Joseph E. Becker v. State of Missouri, Department of Social Services, Board of Probation and Parole
689 F.2d 763
8th Cir.
1982
Check Treatment

*1 763 previously have considered tions. We argument

rejected legis this in view of the Joseph BECKER, Appellee, E. history Speedy Trial Act and lative v. thereto. amendments United 1979 MISSOURI, OF DEPARTMENT STATE 1307, Brim, 630 F.2d (8th 1312-13 v. States SERVICES, SOCIAL BOARD OF OF denied, 1980), 966, cert. 452 Cir. U.S. 101 PAROLE, Appel- AND PROBATION 3121, 69 (1981). L.Ed.2d 980 S.Ct. lant. No. 81-1660. Prosecution; Multiple D. Selective Of- fenses. Appeals, Court of United States Eighth Circuit. alleges that the next district

Stuart in denying evidentiary erred an hear court 12, 1981. Submitted Nov. allegation of prosecu his selective on ing 1, 1982. Decided Oct. however, Defendant, given tion. Rehearing Granted 26, 1982. Nov. to amend motion to dismiss opportunity facts as allege such would establish a prosecution. facie case selective prima so, not do he did

When district court setting dismissed motion as

properly only eonclusory statements. United

forth Larson, 1301, v. 612 F.2d 1304-05 States denied, 936, Cir.), 446 cert. U.S. 100

(8th 2154, (1980); 64 L.Ed.2d 789 United

S.Ct. Brown, 307, (5th 591 F.2d v. 311-12

States denied, 913, 442

Cir.), cert. U.S. 99 S.Ct. (1979). L.Ed.2d he finally alleges

Defendant anything, guilty of one guilty he was

continuing offense sepa three rather than reject We that contention offenses.

rate separate duty owed a to file tax

since respect to each of years. three

returns duty of that sepa breach involved a

Each Paulton, States v. United offense.

rate (8th Cir. United States

F.2d 1964), F.2d Keig, 334 grounds, different United

overruled Cleveland, F.2d 310

States of the dis- judgment and conviction is affirmed. court

trict *2 Gamm, Mo.,

Gordon City, ap- Kansas pellee. Ashcroft, Gen., Atty.

John Robert L. Presson, Atty. (argued), Asst. Gen. Jeffer- Mo., City, appellant. son ROSS, STEPHENSON,* Circuit Before HOWARD,** Judge. Judges, and District HOWARD, Jr., Judge. GEORGE District Services, Department The Board Social Parole, of the State of Probation Missouri, (Social appellant-defendant Serv- ices), appeals the district court’s denial of verdict, judgment for directed its motions notwithstanding (J.N.O.V.) verdict alternative, a motion for a new trial contract breach of action2 in which in this Becker, jury Joseph E. appel- awarded $8,000.00. (Becker), lee-plaintiff argues that the evidence was in- Services to sustain the verdict and the sufficient giving in not appropri- court erred an trial instruction because the trial ate No. 7 does not instruction articulate court’s elements of Becker’s essential We affirm district court. claim. I.

THE FACTS verdict was in favor of Since light the facts will be stated in the evidence, and the reasonable infer- therefrom, most derived ences Medlock, Garoogian v. 592 F.2d Becker. Zoll v. Alla- Eastern District, Community School 588 F.2d makee employment with Social Services 3, 1973, August proba- commenced on parole officer. 25, 1975, Becker wrote So- On November following letter: cial * complaint alleged age Roy Stephenson 2. Becker’s discrimi- L. both assumed The Honorable April Age 1982. in violation of the Discrimination status on nation senior Employment Act of 29 U.S.C. § ** Howard, Jr., George Judge, District Eastern seq. of contract claim under and a breach et Arkansas, sitting by ancillary pendent jurisdiction. Districts and Western or court’s trial designation. a verdict in favor of returned age claim and discrimination Services on Wright, States The Honorable Scott O. United 1. contract claim. for Becker Judge for the Western District of Mis- District souri. If only recently presented

