Stephens v. Radium Petroleum Co., Inc.
| Citation | 250 Neb. 560,550 N.W.2d 39 |
| Decision Date | 12 July 1996 |
| Docket Number | No. S-94-784,S-94-784 |
| Parties | , 130 Lab.Cas. P 58,158 Richard E. STEPHENS, Appellee, v. RADIUM PETROLEUM COMPANY, INC., and Industrial Service Corporation, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings. The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made.
2. Jury Instructions: Appeal and Error. Generally, jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party.
3. Contracts: Appeal and Error. The construction of a contract is a matter of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determinations made by the court below.
4. Pleadings. A pleading should not be amended to conform to the proof where the proposed amendment substantially changes the nature of the claim or defense.
5. Pleadings: Appeal and Error. Prejudicial error results when a pleading is allowed to be amended where the amendment changes the issues and affects the quantum of proof as to any material fact.
6. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have the jury instructed only upon those theories of the case which are presented by the pleadings and which are supported by competent evidence.
7. Contracts. Whether a document is ambiguous is a question of law initially determined by a trial court.
8. Contracts. The proper construction of a written contract and an examination of a contract for ambiguity are questions of law.
9. Contracts: Intent. The interpretation given to a contract by the parties themselves while engaged in the performance of it is one of the best indications of true intent and should be given great, if not controlling, influence.
Gordon R. Hauptman and Terry M. Anderson, of Hauptman, O'Brien, Wolf & Lathrop, P.C., Omaha, for appellants.
Dennis E. Martin and Karen M. Verdirame, of Martin & Martin, P.C., Omaha, for appellee.
Richard E. Stephens filed suit for wages and benefits from his former employer, Radium Petroleum Company, Inc. (Radium), which company Stephens claims terminated his employment in violation of the terms of an employment and noncompetition agreement executed by the two parties.
A jury trial was held in the district court for Douglas County. The jury returned a $20,018.75 verdict in favor of Stephens.
We affirm the judgment of the trial court.
Restated and summarized, Radium claims that the trial court erred in (1) refusing to allow Radium to amend its answer on the first morning of the trial; (2) refusing Radium's proposed jury instructions; (3) providing the jury a supplemental instruction stating that, as a matter of law, the employment contract extended to any position held by Stephens with Radium during the term of the contract; (4) finding, as a matter of law, that the employment contract between Stephens and Radium was unambiguous; and (5) finding, as a matter of law, that the employment contract between Stephens and Radium was valid, binding, and neither modified nor rescinded.
The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made. Cimino v. FirsTier Bank, 247 Neb. 797, 530 N.W.2d 606 (1995).
Generally, jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party. Bunnell v. Burlington Northern RR. Co., 247 Neb. 743, 530 N.W.2d 230 (1995).
The construction of a contract is a matter of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determinations made by the court below. C.S.B. Co. v. Isham, 249 Neb. 66, 541 N.W.2d 392 (1996).
On August 6, 1992, Stephens filed this lawsuit against Radium, alleging that he was an employee of Radium pursuant to an employment agreement executed by the two parties on December 13, 1986. Stephens alleged that Radium terminated his employment without cause on May 6, 1992, in violation of the employment agreement's requirement that Radium provide Stephens written notice of its intention to terminate 90 days prior to the expiration of the employment agreement. Stephens sought wages and benefits from May 7, 1992, through and including December 12, 1992.
The employment and noncompetition agreement between Stephens and Radium provided in paragraph 1:
The Company hereby agrees to employ Employee for a five (5) year period from the date of the execution of this Agreement, during which time Employee agrees to perform such services as the Company from time to time shall direct, and to devote his full time and effort to the business interests of the Company. Employee's position at the Company shall be that of manager of the Omaha facilities. The duties of the Employee, as manager, shall include, but are not limited to, the overall supervision of the following:
(1) The activities of each Employee of the Company; and
(2) The assignment of routes to the Company drivers; and
(3) Customer relations; and
(4) The purchase and sale of waste oil....
The Company agrees that if the Employee shall perform the services requested by the Company, it shall not terminate the employment of said Employee during the term of this Agreement without just cause. Said Employment Agreement shall automatically renew for one (1) year periods, unless either party hereto shall deliver to the other party ninety (90) days written notice of the intention to terminate the employment relationship prior to the expiration of this Agreement.
(Emphasis supplied.)
In its answer, Radium admitted that Stephens was a former employee under the terms of the employment agreement referred to in Stephens' petition. Radium further answered that it delivered to Stephens on February 5, 1992, a 90-day written notice of Stephens' termination pursuant to paragraph 1 of the parties' employment and noncompetition agreement.
The record reflects that in December 1991, Stephens approached one of his superiors at Radium and said he did not want to be facilities manager any longer because the job was becoming difficult and that he would rather drive a truck. Stephens recommended that his son, who worked for Radium as plant manager, succeed him as facilities manager.
After meeting with Stephens' supervisors in early January 1991, Stephens and his son were directed by their supervisors to exchange job positions. Stephens' son became facilities manager, and Stephens became plant manager.
On February 5, 1992, Radium informed Stephens that he was receiving a 90-day written notice of termination pursuant to their employment agreement and that the effective termination date was May 6, 1992. The notice stated that Stephens was placed on leave of absence immediately.
On the first day of trial, Radium moved to amend its answer to allege as affirmative defenses (1) that the employment agreement had been modified, (2) that the employment agreement had been canceled, and (3) that there was an accord and satisfaction of the terms and conditions of the employment agreement. The trial court overruled the motion to amend the answer. The trial court found that the matter had been certified for trial for some time, that the issues had been joined, and that the addition of new affirmative defenses would open up new terrain in the litigation.
Following the close of all the evidence, the trial court refused Radium's proposed jury instruction which would have instructed the jury to find whether Radium had met its burden of proof to establish that...
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