NL Industries, Inc. v. Dill

• Decision Date: 01 March 1989
• Docket Number: No. 88-16,88-16
• Citation: 769 P.2d 920
• Parties: 29 Wage & Hour Cas. (BNA) 310 NL INDUSTRIES, INC., Appellant (Defendant), v. Joe E. DILL, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 920

769 P.2d 920

29 Wage & Hour Cas. (BNA) 310

NL INDUSTRIES, INC., Appellant (Defendant), v. Joe E. DILL, Appellee (Plaintiff).

No. 88-16.

Supreme Court of Wyoming.

March 1, 1989.

Kathleen Audette Rideout, Casper and William Bruce Thompson and Michael S. Smith of Shaw, Spangler & Roth, Denver, Colo., for appellant.

Donald L. Painter, Casper, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice.

Wyoming oil industry retrenchment produced this litigation over employee relocation benefits claimed after subsequent termination. The employee succeeded in the trial court and will again on appeal as presenting contest of the awarded benefits and resulting statutory attorney's fees except for Texas litigative costs.

The relocation reimbursement expense awarded was $13,050.96 for residence sales costs and attorney's fees of $1,769.38 for Wyoming counsel in the present proceedings and attorney's fees of $1,308.50 expended by a Texas attorney to defend an earlier suit brought by NL Industries, Inc. (NL Industries). This claim originally resulted when the employee, Joe E. Dill (Dill) was transferred from Casper to Powell, Wyoming by his employer, NL Industries. Following transfer and management of the Powell facility from June 1985 through August 1986, Dill was discharged as part of an apparent company retrenchment program. Upon notice of discharge, he submitted a relocation claim for his move to Powell for $13,523.96, which centers the litigative activities that followed. We are presented with a sufficiency of the evidence question involving rejection of the relocation benefit and a legal argument whether those expenses are within the character of employment benefits for which attorney's fees are collectible upon non-payment under W.S. 27-4-104(b). ¹

This court is provided a simplified evidentiary inquiry since a transcript of trial evidence was not secured and the statement of the record under W.R.A.P. 4.03 was accomplished by trial court adoption of the Dill proposal as successful litigant. Consequently, there are no "evidentiary conflicts" and this leaves only a construction of the detailed events for present appellate review. Feaster v. Feaster, 721 P.2d 1095 (Wyo.1986). Furthermore, we are not presented with a situation within this appeal to either deny the existence of NL Industries' policy covering an established relocation benefit or to contest the amount initially claimed except as the figure was estimated at termination and then not totally incurred.

The case does present the inquiry confined within the facts and circumstances found to exist, whether the benefit was due to the ex-employee and, if so, were attorney's fees statutorily justified for the collection litigation. NL Industries objects to payment since Dill had not sold his Casper home which was the subject of the relocation benefit by the time his employment was terminated. It is argued that since Dill at the time he incurred the residence sale expense was not an employee of NL Industries, he is not entitled to reimbursement from NL Industries.

Three unquestioned facts are injected into this denial argument. First, following divorce preceding his move to Powell, Dill had an obligation under the divorce decree to sell the Casper house without regard for later transfer. Consequently, it is argued that no damage resulted since the transfer did not cause the residence to be sold. Second, the house was occupied on occasion while Dill was living in Powell by members of his family, disproving damage. Third, after termination, he returned to Casper to sell the house, which is exactly what he had attempted to do before transfer. At that time, he was no longer an employee and his rights, if any, had ended with discharge.

Certain established facts from the settled record are directed to these payment defenses. In 1975, Dill had been employed by NL Industries from out-of-state and was paid moving expenses to Powell. Thereafter, when transferred to Casper, the relocation expenses were again paid. In 1985, while considering a favorable early retirement opportunity, a store manager vacancy in Powell developed after the unexpected death of the existing manager. After initial acceptance of the retirement package on May 23, 1985, Dill was later transferred to Powell to fill the vacancy. When Dill was in Powell, he had to rent an apartment and submitted none of this expense as part of his relocation claim to NL Industries.

Singularly significant within trial court analysis and for our resolution is Exhibit 23, dated December 31, 1985, the written memorandum from a company supervisor to the central office referencing Joe Dill--relocation, which stated:

As a reminder, Joe Dill, was promised full relocation benefits whenever he disposes of the Casper home, per NL Relocation Policy of June, 1984. This is in connection with Joe's transfer to Powell as District Manager.

