Hageman v. Vander Vorste

DECISION whatever the status of the Rousseau school was. interpreted We have SDCL 13-43-10.23 giving

as school boards broad any decision-mak Nor was there fact issue about ing authority to fire whether nontenured school district teachers violated its transfer giving policy. policy Schaub v. without reasons. The Cham vests the district’s su- perintendent with of Educ., berlain Bd. (S.D. authority 339 N.W.2d 307 transfer 1983); provided teachers Spearfish v. Educ., Coull Bd. conditions are met. policy, law, But the as a matter of (S.D.1983); see also Fries give does right teachers a to a Wessington Dist., v. School .transfer. (S.D.1981) (Department of Labor has properly granted summa- authority limited temporary to order rein ry judgment because, law, as a matter of teachers); statement to nontenured Moran the school district’s policy RIF inappli- Rapid City Dist., Area School cable; further policy the transfer (S.D.1979) (termination N.W.2d 595 of ten give teachers a to transfers. ured teacher arbitrary, reviewed under ca trial court’s decision affirmed. pricious, and abuse of discretion standard review). In view of authority this broad FOSHEIM, J., participating. Retired it would be inconsistent that school DUNN, J., WUEST, C.J., Retired policies, RIF required boards’ are disqualified. adopted by to be should be interpreted to limit a authority MILLER, J., board’s been a single to renew the contract of a nonten member of the court at the time this teacher, ured whatever the action court, reason. was submitted to the participate. Consequently, though even the school district’s RIF policy 5, 6, in sections appears give nontenured teachers

some priority reducing staff, this RIF

policy cannot override SDCL 13-43-10.2 stronger

and the giving it serves in

school boards broad discretion to terminate

nontenured teachers. The school district simply compelled adopt a RIF HAGEMAN, Donald Plaintiff policy under SDCL 13-10-11 that accommo Appellant, dated nontenured teachers. Burke v. Cf. Dist., Lead-Deadwood School (S.D.1984) (RIF policy applied to con VORSTE, Gene VANDER tinuing contract employee). administrative Appellee. effect, reconciling we are SDCL 13- Nos. 15320. (nontenured teachers)

43-10.2 with SDCL Supreme Court of South Dakota. (RIF policies) 13-10-11 holding that a school board’s broad discretion in terminat- Considered Briefs Oct. 1986. ing nontenured teachers overrides im- Decided plication policies required that the RIF SDCL 13-10-11 apply should to such teach-

ers. Consequently, the school district’s policy

RIF as a inappli- matter of law was it,

cable and rights had no under provides 3. SDCL 13-43-10.2 given, for the method of that reasons be a school board’s decision nonrenewing teachers challenged in their first or second grounds. cannot be on these year employment; although requires it now also fn. 2. defendant, pur- as a result of their partners sale of livestock as

chase and joint venturers. trial court also award- ed costs but refused award recovery prejudgment interest on his he appeals. We reverse.

From 1976 to 1978 the were in- volved in numerous “cattle deals” in which together. they bought and resold cattle bookkeeping Defendant’s wife did the for attempted them. In 1979 the have an accountant audit their transac- tions. This audit ended with a transaction parties generally in March 1978. Both agreed trial that this audit did not con- complete tain information about the trans- them. One transaction actions between appellant failed to account for was the that $23,000 purchase worth approximately $1,041.12 in a loss to of cattle that resulted Appellant produced the partnership. records, purchase for this the check used cattle, the de- partnership sale, proceeds posit slip for the of their days pur- after their which occurred few he knew of Defendant admitted chase. ap- purchase. In another transaction from the pellant pocketed he received $108 appel- partnership cattle resale of some Appellant and de- lant’s brother-in-law. together to a live- had fendant traveled cattle and purchase these stock auction to day later discussing their resale after resold agreed cattle could be defendant Both of appellant’s 1978, a occurred these transactions entry in the dated the last month after 1979 audit. partnership trans-

