Havens v. C & D Plastics, Inc., No. 60597-1

• Court: United States State Supreme Court of Washington
• Writing for the Court: BRACHTENBACH; ANDERSEN
• Citation: 124 Wn.2d 158,876 P.2d 435
• Parties: , 130 Lab.Cas. P 57,892, 9 IER Cases 1045, 9 IER Cases 1430 LaMar D. HAVENS, Petitioner, v. C & D PLASTICS, INC., et al., Respondents.
• Decision Date: 23 June 1994
• Docket Number: No. 60597-1

Page 158

124 Wn.2d 158 876 P.2d 435, 130 Lab.Cas. P 57,892,
9 IER Cases 1045,
9 IER Cases 1430 LaMar D. HAVENS, Petitioner,
v.
C & D PLASTICS, INC., et al., Respondents. No. 60597-1. Supreme Court of Washington,
En Banc. June 23, 1994.
As Amended Aug. 22, 1994.

[876 P.2d 437]

Page 161

Christensen, O'Connor, Johnson & Kindness, F. Ross Boundy, McDonald & Quackenbush, Frances E. Pennell, Seattle, for petitioner.

Edwards, Sieh, Wiggins & Hathaway, P.S., Malcolm L. Edwards, Culp, Guterson & Grader, Bruce W. Hilyer, Seattle, David N. Mark, Seattle, for respondents.

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BRACHTENBACH, Justice.

Issues in this employment termination case include whether the jury should have been instructed about what constitutes just cause for firing a "high ranking" employee; whether the employee's diary entries are admissible as evidence of just cause for dismissal; whether there was sufficient evidence to support a claim based on promissory estoppel; and, whether the trial court improperly dismissed the employee's claims of wrongful discharge in violation of public policy and negligent misrepresentation. We conclude that the trial court did not err in refusing to give the jury instruction, that there is no reversible error resulting from the trial court's exclusion of the diary entries, and that there was insufficient evidence to support the promissory estoppel claim. We uphold the dismissal of the public policy wrongful discharge claim and the negligent misrepresentation[876 P.2d 438] claim. The Court of Appeals decision in this case is affirmed in part and reversed in part, and this matter is remanded for recalculation of Plaintiff's attorney fee award.

In October 1986, Plaintiff LaMar D. Havens was hired by Defendant C & D Plastics, Inc. (C & D) to set up and operate a Washington division of C & D Plastics, Northwest Composites, to manufacture parts for The Boeing Company (Boeing). Plaintiff's employment resulted from conversations and negotiations between Plaintiff and the owner and chief executive officer of C & D, James Downey, and the president of C & D, Joseph Moran. The meetings were informal. After he was hired under an oral employment agreement, Plaintiff sent a letter to C & D confirming his understanding that he was to receive $70,000 in salary plus a fixed first year bonus of $15,000, with future years' bonuses based upon company profits. Nothing in this letter referred to length of the employment relationship, nor was any mention made of any just cause requirement for discharge.

Plaintiff's responsibilities included selecting a site, purchasing equipment, and hiring and firing personnel. However, practically from the outset, the parties' relationship was marred by disagreement, with early disagreement

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about what kind of plant quality control manager was needed and how many quality control personnel were needed at the plant. Other disagreements arose. Plaintiff arranged to hire a friend as a maintenance man, at $32,000 a year. He believed he had authority to do so and thought the individual was experienced and qualified for the job. When owner-CEO Downey learned of the hiring, he informed Plaintiff that they paid such employees half that much in California. Downey was quite upset by the hiring, and in response Plaintiff reversed the hiring decision.

The question of the quality control manager position arose several times. The parties disagreed about what kind of person should be hired. Shortly before Plaintiff was fired, he declined to hire a C & D employee from California who traveled to Washington to interview for the position. Plaintiff said the California employee was not qualified for the position. President Moran had sent the employee to Washington, and he and Downey believed the man should have been hired.

Plaintiff wanted to hire an electrical contractor to install equipment at the plant. When he told Downey this, Downey told him that they never obtained electrical permits and that a C & D employee would install the equipment. In a similar vein, Plaintiff told Downey that Boeing should be notified of the new plant so it could inspect and certify the plant system before production began. Downey disagreed and told Plaintiff not to worry about it. Plaintiff did not pursue either of these matters further.

There was evidence that discussions between Plaintiff and Downey and Moran were far from cordial. For example, Moran testified that he and Plaintiff screamed at each other on one occasion. Plaintiff testified that Downey was loud and abusive.

During the course of his employment, Plaintiff kept a diary where he recorded events and expressions of his feelings about his employment with C & D and his relationships with Downey and Moran.

