Shearin v. Fletcher/Mayo/Associates, Inc.
| Decision Date | 02 November 1982 |
| Docket Number | No. WD,WD |
| Citation | 647 S.W.2d 127 |
| Parties | Kenneth W. SHEARIN, Respondent, v. FLETCHER/MAYO/ASSOCIATES, INC., Appellant. 32978. |
| Court | Missouri Court of Appeals |
R. Dan Boulware, St. Joseph, for appellant.
Kranitz & Kranitz, P.C., St. Joseph, for respondent.
Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.
This appeal is based upon a jury verdict for plaintiff-respondent Shearin on his action for breach of an employment contract. Shearin was recruited by appellant Fletcher/Mayo/Associates, Inc. (Fletcher/Mayo), to be Vice President and Creative Marketing Director of their advertising agency.
After several meetings in Missouri between Shearin and its executives, Fletcher/Mayo wrote to Shearin offering him a job at $37,500 per year and to pay his and his family's moving expenses from their home in Ohio to St. Joseph, Missouri, Fletcher/Mayo's home office. Subsequently an employment contract, prepared by and signed by Fletcher/Mayo was sent to Shearin. Having such a contract was Shearin's idea since Fletcher/Mayo did not use these agreements for anyone working for them. The contract sent to Shearin had a term of employment of three years and a termination clause that read:
"[e]ither party can terminate this agreement at any time there is justifiable cause to assume the other party is not performing according to the best interest of all parties." (emphasis added).
During the pre-contract discussion Shearin told the company he wanted some written agreement to show his wife he would be employed in the same place for at least three years.
Shearin then called Fletcher/Mayo and said he wanted the contract changed to provide for three years work for him. The company did not agree. Shearin some two weeks later after having been moved to St. Joseph by Fletcher/Mayo commenced work. At some time prior to or on his first day of work he returned the employment contract, signed by him, but changed in that the termination clause had been altered by deleting the words "at any time" and adding "... at the end of the three year contract if ...", which in effect gave Shearin a three year non-terminable contract of employment. Shearin initialed the change--the company never initialed the change nor made any statement agreeing to the alteration. The altered contract, signed by both parties was put in Shearin's employment file by Fletcher/Mayo. Ten months later Shearin was terminated because he was not working well with other departments and dissatisfaction with his performance by management.
The jury awarded Shearin $57,500 in damages. The pivotal issues in this case are: 1) Was there a contract of employment, and, if so, 2) Was there a non-termination provision in that agreement?
Fletcher/Mayo on appeal contends as a matter of law there was no written contract, insufficiency of the evidence to support a submission that the contract was modified to Shearin's position, and if so, was it breached, and the instructions to the jury.
Fletcher/Mayo's first point contends that the court erred in refusing to direct a verdict for them at trial, in submitting the case to the jury, and in failing to enter judgment notwithstanding the verdict after trial, because there was no written employment agreement as a matter of law. This point is ruled against it.
The jury could have reasonably found that some form of employment agreement was in effect, with a termination clause. The evidence as to the existence of a contract or agreement was presented to the jury as a question of fact and no objection was raised at trial by defendant to evidence tending to establish an oral agreement.
As Shearin correctly notes, in determining whether a verdict is responsive this court must consider the evidence in the light most favorable to the party who prevailed at trial, and give him the benefit of all reasonable inferences drawn from the evidence. Welch v. Hyatt, 578 S.W.2d 905, 912 (Mo.1979) (en banc); Zabol v. Lasky, 555 S.W.2d 299 (Mo.1977) (en banc). Thus a verdict rendered on facts, which falls within the province of the jury to decide, is conclusive on appeal.
Fletcher/Mayo's second basic point (several points combined here for the sake of brevity) is the trial court erred in failing to direct a verdict at trial for appellant, in submitting the case to the jury, and in failing to enter judgment n.o.v. after trial, because as a matter of law the discharge of Shearin did not constitute a breach of the written employment agreement, because there was insufficient evidence of an agreement, and insufficient evidence of modification and of a breach. This point is ruled against Fletcher/Mayo. A further issue was presented as to whether an agreement existed between the two parties and whether there was a termination provision. Defendant's motions for directed verdict refer only to the fact there was never a contract between the parties--to now allow defendant to claim plaintiff didn't make a case because he didn't prove a written contract, would allow defendant to raise a point on appeal not presented to the trial court.
It seems clear that the jury could have found a valid employment agreement to exist in light of the evidence that Shearin returned the employment contract to Fletcher/Mayo with the above-mentioned modifications, and commenced working for the company, moving his family from Ohio to St. Joseph, Missouri. There is some dispute over when and how the contract was returned, but the fact is that it was returned and Fletcher/Mayo was aware of the modification yet kept Shearin on as an employee retaining the altered contract on file. The contract being the only written manifestation of any agreement, combined with the fact that Shearin moved his family to St. Joseph and worked for...
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Shearin v. Fletcher/Mayo/Associates, Inc.
...the defendant appealed and the case was remanded for a new trial because of instructional error. See Shearin v. Fletcher/Mayo/Associates, Inc., 647 S.W.2d 127 (Mo.App.1983). The judgment on the second jury verdict, this time for the defendant, Fletcher/Mayo, is now appealed by Shearin. For ......
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