*1
Samina Appellant, FAMILY
CENTER FOR MEDICINE Kemp,
and Dr. Earl Defendants Appellees.
No. 24860.
Supreme Court of South Dakota.
Argued Sept.
Decided Feb. *2 Cadwell, Sanford, year three-year M. Nichols of first of the residency pro- Shawn LLP, Falls, Garry, Deibert & South contract, gram.1 Pursuant to the Dakota, Attorneys plaintiff appel- stipend for her services. Dr. *3 lant. began residency her with on CFM 26, June 2004.2 Peterson, Morgans,
R. Alan Steven J. Jackson, Lynn, Dana Van Beek Palmer of Problems with Gul’swork de- Lebrun, PC, Falls, Shultz & South veloped Gul was advised on De- Dakota, Attorneys ap- for defendants and cember that she receiving a pellees. Unsatisfactory Notice of Performance and placed probation. on GIENAPP, That document Judge. Circuit provided part that there were concerns Gul) (Dr. Gul, [¶ 1.] Samina M.D. com- about Dr. professionalism, Gul’s organiza- contract, menced an action for breach skills, tional problem-solving abilities. defamation, and violation of due Additionally, there were concerns with Dr. against Family the Center for Medicine proficiency Gul’s (CFM) speaking and writing physicians, and one of its Dr. Earl (Dr. English language. Kemp). parties filed cross summary judgment, although motions for April On Dr. Gul was motion partial summary was for by notified CFM that her residency con- judgment liability as to on contract tract would not be renewed for another claim. The circuit court ruled in favor of year. provided CFM Dr. Gul with a docu- defamation, Dr. Kemp CFM and on the ment titled Notice of Non-Renewal of Res- process, due and breach of contract claims. (Notice ident Contract for Dr. Gul of Non- The circuit court that Dr. also ruled Renewal) explained which the non-renewal summary judgment was entitled to as to decision. The document served as official salary her last month of under the con- notice that Dr. Gul’s contract appeals tract. Dr. Gul due process by would not be renewed CFM after June summary judgment and breach of contract 30, 2005, and that she would not rulings be receiv- and we affirm. a ing completion certificate of for her first AND FACTS PROCEDURE year residency. The Notice of Non- [¶ 2.] CFM is affiliated with the Uni- granting Renewal referenced the of a re- versity of South Dakota Medical School. medial month. subsequently Dr. Gul was April 2004 Dr. accepted Gul was into keys badge, told to turn and her residency program CFM’s medical in the assigned scheduled rotations were other family area of Dr. Kemp, medicine. residents. At that time Dr. Gul was in- family practice physician employed by by formed would CFM she CFM, supervised residency program. through May. the month of accepted program Dr. Gul was into the on provided Gul was with the April signed a contract for comprised Residents Manual which was program on 2004. The con- one-year tract was for a term that policies guidelines perti- the various guarantee 1. There is no contractual that a 2. The term the June contract was from year contract will be offered for the second compen- to June 2005. The annual residency. three-year residency program $41,355. sation was separate one-year consists of three contracts. plead- forthwith if the rendered The man- shall be residency program. nent to being interroga- that if a resident answers to ings, depositions, ual program, from the dismissal file, tories, together considered and admissions hearing before the request could she affidavits, any, if show with the (ROC) in Oversight Committee Resident any mate- as to there is no issue the dismissal. to contest order moving party is and that the rial fact receiving the Notice matter of judgment After as a entitled to a Non-Renewal, a hear- requested law. ROC, was held few ing before 6—56(c). reviewing grant “In SDCL 15— *4 hearing, at which the later. After
