* Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-30581

 

DAVID HERWIG; ROBERT KOPROWSKI;

DIANE VIETRI,

Plaintiffs-Appellants,

versus

MARINE SHALE PROCESSORS INC.; 

MARINE SHALE PROCESSORS TECHNICAL

SERVICE, INC.,

Defendants-Third Party

Plaintiffs-Appellees.

________________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

(92-CV-2753-C)

________________________________________________

August 7, 1996

Before GARWOOD, HIGGINBOTHAM and BENAVIDES, Circuit Judges.*

PER CURIAM:

Plaintiffs-appellants (plaintiffs) filed this suit against

defendants-appellees (defendants), Marine Shale Processors, Inc.

(MSP) and Marine Shale Processors Technical Services, Inc. (MSPTS),

alleging that the defendants, plaintiffs' former employers,

breached certain contracts of employment with the plaintiffs. The
1 McDonald, whose terms of employment were documented in a seven

page written contract, possessed the following "Duties":

"Vice-President of Sales agrees to direct all sales

activities on behalf of principal, including but not

limited to the hiring, training, supervision and firing

of sales personnel." (footnote omitted).

2

jury returned a verdict in favor of the plaintiffs, but the

magistrate judge, before whom the case was tried by consent of the

parties, granted judgment for defendants as a matter of law and

dismissed the plaintiffs' claims. The sole issue advanced by

either side on this appeal is whether there was sufficient evidence

adduced at trial to support the jury’s verdict on liability. We

reverse the judgment for defendants and remand with direction to

enter judgment consistent with the jury’s verdict.

Facts and Proceedings Below

MSP is a family-owned corporation that reprocesses and

recycles industrial waste. In March of 1990, MSP hired Gordon

McDonald (McDonald) for a term of three years as Vice President of

Sales and Marketing.1 In order that McDonald might perform his

contractual duties, the President of MSP, Jack Kent, Sr., created

MSPTS, a separate company established to handle the sales function

of MSP under an agency agreement between the two companies.

Accordingly, in early to mid-1990, McDonald approached the

three plaintiffs based on the recommendations of a headhunting

firm. Plaintiffs contend that, at the time they were so

approached, they had serious reservations about going to work for
2 All three plaintiffs were questioned regarding these "offer

summaries" at trial. Diane Vietri (Vietri) testified that the

"offer summary" she received was erroneous in numerous respects;

the summary omitted the fact that McDonald and Vietri had agreed to

employment for a specific term, and the start date and salary set

forward in the summary were both wrong. Vietri testified that she

telephoned McDonald when she received her "offer summary" to inform

him of these errors. Additionally, the summary of Vietri's offer

mentioned a pre-employment physical, which never took place.

Koprowski also testified that his "offer summary," which apparently

contained errors as well, did not concern him because he viewed the

summary as an "administrative document" that had no bearing on

McDonald's commitment that Koprowski's contract was for three

years.

3

MSPTS because of the controversial reputations of MSP and Jack

Kent. McDonald testified that he was aware of these reservations,

and that he attempted to make his offers of employment attractive

despite these controversial reputations. Ultimately, the

plaintiffs did accept offers of employment at different times

between May and June of 1990.

At the time of their respective decisions to accept MSPTS's

offers of employment, the plaintiffs each received a letter and

"offer summary" from McDonald confirming the oral offers of

employment. These "offer summaries" included information regarding

the employees' respective start dates, salaries, and, in the cases

of plaintiffs David Herwig (Herwig) and Robert Koprowski

(Koprowski), car allowances, bonus incentives, and medical

benefits.2 Vietri and Koprowski signed these "offer summaries" and

returned them to McDonald. The letters containing these summaries

stated that, "It is agreed, however, that neither this offer of

employment, its acceptance, nor the summary of benefits attached
3 Herwig maintains that, in his letter, he put in writing some

of the terms of employment that he wanted. Defendants argue that

Herwig's letter constituted an acceptance of MSPTS's offer with

clarifications concerning his relocation expenses and his incentive

and revenue plans. Herwig's acceptance letter, which MSP signed,

stated: "It is agreed that neither your May 31, 1990 offer letter

or this acceptance letter create a contract of employment." 

4

create a contract of employment." Herwig did not sign his “offer

summary” letter, but instead responded with a letter of his own.3

McDonald testified that the purpose of these form "offer summary"

letters was to get the plaintiffs into the payroll system.

At a sales meeting in November of 1990, Jack Kent expressed

his dissatisfaction with MSPTS's overall performance and intimated

that all of the MSPTS employees would be fired unless their job

performance improved. McDonald thereafter met with the plaintiffs

and, in an effort to alleviate the group's anxiety, began drafting

written employment contracts modeled after his own contract with

MSP. 

