Jensen v. Fremont Motors Cody, Inc.

• Citation: 58 P.3d 322,2002 WY 173
• Decision Date: 27 November 2002
• Docket Number: No. 01-211., No. 01-210
• Parties: Thomas JENSEN, Appellant (Defendant), v. FREMONT MOTORS CODY, INC., a Wyoming corporation, Appellee (Plaintiff). Fremont Motors Cody, Inc. a Wyoming corporation, Appellant (Plaintiff), v. Thomas Jensen, Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

58 P.3d 322

2002 WY 173

Thomas JENSEN, Appellant (Defendant), v. FREMONT MOTORS CODY, INC., a Wyoming corporation, Appellee (Plaintiff).

Fremont Motors Cody, Inc. a Wyoming corporation, Appellant (Plaintiff), v. Thomas Jensen, Appellee (Defendant).

Nos. 01-210, 01-211.

Supreme Court of Wyoming.

November 27, 2002.

Daniel M. Fowler of Fowler Schimberg & Flanagan, P.C., Denver, CO, Representing Thomas Jensen.

S. Joseph Darrah of Darrah & Darrah, P.C., Powell, WY; and Timothy H. Scott of Fisher & Phillips, New Orleans, LA, Representing Fremont Motors Cody, Inc.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] Thomas Jensen (Jensen) appeals the district court's denial of his request for attorney fees, interest, and costs pursuant to Wyo. Stat. Ann. § 27-4-104 (LexisNexis 2001). Specifically, Jensen contends that the damages awarded to him at trial under his breach of employment contract counterclaim against his former employer Fremont Motors Cody, Inc. (Fremont) are wages and, as such, the district court was required to award him attorney fees, interest, and costs. Fremont cross-appeals the district court's denial of its motions for judgment as a matter of law and its combined motion for a new trial based on the contention that Jensen's conduct clearly showed that he waived any breach of contract. Further, Fremont asserts that the district court's jury instruction pertaining to waiver misled and confused the jury.

[¶ 2] We affirm.

ISSUES

[¶ 3] Collectively, the parties present five issues on appeal:

I. Whether the district court erred in denying Fremont's motions for judgment as a matter of law and combined motion for a new trial based on the issue of waiver.

II. Whether the district court erred in failing to give the jury Fremont's proposed instruction pertaining to contract waiver, and giving the jury a modified waiver instruction.

III. Whether the district court erred as a matter of law in refusing to allow the statutory remedies without a breakdown between Jensen's wage claim and non-wage claims.

IV. Whether the district court erred as a matter of law in refusing to allow the statutory remedies because it deemed Jensen's damages to be unliquidated.

V. Whether the district court erred as a matter of law by refusing to award "all costs of suit."

FACTS

[¶ 4] Jensen and John Owen (Owen) met in 1984 while both worked at Greiner Ford in Casper. The two became good friends and remained so for many years. Jensen was an outstanding salesman at Greiner Ford selling three times the amount of an average salesman. In 1992, Owen and his two partners, Chuck and Jim Guschewsky, purchased Fremont. Owen left Greiner Ford upon the purchase of Fremont and moved to Cody. At this time, because Jensen was such an outstanding salesman, Owen offered Jensen a job as a salesman at Fremont. Jensen did not accept Owen's offer of employment. Rather, Jensen left Greiner Ford accepting employment in Denver. Nevertheless, Owen was not deterred by Jensen's rejection and extended a standing offer to Jensen for employment with Fremont.

[¶ 5] Subsequently, Jensen and Owen remained close friends keeping in contact with each other. In the numerous visits and conversations that the two had, Owen repeatedly offered Jensen employment as a salesman, which Jensen rejected for various reasons. However, in January of 1995, Jensen and Owen began to have serious discussions about Jensen coming to work at Fremont. On February 28, 1995, Owen wrote a letter for Jensen to present to banks in order to secure financing on a house. The letter, in relevant part, stated: "This is to advise you that Tom Jensen's employment at Fremont Motors Company in Cody, WY in a sales position will be commission and partial guarantee. In the event that his commissions fall short of $8,000 per month, Fremont Motor Company will make up the difference. Fremont Motors will also pay for his move." No other documentation of this agreement exists, or, if it does exist, it was not presented at trial.² Jensen began his employment as a sales manager on April 4, 1995.

