author: GILBERTSON, Chief Justice.

text:
    2007 SD 9
    Sharon HANSON, Petitioner and Appellee, v. VERMILLION SCHOOL DISTRICT # 13-1 and Board of Education, Respondent and Appellant.
    No. 24014.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 2, 2006.
    Decided Jan. 17, 2007.

      Anne Crowson Plooster, General Counsel, South Dakota Education Association, Pierre, South Dakota, Attorney for petitioner and appellee.
    James E. McCulloch, McCulloch Law Office, Vermillion, South Dakota, Attorney for respondent and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] On March 22, 2004, the Vermillion School District Board of Education (Board) voted to non-renew Sharon Hanson’s professional employee contract with the Vermillion School District (District). The Vermillion Education Association (Association) filed a grievance on her behalf with the District that was rejected by the Board. The Association appealed the Board’s decision to the South Dakota Department of Labor, Division of Labor and Management (DOL). An administrative law judge (ALJ) heard the appeal and affirmed the District’s decision to non-renew Sharon Hanson’s contract. The Association then filed an appeal with the South Dakota Sixth Judicial Circuit, which reversed. The District and Board now appeal. We reverse.

FACTS AND PROCEDURE

[¶ 2.] Due to a revenue shortfall and the voters’ subsequent rejection of an opt-out proposal, the District eliminated several staff positions for the 2004-2005 term. The District applied its reduction-in-force (RIF) policy to determine which positions to eliminate. The RIF policy was part of the overall Negotiated Agreement for 2003-2004 (Agreement) between the District and the Association, the collective bargaining group on behalf of teachers working for the District.

[¶3.] Among the positions the Board voted to eliminate at its March 8, 2004 meeting was high school computer education. This position was held by Cheryl Lessmann (Lessmann). Lessmann had taught for the District for over 30 years. At the time, she taught four sections of high school computer classes. The District determined that Lessmann met the RIF policy requirements necessary to invoke seniority, thus enabling her to “bump” into the position of a teacher with less seniority. See note 1 supra (setting out two requirements in paragraph three that must be met to invoke seniority). In order to allow her an opportunity to exercise the prerogative, the District delayed action to non-renew Lessmann’s contract until March 22, 2004.

[¶ 4.] The District reached its determination that Lessmann was eligible to use seniority based on her certification and the courses she had taught during the preceding seven years. Though Lessmann was certified to teach in subject areas other than computer science, she had not taught under these certifications during the preceding seven years. Therefore, Lessmann could only use her seniority to “bump” into another computer science position.

[¶ 5.] Besides Lessmann, the District employed three other individuals who taught computer courses. Sharon Hanson (Hanson) had taught for the District for 17 years. At the time, she was the elementary and middle school computer teacher. Marlys Larson (Larson) had taught for the District for 10 years. At the time, she was a part-time high school business teacher and part-time elementary computer teacher, who also taught a middle school computer class during the second semester of the 2003-2004 term. Erik Van Laecken (Van Laecken) was in his first year of teaching with the District. He was a part-time elementary computer teacher, part-time middle school science and technology modules instructor, middle school technology coordinator and head cross-country track coach. In addition to these duties Van Laecken also performed middle school Website work.

[¶ 6.] The District determined that Lessmann could not “bump” either Larson or Van Laecken. Lessmann would have been able to “bump” in to teach Larson’s middle school and elementary computer courses, but she could not “bump” into Larson’s high school, business oriented courses. Although Lessmann had the certification required for teaching marketing & business and accounting by virtue of her business education teaching major, she had not taught in the high school business curriculum during the preceding seven years. Therefore with respect to the business courses in Larson’s schedule, Lessmann satisfied the first RIF policy requirement to invoke seniority — certification. However, she could not satisfy the second requirement — recent teaching experience at the corresponding grade level under the applicable certification.

[¶ 7.] Lessmann was not able to satisfy either of the seniority requirements with respect to Van Laecken’s position. The technology modules taught by Van Laecken were heavily weighted on math and science. Lessmann had neither the certification nor the teaching experience, in math or science, for her to exercise seniority under the RIF policy to “bump” into a position teaching those disciplines. Neither did Lessmann have any coaching experience or qualifications. Therefore, she was unable to “bump” into Van Laecken’s cross-country coaching duties.

[¶ 8.] Lessmann was able to “bump” into Hanson’s position because she was able to satisfy both of the RIF policy seniority requirements with respect to Hanson’s schedule. Hanson taught computer science courses exclusively. Less-mann was certified to teach those courses, thereby satisfying the first requirement. She had also taught courses under the computer science certification, within the grade span taught by Hanson, during the last seven years. This satisfied the second requirement. Lessmann notified the District that she intended to exercise her seniority to “bump” into Hanson’s position. On March 23, 2004, the District gave Hanson notice that her contract would be non-renewed for the 2004-2005 term.

[¶ 9.] On April 12, 2004, the Association filed a grievance with the District on Hanson’s behalf. The Association requested that Hanson’s contract be renewed because she too should have been able to exercise seniority to “bump” into a different position. The Association argued that Hanson’s certification and seniority qualified her to “bump” into either Larson’s or Van Laecken’s position. This argument was based in part on the claim that Hanson, Lessmann, Larson & Van Laecken all possessed the same experience because they all had been teaching computers within the K-12 grade span during the past seven years and had served on computer or technology committees. The Association also argued that no special qualifications were required to teach Van Laecken’s technology modules and that the RIF policy was not being followed in the manner previously applied.

[¶ 10.] On April 14, 2004, the District formally rejected Hanson’s grievance. The District pointed out several factors in making its determination. The vast majority of Van Laecken’s responsibilities comprised teaching technology modules for which Hanson lacked sufficient qualifications. Hanson was not certified to take over Van Laecken’s coaching duties. Though Hanson was certified to take over Larson’s middle school computer and high school business courses, she had not taught business courses within the last seven years. Consequently, the District determined that Hanson could not satisfy the seniority requirements of the RIF policy-

[¶ 11.] Hanson appealed the District’s decision to the DOL. On September 14, 2004 an ALJ heard the appeal. Hanson took the position that Van Laecken’s position should have been “reduced-in-force” or “RIFed.” Hanson supplemented her previous arguments in regard to “bumping” into Van Laecken’s position by calling his coaching duties a “non-issue” since coaching certifications were no longer administered by the DOE.

[¶ 12.] Hanson argued in the alternative that she should be able to partially “bump” into the positions of both Larson and Van Laecken. Hanson reasoned that if she could not teach Larson’s business courses and was unqualified to teach Van Laecken’s technology modules, she should be able to “bump” into the rest of their respective schedules. The District’s policy was not to allow “partial bumping.” The District asserted that Hanson could not “cherry-pick” classes she was qualified to teach because the responsibilities within a position were not severable. The District further noted that the purpose of the RIF was to save money by reducing staff. If “partial bumping” was allowed, optimum savings could not be achieved.

[¶ 13.] The ALJ issued a memorandum decision on April 20, 2005, affirming the District’s decision to non-renew Hanson’s contract. On May 18, 2005 the ALJ issued an order, together with findings of fact and conclusions of law, incorporating the earlier memorandum decision. The order dismissed Hanson’s grievance with prejudice. The ALJ found that Hanson had not taught high school business courses during the previous seven years and therefore could not “bump” into Larson’s position. The ALJ also found that the technology modules taught by Van Laecken and his coaching duties precluded Hanson from “bumping” into his position.

[¶ 14.] The ALJ found Van Laecken’s 671 K-12 educational technology teaching major, coupled with his 5-8 middle level science qualifications and K-8 elementary education endorsement (qualifying Van Laecken to teach elementary math), certified him to teach technology modules. See note 6 supra. Conversely, the ALJ found that Hanson was not certified to teach technology modules because she only possessed a 6700 computer science certification and did not possess math or science qualifications. The ALJ noted the parties stipulated that coaching requirements still exist, albeit through SDHSAA rather than DECA. Since Hanson possessed no coaching credentials, the ALJ found she could not assume Van Laecken’s coaching duties.

[¶ 15.] With regard to Hanson’s alternative “partial bumping” proposal, the ALJ concluded that the District’s RIF policy was clear and unambiguous and did not address that possibility. The ALJ also concluded that “partial bumping” was not' permitted because teaching contracts are not severable and “all teaching contracts are an equal part and parcel of an entire contract.” In addition, the ALJ concluded that the dollar saving objective of the RIF could not be accomplished by “partial bumping.”

