Ringle v. Bruton
Ringle v. Bruton
Opinion of the Court
By the Court,
This is an appeal from a final judgment in an employment contract case and an order denying a motion for a new trial. Appellant Edward Ringle contends that (1) the district court erroneously denied his motion for summary judgment or partial summary judgment because the employment contract had expired and was unenforceable, (2) the district court abused its discretion by giving erroneous jury instructions concerning the contract’s continuation and the parol evidence rule, and (3) the jury’s compensatory damages were not supported by substantial evidence. Ringle also contends that it was an abuse of discretion for the district court to deny his motion for a new trial based on a claim that opposing counsel engaged in blatant misconduct during closing argument.
We affirm the judgment because we perceive no error in the district court’s decision concerning the jury instructions and also because our review of the record reveals the existence of substantial evidence to support the jury’s damages awards. We have not previously decided whether an employee who continues to work for an employer after the expiration of a contract of employment becomes an at-will employee. We do so now. We conclude that when an employee continues to work after his contract of employment expires, it is presumed that all the terms of the employment contract continue to govern the conduct of the employer and the employee until the parties properly amend or terminate the contract or
We also affirm the order denying Ringle’s motion for a new trial. Although, at trial, opposing counsel improperly and more than once accused Ringle of lying, Ringle did not timely and properly object to these comments. We also today clarify our recent holding in DeJesus v. Flick
FACTUAL BACKGROUND
Ringle was the owner of the Stagecoach Casino and Hotel in Beatty, Nevada. In June 1992, Ringle hired Alpheus Bruton to work as the facility’s general manager. Ringle and Bruton executed a written employment contract drafted and then revised by Bruton to incorporate Ringle’s suggestions. The contract provided that “[t]his agreement is for a period of two years from the date of signing.” The contract also incorporated a “General Understanding” that “a permanent mutually beneficial business relationship be established and that [Bruton] will endeavor to assist [Ringle] in the growth of his organization.” The contract provided for Bruton’s compensation by providing that Bruton would receive a $44,990.00 base annual gross salary and a $1,800.00 monthly bonus if certain goals were met. Other provisions specified that vacation time accrued at the rate of one day per month of employment and that Ringle would reimburse Bruton’s reasonable business expenses. Finally, the contract permitted either partner to cancel the agreement on the condition of sixty days’ written notice. If Ringle canceled, Bruton was entitled to receive $25,000.00 net, any salary and bonus accrued for the year, and all bonuses owed at the end of the sixty-day notice period. If Bruton canceled, he received less money.
Bruton was employed at the Stagecoach for four years. The parties’ contract was never amended in writing or terminated pursuant to a writing. Nor did the parties execute a new written contract. In 1994, Bruton received a company car for both business and personal use. In March 1995 and again in March 1996, Ringle raised Bruton’s salary by five percent on his own initiative without negotiating with Bruton. In June 1996, however, Ringle and Bruton argued. As a result, Bruton’s employment at the Stagecoach ended.
In March 1997, Bruton sued Ringle, alleging several contract and tort claims. After answering the complaint and asserting a counterclaim, Ringle moved for summary judgment or alternatively for partial summary judgment, arguing that Bruton had no contract claims because after the contract expired in June 1994, Bruton became an at-will employee. The district court denied the motion. Bruton abandoned his tort claims, Ringle abandoned his counterclaim, and the parties proceeded to a jury trial on Bruton’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing.
During closing argument, Bruton’s counsel asserted on six occasions that Ringle either had lied or had motive to lie during his testimony. The incidents are as follows:
The evidence that he told you, oh, we had a new deal, I intended a new deal, that was a lie, that was a bald faced lie that he told you here in Court. His deposition testimony which he was able to give without working with his attorney, without prompting, without listening and figuring out, how can I rebut this, how can I get around this, he didn’t even think about it.
Let me reiterate, it was Mr. Ringle [who] sat up here and lied to you. He lied here at trial.
