Farnum v. Brattleboro Retreat, Inc.

FARNUM_V_BRATTLEBORO_RETREAT.94-102; 164 Vt 488; 671 A.2d 1249

[Opinion Filed 22-Nov-1995]

[Motion for Reargument Denied 22-Nov-1995]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                     No. 94-102


Richard R. Farnum, Jr.                                 Supreme Court

                                                       On Appeal from
    v.                                                 Windham Superior Court

Brattleboro Retreat, Inc.                              September Term, 1995



Richard W. Norton, J.

       Herbert G. Ogden, Jr., of Harlow Liccardi & Crawford, P.C., Rutland,
  for plaintiff-appellee

       David A. Gibson, Brattleboro, June K. Mills, Guilford (On the Brief)
  and Richard T. Cassidy of Hoff, Curtis, Pacht, Cassidy and Frame, P. C.,
  Burlington, for defendant-appellant


PRESENT:  Allen, C.J., Dooley, Morse and Johnson, JJ., and Skoglund, D.J.,
          Specially Assigned

       ALLEN, C.J.   Defendant Brattleboro Retreat, Inc. appeals a jury
  verdict awarding plaintiff Richard Farnum, Jr. damages for wrongful
  discharge, intentional infliction of emotional distress, and quantum
  meruit.  The Retreat argues that (1) as a matter of law, the Retreat's
  employee handbooks did not create an implied employment contract obliging
  the Retreat either to follow certain progressive disciplinary steps or to
  fire plaintiff only for serious misconduct; (2) the court erred in
  permitting the jury to substitute its judgment for that of the Retreat as
  to whether plaintiff had committed serious misconduct; (3) there was
  insufficient evidence to support the jury's determination that plaintiff
  was not fired for cause; (4) as a matter of law, plaintiff failed to show
  that the Retreat's conduct in firing him was extreme and outrageous; (5)
  the jury failed to follow the court's instructions regarding plaintiff's
  quantum meruit claim; (6) the verdict should be reversed because of juror
  misconduct; and (7) the trial court erred in awarding interest on the
  damages from the date of the filing of plaintiff's complaint.  We reverse

 

  the jury award for intentional infliction of emotional distress; in
  all other respects, we affirm the verdict.

                                         I.

       Plaintiff began part-time work at the Retreat in 1972 when he was
  seventeen years old. In 1980, he transferred from the engineering
  department to the boiler room to become Lead Power Technician, a position
  he held until he was discharged in 1988.  Sometime in 1984, at the
  suggestion of his supervisor, plaintiff bought a small dump truck, which he
  leased to the Retreat for various jobs.  Over the ensuing years, this
  sideline became a lucrative business for plaintiff, involving an
  ever-growing number of trucks and other equipment.  While plaintiff
  continued to receive a salary at the Retreat and to obtain private jobs
  involving his trucking company, the Retreat paid him over one-half million
  dollars between 1984 and 1988 for the use and rental of his equipment.

       In October 1987, an upper-level manager at the Retreat, Richard Sarle,
  observed plaintiff supervising a Retreat employee, who was operating
  Retreat equipment to dig a foundation for the new home of the Retreat's
  Chief Executive Officer (CEO), Dr. William Beach, Jr.  Sarle immediately
  called plaintiff's direct supervisor, Ralph Pecorrelli, who then went to
  the work-site and told plaintiff and the other Retreat employee to cease
  what they were doing.  Shortly after the incident, Sarle sent plaintiff the
  following memorandum:

     On Tuesday I was very disappointed to observe a hospital
     employee and hospital bucket loader being utilized on Upper
     Dummerston Road to dig a portion of the foundation hole for Dr.
     Beach's new home.

     . . . .

     It is very important that employees know that there is a separation
     between hospital projects and private personal projects.

     I informed Ralph of this problem and he has assured me that you
     were informed to stop and use your own equipment and own
     employee.

     Such confusion cannot continue as it should be perfectly clear that

 

     Retreat employees are not to do private work while being paid by
     the Retreat.  If this continues it would be grounds for disciplinary
     action.

       The next day, plaintiff wrote Sarle a letter stating that the Retreat
  employee was on his lunch hour and that plaintiff had never charged the
  Retreat for its use of his bucket loader, which at the time of the incident
  was being operated at the Retreat gravel pit.  Sarle then checked the
  Retreat records and noted that plaintiff had billed the Retreat for a full
  day's use of the equipment he had seen at the site of Dr. Beach's new home. 
  Confronted with this information, plaintiff's wife wrote Sarle a letter
  stating that she had erred in billing the Retreat rather than Dr. Beach;
  accordingly, she refunded $575 to the Retreat.