[¶ 16.] Hanson appealed the ALJ decision to the South Dakota Sixth Judicial Circuit, where on December 7, 2005, the circuit court heard oral arguments. At the conclusion of argument, the circuit court reversed the ALJ. On January 5, 2006, the circuit court issued its order with findings of fact and conclusions of law. The order directed the District to reinstate Hanson’s contract for the 2004-2005 term. Agreeing with the District, the circuit court concluded there was no provision in the RIF policy for “partial bumping” and that it should not otherwise be allowed. However, the circuit court discovered a new interpretation of the seniority provisions of the RIF policy that the court concluded “clearly and unambiguously” enabled Hanson to “bump” Van Laecken from his position.

[¶ 17.] The circuit court determined that the term “necessary certification,” as it was used in the first part of the RIF policy seniority requirement, applied to the position that was RIFed rather than the position that a teacher was attempting to “bump” into. Based on this interpretation, no other certifications were relevant for satisfying the first requirement.

[¶ 18.] The circuit court also had a different interpretation for the second requirement of the RIF policy. It determined that the list referenced in this requirement was exclusive. See note 1 supra (referencing a parenthetical list in paragraph 3 that includes certifications (K-12 art, K-12, K-12 computer, etc.) in regard to the second requirement to invoke seniority — experience teaching course within a certification during the preceding seven years). The circuit court’s determination was based on the fact that the list was preceded by the abbreviation “i.e.” or “that is.” The circuit court decided that to satisfy the second seniority requirement a teacher had to have taught within one or more of the certifications listed during the preceding seven years.

[¶ 19.] Contrary to the District’s contention, the circuit court also found there had been a past practice of RIFing on a departmental basis. In the circuit court’s view, the District’s past practice had been to RIF within a certification without specifying the position to be RIFed. The RIF would then be applied to eliminate the position of the lowest seniority person within a group of like certified persons.

[¶ 20.] The circuit court reasoned that Hanson’s reinstatement was justified because the District had not correctly applied its RIF policy. Under the circuit court’s interpretation of the RIF policy,, Hanson had satisfied the first requirement of the seniority provision. By this interpretation, K-12 computer science was the only certification relevant since the RIFed position was Lessmann’s computer science course. , The circuit court also concluded that under its interpretation, Hanson also satisfied the second seniority requirement because she had taught a course within the preceding seven years under a certification that was among those included on the “exclusive list,” K-12 computer science.

[¶ 21.] The District asserted that the middle school technology modules taught by Van Laecken were not computer science courses. Rather, they were math and science technology courses that integrated technology for instructional purposes. The circuit court dismissed the District’s position. It found that there was no difference between Van Laecken’s K-12 education technology endorsement and Hanson’s K-12 computer science endorsement. The circuit court then concluded that the technology modules were merely another form of “computer science/technology department” course that Hanson was certified to teach given her K-12 computer science endorsement.

[¶ 22.] The District had also averred that Hanson could not “bump” into Van Laecken’s position because she lacked the requisite coaching credentials required for her to take over Van Laecken’s entire contract. The circuit court in dismissing the relevance of the coaching duties cited the District’s RIF policy that gave priority to academic areas over extracurricular when making staff reduction decisions. See note 1 supra, paragraph 2(B). The circuit court also disagreed with the District in finding that Hanson was qualified to perform Van Laecken’s middle school technology coordinator and Website maintenance duties. In reversing the decision of the ALJ, the circuit court determined that Hanson could invoke her seniority to “bump” into Van Laecken’s position, concluding it was a computer science/technology department position.

[¶ 23.] The District raises two issues on appeal:

1. Whether the circuit court erred by its interpretation of the District’s RIF policy.
2. Whether the circuit court erred in determining Hanson could “bump” into Van Laecken’s position.

STANDARD OF REVIEW

[¶ 24.] Interpretation of contracts is a question of law, reviewed de novo. Prunty Const., Inc. v. City of Canistota, 2004 SD 78, ¶ 10, 682 N.W.2d 749, 753 (citing Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 8, 676 N.W.2d 390, 393). This Court reviews the circuit court’s conclusions of law de novo. Parmely v. Hildebrand, 2001 SD 83, ¶ 6, 630 N.W.2d 509, 512 (citing Arnold Murray Constr., LLC v. Hicks, 2001 SD 7, ¶ 6, 621 N.W.2d 171, 174). We treat mixed questions of law and fact, requiring the application of a legal standard, as questions of law subject to de novo review. Bayer v. PAL Newcomb Partners, 2002 SD 40, ¶ 8, 643 N.W.2d 409, 411 (citing Permann v. South Dakota Dep’t of Labor, Unemployment Ins. Din, 411 N.W.2d 113, 119 (S.D.1987)). We review the circuit court’s findings of fact under the clearly erroneous standard. Franklin v. Forever Venture, Inc., 2005 SD 53, ¶ 7, 696 N.W.2d 545, 548 (citing Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463).

ANALYSIS AND DECISION

[¶ 25.] 1. Whether the court erred by its interpretation of the District’s RIF policy.

[¶ 26.] The District argues that the circuit court’s interpretation of the RIF policy’s two seniority requirements will bring about a result unintended by either the District or the Association. The District believes that both it and the Association intended the RIF policy to result in the replacement of a less senior, but qualified teacher with a more senior, qualified teacher. The District contends the upshot of following the circuit court’s interpretation will result in the undesirable and unintended effect of replacing qualified but less senior teachers with more senior teachers who are less qualified. The District also argues that many teachers will simply not be able to exercise their seniority under the circuit court’s interpretation because they are not endorsed for one of the certifications on the “exclusive list.”

[¶ 27.] Trade agreements or collective bargaining agreements are contracts under South Dakota law. Council of Higher Educ. v. South Dakota Bd. of Regents, 2002 SD 55, ¶ 10, 645 N.W.2d 240, 243-14. Contracts negotiated between teachers and public school districts are like any other collective bargaining agreement. Id. (citing Wessington Springs Educ. Ass’n v. Wessington Springs Sch. Dist. No. 36-2, 467 N.W.2d 101, 104 (S.D.1991)). Disputes over collective bargaining agreements negotiated between school districts and teachers are settled by application of general contract principles. Id. Disputes over the meaning of terms in teacher contracts are settled by applying general principles of contract law. Gettysburg Sch. Dist. No. 53-1 v. Larson, 2001 SD 91, ¶ 11, 631 N.W.2d 196, 200 (resolving an issue over interpretation of a RIF policy in a school district’s collective bargaining agreement with teachers) (citing Wessington Springs Educ. Ass’n, 467 N.W.2d 101, 104 (S.D.1991)).

[¶ 28.] “When the terms of a negotiated agreement are clear and unambiguous, and the agreement actually addresses the subjects that it is expected to cover, ‘there is no need to go beyond the four corners of the contract.’ ” Wessington Springs Educ. Ass’n, 467 N.W.2d at 104 (quoting AFSCME Local 1922 v. State, 444 N.W.2d 10, 12 (S.D.1989)) (citing MEA/AFSCME Local 519 v. City of Sioux Falls, 423 N.W.2d 164, 168 (S.D.1988)). When the language of the collective bargaining agreement is ambiguous, we may go outside the four corners of the contract to interpret its meaning. AFSCME Local 1922, 444 N.W.2d at 12 (clarifying the general proposition cited in MEA/AFSCME Local 519, 423 N.W.2d at 168 (S.D.1988)).

[¶ 29.] Hanson cites Estate of Fisher v. Fisher, to support her position that the circuit court’s interpretation of the RIF policy must be affirmed because to do otherwise would render the seniority provision meaningless. 2002 SD 62, ¶ 14, 645 N.W.2d 841, 846 (noting that a contract should not be interpreted so as to render part of it meaningless) (citing Bowen v. Monroe Guar. Ins. Co., 758 N.E.2d 976, 980 (Ind.App.2001)). Hanson offers nothing more specific to support this general position.

[¶ 30.] Applying the facts of this case to the seniority provision of the RIF policy, as negotiated by the District and the Association, it is true that Hanson’s seniority in this factual setting is meaningless. However, this is only because she has neither the certification nor recent experience of the less senior teacher whose position she is trying to assume. Hanson overlooks the fact that the seniority provision, as negotiated, was not meaningless to Lessmann who was able to exercise her seniority. What renders seniority truly meaningless for all but a select few staff members is the circuit court’s interpretation of the RIF policy, now supported by Hanson.

[¶ 31.] The practical effect of interpreting the term “necessary certification” in the first seniority requirement to refer to the RIFed position is to render meaningless any other certification under which a teacher may be endorsed to teach. For example, suppose a teacher was RIFed out of a K-12 computer certified course position, but also carried another certification from the “exclusive list,” such as K-12 PE. Even if the teacher had taught under the K-12 PE certification during the preceding seven years, the teacher still could not exercise seniority to “bump” into the position of a less senior K-12 PE teacher because the position that had been RIFed was a K-12 computer certified course. Further under the circuit court’s interpretation, any teacher RIFed out of a course for which he or she is certified would always satisfy the first seniority requirement with respect to that certification.

