459 F.2d 689 (5th Cir. 1972), 71-2510, Lanier v. Alenco

Docket Nº:71-2510 [*]
Citation:459 F.2d 689
Party Name:John Stephen LANIER, Jr., Plaintiff-Appellee, v. ALENCO, a Division of Redman Industries, Inc., Defendant-Appellant.
Case Date:April 25, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 689

459 F.2d 689 (5th Cir. 1972)

John Stephen LANIER, Jr., Plaintiff-Appellee,

v.

ALENCO, a Division of Redman Industries, Inc., Defendant-Appellant.

No. 71-2510 [*]

United States Court of Appeals, Fifth Circuit.

April 25, 1972

         Rehearing Denied May 22, 1972.

Page 690

         John W. Haygood, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendant-appellant.

         Harry Connick, Anita Connick, Connick & Connick, New Orleans, La., for plaintiff-appellee.

         Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

         GOLDBERG, Circuit Judge:

         Alenco Company, a Louisiana corporation manufacturing aluminum windows, glass doors, and cabinets, appeals from a district court decision that John S. Lanier, the plaintiff below, was hired as a branch sales manager by Alenco's branch manager for a fixed term of one year at certain salary and commission levels. Lanier has also appealed the trial judge's denial of attorney's fees. We affirm the district judge on both points.

         While employed as a "contact sales representative and marketing specialist" by the General Electric Company, Lanier was approached by James Shelton, then

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Alenco's branch manager in New Orleans. Shelton proposed that Lanier leave his $15,000 per year position at General Electric and accept a position as sales manager at Alenco. The district judge found that Shelton represented that Lanier would receive a one-year contract at a base salary of $10,800, plus a 2% commission on the net profit on cabinet sales of Alenco's New Orleans branch office and a 2 1/2% commission on Lanier's own sales for Alenco. 1 Shelton also represented to Lanier that, as sales manager of the cabinet-making concern in New Orleans, he would earn between $20,000 and $22,000 for the year. The district court further found that Shelton, in order to assure Lanier that he would receive the total earnings, promised Lanier that he would be assigned certain company accounts of $750 per month, known as "start up" commissions. 2 As a result of Shelton's representations, the district court concluded that Lanier had been promised a yearly income of $19,800, payable from July of 1969 to July of 1970. On the basis of Shelton's representations, Lanier left the employment of General Electric and began working for Alenco. He testified that he spent part of his time at Alenco doing those functions generally associated with the position of sales manager, but that he spent a great deal of his time answering complaints about Alenco cabinets. Alenco does not complain that Lanier was a disloyal or ineffective employee. In December, 1969, Alenco presented a "new offer of reimbursement" to Lanier. The new "offer" provided for a significant reduction in both salary and commissions. Lanier refused and was discharged in January of 1970, admittedly without basis or justification. After his termination Lanier sought reemployment without substantial success. In March of 1970 he finally found another position at which he was still employed at the time of the trial. As of July 13, 1970, the date on which his alleged one-year contract with Alenco was to have terminated, Lanier had earned $2,800 from his new position. Alenco paid Lanier only $8,788 on his contract. On the basis of diversity jurisdiction, Lanier instituted suit against Alenco for the remainder of his yearly salary and commissions under the alleged contract, for special damages, and for attorney's fees. In a non-jury trial, Lanier recovered a judgment of $8,222 3 which did not include attorney's fees or damages. Alenco appealed, alleging (1) that Lanier did not comply with Louisiana law regarding the proving of oral contracts for amounts greater than $500, and (2) that Lanier did not establish that Alenco's branch manager, Shelton, had the authority, express or apparent, to hire Lanier for a fixed term. Finding both allegations without merit, we affirm.

          Under Louisiana law, which is applicable in this diversity case, the employer must show good cause for discharging a factory employee engaged for a fixed term, compare L.S.A. § 2748 with L.S.A. § 2747 and Baker v. Union Tank Car Co., 1962, La.App., 140 So.2d 397, and an employee for a fixed term who is unjustifiably discharged has a right of action against the employer on the contract, L.S.A. § 2749. However, an oral contract of a value greater than $500 must "be proved at least by one credible witness, and other corroborating circumstances," L.S.A. § 2277. It is

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established law that Lanier himself can be the "one credible witness" required, King v. Jarvis, 1962, La., 144 So.2d 616; Ory v. Griffin, 1964, La., 162 So.2d 97. It is also established Louisiana law that the "corroborating circumstances" need only be general, not specifically directed to each element of Lanier's case. Pino v. Bennett, 1961, La., 126 So.2d 460; Morris v. Pratt, 1905, 114 La. 98, 38 So. 70. Finally, the findings of fact of a trial judge cannot be disturbed on appeal unless "clearly erroneous," F.R.Civ. P. 52(a). See Sibbach v. Wilson, 1940, 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479; Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520. 4 Lanier testified to his dealings with Shelton, and Alenco at no point directly contradicted that testimony. 5 Alenco produced only a company vice-president at the trial, who testified to a general "company policy" against hiring for fixed terms. The trial judge is required to make judgments regarding the relative weight and credibility of varying testimony, and we cannot say...

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