Ross v. Garner Printing Co.
| Decision Date | 16 April 2002 |
| Docket Number | No. 01-1178.,01-1178. |
| Citation | 285 F.3d 1106 |
| Parties | Jerry ROSS, Appellee, v. GARNER PRINTING COMPANY, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jaki K. Samuelson, Des Moines, IA, argued, for appellant.
Thomas Newkirk, West Des Moines, IA, argued, for appellee.
Before LOKEN, HEANEY, and RILEY, Circuit Judges.
Jerry Ross (Ross) sued his former employer, Garner Printing Company (Garner Printing), for retaliation and breach of contract and won a $250,000 jury verdict on his breach of contract claim. The district court1 denied Garner Printing's motion for a new trial. Garner Printing now appeals, arguing that the district court erred in instructing the jury, in excluding evidence that Ross tried to bribe a witness, and in communicating with the jury during deliberations. We affirm.
Ross was a long-time employee of Garner Printing in Des Moines, Iowa. He started as a pressman in 1961 and worked his way up to production manager. In 1978, along with several of his co-workers, Ross became a part owner of Garner Printing. In July 1996, when Garner Printing was sold to Consolidated Graphics Inc., Ross sold his stake in the company but remained to work as a production manager.
In conjunction with the sale in 1996, Ross negotiated a five-year employment agreement with Garner Printing which provided that he could only be terminated for cause. If Ross were terminated for reasons other than cause, the employment agreement entitled him "to payment of all compensation remaining under the terms of employment under this Agreement payable monthly as though still employed." As part of the agreement, Ross agreed not to compete with Garner Printing for approximately five and a half years after the sale.
In July 1998, Ross was fired by Garner Printing. In February 1999, Ross filed this lawsuit, alleging that he was fired in retaliation for reporting that a female co-worker was being sexually harassed and that he was fired without cause in violation of his written employment contract. The district court held a trial on Ross's claims in October 2000.
At trial, Ross offered evidence that Garner Printing fired him for reporting the sexual harassment of a co-worker and that Garner Printing did not have cause to dismiss him. Ross also testified that, after he was fired, he spent six months sending resumes to out-of-state printers, but did not find work. Garner Printing offered evidence of "a great demand for printing executives" nationally, but no evidence of specific jobs that would have been available to Ross.
Garner Printing also defended its decision to fire Ross, arguing that Ross provided cause for the dismissal by disparaging its executives and encouraging other employees to leave Garner Printing and work for rival printers. While Garner Printing had some evidence of misconduct prior to firing Ross, its strongest evidence was gathered after Ross had been fired. During an investigation of Ross's claim that a co-worker was being sexually harassed, Garner Printing allegedly learned that Ross had been actively diverting business to other printers. It also received information from Tim Nevins (Nevins), another employee, who said that Ross once took a confidential document from the company president's desk and provided it to him for use by the labor union. Nevins testified that he destroyed the document without showing it to anyone.
The trial began on Thursday, October 12, 2000. At the end of the day on Friday, October 13, during Ross's case-in-chief, Garner Printing's lawyer asked Ross if he had offered Nevins $20,000 to take a vacation during the trial. Ross denied the suggestion and moved to exclude any evidence of the alleged incident. The district court granted the motion, pending an offer of proof by Garner Printing. The offer of proof was made on Thursday, October 19. According to the offer of proof, Ross offered Nevins the bribe in February 2000, but Nevins did not tell anyone about it until the Monday before trial. The district court found the evidence had unfairly surprised Ross and excluded it from the trial.
At a conference with counsel after the close of all the evidence, the trial judge informed counsel that he would give the following jury instruction on Ross's breach of contract claim:
To recover from Garner Printing for breach of contract, plaintiff must prove all of the following propositions:
i. Garner Printing breached the contract.
ii. The breach of the contract caused plaintiff to sustain damages.
iii. The amount of the damage.
