No. 90-161 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

ROBERT P. BARRETT, Plaintiff and Respondent,

ASARCO INCORPORATED, a New Jersey corporation, Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Dorothy McCarter, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: JamesM. Ragain and Kyle A Gray; Holland and Hart; Billings,Montana For Respondent: GeneA. Picotte,Helena Montana P. Keith Keller; Keller, Reynolds,Drake,Sternhagen and Johnson; Helena,Montana

Filed: Submitted on Briefs: September 6, 1990 Decided: October 25, 1990Justice R. C. McDonough delivered the Opinion of the Court.

In this case, a jury returned a verdict forplaintiff Robert P. Barrett on his theory that the defendantAsarco, Inc. breached the implied covenant of good faith and fair dealing in the employment relationship. The District Court denied Asarco's motions fordirectedverdict, judgment notwithstandingtheverdict, and new trial and entered its judgment in accordance with the jury's verdict. Asarco appeals. We affirm the District Court. Asarco raises the following issues on this appeal:

(1) Did theDistrict Court err in denying Asarco's motion for judgment notwithstanding the verdict and directed verdict on the grounds that there is no substantial credible evidence to support the jury's finding that Asarco breached the implied covenant of good faith and fair dealing when it terminated Barrett's employment? (2) Did theDistrict Court err inadmitting into evidence the former trial testimony of the respondent's brother, Sam Barrett? (3) Did the trial court err in refusing to give Asarco's proposed jury instruction regarding Montana law on the immediate payment of wages to discharged employees? (4) Did the District Court err in refusing to grant Asarco a new trial based on alleged misconduct by Barretttscounsel? Barrett worked at AsarcolsEast Helena smelter for 15 years. Hebegan his employment in 1969 as anhourly worker and in 1973 he

waspromoted to shift foreman,a salariedmanagerial position. On November 26, 1983, Barrett injured his back while replacing aconveyor belt at theAsarco plant. Approximately five months later, on May 8, 1984, Asarco terminated Barretttsemployment. At that time Barrett was still off work and receivingmedical treatment. He was being paid full salary and Asarco was paying his medical bills. At the meeting when Barrett was terminated, the plant superintendent, Robert Hearst, confronted Barrett with information alleging that Barrett had been seen by another Asarco employee unloading hay bales at the Lewis and Clark County Fairgrounds in Helena while he was receiving full salary for his back injury fromAsarco. According to his testimony,Barrett understood that he was being accused of "buckingbalesw at a friend's ranch rather than unloading hay for his race horses which he kept at the fairgrounds. Barrett denied that he was "buckingbalest1and was subsequently fired by Asarco for allegedly lying about his physical activities while he was injured. Barrett filed a complaint against Asarco on May 7, 1985, alleging that Asarco had breached the implied covenant of good faith and fair dealing in the employment relationship. The case

was tried and the juryreturned averdict forBarrett. We reversed the judgment and remanded the case for new trial. 

### See Barrett v. Asarco, Inc. (1988), 234 Mont. 229, 763 P.2d 27. The case was retried on November 13, 1989. The jury returned a verdict in favor of Barrett in the amount of $230,000.00 in compensatory damages. The District Court denied all of Asarcolspost trial motions and entered its judgment in accordance with the verdict.Asarco now appeals raising the aforementioned issues. I. The scope of our review of a jury's verdict is narrow. Our function is todetermine if there is substantial credible evidence in the record supporting the jury's verdict. Krueger v. General Motors Corp. (1989) 783 P.2d 1340, 1347, 46 St.Rep. 2114, 2122. Substantial evidence is that evidence that a reasonablemind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Black's Law Dictionary 1281 (5th ed. 1979); Stanhope v. Lawrence (Mont. 1990), 787 P.2d 1226, 1228-1229, 47 St.Rep. 438, 440. Although itmay be based onweak and conflicting evidence, in order to rise to the level of substantial evidence it mustbe greater than trifling or frivolous. Christensenv. Britton

(Mont. 1990), 784 P.2d 908, 913, 46 St.Rep. 2223, 2230. Where there is substantial evidence to support the jury's verdict the district court's refusal to grant a new trial will not be disturbed. Krueqer, 783 P.2d at 1347;Brothersv. Town ofVirginia City (1976), 171Mont. 352, 358, 558 P.2d 464, 467. Under the law applicable in this case, the implied covenant of good faith and fair dealing is dependent upon objective manifestations by Asarco that would give rise to Barrett's reasonable belief that he had job security and would be treated fairly. Stark v. Circle K Corp (1988), 230 Mont. 468, 475, 751 P.2d 162, 166, citing Dare v. Montana Petroleum Marketing Co.