There also other to reveal for defendant actions that transactions were audit. These Wald, Hoven, the 1979 plaintiff David A. Von were taken depositions revealed until appellant. May 1984. Carter, Pierre, defendant T. Michael appellee. the final court found “not ascertain- appellant FOSHEIM, Retired Justice. audit because both time of the at the full supply the parties failed plaintiff The trial court determined transactions.”1 figures involved (appellant) entitled to recover been made if findings been clearer Although would have court’s ultimate trial Appellant contends that the trial court necessary figures, the exact amount of the should have awarded him in undisclosed transactions could have been terest because the amount he was entitled penny. ascertained to the As far as the capable to recover was “certain or transactions that defendant failed to dis- made certain calculation.” SDCL 21-1-1 close, he had this information within his control 1.2 and was of ascertaining the Furthermore, amounts. In an with the earlier revela- decision on the issue of tion prejudgment interest we defendant himself said: overlooked some transactions that had occurred after The for denying reason interest on a the entry audit, last dated on the person claim is that a reason- where the liable does inquiry by owes, not know what sum he defendant would he cannot have also up turned paying. figures appellant be in default for not the other When the provide. exact sum of the indebtedness is clearly known himself re- readily or can be ascertained the called reason the 1978 appel- discussion with of the denial interest does concerning not exist. lant the sale of one bunch of appellant’s livestock to brother-in-law. Corp. America, Beka v. Lithium 77 of absolutely dispute And no existed over the 370, 375, 156, S.D. 92 N.W.2d 159-160 appellant pocketed on this sale— applying In a statute identical to $108, which also could 21-1-11, easily have SDCL the California courts have through ascertained the recognized the awarding Beka rationale for prejudgment Defendant also admitted interest that he was and have aware formulated appellant’s purchase a of question. useful test to decide the “The other bunch glean livestock, $1,041.12 test of we from decisions is: did resulted actually know the loss from the sale of worth of defendant reasonably owed or from available informa livestock. With this awareness of such a tion could the computed defendant have significant purchase livestock, of defendant Only that amount. if one of those two easily could have ascertained the amount conditions is met should the court award necessary fully account for the transac- interest.” In by making tion inquiry a reasonable about Togova Enterprises, dustries v. 149 Cal. sale, the result of the which would have 901, App.3d Cal.Rptr. 197 352 record, check, revealed the (1983); see also Amert v. Ziebarth Constr. deposit slip. Co., dispute these amounts or the fact that were partnership Although transactions. this case the obviously parties may have made it difficult for undertook the 1979 audit to accurately transactions, an accountant ascertain the to audit these financial part status of their nership readily and to defendant could have determine ascertained whether either of (or owed) them reasonably owed was amounts any amount. Al involved though parties clearly Hence, available careless in information. maintaining records of their “cattle finding deals” erroneous in supply and did not the accountant with all the amount was not ascertainable. by in the regard terms used provides: we 2. SDCL 21-1-11 finding its that the amount was "not ascertain Every person who is entitled to recover equivalent finding able” as to a that the amount certain, capable being or made "certain, or made calculation, by certain and the to recov- by Gorman, calculation.” See Fischer v. upon particular er which is vested in him (1937) 65 S.D. (finding 274 N.W. 866 day, is entitled also to recover interest thereon principal’s incompetency incapacity mental day, except during from that such time as the statutory to contract as a basis for termination law, prevented by debtor is the act of agency); Jennings, Donohue v. creditor, paying the debt. (S.D. 1983) (finding filing 683 attorney’s and service of required by lien as statute for an lien). effective contention, Contrary Engineering this western Co. v. to defendant’s Thunderbolt Enterprises, (S.D.1981) is not a where case (receivables per- for construction work because should have been denied contract, pursuant including formed ad- tri- determined were uncertain until retained, dition of amount deduction for er of fact. Arcon Constr. Co. v. made, payments work). and offset for other Plant, 349 N.W.2d Dakota Cement South sought the amount for recovery Where (in (S.D.1984) of con- breach 416-417 though liquidated, upon even is based construc- tract action for failure deliver readily ascertainable value of servic contractor, damages material to based tion general property, es or and better estimates, “averages, and blue book interest, considered rule is to allow guidelines” rate idled construction rental strong equities least the absence of equipment); Fullerton Lumber Co. v. contrary. Casualty Aetna Ins. Co. (dam- (S.D.1983) Reindl, States, (8th v. United F.2d Cir. ages pigs solely based on esti- loss 1966). damages on Interest is allowable lost, pigs of and for roof mate of number or reasonably if there exists established repairs on 1981construction estimate based prices market or values on ascertainable 1977); damages Hanson v. where vested subject by reference to matter which Int’l, (S.D.1985) Funk Seeds may by the amount be determined (damages crop yield lost on for based Barton, computation. supra; Dougher year yields, year varied from to Beka, supra; supra; ty, Gearhart v. Triple Enterprises, year); Hepper v. U Hyde, 39 S.D. N.W. 58 (sellers (S.D.1986) Inc., Amert, supra, at 890. The amount defend- dam- to interest on entitled readily ascertain- ant owed was ages arising buyers’ from breach of con- pur- from records of the the available where trial for of buffalo tract sales of the cattle and from a chases and to offset ordered sums due sellers be court or his inquiry of defendant reasonable for buyers’ on claim warranty, of which was based on breach argues tri Defendant that when the eighty “expected” calving rate of between due was not al court found that ninety years). The percent and over four party sup because neither ascertainable in these cases had calculation equiva complete this was plied information uncertainty that are difficult to elements defendant, debtor, finding a lent to characterize, except the evi- creditor, prevented the act was given fact finder sev- dence could have paying from the debt. See (appellant) eral reasonable choices of 2, supra. fn. SDCL damages. appel finding prevented this also contends contrast, permitted recovery In we have prejudgment interest recovering lant from prejudgment interest cases where said, As we have we under the statute. uncertainty greatly element of re- was findings as hav interpret trial court’s Amert, supra, citing duced. Barton See certainty issue of the ing determined the Varilek, Masonry, 375 N.W.2d 200 Inc. finding damages. No of the amount (S.D.1985) (home improvements calculated using trial court proposed to the was invoices); Beckman, Dougherty language of stat “act of the creditor” (S.D.1984) (construction fairly say this issue ute and we cannot agreed price cost of townhouse with an for its consider presented the trial court extras); Beka, plus undisputed costs of preserved for or that the issue was ation 15-26A-8; (contract specified amount of and Burke v. supra appeal.3 Dist., delivered, undisputed price of to be less School ore Lead-Deadwood trial court did cost); Since delivery see also North- evidence of fn. 1. Another interpret language the statute. See necessity having All confusing finding by was that the the trial court findings if avoided court’s parties would have been recovering “estopped” findings both proposed in the were ultimate have this issue it we these concerning profits before will tween two men losses; it appeal. reason, not consider they agreed and this records take all to an accountant. Plain- judgment court’s is reversed testified, alia, tiff/Appellant inter that he and remanded for a determination of the give certain records to the ac- interest due. and that countant some of these records possession. example, in his For C.J., WUEST, MORGAN Plaintiff/Appellant provide failed to the ac- JJ., SABERS, concur. showing partner- countant with a records HENDERSON, J., dissents. ship profit loss and a $108.00 MILLER, J., pocketed by him on another transaction. Defendant/Appellee member of the at the time was also less than court, completely action was submitted to the honest with the accountant. participate. fact, only depositions revealed sizeable profit which inured to benefit of De- HENDERSON, (dissenting). Justice Appellee. fendant/ Plaintiff/Appellant If is filled uncer Judge McKeever heard of this testi- all tainty coming, is, with what he has noted, mony concluding language, additionally, smitten with no to ren desire Plaintiff/Appellant final that a amount due accounting, der a fair true and how can However, potentially ascertainable. Defendant/Appellee certainty be filled with he noted party also that neither would/did regarding owing? what These are al provide figures. a full amount of An ex- closing most the exact words used in the above, other ample, than the was Plain- my sentence in dissent Amert v. Zie provide tiff/Appellant’s failure an to Co., 888, barth 400 892 Constr. money amount of his brother-in-law had (S.D.1987). Again, I believe the trial court paid for transportation, him which amount right majority is the opinion wrong and is already paid by Defendant/Appel- had prejudgment on its determination of inter shortly lee. This amount was discovered est. I affirm the would and not reverse during or is a fair before trial. It state- trial court. parties pro- that ment to both placed upon my Reliance is two of writ- accounting prior full other vide a to each ings majority in opinions which were doubt, any party trial. Without neither Dixon, 658, Meyer Court: v. 369 N.W.2d knew the outcome of the trial/amount of (S.D.1985), 659 and Hanson v. Funk Seeds damage judge the award until the trial Int’l, 30, (S.D.1985). 373 N.W.2d 36 See decision, sorting made a final out all the Melvin, 193, F.Supp. also 441 210 Cole v. claims, facts, transactions, dealings, and (D.S.D.1977). However, my rationale basic existing pertained to the documents which granddaddy pre- emanates the the litigants’ business affairs. judgment cases, namely, interest Beka v. judge the trial a final Until made deci- 370, Corp. America, Lithium S.D. 77 facts, claims, sion, sorting out all the trans- 375, 156, (1958), 92 N.W.2d 159-60 which actions, dealings, existing and documents denying states: “The reason for interest on pertained litigants’ to the business person a claim is that where the liable does testimony, and which arose from affairs owes, not sum he cannot know what he be actually Defendant/Appellee know could in paying.” default for not Also, Defendant/Ap- the amount owed? pro- emphasize party Need I that neither “reasonably pellee did have available figures vided the full amount of dollar that which he could have com- information” puted would have allowed a final tabulation an true amount because Plain- the owed owing parties? exclusively amount There this informa- tiff/Appellant between the great possession uncertainty was be- tion in and withheld it. confusion his. interest. We are unable to recall ever recover interest. theory estoppel analyze used an