[¶ 32.] Perhaps even less meaningful is the status that seniority is relegated to under the circuit court’s interpretation of the second seniority requirement. Seniority becomes irrelevant within a certification like the RIFed position, if the teacher whose position was RIFed does not carry one of the certifications on the “exclusive list.” In addition to the eight certifications on the “exclusive list,” the DOE lists 46 other teacher certifications under ARSD chapters 24:15:06 and 24:16:08. Based on the interpretation of the circuit court, none of these certifications would qualify a teacher to invoke seniority.

[¶ 33.] The rationale of teacher certification under the circuit court’s interpretation is not supported by other parts of the Agreement. The Agreement also includes policies relevant to transfers and reassignments that take place due to vacancy. A transfer is defined as the appointment of a teacher to a different school within the District. A reassignment is a designation that a teacher will teach at a different grade level and or class within the same school. Criteria evaluated in reviewing teacher transfer and reassignment includes, “qualification of the teacher as compared to the job criteria and any minimum requirements for the position to be filled.” (Emphasis added). It is counter-intuitive to conclude that the District and Association would have intended the qualifications of a teacher seeking to fill a vacant position to be considered more prominently than those of teacher seeking to “bump” into a position presently occupied by a qualified teacher.

[¶ 34.] The record is devoid of any indication that the District or Association intended to relegate seniority to a nearly ineffectual status by drafting a seniority provision so limited in application as interpreted by the circuit court. Hanson, below, never advocated the interpretation of the RIF policy adopted by the circuit court. Her objections to the District’s decision to non-renew her contract were always based on the claim that she was qualified/certified to assume the teaching duties of Van Laecken’s position. This is evident in the following excerpt from the brief she submitted to the ALJ:

Sharon testified [at the April 12, 2004, Board level grievance hearing] that she was qualified/certified to teach technology modules as of the date she was RIFed. She also testified that she was qualified/certified to perform middle school web site work and middle school technology coordinator work.... There was no testimony [offered by the District to show] Sharon could not perform Van Laecken’s coaching duties.

Contrary to Hanson’s new position, the mandate of statute, other provisions in the Agreement, and past practice reveal that the District and the Association intended the provision to be interpreted so as to make seniority significant for the largest possible number of teachers employed by the District.

[¶ 35.] The Agreement, under Scope of Negotiations Professional Negotiations-Policy, Article I, “Recognition” provides: “The Vermillion School Board formally recognizes the Vermillion Education Association as the representative of the certified personnel of the district.” Appendix H, “2003-2004 Negotiations Guidelines,” paragraph A, provides: “In accordance with SDCL [chapter] 3-18, the board recognizes the Vermillion Education Association /SDEA/NEA as the official representative of all employees as defined in Article I paragraph one of the negotiated agreement.” (Emphasis added). Scope of Negotiations, Professional Negotiations Policy, Article II, section C, “Subject of Negotiation” further provides: “The negotiation teams shall consider policies, which affect ‘rate of pay, wages, hours of employment, or other conditions of employment’ as spoken to in SDCL 3-18-3.”

[¶ 36.] The Agreement established the Association as the designated representative of all the teachers in negotiations with the District over terms of the Agreement. Both the applicable statutes and the Agreement itself recognize a duty by the Association to fairly represent all teachers of the District. The position now advocated by Hanson is not consistent with that obligation.

[¶ 37.] Hanson also contends that prior applications of the RIF policy support the position that the District conducted RIFs on a departmental basis without specifying a position. We disagree. The record indicates that the RIF policy was applied on four occasions prior to Hanson’s non-renewal. On one occasion a K-12 PE position was RIFed and the lowest seniority person was reduced from full time to part time. On another occasion a K-12 music position was RIFed and the least senior person was slated for contract non-renewal. Another RIF involved a K-12 counsel- or’s position in which the least senior counselor was non-renewed. These prior RIFs are not informative because the record does not reveal whether the effected parties held other certifications beside that of the positions that were RIFed. There is also nothing in the record from which it can be determined whether a specific position was RIFed or a departmental RIF occurred. Middle school principal Pat Anderson (Anderson) testified at the ALJ hearing that the District had established no departments and that Hanson’s RIFing resulted from a positional RIF- — a reduction in staff by elimination of the high school computer science position.

[¶ 38.] More informative is the prior K-12 art RIF. An elementary art teacher was RIFed. This teacher had more seniority than the high school art teacher, but was unable to exercise her seniority because she only held a K-8 art certification. This indicates that prior RIFs were conducted on a positional basis because the invocation of seniority was contingent upon satisfying the second seniority requirement that references the position the teacher is attempting to “bump” into.

[¶ 39.] The circuit court also misapplies paragraph 2(B) of the RIF policy relating to the priority applied to academic areas over extracurricular areas when considering staff reduction. See note 1 supra, paragraph 2(B). The circuit court’s construction of this provision renders immaterial Van Laecken’s coaching responsibilities thus permitting Hanson, who lacks any coaching credentials, to “bump” into his position.

[¶ 40.] As we read this provision in context with the rest of the RIF policy we conclude that it applies to the initial evaluation of which position(s) to eliminate. Once positions slated for elimination due to RIF have been established through application of the paragraph 2(B) criteria, determination of which staff members to non-renew is made by applying paragraph 3, including consideration of seniority, if the requisite certification provisions are satisfied.

[¶ 41.] We conclude that the term “certification” in the first seniority requirement refers to the position that a teacher whose position has been RIFed is attempting to “bump” into. The parenthetical list of eight certifications included in the second seniority requirement is intended to be an example of the other 46 certifications listed in the DOE regulations and refers to the certification requirement of the position the RIFed teacher is attempting to “bump” into. We reverse the circuit court on this issue.

[¶ 42.] 2. Whether the circuit court erred in determining Hanson could “bump” into Van Laecken’s position.

[¶ 43.] The District argues that the circuit court’s finding, equating the certifications of Hanson and Van Laecken, is clearly erroneous. The ALJ found that the middle school technology modules taught by Van Laecken are math and science based courses. Anderson testified at the ALJ hearing that the technology modules are “an integrated format for teaching math skills and science skills.” The circuit court’s conclusion that Hanson is qualified to teach this course is based on its finding that Hanson and Van Laecken have equivalent certifications. We disagree with this conclusion because the underlying finding is clearly erroneous.

[¶ 44.] Hanson’s 6700 computer science endorsement is not equivalent to Van Laeeken’s 671 educational technology endorsement. According to the DOE, the 6700 endorsement is no longer issued having been replaced by 671. The 671 endorsement has expanded course requirements beyond those previously required to obtain a 6700 endorsement. A teacher may continue to teach computer science courses using the 6700 endorsement. If, however, the 6700 endorsement is allowed to lapse, the teacher must recertify under the 671 endorsement with its more expansive course prerequisites. Hanson and the District stipulated to these facts.

[¶ 45.] Notwithstanding the distinction between Hanson’s computer science endorsement and Van Laecken’s education technology endorsement, Hanson has no math or science certification. See note 7 supra. Van Laecken has both natural science and social science endorsements. See note 6 supra. Van Laecken’s math certification underlies his K-8 elementary education endorsement. Id. We conclude that the circuit court erred when it reversed the DOL and supplanted the determination of the District with respect to Hanson’s qualifications to teach technology modules.

[¶ 46.] The District also argues that Hanson possesses no coaching credentials and thus cannot assume Van Laecken’s cross-country coaching responsibilities. The circuit court concluded that Van Laecken’s coaching responsibilities are a non-issue and as such should be disregarded. This Court has held otherwise. A teacher’s coaching responsibilities are not severable from a teacher’s classroom responsibilities, but are equal parts of the teacher’s entire contract. Lemmon Educ. Ass’n. v. Lemmon School Dist. No. 52-2, 478 N.W.2d 821, 824 (S.D.1991) (holding that non-renewal of a teaching contract for deficient performance of an extracurricular activity does not violate continuing contract law when the decision to non-renew is not unreasonable, arbitrary or an abuse of discretion) (interpreting Reid v. Huron Board of Education, 449 N.W.2d 240 (S.D.1989)). Thus, even if we were to conclude that Hanson was qualified to teach technology modules, she still could not “bump” into Van Laecken’s position since she lacks the prerequisite training to receive SDHSAA coaching authorization. See note 8 supra.