(1984), 212 Mont. 274, 282, 687 P.2d 1015, 1020. Also, as westated in our earlier remand of this case, theprotection afforded Barrettby the covenant ttnecessarily hinges on the employee's good faith performance of job duties because thecovenant of good faith and fair dealing mandates a reciprocal duty.

## " Barrett, 763 P.2d at 32-33, citing Los Angeles Memorial Coliseum Commission v. NFL

(9th Cir.1986), 791 F.2d 1356, 1361, cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987). Thus, both parties are afforded protection by the reciprocal nature of the covenant, and to rebut allegationsby an employee that the employerbreached the covenant the employer need only show a fair and honest reason for termination. Stark, 751 P.2d at 166-167; Flanigan v. Prudential Federal Savingsand LoanAssoc. (1986),221Mont. 419,426-427,720 P.2d 257, 261. In the case at bar, both parties presented very different versions of the events surroundingBarretttstermination. Much of Asarco'sbrief is devoted toarguing its version of theconflicting evidencepresented in this case. However, the scopeof our review mandates that we concede Barrett's evidence as true and draw all legitimate inferences in favor of Barrett. Krueqer, 783 P.2d at 1347-1348; Brother's, 558 P.2d at 467. Accordingly, Barrett's evidence is sufficient to sustain a verdict that Asarco breached the implied covenant of good faith and fair dealing when it terminatedhis employment. Barrett presented substantial credible evidence that he had a reasonablebelief in job security. He was employed by Asarco for 15 years. He had been promoted to a salaried managerial position. He received regular raises andChristmas bonuses. His job involved supervising and training others, as well as responsibility for production in part of the plant. These are sufficient objective manifestations from which

a jury could find the existence of the covenant. Barrett alsooffered substantial credible evidencethatAsarco lacked a fair and honest reason for terminating him and that Barrett did not breach his reciprocalduty of good faith. Asarco offered evidence to show that Barrett lied about his physical condition, took a fake sick leave, and slept on shift. At the termination meeting, Asarco accused Barrett of "bucking balesvv while he was supposedly injured. Barrettvstestimony indicates that he did not associate this accusation with unloading some hay for his horses at the fair grounds. Barrett testified that because of shift changes, and inability to adapt sleep patterns, as well as the droning, humming noise in the plant, everyone, including him, occasionally falls asleep on the night shift. Barrett denied faking a sick leave. Barrett was also accused of leaving work early in 1981 and was given 4 days off without pay. This was the only time Barrett was ever subject to discipline by Asarco. Barrett was not on probation or subject to disciplinary proceedings when hewas fired. Barrett offered testimony thathis immediate supervisor, Bob Hearst, had a personal dislike for Barrett and was looking for any excuse to get rid of Barrett. Hearst had Barrettvs final paycheck made out prior to this terminationmeeting. The jurywas instructed that if it found that Barrett had been dishonest with Asarco there could be no breach of

### the implied covenantby Asarco. The jury as fact-finder chose to believe Barrett's version of the conflicting evidence offered at trial. It isnot the functionof this appellate court to overturn decisions on findings of fact made by a competent jury properly instructed onhow toview theevidence. Gee

### v. Egbert (1984)

## ,209 Mont. 1, 18-19, 679 P.2d 1194, 1203. 

### Accordingly, we will not disturb the jury's determination in this case because it is supportedby substantial credible evidence. 11. 

### Asarco's second issue alleges that the District Court erred in admitting the transcribed testimony from the first trial of Sam Barrett, theplaintiff's brother, into evidenceat thetrial after remand. Asarco contends that Barrett failed to make a proper showing that his brother Sam was unavailable to testify and therefore admission of his prior testimony is reversible error. See, 

### e.g. Statev. LaCario (1974), 163 Mont. 511, 518 P.2d 982. Rule 804 M.R.Evid. provides a hearsay exception for the use of former testimony if a witness isunavailable: Rule 804. Hearsayexceptions: declarantunavailable.



### (a) Definition of unavailability. Unavailability as awitness includes situations in which thedeclarant:



# ... (5) 

### is absent from the hearing and the proponent of his statement has been unable to procure his attendanceby process or other reasonablemeans. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack ofmemory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing thewitness from attending or testifying. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Formertestimony. Testimony givenasa witnessatanother hearing of thesameor adifferentproceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, (A) in civil actions and proceedings, at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered. 

