Smith v. Mitton

• Decision Date: 17 December 2004
• Docket Number: No. 29816.,29816.
• Citation: 140 Idaho 893,104 P.3d 367
• Court: Idaho Supreme Court
• Parties: Cory SMITH, Plaintiff-Respondent-Cross Appellant, v. Mark MITTON, Doug Manning & City of Burley, Defendants-Appellants-Cross Respondents.

104 P.3d 367

140 Idaho 893

Cory SMITH, Plaintiff-Respondent-Cross Appellant, v. Mark MITTON, Doug Manning & City of Burley, Defendants-Appellants-Cross Respondents.

No. 29816.

Supreme Court of Idaho, Pocatello, September 2004 Term.

December 17, 2004.

Rehearing Denied January 10, 2005.

Parsons, Smith & Stone, Burley, for appellant. Randolph C. Stone argued.

Sara Shepard, Boise, and Huntley, Park, LLP, Boise, for respondents. Sara Shepard and Robert C. Huntley, Jr., argued.

KIDWELL, Justice.

This is a wrongful discharge case in which the employer, City of Burley, appeals the district court's judgment in favor of employee, Smith. Smith cross appeals arguing the amount of costs and attorney fees awarded is an abuse of discretion. This Court affirms the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Smith was hired by the City of Burley as a licensed lineman with the electrical department in August 1998. Smith began having problems with the new health insurance plan provided for city employees shortly after it was amended in November 1999. He voiced his concerns to the City Administrator, Mark Mitton, and the city's insurance agent, Derlin Taylor. Unable to resolve the issue, he wrote a letter to the Idaho Department of Insurance on June 28, 2000. Smith asserts that a city council member talked with Smith's supervisor about the letter, specifically referred to the allegation of the mayor's conflict of interest within the letter, and further warned that if Smith continued such behavior his employment would be terminated. Smith contends that after he sent the letter, he met with the City Administrator and the Burley City Mayor, Doug Manning, and was told they were upset with his letter to the Department of Insurance and the conflict of interest allegation.

In May 2000, the city electrical department began renovating a city building. Smith alleges he expressed concern to the Burley Facility Manager regarding the legality of the electrical department performing the requested tasks. The Facility Manager reported this concern to the City Administrator. Shortly thereafter, the state demanded the project be discontinued until the City of Burley hired a contractor. Smith alleges that in January 2001, he again voiced concerns regarding the legality of the electrical work to the Facilities Manager, who informed the Mayor and City Administrator of the objections.

In Burley, the power to fire city employees is vested in the city council. During an executive session, the Mayor and City Administrator recommended that Smith be discharged. Smith's employment was terminated on January 29, 2001.

On March 13, 2001, Smith sued the City of Burley, its City Administrator, Mark Mitton, and the City Mayor, Doug Manning. His amended complaint, filed on September 30, 2002, set forth three causes of action: (1) violation of the Idaho Protection of Public Employees (Whistleblower) Act, (2) a breach of employment contract and personnel manual, and (3) intentional infliction of emotional distress. On March 27, 2003, he filed a notice abandoning his claim of intentional infliction of emotional distress and his claims against Mark Mitton and Doug Manning.

On March 31, 2003, the case was tried before a jury. At the close of Smith's case in chief, Burley filed a motion for directed verdict on the grounds that Smith failed to comply with the notice requirements of the Idaho Tort Claims Act (ITCA) and failed to show a violation of the Whistleblower Act. The motion was denied by the district court. The jury returned a verdict in favor of Smith on the whistleblower cause of action and on the issue of a public policy exception to the at-will doctrine. The jury found that Smith was not entitled to a verdict on the issue of a breach of the employment contract or personnel manual. Burley then filed a Motion for Judgment Notwithstanding the Verdict, again arguing that Smith failed to show a violation of the ITCA. The motion was denied. The district court held Smith was the dominant prevailing party and awarded the plaintiff 75 percent of both costs and adjusted attorney fees.

Burley timely filed a notice of appeal on July 10, 2003, arguing it was error for the trial court to deny the Motion for Directed Verdict because Smith did not plead and prove compliance with the ITCA and failed to show a violation of the Whistleblower Act. Burley also argues the trial court did not give proper jury instructions and the amount of lost wages and attorney fees awarded was improper.

Smith timely cross-appealed on July 16, 2003, and filed an amended notice of cross appeal on July 18, 2003, arguing the district court erred in adjusting the amount of costs and attorney fees awarded, and seeks attorney fees on appeal.

