Katch v. Speidel, Div. of Textron, Inc., 83-1008

• Decision Date: 17 October 1984
• Docket Number: No. 83-1008,83-1008
• Parties: Margaret P. KATCH, as Independent Personal Representative of the Estate of Richard P. Katch, Deceased, Plaintiff-Appellee, v. SPEIDEL, DIVISION OF TEXTRON, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1136

746 F.2d 1136

40 Fed.R.Serv.2d 368

Margaret P. KATCH, as Independent Personal Representative of

the Estate of Richard P. Katch, Deceased, Plaintiff-Appellee, v. SPEIDEL, DIVISION OF TEXTRON, INC., Defendant-Appellant.

No. 83-1008.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 16, 1984.

Decided Oct. 17, 1984.

Eugene Driker (argued), Barris, Sott, Denn & Driker, Barbara Harvey, Detroit, Mich., Jack D. Radcliffe, Jr., Dykema, Gossett, Spencer, Goodnow & Trigg, Jackson, Mich., for defendant-appellant.

John W. Mason, Dearborn, Mich., Mark W. McInerney (argued), Phillip E. Chaffee, Fischer, Franklin, Ford, Simon & Hogg, Detroit, Mich., for plaintiff-appellee.

Before JONES and WELLFORD, Circuit Judges, and UNTHANK, District Judge. ^*

WELLFORD, Circuit Judge.

This is a diversity action brought by Richard P. Katch ("Katch") against his former employer, Speidel Division of Textron, Inc. ("Speidel"), arising from Speidel's termination of Katch's employment in May, 1980. Katch claimed that Speidel, by its written personnel policies and by various oral statements to him, had created and then breached a number of contractual obligations to him, most important of which was the obligation not to discharge him without just cause. Speidel denied these claims, and now seeks review of an adverse jury verdict in the amount of $1,534,000 as damages for breach of contract, which was reduced, by means of remittitur, to $1,190,789 by the trial court.

Katch was a longtime employee of a Speidel distributor, with background in sales and management. While serving as operations manager of a distributorship in Michigan, he was approached by Speidel's then vice-president of Marketing and Sales, Mr. Keller, concerning Katch's becoming general manager of a Speidel distributorship in Cincinnati. After a series of discussions with Keller, plaintiff took the job and moved his family to Ohio, assuming his duties on August 1, 1978.

It soon became apparent that Speidel would not expand the Ohio operations to the extent originally planned. Talk centered on merging the Cincinnati operations with the Detroit operations of defendant company. Katch agreed that this would be a wise move, and he testified that Keller, who did not have the ultimate authority, allegedly promised plaintiff that he would be, in due course, named general manager of the consolidated operations at Detroit. Based on this discussion with Keller, Katch signed a purchase agreement to have a home constructed in the Detroit area. Despite the fact that changes had not yet taken place as contemplated, Katch moved his family to Detroit so that his children could begin the school year there. He continued to work in Cincinnati, however, and commuted to Detroit on the weekends.

The warehousing and distribution functions of the Ohio and Michigan operations were finally consolidated in December of 1979; Katch was told by Speidel's president, Mr. Massotti, to locate a sales office in Cincinnati, not in Detroit as expected by Katch, who thereafter obtained a Cincinnati sales office in late January of 1980. A short time later, Massotti telephoned Katch and told him that he would be remaining in Cincinnati. By this time, however, plaintiff was in possession of a revised budget forecast indicating that the Cincinnati sales office might not exist past July of 1980. He then requested a meeting with Massotti to discuss his situation, and they met in mid-February of 1980. They agreed that plaintiff would work out of Detroit on Mondays and Fridays and out of Cincinnati on Tuesdays, Wednesdays and Thursdays.

During the next weeks, Katch was requested, but refused, to sign several documents which were entitled "employment agreements," but which would more accurately be labelled "termination agreements."

