was fully evaluated in his job performance through his

many meetings with Myers and Reinke. Although the

evaluation has no_ notations documenting classroom

observation, both Myers and Reinke did in fact observe

Yarcheski in class.° | Because the academic evaluation

process is partly subjective and thus less susceptible to

precise judicial review, courts have held that the nonrenewal

process need not be perfect: substantial compliance is all that

is required. As the North Dakota Supreme Court observed in

Stensrud v. Mayville State College, 368 NW2d 519 522 (ND

1985), “Generally, substantial compliance with the

procedural requirements for termination is sufficient if their

purpose is fulfilled.” Likewise, in Piacitelli v. Southern Utah

State College, 636 P2d 1063 (Utah 1981), the Utah Supreme

Court concluded:

While exact conformance with the precise

terms of the termination procedures is

doubtless the least controversial course, so

long as. the substantial interests those

procedures are designed to safeguard are in

fact satisfied and protected, failure to conform

to every.technical detail of the termination

procedure is not actionable.

We apply the same standard in South Dakota. We will not

override the university’s judgment when contract procedures

were substantially complied with and the interests of the

parties were satisfied. Beville v. University of South

° — Myers later testified that on hindsight he “would have made it clear

{in the written evaluation] that the conclusion with regard to his teaching

performance was strongly influenced by. but not controlled by. student

evaluation.”

32

Dakota, 420 NW2d 9, 14 (SD 1988). Consequently,

assuming for the sake of argument that the form of the

evaluation was a violation of the BOR/COHE agreement, the

evaluation procedures were nonetheless substantially

fulfilled.

[24.] We come now to the heart of this case. The

controlling question here is not whether the annual

performance evaluation was fully completed in accord with

the BOR/COHE, but whether such written evaluation was a

condition precedent to nonrenewal. Our answer must come

from the contract. The rights and obligations of parties to a

contract are determined solely by the contract language,

which must be construed according to the plain meaning of

its terms. Biegler v. American Family Mut. Ins. Co., 2001

SD 13, 920, 621 NW2d 592, 598-99. Contract interpretation

if a question of law. State Farm Mut. Auto. Ins. Co. v.

Vostad, 520 NW2d 273, 275 (SD 1994).

[725.] In Division II, 1.7, entitled “Nonrenewal of Tenure

Track Contracts,” the pertinent language states:

Prior to the issuance of a written notice of

nonrenewal, the faculty unit member’s

immediate supervisor will provide the

opportunity for a meeting with the faculty unit

member to apprise the faculty unit member of

the proposed action. The faculty unit member

will be given at least five (5) working days

written notice of such meeting so that both the

faculty unit member and the immediate

supervisor may arrange to have present a

witness or a representative.

In order to facilitate the relocation of

faculty unit members who are not to be

rehired, the administration agrees to provide

notice of its intent not to rehire any faculty

unit members serving under a tenure track

contract. The notice will state the reasons for

33

the decision and will be given in accordance

with the following schedule:

1. A faculty unit member who has completed

less than one (1) academic year of service

under a tenure track contract shall receive

written notice of nonrenewal from the

institution before March 1 of the current

year of appointment.

* * *

(Emphasis added.) The remaining, unquoted portions of this

section provide for graduated’ protections to tenure track

faculty members as their terms of service increase beyond

one year. Yarcheski was a faculty unit member who had

completed less than one academic year of service. No part

of Division Il, 1.7 mandates an evaluation before a

nonrenewal decision. Nontenured faculty members are

essentially year-to-year employees. The process for

nonrenewal for such employees only requires (1) an

opportunity to meet, on five day’s notice, with the tenure

track faculty member’s immediate supervisor to be appraised

of the proposed action, and (2) written notice stating the

reasons for nonrenewal.

[{26. ] On February 19, 1992, before the issuance of a

notice of nonrenewal, Yarcheski’s supervisor, Myers,

advised him of the proposed action and provided a meeting

date of February 27, 1992. In accord with the requirement of

Division II, 1.7(1) that notice be given before March 1 of the

current year of appointment, Yarcheski had written notice of

nonrenewal from the university on February 29, 1992. As

required by the contract, the written notice further declared

the reason for nonrenewal as “inadequate teaching.” Thus,

the university complied with Division II, 1.7.