       In November 1987, Sarle wrote a memorandum to Dr. Beach detailing the
  above facts and recommending that plaintiff be placed on probation for six
  to nine months, and that the Retreat terminate its relationship with
  plaintiff's trucking company.  As Sarle testified at trial, Dr. Beach
  decided not to follow through on Sarle's recommendation.  The following
  year, Dr. Beach's ties to the Retreat were severed, and Sarle took over as
  the Retreat's CEO in August 1988.

       In February 1988, a new employee, Frank Johnson, was hired to work
  directly under plaintiff at the Retreat.  According to his trial testimony,
  Johnson became very uncomfortable working for plaintiff because, on a
  number of occasions, plaintiff had Johnson do plaintiff's private work on
  Retreat time.  Johnson eventually reported these incidents, and in November
  1988, three months after Sarle took over as CEO, plaintiff was fired for
  misuse of Retreat resources.

       In April 1991, plaintiff sued the Retreat, claiming damages for
  wrongful discharge, intentional infliction of emotional distress, and
  quantum meruit for the loan of a tank truck. Following a six-day trial, the
  jury awarded plaintiff $90,000 on the wrongful discharge claim, $50,000 on
  the intentional-infliction-of-emotional-distress claim, and $5850 on the
  quantum meruit claim.  Defendant now appeals the judgment order entered
  upon the jury's verdict and the court's refusal to grant his motions for
  judgment notwithstanding the verdict and for new trial.

 

                                        II.

       The Retreat first challenges the jury's award on plaintiff's wrongful
  discharge claim.  In response to the court's special interrogatories, the
  jury found that (1) an employment contract arose between plaintiff and the
  Retreat; (2) the employment was on an at-will basis; (3) the employment was
  modified so that the Retreat was not permitted to discharge plaintiff
  without good cause; (4) the Retreat did not fire plaintiff for good cause;
  and (5) as a result of his termination, plaintiff suffered damages in the
  amount of $90,000.

                                     A.

       The Retreat argues that the court erred in permitting the jury to find
  that the Retreat's handbook provisions, which included disclaimers in the
  two most recent handbooks, created an employment contract that required the
  Retreat either to fire plaintiff only for serious misconduct or to issue a
  series of warnings before firing him for lesser misconduct or for poor
  performance.

       Three handbooks were admitted into evidence at trial.  Under the
  heading, "Performance Problems," the 1982 handbook states as follows:

     If after a reasonable time your performance does not improve, or
     if you have violated a Retreat rule or regulation, in most cases you
     are given a verbal warning.  Continuing failure to improve, or
     subsequent violations, result in written warnings.  Three written
     warnings are considered cause for dismissal.  Cases of serious
     misconduct may call for immediate action, including the possibility
     of termination, without the above process of counseling and
     warnings.

       Under the same heading, the 1986 handbook states as follows:

     In most cases, a system of progressive warnings is used.  You
     will usually receive an oral warning.  Continuing failure to
     improve, or subsequent violations, result in written warnings.
     Three written warnings will result in dismissal.

     In some cases, you may be placed on probation with or without
     previous warnings.  Probation is for a specified length of time
     during which you'll have the opportunity to improve your
     performance.  An employee on probation may be terminated
     without warning.

     Cases of serious misconduct or poor performance call for

 

     immediate action, including the possibility of termination, without
     the above warning process.

  This handbook then provides "examples of some, but not all, conduct
  which may subject [an employee] to disciplinary action, including
  suspension with or without pay, or immediate discharge."  One of the
  examples provided is the misappropriation, misuse, or destruction of
  Retreat supplies, material, or equipment.  In the same section, the
  handbook states: "All judgments about termination are made at the Retreat's
  discretion."

       In another section entitled "Employment," under a subheading entitled
  "Employment At Will," the 1986 handbook states that "[a]ll employment is at
  will," and that "termination may occur by either party at any time."  The
  1988 handbook includes essentially the same relevant provisions as those
  contained in the 1986 handbook.  Plaintiff signed acknowledgments for both
  the 1986 and 1988 handbooks stating that (1) he had received a copy of the
  handbook, (2) he understood that he was responsible for becoming familiar
  with its contents, and (3) he understood "that the Handbook does not
  constitute a contract of employment."