Then, on December 27, 1990, Kent informed the plaintiffs that,

effective January 1, 1991, MSP and MSPTS would mutually terminate

the existing agency agreement and that MSPTS employees would be

interviewed for integration into MSP.

On January 3, 1991, McDonald presented written employment

contracts from MSPTS to the three plaintiffs. Evidence was

introduced at trial indicating that these contracts, which were

backdated to December 1, 1990, were intended to memorialize the

understandings reached between McDonald and the plaintiffs during
5

their pre-employment negotiations. Accordingly, the contracts

indicated that the plaintiffs had been hired for a fixed term.

They also contained guaranteed bonuses, sick leave provisions, and

buy-out clauses providing for stipulated damages should the

plaintiffs be terminated during their respective terms of

employment. Defendants maintain that these latter terms were never

discussed during the pre-employment negotiations.

Subsequent to Kent's dissolution of MSPTS, the plaintiffs were

hired by MSP. Vietri confirmed (by letter of January 10, 1991)

that she was working for MSP without change or modification of

certain terms of her former employment with MSPTS, including her

salary, incentive program, health benefits, life insurance, and

disability benefits. Defendants observe that Vietri's letter of

January 10 made no mention of the duration of her contract. And,

in a letter Vietri wrote to Kent on January 16, 1991, the day of

her termination from MSP, Vietri demanded her final paycheck and

compensation for vacation time and an outstanding expense report.

Defendants note that Vietri did not, however, mention the $150,000

buy-out clause set forward in the written employment contract she

received from McDonald, nor did she argue that her contract was for

a fixed term.

Herwig also acknowledged (by letter of January 10, 1991) that

his employment with MSPTS had been terminated on December 31, 1990,

and that his subsequent employment with MSP would "carr[y] . . .

without change or modification" his (MSPTS) salary, incentive
4 Defendants also note that Koprowski failed to complain——upon

receipt of his "offer summary"——that this summary made no mention

of the alleged fixed term aspect of his employment contract, and

that the summary detailed a “new” bonus plan.

5 Specifically, the jury responded "Yes" to interrogatories (one

for each plaintiff) which read, "Do you find from a preponderance

of the evidence that an oral contract of employment for a fixed

term existed between plaintiff [] and defendant, MSPTS?”

6

program, health benefits, car allowance and insurance, disability

benefits, and life insurance. In this signed letter, Herwig made

no mention of the fixed term of employment documented in his

written contract. Additionally, in a demand letter sent to Kent on

January 16, 1991, Herwig likewise failed to make any reference to

his $200,000 buy-out clause or the fixed term nature of his

contract.4

On January 16, 1991, plaintiffs Herwig and Vietri were fired.

Then, on April 5, 1991, Koprowski was terminated, as well.

The plaintiffs filed suit against MSP and MSPTS alleging

breach of the written contracts (dated December 1, 1990) and,

alternatively, breach of the initial oral contracts of employment.

The jury found that each of the plaintiffs had been employed for a

specific term.5 The only issue addressed by either party on this

appeal is whether the evidence sufficiently supports this finding

as to each plaintiff respectively to preclude judgment as a matter

of law thereon in favor of defendants.

Defendants, who had moved for judgment as a matter of law at

the close of plaintiffs' case and again following the presentation
6 In her Order and Reasons, the magistrate judge held that: 

"Considering the overall testimony, the court cannot

concur with the jury verdict that there was a contract of

employment with any of these plaintiffs . . . The issue

is whether an unequivocal agreement for term employment

was made between the parties. It was not. Clearly,

plaintiffs had an expectation and hope of remaining as

long as McDonald, their mentor, was employed. But he had

a term contract. They did not and their testimony and

subsequent actions reflect that."

7

of all evidence, reurged their motion pursuant to Fed. R. Civ. P.

50(b) following the verdict. The defendants also moved,

alternatively, for a new trial. On May 31, 1995, the magistrate

judge granted the defendants’ motion for judgment as a matter of

law.6 The court accordingly entered judgment in favor of MSP and

MSPTS, dismissing plaintiffs' claims. Plaintiffs appeal.

Discussion

In Deus v. Allstate Ins. Co., 15 F.3d 506, 513 (5th Cir.),

cert. denied, 115 S.Ct. 573 (1994), this Court held that, "Judgment

as a matter of law is proper only if, under the governing law,

there can be but one reasonable conclusion as to the verdict."

Furthermore, in light of the deference duly afforded to jury

verdicts, a court should enter judgment consistent with the verdict

so long as there exists "substantial evidence" in support of the

verdict. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.

