Barone v. United Industries Corp.

• Decision Date: 05 October 2004
• Docket Number: No. ED 82564.,ED 82564.
• Citation: 146 S.W.3d 25
• Parties: James BARONE, Appellant, v. UNITED INDUSTRIES CORPORATION, d/b/a Spectrum Brands, Respondent.
• Court: Missouri Court of Appeals

146 S.W.3d 25

James BARONE, Appellant, v. UNITED INDUSTRIES CORPORATION, d/b/a Spectrum Brands, Respondent.

No. ED 82564.

Missouri Court of Appeals, Eastern District, Division One.

October 5, 2004.

Appeal from the Circuit Court, St. Louis County, Melvyn W. Wiesman, J James J. Leightner, Gerard Diekman, Diekman & Leightner, Clayton, MO, for appellant.

Robert W. Stewart, Corey L. Franklin, McMahon, Berger, Hanna, Linihan, Cody & McCarthy, St. Louis, MO, for respondent.

GARY M. GAERTNER, SR., J.

Appellant, James Barone ("plaintiff"), appeals from the judgment of the Circuit Court of St. Louis County following a jury trial denying plaintiff's separate motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Plaintiff brought suit against respondent, United Industries Corporation ("defendant"), for breach of contract, and the jury returned a verdict in favor of defendant. We affirm.

On February 18, 2000, defendant offered plaintiff employment as its Senior Vice President. Defendant's written offer of employment provided, inter alia, that plaintiff would be entitled to severance pay of one year's salary in the amount of three hundred thousand dollars if he was terminated without cause. Plaintiff accepted defendant's offer of employment and began his employment as defendant's Senior Vice President on March 6, 2000.

On September 1, 2000, Bob Caulk ("Caulk"), defendant's President, Chairman, and CEO, and Sherrie Senkfor ("Senkfor"), defendant's Vice President of Human Resources, notified plaintiff that he was terminated without cause. Caulk also informed plaintiff that from that day on, plaintiff would not have any work duties except to update Caulk on open business issues.

Defendant offered plaintiff two options for exiting the company. Pursuant to the first option, plaintiff would leave work immediately and collect the severance pay, of one year's salary in the amount of three hundred thousand dollars, that he was due pursuant to his initial offer of employment. Plaintiff ultimately accepted the second option. The second option provided that plaintiff would sign a release agreement, receive severance pay of one year's salary in the amount of three hundred thousand dollars, and be permitted to use his title of Senior Vice President and company office space for sixty days to assist in his search for new employment.

Defendant's in-house counsel Matthew McCarthy ("McCarthy") prepared a release agreement in conjunction with plaintiff's chosen exit plan. The release agreement confirmed that plaintiff's termination occurred on September 1, 2000 and that following that day plaintiff would only perform special projects assigned to him by Caulk. The release agreement also provided that defendant would receive severance pay of one year's salary in the amount of three hundred thousand dollars

payable in twelve (12) equal consecutive monthly installments of [t]wenty-five [t]housand and 00/100 [d]ollars ($25,000.00) each ... beginning on the next monthly payroll cycle after the [e]ffective [d]ate of the [r]elease as defined in... paragraph 7.

Paragraph seven of the release agreement stated, in relevant part:

[I]f you sign and return this [r]elease document within 21 days after receiving it, and if you do not thereafter revoke your acceptance during the following 7 days, then the [severance] payments [of twelve equal consecutive monthly installments of twenty five thousand dollars each] will be made. The [e]ffective [d]ate of this [r]elease will be the date on which the revocation period ends.

Plaintiff and McCarthy signed the release agreement on October 10, 2000. Pursuant to paragraph seven of the release agreement, the effective date of the agreement was October 17, 2000 and plaintiff was to begin receiving severance payments on November 30, 2000, the date of the next monthly payroll cycle.

In December 2000, McCarthy realized defendant had inadvertently paid plaintiff twenty five thousand dollars two times, on September 30, 2000 and October 31, 2000, during the interim period between plaintiff's September 1, 2000 termination and November 30, 2000, the date plaintiff should have begun receiving his severance payments. According to defendant, this payment mistake had occurred because while McCarthy prepared and signed the release agreement which provided that plaintiff would begin receiving severance payments on November 30, 2000, Senkfor mistakenly believed plaintiff's severance was to be paid beginning on September 30, 2000, the date of the monthly payroll cycle immediately following plaintiff's September 1, 2000 termination. Once Senkfor realized this error, she instructed defendant's payroll department to only issue severance payments to plaintiff until August 2001 to insure plaintiff would only receive twelve months pay.