       Plaintiff surmises that the jury probably relied on the 1982 handbook
  in finding that his at-will employment had been modified to require good
  cause for termination.  He argues that such reliance is justified because
  the Retreat failed to prove that it provided additional consideration for
  the disclaimers added to the later handbooks, or that plaintiff consented
  to modification of the employment contract embodied in the 1982 handbook. 
  Plaintiff also argues that, even if the later handbooks apply, the
  disclaimers they contain are not sufficiently conspicuous to alter the
  implied employment contract he had with the Retreat.  The Retreat contends
  that, as a matter of law, the later handbooks apply and effectively
  disclaim any implied contract created by the provisions contained therein. 
  Thus, according to the Retreat, the court erred by allowing the jury even
  to consider whether the handbooks created an implied employment contract.

       Given the contents of the handbook provisions, we conclude that it
  was, at best from the

 

  Retreat's perspective, a jury question as to whether the handbooks
  created an implied contract. Assuming the later handbooks apply, see In re
  Certified Question, 443 N.W.2d 112, 113, 120 (Mich. 1989) (employer may
  make changes in written discharge-for-cause policy, even without reserving
  right to do so, as long as employee is given reasonable notice of policy
  changes), the provisions contained therein send mixed messages regarding
  whether employees can be discharged without cause.  While one provision
  states that all employment is at will, other provisions indicate that
  employees can be discharged only after a series of progressive warnings are
  given, except in cases involving serious misconduct or poor performance. 
  Further, these latter provisions contain specific examples of conduct that
  might subject employees to disciplinary actions, including immediate
  discharge.

       The mere inclusion of boilerplate language providing that the employee
  relationship is at will cannot negate any implied contract and procedural
  protections created by an employee handbook.  See Ross v. Times Mirror,
  Inc., No. 94-224, slip op. at 4 (July 7, 1995) (giving handbook disclaimer
  dispositive effect regardless of circumstances or other handbook provisions
  would allow employer to benefit from offering morale-enhancing procedures
  and then use disclaimer to forego those procedures when convenient); Jones
  v. Central Peninsula Gen. Hosp., 779 P.2d 783, 788 (Alaska 1989)
  (one-sentence disclaimer followed by eighty-five pages of detailed text
  covering company polices failed to inform employee that personnel manual
  was not part of employment contract; rather, manual created impression
  that, notwithstanding disclaimer, employees had certain job protections);
  Toussaint v. Blue Cross & Blue Shield, 292 N.W.2d 880, 895 (Mich. 1980)
  (because employer presumably benefits from providing employees with
  procedural protections through improved employee attitude and quality of
  work, employer may not treat as illusory promise to dismiss for cause
  only); Small v. Springs Indus., 357 S.E.2d 452, 454-55 (S.C. 1987)
  (equitable and social policy reasons militate against allowing employers to
  promulgate potentially misleading personnel manuals while reserving right
  to deviate from them at their own caprice; if company policies are not
  worth paper they are printed on, then it would

 

  be better not to mislead employees by distributing them).

       The so-called disclaimers in this case are merely some of the many
  provisions contained in, or associated with, the Retreat's employee
  handbooks.  These provisions must be evaluated in the context of all the
  other provisions in the handbooks and any other circumstances bearing on
  the status of the employment agreement.  See Zaccardi v. Zale Corp., 856 F.2d 1473, 1476-77 (10th Cir. 1988) (disclaimer does not automatically
  negate provisions in personnel manual; rather, disclaimer must be read by
  reference to parties' reasonable expectations and norms of conduct).
  Considering the handbooks in their entirety, the jury could have reasonably
  concluded that they created an implied contract precluding the Retreat from
  discharging plaintiff without cause.  See Taylor v. National Life Ins., 161
  Vt. 457, 464-65, 652 A.2d 466, 471 (1993) (personnel policy manual may
  create implied contract obligating employer to fire employees for cause
  only).

                                     B.

       The Retreat argues, however, that the handbook term "serious
  misconduct" was too indefinite for the trial court to permit the jury to
  substitute its judgment as to whether plaintiff committed serious
  misconduct.(FN1)  Citing Hunt v. IBM Mid America Employees Fed., 384 N.W.2d 853, 857 (Minn. 1986), the Retreat contends that because the term "serious
  misconduct" was not defined in its handbooks, it was too indefinite to
  create an implied contract that could be interpreted by the jury.  This
  argument is without merit.  Unlike the manual at issue in Hunt, the instant
  handbooks provided specific examples of misconduct warranting immediate
  discipline and specific procedures to follow in cases not involving serious
  misconduct.  See Owens v. American Nat'l Red Cross, 673 F. Supp. 1156, 1166
  (D. Conn. 1987) (employee handbook, unlike manual

 

  in Hunt, provided examples of acts of misconduct that might lead to
  discipline; therefore, there was material issue of fact for jury as to
  whether handbook was contract and whether employer breached contract);
  Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 883 (Minn. 1986)
  (though handbook did not define "serious misconduct," it provided
  procedures definite enough for jury to consider whether employee's
  contractual rights had been violated).

