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Stillwell v. The Salvation Army (Cal. Ct. App. - Oct. 6, 2008)

By Shaun Martin

There's not much today. Just a couple of opinions from the Ninth Circuit and one from the California Court of Appeal. For some reason, the beginning of October seems to be fairly slow. I blame professional football and the MLB playoffs.

There is one opinion from a couple days ago that I went back and reread this morning. It's a case from down here in San Diego in which the plaintiff, Arthur Stillwell, sued his longtime employer, The Salvation Army, for terminating him notwithstanding an alleged agreement to do so only for good cause. My initial reaction was that you could definitely think of less sympathetic defendants than The Salvation Army, and I thought that a conservative San Diego jury would be hard pressed to find in favor of the plaintiff. But they in fact did so.

There was no out of control award by the jury -- they gave Stilwell a little over $150,000. But that's still a fair piece, especially for a public interest defendant in a conservative jurisdiction and a fairly amorphous claim of an implied good cause agreement.

So the result itself was interesting. At least to me. Also interesting were the details of the jury's verdict and what transpired thereafter. First, the jury verdict was internally inconsistent -- it was a special verdict, and the jury found that the parties had an integrated written agreement, but nonetheless awarded damages based upon an implied contract that was inconsistent with the terms of the written contract. That doesn't fly. But this is in part due to the structure of the special verdict (not the jury's fault), which directed them to answer the relevant questions (and award damages) notwithstanding the finding on the integrated contract. Still, it's inconsistent. A topic about which I know (and have published) a little bit, in addition to having litigated in the Ninth Circuit.

Also interesting, however, is what the trial court -- Judge Meyer down here in San Diego -- does. He enters a JNOV for the defendant based upon the jury's finding about the written agreement, holding that this finding as a matter of law precludes any recovery for the plaintiff. But as Justice Aaron correctly notes, you can't do that. When there are two inconsistent jury decisions, you can't enter judgment merely by picking one of them. Just like you couldn't enter a contrary judgment by picking the other. At this point, you're looking at a new trial. Which is precisely what Justice Aaron orders.

Parenthetically, this is why you identify and raise these issues before the jury is dismissed. Because one side (here, probably the plaintiff) would probably have wanted the jury to be ordered to redeliberate and resolve the inconsistency, and it might well be that Judge Meyer would have do so upon request. But you can't do that once the jury departs.

So stay on your toes after the jury returns a verdict. There's still some work -- and thinking on your feet -- to be done. Because this is far, far from the first inconsistent verdict ever returned by a jury.

Full post as published by California Appellate Report on October 08, 2008 (boomark / email).