The authenticity or the authority of the memorandum was not questioned by either record or answered inquiry at oral argument.

When sufficiency of the evidence is questioned, we analyze the facts giving due preference to the trial court.

Our rule is that where the sufficiency of evidence is an issue we uphold the judgment if there is evidence to support it, and in so doing we look only to the evidence submitted by the prevailing party and give to it every favorable inference which may be drawn therefrom, without considering any contrary evidence.

Hance v. Straatsma, 721 P.2d 575, 578 (Wyo.1986). See also Ruby Drilling Co., Inc. v. Title Guar. Co. of Wyoming, Inc., 750 P.2d 674 (Wyo.1988); Eddy v. First Wyoming Bank, N.A.-Lander, 750 P.2d 294 (Wyo.1988); and Scott v. Fagan, 684 P.2d 805, 809 (Wyo.1984).

The documentary evidence including the Exhibit 23 memorandum is sufficient to support the trial court's decision that the claimed benefits were promised to Dill in conjunction with his move to Powell and were not thereafter subject to revocation by his unexpected employment termination. Dill's rejection of early retirement was clearly premised upon continued managerial employment in Powell which was the basis for his move. Maintenance of a house in Casper and an apartment in Powell carried significant additional expenses. Furthermore, nothing extrapolated from intent to sell before moving or actual sale after termination to constitute a justified basis for NL Industries to withdraw the agreed benefits.

As the trial court accurately found in decision letter:

The plaintiff worked in Powell, Wyoming for an extended period of time and then was transferred to Casper, Wyoming. On March 27, 1985 the defendant sent notice [to] the plaintiff and all other employees similarly situated offering early retirement under certain specified conditions. The memorandum required acceptance prior to June 15, 1985. The plaintiff met the requirements and on May 23, 1985, submitted his application for retirement. However, prior to the acceptance by the company a position in Powell[,] Wyoming was offered to plaintiff, which he accepted. At that time the plaintiff withdrew his application for early retirement.

As a result of the above referenced job acceptance, the plaintiff was relocated in Powell.

On September 5, 1985, the company again offered early retirement to the plaintiff and all other employees similarly situated. This offer resembled the earlier proposal except that it required acceptance by October 31, 1985. The plaintiff also rejected that proposal.

In late 1986, the defendant was involuntarily terminated as an employee of defendant company.

DECISION. According to the evidence the plaintiff advanced to a grade 10 under the defendant's salary grade scale. On September 1, 1980 the company adopted and published a procedure entitled "Employee Relocation Assistance" and on May 15, 1984 it adopted an amendment to that procedure to cover grade 9 employees and above. The plaintiff claims that he is entitled to the full benefit of the employee relocation assistance plan and in that respect sues for $13,050.96.

The defendant denies liability for the payment of the claimed expenses for the reason that the president had never intended to pay anything beyond a minimal amount for relocation, however, there was nothing in the evidence to illustrate that that intent had ever been conveyed to the plaintiff. The company also asserts that the move was granted to the employee at his request, and for the further reason that plaintiff's residential property had been put on the market prior to the move and was actually sold after the move.

The Court finds that the expenses claimed were in fact expended by the plaintiff; that such expenses fall within the scope of the relocation policy; and that the move to Powell was at the instance of the company. It is true that the property was listed for sale prior to the move but had not been sold at the time of the move. There is little doubt but what the move increased the need for the sale of the residence particularly in view of the fact that living quarters had to be rented to provide housing for the plaintiff in Powell. The Court also finds that the company, through the supervisor L.A. Smith, agreed to pay full location benefits including the obligation to pay the cost of selling the residential home located in Casper. The Court finds that the company is indebted to the plaintiff for the sum of $13,050.96.

On a sufficiency of the evidence compendium, we affirm the trial court award of the relocation expense as made.

ATTORNEY'S FEES

Also argued as trial court error was the award of attorney's fees on the basis of statutory construction that relocation expenses are not a kind of employee benefit to which the Wyoming statute providing for employee attorney's fees should be applied. W.S. 27-4-104(b) provides:

Whenever an employee who has quit or has been discharged from service has cause to bring suit for wages earned and...