Rabun v. Kimberly-Clark Corp.

• Decision Date: 18 June 1982
• Docket Number: No. 81-7452,KIMBERLY-CLARK,81-7452
• Citation: 678 F.2d 1053
• Parties: Joe RABUN, Plaintiff-Appellant, Cross-Appellee, v.CORPORATION, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1053

678 F.2d 1053

Joe RABUN, Plaintiff-Appellant, Cross-Appellee, v. KIMBERLY-CLARK CORPORATION, Defendant-Appellee, Cross-Appellant.

No. 81-7452.

United States Court of Appeals Eleventh Circuit.

June 18, 1982.

William R. McCracken, Harris, McCracken & Jackson, Augusta, Ga., for plaintiff-appellant, cross-appellee.

George W. Fryhofer, Waynesboro, Ga., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Georgia.

Before FAY, VANCE and ARNOLD ^*, Circuit Judges.

FAY, Circuit Judge:

The appellant, Joe Rabun, seeks to overturn the court's entry of a partial judgment notwithstanding the verdict and conditional grant of a new trial, following the jury's award of $60,000.00 in compensatory damages regarding Rabun's dual claims under Georgia law of breach of contract and malicious interference with contractual relations. We conclude that the evidence introduced at trial, viewed according to the standards applicable in considering motions for a judgment n. o. v. and a new trial, supports the jury's verdict. Determining, reluctantly, that the trial judge abused his discretion in granting the above motions, we hereby reverse his rulings and reinstate the jury's verdict.

I. TALES FROM THE GEORGIA WOODS

The appellee, Kimberly-Clark Corporation, owns 730 acres of land, known as the Higginbotham Tract, in Sandersville, Washington County, Georgia. In June of 1977, Kimberly-Clark, through its employee-representatives, Albert Sullivan, District Forester and Logging Superintendent; Jim Findley, Operations Manager; and Melvin Henson, Procurement Forester, entered into an oral contract with the appellant, an independent logger, for the latter to cut and stack timber on the tract. Rabun was to be paid $17.75 for each cord of timber cut and stacked. ¹ At trial, Kimberly-Clark insisted that the oral contract, encompassing Rabun's cutting and stacking of the timber, additionally required the appellant to haul the logs to Kimberly-Clark's mill in Waynesville, Georgia. The appellant disputed this version of the contractual terms, contending that Kimberly-Clark had agreed to be responsible for delivering the lumber to its mill in exchange for which 25 cents per cord would be deducted from payment to Rabun. The appellant further alleged that Kimberly-Clark had promised to advance him his monies based on the amount of logs stacked.

After commencement of the logging operations, Kimberly-Clark failed both to pick up the stacked timber and to make the agreed advances. As a consequence, Rabun lacked sufficient funds to pay his crew members and his assorted logging equipment debts. With the purported knowledge and approval of Mel Henson, a Kimberly-Clark representative, the appellant hauled some of the stacked timber off the tract and sold it to the Norton Lumber Company and the Pulliam Lumber Company. After additional employees of Kimberly-Clark learned of Rabun's sale of timber to third parties, they threatened Rabun with criminal prosecution for theft. However, they agreed to forbear from bringing such prosecution and to permit Rabun to complete the original contract if Rabun would sign a promissory note for $15,842.33, the value of the timber sold. Rabun signed the note and the accompanying security agreement, which promised repayment to Kimberly-Clark at an interest rate of 10%. On the same day, September 2, 1977, Rabun was paid an advance of $2,800.00. Despite this, Kimberly-Clark immediately terminated the appellant's contract to continue cutting and stacking timber and informed Rabun that it would press criminal charges against him. Fearful of the threatened prosecution and possible incarceration, Rabun left the state with his family and several crew members.

As soon as he did so, Melvin Henson, Kimberly-Clark's Procurement Forester, falsely notified Welborn Davis, a farm equipment and machinery dealer and principal creditor of Rabun, that the appellant had left the country, quite possibly with the equipment. Davis informed Bill Teets, owner of Teets International Trucks, and Rabun's second major creditor, of these developments. Rabun had been current on all debt obligations for the three skidders and one wheel-loader ² which he had obtained from Davis on a rental-purchase basis and for which he had already paid $20,000.00. Rabun was likewise current on remaining payments which he owed Bill Teets for the purchase of two trucks. Nevertheless, after being informed of Rabun's fleeing the country, both creditors repossessed all the equipment.