425 i.e., circumstances, Defendant/Appellee, Here, tered in it was favor under these reversed, yet, deny I plaintiff is entitled to were the tables would “clear that the certain, or interest the reason that a sum recover begot parties created a situation which sought are made uncertainty. Judge recognized McKeever Amert Ziebarth calculation....” figure Co., the ultimate or 400 N.W.2d at 892 that balance Constr. (Henderson, J., specifically expressed dissenting). When neither ascertainable circumstances, most divulge the to one that under interest party would transactions another, per He calculate would accrue South Dakota law. impossible it was certainty. Only figure that the final reasoned owing until by sifting sorting, could deter- due and was unascertainable judge, parties’ damages. trial because of both conduct. Fullerton Lumber mine Reindl, Finding 293 of Fact V reads: Co. v. noncooperation, conceal- When there That final due Plaintiff ment, suggestion of behind-the-back ascertainable 1979 when both deals, any hold that can how parties provided figures agreed plaintiff “right to vested recover accountant, party upon [is] [a] neither because Amert, particular day”? on a figures supplied full amount of (Henderson, J., dissenting). 892 at a final would have allowed tabulation shortly through dis- until trial or before Indus, Togova Enter covery. Cal.App.3d Cal. prises, 149 (1983), of Law reads: majority cited in the Conclusion V Rptr. court acknowl opinion, I note that said Due to the actions both decisions which edged California figures to ac- all of the supplying “ required accounting is opined ‘where an countant, estopped both are due, justly order to at sum arrive judgment either any ” Cal.App.3d interest is not allowed.’ original had the De- claim or under (citations omit Cal.Rptr. at 352 on his counter- fendant been successful ted). Damages See also Cal.Jur.3d § claim. easy an solution to This could be are not erroneous. In re These case, point I out hasten to two but 282, 181 Hobelsberger, 85 S.D. Estate of (1) This is a lawsuit an factors: (1970). I am not convinced (2) accounting; and the court Chesa The word has made. that a mistake Indus, accounting