weeks under 15—6— summary judgment SDCL counsel, by the represented Dr. was Gul 56(c) the mov must determine whether we the approve to sixteen to one ROC voted no there is ing party has demonstrated with In accordance decision. non-renewal material fact and genuine [the issue of in Residents set forth the procedure the judgment to as moving party] is entitled deci- Manual, appealed the ROC’s Dakota Fire Hoglund, of law.” v. matter Medical Education to the Graduate sion ¶ 7, 853, Co., 123, 742 N.W.2d a hear- Ins. 2007 SD granted Dr. was Gul Committee. Committee, drawn All reasonable inferences ing before super- physicians who comprised of seven must be viewed favor from the facts The Committee residents. vise medical and reasonable nonmoving party the by Dr. Gul and heard evidence mov against be resolved the doubts should ultimate- attorney, and the Committee Co., Ry. N. 83 ing Wilson v. Great party. of the ROC. ly affirmed the decision (1968). 19, 21 157 N.W.2d S.D. decision to CFM’s appealed then Gul to moving party is on the “The burden Directors, which affirmed Board of any clearly an absence of show Dr. Gul’s decision not to renew material fact and an entitlement issue of contract. law.” Butler judgment as a matter of an action commenced Co., 2004 SD Mach. v. Morris Const. Co. defama- Kemp against CFM and ¶ 773, (quoting Chil 682 N.W.2d 776 contract, tion, and due breach 7-2, 2003 SD v. Kimball Sch. Dist. No. son granted sum- The circuit court violations. 669). ¶ 7, 667, 53, “Our task 663 N.W.2d and Dr. judgment in favor CFM mary only whether a appeal is to determine claims while simultaneous- Kemp on those of material fact exists genuine issue in favor of summary judgment ly granting by correctly applied” whether the law salary, that for her last month’s Rapid City v. Wojewski the lower court. ap- Dr. Gul is being the month of June. ¶ Inc., 33, 12, 730 Reg'l Hosp., 2007 SD grant- decision the circuit court’s pealing 626, v. McKen (quoting 631 Read N.W.2d in favor of CFM ing summary judgment ¶66, 8, Hosp., 2000 SD 610 N.W.2d nan of breach of and Dr. on the issues 784). 782, written The construction of a pro- of due and a claimed denial contract question of law for the Court contract is summary as to the judgment cess. Valley Em Dirks v. Sioux to consider. not appealed. claim was defamation Ass’n, 450 N.W.2d 427-28 pire Elec. (S.D.1990). proper any if OF REVIEW Affirmance is STANDARD the cir support which would basis exists This matter is before 8.] [¶ ruling. Breen v. Dakota Gear cuit court’s summary grant from a appeal Court on Co., Inc., N.W.2d 223 433 Summary judgment & Joint judgment.
633 (S.D.1988). “rules, provides “A fact is not ‘mate Residents Manual disputed regulations, policies procedures.” rial’ it would affect the outcome of unless pertinent language substantive the Residents Manu- governing the suit under the states, al jury pertaining in that a could return to dismissals “[w]hen law ‘reasonable ” nonmoving party.’ being resident is considered for a verdict dismiss- Partners, al, Valley Program designee v. Heart Director or Weitzel shall ¶ resident, notify writing, 891 SD N.W.2d charges proposed and of the (quoting S.D. State Cement Plant Comm’n dismissal. Co., Ins., may request The resident a hearing Wausau Underwriters before 401). the ROC.”3 summary Gul contends that AND ANALYSIS DECISION judgment improper because CFM ter- minated hearing prior her without a ISSUE ONE termination, in breach of the contract. there [¶ 9.] Whether breach However, the record shows otherwise. one-year residency contract. *5 The record demonstrates that “A agree contract is an Dr. Gul was notified in writing of the thing.” ment to do or not to do a certain charges and of the proposed dismissal. SDCL 53-1-1. The elements that must be April On Dr. Gul received the (1) met in a breach of contract claim are: Notice of Non-Renewal which summarized (2) promise; an enforceable a breach of unsatisfactory performance.4 her The rec- (3) promise; the resulting damages. and circumstances, prior ord also reveals other Touche, LLP, Guthmiller Deloitte & 27, 2005, notice, to April the where Dr. Gul 2005 SD 498. notice, feedback, opportuni- received pro The contract at issue regarding ties to be heard her deficient right performance. regard, vides “CFM retains the to ter In that Dr. Gul was any minate contract at given Unsatisfactory this time should a Notice of Perform- Resident, CFM, the in opinion the fail ance in December 2004 which outlined her to act within professional unsatisfactory performance. best ca She dis- his/her pacity ability, and commensurate with cussed the in Dr. items this document with highest practice standards of and eth At physician. and another this time applicable Family spe ics to the Practice she placed probation. was also on The cialty.” The contract also references Residents Manual indicates that Dr. Gul Although residency program a three- 4. The document listed several deficiencies in- year program one-year the contract is con- cluding ability doubts about Dr. Gul's to inde- specifically stating tract that: "The term of pendently develop