*2 CLARK, Before HATCHETT and Judges, *, Circuit and FITZPATRICK Judge. District * Fitzpatrick, by designation. Honorable U.S. District Duross Judge Georgia, sitting for the Middle District of HATCHETT, Judge: after gaining Department Circuit trol over Eastern Transportation approval of the takeover. Airlines In this action between (Eastern) and one of its former officers agreement, under a severance
benefits PROCEDURAL HISTORY the district are asked to determine whether August 4, 1986, Shipner On filed a two- agreement correctly interpreted complaint against count alleging properly summary judgment. entered *3 Agreement. breach of the alleged Count I Finding the district court’s that Eastern breached the terms of the summary judgment proper, correct and Agreement through pay Ship- its refusal to affirm. ner salary $165,- three times his annual fringe 000 and upon benefits his dismissal FACTS Shipner as an officer. partial moved for a summary I; judgment on Count 1984, August, In J. Robert summary judgment moved for on both appellant, accepted of Vice- complaint. court, counts of the The district Flight Operations Systems President and order, granted a memorandum Eastern’s Chief Pilot with Eastern Air Lines. Prior summary judgment. motion for assuming management position, Shipner pilot ap- had been an Eastern for In response to the district court’s memo- proximately twenty-six years, advancing to order, Shipner randum moved for leave to Captain the rank of in 1967. As a result of supplement complaint amend and under Air Line Pilots Association (d). proposed Fed.R.Civ.P. In a (ALPA) bargaining agreement, collective III, Shipner requested declaratory Count Shipner preserved pilot his Eastern status judgment on he whether would be entitled serving management position. while to receive benefits under the if resigned pilot. he as an Eastern In a
Amid rumors that Eastern was a take- IV, posed Shipner sought target, recovery Count over the Eastern Board of Directors legal expenses fees and related offered incurred severance litigation. The district court twenty of its officers and senior man- Shipner’s denied rule 15 motion agers. to amend January On judgment and entered final for Eastern. signed agreement (Agree- the severance ment) provided to him benefits In his brief filed in this twenty-four termination within months of a time, Shipner the first indicated that he has “change in Company.” control of the employment as terminated his an Eastern “change defined a in control of longer pilot employee and is no an Eastern (1) Company” if to “have occurred any capacity. contends that if ‘person’ is or becomes the ‘beneficial own- sum- we do not reverse district court’s directly indirectly er’ ... of securities of mary judgment, we should remand this Company representing or more of 30% ruling case on the effect of his volun- voting power Compa- the combined tary termination as a under ny’s outstanding then securities....” por- Eastern moves to strike 26, 1986, Shipner’s reply March Air tions of and for a Corpora-
On Texas brief (Texas Air) acquired 47-percent presented tion determination that the issue Shipner’s outstanding By declaratory Eastern’s common stock. relief raised brief 16, 1986, reported opposition June Texas Air that it is moot. to Eastern’s motion strike, acquired 51.25-percent Shipner responds had that the issue outstanding July declaratory common stock. On relief is moot. Eastern dismissed as its Vice Flight Operations Systems
President ISSUES Upon Chief Pilot. termination as an offi- cer, pilot duty. following returned to On raises the issues on 1, 1986, October appeal: Texas Air exercised con- employee.” Shipner court erred in ar-
(1)
the district
whether
gues
ambiguous
phrase “termination
that a contract is
if it is
ruling that the
divergent
is clear and
employment”
“susceptible to either of the
unambiguous;
meanings
by
parties,”
contended for
Club,
UOP, Inc.,
citing Ocean
Inc. v.
Reef
court erred
(2)
the district
whether
(S.D.Fla.1982).
F.Supp.
refusing
extrinsic evidence
to consider
intent;
parties’
Eastern contends that the
“termi-
unambig-
nation of
court erred
(3)
the district
whether
Shipner’s at-
uous. Eastern
partial
motion for
sum-
denying
tempt
plain
to alter the
mary judgment;
your em-
phrase to connote “termination of
(4)
district court abused
whether the
unreasonable,
ployment as an officer” is
Shipner’s motion for
denying
discretion
and that the district court’s determination
supplement the com-
to amend
leave
is correct.
plaint; and
*4
independently
must
review the dis
We
(5)
should consider facts
whether
summary judg
granting
court’s order
trict
pendency
the
of
developed
genuine
any
and determine whether
ment
appeal.
this
of material fact exists. Mercantile
issue
DISCUSSION
Fidelity
and Trust Co. v.
and De
Bank
(11th Cir.1985).