peake held an trial mean that “estopped” does not possibility not foreclose estop- equitable judge used doctrine Indus., However, interest. estoppel, pel, estoppel pais, promissory permitted be might He well or detrimental reliance. of the account cause the circumstances “precluded.” The have utilized word not sufficient ing and the amount due was use of driving judge’s force behind ly capable made certain. “estopped” he believed the is that the word thought lofty peruse us a rather Let party had caused confusion actions of each Subsurfco, v. B-Y Water expressed in Inc. mandating de- uncertainty, thereby (S.D.1985): Dist., 369 N.W.2d dispu- These prejudgment interest. nial of tants, substantive “Interest, damages, procedural part al- their set- lowed, weaknesses, by application arbitrary precipitated conflict of this rules, our and the resolution justice as a tled in courts but result of the circuit conflict the offices case....” individual just. judge was fair and Damages (quoting Am.Jur.2d § Id. (1965)) Upon (emphasis supplied). that lan- Judge McKeev- guage, rationally I defend tempered arbitrary rules

er’s decision. He “justice of the common sense judgment en- case.” Were the

individual

Case Details

Case Name: Hageman v. Vander Vorste

Court Name: South Dakota Supreme Court

Date Published: Apr 1, 1987

Citation: 403 N.W.2d 420

Docket Number: 15297, 15320

Court Abbreviation: S.D.