Video Electronics, Inc. v. Tedder

• Decision Date: 19 March 1985
• Docket Number: No. AW-248,AW-248
• Citation: 10 Fla. L. Weekly 719,470 So.2d 4
• Parties: 10 Fla. L. Weekly 719 VIDEO ELECTRONICS, INC.; Porter M. Moore, individually; and Alton L. Turner and Daniel L. Lindsay, as executors of the Estate of Rex H. Moore, deceased, Appellants, v. Harry Lamar TEDDER, Appellee.
• Court: Florida District Court of Appeals

Page 4

470 So.2d 4

10 Fla. L. Weekly 719

VIDEO ELECTRONICS, INC.; Porter M. Moore, individually; and Alton L. Turner and Daniel L. Lindsay, as executors of the Estate of Rex H. Moore, deceased, Appellants, v. Harry Lamar TEDDER, Appellee.

No. AW-248.

District Court of Appeal of Florida,

First District.

March 19, 1985.

John F. Callender, Jacksonville, for appellants.

Daniel D. Richardson, Jacksonville, for appellee.

ZEHMER, Judge.

Video Electronics, Inc., appeals from a final judgment after jury verdict awarding damages to Harry Lamar Tedder for his wrongful discharge from employment by Video Electronics. Three points are presented: (1) Whether the court improperly construed the employment contract and thereby erred in failing to direct a verdict for Video Electronics; (2) whether the court abused its discretion in adopting a jury selection procedure which limited the use of peremptory challenges to backstrike a juror already sworn by the court; and (3) whether the court erred in instructing the jury to evaluate Tedder's employment performance by a "reasonable man" standard. We affirm on issues 1 and 3, and reverse on issue 2.

On October 16, 1981, Harry Tedder signed an employment contract to work for a two-year period as general manager of Video Electronics. Tedder was terminated from employment on August 20, 1982, because he had allegedly misappropriated $119.35 from Video Electronics by submitting duplicate requests for reimbursement of travel expenses. On September 14, 1982, Tedder filed a complaint alleging damages resulting from Video Electronics' breach of his employment contract. Video Electronics defended the suit by alleging that Tedder was properly dismissed from employment because he misappropriated funds and did not adequately perform his duties under the terms of the contract. Video Electronics relied primarily upon three clauses in the employment contract in support of its dismissal of Tedder: (1) The primary duty of the general manager shall be to function "under the direction of the owners of the company"; (2) "At any time ... Tedder may be terminated by the company in the event that he fails to perform his duties as set forth in this contract"; and (3) Tedder "agrees to submit to this company such documentation as may be necessary to substantiate [reimbursed expenses]." Tedder freely admitted he had received improper duplicate payments of travel expenses, but contended that such error was because of negligent oversight by himself and the company bookkeeper. He contended that his performance as general manager was more than satisfactory and that Video Electronics benefited from a consistent rise in revenues while he was general manager.

The technique used by the trial court to impanel the jury was a subject of dispute between the parties and the court. The trial judge allowed each side six peremptory challenges, and an initial panel of six prospective jurors was seated and subjected to voir dire. Each side was then given the opportunity to challenge for cause or to exercise any of their peremptory challenges. Once the challenges were made and the challenged jurors dismissed, new prospective jurors were called to take their places on the panel. The parties were then allowed to voir dire the new prospective jurors and once again exercise their challenges on the entire panel. The court stated it would allow one round of backstrikes and that after such backstrikes it would swear whatever jury members remained. The process proceeded through three rounds without any backstrikes, but during the fourth round appellants' attorney used his fifth peremptory challenge to backstrike a previously accepted prospective juror. After the fourth round, there were four prospective jurors left on the panel and the court immediately swore those jurors. During the fifth round, counsel for appellants attempted to use his final peremptory challenge by backstriking one of the already-sworn jurors. The trial court denied such challenge and, over protest, appellants accepted the final panel and waived their final peremptory challenge.

At trial the jury was instructed, over the objection of Video Electronics, that it should find in favor of Video Electronics only if it found that Tedder had intentionally misappropriated funds or that he did not properly perform his duties as judged by a "reasonable man" standard. The jury returned a verdict finding that Video Electronics had breached its contract by unjustifiably terminating Tedder's employment and that Tedder was entitled to approximately $70,000 in damages. Video Electronics brings this appeal.

The first point on appeal is whether the trial court erred in instructing the jury that Video Electronics would be justified in terminating Tedder's employment only if Tedder's misappropriation of funds was found to be intentional. According to Video Electronics, the trial court improperly rewrote the clear terminology of the employment contract, which indicated that Tedder was required to submit documentation to substantiate his expenses and also stated that Tedder could be terminated at any time if he failed to perform his duties set forth in the contract. Video Electronics relies primarily upon Haiman v. Gundersheimer, 130 Fla. 109, 177 So. 199 (1937), to support its position. In Gundersheimer, the employer had required that expense reports be submitted for all items of expense paid from the petty cash account. The employee had allegedly failed to file such reports, and the trial court submitted the case to the jury on instructions that the jury should find a justifiable discharge only if the employee's breach "constituted a material and not merely trivial departure from the duties of her employment." Id. at 200. The Supreme Court reversed and held that it was the trial court's duty to determine as a matter of law whether the employee's failure to make reports, if found to be true, would constitute a breach of duty warranting discharge of the employee. The court stated it was then a matter of fact for the jury to determine whether or not the employee had in fact failed to make the appropriate reports. Cf. Jimarye, Inc. v. Pipkin, 181 So.2d 669 (Fla. 1st DCA 1966); Strahm v. Aetna Casualty & Surety Co., 285 So.2d 679 (Fla. 3d DCA 1973).

In the present case, the trial court complied with the rule in Gundersheimer when it construed the employment contract and determined that an unintentional mistake in submission and reimbursement of travel expenses would not be a sufficient breach of contract to justify dismissal of Tedder. The court then determined that, under the terms of the contract, an intentional attempt by Tedder to receive double payment for travel expenses would be sufficient cause for dismissal, and the jury was instructed to determine whether Tedder had intentionally attempted to secure double payment of expenses. This construction of the contract was a matter of law for the court, not a question of fact for the jury. Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla. 2d DCA 1963). We hold that the trial court followed the proper procedure and did not erroneously construe the contract. We affirm on the first issue.

We also affirm the third point, in which Video Electronics argues that the trial court erred by failing to give Video Electronics' requested jury instruction that it was justified in terminating Tedder's employment if it was in good faith dissatisfied with his performance. The court refused to give this instruction, instead instructing the jury that Tedder's performance was to be judged based upon a "reasonable man" standard. The key question is whether the employment contract specifically indicated that Tedder's performance was to be judged solely by the employer or whether the contract was silent as to how his performance was to be judged. The trial court examined the employment contract and found that the employer had failed to reserve the right under the contract to be the sole judge as to the propriety of Tedder's job performance. Accordingly, the court ruled that the services of Tedder must be judged on a "reasonable man" standard.

We agree with the trial court's ruling. The language in the employment contract relied upon by Video Electronics does not specifically reserve the right to determine whether Tedder's job performance was satisfactory. To that extent, the present case is distinguishable from Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928), and Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313. In the absence of an express reservation by the employer, the general rule is that an employee's job performance is to be judged on a "reasonable man" standard. 53 Am.Jur.2d, Master & Servant, § 51.

Appellant's second point on appeal is that the trial court abused its discretion in employing a jury selection procedure under which the parties were limited to one round of backstrikes before jury members were individually sworn. It...