One of the other big lies that was told in this case was what happened to Alpheus Bruton’s employment.
So let’s ask, who has the incentive to lie? Mr. Ringle has the incentive to lie ... .
Mr. Ringle lied about the termination. If you simply listen to his testimony, while much or all of it was untrue ....
Again I’ll reiterate, it is Mr. Ringle that has the incentive to lie.
Ringle’s counsel objected to the first excerpt above and moved for a mistrial on the basis that “Counsel is asserting to the jury that I would take place in fabricating a lie, taking part, ... in preparing a lie to present to the jury. He said with prompting and working with the attorney. That is absolutely improper.” The district court took the matter under advisement, and Bruton’s counsel continued with his argument, including making the additional improper re
After the jury retired, Ringle again moved for a mistrial, arguing that DeJesus
Bruton’s counsel denied accusing opposing counsel of improper behavior and argued it was proper to call Ringle a liar based upon the evidence which included changes in Ringle’s testimony. Bruton’s counsel asserted, for example:
I did not state a personal opinion. I didn’t say I believe Mr. Ringle lied. Mr. Ringle did lie. He changed his testimony. Quite frankly, accusing a party of lying, it’s never been my understanding that is error, much less reversible error, that is fairly standard, particularly, in employment cases, somebody is not telling the truth.
Ringle asserted that DeJesus
indicates that attorneys have a certain responsibility and one of them is not to call somebody a bald faced liar. If that isn’t appealing to the passions and prejudice and violating the decorum of this entire procedure, I don’t know what the devil is.
While the district court agreed that it was absolutely wrong for Bruton’s counsel to call Ringle a liar, it denied Ringle’s motion, finding that the improper arguments were not sufficiently pervasive or prejudicial to require a mistrial.
The jury returned a $131,814.83 verdict for Bruton. The district court denied Ringle’s motions for judgment notwithstanding the verdict, for a new trial, and for remittitur. Ringle appealed.
DISCUSSION
We first address Ringle’s argument that the district court erred in denying his motion for summary judgment.
In Nevada, at-will employment is presumed in the absence of a written employment contract.
[when] an employment contract for a definite term expires and the employee, without explicitly entering into a new agreement, continues to render the same services rendered during the term of the contract, it may be presumed that the employee is serving under a new contract having the same terms and conditions as the original one. The presumption may be rebutted by evidence that the contract terms were changed or that the parties understood that the terms of the old contract were not to apply to the continued service.7
Thus, when an employee and employer continue an employment relationship after the term of duration contained in a written contract, the original contract is presumed to renew automatically under the same terms and conditions until either party terminates the contract. We conclude, however, that the contract’s duration does not presumptively renew.
When Bruton began working for the Stagecoach, his employment contract with Ringle contained a two-year term. Bruton con-
At trial, Ringle presented evidence and argued to the jury that the contract expired two years after its execution, and that he gave Bruton raises and a company car to use in lieu of another contract. The jury was not persuaded by Ringle’s evidence, however, and found, as it was permitted to do, that the original contract’s terms and conditions continued to govern Bruton’s employment at the Stagecoach. The jury verdict demonstrates that Ringle had failed to rebut the presumption that he and Bruton were bound by a new contract which contained the same terms and conditions as had the original contract.
Ringle next contends that two jury instructions given to the jury were erroneous. He argues that Jury Instruction 31 was improper because it instructed the jury that it is presumed that Bruton’s post-contract employment continued under the original contract’s terms.
“The district court has broad discretion to settle jury instructions,”
Jury Instruction 31 was not improper. It embodies the presumption we adopt today. Jury Instruction 27 did not violate the parol
Ringle also contends that the jury’s bonus pay, vacation pay, and severance pay awards were not supported by substantial evidence. The jury awarded Bruton $86,400.00 in bonus pay, $5,916.50 in vacation pay, and $39,498.33 in severance pay, for a total of $131,814.83. These are the sums Bruton requested in argument. The verdict will not be overturned if “supported by substantial evidence, unless, from all the evidence presented, the verdict was clearly wrong.”