       Here, after retiring to deliberate, the jurors asked the trial court
  to define "serious misconduct."  The court responded, with the agreement of
  the parties, by writing the jury a short note stating that serious
  misconduct is not subject to a legal definition in the context of this
  case, that the 1986 employee handbook gives a general framework of what is
  not tolerated and sets forth examples of serious misconduct, and that the
  jury should consider the handbooks along with all the other evidence in the
  case in determining what is serious misconduct.  Assuming the Retreat
  preserved its objection to the trial court's instruction regarding serious
  misconduct, we find no error.  Nor do we find error, as claimed by the
  Retreat, in the court refusing to provide the jury with examples of types
  of conduct that could justify immediate discharge.

       The Retreat also argues that, as a matter of law, it was justified in
  discharging plaintiff for serious misconduct.  We disagree.  Viewed in a
  light most favorable to plaintiff, the evidence showed that the Retreat had
  a very loose attitude toward the private use of Retreat resources by its
  employees, including those employees in supervisory and managerial
  positions.  Although plaintiff was given a written warning about using
  Retreat resources for his private work on Dr. Beach's house during Retreat
  hours, there was evidence that (1) Dr. Beach declined to accept Sarle's
  recommendation that the Retreat place plaintiff on probation and cut its
  ties to plaintiff's trucking company; (2) after plaintiff went to see Sarle
  about the warning he received, Sarle told plaintiff that working for Dr.
  Beach was a "ticklish" situation and that plaintiff would have to use his
  best judgment to resolve the situation; (3) at least one supervisor
  utilized Retreat equipment and personnel during Retreat time after Sarle
  took over as CEO in August 1988; and (4) the Retreat did not have a
  specific written policy on misuse of Retreat resources until two weeks

 

  before plaintiff was fired in November 1988.  Further, plaintiff
  presented evidence that challenged, at least in some respect, all of the
  incidents of plaintiff's alleged misuse of Retreat resources related in
  Johnson's testimony.  Upon review of the record, we conclude that the jury
  could have reasonably determined, in light of the above evidence, that
  plaintiff's actions did not constitute serious misconduct, and that
  plaintiff was not given fair notice that his actions could result in
  termination without further warnings.  Cf. In re Gorruso, 150 Vt. 139, 146,
  549 A.2d 631, 636 (1988) (discharge for cause may be upheld if employee's
  conduct was egregious enough that discharge was reasonable and if employee
  had fair notice that such conduct could result in discharge).  Accordingly,
  we uphold the jury's award with respect to plaintiff's wrongful discharge
  claim.  See Center v. Mad River Corp., 151 Vt. 408, 413, 561 A.2d 90, 93
  (1989) (if any evidence fairly or reasonably supports nonmoving party's
  claim, judgment notwithstanding verdict would be improper).

                                        III.

       The Retreat also challenges the jury's award on plaintiff's
  intentional-infliction-of-emotional-distress claim, arguing that, as a
  matter of law, plaintiff failed to show that the Retreat's conduct in
  discharging him was extreme and outrageous.  We agree that the award cannot
  stand.

       To establish a claim for intentional infliction of emotional distress,
  plaintiff must demonstrate that extreme and outrageous conduct, done
  intentionally or with reckless disregard of the possibility of causing
  emotional distress, resulted in the suffering of extreme emotional
  distress.  Denton v. Chittenden Bank, ___ Vt. ___, ___, 655 A.2d 703, 706
  (1994).  The trial court must determine, as a threshold issue, "whether the
  conduct was so extreme and outrageous that a jury could reasonably find
  liability."  Id.  The standard for establishing outrageous conduct is a
  high one: the conduct must be so outrageous in character and so extreme in
  degree as to go beyond all possible bounds of decent and tolerable conduct
  in a civilized community.  Id.  The test is objective; the plaintiff must
  show that the harm resulting from the inflicted distress was

 

  so severe that no reasonable person could be expected to endure it. 
  Baldwin v. Upper Valley Services, Inc., 162 Vt. 51, 57, 644 A.2d 316, 319
  (1994).