# .

# . . Citing this rule, Asarco argues that Barrett did not make reasonable efforts to procure Sam's attendance and therefore is precluded from using his prior testimony from the first trial on the grounds of unavailability. We disagree. Generally it is within the discretion of the trial court to accept or reject counsel's representations on unavailability. Republic Security Co. v. PuertoRicoAqueduct and Sewer Authority, (1st Cir.1982), 674 F.2d 952, 957; Bailey v. Southern Pacific TransportationCo. (5thCir.1980), 613 F.2d 1385, 1390. In this case, foundational testimony was given by the plaintiff Barrett outside the presence of the jury regarding the unavailability of his brother to testify at this second trial. Barrett testified that he told his brother the trial date and requested that he be present to testify. His brother allegedly assured him of his presence at the trial. Barrett testified that he was simply unable to locate his brother prior to and during the trial. Barrett arguesthatduediligencedoesnot require issuance of a subpoena in this case because both Barrett and Barrett's counsel believed that it would not be necessary to subpoena a familymember to securehis attendance at trial. Thetrialcourt, in its discretion,accepted thisexplanation. Asarco has theburden of demonstrating that the trial court erredas to whether reasonable means were used. ~ailey,613 F.2d at 1390. Asarco insinuates that Sam's absence was somehowprocured but fails to support such allegations with evidence. In short, Asarco has failed to meet its burden. Furthermore, Asarco experienced little or no prejudice by admission of such hearsay testimony in this, a civil proceeding because the parties and issueswere identical,and Asarco had a full and fair opportunity to develop testimony from Sam Barrett on the same issues through cross-examinationat the first trial. See senerally,McCormick on Evidence, (3rd Ed. 1984), 5 253-257; 4 weinstein's Evidence, 5 804(b)(l); and commission comments to Rule 804 M.R.Evid. and Rule 804 Fed.R.Evid. The ~istrict Court did not abuse its discretion in admitting the former testimony of Sam Barrett. 111. Asarco also contends that the trial court erred by refusing to give Asarco's proposed instruction regarding Montana law on immediate payment of wages to discharged employees. The instructionprovided: You are instructed that Montana statutory law requires an employer who discharges an employee for cause to immediately pay all final wages due to the discharged employee. Failure to pay all such wages due will result in a monetary penalty to the employer. The instructiondoes in fact correctly state the law inMontana at the time Barrett was discharged. See 55 39-3-205(2), 39-3-206, MCA (1983). The record indicates that Asarco prepared Barrett's finalcheck prior to the meeting where Barrett was accused of "bucking balesw and was subsequently terminated. Barrett argues that this supports his theory that Hearst was out to get him; Barrett contendsthat the check was already made out becauseHearstplanned to firehim before Barrett had a chance to give his version of the facts. On the otherhand,Asarco argues that theymerely drafted the check prior tothemeeting sothat they would be in compliancewith the law if they decided to terminate Barrett pursuant to the meeting. They argue that this entitles them to have the jury instructed on this point. We see little merit in Asarco's argument. After questioning Barrett about the alleged hay incident,Hearst could have decided to terminateBarrett, informedhim of such,and then just as easily compliedwith the lawby requestinghim towait a fewminuteswhile

a final paycheck was prepared forhim. Therefore,both sideswere at liberty to argue Hearst's intent in having the check drafted prior to ever meeting with Barrett. In refusing the instruction, the District Court noted: This instruction is also improper because it addressesa collateral issue inthe caseandnot one that the jury was required to find for a verdict. It is immaterial to the jury whether the employer paid wages to the plaintiff immediately upon his discharge; termination procedure was not an issue. The defendant contends that this instruction was pertinent because evidence was presented that the employer had a termination check already made out before he determined whether cause for termination existed. The wroposed instruction does not address the employerlsintent in this resard. Giving this instruction would serve only to confusethe jury and todistract them from the issues they were required to consider. Refusal of thisinstruction does not warrant a new trial. (Emphasis added.) We agreewith this analysis. Theproposed instruction would have only served to confuse and mislead the jury. The District Court did not abuse it's discretion in refusing the instruction. IV

# . Finally,Asarco contends that plaintiff's counsel engaged in misconduct warranting a new trial. It contends that Barrett's counselviolated severalmotions in limine,made comments evincing

a lack of respect for the court's rulings and the judicial system,

as well as a lack of respect for the appellate function of this Court. Upon reviewing the record,we can find no error warranting a

new trial. Asarco failed to object to the comments of Barrett's counsel alleged as misconduct except for one instance during closing argument where the objectionwas apparently overruled and thetrial judgecured anyprejudicial errorby admonishing the jury that nothing said by counsel in argumentwas evidence. Failure to object to alleged error at trial precludes an appellant from raising that issue on appeal. Matter of B.L.O. (1984),213 Mont. 164, 169, 689 P.2d 1246, 1249. Asarco also failed to object to what it now alleges on this appeal are violations of the District Court's in limine rulings regarding emotional distress claims, negative publicity suffered by Barrett due to the first trial and appeal, and exclusion of due process arguments concerning termination procedure. A motion 

