No. 90-161
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
ROBERT P. BARRETT,
Plaintiff and Respondent,
ASARCO INCORPORATED, a New Jersey
corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James M. Ragain and Kyle A Gray; Holland and Hart;
Billings, Montana
For Respondent:
Gene A. Picotte, Helena Montana
P. Keith Keller; Keller, Reynolds, Drake, Sternhagen
and Johnson; Helena, Montana
Submitted on Briefs: September 6, 1990
Decided: October 25, 1990
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
In this case, a jury returned a verdict for plaintiff Robert
P. Barrett on his theory that the defendant Asarco, Inc. breached
the implied covenant of good faith and fair dealing in the
employment relationship. The District Court denied Asarco's
motions for directed verdict, judgment notwithstanding the verdict,
and new trial and entered its judgment in accordance with the
jury's verdict. Asarco appeals. We affirm the District Court.
Asarco raises the following issues on this appeal:
(1) Did the District Court err in denying Asarco's motion for
judgment notwithstanding the verdict and directed verdict on the
grounds that there is no substantial credible evidence to support
the jury's finding that Asarco breached the implied covenant of
good faith and fair dealing when it terminated Barrett's
employment?
(2) Did the District Court err in admitting into evidence the
former trial testimony of the respondent's brother, Sam Barrett?
(3) Did the trial court err in refusing to give Asarco's
proposed jury instruction regarding Montana law on the immediate
payment of wages to discharged employees?
(4) Did the District Court err in refusing to grant Asarco
a new trial based on alleged misconduct by Barrettts counsel?
Barrett worked at Asarcols East Helena smelter for 15 years.
He began his employment in 1969 as an hourly worker and in 1973 he
was promoted to shift foreman, a salaried managerial position. On
November 26, 1983, Barrett injured his back while replacing a
conveyor belt at the Asarco plant.
Approximately five months later, on May 8, 1984, Asarco
terminated Barrettts employment. At that time Barrett was still
off work and receiving medical treatment. He was being paid full
salary and Asarco was paying his medical bills. At the meeting
when Barrett was terminated, the plant superintendent, Robert
Hearst, confronted Barrett with information alleging that Barrett
had been seen by another Asarco employee unloading hay bales at
the Lewis and Clark County Fairgrounds in Helena while he was
receiving full salary for his back injury from Asarco. According
to his testimony, Barrett understood that he was being accused of
"bucking balesw at a friend's ranch rather than unloading hay for
his race horses which he kept at the fairgrounds. Barrett denied
that he was "bucking balest1 and was subsequently fired by Asarco
for allegedly lying about his physical activities while he was
injured.
Barrett filed a complaint against Asarco on May 7, 1985,
alleging that Asarco had breached the implied covenant of good
faith and fair dealing in the employment relationship. The case
was tried and the jury returned a verdict for Barrett. We reversed
the judgment and remanded the case for new trial. See Barrett v.
Asarco, Inc. (1988), 234 Mont. 229, 763 P.2d 27. The case was
retried on November 13, 1989. The jury returned a verdict in
favor of Barrett in the amount of $230,000.00 in compensatory
damages. The District Court denied all of Asarcols post trial
motions and entered its judgment in accordance with the verdict.
Asarco now appeals raising the aforementioned issues.
I.
The scope of our review of a jury's verdict is narrow. Our
function is to determine if there is substantial credible evidence
in the record supporting the jury's verdict. Krueger v. General
Motors Corp. (1989) 783 P.2d 1340, 1347, 46 St.Rep. 2114, 2122.
Substantial evidence is that evidence that a reasonable mind might
accept as adequate to support a conclusion; it consists of more
than a mere scintilla of evidence but may be somewhat less than a
preponderance. Black's Law Dictionary 1281 (5th ed. 1979);
Stanhope v. Lawrence (Mont. 1990), 787 P.2d 1226, 1228-1229, 47
St.Rep. 438, 440. Although it may be based on weak and conflicting
evidence, in order to rise to the level of substantial evidence it
must be greater than trifling or frivolous. Christensen v. Britton
(Mont. 1990), 784 P.2d 908, 913, 46 St.Rep. 2223, 2230. Where
there is substantial evidence to support the jury's verdict the
district court's refusal to grant a new trial will not be
disturbed. Krueqer, 783 P.2d at 1347; Brothers v. Town of Virginia
City (1976), 171 Mont. 352, 358, 558 P.2d 464, 467.
Under the law applicable in this case, the implied covenant
of good faith and fair dealing is dependent upon objective
manifestations by Asarco that would give rise to Barrett's
reasonable belief that he had job security and would be treated
fairly. Stark v. Circle K Corp (1988), 230 Mont. 468, 475, 751
P.2d 162, 166, citing Dare v. Montana Petroleum Marketing Co.
