*2
GODBOLD,
Before
SIMPSON
CLARK,
Judges.
A.
Circuit
THOMAS
$24,500,
GODBOLD,
including
in the amount of
Judge:
dra
Circuit
$20,-
expenses and
unreimbursed
recovered on his claim for
Plaintiff Hadra
by Blum
unpaid balance owed
000 for the
by defendant Blum and
wrongful discharge
firm in Phoenix.
engineering
against Blum’s coun-
successfully defended
sale
fraud
Hadra in the
alleging
terclaim
for a new
Hadra moved
*3
We
Blum.
find
issues
of his business to
part, limiting
in
granted
court
district
and affirm.
in Hadra’s favor
damages that Ha-
to
issue
new trial
of
January 1976 be-
through
dra had suffered
began
Dealing between Hadra and
breach of the
cause of Blum’s
engineering
his
1972 when Hadra sold
in
of
that the award
contract. The court held
Phoenix, Arizona,
in
consulting firm
the evidence
inappropriate because
$0
for
began working
Blum.
In late
Blum and
that Hadra
contract,
an inference
1974,
not
of a new
under the terms
mitigated all
his
Tehran,
of
reasonably
could have
family moved
Hadra and his
Iran,
damages.1
manage
opera-
so that he could
Blum’s
contractual
and seek new contracts there
tions in Iran
trial
found that
In the second
1975,
22,
July
On
Blum termi-
for Blum.
$97,205.10
right
to receive
Hadra had
nated
duties in Iran and offered
Hadra’s
employment contract
under
terms of his
engineer
a
a
in
project
him
have earned
he could not
and that
offer, however,
rejected
this
Dallas.
of
dili-
money in the exercise
Majorca,
family
and moved his
an island
July
between
gence
in other
Spain.
employ-
the coast of
off
31,
22, 1975,
January
1976. The district
expired by its
ment contract with Blum
$121,705.10,including
court awarded Hadra
31,
stipu-
terms
1976. Hadra
January
own
damages
damages and
the contractual
begin
lated that he did not
look for
trial, plus 6% interest
awarded in
first
employment until his return to
United
thereafter.
August
in
States
urges
that
the district
first
first
of this
the district
trial
case
a new
granted
not have
court should
Hadra,
for
partial
court directed
verdict
proof of
of
ground
trial on the
of lack
holding
of limitations had
that
the statute
rul
mitigate.
A district court’s
failure
run on
Hadra fraudulent-
Blum’s claim that
usually
will
ing on a motion
new trial
of
ly misrepresented
prospects
the business
discretion, but
stand absent an abuse of
remaining
firm. On the
engineering
reviewing a
required
closer
in
scrutiny
found,
response to
issues the
in
inter-
trial
order
district court’s
satisfactorily
rogatories,
that Hadra
jury’s verdict
ground
on the
Iran,
that Blum had
performed
duties
Spurlin
based on insufficient evidence. See
Dallas,
reassigned
not
him
(5th
Corp.,
1245 tract, rejected do Transport Corp., this. The Urti v. Commercial 766, (5th 1973); 769-70 Cir. Indamer theory F.2d this contention. The the offer Crandon, 391, (5th 217 F.2d Cir. Corp. v. of the Dallas was evidence of avail- 1954) (refusal new trial in such to order a post-breach employment able to be con- law). circumstances error sidered presented judge to either law the defendant Under Texas may appeal It not be considered on proving
has the burden of
the amount of
miscarriage
the absence of a manifest
discharged
that a
em
money
justice.
Alabama
See
Great Southern Rail-
ployee
could have earned in
Corp.,
road
v.Co. Allied Chemical
501 F.2d
Chevrolet,
Foyt
A. J.
Inc. v.
See
(5th
1974), opinion adopted by
Cir.
Jacobs,
(Tex.Civ.App.
578 S.W.2d
banc,
(5th
1975).
en
firmative defense in or a judge subjected the trial opposing February counterclaim tensions of deference to the as the
AFFIRMED. body finding to whom fact is constitu- tionally allocated deference to CLARK, A. Judge, Circuit dis- THOMAS pur- has decision which the reached senting: Furthermore, authority. suant granted where a on the Respectfully, disagree I dissent. ground verdict is against majority’s handling of two of the issues *6 evidence, we weight of the exercise closer appeal on by raised Herman Consult- scrutiny ground than where First, in view ing Engineers. my the dis- pernicious some undesirable or influence court erred granting trict in Carl Hadra’s trial, to an has intruded into the because Second, for a new motion even if the trial. judg- his judge extent the has substituted appropriate, of a new was grant ment of of wit- credibility the facts jury district court’s to the charge in the jury. Thereby nesses for of the we mitigation second trial on the issue of protect litigants’ right jury was as a matter damages inadequate of law thereby prejudicing substantially Blum’s Id., at 94-95.
