Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1986)

No. 87-4128.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and CANBY, Circuit Judges, and WILLIAM H. ORRICK, Jr.,^**  Senior District Judge.

MEMORANDUM^* 

Appellee, Daniel G. Miller ("Miller"), brought this diversity action against appellants, Mesa Broadcasting Company ("Mesa") and KVWO, Inc., alleging liability for wrongful discharge from his employment under Montana law.¹  Miller claimed that Mesa wrongfully discharged him from his position as general manager, salesman, and announcer of two Billings radio stations owned by Mesa, now known as KOOK/KBIT Radio Stations ("KOOK Radio"). The matter was tried to a jury that found for Miller and awarded him $484,700 in damages. Mesa moved for a directed verdict and for a new trial and/or remittitur on several grounds, but the district court denied all these motions and entered judgment upon the jury's verdict. We affirm.

Mesa owned ninety percent of the partnership, KOOK Associates Ltd., that owned KOOK Radio, and Miller owned the remaining ten percent. KOOK Radio consisted of two radio stations, one broadcasting on AM radio and the other on FM radio.

Miller had been employed at KOOK Radio since 1958 as an announcer and was continuously promoted by successive owners until he became general manager of both radio stations in 1978. Miller was terminated on January 10, 1986. There was conflicting evidence about why Miller was terminated. Mesa contended that Miller was an incompetent manager who caused the KOOK Radio stations to lose money. Miller contended that he had never been adversely reviewed nor had he received any negative communications. Miller presented evidence that he was given different reasons for his termination other than incompetence, and that he was in fact a very competent manager of KOOK Radio. Mesa's motion for a directed verdict on the grounds that (1) a subsequent contract between the parties created a novation, barring the suit, and (2) there was no proof of a violation of public policy, barring Miller's wrongful discharge claim was denied.

The jury found for Miller on all claims and awarded him damages for lost past earnings, future lost wages, damages to reputation, and damages for emotional distress. Mesa filed a motion for a new trial on the grounds that (1) certain letter exhibits should not have been admitted; (2) Mesa's offered instructions Nos. 25 through 32 should have been given; (3) testimony regarding the promissory note between the parties should have been allowed; (4) the verdict was contrary to the clear weight of the evidence; and (5) the damages awarded by the jury and its verdict were influenced by sympathy and prejudice. The district court denied the motion, as well as Mesa's renewed motion for a directed verdict, which was made only on the grounds that there was no public policy violation.

Mesa filed a timely appeal of the district court's denial of its motions under Federal Rule of Appellate Procedure 4(a) (4).

A district court's denial of a motion for a directed verdict and a motion for a new trial and/or remittitur is reviewed under the abuse of discretion standard. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014 1026 (9th Cir. 1981), cert. denied, 459 U.S. 825 (1982). In exercising its discretion, the district court was to determine whether the jury's verdict was supported by substantial evidence or clearly contrary to the weight of the evidence, and this Court may reverse its decision "only if we find that the district court abused its discretion as to each ground upon which its decision was based." Id. at 1027. In reviewing the evidence in the record, this Court may not weigh conflicting evidence or judge the credibility of witnesses, but the sufficiency of the evidence on a given issue is to be viewed in the light most favorable to the prevailing party. Transgo, Inc. v. AJAC Transmission Parts Corp., 768 F.2d 1001, 1029 (9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986).

There were conflicts in the evidence in the record, but the record as a whole shows that there was substantial evidence supporting the jury's verdict. Therefore, the district judge did not abuse his discretion in denying Mesa's motions for directed verdict and for a new trial and/or remittitur. Inglis, 668 F.2d at 1026. The claimed errors in the admission and exclusion of evidence were harmless in view of the substantial evidence in support of the jury's verdict.

The damages were not so excessive that they justify overturning or interfering with the verdict of the jury. "We will not disturb an award of damages on appeal unless it is clearly unsupported by the evidence.... An otherwise supportable verdict must be affirmed unless it is 'grossly excessive' or 'monstrous' or 'shocking to the conscience.' " Chalmers v. City of Los Angeles, 762 F.2d 753, 760 (9th Cir. 1985) (citations omitted). There was a dispute about calculation of damages, but we cannot say the jury reached an incorrect result.

Moreover, the error in instruction asserted by Mesa was never raised before the district judge and is, therefore, not properly before this Court. The claimed error in the instruction regarding the burden of proof was not objected to below, nor was it argued in any of Mesa's post-trial motions. In addition, the issue was only raised before this Court for the first time in Mesa's reply brief. The district court's instruction appears to have stated the law as it was understood by the district court and the parties at the time the case was tried.²  We will not entertain this claim of error when there was no objection, and we grant Miller's motion to strike that portion of the reply brief that raises the burden of proof issue for the first time.

As for the other instructions on damage to reputation and emotional distress and on standards for termination of a managerial employee, there was similarly no objection made to the instructions below, and the error, if any, was either waived or invited. Both counsel agreed on the form of instruction given by the district court.

The district court's denial of Mesa's motion for a directed verdict and motion for a new trial and/or remittitur is affirmed.