       Mere termination of employment cannot support a claim for intentional
  infliction of emotional distress, but "if the manner of termination evinces
  circumstances of oppressive conduct and abuse of a position of authority
  vis-a-vis plaintiff, it may provide grounds for the tort action." Crump v.
  P & C Food Markets, Inc., 154 Vt. 284, 296, 576 A.2d 441, 448 (1990).  In
  Crump, the jury's award for emotional distress was supported by evidence
  showing that an employee with eighteen years service was summarily fired
  after being falsely accused of theft, kept in a three-hour meeting with no
  opportunity to leave or eat lunch, and badgered to sign a confession.

       Here, plaintiff presented the following evidence in support of his
  emotional distress claim. Some of these facts were disputed at trial, but
  we view the evidence most favorably to plaintiff. Center, 151 Vt. at 413,
  561 A.2d  at 93 (in reviewing grant or denial of motions for directed
  verdict or judgment notwithstanding verdict, evidence is viewed in light
  most favorable to nonmoving party, excluding effect of all modifying
  evidence).  At the time he was terminated, plaintiff had worked for the
  Retreat for sixteen years, a period that included all of his adult life.
  The Retreat summoned plaintiff on his day off by emergency beeper and fired
  him without warning in a three-minute meeting.  The personnel officer did
  not give plaintiff a reason for his discharge other than to say that the
  decision came from the top and that the material was up in the office. 
  Plaintiff had no opportunity to rebut the charges.  When plaintiff returned
  to the boiler room after being fired, another employee said to plaintiff
  that he was sorry plaintiff was leaving, which gave plaintiff the
  impression that everyone knew he had been fired.  After plaintiff was
  fired, the Retreat inquired about the location of some scaffolding. 
  Plaintiff contends that the Retreat should have anticipated that plaintiff
  would infer from this inquiry that the Retreat was insinuating plaintiff
  took the staging, which at that time was at the home of another Retreat
  employee.  The Retreat later told plaintiff that it had fired him for
  misuse of resources, notwithstanding the fact that various Retreat
  officials had directed him to use Retreat resources

 

  for private purposes.

       The conduct of the Retreat, even viewed in a light most favorable to
  plaintiff, does not amount to extreme and outrageous conduct, and pales in
  comparison to the conduct in Crump and the other cases cited by plaintiff. 
  Indeed, in cases with facts similar to the instant case, courts have
  refused to find outrageous conduct.  See Toth v. Square D Co., 712 F. Supp. 1231, 1238 (D.S.C. 1989) (discharging long-term employees with no notice
  and escorting them from plant in presence of their peers when they had
  dedicated most of their adult lives to company was not sufficiently
  outrageous to support liability on emotional distress claim); Corum v. Farm
  Credit Servs., 628 F. Supp. 707, 718-19 (D. Minn. 1986) (abruptly firing
  plaintiff after years of loyal service and requiring him to clean out his
  desk and leave immediately was not outrageous conduct).  Accordingly, we
  reverse the trial court's denial of the Retreat's motions for directed
  verdict and for judgment notwithstanding the verdict on plaintiff's
  emotional distress claim.

                                     IV.

       Next, the Retreat argues that the jury's award on plaintiff's quantum
  meruit claim must be set aside because the jury failed to follow the trial
  court's instructions to mitigate damages. The evidence showed that shortly
  before plaintiff was fired in November 1988, he volunteered the use of his
  tank truck to clean up an oil spill on Retreat property.  According to
  plaintiff's testimony, he requested that the Retreat clean the tank before
  returning the truck, which he used to spread water on roads for dust
  control.  In December 1988, the Retreat informed plaintiff that it would
  let him know as soon as the tank was cleaned out.  In February 1989, the
  Retreat asked plaintiff to remove his truck from its property.  Plaintiff
  testified that he did not pick up the truck because he believed the Retreat
  would never pay for cleaning it once he removed it from Retreat property. 
  In January 1990, the Retreat demanded that plaintiff make arrangements to
  remove the truck.  Plaintiff again responded that it needed to be cleaned
  before he could use it, and he included a bill charging the Retreat $17,190
  for rental of the truck from February 1989 to January 1990.  The Retreat
  cleaned the tank in the spring of 1991, and plaintiff retrieved the truck

 

  promptly thereafter.

