Howard University v. Best, 86-1062.

• Decision Date: 22 August 1988
• Docket Number: No. 86-1062.,86-1062.
• Citation: 547 A.2d 144
• Parties: HOWARD UNIVERSITY, et al., Appellants, v. Marie L. BEST, Appellee.
• Court: D.C. Court of Appeals

547 A.2d 144

HOWARD UNIVERSITY, et al., Appellants, v. Marie L. BEST, Appellee.

No. 86-1062.

District of Columbia Court of Appeals.

Argued April 26, 1988.

Decided August 22, 1988.

COPYRIGHT MATERIAL OMITTED

Nolan Atkinson argued the case for appellants. Richard P. Thornell and Francis S. Smith, Washington, D.C., were on the brief, for appellants.

John M. Clifford, with whom Stephen A. Trimble, `Washington, D.C., was on the brief, for appellee.

Before TERRY, ROGERS and STEADMAN, Associate Judges.

ROGERS, Associate Judge:

This is the second appeal arising out of the employment contract of appellee Dr. Marie L. Best with appellant Howard University. In our prior opinion, we remanded the case to the Superior Court for retrial of Dr. Best's claims of indefinite tenure, sex discrimination, and intentional infliction of emotional distress. We affirmed the trial court's directed verdict in favor of Dr. Best, holding that the University had breached its contract with her by failing to provide timely notice of nonrenewal, but we remanded for findings on the proper remedy for late notice. We also remanded the case for trial on Dr. Best's claim of indefinite tenure based on the Faculty Handbook provision for indefinite tenure upon reappointment after a "previous appointment," the trial court having dismissed this tenure claim without prejudice. Howard University v. Best, 484 A.2d 958, 990 (D.C.1984) (Best I). Following a retrial, the jury found in favor of Dr. Best on her claim of indefinite tenure based on a "previous appointment," and, alternatively, found that she was entitled to reappointment for three years without indefinite tenure as a result of the University's failure to give her the required one-year notice of non-renewal of her previous three-year appointment. The jury awarded her damages of one million dollars on the indefinite tenure claim and $155,000 on its alternative finding of a three-year reappointment without indefinite tenure. A judgment was entered for Dr. Best awarding her one million dollars plus interest and costs.

On appeal the University contends principally that, as a matter of law, Dr. Best failed to present sufficient evidence of the University's custom and practice regarding the granting of indefinite tenure by reappointment after a "previous appointment." The University also contends that there was no evidence to support the jury's finding that Dr. Best was entitled to a three year appointment as a result of its late notice breach of her contract; at most, the University maintains, she was entitled to a statement of reasons for her non-renewal and to damages measured by the lateness of the notice, i.e., six months pay.¹ We hold that Dr. Best failed to present sufficient evidence of the University's custom and practice regarding a "previous appointment" and, therefore, reverse the judgment based on a finding that she was entitled to indefinite tenure as of July 1, 1976. We further hold that there was sufficient evidence from which the jury could find that Dr. Best had a reasonable expectation of a reappointment for three years without indefinite tenure upon receiving late notice of the nonrenewal of her three year probationary appointment, and, accordingly, affirm the judgment based on the alternative finding.

I.

A complete recitation of Dr. Best's negotiations and employment with the University, as well as the events giving rise to this lawsuit, appears in Best I, supra, 484 A.2d at 965-66. Before considering the University's contentions, we address the threshold issue raised by Dr. Best of whether the University preserved its right to appeal the verdict in her favor based on her "previous appointment" theory of entitlement to indefinite tenure. We also review the holding in Best I on what Dr. Best was required to prove with regard to the University's custom and practice. Thereafter, in Parts II and III, we address the University's contentions on appeal.

A.

Dr. Best contends that the University was not entitled to move for judgment notwithstanding the verdict on the grounds of insufficiency of the evidence on the previous appointment theory because the University had failed to move for a directed verdict on this issue at the close of all the evidence. Although the University did move for a directed verdict at the close of all the evidence, Dr. Best argues that the University is precluded from raising this theory on appeal because Super.Ct.Civ.R. 50(b) requires that in order to move for judgment notwithstanding the verdict, a party must first move for a directed verdict on "the precise claim made in the motion for judgment n.o.v. . . . ." U.S. Industries, Inc. v. Blake Construction Co., 217 U.S. App.D.C. 33, 42, 671 F.2d 539, 548 (1982).

