Everett v. S.H. Parks and Associates, Inc., 82-1097
| Decision Date | 06 January 1983 |
| Docket Number | No. 82-1097,82-1097 |
| Citation | 697 F.2d 250 |
| Parties | Charles H. EVERETT, Appellee, v. S.H. PARKS AND ASSOCIATES, INC., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Hiram W. Watkins, Clayton, Mo., for appellant.
Stefan J. Glynias, Lisa A. Kircher, Clayton, Mo., for appellee.
Before LAY, Chief Judge, and McMILLIAN and JOHN R. GIBSON, Circuit Judges.
S.H. Parks & Associates, Inc. (Parks) appeals from a final judgment entered in the District Court 1 for the Eastern District of Missouri upon a jury verdict in favor of Charles H. Everett. For reversal Parks argues the district court erred in (1) refusing proposed instruction c, (2) admitting certain rebuttal evidence, (3) excluding certain deposition testimony, and (4) denying Parks' motion for a new trial or in the alternative for remittitur. For the reasons discussed below, we vacate the judgment of the district court and remand the case for a new trial on the issue of damages only unless Everett agrees to a remittitur in the amount of $10,070.94.
Parks is engaged in the business of auditing accounts payable records for department stores. Accounts payable auditing involves examination of department store records for irregularities such as overpayments, valid discounts not taken, and freight bills not charged to the correct party. Such irregularities, called "charge-backs," are written up by the auditors on a "recap sheet" upon completion of the audit. The fee to Parks consists of half of the charge-backs actually recovered by the department store. Half of the fee paid by the department store is retained by Parks and the other half is distributed among the auditors involved on the audit that generated the fee. An individual auditor's share of a particular fee payment is computed according to the following formula, with adjustments for clerical fees and training bonuses: ( 1/2 fee received) X (percentage of days worked by the auditor on the audit) X (commission rate at which auditor is paid). Collection of fees from clients stretches out over long periods. Auditors may request advances from Parks.
Parks employs two classes of auditors: trainees and associates. Trainees are paid varying commission rates of less than fifty percent. Associates are paid commission rates from fifty to seventy-five percent. If an associate is working on an audit with a trainee, Parks pays the associate a training bonus or supervision fee. The method of computing the training bonuses was disputed. See note 8 infra.
Sometime in late 1977, Parks hired Everett as a trainee at a starting commission rate of one-third. Everett participated in thirteen audits and there is no dispute that he did a good job. What is disputed is the commission rate to be paid Everett for seven of the audits. In December of 1978, Everett completed an audit of the Hecht Co. with another auditor, Paul Sochaski. After the audit Everett and Sochaski called Roy Green, Parks' executive vice-president. Conflicting evidence was presented whether an agreement was reached during that conversation to promote Everett to associate and to increase Everett's commission rate to fifty percent. According to Everett, Sochaski was pleased with his work on the Hecht Co. audit and recommended that Green increase his commission rate to fifty percent. Immediately after that conversation, Everett went to the May Co. in Los Angeles to do his first audit on his own.
Everett contends that he was promoted to a fifty percent commission rate as a result of the telephone conversation with Roy Green, effective in December 1978 with the Hecht Co. audit. Parks contends that after the May Co.-L.A. audit was completed Everett's commission rate was increased to forty percent and sometime late in 1979 Everett was considered for a promotion to associate status. No employment contract was ever signed. Parks contends that an employment contract must be signed before a trainee can become an associate. Everett contends that this requirement was not communicated to him and witnesses testified to never having signed a contract before being paid a commission rate of fifty percent. In a letter dated December 14, 1979, Everett refused to sign the employment contract and tendered his resignation, alleging that the terms of the employment contract differed from what he had been told in the telephone conversation with Roy Green.
In December of 1979, Roy Green prepared a summary of Everett's earnings as of November 30, 1979. That summary reflected a fifty percent commission rate for Everett beginning with the Hecht Co. audit. Parks' witnesses testified that the summary was merely an estimate of earnings, but the term "estimate" did not appear on the summary sheet. 2 The amounts of money earned by Everett on the thirteen audits and the method of calculation used by Everett differ from the amounts and the method of calculation used by Parks. These differences will be discussed below.