       The jury awarded plaintiff $5850 in damages for use of the tank truck. 
  The jury's reduction of the damages sought by plaintiff indicates that it
  followed the court's instruction to mitigate damages.  Given the evidence
  regarding the Retreat's agreement to clean the tank and its long delay in
  cleaning it, the jury's award was not clearly wrong.  See Hardy v. Berisha,
  144 Vt. 130, 133-34, 474 A.2d 93, 95 (1984) (trial court may not disturb
  jury verdict unless verdict is clearly wrong).

                                        V.

       The Retreat also argues that the jury's verdict must be reversed
  because of juror misconduct.  On the next to last day of trial, a Retreat
  witness heard a juror comment in the jury room that one of the witnesses
  was lying.  Upon investigating the incident, the court learned that the
  juror had been referring to a Retreat witness.  Although the juror stated
  that she had not prejudged the case, the court dismissed her.  The court
  then asked any juror who had been affected by the comment to tell the court
  in chambers in private.  No juror came forward.  After then being polled in
  open court, all the jurors stated that they were not influenced by the
  remark. The Retreat moved for a mistrial, and the court denied the motion.

       In Isabelle v. Proctor Hospital, 131 Vt. 1, 3, 298 A.2d 818, 819
  (1972), this Court held that a new trial may be justified "when a juror
  goes so far as to express an opinion about the case during trial."  In that
  case, however, the juror stated during trial outside of court to persons
  not on the panel that he had made up his mind that the plaintiff should not
  prevail.  See Isabelle v. Proctor Hospital, 129 Vt. 500, 502-03, 282 A.2d 837, 838-39 (1971).  Here, in contrast, the juror's comment was made only
  in the presence of other jurors, and did not reflect her opinion as to how
  the case should come out.  The court dismissed the juror who made the
  comment, and after polling the jury, concluded that none of the other
  jurors had been influenced by the remark. We find no abuse of discretion in
  refusing to grant the Retreat's motion for a mistrial.  See State v. Wheel,
  155 Vt. 587, 600, 587 A.2d 933, 942 (1990) (motions for new trial based on
  juror

 

  misconduct are addressed to trial court's sound discretion).

                                     VI.

       Finally, the Retreat argues that the trial court abused its discretion
  in awarding interest on the jury's award from the date of the filing of
  plaintiff's complaint.  According to the Retreat, although plaintiff's
  wrongful discharge claim was characterized as breach of contract, the
  damages were speculative and not liquidated or readily ascertainable;
  therefore, prejudgment interest was not appropriate.  See Gilman v.
  Towmotor Corp., 160 Vt. 116, 121, 621 A.2d 1260, 1263 (1992) (prejudgment
  interest must be calculated on liquidated or reasonably ascertainable
  damages only).

       We conclude that the Retreat has waived this argument by failing to
  raise it before the trial court.  See id. at 121-22, 621 A.2d  at 1263. 
  During its instructions, the court told the jury that it, rather than the
  jury, would calculate interest on the damages, if there were any.  The
  Retreat made no objection.  After the verdict, the court asked the parties
  to submit recommendations for interest.  Plaintiff filed a memorandum
  recommending that he be awarded approximately $77,000 in interest.  The
  Retreat did not submit a responsive memorandum.  The trial court awarded
  plaintiff approximately $44,000 in interest.  In its motions for new trial
  and for judgment notwithstanding the verdict, the Retreat argued that the
  interest award, assessed at 12%, was excessive given the current actual
  market rates at that time.  The Retreat did not argue, however, that the
  award was improper because the underlying damages were too speculative.
  Therefore, we decline to consider this argument for the first time on
  appeal.

 

       The superior court's denial of the Retreat's motion for judgment
  notwithstanding the verdict is affirmed with regard to plaintiff's wrongful
  discharge and quantum meruit claims, and is reversed with regard to
  plaintiff's intentional-infliction-of-emotional-distress claim.  The matter
  is remanded for entry of final judgment in accordance with the views
  expressed herein.


                               FOR THE COURT:

                               ________________________________________
                               Chief Justice



-------------------------------------------------------------------------------
                                  Footnotes


FN1.   To the extent that the Retreat's brief could be construed as
  arguing that the jury must defer to an employer's reasonable determination
  that it had good cause to discharge an employee, see 1 K. Larson, Unjust
  Dismissal § 9.02[2] (1995) (discussing factfinder's role in determining
  whether employer had good cause to discharge employee), the argument was
  not preserved. Indeed, the Retreat did not object to the special
  interrogatory asking the jury to determine whether plaintiff was fired for
  good cause.  Accordingly, we do not address this issue.