[¶ 47.] The District also argues that Hanson does not possess the qualifications to take over Van Laecken’s middle school website work and duties as middle school technology coordinator. In addition to the broader base of technology related courses that Van Laecken had to take to obtain the 671 K-12 educational technology endorsement, he has also completed at least 32 hours of post-bachelor degree study in technology and website development since 2002. During the same period Hanson completed approximately four hours of training in technology. We therefore conclude that Hanson is likewise not qualified to “bump” into Van Laecken’s Website work or technology coordinator duties. The principle from Lemmon Educ. Assoc., applies with equal relevance to Hanson’s attempt to “bump” into this portion of Van Laecken’s contract. Even if Hanson was qualified to teach technology modules and coach, she still could not “bump” into Van Laecken’s position because she lacks adequate training in technology and website development.

[¶ 48.] “No person may teach ... in any of the public schools of this state or draw wages as a teacher ... who does not have a certificate issued by' the secretary of the Department of Education authorizing the person to teach ... in the ... field for which he was employed. ” SDCL 13-42-1 (emphasis added). A de novo hearing conducted by a circuit court in a school board case, though it permits an independent inquiry into the facts, is limited to considering the legality of the school board’s decision and may not substitute the judgment of the circuit court for that of the board. Mortweet v. Ethan Bd. of Ed., Davison County, 90 S.D. 368, 372-73, 241 N.W.2d 580, 582-583 (1976). “This [C]ourt is cognizant of the great deference due to school board decisions in determining whether to renew a teacher’s contract. As long as the school board is legitimately and legally exercising its administrative powers, the courts may not interfere with nor supplant the school board’s decision making process.” Sutera v. Sully Buttes Bd. of Educ., 351 N.W.2d 457, 458-59 (S.D.1984) (citing Schaub v. Chamberlain Bd. of Educ., 339 N.W.2d 307 (S.D.1983); Schnabel v. Alcester School Dist. No. 61-1, 295 N.W.2d 340 (S.D.1980)). “Policies of a school district especially those negotiated with bargaining representatives for the protection of teachers, have the full force and effect of law, and legally bind the school district.” Wessington Springs Educ. Ass’n., 467 N.W.2d at 104 (citing Schnabel, 295 N.W.2d 340; Sutera, 351 N.W.2d 457).

[¶ 49.] The District is bound by statute to employ teachers who are certified to teach in the positions for which they have been hired. The District was legally and properly following the RIF policy. Therefore, the District’s decision to non-renew Hanson’s contract due to her lack of qualification for Van Laecken’s position was correct. As a result, the circuit court’s reversal of same was error. For the foregoing reasons we reverse.

[¶ 50.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      .The RIF policy was included in the Agreement under "STAFF REDUCTION” and provided as follows:
      Whenever, in the judgment of the Vermillion School Board it is advisable to reduce staff in the district, the following procedure will be used:
      1. The school board, or its designee, will through the use of a verbal communication with the teaching staff, explain the situation confronting the district and allow the Association a reasonable opportunity, not to exceed ten (10) days from the date of the communication to present possible alternatives.
      2. The school board hereby states that the following areas are the overall guidelines for any staff reduction:
      A. Balanced cuts as to grade level and curriculum area to be determined by the student population and the pressure this population places on grade level or on subject area.
      B. The superiority of academic areas over extracurricular activities.
      3. The board may consider the following, not necessarily in order of priority, any of which may be used in determining which staff members will be nonrenewed for staff reduction purposes: student needs, financial condition of the district, priority of programs, program elimination, recommendations of administrative staff, evaluation records, competency, qualifications, certification, education background, continuing contract status, federal mandates, and any other relevant considerations. Seniority shall have priority in making staff reduction: (1) provided the teacher has the necessary certification stated on his/her certificate that is on file in the Administrative Services Building and, (2) provided the teacher has taught in one or more of the grades and certification of the respective level of education (Early Childhood-5, 6-8, 9-12, or support services; i.e. K-12 art, K-12 music, K-12 computer, EC-12 special education, K-12 library, K-12 counselors, K-12 P.E., and respective K-12 foreign language) during the last seven years in the Vermillion School District.

      (Emphasis added).

      .Lessmann’s "Teacher Certificate” had been issued by the South Dakota Department of Education and Cultural Affairs (DECA). The certificate had the following endorsements:
      Education Staff Assignment Endorsements
      204 Secondary School Teacher
      210 Office Occupations Teacher
      212 Librarian
      Teaching Majors
      520 Business Education
      Additional Subjects/Assignments
      6400 Library/Media (K-12)
      6700 Computer Science
      2001 Lang. Arts-Mid. Sch./Jr. High

      . Hanson had the following class schedule for the 2003-2004 term:
      1st period 8th grade Computer Lit.
      2nd period 8th grade Computer Lit.
      3rd period 7th grade Computer Applications
      4th period Lunch duty
      5th period Lunch
      6th period 6th grade keyboarding
      7th period 3rd grade computers

      . Larson had the following class schedule for the 2003-2004 term including the second semester middle school computer class:
      1st period 4th and 5th grade computer
      2nd period Marketing and Business

        3rd period Accounting
      4th period 8th grade Computer Lit.

      . Van Laecken had the following class schedule for the 2003-2004 term:
      1st period 1st and 2nd grade computers 2nd-7th periods 6th, 7th and 8th grade Tech Modules and Building Tech Coordinator
      In addition to his $26,471.00 annual base salary as Technology Modules instructor, Van Laecken also received $1,175.00 for middle school Website work, $1,175.00 for middle school technology coordination, and $2,350.00 for head cross-country coaching duties. His total contract compensation for the 2003-2004 term came to $31,171.00.

      . Van Laecken’s “Teacher Certificate” was issued by the South Dakota Department of Education (DOE) on May 7, 2002 following the reorganization of teacher certification and school accreditation that had formerly been administered by DECA. The certificate had the following endorsements:
      Education Staff Assignment Authorization:
      202 K-8 Elementary Education
      Degree Program Authorization:
      460 Elementary Education
      671 K-12 Educational Technology Education
      Endorsement Program Authorization:
      2001 5-8 Middle Level EducationLanguage Arts
      2002 5-8 Middle Level EducationSocial Science
      2003 5-8 Middle Level EducationNatural Science
      7011 Basketball
      7012 Football
      7017 Track/Cross Country
      7021 7-12 Assistant Varsity Coach
      7022 Middle/School Junior High Coach
      7023 K-8 Elementary Coach
      Although Van Laecken's certificate did not include a stand-alone math endorsement, his certification to teach elementary math arose from his K-8 elementary education endorsement. ARSD section 24:16:08:05 states in pertinent part:
      A K-8 elementary education program shall comply with all standards in general education and professional education and require coursework sufficient to constitute a major, which includes demonstrated competence in the following professional development areas and completion of the following subjects:

      (5) Nine semester hours in mathematics, to include algebra or an equivalent;

      (8) Methodology of ... mathematics, ...;

      . Hanson's “Teacher Certificate” issued by DECA on June 27, 2000 included the following endorsements:
      Education Staff Assignment Endorsements
      204 Secondary School Teacher
      216 Middle School/Jr High Experience
      Teaching Majors
      520 Business Education
      630 Health/Phys Ed (K-12)
      Additional Subjects/Assignments
      2001 Lang. Arts-Mid. Sch./Jr. High 6700 Computer Science (K-12)

      . Prior to the 2001-2002 school term, coaching endorsements were administered by DECA. Since the 2001-2002 term, high school coaching requirements have been administered by the South Dakota High School Athletics Association (SDHSAA). The requirements for coaching authorization under SDHSAA are the same for both head coaching and assistant coaching. An individual seeking authorization to coach must first complete two courses, Coaching Principals and Sports First Aid. This information is available at http://www.sdhsaa.com (last visited January 2, 2007).

      . Under the circuit court's interpretation, the first requirement of the RIF policy seniority qualifier became a comparison test. A teacher whose position had been RIFed could "bump” into any other position utilizing the same certification as the RIFed position providing the second requirement could also be satisfied.

      . Under the circuit court's interpretation, this "exclusive list” in the second requirement essentially became a limiting factor. In order for a teacher to "bump” into a position with the same certification as the RIFed position (established under the first requirement), the teacher had to have taught within one of the certifications on the "exclusive list” during the preceding seven years. This list comprised K-12 art, K-12 music, K-12 computer, E-12 special education, K-12 library, K-12 counselors, K-12 P.E., and respective K-12 foreign languages.

      .Middle school principal Pat Anderson testified at the ALJ hearing that the sixth grade math and measurements module taught by Van Laecken did not utilize the computer at all.