[]27.] Division I, 7.1(4), entitled “Evaluation—General

Provisions,” states that “[t]he purpose of the evaluation will

be to:..[p]rovide basic information for personnel decisions

such as discipline, contract renewal, salary and pay matters,

34

tenure, and promotion.” (Emphasis added.) — Further,

Division II, 2.2 (5) states: “The vice president/dean will

review the completed evaluation and make appropriate

comments to the president about contract renewall,...”

Yarcheski contends that because one purpose of the

evaluation is to provide information on contract renewal

decisions, a properly completed faculty evaluation is a

condition precedent to a valid nonrenewal decision.

[928. ] Certainly, these provisions contemplate that the

information in the evaluation will be used to make contract

renewal decisions. But nothing in the evaluation and

nonrenewal provisions indicates that the evaluation is the

exclusive source of information for personnel decisions. Nor

does any provision suggest that a written evaluation form in

full compliance with the BOR/COHE contract is a

prerequisite to a decision to nonrenew. In fact, the caption

for Division I, 7.1 cross-references Division II, Article II and

Division III, Article II, but does not cross-reference Division

II, Article I containing the nonrenewal sections. We find no

provision of the BOR/COHE contract that supports

Yarcheski’s premise that the criteria used in the decision not

to renew must be set out in the performance evaluation as a

prerequisite to a valid nonrenewal decision. Courts will not

impose requirements in a contract that the parties themselves

failed to include. Raben v. Schlottman, 77 SD 184, 190, 88

NW2d 205, 208 (1958). The ALJ and the circuit court were

correct in finding that compliance with Division II, 2.1

through 2.3 is not a prerequisite to the nonrenewal procedure

set forth in Division II, 1.7 of the BOR/COHE contract.

VI.

[{29.] Yarcheski’s final assertion is that the university

violated his academic freedom. As stated in Division I, 10.1

of the BOR/COHE contract, “subject to accepted standards

of professional responsibility,” academic freedom “is

35

intended to guarantee those rights which are recognized as

flowing from the First Amendment to the United States

Constitution.” The contract defines academic freedom to

include “the right to study, discuss, investigate, teach and

publish.” More particularly, this section explains: “Faculty

unit members are entitled to freedom in the discussion and

presentation of their subject and are privileged to introduce

various scholarly views.”

[930.] Yarcheski believes that overreliance on student

surveys infringed on his academic freedom. In his words,

The issue of academic freedom in this case

involves students judging members of the

academy. It involves students controlling the

destiny of faculty through their opinions and

opinion surveys.... The administrators at the

University of South Dakota, particularly at the

School of Business, exercised no significant

judgment with respect to the opinions of

students concerning the teaching of faculty.

It is true that his written evaluation mentioned only student

surveys. Nonetheless, after their personal observations of his

classes, both Reinke and Myers concluded that his

performance was unsatisfactory. Moreover, the action plan

and the many conferences that they had with Yarcheski to

improve his teaching cannot be understood as anything less

than an expression by his supervisors of serious concern with

his teaching abilities.

[{31.] In concluding that Yarcheski’s “academic freedom

was not infringed,” the ALJ found that Myers and Reinke

made no attempt to “foist upon Yarcheski certain methods of

teaching or course content.” Aside from whether this finding

correctly frames the scope and measure of academic freedom

as between professors and administrators, we can only note

that Yarcheski cites no case authority to support his

argument. We readily acknowledge, nonetheless, that

academic freedom generally assures to educators freedom in

36

PP A RT SEE

their First Amendment pursuits from interference not only by

administrators and other faculty, but by students as well. In

any event, the circuit court ruled that “[a]fter a full review of

the facts in this case, this court cannot find any evidence that

either Yarcheski’s supervisor or the associate dean infringed

on his academic freedom in any manner.”

[932.] University faculty members may establish an

infringement of academic freedom if the decision not to

rehire them was made because of their exercise of

constitutionally protected First Amendment freedoms. Mt.

Healthy City School Dist. Bd. Of Educ. V. Doyle, 429 US

274, 283-84, 97 SCt 568, 50 Led2d 471 (1977); Pickering v.

