Foehr v. Republic Automotive Parts, Inc.

• Decision Date: 17 August 1995
• Docket Number: Docket No. 147787
• Citation: 212 Mich.App. 663,538 N.W.2d 420
• Parties: Donald L. FOEHR, Plaintiff-Appellee/Cross-Appellant, v. REPUBLIC AUTOMOTIVE PARTS, INC., Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 420

538 N.W.2d 420

212 Mich.App. 663

Donald L. FOEHR, Plaintiff-Appellee/Cross-Appellant, v. REPUBLIC AUTOMOTIVE PARTS, INC., Defendant-Appellant/Cross-Appellee.

Docket No. 147787.

Court of Appeals of Michigan.

Submitted March 23, 1995, at Detroit.

Decided May 30, 1995.

Approved for Publication August 17, 1995, at 9:00 a.m.

Released for Publication Oct. 10, 1995.

Stark & Gordon, P.C. by Deborah L. Gordon, Royal Oak (Bendure & Thomas by Mark R. Bendure, Detroit, of counsel), for plaintiff.

Vandeveer Garzia, P.C. by Robert D. Brignall, C.F. Boyle, Jr., and Hal O. Carroll, Detroit, for defendant.

Before CONNOR, P.J., and WAHLS and HOEKSTRA, JJ.

PER CURIAM.

In this wrongful discharge action, the jury found for plaintiff. He was awarded past damages of $262,413 and future damages of $692,603. Defendant appeals as of right from the final judgment. Plaintiff has also filed a cross appeal. We affirm the jury's verdict, but reverse the trial court's decision to grant defendant summary disposition of plaintiff's claim of age discrimination.

Defendant first claims error in the trial court's decision to deny its motion for judgment notwithstanding the verdict. We disagree. Plaintiff presented sufficient evidence, based upon a legitimate expectations theory, that he was subject to the policies expressed in defendant's employment policy manual and that the manual created an employment contract that was terminable for just cause only. There was evidence that the policy manual applied to all employees who received a wage or salary from defendant. Officers of the corporation were not excluded. Therefore, it was a jury question whether the policy manual applied to plaintiff and whether it created a legitimate expectation that the employer would discharge employees for just cause only. Rood v. General Dynamics Corp., 444 Mich. 107, 117-118, 140-141, 507 N.W.2d 591 (1993), Rice v. ISI Mfg., Inc., 207 Mich.App. 634, 636, 525 N.W.2d 533 (1994).

The policy manual also supported plaintiff's theory that, even if he was removed as an officer of the corporation, he had a legitimate expectation that he would be placed in another position in the company unless a position for which he was qualified was not available. It had been defendant's practice over the years when jobs were eliminated to permit displaced employees to accept new assignments within the corporation. Accordingly, even though his term as a corporate officer was subject to an annual vote by the board, his wrongful discharge action was adequately supported by the evidence and the trial court did not err in submitting his case to the jury. Rood, supra; Barnell v. Taubman Co., Inc., 203 Mich.App. 110, 116, 512 N.W.2d 13 (1993), lv. gtd. 447 Mich. 990, 527 N.W.2d 517 (1994).

Furthermore, we do not agree with defendant that plaintiff's employment involved nothing more than a satisfaction contract. Mitchell v. General Motors Acceptance Corp., 176 Mich.App. 23, 32, 439 N.W.2d 261 (1989). When the language of defendant's policy manual is read in a light most favorable to plaintiff, he had a reasonable, legitimate expectation that he would not have his employment terminated except for just cause. What constituted just cause was not left to defendant to decide. Compare Thomas v. John Deere Corp., 205 Mich.App. 91, 94-95, 517 N.W.2d 265 (1994).

Plaintiff was not required to produce evidence of mutual assent to have his case reach the jury. He premised his wrongful discharge action on a public policy theory rather than a contract theory. Rood, supra, pp. 117-119, 507 N.W.2d 591. Barnell, supra, pp. 116, 119, 512 N.W.2d 13.

The jury's verdict was not against the great weight of the evidence. Bosak v. Hutchinson, 422 Mich. 712, 737, 375 N.W.2d 333 (1985). First, as we have previously discussed, the jury could have found that plaintiff was entitled to continued employment even if defendant's new chief executive officer wanted to bring in his own people to serve as officers. Second, the jury could have found that defendant's reasons for terminating plaintiff's employment were a pretext. The decision was apparently made with little or no regard for plaintiff's demonstrably excellent record, and plaintiff testified that he was told that his performance was not a reason for his termination.

The trial court did not err in denying the motion for a new trial with regard to future damages. Plaintiff presented evidence that he mitigated his damages, but was not able to either find a comparable permanent position or earn the same pay when working as an independent financial consultant. Renny v. Port Huron Hosp., 427 Mich. 415, 438-439, 398 N.W.2d 327 (1986); Kocenda v. Archdiocese of Detroit, 204 Mich.App. 659, 665, 516 N.W.2d 132 (1994). It was also for the jury to decide if plaintiff was subsequently fired from another job for incompetence. The jury's award was supported by the evidence. Rice, supra, p. 638, 525 N.W.2d 533.