Everett filed this diversity action in federal district court to recover monies due him, alleging breach of an oral agreement. Following a three-day trial, the jury returned a verdict in favor of Everett in the amount of $30,000 plus interest and costs. Parks' post-trial motion for new trial or remittitur was later denied. This appeal followed. 3
Parks first argues that the district court erred in refusing its proposed instruction c. 4 We have carefully examined the record and find no timely objection raised by counsel. Fed.R.Civ.P. 51. This argument has not been preserved for appellate review. We find no plain error.
Parks next argues that the district court improperly admitted certain rebuttal evidence. During the case-in-chief Everett introduced evidence of an oral agreement specifying a commission rate of fifty percent. Parks then presented evidence that auditors had to sign a written contract before receiving the fifty percent commission rate. Thereafter the district court permitted Everett to introduce rebuttal evidence that Parks had paid other auditors a commission rate of fifty percent without written contracts. Parks argues that this evidence should have been introduced as part of Everett's case-in-chief and was not proper rebuttal evidence. We disagree. Everett's theory of the case was that he had an oral agreement. Evidence that other auditors had been paid commission rates of fifty percent without written contracts was not truly relevant until Parks presented its defense. See Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457-59 (2d Cir.1975), citing 6 Wigmore, Evidence Sec. 1873, at 517 (3d ed. 1940) ( ) (emphasis omitted). Even assuming that evidence that Parks had paid other auditors a fifty percent commission rate without written contracts would have been more appropriate as part of the case-in-chief, that fact "does not preclude the testimony if it is proper both in the case-in-chief and in the rebuttal." United States v. Luschen, 614 F.2d 1164, 1170 (8th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980); see, e.g., Smith v. Conley, 584 F.2d 844, 846 (8th Cir.1978); see also Fed.R.Evid. 611.
Parks next argues that the district court improperly excluded testimony from the deposition of Erica McCorvey. Parks sought to introduce this evidence to impeach Everett. Everett testified that he submitted an audit proposal to Lazarus, McCorvey's employer, at the request of the client and thus did not improperly interfere with Parks' contractual relationship with Lazarus. In her deposition McCorvey testified that she did not ask Everett to submit a proposal. Because Everett did not identify any Lazarus employee by name and McCorvey is one of several Lazarus accounts payable employees, McCorvey's denial was of little probative value. We find no error in the exclusion of this testimony.
Parks next argues that the district court abused its discretion in denying its motion for new trial or in the alternative for remittitur. Parks argues that the jury's award of $30,000 is not supported by the evidence and is excessive. We agree in part. An appellate court may itself order a new trial unless the plaintiff consents to a remittitur in a specific amount. See 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2820, at 133-34 (1973). Where the discrepancy between the award and the maximum amount reasonably supported by the evidence is apparent and the correction basically mechanical, and where the award is not the result of passion or prejudice, 5 the correction can be made at the appellate level. See, e.g., Shingleton v. Armor Velvet Corp., 621 F.2d 180, 182 (5th Cir.1980); Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571, 573-74 & n. 7 (5th Cir.1979). We vacate the judgment of the district court and remand the case for a new trial on the issue of damages only unless Everett agrees to a remittitur in the amount of $10,070.94.
We have carefully reviewed the evidence, assuming the jury intended to award Everett the maximum amount reasonably supported by his evidence. Everett sought damages in the amount of $19,929.06. This exact amount was specifically mentioned by Everett in his testimony and by Everett's attorney in closing arguments to the jury. According to Plaintiff's Exhibit 26, Everett calculated that he had earned a total of $73,195.20; in Defendant's Exhibit C, Parks calculated that Everett had earned a total of $48,682.46:
Earnings per Earnings per1/5
------------ ---------------
Client Everett Parks1/5
------------------ ------------ ---------------
Venture $6,013.33 $6,013.331/5
Cook United $7,417.83 $8,370.951/5
Walmart $1,368.34 $1,450.001/5
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