1969)(en banc). This Court has defined "substantial evidence" as

"evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach
8

different conclusions." Id. When any such "substantial evidence"

exists, judgment as a matter of law contrary to the verdict may not

be entered. Id. Finally, in determining whether or not the

district court properly granted the defendants' motion for judgment

as a matter of law:

"[T]he Court should consider all of the evidence——not

just that evidence which supports the non-mover's

case——but in the light and with all reasonable inferences

most favorable to the party opposed to the motion. If

the facts and inferences point so strongly and

overwhelmingly in favor of one party, that the Court

believes that reasonable men could not arrive at a

contrary verdict, granting of the motion is proper." Id.

at 374.

The relevant substantive law is that of Louisiana. At trial,

the plaintiffs had the burden of proving the existence of their

respective oral contracts, and that these oral contracts were for

fixed terms of employment. In Kushindana v. Antioch Pub. Co., 755

F.Supp. 142, 144 (M.D.La. 1991), the court noted the requirements

set forward in Louisiana Civil Code Article 1846 regarding proof of

oral contracts: If the price or value of an oral contract is in

excess of five hundred dollars, the contract must be proved by “at

least one creditable witness and other corroborating

circumstances." See La. Civ. Code Ann. art. 1846 (“If the price or

value [of an oral contract) is in excess of five hundred dollars,

the contract must be proved by at least one witness and other

corroborating circumstances”). An employee's attestation to the

existence of his or her oral employment contract can satisfy the
7 Plaintiffs note in their brief to this Court that the fixed

term aspect of their respective contracts has been referred to

collectively as "a three year term" because McDonald's contract

with MSP was for a three year term; McDonald and the plaintiffs

testified that the plaintiffs were employed for fixed terms based

on McDonald’s contract for (a fixed term of) three years. The

plaintiffs recognize that, since McDonald had already served some

portion of his contract term before he hired——at different

times——the respective plaintiffs, they did not have full three-year

employment contracts. Nevertheless, plaintiffs contend that their

contracts were to run from the dates on which they were

respectively employed until the date on which McDonald's contract

expired——fixed terms in each case.

8 Defendants maintain that this testimony by Herwig was

inconsistent with the following testimony:

"Q: All right. You had a commitment from Mr. McDonald.

9

requirement of testimony "by at least one witness." See Lanier v.

Alenco, 459 F.2d 689, 691-92 (5th Cir. 1972). And, with regard to

the second requirement of "other corroborating circumstances," only

general corroboration is required. See Samuels v. Firestone Tire

& Rubber Co., 342 So.2d 661, 662 (La. 1977). 

Plaintiffs all testified at trial that they were offered and

had accepted oral contracts for fixed terms.7 Herwig testified

that the "meeting of the minds" between McDonald and himself

materialized during an interview between the two in which McDonald

framed the contract being offered to Herwig in terms of McDonald's

own contract:

"[McDonald] said 'we all have a three-year commitment and

we have, you and I, we have a three-year commitment to

make this program work.' I left that meeting feeling

that if we decided to move forward and if I decided to go

there, that we had a three-year commitment to improve the

corporate image of that company."8
Was that a contract of employment in your mind with MSPTS

or was that a commitment from Mr. McDonald?

A: It was a commitment from Mr. McDonald."

Plaintiffs respond to this by noting that the above testimony,

quoted by the defendants in their brief to this Court, was taken

out of context, as Herwig's testimony continued as follows:

"Q: Okay. Thank you.

MR. MASSEY: I don't think he was finished, Your Honor.

THE COURT: Are you finished?

THE WITNESS: But he was——I believed that he was acting

on behalf of the company."

10

Similarly, Vietri testified that, during her interview with

McDonald:

"[McDonald] told me that he had three years to put this

group together, three years to change the image of this

company, and we would be in position for three years. He

made a promise to me."

Finally, Koprowski testified that:

"[McDonald] said he was there to do the job. We talked

about an 18 to 24 month scenario and at this time, I

think [McDonald] was well into——because this was, you

know, I think June-July. I had mentioned those terms of

around 24 months and of course, that was referencing what

I thought would be a good time period relative to my

situation, but it was always referred back to the time

period he had established to accomplish his mission, so

I guess that would be roughly the same period of three

years that he was under contract with the company.

Q: Under [McDonald's] contract?

A: Under [McDonald's] contract, yes."

In addition to such testimony from the plaintiffs——which at

least minimally constitutes "[proof] by at least one
9 In their brief to this Court, the defendants cite testimony

given by the plaintiffs which could be read as conflicting with

their testimony regarding the fixed term character of the

plaintiffs’ contracts. The defendants have failed to demonstrate,

however, how these portions of testimony must have necessarily

precluded the jury from placing any store in the testimony relied

on by plaintiffs. Accordingly, “[I]t is the function of the jury

as the traditional finder of facts, and not the Court, to weigh

conflicting evidence and inferences, and determine the credibility

of witnesses.” Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.