## in limine is a pre-trial objection to evidence and need not becontinually renewed to preserve alleged errors for appeal. Beil

v. Mayer (Mont. 1990), 789 P.2d 1229, 1232-1233, 47 St.Rep. 661, 665. Regardless, none of the alleged violations of these motions constitutes error sufficient to warrant a reversal by this Court in this case. First,theDistrictCourt did notpreclude in limine evidence

on emotional distress, rather, the record shows that the court directed a verdict in favor of Asarco on Barrettts emotional distress claims after Barretttscase-in-chief. Any error arising from a reference to emotional distress damages by Barrettts counsel should have been preserved with an objection. In ruling on the motion concerning damages to plaintiff growing out of a post-trial newspaper article, the trial court stated: On motion two,post remand problems which occurred by reason of newspaper articles brouqht about by publicity fromthereversalby the SupremeCourt, Idont t think that is actionable. Even if he is distressed by thenewspaper articles I don't see how that is the fault of the Defendant and so 

### I would have been inclined to grant that. (Emphasisadded.) Asarco alleges that the following statement by Barrett's counsel violates this ruling: They trashed him. They ruined him. Gave him six years of agony,humiliation. These commentsmake no reference to any newspaperarticles,or the affect thereof, and therefore do not violate the order. When asked by his counsel the effect the termination had on his relationship with his familyBarrett did mention the newspaper article. The record contains the following testimony:A. Well, 

### I have had a hard time trying to explain to my kids some of the things they put in the newspaper. Q. (ByBarrett's counsel.) No, wait a minute. There is an order about that. MR. RAGAIN (Counsel forAsarco): Your honor, Iwant the jury instructed to disregard that remark. Especially with regard to they putting [sic] in the newspaper. I want it clear that my client had nothing to do with putting anything in the newspaper. THE COURT: The juryisinstructedtoplease disregard that comment of thewitness. From the record it appears that Barretttscounsel did not attempt to solicit this response. Furthermore, the jury was fully admonished todisregard theanswer. Wewill not reversea judgment unless error affects the substantial rights of aparty. Dahlin

### v. Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241. Any prejudice suffered by Asarco here was minimal, and certainly did not rise to such a level as to deprive Asarco of a fair trial. See e.g. Krueger v. General Motors Corp., supra, 783 P.2d at 1349. Finally, Asarco alleges that Barretttscounsel violated the motion in limine regarding due process in termination procedures during his closing argument. We disagree. In ruling on the motion, the DistrictCourt stated that evidence of the termination proceeding was inadmissible on the question of due process but would be admissible on the question of whether Asarco had a fair and honest reason for terminating Barrett. Regarding these questions, the Court stated that it would "rule on them as they

come up.t' In closing, Barretttscounsel argued: Now theyhaven't got any system in this company. Nobody ever made a memorandum of this after it was over. Youwork for the state or any other big organization 

### Iknow about andmy God youwould have a file on this case this thickbefore theguy was ever even fired. Hewould have hearings and have all kinds of due process and law and everything. ButasYour Honor instructedYOUtheydidn't have to brim a witness asainst him. Didn't even have to sive him any notice as lonq as you think they had a fair and honest reason for firinq him. That is the bottom line. (Emphasisadded.) Here,counsel's argumentwent solelyto the issue ofwhetherAsarco had a fairandhonest reason for terminating Barrett. No errorwas committed. Furthermore,theDistrict Courthas discretion indetermining whether misconduct so prejudices a party as to warrant reversal:

The standardof review forthisCourt indetermining whether amistrial was appropriately denied iswhether there is manifest abuse of the District Court's broad discretionary power. [citationsomitted].



# . . .

# . The District Court judge 

# . . . is in the best position to determine the prejudicial effect of the attorney'sblatant misconduct on the jury. Kuhnke v. Fisher (1987) 227 Mont. 62, 68, 740 P.2d 625, 628.

(Kuhnke 11.) Here, we cannot conclude that the District Court abused its discretion. The judgment is AFFIRMED.

We Concur: A 

# .'

f' 'chief Justice