[¶ 6] Jensen worked as the sales manager of Fremont for approximately 28 months, officially resigning on July 13, 1997. During his employment, Jensen was paid in varying amounts every month. Only on six occasions did Jensen's monthly salary meet or exceed $8,000. Jensen never complained about repeatedly being shorted to the other partner of Fremont, Chuck Guschewsky, or to Jeanne Orkney, the company's comptroller. Jensen claimed that he did complain to Owen and that Owen repeatedly told him to "hang tough with me" and things would get better. Owen denies that such conversations ever took place.

[¶ 7] Jensen, like many other Fremont employees, was given what the parties referred to as an accounts receivable account (A/R account). This arrangement allowed Jensen to make personal charges with businesses around Cody on accounts, which listed Fremont as the debtor. Fremont would pay these charges and then deduct the amount from Jensen's paycheck at the end of the month. When Jensen received his paychecks, a sheet would be attached to the paycheck which itemized the charges attributed to his A/R account. Also attached to the check was a statement of how Jensen's salary was calculated that period based on each vehicle sold, the profit on each vehicle, and his 6% commission for the vehicle. Jensen detached and discarded these statements.

[¶ 8] Over the term of his employment, Jensen's relationship with Owen deteriorated, eventually resulting in Jensen's resignation on July 13, 1997. A balance of $4,883.18 remained on Jensen's A/R account when he departed. As Fremont and its accountant were going over the company's books at year end, they discovered that Jensen's A/R account was still in existence. Chuck Guschewsky contacted Jensen at that time to determine if Jensen intended to pay off the account. Jensen assured him that he would pay what he owed and requested backup documentation. However, Jensen never made any payment to Fremont. On April 21, 1998, Fremont filed an action against Jensen in Park County Court for the collection of the A/R account. Jensen then filed a counterclaim asserting that he was entitled to additional wages based on the $8,000 guarantee and other contract damages. Jensen further claimed that should he prevail in showing wages justly due, he would be entitled to interest at the rate of eighteen percent (18%) per annum from the date of termination, reasonable attorney fees, and all costs of suit pursuant to Wyo. Stat. Ann. § 27-4-104.

[¶ 9] At the time of trial, Fremont claimed $4,857.09 was owed on Jensen's A/R account. Jensen claimed $66,155.16 in damages including wages, moving expenses, and losses on the sale of various homes. After a five-day trial, the jury found that Jensen owed $2,912.77 on his A/R account. Additionally, the jury found that Jensen had a contract with Fremont guaranteeing him $8,000 a month, that Fremont breached that contract, and that Jensen was entitled to damages in the amount of $20,496. Because Jensen was awarded damages on his breach of employment contract counterclaim, Jensen made a motion for the award of attorney fees, interest, and costs. The district court denied this motion after a brief hearing. This appeal followed.

[¶ 10] In addition, Fremont cross-appeals denial of its motions for judgment as a matter of law based on waiver of contract issues. Fremont made two motions for judgment as a matter of law during the course of the proceedings. The first came at the close of Fremont's case in chief. The second motion occurred at the end of the proceedings. This second motion was for judgment as a matter of law or in the alternative for a new trial. The second motion asserted that Jensen failed to present sufficient evidence to create a triable jury issue, that Jensen waived any right he had to receive a minimum of $8,000 per month, and that the jury's verdict was against the weight of evidence. These motions were denied by the district court.

STANDARD OF REVIEW

[¶ 11] Our standard of review related to judgment as a matter of law is well known and well stated in John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1356 (Wyo.1998) (citations omitted):

Our standard of review is the same whether it arises in the procedural context of a motion for judgment as a matter of law prior to the submission of the case to the jury (formerly, a motion for a directed verdict) or in the context of a renewed motion for judgment as a matter of law after the jury has returned a verdict (formerly, a motion for judgment notwithstanding the verdict). We undertake a full review of the record without deference to the views of the trial court. The test to be applied is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. We view the evidence in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences that may be drawn from the evidence. When the facts permit the drawing of more than one inference, it is for the jury to choose which will be utilized. Since a judgment as a matter of law deprives the party opposing the motion of a determination of the facts by a jury, it should be cautiously and sparingly granted.

Further, in Poletis our standard of review for a motion for a new trial on the ground that the verdict is against the weight of the evidence was set forth. "In contrast, a trial court is vested with broad discretion when ruling on a motion for new trial, and we will not overturn the court's decision except for an abuse of that discretion." Poletis, 954 P.2d at 1357.

[¶ 12] The standard of review that we utilize for alleged jury instruction error is:

In considering the validity of instructions to a jury, we must

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