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On February 2, 1987, within 4 months of being hired, Plaintiff was fired. In the letter of termination, Moran said that "things have not been what we hoped for", that "the chemistry with us does not mix well at all", and that "the differences we feel are irreconcilable". Clerk's Papers, at 1049.

After giving notice of termination, C & D promised severance pay. Plaintiff sent a letter stating his understanding that C & D would pay severance pay for 6 months or until Plaintiff found alternative employment, whichever occurred first, and that C & D would continue to provide health insurance. In this letter, plaintiff made no claim for any additional money or benefits. Downey responded that severance pay would be paid for 3 months, with a possibility for additional severance pay if Plaintiff did not find a new job. When C & D was contacted by a lawyer whom Plaintiff had consulted, 6 weeks after he was discharged, C & D terminated the severance pay.

[876 P.2d 439] Plaintiff filed suit, alleging breach of contract, promissory estoppel, wrongful discharge in violation of public policy, negligent misrepresentation, age discrimination, defamation, and violation of the Consumer Protection Act (CPA). Before trial, Plaintiff voluntarily dismissed the defamation and CPA claims, and the trial court dismissed the wrongful discharge claim. At the end of Plaintiff's case, the court dismissed the negligent misrepresentation claim.

At the close of trial, the trial court instructed the jury on just cause for dismissal, but refused to give an instruction proposed by the defense on just cause where a "high-ranking" employee is involved.

The jury returned a special verdict awarding Plaintiff $65,901 for breach of a yearly employment contract (thus indicating a determination of a 1-year implied contract), $26,900 for breach of the severance pay agreement, and $363,958 on the promissory estoppel claim (this amount represents lost wages to the time of trial, ex. 25). The trial court "merged" the contract damage award into the promissory estoppel award, on the basis that Plaintiff would otherwise obtain a double recovery. The court awarded prejudgment

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interest and attorney fees and costs to Plaintiff. The court denied a defense motion for a judgment n.o.v. on the promissory estoppel claim.

C & D and Downey (hereafter collectively Defendants) ¹ appealed. The Court of Appeals reversed as to promissory estoppel, held that retrial was required on the implied contract claim, and affirmed dismissal of the wrongful discharge and negligent misrepresentation claims.

Plaintiff's petition for review was granted.

Jury Instruction

The trial court refused to give Defendants' proposed jury instruction 16, which concerned what constitutes "good cause" or "just cause" for terminating a "high ranking" employee. Defendants appealed, arguing the failure to give the instruction was reversible error because the jury was without guidance as to what constitutes just cause for discharging such an employee. The Court of Appeals agreed, holding that the instruction is necessary to permit Defendants to adequately argue that just cause existed for Plaintiff's termination. The court said that Defendants are entitled to an instruction in substantially the language they requested. We disagree.

The number and specific language of jury instructions is a matter within the trial court's discretion. Douglas v. Freeman, 117 Wash.2d 242, 256, 814 P.2d 1160 (1991). Instructions are sufficient which permit a party to argue that party's theory of the case, are not misleading, and when read as a whole properly inform the trier of fact on the applicable law. Douglas, 117 Wash.2d at 256-57, 814 P.2d 1160. If these requirements are met, it is not error to refuse to give a detailed augmenting instruction. Crossen v. Skagit Cy., 100 Wash.2d 355, 360, 669 P.2d 1244 (1983). Similarly, "[i]t is not error to refuse to give a cumulative instruction or one collateral to or repetitious of

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instructions already given." State v. Benn, 120 Wash.2d 631, 655, 845 P.2d 289, cert. denied, --- U.S. ----, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993).

Jury instruction 18 defined just cause as follows:

Just cause, or good cause, for the purposes of these instructions, is defined as a fair and honest reason for dismissal, exercised in good faith on the part of the party exercising the power. A discharge for just or good cause is one that is based on facts that (1) are supported by substantial evidence; (2) are reasonably believed by the employer to be true; and (3) are not for any arbitrary or capricious or illegal reason.

Clerk's Papers, at 570.

This unchallenged instruction accords with the definition approved in Baldwin v. Sisters [876 P.2d 440] of Providence in Wash., Inc., 112 Wash.2d 127, 769 P.2d 298 (1989).

Defendants' proposed instruction 16 states:

In deciding whether C & D had "good cause" or "just cause" to terminate the plaintiff, substantial weight must be given to managerial discretion. In determining what is "good cause" or "just cause" to support termination of a high-ranking employee, an employer is entitled to consider such intangible attributes as personality, initiative, ability to...