I been this meets your approval, have please complete opportunity my your resignation Masters De- submit formally in con- December, sideration of this information. 1976. gree Ordinarily, completed program truly, have on a very Yours am, therefore, in 1977. I basis part-time Gail D. Hughes a leave of asking for absence effective Supervisor Chief State *3 15, 1976. January My Degree Masters 15th, On December Becker advised Social Work will be in Social with emphasis on by letter: plan and I to do Corrections research on per As your 12-9-75, letter dated I am probation parolees. needs of resigning 2, 1976, effective January I un- my enjoyed work as a I have Probation derstand that in lieu of educational leave Parole Officer and am thoroughly you going on are record as allowing me a the field. supervision committed to I any position choice my available at from District have received 24 has been at the time that rank I desire to return. outstanding and without Mr. Cope’s guid- anticipating I am graduating from Kan- understanding it University ance would have sas in December of 1976 and for me to impossible for accomplish applying been all rehire at will that time. coming that I have since to this District. 31st, On Social Services re- to the opportunity Due by afforded me plied: Cope develop Mr. to community re- sources, have filled all of my I working We have marked our records to show in personal programs hours which I that, desire, you we will re-employ important very are and if feel not contin- you in the Probation & Parole Officer I to our agency. will be lost ued position we have available at the time I as hoped Community had Resource you wish Your salary to return. at that Developer to be able to continue these time be what it is now or the without programs taking away from my step to it in the event salary nearest However, personal life. own since that steps changed again year. are this longer open me, position is no to I have request other alternative but to no this enjoyed We have having you with our leave of absence so that I may pursue you and wish agency best of luck at goals my these and finish education. University. Kansas 9th, On December the following reply degree Becker received his master’s in Becker: by received Work from Kansas University in made to your Reference is letter of No- January, February, 1977. In vember 1975. was hired the Veterans Administration Hospital Chicago, a policy against employ- While the Board has edu- Illinois. This for three sense, leave in the ment lasted May, cational technical months. In 1977, Becker was employed the fact we the Veterans based on would have to Vancouver, Hospital Administration open your position you while hold were Washington. willing go we will be on gone, record to you any position a choice allow availa- Becker testified that he took the Veter- your at rank the agency ble at the jobs Chicago Administration ans this, you By desire return. doing jobs because Vancouver these would afford job promise you we do on your return if opportunity acquire practical him an ex- and we do one is available not have to which would perience qualify enable him to your open you position hold while you specialist’s public service gone. you I sure are am corrections; understand the and that he accepted these of the agency posi- reluctance to hold a because there no openings comparable were open. tion positions City Kansas area. tion may granted. Savage not be v. Chris- October, applica- Becker made Northwest, (8th Services, 543 F.2d 44 Hospital tian reemployment with Social Freeman, 321 City Cox reply immediate Cir. receive not but did 1963). The motion J.N. Cir. F.2d request. verdict, O.V., for a like the motion directed 29, 1978, Becker sent the follow- On June sufficiency of the evidence. legal test mailgram to Social Services: ing trial, 50(b). A new motion for Fed.R.Civ.P. request reinstatement to the hereby I hand, is directed to the sound the other on officer. probation parole trial court. Tsai v. Rosen- discretion Jackson, Clay, location in request a thal, 1961); Cooper v. F.2d 614 County. or Cass Platt Co., 271 F.2d 177 Feed Products Midwest July 13th: responded Social Services (8th the decision due deliberation it is After that the contrac undisputed It is re-employ you agency of this *4 predicat asserted Becker is relation tual Parole Officer. Probation exchanged between upon the four letters ed 11, 1979, his law- Becker filed On October 1975, November to parties from the district in the court. suit law, 31, 1975. Under Missouri performance depends which in contracts II. wish, pleasure will or of one of the upon the the evidence argues that Social Services a unilateral contract. Vondras v. is parties “totally justify insufficient to the sub- and Development Research Com Titanium the contract claim to plaintiff’s of mission Corp., (Mo.App. 883 A S.W.2d pany, to ver- support the is insufficient