defense. part company with the majority, how- ever, granting for when Hadra’s motion a new it concludesthat new trial was trial, the district court ruled that once the in case because there was no this jury in the first support by trial found Blum had evidence to an inference breached his contract with Ha- in the trial that Hadra could have first dra, not, damages under the mitigated resulting could instruc- from bility partial by 1. In its order and the which amount pertinent part: possible. district court stated in was court feels that upon before them based The court has not, that the concluded plaintiff might have inferred that given, have under the it was instructions mitigated properly within some time after he was ter- reached the conclusion that an minated, upon have inferred that the appropriate, $0 but could not award of was based mitigated analyz- by amount he could [sic] Without which evidence adduced at trial. ing detail, equalled the lower evidence in defendant’s exceeded burden, showing after a of contractual limit of his contractual by defendant, possi- breach establish the begin to look until Upon contract. breach record, August, convinced that I am his return United States review of chose ample evi- to re- trial had Hadra testified that first 1976. overseas, jobless, the summer of verdict. until dence to main advantage take that he could so assignment Blum terminated provisions provide tax federal income Teheran, Iran, 22,1975. on July Hadra for American ex- tax treatment favorable a letter from the by of his dismissal advised and work overseas for patriates who live Blum, which was president, firm’s Herman Thus, apparently Hadra period. extended by delivered Hadra Blum’s market- hand income taxes on hoped to reduce U.S. Mr. termi- ing manager, Ken Wallace. The $50,000 compen- in total the approximately follows: nation letter read as had from Blum sation which he received 2, July discharge Consulting Engineers prior Mr. Hadra Carl course, sojourn- while on 1975. Of July Iran Electronics Industries C/O is- ing Majorca, a Mediterranean resort on Box 66/1500 Hadra Spain, the coast also land off Saltanatabad, Teheran, Iran against possible permitted his claim Dear Carl: July compensation for lost accrue made Herman A decision has been Although January there 22 until Consulting Engineers, Inc. to termi- at trial disagreement over significant upon in Iran your employment nate total com- how of the annual much you Ken delivery of this letter actually Hadra’s sal- pensation package was immediately. Wallace effective Teheran his clear that while in ary, it is Simultaneously, we terminate reimburs- than significantly higher salary was and all allowances and because of country apparently been in this [sic] expenses. request you We hand over to high maintaining a extremely cost of Consulting Mr. Wallace all Herman Blum lifestyle American Iran. satisfactory cards. Engineers, Inc. credit which we all obtains here that simultaneously you employment We offer cake it be- about-enjoying dream our in our Dallas office ing As result of there after feast. Project Design Engineer under the di- only, spent the new trial on of Mr. rection Fernando Meneses. year relaxing Majorca, received the you accept stay this Should $97,205.10 salary expenses for the employed for 12 months after us unexpired of the remainder Dallas, arrival in we will then reimburse income taxes. and avoided federal contract *7 expenses. you moving for reasonable hearing this evidence had jurors The Texas very truly, verdict, Yours evidentiary for the zero ample basis HERMAN BLUM CONSULTING should Hadra believing as do that ENGINEERS, Blum, INC. returned job the offer from accepted /S/_ income taxes. If to By: Dallas Blum, Blum, not wanted to work Hadra had
Herman President compa- have returned and obtained evaluating In Blum’s motion for a choice, at a as he city rable trial, key question is whether there was the returning in 1976. Angeles did Los after in the first adequate presented evidence common sense jury view the took a my trial to the conclusion parties view of what fair between mitigated all of his dam- Hadra could have ruling erred in and the district court resulting Blum’s breach of the ages from zero no basis verdict. there was “Could have miti- employment contract. given jury spe- trial to make some effort At the first gated” Hadra Question interrogatories stated the ma- cial to answer. employment. seek As in to find you “Do stipulated that he did two asked: jority opinion, Hadra number In addition included July the evidence that in to offer preponderance of above, forth the jury termination letter set reassigned Blum Engineering Hadra concerning job heard of- testimony also Dallas, jury The answered that to Texas?” that his fer. Herman Blum testified firm Hadra to Dallas. reassign” Blum “did not job offered a Dallas because firm However, may not have been while Hadra in Dallas and need- heavy “had a workload Dallas, repro- the letter “reassigned” to engineering expertise.”2 ed his Further- clearly indicates that Blum duced above more, had Blum that he condi- explained a new position offer Hadra Engineering did of Hadra’s tioned reimbursement rea- in Dallas. headquarters back at the firm’s expenses from Teheran to moving sonable the jury It was reasonable for to perfectly remaining with Dallas on Blum Hadra’s find, did, although as it apparently Consulting Engineers because had ac- Dallas, to reassign Blum did not Hadra was cidentally trying heard that faith offer of new good did make Hadra a contract negotiate employment with an- office. con- employment at the Dallas This other firm Blum did not want to pay clusion is reasonable when one perfectly back to moving expenses Dallas employment considers of the re- the nature resign shortly and then have Hadra there- lationship and Blum. Ha- between Hadra after. in working dra was for Blum Teheran un- in the first I submit that der the terms of an contract. to support had sufficient evidence before it The terms stated Ha- of that contract Consulting Engineers finding its in represent Engineering dra was its had met burden on its efforts business expand with the damages issue and that Hadra failed government. Iranian Hadra was un- hired