      . The following certifications are included in ARSD chapters 24:15:06 and 24:16:08:
      Birth through preschool education endorsement program, kindergarten education endorsement, 5-8 middle level education endorsement, 5-8 middle level education endorsements content areas (language arts, mathematics, natural science and social science), 7-12 language arts education endorsement, 7-12 mathematics education endorsement, 7-12 science education endorsement, 7-12 social science education endorsement, 7-12 vocational-technical education endorsement, 7-12 business education endorsement, 7-12 marketing education endorsement, 7-12 technology education endorsement, K-12 comprehensive school health education endorsement, K-12 educational technology endorsement, K-12 adapted physical education endorsement, K-12 South Dakota Indian studies education endorsement, K-12 deaf or hearing impaired endorsement, birth through preschool special education endorsement, K-12 English as a new language education endorsement, K-12 gifted education endorsement, K-12 American sign language education endorsement, K-12 Braille education endorsement, K-12 Lakota languages education endorsement, 7-12 driver education endorsement, junior ROTC education endorsement, coach education endorsement, birth to age 21 school psychological examiner education endorsement, K-12 blind or visually impaired endorsement, business official endorsement, K-12 mathematics specialist, K-12 science specialist endorsement, grade K through grade 8 special education endorsement, grade 7 through 12 special education endorsement, K-12 special education program, birth through age eight early childhood and birth through age eight special education program, K-8 elementary education program, K-8 elementary education/special education program, 7-12 secondary education program, 7-12 agriculture education program, 7-12 home economics/family and consumer science education program, K-12 education program, K-12 reading specialist program, 7-12 mathematics/science composite program.

      . SDCL 3-18-3 provides in pertinent part:
      Representatives designated or selected for the purpose of formal representation by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all employees in such unit for the purpose of representation in respect to rates of pay, wages, hours of employment, or other conditions of employment[.] (Emphasis added).

      . Anderson’s testimony that staff reduction is conducted on a positional basis is consistent with minutes from the March 8, 2004, Board meeting. The minutes include the following entry:
      Item #8-1904
      Motion by Granaas, seconded by Merri-gan, to eliminate the following positions for the 2004-2005 school year due to reduction-in-force:
      High school computer education
      Elementary/middle school counselor
      Elementary art
      Part-time high school English
      Second grade teaching position
      Third grade teaching position
      Music position below high school level
      Part-time special education at middle school
      High school math
      Aye: Unanimous

      . On its website at http://doe.sd.gov/oatq/ teachercert/Changes/kl 2edtec.htm (last visited January 2, 2007), the DOE publishes the following information distinguishing the old 6700 endorsement from the current 671 endorsement:
      24:02:01:09 (18) K-12 Computer Endorsement Requirements EFFECTIVE UNTIL 8/31/2000
      24:02:01:09. Teaching assignment outside major areas of academic preparation-Exceptions Teaching assignments outside major areas of academic preparation require the following minimum preparation:
      Eight semesters [hours] for a K-12 computer science teacher, including one course in programming language
      24:16:08:36 K-12 Educational Technology EFFECTIVE 9/1/2000 and THEREAFTER 24:16:08:36. K-12 Educational Technology endorsement program. A K-12 educational technology endorsement program requires an educational technology methodology course in addition to 12 semester hours of coursework as follows:
      (1) Demonstrated knowledge of basic computer technologies and networking concepts, terminology tools, and applications;
      (2) Study of designing, operating, and maintaining computer technologies and networking systems;
      (3) Development of skills with current productivity and multimedia tools for education;
      (4) Demonstrated competencies with integrating educational technology to support teaching and learning;
      (5) Study of equity and ethics associated with the use of educational technology in schools.
      Study in the developmental characteristics of K-12 learners and a practicum, internship, or student teaching inclusive of K-12 learners is required in addition to the 12 hours, if not previously completed.
      Verified teaching experience in K-12 educational technology within the five-year period immediately preceding application may be accepted in lieu of the above field experiences at the equivalency of one year’s teaching experience for one semester hour credit for a maximum of three semester hours of the total credit hours required. (Emphasis in original omitted).
      Note: the DOE website also explains that to be issued a 6700 K-12 computer science endorsement, its requirements must be met by 9/1/2000. After 9/1/2000, the requirements for the 671 K-12 educational technology endorsement must be met because only it will be issued.

      . This information is from a report compiled by the District that was made available at the April 12, 2004 board-level grievance hearing.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2007 SD 13
    FB & I BUILDING PRODUCTS, INC., Plaintiff and Appellee, and Michael Johnson, Defendant, v. SUPERIOR TRUSS & COMPONENTS, A DIVISION OF BANKS LUMBER, INC., and Banks Lumber, Inc., Defendants and Appellants.
    No. 24000.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2006.
    Decided Jan. 24, 2007.

      Scott N. Heidepriem, Ronald A. Parsons, Jr., Shannon R. Falon of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Richard J. Helsper, Jody Odegaard Smith of Glover & Helsper, Brookings, South Dakota, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] In this contract dispute over commissions, the circuit court ruled that one of the parties materially breached the contract, but the non-breaching party was still ordered to pay commissions to the breaching party. Because the contract specifically provided for such a remedy in the event the contract was cancelled for failure to meet any of its conditions, we affirm.

Background

[¶ 2.] Kermit Johnson formed FB & I Building Products, Inc. of Watertown, South Dakota. FB & I was solely in the business of selling building materials. Kermit contacted Superior Truss & Components, of Minneota, Minnesota, about the possibility of doing business together. On December 5, 1998, FB & I and Superi- or executed a sales agreement. The terms of the agreement were negotiated by Kermit and Tom Nomeland, the general manager of Superior. The resulting contract language was drafted by Nomeland and executed on Superior’s letterhead.

[¶ 3.] The sales agreement provided:

This agreement is between FB & I Building products, hereafter known as FB & I and Superior Truss & Components, hereafter known as Superior.
FB & I will act as an independent sales agent for Superior, which will be the supplier of various building products.
Superior does hereby give FB & I the exclusive rights to sell Superior products in the state of Colorado.
FB & I does hereby agree to exclusively sell Superior’s, open-faced wall panels, floor panels, roof trusses and other miscellaneous products. If Superior cannot provide services or products in a timely manner, FB & I has the right to use another supplier’s products.
FB & I will achieve annual sales of $800,000.00 of Superior products. Of which, $300,000 will be roof trusses.
If any of the above conditions are not met by either party, the party that wished to cancel the agreement must give thirty days notice to the other party by certified mail. In the event of cancellation of this agreement, FB & I will be allowed to remain as an independent dealer without exclusive territory, and will be entitled to retain the customers that they continue to sell and service with Superior products.

Although the contract did not state what FB & I would receive as a commission on its sales, the parties now agree that the commission was set at 10%.

[¶ 4.] Shortly after Superior and FB & I executed this contract, Michael Johnson joined FB & I. Kermit and Michael had met previously when they were working for separate companies in the construction business. Kermit wanted Michael to join FB & I because of his “technical knowledge in reading and interpreting construction plans.” On December 30, 1998, Michael became a forty-nine percent owner of FB & I, and he and Kermit agreed to split the commissions equally.

[¶ 5.] FB & I and Superior both acknowledge that in the first year FB & I exceeded the annual sales required under the contract. Yet, sometime in February 2000, FB & I began discussions with a different company, Component Manufacturing Company, about the possibility of FB & I selling Component products in Colorado. FB & I did not inform Component about its exclusive sales agreement with Superior. Component and FB & I ultimately executed a sales agreement near the end of March 2000, whereby FB & I agreed to exclusively sell Component’s building products in Colorado. In accord ■with this agreement, in March 2000, FB & I sent a project to Component for bidding.

[¶ 6.] During this same time, Kermit and Michael’s relationship began to deteriorate. In May 2000, Superior hired Michael. Through Michael, Superior learned that FB & I had entered into the exclusive sales agreement with Component in violation of FB & I’s contract -with Superior. On May 2, 2000, Superior sent notice to FB & I of its election to “terminate” the exclusive sales agreement with FB & I effective June 1, 2000.

[¶ 7.] After ending its agreement with FB & I, Superior continued to do business with certain customers brought to it by FB & I. In the sales agreement, a provision dealt with cancellation: “In the event of cancellation of this agreement, FB & I will be allowed to remain as an independent dealer without exclusive territory, and will be entitled to retain the customers that they continue to sell and service with Superior products.” Nonetheless, in a letter dated July 18, 2000, Superior informed Kermit that, effectively, it had no intention of honoring this provision. Kermit would later explain that he “sold everybody on Superior” products and when Superior denied FB & I’s right to sell Superior’s products to FB <& I’s established customer base, while Superior at the same time sold directly to these customers, Superior was able to reap the benefits of FB & I’s hard work without paying compensation. From 2000, when the agreement was cancelled, until 2004, Superior sold $2,327,528 in products to customers originally brought to Superior by FB & I, without paying FB & I commissions on these sales.