jury and Industries, also Coffman Inc. jury.” Social Services returned dict Co., (Mo. 521 S.W.2d 763 Gorman-Taber it never promise that made a contends also Holecroft, 1975); Middleton v. KCD App. Becker; contract, if there it is that is a to (Mo.App.1954). And a uni 270 S.W.2d bilateral; opposed as to clearly unilateral complete becomes when ac lateral r no consideration there is for either that fo performance of the act called cepted by According- or bilateral contract. unilateral County, v. Vernon offer. Smith argues, court the trial ly, Social Services (1905). 87 S.W. Mo. granting Social mo- in not Services’ erred recognizes, as it Services Social verdict, judgment not- a directed tion to a must, consideration essential that verdict withstanding and, the alter- may consist of a detriment simple contract native, for a new trial. motion benefit the promisor. or a to to discussing the merits of Social Before Lambeth, 519 S.W.2d 342 Honeyfield contentions, we fitting it is Services’ D.1975); Springfield Custom (Mo.App. applicable relating rules of law discuss Kraft, Head, (Mo. Inc. v. 430 S.W.2d 593 confronting us. the issues The thrust of Social Services’ App.1968). the evidence to estab is that fails argument a trial court is authoriz- is It settled into the Services entered a motion for a verdict lish that Social grant directed ed attempt with Becker “an 50(a) Fed.R.Civ.P., correspondence where the Rule under anything, a benefit to bargain for either the reasonable inferences evidence It therefrom, plaintiff. to the or a detriment light viewed in the most itself flowing who the entire plaintiff initiated plaintiff, to the and without was the witnesses, to continue his educa exchange and wished credibility are weighing Moreover, contends Social Services justify as a matter of law to tion.” insufficient any performance words, the evidence never In other it verdict. Becker; further, assuming the litigant’s position strongly part one supports evidence of a contractual persons not decide of some could existence “such evidence establishes relationship, the different conclusions. differently or reach crucial terms in- on such conflicting, the mo- variance Also, evidence a wide if the it cannot be binding volved that held persuaded Court is not that the For example, enforcible.” specific Social Services absence period of a of time for states, correspondence only reapply refer to Becker to for employment is fatal returning appears to Kansas to his case. For it University be settled that where there is no purpose of fixed time pursuing degree, imposed a master’s acceptance offer, for the of an the offer Becker, evidence but the reflects that after accepted must be within a December, 1976, reasonable time. employment obtained depends is reasonable What essentially Chicago and Vancouver qualify in order to upon the circumstances in each case. See for accreditation a social worker. And Magee v. Mercantile-Commerce Bank & that Becker testified that “he felt Co., Trust 343 Mo. 124 S.W.2d 1121 no there was limit involving his re- [time] (1939). turn” to Services. essence, Social claims there is no mutuality Significantly, nothing or a there is in the rec- meeting of the minds which ord to indicate that proposi- is fatal Social Services’ contract action. to rehire under the conditions indicated, was not good made in faith. Un- testified that he was told by his less the verdict is so “palpably unreasonable supervisor that the he sought would that reasonable minds can reach no other (Becker) aid him performance it, about the jury conclusions may verdict Services; duties additional upset Killoren, ....’’ Killoren v. (Becker) resigned be- (Mo.App.1963). 370 S.W.2d he was induced to do so by cause *5 Given the circumstances involved in this rehire upon offer to him comple- Services’ case, hold, unwilling we are to as a matter tion of his education. Social Services’ letter law, Becker of that failed to make a sub- to stated, December of missible case. your resignation part, “submit formally in of this consideration information. While III. has a policy against Board the educational argues Social Services that the trial court leave ... we be willing will go to on record giving erred in Instruction No. 7 because you any allow a choice of position to you [if] the instruction omitted several elements es- return.” desire to sential to the establishment of Becker’s con- In response to argument Social Services’ claim. tract Social Services also contends specific the absence of a period that of time C, that its Instruction which was to for Becker seek reemployment is fatal to court, by the trial refused sets forth the claim, Becker’s contract Becker testified essential elements. that he understood the provide offer to that provides: No. 7 Instruction long “. I was . . as pursuing my educa- Your plaintiff, verdict must be for Jo- tion I could come back.” seph against and E. the defend- ant, Granting Parole, Board of Becker the Probation and benefit of ev ery reasonable and you believe: inference which the evidence tends to support, First, the that promised defendant to re- indeed, jury could, find that plaintiff at his upon Services’ hire same rank the letter of completion education; 9th induced Becker to of his master’s and resign his pursue order to Second, his that in reliance on defendant’s objectives; educational that plaintiff Social Services promise the resigned job; his would benefit from achieving and aims; these educational and that Social Third, plaintiff that application promised to rehire Becker to fill to the defendant within a reasonable time any position available at his rank at the education; completion the of his after time he desired to return. and quired the find