II. STANDARD OF REVIEW

It is appropriate to deny a motion for directed verdict if "reasonable minds could conclude that a verdict in favor of the party against whom the motion is made is proper." General Auto Parts Co., Inc. v. Genuine Parts Co., 132 Idaho 849, 855, 979 P.2d 1207, 1213 (1999) (quoting All v. Smith's Mgmt. Corp., 109 Idaho 479, 480, 708 P.2d 884, 885 (1985)). "The standard of review for issues concerning jury instructions is limited to a determination of whether the instructions, as a whole, fairly and adequately present the issues and state the law. When the instructions, taken as a whole, do not mislead or prejudice a party, an erroneous instruction does not constitute reversible error." Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 882, 42 P.3d 672, 675 (2002) (citing Howell v. Eastern Idaho R.R., Inc., 135 Idaho 733, 24 P.3d 50 (2001)). The awarding of attorney fees and costs is within the discretion of the trial court and subject to review for an abuse of discretion. See Burns v. Baldwin, 138 Idaho 480, 486, 65 P.3d 502, 508 (2003); Bowles v. Pro Indiviso, Inc., 132 Idaho 371, 374, 973 P.2d 142, 145 (1999); O'Boskey v. First Fed. Sav. & Loan Ass'n of Boise, 112 Idaho 1002, 1008, 739 P.2d 301, 307 (1987).

III. ANALYSIS

A. The District Court Properly Denied The Motion For Directed Verdict.

"In determining whether a directed verdict or judgment n.o.v. should have been granted, the appellate court applies the same standard as does the trial court which passed on the motion originally." Lunders v. Estate of Snyder, 131 Idaho 689, 695, 963 P.2d 372, 378 (1998) (quoting Quick v. Crane, 111 Idaho 759, 764, 727 P.2d 1187, 1192 (1986)). Therefore, this Court "must determine whether, admitting the truth of the adverse evidence and drawing every legitimate inference most favorably to the opposing party, there exists substantial evidence to justify submitting the case to the jury." General Auto Parts Co., Inc. v. Genuine Parts Co., 132 Idaho 849, 855, 979 P.2d 1207, 1213 (1999) (quoting Herrick v. Leuzinger, 127 Idaho 293, 297, 900 P.2d 201, 205 (Ct.App.1995)). "The `substantial evidence' test does not require the evidence be uncontradicted. It requires only that the evidence be of sufficient quantity and probative value that reasonable minds could conclude that a verdict in favor of the party against whom the motion is made is proper." Id. at 855, 979 P.2d at 1213 (quoting All v. Smith's Mgmt. Corp., 109 Idaho 479, 480, 708 P.2d 884, 885 (1985)). A directed verdict is proper, then, "only where the evidence is so clear that all reasonable minds would reach only one conclusion: that the moving party should prevail." Sheridan, 135 Idaho at 785, 25 P.3d at 98 (quoting Student Loan Fund of Idaho, Inc. v. Duerner, 131 Idaho 45, 51, 951 P.2d 1272, 1278 (1997)).

1. The Trial Court Did Not Err in Denying The Motion For Directed Verdict Based On Failure To Plead And Prove Compliance With The Idaho Tort Claims Act.

At the close of Smith's case in chief, in which he argued a violation of the ITCA occurred, Burley moved for a directed verdict requesting Smith's cause of action be dismissed for failure to plead and prove compliance with the ITCA. Failure to comply with the notice requirements of the ITCA is an affirmative defense. See S. Griffin Const., Inc. v. City of Lewiston, 135 Idaho 181, 184, 16 P.3d 278, 281 (2000). However, Burley does not challenge Smith's compliance with the notice requirements, Burley argues Smith did not plead and prove that the requirements had been met. To support the assertion that Smith has a duty to plead and prove compliance with the ITCA, Burley relies on I.R.C.P 9(c), which states, "In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity."

Idaho courts have not mandated that the requirements set forth in I.R.C.P. 9(c) apply to the ITCA. The Idaho Supreme Court has held, "Certainly, as long as the notice is delivered to the secretary's office, it is sufficient." Huff v. Uhl, 103 Idaho 274, 277, 647 P.2d 730, 733 (1982) (requiring plaintiff to give notice under the ITCA). Smith was fired on January 29, 2001, and a Notice of Tort Claim was timely filed on March 12, 2001. This Court finds no error in denying the Motion for Directed Verdict based on failure to plead and prove compliance with the ITCA.

2. The Trial Court Did Not Err In Denying The Motion For Directed Verdict Based On Failure To Show A Violation Of The Idaho Protection Of Public Employees (Whistleblower) Act.

Burley argues Smith has failed to show a violation of the Whistleblower Act, and therefore, the Motion for Directed Verdict should not have been denied. Idaho Code § 6-2104 of the Idaho Protection of Public Employees (Whistleblower) Act states, "An employer may not take adverse action against an employee because the employee ... communicates in good faith the existence of any waste of public funds ... or a violation or suspected violation of a law, rule or regulation...." Burley contends Smith was...