Co.,
posit
Even generally grant re- appellate court will appeal issue in this in- on the basis of facts or issues that lief of the “ter- volves the presented to the district he were not your employment” mination of contained argues apply that this rule portion one supervening develop- factual respect em- argues it means “termination entry ments that occur after employee” while ployment as an Eastern subject ap- judgment which is the Shipner urges it means “termination peal. Shipner argues that where circum- officer.” A your employment as an review changed the time of stances have between makes it of the entire ruling the district court’s and the decision plain created the lucrative that Eastern appeal, preferred procedure is to on packages issue in “golden parachute” at give op- the district court an remand and manage- key this case for its officers changed portunity pass on the circum- officials, pilots not for its or other ment stances. craft- employees. These were retaining offi- purpose of these ed for the cannot Eastern also *7 management key officials cers and other request relief on a fact that was not based fol- terminated or demoted who could be appeal. Because part a of the record on change lowing in Eastern’s control. a employ- Shipner’s voluntary termination of court, was not before the district ment majority Both the and the opportunity neither the nor a Eastern had however, upholding difficulty little have development in its reason to discuss golden para- interpretation of the argues that those answer brief. Eastern a matter of law de- Agreement chute as portions brief which acknowledging that Eastern drafted spite Shipner relief this factual seeks based apply only to Agreement specifically the development should stricken. be court stated that its officers. The district Agreement makes it preamble to the the devel We not consider factual will these severance “clear occurred since the dis opments which have who filled only intended for officers were court’s order because those facts and trict positions. agree- management critical presented to the district issues were not offered to lower level This decision is in line with United ments were not court. employees manage- employment who had no voice in the following as an officer a suc- Opinion, ment of Eastern.” Memorandum attempt. cessful takeover interpreted at 5. The district court further Second, Agreement the was a standard- preamble Agreement’s the to mean that the ized form contract that Eastern drafted to clear [Shipner “is to induce provide golden parachutes Shipner other employ to remain the officers] twenty key other management officials company.” the Id. at 6. The district court none of whom had an entitlement to an Agreement that the conceded was intended pilot’s position. Shipner Eastern argues for officers and senior this factor also indicates that the yet Agreement’s held that the use of the Agreement applies only in capacity phrase your employment” “termination of an officer and explicitly implic- unambiguously your means “termination of itly contemplate Shipner’s unique situation. employee” as an rather than your employment Third, “termination of Agreement the erroneously states officer.” The district court further con- that Eastern could terminate at ceded supports Ship- that extrinsic evidence any time. Although pow- Eastern had the interpretation. ner’s Id. er to terminate from his officer position, it power did not have the to termi- My interpretation provisions nate pilot position from his due to Agreement contrary is to the district bargaining agreement. the collective In majority’s court’s and views. Because the addition, Agreement specify another meaning fails to termination phrase “termination employ- states may that Eastern ment,” inquiry an into the (such “four corners” terminate for cause as the of the entire document necessary. Ship- is commission felony). Again, of a Eastern argues ner unambiguous cannot terminate pilot except as a or, alternatively, that it equally has the two through grievance and arbitration interpretations reasonable parties ad- cedures bargaining under the collective He argues vance. further that a court agreement. consider extrinsic explain evidence to a la- Fourth, the term retirement as used in ambiguity. support tent position, of his is defined as termination of following also asserts that the in- having on based reached the trinsic factors indicated that age sixty-two which is age retirement was intended to mean “termination of pilots Eastern officers. Eastern must employment as an officer” rather than age sixty. retire Finally, at your employment as an prohibits Shipner “disclosing proprie- employee.” tary processes ... or other confidential in- First, Agreement’s purpose, as indi- Shipner argues formation.” that he is like- preamble, cated in Ship- its was to induce ly possess such information as an East- ner and other officers to remain with East- ern officer but not pilot. as an Eastern ern as pendency of a officers law, Under Florida friendly or attempt. hostile takeover is for the court when the con “golden parachute” packages became ef- unambiguous; tract when a contract’s only if fective an officer remained with reasonably term is susceptible of more subsequently but was terminated interpretation, however, than one following it is am control. biguous and the resolution of he needed no induce- *8 jury. is for the ment to remain with Eastern as a Fabrica Italiana Lavora pilot position because his zione protected by Organiche, was Materie S.A.S. v. Kaiser a bargaining collective agreement Corp., that re- Aluminum & Chemical 684 F.2d quired grievance Cir.1982); a proce- 776 arbitration v. Norma Laufer Thus, Fashions, Inc., dure for (Fla. termination. con- 418 So.2d 439 (a tends Agreement applies that the Dist.Ct.App.1982) phrase in contract is am the situation biguous where Eastern his meaning terminates when it is uncertain of
