Barks v. Cosgriff Co.
| Decision Date | 31 March 1995 |
| Docket Number | No. S-93-397,S-93-397 |
| Citation | 529 N.W.2d 749,247 Neb. 660 |
| Parties | , 131 Lab.Cas. P 58,071 Michael D. BARKS, Appellee and Cross-Appellant, v. COSGRIFF COMPANY, a Nebraska Corporation, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Verdicts: Appeal and Error. A jury verdict will not be disturbed on appeal as excessive unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or that the jury disregarded the evidence or rules of law.
2. Demurrer: Pleadings: Appeal and Error. In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.
3. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.
4. Trial: Evidence: Waiver. If, when inadmissible evidence is offered, the party against whom such evidence is offered consents to its introduction, or fails to object or 5. Jury Instructions: Appeal and Error. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error.
to insist upon ruling on the objection to introduction of such evidence, and otherwise fails to raise the question as to its admissibility, that party is considered to have waived whatever objection he or she may have had thereto, and the evidence is in the record for consideration the same as other evidence.
6. Termination of Employment: Employment Contracts: Good Cause: Proof. In an action for wrongful termination, the employee must initially prove the existence of the employment contract, its terms and his or her compliance with those terms until termination, the employer's breach, and damages. After the employee has done so, the burden then shifts to the employer to come forward with evidence that good cause existed for discharging the employee. If the employer produces sufficient evidence, the employee may rebut, and if in controversy, the issue goes to the trier of fact; however, the ultimate burden of proving wrongful termination remains with the employee.
7. Jury Instructions: Proof: Appeal and Error. A jury instruction that misstates the burden of proof has a tendency to mislead the jury and is erroneous.
8. Motions for New Trial: Appeal and Error. A motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred.
9. Pleadings: Motions to Strike. The proper manner in which to challenge the appropriateness of a counterclaim is by a motion to strike rather than by a demurrer.
10. Demurrer: Final Orders: Appeal and Error. The sustaining of a general demurrer, not followed by a judgment of dismissal terminating the litigation, does not constitute a reviewable final order.
11. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.
12. Jurisdiction: Final Orders: Appeal and Error. In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction.
Michael L. Lazer and Lisa A. Sarver, of Dwyer, Pohren, Wood, Heavey, Grimm, Goodall & Lazer, Omaha, for appellant.
Robert R. Otte, of Morrow, Poppe, Otte, Watermeier & Phillips, P.C., Lincoln, for appellee.
Michael D. Barks sued Cosgriff Company (Cosgriff) for wrongful termination. Cosgriff filed a counterclaim for breach of contract. Prior to trial, the Douglas County District Court sustained Barks' demurrer to Cosgriff's counterclaim. A jury rendered a verdict in Barks' favor on the wrongful termination claim. Cosgriff appeals the jury's verdict and the district court's order sustaining Barks' demurrer. On cross-appeal, Barks requests an award of attorney fees. We reverse the jury's verdict on Barks' wrongful termination claim because the district court improperly instructed the jury with regard to that claim. We dismiss for lack of jurisdiction that part of Cosgriff's appeal which is related to the district court's decision to sustain Barks' demurrer to Cosgriff's counterclaim.
Cosgriff is a Nebraska corporation which specializes in organizing and supervising charitable fundraising campaigns throughout the country. Pursuant to an oral agreement, Cosgriff hired Barks on September 5, 1990. Barks received a letter dated September 6 from Cosgriff setting forth certain terms and conditions of his employment. The letter read Dear Mike:
We are pleased to welcome you as an Associate of the Cosgriff Company.
The beginning date of your employment will be September 5, 1990.
We ask that you provide the firm with your exclusive full-time services, adhere to company policies and promptly report to and give your best efforts to duties assigned by the president.
Your beginning salary will be at the guaranteed rate of $40,000 per year. Our schedule of payment is base pay, plus assignment pay. The base pay will be $200 per week, plus $670 per week assignment pay--for a total of $870 per week when you are on assignment. We project assignment pay for 45 weeks during the year. Again, you are guaranteed $40,000 for the first year.
....
We are indeed pleased that you and your family have joined our firm, and fully expect this will be a rewarding and enjoyable career for you and the family.
Cordially yours,
/s/ Bob
Robert P. Cosgriff
In his deposition and at trial during cross-examination, Barks testified that the above-referenced letter accurately and completely set forth the terms of his employment agreement with Cosgriff. However, on redirect examination conducted the day after his cross-examination, Barks recanted that testimony and stated that Robert Cosgriff, the president of Cosgriff, told Barks that his employment contract would be for a 1-year term.
After approximately a week of training at Cosgriff's Omaha office, Barks was assigned work as an onsite resident staff director for Cosgriff in Norfolk, where Cosgriff was organizing a two-phase capital fundraising campaign for the TEACH/Sacred Heart Church project. Though Barks had approximately 7 years' experience in fundraising through the United Way and various educational institutions, he had never conducted the type of capital fundraising campaign required by the TEACH project.
Upon completion of phase I of the TEACH campaign, Barks returned to the main office in Omaha. The record reflects that members of the TEACH campaign staff had been dissatisfied with Barks' performance. As indicated by the record, the problems with Barks' performance seemed to stem from two sources: Barks' own inability to handle the TEACH campaign assignment and the inadequate training provided by Cosgriff.
After the disappointing performance in Norfolk, Robert Cosgriff informed Barks that he was being considered for a less challenging feasibility study taking place in Minnesota. Robert Cosgriff testified that Barks seemed reluctant to take the Minnesota assignment because he did not want to be that far away from his family. Barks testified that he showed no such hesitation and that he began immediate preparation for the Minnesota assignment. During this time period, the TEACH campaign in Norfolk canceled the remainder of its contract with Cosgriff because of its dissatisfaction with the success of phase I of the campaign.
On approximately November 23, 1990, Cosgriff terminated Barks' employment. Barks filed the instant lawsuit on January 10, 1991, alleging wrongful termination. Cosgriff counterclaimed, alleging that Barks had breached his employment contract, and requested as damages the wages and expenses paid to Barks, as well as lost fees stemming from the cancellation of the balance of the TEACH campaign contract. The district court sustained Barks' demurrer to Cosgriff's counterclaim. A jury returned a verdict in Barks' favor on the wrongful termination claim and awarded Barks $20,000 in damages. This appeal followed.
Cosgriff contends that the trial court erred in (1) admitting Barks' testimony of alleged oral representations regarding his employment contract, (2) failing to grant Cosgriff's motions for directed verdict, (3) improperly instructing the jury regarding the parties' respective burdens of proof, (4) failing to grant Cosgriff's motion for judgment notwithstanding the verdict, (5) failing to grant On cross-appeal, Barks alleges that the trial court erred in not awarding Barks attorney fees.
Cosgriff's motion for new trial, (6) sustaining Barks' demurrer to Cosgriff's counterclaim, (7) dismissing the counterclaim without affording Cosgriff an opportunity to amend its pleadings, and (8) granting Barks' motion in limine to exclude evidence regarding Cosgriff's lost fees and wages and expenses paid to Barks.
A jury verdict will not be disturbed on appeal as excessive unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or that the jury disregarded the evidence or rules of law. McDonald v. Miller, 246 Neb. 144, 518 N.W.2d 80 (1994); Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994); Sanwick v. Jenson, 244 Neb. 607, 508 N.W.2d 267 (1993).
In an appellate court's review of a ruling on a general demurrer, the court...
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