Schuessler v. Benchmark Marketing and Consulting, Inc., S-90-1074
| Decision Date | 14 May 1993 |
| Docket Number | No. S-90-1074,S-90-1074 |
| Citation | 500 N.W.2d 529,243 Neb. 425 |
| Parties | , 127 Lab.Cas. P 57,658, 8 IER Cases 871, 34 A.L.R.5th 907 Thomas M. SCHUESSLER, Appellee, v. BENCHMARK MARKETING AND CONSULTING, INC., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Actions. There is no constitutional right to have civil proceedings stayed pending the outcome of a criminal investigation.
2. Courts: Actions. Courts inherently possess the power to stay civil proceedings when required by the interests of justice.
3. Actions: Proof. The burden of establishing that a proceeding should be stayed rests on the party seeking the stay.
4. Trial: Appeal and Error. When the moving party seeks to stay a trial, the decision of whether to grant the motion is vested in the discretion of the trial court, and its decision will not be overturned on appeal absent an abuse of that discretion.
5. Trial. In deciding whether to stay a trial, the trial court should balance the competing needs of the parties, taking into account, among other things, the interest of the courts, the probability that proceeding will work a constitutional violation on the movant, the presence or absence of hardship or inequity, and the burden of proof.
6. Corporations: Self-Incrimination. A corporation has no right to invoke the privilege against compulsory self-incrimination.
7. Corporations: Employer and Employee: Self-Incrimination. Because the constitutional privilege against compulsory self-incrimination is personal, a corporation may not assert its employees' privilege on their behalf.
8. Employment Contracts: Termination of Employment: Good Cause. A contract for a definite term may not lawfully be terminated prior to the expiration of that term without good cause.
9. Employment Contracts: Breach of Contract: Proof. In an action for breach of an employment contract, the burden of proving the existence of the employment contract and all the facts essential to the cause of action is upon the person who asserts the contract.
10. Employment Contracts: Breach of Contract: Good Cause: Proof. In an action for breach of an employment contract, the employee must initially prove the existence of the contract, its terms and his compliance with them until his discharge, the employer's breach, and damages. Having done so, the burden then shifts to the employer to come forward with evidence that good cause existed for discharging the employee. If the employer produces sufficient evidence, the employee may rebut, and if in controversy, the issue goes to the trier of fact; however, the ultimate burden of proving wrongful termination remains with the employee.
11. Employment Contracts: Breach of Contract: Good Cause: Proof. In an action for breach of an employment contract, the employee proves absence of good cause simply by carrying the ultimate burden on the issue.
12. Termination of Employment: Good Cause. Whether good cause existed for discharging an employee is a question of fact.
13. Appeal and Error. In determining whether the evidence is adequate to support the trial court's factual decision in a civil case, we consider the evidence in the light most favorable to the successful party, resolving every controverted fact in that party's favor and giving that party the benefit of every reasonable inference deducible from the evidence.
14. Termination of Employment: Evidence: Good Cause. Because posttermination evidence of employee misconduct is necessarily discovered after an employee has been terminated, it can hardly be said to have provided a reason or "cause" for the termination.
15. Termination of Employment: Evidence: Damages. Posttermination evidence of employee misconduct may limit the employee's recovery in a wrongful discharge case.
16. Termination of Employment: Evidence: Damages: Proof. Once an employee has established a case of wrongful discharge, the employer may limit recovery by using posttermination evidence to prove employee misconduct which would have resulted in the justified termination of the employee.
17. Termination of Employment: Evidence: Damages: Proof. When seeking to limit an employee's wrongful discharge recovery through the use of posttermination evidence, the employer bears the burden of proving the misconduct and its ramifications.
18. Termination of Employment: Good Cause: Words and Phrases. "Good cause" for dismissal is that which a reasonable employer, acting in good faith, would regard as good and sufficient reason for terminating the services of an employee, as distinguished from an arbitrary whim or caprice.
19. Termination of Employment: Evidence: Damages: Proof. If an employer proves, through posttermination evidence, that the employee engaged in pretermination misconduct that would have resulted in the justified termination of the employee, the employee may not recover wrongful discharge damages.