1969) (en banc).

11

witness"——McDonald also testified that there was a "meeting of the

minds" between the plaintiffs and himself that the plaintiffs were

each offered, and each accepted, an oral contract to work for MSPTS

for a fixed term. This testimony satisfied the second requirement

of La. Civ. Code Ann. art. 1846, that the plaintiff present

evidence of “other corroborating circumstances.” Therefore,

notwithstanding the defendants’ arguments to the contrary,9 we find

that the plaintiffs adduced "substantial evidence" in support of

the verdict.

Moreover, regarding this second requirement of La.Civ.Code

Ann. art. 1846, the plaintiffs also presented testimony given by

Robert Gilbert (Gilbert) and Richard Fuller (Fuller), and noted

that McDonald gave to the plaintiffs——on January 3, 1991——written

employment contracts from MSPTS that "memorialized" the

understandings arising out of the pre-hiring negotiations between

the plaintiffs and McDonald.

The situation of the parties can constitute "corroborating

evidence" in this context. See Higgins v. Smith International,
12

Inc., 716 F.2d 278, 283 (5th Cir. 1983). Plaintiffs presented the

testimony of Gilbert in support of their contention that MSP and

Jack Kent were sufficiently notorious that McDonald and Gilbert,

the "headhunter" who identified the plaintiffs as potential

employees, had considerable difficulties persuading potential

employees, including the plaintiffs, to accept employment offers.

Gilbert testified that:

"Well, apparently MSP was a controversial company. There

were questions concerning some EPA actions against them.

Mr. Kent, Sr. was known as being rather outgoing,

outspoken. There were individuals that were concerned

whether or not they were running the business ethically.

There were other concerns whether or not they would not

be put out of business by the EPA."

This testimony could be reasonably viewed as corroborating

McDonald's assertion that he entered into oral contracts with the

plaintiffs for fixed terms by demonstrating why the plaintiffs

would have naturally sought assurances of job security, and why

McDonald would have felt pressured to provide such assurances.

Gilbert additionally testified that, in dealing with employment

candidates pursuant to his headhunting duties, candidates asked him

whether or not an employment contract (with MSP/MSPTS) was a

possibility, and that Kent told him that, "If someone wants a

contract, tell them it is negotiable."

Additionally, the plaintiffs offered the testimony of Fuller,

who testified that, like the plaintiffs, he was hired by McDonald

under an oral contract of employment for a fixed term: "And Mr.
10 In a trial exhibit entitled "Memo to File" which McDonald

placed with the company's copies of these written contracts,

McDonald stated that the written contracts were intended to

"memorialize" a December 1, 1990, meeting during which he agreed to

"formalize" the conditions that were discussed during the preemployment negotiations.

13

McDonald agreed with you that you would have a term of employment

of at least three years, didn't he?" Fuller answered: "Yes."

Finally, plaintiffs argue that the written contracts presented

to them by McDonald——following a general threat by Kent that all of

the employees of MSPTS were in jeopardy of losing their

jobs——"memorialize" the plaintiffs' oral contracts for specific

terms.10 

While the defendants challenge the credibility and weight of

this evidence, and the issue before us is arguably a close one, we

ultimately conclude that defendants have failed to demonstrate that

“the facts and inferences point so strongly and overwhelmingly” in

the defendants’ favor that we may properly determine that

“reasonable men” could not have arrived at a contrary verdict. See

Boeing Co. v. Shipman, 411 F.2d at 374. The plaintiffs’ testimony

was “of such quality and weight that reasonable and fair-minded men

in the exercise of impartial judgment” (Id. at 374-75) could have

concluded that this testimony satisfied the requirement of La. Civ.

Code Ann. art. 1846 that the (fixed-term) oral contracts at issue

be proven “by at least one witness.” Furthermore, the testimony of

McDonald, Gilbert, and Fuller, as well as the written contracts
11 On remand, the district court will need to address the

plaintiffs’ argument that they are entitled to prejudgment interest

on the damage awards.

14

“memorializing” the employment terms discussed by the parties

before the plaintiffs were hired, constituted “[proof by] other

corroborating circumstances”——also required by La. Civ. Code Ann.

art. 1846——that the plaintiffs were offered, and accepted, oral

contracts for fixed terms.

Conclusion

For the foregoing reasons, we reverse and remand to the

district court with direction to enter judgment consistent with the

jury’s verdict.11

REVERSED and REMANDED