Brown v. United Methodist Homes For The Aged

• Decision Date: 12 July 1991
• Docket Number: No. 65629,65629
• Citation: 815 P.2d 72,249 Kan. 124
• Parties: , 121 Lab.Cas. P 56,851 Richard Virgil BROWN, Appellee/Cross-Appellant, v. UNITED METHODIST HOMES FOR THE AGED, Appellant/Cross-Appellee.
• Court: Kansas Supreme Court

Page 72

815 P.2d 72

249 Kan. 124, 121 Lab.Cas. P 56,851

Richard Virgil BROWN, Appellee/Cross-Appellant, v. UNITED METHODIST HOMES FOR THE AGED, Appellant/Cross-Appellee.

No. 65629.

Supreme Court of Kansas.

July 12, 1991.

Syllabus by the Court

1. In ruling on a motion for directed verdict, the trial court as well as the appellate court must resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based upon the evidence, the motion must be denied and the matter submitted to the jury. The same test is applicable to a motion for judgment notwithstanding the verdict.

2. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, this court does not weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal. Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).

3. The rules relating to the granting of summary judgment are stated and applied.

4. The district court's decision to deny a motion to amend the pretrial order pursuant to K.S.A.1990 Supp. 60-216(a) is a matter of judicial discretion. The exercise of judicial discretion requires the judge to have proper regard for what is just and fair under the existing circumstances and requires that he or she not act in an arbitrary fashion or unreasonable manner. The timeliness of the motion to amend is determined by the existing circumstances and is also a matter of judicial discretion.

5. In an action brought by the employee against his employer for breach of contract and for retaliatory discharge, the record is examined and it is held that the district court did not err in (1) denying defendant's motion for summary judgment, (2) denying defendant's motions for directed verdict and judgment notwithstanding the verdict, (3) allowing plaintiff's claim for breach of employment contract to go to the jury, (4) instructing the jury on retaliatory discharge, (5) denying defendant's motion to amend the pretrial order, and (6) refusing to grant a remittitur.

Brian G. Boos of Gehrt & Roberts, Chartered, Topeka, argued the cause and was on the briefs, for appellant/cross-appellee.

Frank D. Taff, Topeka, argued the cause and was on the briefs, for appellee/cross-appellant.

Michael D. Strong, Jeffrey A. Chanay, and Stewart L. Entz of Entz, Anderson & Chanay, Topeka, were on the brief for amici curiae Kansas Ass'n of Homes for the Aging, Inc., and Kansas Chamber of Commerce and Industry.

ALLEGRUCCI, Justice:

This is an action challenging the termination of plaintiff Richard Virgil Brown's employment with defendant United Methodist Homes for the Aged (UMH). The plaintiff alleged breach of his contract of employment and retaliatory discharge for filing a workers compensation claim and that defendant provided false information to the Kansas Department of Human Resources, Division of Employment Security (KDHR), so as to deny plaintiff unemployment compensation benefits. The jury rejected the latter two claims but found for plaintiff on the theory of breach of contract and awarded $35,000 in damages. Defendant appeals the verdict and the denial of judgment for defendant as a matter of law on plaintiff's breach of contract claim. The plaintiff cross-appeals, challenging the district court's instruction regarding retaliatory discharge and the court's refusal to instruct the jury about mental anguish as an element of damages.

We first consider UMH's direct appeal. UMH contends that the district court erred in not finding as a matter of law that Brown stated no cause of action for his discharge. Thus, the district court should have granted UMH's motion for summary judgment, should have directed a verdict at the close of both the plaintiff's evidence and all the evidence, and should have granted UMH's motion for judgment notwithstanding the verdict filed after trial was completed. UMH also contends that substantial competent evidence does not support the verdict that an employment contract existed and was breached. The basic question to be decided is whether an implied contract of employment existed between Brown and UMH.

Standards of Review

The standard of review in an appeal of a summary judgment has been stated by this court on numerous occasions. Summary judgment is proper only when the pleadings, affidavits, and the discovery record show that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). In reviewing a decision involving summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. p 4, 662 P.2d 1203 (1983). Here, this court must give Brown the benefit of all favorable inferences arriving from this record in determining whether the district court erred in denying UMH's motion for summary judgment.

In ruling on a motion for directed verdict, the trial court as well as the appellate court must resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based upon the evidence, the motion must be denied and the matter submitted to the jury. Pilcher v. Board of Wyandotte County Commr's, 14 Kan.App.2d 206, 208, 787 P.2d 1204 (1990) (quoting Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 [1987]. In deciding a motion for directed verdict, the question before a trial court is not whether there is no evidence to support the party against whom the motion is directed but whether evidence exists upon which the jury could properly find a verdict for that party. In Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), this court noted that, even where facts are undisputed, it may be possible to draw conflicting inferences from the facts, which would also require the issue to be submitted to the jury. The matter becomes a question of law for the court's determination where no evidence is presented on a particular issue or where the evidence presented is undisputed and is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice. Sampson, 233 Kan. at 578, 665 P.2d 743; Pilcher, 14 Kan.App.2d at 209, 787 P.2d 1204.

The test for determining whether a motion for directed verdict should be granted is the same test applicable to a motion for judgment notwithstanding the verdict. Holley, 241 Kan. at 710, 740 P.2d 1077; Turner v. Halliburton Co., 240 Kan. 1, 6-7, 722 P.2d 1106 (1986) (citing 1 Gard's Kansas C.Civ.Proc.2d Annot. § 60-250 [1979].

Concerning UMH's argument that the verdict was not supported by the evidence, this court has held that when a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, this court does not weigh the evidence or pass on the credibility of the witnesses. "If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal." Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).

Facts

UMH hired Brown on March 15, 1985, as a part-time security guard to work weekend nights between 4:00 p.m. and 12:00 a.m. at its nursing home located at 1135 S.W. College Avenue, Topeka, Kansas. UMH gave Brown its Personnel Policies Manual that addressed disciplinary procedures and employee benefits. Brown signed a receipt for the manual and agreed to abide by its provisions. The manual is in looseleaf form and, as amendments or revisions are made, new pages are furnished to employees in their pay envelopes to be inserted in the manual.

One manual revision, which was effective August 9, 1985, provided:

"Employment with United Methodist Homes is 'at will,' and may be terminated by the Homes without cause. No commitment for employment for any specified duration, including 'lifetime' employment, shall be valid or binding on the Homes unless it is expressly set forth in a written document and signed by the employee and by the Executive Director of the Homes."

A memorandum explaining this "at-will" language provided:

"TO ALL EMPLOYEES:

"You have received the revisions to the Personnel Polices Manual. There are some questions concerning the 'At will' statement on page 3, D and page 31, F, 1.

"This statement has been included at the suggestion of our legal counsel due to a change in the law. It is not a change in policy. The United Methodist Home has always been an 'At will' employer. This simply means that we do not have written contracts with any employees that guarantee a length of employment. For example: the teachers and the school board. This means that The Methodist Home has the same relationship with you as you have with the Home. In other words, you have the right to quit, just as we have the right to terminate employment. It has always been this way.

"The law has changed in interpretation due to the result of legal action taken by employees against their employer (not the Methodist Home). In these court cases the personnel policy manual was interpreted to be a contract, due to a legal technicality. To cover this legal problem the Legal Advisers ask us to include the 'at will' statement."

The addition of the "at-will" clause did not change the policy of UMH that prohibited dismissal of an employee except "for cause." Orman Thorson, director of environmental services for UMH, explained, "You just don't terminate a person because you want to terminate them. You have...