In mid-April, the position of general manager of Speidel's consolidated Detroit operations became open. Katch was not considered for the position, which was awarded to Lee Hill, whose overall job performance ranking and seniority was lower than plaintiff's. Hill, however, did have a better knowledge of some of the larger accounts served by the consolidated operation. On May 2, Katch was informed that he was being terminated as of one week later. At trial, Katch testified that his salary at the time of termination was $36,300. Based upon his experiences with Speidel, Katch testified that he would have expected to receive annual merit raises of 6.4% and an annual bonus of 21% of his salary, had he continued with Speidel until age 65. He also testified that he expected to receive an annual pension of $41,862.24, based upon his anticipated salary and bonus increments, at age 65. Unfortunately, prior to hearing argument on appeal, we were advised that Katch had unexpectedly died and his wife as his representative is now acting as plaintiff-appellee.

The summary of facts as related essentially set out Katch's position, although Speidel took issue with some of the material facts stated, particularly Katch's assertion that Speidel had any policy that it would not discharge except for just cause. It took the position at trial that Katch's position was eliminated and that he was laid off in the reorganization of the Cincinnati and Detroit operations, and that Speidel was not precluded lawfully from terminating him for that reason regardless of any alleged "good cause" policy.

Speidel submitted a number of detailed proposed instructions in this case prior to the submission to the jury. In dealing with the issue of mitigation, the trial judge rejected Speidel's requested instructions and gave instead his own instruction, over Speidel's objection. The court's instruction on the duty to mitigate was:

The plaintiff has a duty to mitigate past and future damages. That means that the plaintiff has had and will in the future have a duty to make a good faith attempt to secure employment of the same or similar nature. ¹ Your findings with respect to past and future damages should take this duty into consideration.

The judge's refusal to give defendant's requested instruction on mitigation was that he considered it to be "too complex." But in streamlining and simplifying, the judge omitted entirely a critically important element of any instruction on mitigation: the requirement that monies earned in mitigation must be deducted from damages. Defendant's requested instruction on mitigation was as follows The proper method of computing these future damages is "(1) on the basis of past experience, project the anticipated level of compensation for similarly situated positions at Speidel Corporation for each of the years until the date on which Plaintiff would have retired had he been allowed to continue his employment relationship at Speidel; (2) on the basis of past experience, project the anticipated earnings of Plaintiff premised upon good-faith attempts on Plaintiff's part to secure employment at the same or similar nature; (3) subtract the anticipated compensation of Plaintiff for each of the years from the anticipated salary he would have received at Speidel in the corresponding years; (4) reduce the difference for each year to its worth as of the date of the filing of the complaint; and (5) take the sum of these properly mitigated and reduced figures." (Defendant's Closing Requests to Charge No. 58.)

The colloquy between the court and Speidel's counsel concerning the submission of instructions is as follows:

THE COURT: I have read every one of your instructions and I think they are far too complex and I have decided to give it the way I have read it. All your requests have been noted.

MR. RADCLIFFE: The requests are maintained.

THE COURT: They will be filed.

MR. RADCLIFFE: --for purposes of objection.

Federal Rules of Civil Procedure 51 sets out the standard to be applied:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

While Speidel's counsel was not "distinct" in his objection to the court's instruction on mitigation of damages, we believe that the objection was sufficiently preserved on the record for appellant to assign as error the failure to give the requested instruction, and/or to be heard on appeal that the instruction given was erroneous. Rule 51 is not always strictly enforced according to the letter of the Rule. For instance, oral, rather than written, requests have been found sufficient to inform the court of the point of law involved. Weathersby v. Gore, 556 F.2d 1247, 1255-56 (5th Cir.1977); Dunn v. United States, 318 F.2d 89, 93 (5th Cir.1963). See also, Rodgers v. Fisher Body Division, 739 F.2d 1102 (6th Cir.1984).

Even if an incorrect proposed instruction is submitted which raises an important issue of law involved in light of proof adduced in the case, it becomes the duty of the trial court to frame a proper instruction on the issue raised, and the court's instruction may then be considered on appeal. Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176 (7th Cir.1970); Messer v. L.B. Foster Co., 254 F.2d 412, 414 (5th Cir.1958); Westchester Fire Ins. Co. v. Hanley, 284 F.2d 409, 418 (6th Cir.1960).

The judge generally has a duty to frame a requested instruction properly and to submit it to the jury where the legal principle is necessary to the proper determination of the case.

Jones...