Rabun brought suit for willful breach of contract, seeking to obtain lost profits, and for malicious interference with contractual relations, in order to recoup lost equity in the logging equipment repossessed by third party creditors. He sought recovery of both compensatory and punitive damages flowing from these claims. ³ Kimberly-Clark counterclaimed for $14,607.44 plus 10% interest, representing the amount of money due on the promissory note for timber cut on its land and sold to other lumber companies by Rabun. ⁴

At trial, three expert witnesses, including the appellant, offered unopposed testimony as to the value of the repossessed equipment and the equity interest of Rabun in it. In addition, Rabun testified, over no objection by the defense, as to his profit of.$7.00 per cord. A stipulation was entered that, following termination by Kimberly-Clark of the appellant's contract, 3510.63 cords of timber were cut and removed from the Higginbotham Tract by Wayne Smith, a logger hired by Kimberly-Clark to complete the work.

At the close of trial, the court instructed the jury that if they were to find the promissory note to have been supported by consideration of Kimberly-Clark's promise to forbear from prosecution, which is illegal in Georgia as violative of public policy, they were to reduce the 10% interest rate specified in the note to the customary liquidated rate of 7%. The jury returned a verdict for the appellant in the amount of $60,000.00 in compensatory damages. No punitive damages were awarded. In addition, the jury found for Kimberly-Clark on the counterclaim; however, it reduced the interest rate of repayment to 7%, thus determining that Rabun's signature of the note had been induced, unlawfully, by Kimberly-Clark's threat of criminal prosecution. ⁵

Although concluding that the jury had determined willful breach of contract on the part of Kimberly-Clark, the trial judge refused to award Rabun any more than his lost profits on timber which he had actually cut and stacked. Accepting Rabun's assertion that 200 loads ⁶ of logs had been stacked on the land at the time Rabun left Georgia and that their value was $17.50 per cord, less $90.00 per load for hauling, the judge resolved to limit the appellant's award to $17,000.00. He refused to allow the appellant additional recovery of lost profits for timber which he would have cut had he rightfully been permitted to complete the contract.

After an oral hearing, the trial judge granted Kimberly-Clark's motion for a judgment notwithstanding the verdict as to the claim for malicious interference with contractual relations. He granted conditionally, a motion for a new trial on the same claim, in the event the judgment n. o. v. would be reversed or vacated on appeal. From the partial grant of a judgment n. o. v. and the conditional grant of a new trial, Joe Rabun brings this appeal.

II. UNSTACKING THE LEGAL CORDS

A. Judgment Notwithstanding the Verdict

The accepted standard for disposing of a judgment n. o. v. frames our analysis of the trial court's action:

On motions ... for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover's case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied ...

King v. Exxon Co., U.S.A., 618 F.2d 1111, 1116 (5th Cir. 1980) (citing Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)).

In determining whether "the facts and inferences point ... overwhelmingly in favor of one party," id., the judge is not permitted to weigh the evidence which has been introduced on both sides. See, e.g., Glazer v. Glazer, 374 F.2d 390, 400, cert. denied, 389 U.S. 831, 88 S.Ct. 100, 19 L.Ed.2d 90 (1967). Instead, he or she is obliged to make a prior, more basic determination of whether any credible evidence has been proffered by the non-moving party:

The question of the sufficiency of the evidence, when viewed in this way, is one that has been the subject of a great variety of verbal formulations, couched in generalities that are not readily applied to any particular set of facts. The fundamental principle is that there must be a minimum of interference with the jury. As good a statement of the test as any is from a recent decision of the Second Circuit: Simply stated, it 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 men could have reached.

C. Wright & A. Miller, 9 Federal Practice and Procedure-Civil at 545-46 (1981) (citing Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)). See also Pemberton v. Pan Am. World Airways, Inc., 423 F.2d 426, 429 (5th Cir. 1970).

The appellant based his cause of action for malicious interference on allegedly intentional activity by employees representing ...