(1984), 212 Mont. 274, 282, 687 P.2d 1015, 1020. Also, as we
stated in our earlier remand of this case, the protection afforded
Barrett by the covenant ttnecessarily
hinges on the employee's good
faith performance of job duties because the covenant of good faith
and fair dealing mandates a reciprocal duty. " Barrett, 763 P.2d
at 32-33, citing Los Angeles Memorial Coliseum Commission v. NFL
(9th Cir.1986), 791 F.2d 1356, 1361, cert. denied, 484 U.S. 826,
108 S.Ct. 92, 98 L.Ed.2d 53 (1987). Thus, both parties are
afforded protection by the reciprocal nature of the covenant, and
to rebut allegations by an employee that the employer breached the
covenant the employer need only show a fair and honest reason for
termination. Stark, 751 P.2d at 166-167; Flanigan v. Prudential
Federal Savings and Loan Assoc. (1986), 221 Mont. 419, 426-427, 720
P.2d 257, 261.
In the case at bar, both parties presented very different
versions of the events surrounding Barretttstermination. Much of
Asarco' s brief is devoted to arguing its version of the conflicting
evidence presented in this case. However, the scope of our review
mandates that we concede Barrett's evidence as true and draw all
legitimate inferences in favor of Barrett. Krueqer, 783 P.2d at
1347-1348; Brother's, 558 P.2d at 467. Accordingly, Barrett's
evidence is sufficient to sustain a verdict that Asarco breached
the implied covenant of good faith and fair dealing when it
terminated his employment. Barrett presented substantial credible
evidence that he had a reasonable belief in job security. He was
employed by Asarco for 15 years. He had been promoted to a
salaried managerial position. He received regular raises and
Christmas bonuses. His job involved supervising and training
others, as well as responsibility for production in part of the
plant. These are sufficient objective manifestations from which
a jury could find the existence of the covenant.
Barrett also offered substantial credible evidence that Asarco
lacked a fair and honest reason for terminating him and that
Barrett did not breach his reciprocal duty of good faith. Asarco
offered evidence to show that Barrett lied about his physical
condition, took a fake sick leave, and slept on shift. At the
termination meeting, Asarco accused Barrett of "bucking balesvv
while he was supposedly injured. Barrettvs testimony indicates
that he did not associate this accusation with unloading some hay
for his horses at the fair grounds. Barrett testified that
because of shift changes, and inability to adapt sleep patterns,
as well as the droning, humming noise in the plant, everyone,
including him, occasionally falls asleep on the night shift.
Barrett denied faking a sick leave. Barrett was also accused of
leaving work early in 1981 and was given 4 days off without pay.
This was the only time Barrett was ever subject to discipline by
Asarco. Barrett was not on probation or subject to disciplinary
proceedings when he was fired. Barrett offered testimony that his
immediate supervisor, Bob Hearst, had a personal dislike for
Barrett and was looking for any excuse to get rid of Barrett.
Hearst had Barrettvs final paycheck made out prior to this
termination meeting. The jury was instructed that if it found that
Barrett had been dishonest with Asarco there could be no breach of
the implied covenant by Asarco. The jury as fact-finder chose to
believe Barrett's version of the conflicting evidence offered at
trial. It is not the function of this appellate court to overturn
decisions on findings of fact made by a competent jury properly
instructed on how to view the evidence. Gee v. Egbert (1984), 209
Mont. 1, 18-19, 679 P.2d 1194, 1203. Accordingly, we will not
disturb the jury's determination in this case because it is
supported by substantial credible evidence.
11.
Asarco's second issue alleges that the District Court erred
in admitting the transcribed testimony from the first trial of Sam
Barrett, the plaintiff's brother, into evidence at the trial after
remand. Asarco contends that Barrett failed to make a proper
showing that his brother Sam was unavailable to testify and
therefore admission of his prior testimony is reversible error.
See, e.g. State v. LaCario (1974), 163 Mont. 511, 518 P.2d 982.
Rule 804 M.R.Evid. provides a hearsay exception for the use
of former testimony if a witness is unavailable:
Rule 804. Hearsay exceptions: declarantunavailable.
(a) Definition of unavailability. Unavailability
as a witness includes situations in which the declarant:
...
(5) is absent from the hearing and the proponent
of his statement has been unable to procure his
attendance by process or other reasonable means.
A declarant is not unavailable as a witness if his
exemption, refusal, claim of lack of memory, inability,
or absence is due to the procurement or wrongdoing of
the proponent of his statement for the purpose of
preventing the witness from attending or testifying.
