Yarcheski v. Reiner

• Decision Date: 03 September 2003
• Docket Number: No. 22617.,22617.
• Citation: 669 N.W.2d 487,2003 SD 108
• Court: South Dakota Supreme Court
• Parties: Thomas J. YARCHESKI, Plaintiff and Appellant, v. Kevin REINER, Celia Miner, and Johnson, Heidepreim, Miner, Marlow & Janklow, LLP, Defendants and Appellees.

669 N.W.2d 487

2003 SD 108

Thomas J. YARCHESKI, Plaintiff and Appellant, v. Kevin REINER, Celia Miner, and Johnson, Heidepreim, Miner, Marlow & Janklow, LLP, Defendants and Appellees.

No. 22617.

Supreme Court of South Dakota.

Considered on Briefs April 24, 2003.

Decided September 3, 2003.

Rehearing Denied October 21, 2003.

Thomas J. Yarcheski, pro se, Naples, Maine, for plaintiff and appellant.

Thomas J. Welk of Boyce, Greenfield, Pashby & Welk, Sioux Falls, South Dakota, Attorneys for defendants and appellees.

KONENKAMP, Justice.

[¶ 1.] Following his unsuccessful challenge to the procedure 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. An essential element in appellate legal malpractice is proof that the client would have prevailed but for the error of counsel. Because we agree with the circuit court that the appeal would not have been successful had it been properly pursued, we affirm.

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 W. 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. It was his object to pursue greater academic standards than those sought by his colleagues on the faculty.¹ 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.

[¶ 3.] 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, I'll get you involved in the text."

[¶ 4.] 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, "I'll turn this around; I've been down this road before."

[¶ 5.] As an alternative, Yarcheski suggested that in addition to the student evaluation forms used by the university that "Harvard" evaluation 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:

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."² [¶ 6.] 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 told him that the class he observed was "in general, poorly conducted." Reinke also told Myers that 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.³

[¶ 7.] 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.

[¶ 8.] 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 this evaluation 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.

[¶ 9.] 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." [¶ 10.] 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.

[¶ 11.] 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 the proper nonrenewal procedures were followed.

[¶ 12.] Yarcheski then directed his attorneys to appeal the Department of Labor's decision to the circuit court.⁴ 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.

[¶ 13.] 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 [...