First, Ringle argues that substantial evidence does not support the bonus award because Bruton never satisfied the bonus criteria.
[Bruton’s] bonus shall be considered to be a minimum payment of $1,800 a month for all quarters where gross operating profits exceed $30,000 on a comparison basis to the previous year. Bonus accrued after first quarter will be paid out monthly in the following quarter. On quarters where this has not been achieved, no bonus need be paid subject to the pro*92 vision that at the end of the Calendar Year if gross operating profits exceed $120,000 a bonus will be paid for those quarters not reached.
An accountant testified that gross operating profits is not an accounting term. The accountant equated the term to gross operating income. From the testimony of Ringle and Bruton, it is evident that the parties interpreted the term as gross operating income. The parties disagreed, however, regarding the bonus provision’s purpose and conditions.
Ringle testified that the parties intended that Bruton would earn a bonus only if he increased the previous year’s quarterly gross operating income by $30,000.00 or the previous year’s annual gross operating income by $120,000.00. Because it was undisputed that the Stagecoach’s gross operating income did not increase by these amounts, Ringle argues that Bruton was not entitled to any bonuses. Ringle further asserts that Bruton’s failure to demand bonuses when they otherwise fell due demonstrates that he knew that he did not earn them. According to Ringle, the bonuses were meant to motivate Bruton and reward him for increasing operating income at the Stagecoach; since Bruton failed to show that he satisfied the bonus criteria, the jury erred in awarding him bonus compensation.
Bruton testified that the bonus provision was agreed to as a means for paying the balance of his $65,000.00 salary. Bruton testified, without contradiction, that he agreed to leave his Las Vegas employment only if Ringle would pay him $65,000.00 per year. The parties’ contract provided Bruton would be paid a base annual gross salary of $44,990.00. Adding a minimum of $1,800.00 monthly in bonuses would give Bruton an annual salary of $66,590.00. According to Bruton, his compensation was structured this way because Ringle did not want to live in Beatty, but wanted to ensure that the Stagecoach at least broke even while Bruton was managing it. Thus, as long as the Stagecoach’s annual gross operating income was at least $120,000.00, Bruton was entitled to his full salary, including bonuses. Bruton explained that he did not demand bonuses as they became due because Ringle was experiencing financial difficulties with other endeavors and profits from the Stagecoach were being diverted elsewhere. Bruton testified that he relied upon Ringle who had acknowledged the debt to Bruton and had, according to Bruton, said that he would “make things right.” It was undisputed that the Stagecoach’s gross operating income was more than $120,000.00 every year that Bruton worked there.
The bonus provisions were ambiguous. The district court properly admitted Ringle’s and Bruton’s testimony concerning these
Second, Ringle argues that substantial evidence does not support the jury’s vacation pay award. The original contract provided that “[vjacations will accrue at the rate of 1 day per month of [ejmployment.” The parties disagreed whether Bruton took any vacations and whether Bruton lost any vacation time not used. The district court properly submitted this issue to the jury as well, to resolve the factual question of whether Bruton took any vacations and to interpret the unclear contract provision. The jury found that Bruton did not take any vacations and was entitled to payment for unused vacation days. Consequently, the jury awarded Bruton compensation for twelve days of paid vacation for each year of his four years of employment at the Stagecoach. Substantial evidence supports the jury’s award.
Third, Ringle argues that substantial evidence does not support the severance pay award. Bruton argues that whether he quit the Stagecoach or Ringle fired him was a question of fact for the jury to decide. We agree. Both parties testified concerning the circum
Ringle next contends that the district court abused its discretion in denying his motion for a new trial on the grounds that Bruton repeatedly argued that Ringle lied to the jury and intimated that Ringle’s counsel induced perjured testimony.