(b) Hearsay exceptions. The following are not
excluded by the hearsay rule if the declarant is
unavailable as a witness:
(1) Former testimony. Testimony given as a witness
at another hearing of the same or a different proceeding,
or in a deposition taken in compliance with law in the
course of the same or another proceeding, (A) in civil
actions and proceedings, at the instance of or against
a party with an opportunity to develop the testimony by
direct, cross, or redirect examination, with motive and
interest similar to those of the party against whom now
offered. . ..
Citing this rule, Asarco argues that Barrett did not make
reasonable efforts to procure Sam's attendance and therefore is
precluded from using his prior testimony from the first trial on
the grounds of unavailability.
We disagree. Generally it is within the discretion of the
trial court to accept or reject counsel's representations on
unavailability. Republic Security Co. v. Puerto Rico Aqueduct and
Sewer Authority, (1st Cir.1982), 674 F.2d 952, 957; Bailey v.
Southern Pacific Transportation Co. (5th Cir.1980), 613 F.2d 1385,
1390. In this case, foundational testimony was given by the
plaintiff Barrett outside the presence of the jury regarding the
unavailability of his brother to testify at this second trial.
Barrett testified that he told his brother the trial date and
requested that he be present to testify. His brother allegedly
assured him of his presence at the trial. Barrett testified that
he was simply unable to locate his brother prior to and during the
trial. Barrett argues that due diligence does not require issuance
of a subpoena in this case because both Barrett and Barrett's
counsel believed that it would not be necessary to subpoena a
family member to secure his attendance at trial.
The trial court, in its discretion, accepted this explanation.
Asarco has the burden of demonstrating that the trial court erred
as to whether reasonable means were used. ~ailey,613 F.2d at
1390. Asarco insinuates that Sam's absence was somehow procured
but fails to support such allegations with evidence. In short,
Asarco has failed to meet its burden. Furthermore, Asarco
experienced little or no prejudice by admission of such hearsay
testimony in this, a civil proceeding because the parties and
issues were identical, and Asarco had a full and fair opportunity
to develop testimony from Sam Barrett on the same issues through
cross-examination at the first trial. See senerally, McCormick on
Evidence, (3rd Ed. 1984), 5 253-257; 4 weinstein's Evidence, 5
804(b)(l); and commission comments to Rule 804 M.R.Evid. and Rule
804 Fed.R.Evid. The ~istrictCourt did not abuse its discretion
in admitting the former testimony of Sam Barrett.
111.
Asarco also contends that the trial court erred by refusing
to give Asarco's proposed instruction regarding Montana law on
immediate payment of wages to discharged employees. The
instruction provided:
You are instructed that Montana statutory law requires
an employer who discharges an employee for cause to
immediately pay all final wages due to the discharged
employee.
Failure to pay all such wages due will result in a
monetary penalty to the employer.
The instruction does in fact correctly state the law in Montana at
the time Barrett was discharged. See 5 5 39-3-205(2), 39-3-206,
MCA (1983).
The record indicates that Asarco prepared Barrett's final
check prior to the meeting where Barrett was accused of "bucking
balesw and was subsequently terminated. Barrett argues that this
supports his theory that Hearst was out to get him; Barrett
contends that the check was already made out because Hearst planned
to fire him before Barrett had a chance to give his version of the
facts.
On the other hand, Asarco argues that they merely drafted the
check prior to the meeting so that they would be in compliance with
the law if they decided to terminate Barrett pursuant to the
meeting. They argue that this entitles them to have the jury
instructed on this point.
We see little merit in Asarco's argument. After questioning
Barrett about the alleged hay incident, Hearst could have decided
to terminate Barrett, informed him of such, and then just as easily
complied with the law by requesting him to wait a few minutes while
a final paycheck was prepared for him. Therefore, both sides were
at liberty to argue Hearst's intent in having the check drafted
prior to ever meeting with Barrett. In refusing the instruction,
the District Court noted:
This instruction is also improper because it
addresses a collateral issue in the case and not one that
the jury was required to find for a verdict. It is
immaterial to the jury whether the employer paid wages
to the plaintiff immediately upon his discharge;
termination procedure was not an issue. The defendant
contends that this instruction was pertinent because
evidence was presented that the employer had a
termination check already made out before he determined
whether cause for termination existed. The wroposed
instruction does not address the employerls intent in
this resard. Giving this instruction would serve only
to confuse the jury and to distract them from the issues
they were required to consider. Refusal of this
instruction does not warrant a new trial. (Emphasis
added. )
We agree with this analysis. The proposed instruction would have
only served to confuse and mislead the jury. The District Court
did not abuse it's discretion in refusing the instruction.
IV .
Finally, Asarco contends that plaintiff's counsel engaged in
misconduct warranting a new trial. It contends that Barrett's
counsel violated several motions in limine, made comments evincing
a lack of respect for the court's rulings and the judicial system,
as well as a lack of respect for the appellate function of this
Court.