After his September 1, 2000 termination, plaintiff was given office space to assist in his search for a new job. Plaintiff's only work duties, preparing a one-page memorandum and attending one forty-five minute meeting with Caulk, were limited to briefing Caulk on ongoing business issues. From September 1, 2000 to August 2001, plaintiff received twelve monthly payments of twenty five thousand dollars, or a total of three hundred thousand dollars. Plaintiff received ten of these twelve monthly payments after November 2000.

In October 2001, plaintiff filed suit against defendant for breach of written contract. Plaintiff alleged, inter alia, that defendant failed to complete performance of the severance pay portion of the release agreement because defendant did not pay plaintiff the last two monthly installments of twenty five thousand dollars each. Defendant brought a counterclaim against plaintiff for unjust enrichment,¹ claiming that plaintiff was wrongfully paid in September 2000 and October 2000. On November 19, 2002, a jury found in favor of defendant on plaintiff's breach of contract claim and in favor of plaintiff on defendant's unjust enrichment counterclaim. On November 20, 2002, the trial court entered judgment consistent with the jury's verdict. The trial court did not award damages to either side, but taxed costs to plaintiff. The trial court denied plaintiff's separate motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. This appeal followed.

In his first point on appeal, plaintiff asserts that the trial court erred in denying his motion for judgment notwithstanding the verdict on his claim for breach of contract because defendant failed to make a submissible defense and plaintiff was entitled to judgment as a matter of law.

In order for a motion for judgment notwithstanding the verdict to be preserved for appeal, a sufficient motion for directed verdict must be made at the close of all the evidence. Rule 72.01(b)²; Fust v. Francois, 913 S.W.2d 38, 45 (Mo.App. E.D.1995).

In this case, plaintiff's only reference to a motion for directed verdict was at the close of defendant's evidence. After the close of defendant's evidence, plaintiff introduced additional evidence. The record on appeal does not indicate that plaintiff made another reference to a motion for directed verdict at the close of all the evidence.

Therefore, plaintiff's first point on appeal is not preserved for appellate review.

It is within an appellate courts discretion to decide whether to review an unpreserved matter for plain error. Rule 84.13(c). Thus, in the exercise of our discretion, we decline to grant such review in this case because we find no manifest injustice has resulted.

In his second point on appeal, plaintiff argues that the trial court erred in denying his motion for judgment notwithstanding the verdict, or in the alternative, for a new trial on his claim for breach of contract by permitting the introduction of parol evidence.³

As a preliminary matter, defendant argues that plaintiff's second point on appeal is not preserved for appellate review because plaintiff failed to object when the evidence was introduced at trial. We agree.

To preserve a challenge to the introduction of parol evidence in a jury trial, there must be a timely objection to the receipt of the evidence at trial. Fox v. Burton, 402 S.W.2d 329, 335 (Mo.1966). A motion in limine, in and of itself, preserves nothing for appellate review. Hancock v. Shook, 100 S.W.3d 786, 802 (Mo.banc 2003).

In the instant case, plaintiff filed a motion in limine, which inter alia, requested the trial court exclude parol evidence. The trial court granted plaintiffs motion in limine in part, ruling that "no evidence is permitted to explain or modify the contract on which the suit is brought." Plaintiff contends that the trial court then permitted the introduction of parol evidence to explain the release agreement when it allowed portions of Senkfors deposition to be read at trial and certain testimony by Caulk and McCarthy over plaintiffs objection.

At trial, plaintiff did not specifically make parol evidence objections when the trial court received certain parts of Senkfor's deposition, Caulk's testimony, or McCarthy's testimony as evidence at trial. However, plaintiff did make other various objections to the admission of this evidence. With regard to Senkfor, plaintiff did object that different parts of her testimony in her deposition were "hearsay," "irrelevant," "interpretations of her impression and understanding," "her understanding of the meeting, her understanding of [Caulks] intentions hearsay." Plaintiffs stated objection to Caulk's testimony was "[the] document speaks for itself." In addition, plaintiff objected that McCarthy's testimony was "irrelevant." Therefore, we find that plaintiff's objections at trial were not sufficient to preserve his parol evidence arguments for appeal.

However, assuming arguendo that plaintiff's parol evidence...