A district court may grant a new trial based on a prevailing party’s misconduct,
Timely and appropriate objections to instances of attorney misconduct serve at least two purposes. Objections demonstrate that
Timely objections also conserve judicial resources. Objections provide the trial court an opportunity to correct any potential prejudice and to avoid a retrial. This opportunity for correction may also obviate the need for an appeal. In Horn v. Atchison, Topeka and Santa Fe Railway Co.,
The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeated improprieties, thus avoiding the necessity of a retrial. ‘ ‘It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have.”28
We reiterate the requirement in civil cases that counsel timely and specifically object to instances of improper argument in order to preserve an issue for appeal.
In our recent decision in DeJesus v. Flick,
Here, Bruton’s counsel mentioned several times during closing argument that Ringle lied on the witness stand. Ringle’s counsel, however, failed to object to these statements on the now asserted claim that calling a witness a liar is improper.
116 Nev. 812, 7 P.3d 459 (2000).
116 Nev. 812, 7 P.3d 459.
See Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998) (noting that interlocutory orders may be challenged in the context of an appeal from the final judgment).
NRCP 56(c); see Dermody v. City of Reno, 113 Nev. 207, 210, 931 P.2d 1354, 1357 (1997).
See American Bank Stationery v. Farmer, 106 Nev. 698, 701, 799 P.2d 1100, 1101-02 (1990).
27 Am. Jur. 2d Employment Relationship § 31 (1996) (footnote omitted); see L. I. Reiser, Annotation, Employee’s Rights with Respect to Compensation or Bonus Where He Continues in Employer’s Service After Expiration of Contract for Definite Term, 53 A.L.R.2d 384, 385 (1957); 30 C.J.S. Employer-Employee Relationship § 29 (1992).
See, e.g., Russell v. White Oil Corporation, 110 So. 70, 71 (La. 1926) (explaining that “there is no provision of law by which a contract for hire of services, if extended beyond the time first agreed upon, is renewed for another like term”).
Jury Instruction 31 states, “Where an employee is employed for a specified term, and after the expiration of that term continues in the employment without any new contract, there is a presumption that the employment is continued on the terms of the original contract.”
Jury Instruction 27 states, “A contract may be oral, written, or partly oral and partly written. An oral, or partly oral and partly written contract is as valid and enforceable as a written contract.”
Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).
Crow-Spieker #23 v. Robinson, 97 Nev. 302, 305, 629 P.2d 1198, 1199 (1981) (holding that parol evidence, so long as it is not inconsistent with the terms of the written contract, may be admitted to prove the existence of a separate oral agreement as to matters on which the written contract is silent); State ex rel. List v. Courtesy Motors, 95 Nev. 103, 107, 590 P.2d 163, 165 (1979) (stating that parol evidence is admissible to determine intent when the written contract is ambiguous). Ringle incorrectly cites NRS 104.2202 for the parol evidence rule. This UCC Article 2 statute exclusively governs the sale of goods. See NRS 104.2102. •
Bally’s Employees’ Credit Union v. Wallen, 105 Nev. 553, 555-56, 779 P.2d 956, 957 (1989).
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938)), quoted in State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986).
Ringle also challenges each award on the basis that the contract expired, so its terms did not apply, but that issue has been resolved against him. He does not challenge the specific dollar amounts of the awards.
Sandy Valley Assocs. v. Sky Ranch Estates, 117 Nev. 948, 953-54, 35 P.3d 964, 967-68 (2001).
See id. at 954, 35 P.3d at 968; Siggelkow v. Phoenix Ins. Co., 109 Nev. 42, 44, 846 P.2d 303, 304 (1993) (holding that a court must construe an insurance contract as a whole in order to give a reasonable and harmonious meaning to the entire contract).
Dickenson v. State, Dep’t of Wildlife, 110 Nev. 934, 937, 877 P.2d 1059, 1061 (1994).