Testimony about possible bonuses or raises that plaintiff might have received in the future was not speculative and was properly admitted. The evidence was based upon defendant's past practices of awarding bonuses and merit increases. Moreover, plaintiff was also entitled to have the jury consider an award of future damages beyond one year. As discussed previously, the jury heard evidence that plaintiff could have reasonably expected to remain employed with defendant beyond one year even if he was removed from his position as a corporate officer. Rice, supra.

We also find no error with the jury instructions given in this case. First, no error can be predicated upon the Supreme Court's decision in Rowe v. Montgomery Ward & Co., Inc., 437 Mich. 627, 473 N.W.2d 268 (1991). That decision involves oral contracts for job security. Plaintiff's theory was primarily dependent upon the policy manual and defendant's practices. The instructions were consistent with substantial justice and do not warrant reversal. McLemore v. Detroit Receiving Hosp., 196 Mich.App. 391, 399, 493 N.W.2d 441 (1992).

The trial court instructed the jury consistent with SJI2d 110.05 and 110.07. Defendant has not delineated any error in regard to these instructions. Nor has defendant demonstrated why the court's decision not to give defendant's proposed instructions was error. Defendant has failed to provide this Court with a copy of the transcript of the closing arguments. Consequently, we are unable to determine that the standard jury instructions were inadequate to address the theories in this case. Admiral Ins. Co. v. Columbia Casualty Ins. Co., 194 Mich.App. 300, 305, 486 N.W.2d 351 (1992).

We find no error requiring reversal regarding the instructions addressing employment terminable at will and satisfaction contracts. Although the trial court relied upon a "reasonableness" standard for satisfaction contracts, when "good faith" is the test, the difference in these terms is insignificant and does not require reversal. Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 622-623, 292 N.W.2d 880 (1980); Schmand v. Jandorf, 175 Mich. 88, 95-96, 140 N.W. 996 (1913); McLemore, supra, pp. 400-401, 493 N.W.2d 441; SJI2d 110.11.

The verdict form used did not foreclose the jury from considering the defense theories that plaintiff's employment was at-will or pursuant to a satisfaction contract. The form was not intended to take the place of the jury instructions and it simply required the jury to indicate if plaintiff had met his burden.

The court properly refused to instruct regarding Delaware law because that subject was not raised until the parties were discussing the proposed jury instructions. Pursuant to M.C.L. § 600.2114a; MSA § 27A.2114(1), the trial court had the authority to refuse to instruct regarding Delaware law because reasonable notice was not provided to plaintiff. Furthermore, defendant's proposed instruction would have offered little help, if any, to the jury.

The trial court properly relied on SJI2d 53.03 to reduce the future damages to present value. This Court has applied SJI2d 53.03 to employment claims, including wrongful discharge actions. Howard v. Canteen Corp., 192 Mich.App. 427, 441, 481 N.W.2d 718 (1992); Goins v. Ford Motor Co., 131 Mich.App. 185, 201, 347 N.W.2d 184 (1983). The use of the five percent rate also did not deny defendant due process. Verbison v. Auto Club Ins. Ass'n, 201 Mich.App. 635, 638, 506 N.W.2d 920 (1993); Klco v. Dynamic Training Corp., 192 Mich.App. 39, 42, 480 N.W.2d 596 (1991).

Defendant contends that the trial court abused its discretion in various evidentiary rulings made. We review the trial court's decision to admit evidence for an abuse of discretion. Wolff v. Automobile Club of Michigan, 194 Mich.App. 6, 14, 486 N.W.2d 75 (1992).

Defendant first argues that the trial court erred in excluding evidence of its revised personnel manual. The manual was revised after plaintiff's employment was terminated. Nonetheless, defendant maintains that the evidence was relevant with regard to the issue of damages because, in light of the revised policies, plaintiff did not have a legitimate expectation of continued future employment. We disagree.

In order for an employer's unilateral policy changes to become legally effective, reasonable notice must be provided to the affected employees. In re Certified Question, 432 Mich. 438, 457, 443 N.W.2d 112 (1989). In this instance the employment relationship between the parties had terminated before the adoption of the revised manual. Therefore, plaintiff did not have notice of the change, nor did he accept the revised terms. Id., pp. 446-447, 450, 443 N.W.2d 112. Furthermore, there was no showing by defendant that the policy changes were made in good faith or were economically necessary. Cf. Neubacher v. Globe Furniture Rentals, Inc., 205 Mich.App. 418, 522 N.W.2d 335 (1994). The trial court did not abuse its discretion in refusing to admit this evidence. The evidence was not...