Fourth, plaintiff to “that to rehire relied the defendant failed and, plaintiff; upon a the defendant the therefore, appears it Fifth, the the court sub- plain- a direct result that as damaged. theory promissory the on a tiff mitted case estoppel.” provides: Instruction C Requested claim, his the prove In order to is a Instruction No. 7 modified version upon plaintiff establish, the is to burden MAI 26.01. MAI 26.01 is Missouri’s tailored of the evidence preponderance contract cases.3 unilateral following case, facts: passing submissibility of Beck- proposed First: The is defendant evidence, we ruled that it could er’s plaintiff go would back to school law, said, a as matter Becker failed degree, his master’s defendant secure case; a submissible make and that upon plaintiff’s rehire him re- could, from evidence and all rea- degree; ceipt of that flowing therefrom, inferences find sonable plaintiff within Second: binding was a Adhering contract. there by the defendant went back to specified conclusion, we hold that Instruction master’s school secured evidence, only comports 7 not No. addition, material omission without or de- conformity theory is in with Becker’s but fect; and case. Third: Plaintiff did with intent proposal; accept defendant’s hand, In- On other Social Services’ defendant improper Fourth: The was notified C an struction instruction since plaintiff’s time of within it not conform the evidence in the does performance; and clearly The evidence ease. reflects perform Fifth: Defendant its approached did not initially Social Services promise; and advised Social Services that he wanted damaged thereby. Plaintiff to return school order to acquire

Sixth: degree. Social Services did not master’s The substance of argu- Social Services’ propose initially that Becker go should back may be ment summarized: Instruction No. *6 However, the to school. fact that Becker require the 7 not to find does “that contact the initial is not his made fatal to (Social Services) proposed that if defendant contends, and the evidence case. perform plaintiff requested, would as indicates, that Social Services offered carry would promise; out its defendant and resigned rehire him if he his further plaintiff performed requested as with- n since Social Services a addition, education maintained omission, out or [material defect.]” policy “against essence, educational leave.” Aside here, Services argues Social as it Becker’s getting resignation, regard sufficiency from did in of the evi- Social would, issue, upon without request completion a Services of dence on the education, get and a an part employee of Services subsequent Social his who had Becker, by improvements there is no performance consid- substantial qual- his eration; and that Instruction No. 7 re- as probation a officer. ifications provides: Fourth, 3. MAI 26.01 was notified [within defendant a rea- plaintiff’s performance, and time] sonable you plaintiff, must be Your verdict for if Fifth, [substantially] per- defendant did not believe: promise, and his First, form proposed plaintiff defendant Sixth, plaintiff damaged thereby. performance) (set plaintiffs out defend- would you plaintiff believe is not entitled to (set promise), [unless out defendant’s ant would _ by Second, reason of plaintiff recover instruction number learning of [after defend- (here of affirmative in- insert number defense proposal specified time [within the and] ant’s by struction) performance) (set ]. out defendant] [without addition, defect], omission or material Third, plaintiff accept did so with intent to proposal, and defendant’s