diagnoses differential for agreement this commences June 2004 and complex patients inability develop and an to terminates June It is understood appropriate diagnostic therapeutic plans. portion that this contract is for a of a three problems The document also noted Dr. Gul’s year program.” payment Dr. Gul received speaking understanding English in verbal for the entire term of the contract. Dr. Gul problems communicating in written En- originally payment had received for eleven glish. Finally, expressed the document months, but the circuit court's decision added doubts about whether Dr. Gul would be able payment for the twelfth month with the "develop adequate application to skills in pursuant indication that this was done to dis- knowledge patients basic clinical to care for summary judgment hearing. cussions at the training.” even with more clinical transcript hearing part The of that is not a the record before this Court. counsel, hearing Dr. requested represented by before the Gul was have
could notice, this she ROC receipt approve but voted sixteen one to upon ROC Dr. Gul then ap- do so. After received non-renewal decision. Dr. Gul did not Performance, Unsatisfactory pealed she the ROC’s decision to the Notice of Gradu- Committee, ate to receive evaluations and feed- Medical Education continued of her given copies perform- comprised physicians and was of seven back who inadequate supervise which showed medical ance reviews residents. Com- by areas. Further- heard performance provided several mittee evidence more, April attorney, ultimately Notice Non-Renewal Gul on and her but af- 27, 2005, did not act as immediate termi- decision of firmed the the ROC. states that Dr. then appealed nation. document decision to CFM’s “residency Directors, agreed contract will re- Gul’s not be Board of which also newed after June 2005.” with not the decision to renew residency contract. After the Notice of Non- dispute [¶ Gul does not 16.] not Renewal did one-year the contract was a contract. Dr. any perform duties connection with her dispute Gul does not that she has now first-year residency contract except been the entire stipend owed minimal duties with some connection that one-year period. contract What Dr. finishing uncompleted reports. medical Gul does contend is that the contract and dispute does exist a factual There as to Residents Manual for due pro- or not Dr. whether told not to cess hearings prior termination. How- report by Kemp, to work or whether *6 ever, the Notice of Non-Renewal of April up Dr. Gul did not for show duties as 27, 2005, residency indicated that the will However, dispute this instructed.5 factual 30, not after be renewed 2005. June is not material to Dr. claims a Gul’s and as that, notice also indicated it “[n]either is consequence summary not defeat does you anticipated that will be awarded a “A judgment.6 disputed fact is not ‘mate completion certification of of the first it rial’ unless would affect the of outcome year.” wording claims the the under governing the suit the substantive provides Residents Manual for an appeal a jury law in that ‘reasonable could return ” 27, from a proposed dismissal. The non-moving party.’ a verdict the 2005, notice a proposed ¶ dismissal as of Weitzel, 17, 45, 2006 714 at N.W.2d June not an April dis- 891. missal, so it was a proposed dismissal. As provided Gul was also all [¶ 15.] result, a Dr. Gul’s claim is without merit. hearings the outlined in the Residents A hearing Manual. before The circuit ROC court was correct in a held within few weeks of re- that there finding Gul’s were no issues quest. hearing, After the which of fact as to during material whether Dr. Gul was assignment non-assignment person may greater 5. The duties or tract. No recover a solely of duties was at the discretion of CFM. damages amount the breach of an in obli- gation gained by per- than he could full have dispute It was at the factual time of this statutory both formance on sides absent ex- that she informed Dr. Gul would be penal emplary damages. or See SDCL 21—1— paid through May pursuant but 5; Ass'n, Inc., Nelson v. WEB Water Dev. 507 ultimately circuit court’s decision she was (S.D.1993). 700 N.W.2d through paid June the entire amount she was to be under the con-
635
$41,355
poor per-
year
for her services for the
under
adequate notice of
provided
Notice of
receiving
contract. CFM contends
prior
formance
Additionally, Dr. Gul was
Gul was a student enrolled in
Non-Renewal.