Super.Ct.Civ.R. 50(a) provides that "[a] motion for directed verdict shall state the specific grounds therefor." If such motion is denied, a party is then entitled to move within ten days of the judgment "to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict." Super.Ct.Civ.R. 50(b) (emphasis added). Therefore, the failure to include a particular ground in a motion for directed verdict will bar the consideration of this ground in a subsequent motion for judgment notwithstanding the verdict. Seven Provinces Ins. Co. v. Commerce & Indus. Ins. Co., 65 F.R.D. 674, 686 (W.D. Mo.1975). Dr. Best contends that the University requested a directed verdict on the late notice theory but failed to make a like motion with respect to the previous appointment theory and that it has therefore waived its right to object to the sufficiency of her evidence.

"[T]his court has placed a literal construction on the wording of Rule 50(b)." Gleason v. L. Frank Co., 328 A.2d 96, 98 (D.C.1974). The failure to move for a directed verdict "`precludes a party from questioning on appeal the sufficiency of the evidence.'" District of Columbia v. Hickey, 150 A.2d 463, 465 (D.C.1959) (quoting Krupsaw v. W.T. Cowan, Inc., 61 A.2d 624, 626 (D.C.1948)). However, we have not yet determined how specific a motion for directed verdict must be in order to preserve the issue for a motion for judgment notwithstanding the verdict and for appeal.

There are two purposes behind the requirement in Rule 50(b) that a party moving for judgment notwithstanding the verdict first move for a directed verdict. The first purpose is to preserve the sufficiency of the evidence as a question of law. Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1428 (9th Cir.1986). A subsequent motion for judgment notwithstanding the verdict allows the trial court to review, as a matter of law, its decision not to direct a verdict rather than by engaging in a reexamination of the facts found by the jury. Id. at 1428-29. The second purpose behind the requirement is to call the attention of the opposing party to the alleged deficiency in the evidence at a point in the trial where that party may cure the defect by presentation of further evidence. Id. at 1429; Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1346 (9th Cir.1985); Wall v. United States, 592 F.2d 154, 160 (3d Cir.1979); Walden v. United States Steel Corp., 567 F.Supp. 1443, 1446 (N.D.Ala.1983), affd in part, 759 F.2d 834 (11th Cir.1985).

In the instant case, counsel for the University moved for a directed verdict at the close of all the evidence, stating:

Finally, Your Honor, with respect to the alleged breach of contract claim, here I think now at the close of all the evidence especially the university's evidence going to custom and usage, I think it is clear that it does not present a jury issue that Dr. Best's timely notice of nonrenewal did not entitle her to an automatic reappointment which would give her tenure. I think that the plaintiff has failed to show any contrary custom and usage. The few incidents submitted by the plaintiff in support of her case were sufficiently explained by the university's witness and by the testimony going to custom and usage.

We would submit, Your Honor, that the plaintiff has failed to show that she would be entitled to any tenure by virtue of that late notice of nonrenewal and similarly she would not have tenure by virtue of reliance on Dean Robinson's representations which she says she relied upon. [Emphasis added]

We hold that the University's motion was sufficient to put Dr. Best on notice of the alleged deficiency in her proof. In moving for a directed verdict, "technical precision" is not required. Cortez v. Life Ins. Co. of North America, 408 F.2d 500, 503-04 & n. 3 (8th Cir.1969); 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2533, at 580 (1971). Counsel for the University stated that he was moving for a directed verdict because Dr. Best had failed to offer sufficient proof of custom and practice which would show that she was entitled to indefinite tenure by virtue of reliance on Dean Robinson's representations. Dr. Best relied on her negotiations with Dr. Robinson as part of the extrinsic evidence she presented in support of her claim of tenure based on a "previous appointment"; that evidence was irrelevant, and Dr. Best did not purport to rely on it, to prove her claim to tenure by reason of late notice of non-renewal. Thus, although counsel for the University might have elaborated more on this point, we are satisfied that his motion was sufficient to preserve the issue of the sufficiency of Dr. Best's evidence of custom and practice on the previous appointment theory.

B.

In the trial court, Dr. Best presented two alternative theories in support of her claim that she was entitled to indefinite tenure with the University. Under her first theory, Dr. Best asserted that by the terms of the Howard University Faculty Handbook Section III(C)(3)(c),² she received indefinite tenure on July 1, 1976, because she had held a "previous appointment" at the University, and that, therefore, upon...