Bd. Of Educ., 391 US 563, 574, 88 SCt 1731, 20 Led2d 811

(1968). Untenured employees enjoy the same freedoms. See

Perry v. Sinderman, 408 US 593, 597-98, 92 SCt 2694, 33

Led2d 570 (1972). On the other hand, universities have an

interest as employers “in promoting the efficiency of the

public services” they perform through their faculty members.

Pickering, 391 US at 568, 88 SCt at 1734-35, 20 Led2d at

817. Under the aegis of academic freedom, a university may

“determine for itself on academic grounds who may teach,

what may be taught, how it shall be taught, and who may be

admitted to study.” Sweezy v. New Hampshire, 354 US 234,

263, 77 SCt 1203, 1218, 1 Led2d 1311 (1957) ee,

J., concurring in result).

[{33.] Education officials may decline to renew a contract

for academic reasons unrelated to academic freedom, such as

inadequacy in teaching or failure to obey legitimate

administrative directives. See Adams v. Campbell County

School Dist., 511 F2d 1242 (10" Cir 1975); Ahern v. Bd. Of

Educ. Of School Dist. Of Grand Island, 456 F2d 399 (8thCir

1972); Chung v. Park, 514 F2d 382 (3dCir), cert. Denied,

423 USW 948, 96 SCt 364, 46 Led2d 282 (1975). In fact, a

university may lawfully choose not to renew the contract of a

nontenured professor whose pedagogical attitude and

teaching methods fail to conform to institutional standards.

37

Hetrick v. Martin, 480 F2d 705, 708 (6thCir), cert. Denied,

414 US 1075, 94 SCt 592, 38 Led2d 482 (1973). Hetrick

dealt with the administration’s dissatisfaction over a

nontenured professor’s teaching methods and ability. There,

the Sixth Circuit Court of Appeals found that no First

Amendment interests were implicated when a university

decided not to renew the contract of a nontenured professor

because of her teaching style and methods. Jd Numerous

students had complained about “their ability to comprehend

what she was attempting to teach them or what was expected

of them.” Jd. at 706. The First Amendment guarantee of

academic freedom does not require a university to tolerate

any manner of teaching method a professor may choose to

employ. /d. at 707.

(934. ] Yarcheski never explains how his inadequate

teaching style, as evaluated by the university as well as many

of his students, fits under the protection of academic

freedom. Nor does he submit any legal justification to

prohibit student input on faculty performance. To maintain

academic excellence, institutions of higher learning must

ensure that their students have the benefit of the best

education. The university’s choice in using student surveys

as part of its effort to fulfill that goal is not an infringement

of academic freedom. Surely, educational institutions have

the right to expect that their teachers will be able to teach.

[35.] For the foregoing reasons, we conclude that

Yarcheski would not have prevailed in the appeal from his

grievance against the University of South Dakota; therefore,

his claim for legal malpractice fails for lack of proof of an

essential element.

[736.] Affirmed.

[937.] GILBERTSON, Chief Justice, and SABERS and

MEIERHENRY, Justices, and MILLER, Retired Justice,

sitting by Order of the Court, concur.

(938. ] MILLER, Retired Justice, sitting for ZINTER,

disqualified.

38

APPENDIX C—IN THE SUPREME COURT

OF THE STATE OF SOUTH DAKOTA,

ORDER DENYING REHEARING (#22617),

DAVID GILBERTSON, CHIEF JUSTICE,

FILED OCTOBER 21, 2003

Thomas J. Yarcheski,

Plaintiff and Appellant

Vs.

Kevin L. Reiner, Celia Miner and Johnson, Heidepreim,

Miner, Marlow & Janklow, LLP,

Defendants and Appellees

A petition for rehearing in the above cause having been

filed September 19, 2003, and no issue or question of law or

fact appearing to have been overlooked or misapprehended,

and more than fifteen days having elapsed therefrom and no

written statement having been filed with the Clerk of this

Court by a majority of the justices requesting a rehearing,

now, therefore, in accordance with the Rehearing Procedure

Rule of this Court, the petition for rehearing is denied.

DATED at Pierre, South Dakota, the 21% day of

October, 2003.

ATTEST: Shirley Jameson-Fergel, Clerk of the Supreme

Court, by Cindy Leichtnam, Chief Deputy Clerk (with seal)