20. Evidence: Damages: Appeal and Error. In awarding damages, the fact finder is not required to accept a party's evidence of damages at face value, even though that evidence is not contradicted by evidence adduced by the party against whom the judgment is to be entered. The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by the evidence and bears a reasonable relationship to the elements of the damages proved.
21. Termination of Employment: Proof. The employer bears the burden of proving that a wrongfully discharged employee, in the exercise of reasonable diligence, could have obtained other employment.
Virgil J. Haggart, Jr. of Daub & Haggart, Omaha, for appellant.
Robert F. Peterson of Laughlin, Peterson & Lang, Omaha, for appellee.
Benchmark Marketing and Consulting, Inc. (Benchmark), appeals the district court's judgment in favor of Thomas M. Schuessler for wrongful discharge from employment. The court awarded Schuessler damages of $167,089.93, as well as attorney fees and costs. We affirm in part, and in part reverse and remand for further proceedings.
On April 10, 1989, when he was fired by Benchmark's owner and president, David Haggart, Schuessler was Benchmark's vice president and chief operating officer. Schuessler's employment contract covered the period from January 1 to December 31, 1989. His compensation included a salary of $2,000 per week, plus a bonus of 35 percent of Benchmark's net profits. Benchmark operated a telemarketing business which placed luxury car owners in touch with prospective buyers. The fee for this service was often charged to the buyer's credit card.
After being fired, Schuessler brought suit for wrongful discharge. Benchmark cross-petitioned, seeking damages for, among other things, Schuessler's alleged breach of his employment contract. Prior to trial, federal agents raided Benchmark's offices, seizing the company's records and equipment. At the time of trial, a federal investigation of the company for mail and wire fraud was pending. The company twice moved the trial court to stay Schuessler's case, arguing that a proper defense in the wrongful discharge suit would require disclosure of facts that might be incriminatory in the federal criminal investigation. The district court overruled both motions. After the court overruled the first motion to stay, Benchmark dismissed its cross-petition against Schuessler.
At trial, Schuessler established that he had met the sales quotas required by his contract and offered other evidence that he had complied with his contractual obligations. Benchmark alleged several reasons for Schuessler's termination, including (1) sexual harassment of at least one female employee, (2) Schuessler's unauthorized pay increase for a subordinate employee, (3) Schuessler's personal use of company time and equipment, and (4) Schuessler's failure to properly supervise the employees under his control.
The district court found that Schuessler had not acted in a manner warranting termination by Benchmark. The court further found that Schuessler had carried out his responsibilities with due diligence and in the best interests of Benchmark. The court awarded Schuessler damages of $167,089.93, attorney fees of $1,406.82, and costs. Benchmark then instituted this appeal.
Benchmark first asserts that the district court erred by refusing to stay the proceedings pending the outcome of the federal criminal investigation. Schuessler, Benchmark notes, was contractually responsible for training and supervising the telephone salespersons and for "maintaining the integrity of Benchmark in sales presentation." Benchmark argues that if the salespersons did indeed make misrepresentations to customers, it would indicate that Schuessler had not met his contractual obligations, and would thereby prevent his recovery for wrongful discharge. However, Benchmark reasons, such a showing might also subject the company and its employees to criminal sanctions. Benchmark concludes that by requiring it to proceed to trial, the district court prevented the company from properly defending itself and thus violated its due process rights. Despite the resourcefulness of Benchmark's argument, we cannot agree that the district court abused its discretion by denying the motions to stay.
There is no constitutional right to have civil proceedings stayed pending the outcome of a criminal investigation. Afro-Lecon, Inc. v. U.S., 820 F.2d 1198 (Fed.Cir.1987); S.E.C. v. First Financial Group of Texas, Inc., 659 F.2d 660 (5th Cir.1981); Southwest Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F.Supp. 805 (N.D.Cal.1989). However, courts inherently possess the power to stay such proceedings when required by the interests of justice. American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605 (1937); Landis v. North American Co., 299...
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