Ringle’s notice of appeal states this appeal is taken from the district court’s order denying his motion for a judgment notwithstanding the verdict or for a new trial or for a remittitur. An order denying a motion for a new trial is expressly appealable under NRAP 3A(b)(2). An order denying a motion for a judgment notwithstanding the verdict or a motion for remittitur is not. See Uniroyal Goodrich Tire Co. v. Mercer, 111 Nev. 318, 320 n.1, 890 P.2d 785, 787 n.1 (1995); NRAP 3A(b)(2). Thus, we will limit our review to the denial of Ringle’s motion for a new trial.
NRCP 59(a)(2).
Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978).
Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil Company of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)), quoted in Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995).
Southern Pac. Transp. Co., 94 Nev. at 244, 577 P.2d at 1235-36 (explaining that to preserve the issue for appeal, “specific objections must be made to allegedly improper closing argument”).
99 Nev. 63, 65-66, 657 P.2d 1154, 1156 (1983).
394 P.2d 561 (Cal. 1964).
Id. at 565-66 (quoting Tingley v. Times Mirror Co., 89 P. 1097, 1106 (Cal. 1907)).
See Beccard, 99 Nev. at 66, 657 P.2d at 1156.
116 Nev. 812, 817-19, 7 P3d 459, 463-64 (2000).
Id. at 820, 7 P.3d at 464.
Id. at 820, 7 P.3d at 464-65.
Id. at 820 n.5, 7 P.3d at 465 n.5.
Budget Rent A Car Systems, Inc. v. Jana, 600 So. 2d 466, 467 (Fla. Dist. Ct. App. 1992) (quoting LeRetilley v. Harris, 354 So. 2d 1213, 1215 (Fla. Dist. Ct. App. 1978)).
See Rowland v. State, 118 Nev. 31, 39 P.3d 114 (2002).
Concurring Opinion
concurring:
I concur in the result, but object to what I perceive is the resurrection of the standard stated in DeJesus v. Flick
As was explained in the DeJesus opinion, medical experts testified that Flick sustained permanent brain and nerve damage, and her continual headaches, dizzy episodes, blackouts, memory loss, neck pain, and curling of her hands in a claw-like manner were permanent.
The majority opinion does claim that the evidence in DeJesus did not support the $100,000.00 awarded as future medical expenses, but only $21,000.00, as indicated by Flick’s experts.
Finally, the majority claims that the DeJesus verdict could only be explained by the inflammatory language used by Flick’s attorney. This simply is not true. The evidence on damages was more than sufficient to support the verdict, with the exception of the excess damages awarded for future medical expenses. As explained in the DeJesus dissent, Flick was injured when DeJesus, in a rage, cut off the vehicle Flick was riding in and sent it crashing into the highway median.
By now stating that the damages awarded in DeJesus were not supported by the evidence and that the sole reason for the award was the improper remarks of counsel, the majority is repeating the same errors made in DeJesus, giving new viability to a decision that was thought to be rejected by a majority of the justices on this court.
I concur in all other aspects of the majority opinion.
116 Nev. 812, 7 P.3d 459 (2000).
See Canterino v. The Mirage Casino-Hotel, 118 Nev. 191, 195, 42 P.3d 808, 810 (2002) (Maupin, J., concurring .and agreeing with the dissent in DeJesus); DeJesus, 116 Nev. at 823, 7 P.3d at 466 (Rose, C. J., dissenting with Shearing and Leavitt, JL).
116 Nev. at 814, 7 P.3d at 461; id. at 824, 7 P.3d at 467 (Rose, C. J., dissenting).
Id. at 820, 7 P.3d at 464-65.
Id. at 823, 7 P.3d at 466 (Rose, C. J., dissenting).
Id. (Rose, C. J., dissenting).
Id. (Rose, C. J., dissenting).
Reference
- Full Case Name
- EDWARD RINGLE, an Individual, and STAGECOACH CASINO AND HOTEL, a Sole Proprietorship, Appellants, v. ALPHEUS C. BRUTON, II, Respondent
- Cited By
- 81 cases
- Status
- Published