[¶ 8.] FB & I brought suit against Superior alleging breach of contract, tortious interference with business relationships, conversion, and civil conspiracy. FB & I argued that Superior breached the sales agreement when it cancelled it and refused to allow FB & I to retain its customers as expressly provided for under the agreement. In response, Superior insisted that it was justified in canceling the agreement with FB & I because FB & I breached the contract by entering into its sales agreement with Component. Superior further asserted that it was not obligated to pay FB & I commissions under the contract because FB & I’s actions amounted to a material breach, thereby excusing Superi- or from all further performance.

[¶ 9.] After a bench trial, the circuit court concluded that FB & I breached the contract when it entered into the exclusive sales agreement with Component and sent a Colorado project to Component for bidding. According to the court, FB & I’s breach was material and justified Superi- or’s canceling of the agreement. However, the court held that Superior also breached the contract when it refused to allow FB & I to retain its customers upon cancellation as the agreement expressly required. The court further found that Superior’s conduct amounted to tortious interference with business relationships, but it did not find this to be separate or distinct from the breach of contract conduct. The court concluded that Superior did not commit conversion or civil conspiracy, and it refused FB & I’s request for punitive damages.

[¶ 10.] Because the court found that the breach of contract and tortious interference claims were not separate and distinct, FB <& I was permitted one recovery. The court calculated that from 2000 through 2004, Superior’s sales to FB & I’s customers totaled $2,327,528. The court then computed FB & I’s damages by reducing FB & I’s 10% commission to 5.243%, representing a “fair rate” because FB & I did not incur any expenses when Superior did business with FB & I’s customers. Ultimately, the court awarded FB & I $122,032.29 in commissions, plus interest in the amount of $51,532.

[¶ 11.] Superior appeals, claiming the circuit court erred by awarding any damages after it correctly found that FB & I materially breached the contract, or, in the alternative, the court erred when it awarded FB & I excessive damages.

Standard of Review

[¶ 12.] We review a court’s findings of fact under the clearly erroneous standard. Convenience Center, Inc. v. Cole, 2004 SD 42, ¶ 11, 678 N.W.2d 774, 777 (citing SDCL 15-6-52(a)). Conclusions of law are reviewed de novo. Ho-feldt v. Mehling, 2003 SD 25, ¶ 9, 658 N.W.2d 783, 786 (citation omitted). Questions of contract interpretation are questions of law reviewed de novo. Ziegler Furniture and Funeral Home, Inc. v. Cicmanec, 2006 SD 6, ¶ 14, 709 N.W.2d 350, 354 (citing Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438); see also Convenience Center, Inc., 2004 SD 42, ¶ 11, 678 N.W.2d at 777.

Analysis and Decision

[¶ 13.] Neither party disputes the court’s finding that FB & I materially breached the sales agreement when it entered into a contract with Component to sell Component’s products in Colorado and submitted a Colorado project for Component to bid. Moreover, neither party asserts that the language used in the contract is ambiguous, or that the cancellation provision should be interpreted differently. Rather, Superior argues that because FB & I materially breached the sales agreement, that breach releases Superior from any future obligations under the cancellation provision. Therefore, we must determine whether a material breach by FB & I relieved Superior of all further obligations under the sales agreement, notwithstanding the fact that the parties contracted for a duty to remain in the event the contract was cancelled.

[¶ 14.] According to Superior, whenever a party materially breaches a contract, the other party is excused from further performance under the contract. Further, it argues that because the contract does not limit Superior’s remedies, “FB & I should not be allowed to rewrite the contract to make the cancellation provision the exclusive remedy.” In response, FB & I contends that the cancellation provision is not a remedy, it is a right granted to FB & I in the event either party cancels the agreement. Moreover, according to FB & I, “[w]hile it generally may be true that upon breach, the non-breaching party’s contractual obligations are extinguished, in this case, the parties contracted otherwise, and the language of the contract controls.”

[¶ 15.] It is well established that a material breach of a contract excuses the non-breaching party from further performance. S & S Trucking v. Whitewood Motors, Inc., 346 N.W.2d 297, 301 (S.D.1984); Robinette v. Comm’r of the I.R.S., 439 F.3d 455, 462 (8thCir.2006) (citing Restatement (Second) of Contracts § 237 (1981)); Miller v. Mills Constr., Inc., 352 F.3d 1166, 1171-72 (8thCir.2003) (citation omitted) (applying South Dakota Law). However, “parties to a contract are allowed to write the terms of the contract themselves.” State Farm Fire & Cas. Co. v. St. Paul Fire & Marine Ins. Co., 268 N.W.2d 147, 149 (S.D.1978). “The presumption of law is that an instrument executed with the formality of a ... contract deliberately entered into expresses on its face its true intent and purpose.” Assam v. Hauk, 345 N.W.2d 384, 386 (S.D.1984) (omission in original) (citation omitted). Therefore, “[contracting parties are held to the terms of their agreement, and disputes cannot be resolved by adding words the parties left out.” Gettysburg School Dist. 58-1 v. Larson, 2001 SD 91, ¶ 11, 631 N.W.2d 196, 200-01 (citation omitted).

[¶ 16.] Under the terms of this contract, FB & I was obligated to exclusively sell Superior products in Colorado. It is undisputed that FB & I materially breached the exclusivity provision of the sales agreement when it entered into an exclusive sales contract with Component and brought a Colorado project to Component for bidding. The sales agreement provided that “[i]f any of the above conditions are not met by either party,” one of the conditions being the exclusive sales promise, then the party wishing to cancel could do so on thirty day’s notice. In light of FB & I’s conduct, Superior was entitled to cancel the contract. Nevertheless, the sentence directly following the cancellation provision states, “In the event of cancellation of this agreement, FB & I will be allowed to remain as an independent dealer without exclusive territory, and will be entitled to retain the customers that they continue to sell and service with Superior products.” This provision required Superior to allow FB & I to retain its customers, no matter who was responsible for canceling the contract.

[¶ 17.] Material breach or not, the contract required that FB & I be allowed to retain its customers in the event the agreement was cancelled. The parties did not limit or restrict FB & I’s right to retain its customers upon cancellation. The contract expressly required Superior to act, to perform a duty, in the event the contract was cancelled. This express duty did not arise until the contract was can-celled. The fact that the contract was cancelled put into effect the provision allowing FB & I to retain its customers, and Superior’s duty to perform.

[¶ 18.] While the doctrine of material breach is well established in general contract law, when contracting parties specifically provide for a resolution in the event that contract conditions are not met, then we must defer to their agreement. Here, FB & I and Superior anticipated their parting and expressly provided that in the event any condition in their sales agreement was not met, FB & I would be allowed, upon cancellation by either party, to retain the customers it brought to Superior. “[W]here there is a valid express contract existing between parties in relation to a transaction fully fixing the rights of each, there is no room for an implied promise[.]” Mid-America Marketing Corp. v. Dakota Industries, Inc., 281 N.W.2d 419, 425 (S.D.1979) (citation omitted). We should not apply a default doctrine when the parties expressly contracted otherwise. See Cotton v. Manning, 1999 SD 128, ¶ 16, 600 N.W.2d 585, 588. Based on the language of the contract, the circuit court properly concluded that FB & I’s material breach did not excuse Superior from its obligation to allow FB & I to retain its customers.

[¶ 19.] Superior argues in the alternative that FB & I did not suffer any damages as a result of its breach because FB & I had “basically substituted the contract it had with Superior Truss with a substantially similar contract with Component Manufacturing.” Given FB & I’s contract with Component, Superior contends that “FB & I is already in the same position it would have occupied had there been no breach.” Moreover, according to Superior, under SDCL 21-1-5, FB & I is not permitted to “recover a greater amount in damages for the breach of contract than he could have gained by full performance on both sides.” Therefore, because FB & I received commissions from Component, it was not also entitled to receive commissions from Superior, as that would result in FB & I receiving more than it would have received had both FB & I and Superior performed under the contract.