opportunities
residency program.7
all
for review as CFM’s
in
Manual.
outlined
the Residents
The issue of whether a medical
resident is considered a student or an em
ISSUE TWO
ployee
impression
is a matter of first
be
process
due
Whether
Court,
fore this
but has
in
been addressed
rights were violated.
jurisdictions.
other
A Minnesota court
University
addressed this issue Ross v.
Fourteenth
(Minn.Ct.
Minnesota,
[¶ 20.] The
found
Ap-
that Dr. Gul was a student
CFM’s resi
The Fifth Circuit Court of
dency program.
argues
peals
that she
also addressed this issue in Davis v.
(5thCir.l989).
Mann,
In
employee,
should be considered an
and not
other ance, only need advise that student with academically “work” is what is resident’s any to such respect deficiencies form. and evaluated. It is well- supervised required All that is that the is student purpose of a primary that known made aware to termination of prior program employment not or his failure or failure to meet impending training but academic stipend, a those standards. for successful academic certification standard, at 772. In that adopting Id. we completion program. that an procedural held MBA student’s agreed at 974. Other have that Id. courts requirements process due were met when categorized a medical resident should be was the student notified of his academic employee. than an as student rather when, failing deficiencies after meet v. Regents Univ. Minn. United criteria, academic the MBA student (D.Minn. States, 906799, at *6 2008 WL afforded the have opportunity 2008) are Apr.1, (holding that residents request special consideration reviewed students, employees subject not to FICA by the MBA Id. Committee. taxes); Utah Sch. Halverson Univ. with am- (D.Utah Med., *11 at WL ple meeting notice she was not 2007) (holding that medical resi Sept.28, required minimum academic performance employees dents are not considered residency. the medical December proce to lesser due are entitled given the Notice of employees). than dures Unsatisfactory Performance and was agree that medical residents 23.] We [¶ placed probation. This notice detailed The fact employees. are students and not the concerns that CFM had with stipend does not Gul received Also, performance. January between participating alter the fact that she was 2005, Dr. Gul given copies of her program in to receive an academic order performance reviews that showed in- student, academic certification. As adequate performance in several areas. *8 process not entitled same due Gul is to the April 2005, Additionally, Dr. Gul was
protection
employee.
as an
follow-up
given a
review that
indicated
Heimstra,
v.
Delaney
[¶ 24.]
that,
was making
improve-
while she
some
required
that a hearing
we held
is not
ments,
performance
still fell below
a student is
for academic
when
dismissed
expected
first-year
what
of
resident.
ZINTER, specially). (concurring Justice Appellant. issue agree I there is No. 24858. fact whether Dr. Gul was ter- disputed re- before she minated on Dakota. Supreme Court South right hearing. to a ceived her contractual ¶ admitted the supra See 14. Defendants on Briefs on Jan. 2009. Considered they con- point argument at oral when Decided Feb. that at a minimum there was “confu- ceded matter. This Court notes sion” over the fact not material dispute
that this the balance
because Dr. Gul was I write to
of her contract. Id. n. 6. contention Dr. Gul’s additional
address regarding of fact termi- dispute
that the to her claim for conse-
nation was material
quential damages. is mistaken because she tort, in contract rather than
sued
therefore, to the con- she was not entitled (collateral damages claimed
sequential she ended). arising after her contract
damages of a definite term
Damages for breach limited
employment generally contract are that would have been wages
to the lost of the contract. Bad
earned until the end Inc., Homes, Cmty.
Wound v. Lakota Al- consequential claimed
though
damages may have been recoverable
tort, in her suit they were not recoverable ¶¶ 11-13,
for breach of contract. See id. Therefore, dispute
terial to
ages.