completely mitigate his result- only der contract to work Iran. Un- ing discharge. from his wrongful the typical employer-employee like rela- judge gave At the second the trial tionship employer may reassign which an following charge on the employee location, to a new work damages: issue of contract here would not dispute permit After an contract has been Blum to Hadra to its reassign Dallas office. breached, duty has a employee Thus, although found that Hadra mitigate That means that the Dallas, reassigned quite employee must exercise dili- clear from the record that Blum had of- of the gence seeking employment same job fered Hadra a back in this wrongfully or similar as the ter- quality country. minated for a reasonable concludes that majority employee may time. The exercise rea- not job have considered Dallas by seeking sonable diligence offer as relating duty to Hadra’s pays comparable salary mitigate not present because Blum did which consists of a similar this “theory” to the I can no jury. see prestige as the terminated n why reason could not or should employment. relating considered the evidence However, time, a reasonable after job determining Dallas offer whether *8 accept any employee must seek and em- duty Hadra had his to mitigate. fulfilled ployment qualified. for which he is In view, my “theory” presented In the to diligence, an exercise of reasonable first Just as the employee opportunities all must consider majority acknowledges in statement of employment for the kind which he has of facts, it is abundantly seek, clear Hadra was duty employer, a whomever the offered a the firm job provided place employment back in of not a unreasonably Dallas. geographical area distant Ill, 2. Tr.Vol. at 147. job seeking could restrict his efforts employment. of place
from his usual only. area added.) Dallas (Emphasis Collins, Ry. Antonio A. Co. v. In San & P. at the charge given This in 1921 employee discharged supra, the upholds majority first trial. The for the as a switchman position from his limitations on the basis that the charge on in Houston. yards at its company railroad geo- including the duty mitigate, the worker a company offered Although the limitation, “are derived from graphical Kennedy job Antonio at either San law and are not er- long-standing Texas refused and eventu- yards, railroad Collins authority as majority ror.” The cites Acknowledging wrongful- filed suit. Co., ally 99 Tex. Cigar Kramer v. Wolf Stores general duty to discharged employee’s ly (1906), Antonio & S.W. San Kramer, the as mitigate stated in Collins, (Tex. Ry. A. P. Co. v. 61 S.W.2d Ry. Co. held that Antonio & A. P. San Comm.App.1933). My view is that under general duty to miti- Collins satisfied case Texas law circumstances of this “making a reasonable effort gate by duty not narrow to search Houston; employment secure other employment for new to an area not “unrea- accept employment at distant his refusal to sonably place distant from his usual of em- change of residence and places, involving i.e., ployment,” Teheran. security in the Houston loss of charge had the effect district court’s rights under the con- was within his yards, to secure new limiting Hadra’s efforts at 89. tract.” 61 S.W.2d employment only Teheran or somewhere Therefore, law as charge long-standing else in Iran. under the However the Texas & A. P. given as would not have been Kramer Antonio stated and San job opportuni- be, allowed to consider Hadra’s case addresses the Ry. may Co. neither evaluating ties back in the United States miti- geographical duty limitation on the duty to miti- modern, whether he had satisfied sophisticated in the gate context gate. relationships large between engaged operations firms in multinational majority are upon by The cases relied expatriate and their American thousands of on which to insufficient basis companies their employees who serve duty limitation on the geographical age In this when American busi- abroad. mitigate. brought Kramer was an action engaged in overseas actively nesses are by wrongfully discharged employee who exploration, ventures such as oil business had cigar manager served as a store in the mining, projects construction of all in 1902. There beginning Dallas area world, parts it is unrealis- kinds that, discharged, evidence indicated once authority relied on tic to conclude from cigar manager store ex— re- majority that Texas law would by the made no effort to secure other discharged expatriate quire discharge after his and be- employee to search for himself, fore he went into business foreign of their former only vicinity reason, states, that he knew assignment. attempt that the secure character as that which he had same just happened what in this But that as there
of defendant would be useless effectively forced the case. The trial court open were none such in Dallas. job ignore oppor- jury in the second trial to tunities that Hadra had in the United However, although S.W. at duty States its consideration discharged Texas court did hold that a em- Texas law would mitigate. my opinion, ployee diligence must secure “by expatriate employee who require that an ... another substantially to se- job overseas and is unable loses his grade same character and as that which he *9 held,” general cure specific the court made no men- assignment should manager vicinity tion of that overseas cigar the former store country within a in this his home return to and undertake of time period here. to secure
serious efforts limitation geographical
Application circum- mitigate under the duty illogical, ease necessitates of this
stances
unnecessary result. court erred
I would hold that the district for a new motion appellee’s verdict of I would vacate the
trial. trial and reinstate in the second Failing the first
jury’s verdict judge’s charge
that, the trial I submit that trial on the issue in the second unfairly prejudiced appel- the issue
lant, a new trial on necessitating D. and The Garland
Frank BICKEL Association, Firefighters’
Professional
Plaintiffs-Appellees, BURKHART, The Garland Fire
Bob G. Civil Service
men’s and Policemen’s Garland, City and The
Commission
Texas, Defendants-Appellants. 79-1287.
No. Appeals,
United States Court
Fifth Circuit.
AUnit
Dec.