[¶ 20.] “To recover damages for breach of contract, the loss must be clearly ascertainable in both its nature and origin.” McKie v. Huntley, 2000 SD 160, ¶ 18, 620 N.W.2d 599, 603 (citing SDCL 21-2-1); see also Von Sternberg v. Caffee, 2005 SD 14, ¶ 17, 692 N.W.2d 549, 555 (“[d]amages must be reasonably certain”). In proving damages, the party must establish “a reasonable relationship between the method used to calculate damages and the amount claimed.” McKie, 2000 SD 160, ¶ 18, 620 N.W.2d at 603. Whether damages have been proven with reasonable certainty is a question of fact. Von Sternberg, 2005 SD 14, ¶ 17, 692 N.W.2d at 555 (quoting Keegan v. First Bank of Sioux Falls, 470 N.W.2d 621, 624 (S.D.1991)).

[¶ 21.] Superior does not dispute the court’s finding that from 2000 through 2004, Superior had sales with former FB & I customers in the amount of $2,327,528. Nor does Superior contend that the court erred when it reduced FB & I’s 10% commission to 5.243% by cutting the 1999 compensation and expense percentages in half and adding in the net profit percentage. Instead, Superior insists that because FB & I received commissions from Component, it is not entitled to also receive commissions from Superior. This, however, is not what the parties contracted to have happen in the event the agreement was cancelled. The parties expressly stated that in the event FB & I or Superior cancelled the contract, FB & I would be allowed to retain its customers. Nothing in the contract stated that this right would be extinguished or limited if FB & I breached its agreement by entering into another sales agreement with a different company.

[¶ 22.] Under the terms of the contract, FB & I’s right to retain its customers was independent of any additional business FB & I might do with other companies. When Superior breached this provision of the contract by failing to pay the agreed commissions, FB & I suffered damage. Superior does not challenge the method used by the court in calculating FB & I’s damages.

[¶ 23.] Affirmed.

[¶ 24.] GILBERTSON, Chief Justice and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . The circuit court granted summary judgment against FB & I in its suit against Michael Johnson. No one appeals that decision.

      . FB & I asserts that because Superior did not challenge the court's separate findings on the tortious interference claim, "Superior has waived any issue related to that cause of action on appeal." It also contends that "Superior's failure to appeal from an independent legal basis for the damages assessed against it by the trial court renders its appeal on the breach of contract claim moot.” We conclude that Superior has preserved its appeal on the breach of contract claim because the tortious interference claim rises and falls on the success of the breach of contract claim.


author: ZINTER, Justice. SABERS, Justice

text:
    2007 SD 14
    In the Interest of D.F., Alleged Abused or Neglected Child and concerning L.A., f/k/a L.D., Respondent.
    No. 23990.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2006.
    Decided Jan. 24, 2007.

      Drew Duncan of Zimmer, Duncan & Cole, LLP, Parker, South Dakota, Attorneys for appellant Mother, L.A.
    Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Division of Legal Services Department of Social Services, Pierre, South Dakota, Attorneys for appellee State.
   ZINTER, Justice.

[¶ 1.] Mother’s and Father’s parental rights were terminated in an abuse and neglect proceeding. Mother was served by publication and failed to appear at any of the hearings. She subsequently moved to reopen, challenging the State’s due diligence in attempting to locate her before the service by publication. She also challenged the circuit court’s refusal to reopen to redetermine her parental fitness. The circuit court denied relief. We affirm.

[¶ 2.] D.F. was born on October 22, 1994, in Illinois. When D.F. was less than a year old, Mother brought him and his sister (born August 5, 1995) to visit Father who was staying with his mother (Grandmother) in Arkansas. After a violent marital disagreement and Mother’s arrest on an Arkansas traffic offense, Mother left Arkansas, abandoning D.F. and his sister with Father and Grandmother. Mother returned to her parents’ home in Illinois.

[¶ 3.] Father was subsequently granted a divorce from Mother in Arkansas. At all relevant times thereafter, D.F. resided with Father, and D.F.’s sister resided with Father or Grandmother. Ml four moved to South Dakota in 1999, but Grandmother and Father maintained separate households. It appears that D.F. resided with Father and his sister resided with Grandmother.

[¶ 4.] Mother moved often after leaving Arkansas in 1995. She moved from her parents’ home in Illinois to Las Vegas, then back to Illinois. She next moved to South Carolina and then to Ohio. Mother then stayed with her parents in Florida, before moving to Arizona. Then, she moved to Las Vegas where she remarried. Thereafter, Mother and her new husband moved to Florida. Mother did not maintain contact with the children or their custodians prior to this abuse and neglect proceeding, which was commenced in 2002.

[¶ 5.] The Department of Social Services (DSS) brought this action based upon an allegation that D.F. was abused and neglected by Father and Father’s new wife. Temporary custody of D.F. was placed with Grandmother. Father was personally served and appeared at multiple hearings. Mother could not be located and was served by publication pursuant to SDCL 26-7A-48. She did not appear at any of the proceedings. The circuit court terminated Father’s and Mother’s parental rights on November 7, 2002. That decision was not appealed.

[¶ 6.] On May 21, 2004, Mother moved to reopen the termination proceedings under SDCL 15 — 6—60(b)(6). The circuit court initially granted the motion. However, the State moved to quash the order allowing the reopening. The State contended that SDCL 26-7A-108 prohibited modification of final judgments terminating parental rights in abuse and neglect cases. The State’s motion to quash was granted. Mother appeals, raising two issues.

1. Whether the State failed to use due diligence in locating Mother prior to service by publication in violation of Mother’s right to due process.
2. Whether the circuit court erred in denying the motion to reopen under SDCL 26-7A-108.

Due Diligence

[¶7.] Mother argues that due process precluded the termination of her parental rights without a showing that the State used due diligence in attempting to locate her before service by publication. Because “the validity of service of process is a question of law, ‘we review the trial court’s decision de novo, with no deference given to the trial court’s legal conclusions.’ ” Lekanidis v. Bendetti, 2000 SD 86, ¶ 15, 613 N.W.2d 542, 545 (quoting Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 6, 592 N.W.2d 596, 598 (citations omitted)). “‘We [also] review constitutional questions de novo.’ ” Me dearis v. Whiting, 2005 SD 42, ¶ 14, 695 N.W.2d 226, 230 (quoting State v. Aesoph, 2002 SD 71, ¶ 43, 647 N.W.2d 743, 757).

[¶ 8.] “At the outset, it is to be noted that the use of constructive [service] for in personam actions is not a per se violation of due process under the Fourteenth Amendment.” United Nat. Bank v. Searles, 331 N.W.2d 288, 291 (S.D.1983) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). “Dispositive of the due process issue is a determination of whether or not the service of process was reasonably calculated under the circumstances to apprise interested parties of the pendency of an action against them.” Id. at 290 (citing Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873). Therefore, “[s]ervice by publication is permitted upon a party who is out of state and who ‘on inquiry cannot be found.’ ” People in Interest of E.D.J., 499 N.W.2d 130, 132 (S.D.1993) (quoting SDCL 26-7A-48; In re J.W.W., 334 N.W.2d 513, 516 (S.D.1983)).

[¶ 9.] However, “before service by publication ... may be ordered, the party instituting the litigation must exhaust all reasonable means available in an effort to locate interested parties to the litigation.” Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D.1992) (citing Ryken v. State, 305 N.W.2d 393 (S.D.1981)). See also, In Interest of E.D.J., 499 N.W.2d at 132 (stating that the record supported a finding that the state’s efforts to locate parents were “due and diligent” in a parental rights termination proceeding). Ultimately, “[t]he test of the sufficiency of the showing of due diligence is not whether all possible or conceivable means of discovery are used, but rather it must be shown that all reasonable means have been exhausted in an effort to locate interested parties.” Ryken, 305 N.W.2d at 395 (citations omitted). Therefore:

A diligent search is measured not by the quantity of the search but the quality of the search. In determining whether a search is diligent, we look at the attempts made to locate the missing person or entity to see if attempts are made through channels expected to render the missing identity. While a reasonable search does not require the use of all possible or conceivable means of discovery, it is an inquiry that a reasonable person would make, and it must extend to places where information is likely to be obtained and to persons who, in the ordinary course of events, would be likely to have information of the person or entity sought.

In re S.P., 672 N.W.2d 842, 846 (Iowa 2003). “Whether a party has exhausted all reasonable means available for locating interested parties must be determined by the circumstances of each particular case.” Ryken, 305 N.W.2d at 395 (citation omitted).

[¶ 10.] Although Mother contends that all reasonable means were not utilized, she relies upon clearly distinguishable authority. For example, in In Interest of A.W., 224 Neb. 764, 401 N.W.2d 477 (1987), termination was sought following a mother’s abandonment of her son who had been left with his grandmother. Although the mother was served by publication, no near relatives, not even the grandmother who had custody, were questioned about the mother’s location. Furthermore, the grandmother and another social services worker knew the mother’s location, yet they were not specifically questioned. Similarly, in In re S.P., a father’s parental rights were terminated without personal service, but:

the search [for father] did not include the obvious inquiries a reasonable person would make under the circumstances. For example, the investigator did not talk to the children or their caretaker ... or to the children’s mother. These are the people who, in the ordinary course of events, would likely have information about [father].