Upon reviewing the record, we can find no error warranting a
new trial. Asarco failed to object to the comments of Barrett's
counsel alleged as misconduct except for one instance during
closing argument where the objection was apparently overruled and
the trial judge cured any prejudicial error by admonishing the jury
that nothing said by counsel in argument was evidence. Failure to
object to alleged error at trial precludes an appellant from
raising that issue on appeal. Matter of B.L.O. (1984), 213 Mont.
164, 169, 689 P.2d 1246, 1249.
Asarco also failed to object to what it now alleges on this
appeal are violations of the District Court's in limine rulings
regarding emotional distress claims, negative publicity suffered
by Barrett due to the first trial and appeal, and exclusion of due
process arguments concerning termination procedure. A motion in
limine is a pre-trial objection to evidence and need not be
continually renewed to preserve alleged errors for appeal. Beil
v. Mayer (Mont. 1990), 789 P.2d 1229, 1232-1233, 47 St.Rep. 661,
665. Regardless, none of the alleged violations of these motions
constitutes error sufficient to warrant a reversal by this Court
in this case.
First, the District Court did not preclude in limine evidence
on emotional distress, rather, the record shows that the court
directed a verdict in favor of Asarco on Barrettts emotional
distress claims after Barrettts case-in-chief. Any error arising
from a reference to emotional distress damages by Barrettts
counsel should have been preserved with an objection.
In ruling on the motion concerning damages to plaintiff
growing out of a post-trial newspaper article, the trial court
stated:
On motion two, post remand problems which occurred
by reason of newspaper articles brouqht about by
publicity from the reversal by the Supreme Court, I dontt
think that is actionable. Even if he is distressed by
the newspaper articles I don't see how that is the fault
of the Defendant and so I would have been inclined to
grant that. (Emphasis added.)
Asarco alleges that the following statement by Barrett's counsel
violates this ruling:
They trashed him. They ruined him. Gave him six years
of agony, humiliation.
These comments make no reference to any newspaper articles, or the
affect thereof, and therefore do not violate the order.
When asked by his counsel the effect the termination had on
his relationship with his family Barrett did mention the newspaper
article. The record contains the following testimony:
A. Well, I have had a hard time trying to explain to
my kids some of the things they put in the newspaper.
Q. (By Barrett's counsel.) No, wait a minute. There
is an order about that.
MR. RAGAIN (Counsel for Asarco): Your honor, I want the
jury instructed to disregard that remark. Especially
with regard to they putting [sic] in the newspaper. I
want it clear that my client had nothing to do with
putting anything in the newspaper.
THE COURT: The jury is instructed to please disregard
that comment of the witness.
From the record it appears that Barrettts counsel did not attempt
to solicit this response. Furthermore, the jury was fully
admonished to disregard the answer. We will not reverse a judgment
unless error affects the substantial rights of a party. Dahlin v.
Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241. Any
prejudice suffered by Asarco here was minimal, and certainly did
not rise to such a level as to deprive Asarco of a fair trial.
See e.g. Krueger v. General Motors Corp., supra, 783 P.2d at 1349.
Finally, Asarco alleges that Barrettts counsel violated the
motion in limine regarding due process in termination procedures
during his closing argument. We disagree. In ruling on the
motion, the District Court stated that evidence of the termination
proceeding was inadmissible on the question of due process but
would be admissible on the question of whether Asarco had a fair
and honest reason for terminating Barrett. Regarding these
questions, the Court stated that it would "rule on them as they
come up.t' In closing, Barrettts counsel argued:
Now they haven't got any system in this company. Nobody
ever made a memorandum of this after it was over. You
work for the state or any other big organization I know
about and my God you would have a file on this case this
thick before the guy was ever even fired. He would have
hearings and have all kinds of due process and law and
everything. But as Your Honor instructed YOU they didn't
have to b r i m a witness asainst him. Didn't even have
to sive him any notice as lonq as you think they had a
fair and honest reason for firinq him. That is the
bottom line. (Emphasis added.)
Here, counsel's argument went solely to the issue of whether Asarco
had a fair and honest reason for terminating Barrett. No error was
committed.
Furthermore, the District Court has discretion in determining
whether misconduct so prejudices a party as to warrant reversal:
The standard of review for this Court in determining
whether a mistrial was appropriately denied is whether
there is manifest abuse of the District Court's broad
discretionary power. [citations omitted].
. ...
The District Court judge ... is in the
best position to determine the prejudicial effect of
the attorney's blatant misconduct on the jury.
Kuhnke v. Fisher (1987) 227 Mont. 62, 68, 740 P.2d 625, 628.
(Kuhnke 11.) Here, we cannot conclude that the District Court
abused its discretion. The judgment is
AFFIRMED.
We Concur: A
.' f
'
'chief Justice