769 fact No. 7 plaintiff While Instruction Becker in this case are modified Instruction C instructions of degree received his master’s in January 26.01, really are not materially accepted positions MAI Chicago, 1977 in Illi- different, Vancouver, when Instruction Washington C’s “First” nois and ap- before disregarded, paragraph plying reemployment Instruction No. 7 with Social Serv- conforming City closer to comes to MAI 26.01 ices Kansas in October 1977. Be- originally than C. cause advised Social Serv- seeking ices that he was a leave from his Where, here, the issue to be re complete a master’s job which he was, a is whether contract solved fact expected to obtain made, correctly instruction stating contention appellant’s this was the applicable to such law issue and the submis performance for the of the time issue to the jury of that are proper sion Nevertheless, appeal. some has the corre- instruction is providing misleading. Services, spondence from Social which may Vondras v. Titanium Research and De constituting viewed as the offer for a Company, A velopment Corp., 511 S.W.2d contract, indicates that unilateral Social And (Mo.App.1974). on appellate 883 re would rehire Becker at the time Services the action trial court view will not be Despite to return. the fact desired that it there unless has been disturbed an abuse of quite simple have been Anderson Robertson, discretion. See particular specify time for (Mo.App.1966). After carefully S.W.2d acceptance of its offer to rehire reviewing the evidence and the instructions notably a reference is any such absent from question, we hold that the trial court did correspondence. Therefore, its am giving not err in Instruction No. 7 and compelled to conclude that the offer for a rejecting Requested Social Services’ In contract in this unilateral case did not fix a struction C. performance. time for specific to the argument Relative that Instruction opinion, this court’s As noted in the rule 7No. submitted the case to the appears to in Missouri be that “when no theory promissory estoppel,4 we deem it offer acceptance, is fixed for an sufficient to state that it is clear Instruc- expires upon the expiration the offer of a required showing that Becker re- Industries, time.” Coffman Inc. signed his reliance on Social Co., S.W.2d Gorman-Taber rehire offer to him. Services’ Becker’s the- (Mo.Ct.App.1975). See also Artcraft Cabi- ory of the case from the very beginning has net, Inc., Watajo, Inc. v. 540 S.W.2d resignation been that quid pro (Mo.Ct.App.1976). What is a reasona- Services’ quo to rehire depends upon ble time the circumstances in Accordingly, argu- him. Social Services’ may question each case constitute a *7 rejected. ment is upon depending or fact law those circum- We, therefore, affirm the district court. Magee v. stances. See Mercantile-Com- Co., 1022, Bank & Trust merce 343 Mo. ROSS, Judge, concurring. Circuit (1939). also S.W.2d Coffman Industries, I concur in the court’s opinion, but write Co., Inc. v. supra, Gorman-Taber express my separately concern with the 771. at 521 S.W.2d Contracts, 90 of 4. Section the Restatement of Missouri seem to follow the Restate- Courts promissory discussing estop- concept the doctrine of the doctrine. ment’s See Debron provides: pel, Corp. Corp., v. National Homes Construction plain It is 493 F.2d 352 promisor A should which rea- claim was not submitted Becker’s contract sonably expect to induce action or forbear- theory jury promissory estoppel. ance of a definite substantial character Furthermore, promissory did not assert part promisee and which of the does recovery. estoppel ground as a binding action or forbearance is induce such only by injustice avoided enforce- if can be promise. ment of the case in this circumstances Although the whether or question as to close

present the time delay between months the nine

not and the master’s obtained reemployment with sought unreasonable, believe se I per properly court could have the district question for the of fact

concluded as to the reasonableness presented that under Remembering time.1 review governing appellate

strict standards judg- verdicts and for directed motions notwithstanding the the evi- verdict ments light most be viewed must

dence plaintiff and such motion to the men granted only be

should as to the to be conclusions differ

could evidence, see, e.g., Farner from drawn 1977), Paccar, F.2d could

reluctantly conclude application found

have a reasonable time. within BYRD, Individually on behalf

James situated, similarly others of all Appellants, Dalton, Bruckner, Keat- Marti, O’Gara & Lincoln, Neb., Nedved, C., Gary J. ing, P. Parratt, VITEK, Joseph Robert appellants. Nance, Appellees. Albert Gen., Kirk J. Douglas, Atty. Paul L. Neb., Lincoln, Brown, Gen., Atty. Asst. 82-1425. No. al, Vitek, appellees. et Joseph Appeals, Court United States Eighth Circuit. ARNOLD, Judge, STE- Circuit Before PHENSON, Judge, Senior Circuit Sept. 1982. Submitted GIBSON, Judge. R. Circuit JOHN 1, 1982. Decided Oct.

PER CURIAM. Byrd, an inmate at the James

Plaintiff *8 Penitentiary (NSP), State Nebraska class action under 42 brought this U.S.C. declaratory injunctive relief § administrators of the Prison. against reemployment application for was instructed the trial court 1. The within a whether reasonable time. must consider that it No. 7 Instruction