672 N.W.2d at 848. Because no efforts were made to inquire of the available relatives, the children, or their caretakers, those courts understandably concluded that due diligence was not exercised.

[¶ 11.] In contrast, Nathan Schlimgen, D.F.’s Department of Social Services worker, testified that he made the reasonable inquiries that were not made in In Interest of A.W. or In re S.P. Specifically, Schlimgen unsuccessfully inquired of Father concerning Mother’s location, Mother’s parents’ location, or collateral relatives who might be able to contact Mother. He testified:

Q. Did you know where she was?
A. No, I did not.
Q. Did you inquire of [Father] of her whereabouts?
A. Yes.
Q. Do you recall if he was able to give you an answer?
A. I believe his answer was that he did not know where she was.
Q. Was he able to provide information as to how to contact her parents who could get a hold of her?
A. No, I don’t believe so.
Q. And, is it a fair statement to say that in a serious matter such as the termination of parental rights, you also ask for collateral relatives who might be able to get a hold of a parent whose parental rights may be terminated?
A. Yes.
Q. And [Father] was unable to give you that?
A. Correct.

Schlimgen further testified that he checked with the state child support enforcement agency to try to locate Mother, but that search turned up nothing.

[¶ 12.] “[A] court must be satisfied, before it exercises its discretion to order service by publication, that a plaintiff has used due diligence in the attempt to locate and personally serve a defendant.” Spade v. Branum, 2002 SD 43, ¶ 11, 643 N.W.2d 765, 769. In performing that duty, the circuit court also made a personal inquiry of Father and Grandmother. The circuit court asked Father and Grandmother, the separate custodians of Mother’s young children, the following questions:

Court: And, the situation then with [Mother], you still don’t know her whereabouts?
Father: No, I don’t.
Court: The mother; you wouldn’t know how to try to contact her?
Father: No, I wouldn’t.
Court: And, you are here, [Grandmother]?
Grandmother: Yes.
Court: You don’t know how to contact her either?
Grandmother: No, sir.

Later, in the same hearing, the circuit court again inquired about Mother’s contact with D.F. and the location of Mother’s parents.

Court: [Father], may I ask you, when was the last time that [Mother] had any contact with [D.F.]?
Father: He was about 14 months old, 10 months old.
Court: How old is he now?
Father: He is 7.
Court: So he’s not got a card from her?
Father: No
Court: No telephone calls from her?
Father: No.
Court: He has not heard from her?
Father: No. When I got full custody, it went through the courts, he asked if I wanted child support. I said, if you can find her, go ahead ...
Court: All right. You (Grandmother) don’t know where her parents are? Grandmother: No, I don’t.

Grandmother also told the court that “nobody knows where [Mother is] at.” Ultimately, the circuit court found that Mother’s “whereabouts and residence cannot be readily ascertained although a diligent search has been made.”

[¶ 13.] This factual finding is supported by the record. Both Schlimgen and the court inquired of Father and Grandmother. Yet these custodians of Mother’s young children, the people who would be most likely to know her location, could not provide relevant information concerning Mother’s location or the names of other people who might have known Mother’s location. Moreover, DSS’s inquiry included the State’s child support agency for Mother under two different last names. However, available resources could not provide information as to Mother’s location, how to contact her, or even the location of Mother’s own parents or other collateral relatives.

[¶ 14.] Nevertheless, Mother argues that DSS failed to use due diligence because Schlimgen did not search any old addresses, did not look for any other members of Mother’s family, did not look at D.F.’s birth certificate for her old address, and did not do an internet search. She also argues that DSS was remiss in not following up on information from Father that Mother might have lived in “Illinois or Chicago.” While one can speculate concerning these possible alternatives, it is the quality of the search made in a particular context rather than the quantity that governs a duly diligent search. In re S.P., 672 N.W.2d at 846. Moreover, Mother has not shown that any of these after-the-fact suggested alternatives would have actually disclosed her location. This is significant because, although she contends further inquiry should have been made concerning the information about “Illinois or Chicago,” the record reflects that neither Mother nor her parents lived there at any time during the abuse and neglect proceedings.

[¶ 15.] Thus, although hindsight may always be used to fashion other conceivable methods of inquiry, this search was diligent because it was an inquiry that a reasonable person would have made, and it extended to the places where information was likely to be obtained. We therefore conclude that DSS exercised due diligence.

Reopening

[¶ 16.] The circuit court initially granted the motion to reopen based on SDCL 15-6-60(b)(6). However, the court later quashed the order concluding that SDCL 15-6-60(b) was inapplicable and SDCL 26-7A-108 controlled. The former provision is a court rule and the latter provision is a legislative enactment. Although the former provision generally allows the reopening of certain judgments, the latter provision specifically prohibits the reopening of judgments terminating parental rights. We acknowledge the different language used in these provisions. However, we need not interpret them in this case because Mother’s underlying basis for relief fails under both provisions.

[¶ 17.] Mother’s basis for relief under both provisions is an alleged failure to use due diligence in locating her before service by publication. However, Mother lived a nomadic lifestyle, failed to maintain any contact with her children or their custodians for many years, and an unsuccessful but diligent inquiry was made of the people most likely to know of her whereabouts. Because a lack of due diligence is necessary for relief under either provision, and because a lack of due diligence is not present in this case, we find no error in the circuit court’s refusal to reopen.

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 20.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 21.] I write specially to point out that the State’s efforts to locate Mother do not constitute “due diligence.” As indicated in the majority opinion, “before service by publication ... may be ordered the party instituting the litigation must exhaust all reasonable means available in an effort to locate interested parties to the litigation.” Nolan v. Nolan, 490 N.W.2d 517, 520 (citing Ryken v. State, 305 N.W.2d 393, 395 (S.D.1981)). See also In the Interest of E.D.J., 499 N.W.2d at 132 n. 9. I agree with Mother that the State did not search any old addresses, did not look for any other members of Mother’s family, did not look at D.F.’s birth certificate for her old address and did not do an internet search.

[¶ 22.] The majority opinion discards these claimed “after-the-fact suggested alternatives” because Mother has not shown that they would have disclosed her location. Even if that were so, that is not the test for “due diligence” as stated above and I dissent.

        . Father received personal notice of the proceedings, appeared, and does not appeal.

      . SDCL 26-7A-48 provides in part:
      If the petition or an affidavit of the state’s attorney discloses that any person or party to be served with the summons is out of the state, on inquiry cannot be found, is concealed within the state, resides out of the state, whose mail at the last known address has been returned, whose location is unknown or is affected by the designation "All Whom It May Concern,” the court shall cause the summons, modified to declare the initials of the child in lieu of the name of the child, to be published once in a newspaper of general circulation published in the county where the action is pending or in a newspaper in another county designated by the court as most likely to give notice to the party to be served. Publication of the summons shall be made not less than five days before the date of the hearing on the petition. Notice given by the publication is the only required notice to the concerned persons or parties to be served who are described in this section. An affidavit or certificate of publication made by the concerned newspaper and accepted by the court is evidence of service of summons by publication.

      . DSS has a statutory mandate to maintain certain information to assist in enforcing child support obligations. See SDCL 25-7A-3.3.

      . Concededly, the affidavit in support of service by publication was lacking in specifics and was inadequate to support the order for service by publication. However, this defect is harmless error because the record reflects that further due diligence was exercised and the circuit court personally questioned Father and Grandmother before ordering service by publication.

      . SDCL 15 — 6—60(b) provides in part:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) Any other reason justifying relief from the operation of the judgment.

      . SDCL 26-7A-108 provides in relevant part: "The court may modify or set aside any order or decree made by it, except a decree terminating parental rights.”
      Mother contends that an exception to this prohibition was recognized in Matter of F.J.F., 312 N.W.2d 718 (S.D.1981). There, a petitioner sought to reopen a dependency and neglect proceeding in order to establish paternity. Blood evidence of paternity was admitted under SDCL 26-8-63 (now see SDCL 26-7A-110), which specifically allowed a new hearing based on new evidence. This Court concluded "from the peculiar circumstances of this case that the trial court did not err in ordering a new hearing pursuant to SDCL 26-8-63....” Id. at 721. However, the Court’s analysis was obviously grounded on different statutes. Furthermore, as explained infra, ¶¶ 17-18, Mother's underlying basis for her "peculiar circumstances” argument ultimately fails. Therefore, we decline to address the "exception” issue.