If plaintiff has failed to prove any of these propositions, he is not entitled to damages on this theory of recovery. If plaintiff has proved all of these propositions, plaintiff is entitled to damages in some amount on this claim of contract breach.
The district court's general damages instruction, which was also discussed at the instruction conference, told the jurors that Ross did not have any duty to mitigate damages on his breach of contract claim. The trial judge also informed counsel that he would not give any instruction on the significance of evidence of misconduct Garner Printing discovered after it fired Ross.
Counsel for Garner Printing raised several objections to the court's proposed instructions, including the following three objections. First, counsel objected to the lack of a specific instruction on after-acquired evidence of misconduct. Second, counsel objected to the lack of an instruction informing the jury that Ross had to perform his obligations under the contract. Third, counsel objected to the court's failure to instruct the jury that Ross had a duty to mitigate damages on his breach of contract claim. Garner Printing proposed specific instructions, in writing, on all of these issues. The trial judge overruled Garner Printing's objections, but said he would allow counsel to use after-acquired evidence in his closing argument. Garner Printing did not renew its objections at any time after the judge instructed the jury.
The jury retired to deliberate in the afternoon of Thursday, October 19. On Friday, the jury submitted several written questions to the district court. The jury's first question concerned the court's general damages instruction. The district court proposed a written answer to the jury's question on damages. Neither party objected to the court's proposed response, but Garner Printing requested a supplemental instruction on after-acquired evidence of misconduct. The court declined to give such a supplemental instruction and gave the jury its answer.
At 3:15 p.m. on Friday, the jury submitted two more written questions to the district court:
When the first breach by either party occurs in this contract, does that mean that the contract can no longer be used for legal reasons?
If and when a contract is broken is it null and void?
At 3:45 p.m., after conferring with counsel for both parties, the district court answered the jury's second round of questions. The court informed the jurors, in writing, they "should consider the circumstances and nature of any `first breach' of a contract" and "[w]hether a contract is null and void after a party has breached the contract depends on the circumstances and nature of the breach." Neither party objected to the district court's response.
At approximately 4:05 p.m., the jury wrote the following note to the district court:
At what point do we determine an adequate conclusion can't be met?
We have agreed on 2 of 3 points but have problem [sic] on the last issue.
We have one person who would be a hardship [sic] to come back another day.
After conferring with counsel, the district judge brought the jurors into the courtroom and asked which juror had the hardship. Three jurors said that they would have problems returning on Monday morning. The judge then told the jurors to return to their deliberations while he discussed the matter with counsel.
After discussing the issue with counsel, the judge sent the jury a written note reading, "At 4:55 p.m., if you have not returned verdicts on all issues, I will call you into the courtroom and visit further with you." The jury was called into the courtroom at 4:55 p.m., where the fore-person informed the court that the jury had resolved question one (discrimination) and question six (breach of contract), but not question seven (damages for breach of contract).2 The judge again sent the jurors out of the courtroom. A little while later, he called them back to say that they would continue their deliberations on Monday morning. At that point, the jurors asked to have ten more minutes to return a verdict.
The judge granted their request, and, at 5:30 p.m., the jury returned with a verdict for Garner Printing on Ross's retaliation claim and a $250,000 verdict against Garner Printing on Ross's breach of contract claim. Garner Printing filed a motion for new trial, which the district court denied.
On appeal, Garner Printing raises five arguments in support of a new trial. Garner Printing's first three arguments concern the jury instructions. Garner Printing claims that the district court erred (1) in failing to instruct the jury on the significance of "after-acquired" evidence of misconduct by Ross, (2) in failing to instruct the jury that performance under the contract by Ross was an essential element of his breach of contract claim, and (3) in instructing the jury that Ross did not have to mitigate damages with respect to his breach of contract claim. Garner Printing also claims that the district court erred in excluding the evidence of Ross's alleged attempted bribe and in the court's communications with the jury.
A district court's denial of a motion for new trial is reviewed for abuse of discretion. Phillips v. Collings, 256 F.3d 843, 851 (8th Cir.2001).
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