Barrett v. Asarco Inc.

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

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'chief Justice