409 deter and still receive the disputed; package. must be severance Reason,” fact). in pertinent part, A “Good as an issue of true ambi mined means: merely guity, does not exist be change your a in position(s) status or possibly interpret cause a contract can which, Company an officer of the your ed in more than one manner. Amer. Med. judgment, represent reasonable Intern, Scheller, 462 7 Inc. v. So.2d promotion your a from posi- status and denied, (Fla.Dist.Ct.App.1984), tion^) 471 review immediately prior as was effect (Fla.1985), denied, 474 U.S. Change So.2d cert. to the company Control of the (1985). assignment L.Ed.2d you any 106 S.Ct. or the duties or which, responsibilities in your reasonable Shipner’s recitation of factors intrinsic to judgment, are inconsistent with this sta- regard document raises a factual issue position(s), any you tus or or removal of ing competing interpreta two which of the any or reappoint from failure to or re- prevail. Shipner’s in tions must Because you position(s), elect except to such terpretation of the at issue is not connection your with termination of just merely possible interpretation a but an Cause, Disability or Re- equally interpretation, an ambi reasonable tirement or as a result of or death jury must resolve. guity exists which a by you other than for Good Reason. exists, Furthermore, ambiguity an because requires at 4. The clause at a to re extrinsic evidence is also admissible reassign minimum that Eastern demote or ambiguity. Sup solve the latent Ace Elec. employment position an officer to some Elec., Inc., ply v. Terra Nova Co. arguably represents a detrimental (la (Fla.Dist.Ct.App.1978) position. in his status or language em tent arises where agrees argu- majority with Eastern’s intelligible suggests ployed is clear and ment that the inclusion of this Rea- “Good single meaning some extrinsic evi presciently son” was inserted into necessity creates a dence apply in the situation at among meanings). or more two view, majority’s hand. In the the “Good Ironically, majority supports its hold- requires Reason” clause ter- citing Italiana, ing by Fabrica a case minate all with Eastern upheld the trial court’s which this voluntarily renouncing right his to return jury regard- submission to the of an issue position safeguarded pilot’s to his to re- ing meaning of term “golden parachute.” ceive his interpretations. had two reasonable Be- disagree majority’s I view that with abundantly cause it is clear to me that the voluntarily must invoke the “Good clause in order to Reason” “Demotion” law, ambiguous similarly I as a matter Agreement. benefits under receive support my cite Fabrica Italiana right nullify Shipner’s could not conclusion. The district court erred in de- pilot and the record and the return as a unambig- ciding that the was are devoid of indication inappro- summary judgment uous and was Shipner bargained away or renounced priate. I therefore the case would remand right his to remain as an Eastern valuable to the district court for a trial on the mer- fact, pilot by accepting its. majority recognizes contrary right his Shipner maintained his true — II. The Reason” Clause “Good pilot position during his tenure as an East- My disagreement majority Consequently, also ern officer. Eastern exer- power by total extent of its ter- extends to its consideration of the so-called cised the minating Reason” or “Demotion” clause “Good officer; deprive him provides following a takeover it could not further Thus, trigger pilot position. did not may voluntarily
an officer termi- his reassign Shipner, Reason” demote or it terminated nation with Eastern “Good *9 Agreement.1 Summary him III. within majority’s The reliance on the “Good Rea- Finally, principal I would follow the tenet is, therefore, son” “Demotion” clause of contract that a law a con unnecessary. strongly against tract is construed most its drafter. Sol & Co. v. Walker Seaboard however, goes majority, on to mis- Co., (Fla. Coast Line R. construe the of this clause Dist.Ct.App.1978). The Eastern officials protect corpo- from successful officers agreements that drafted these intended deprive rate raiders who could incumbent company’s incumbent officers have management “golden parachutes” of their landing following a safe a successful take (i.e. by shifting demoting) these officers attempt. Although surprising over it is not positions from their current to less desir- that Eastern’s new does not incurring able ones the costs of the without want to honor the and ad clause, packages. The there- severance vances an fore, protected Shipner from Eastern’s new support position, I believe the law management demoting posi- him from his requires any ambiguity should be re tion as an officer to some less desirable against solved favor. position following a takeover. This situa- I would remand to the district court for actually tion contrasts what occurred. proceedings further on the merits. takeover, Shipner Prior to the Eastern entitled to officer was both his takeover,
positions. After the Eastern ter- Shipner position.
minated from his officer retained his in his Thus,
formerly-established pilot position. Eastern did not “demote” to his INSTITUTE, MIAMI HEART pilot position Shipner already because was Plaintiff-Appellee, position. entitled to the A demotion would necessarily required have Eastern to volun- tarily position retain in a SULLIVAN, Secretary Louis W. it could have terminated him. In- Services, & Health Human Defendant- stead, Eastern terminated Appellant. company officer of the re-ap- and did not 87-6107. No. point position. him to another Appeals, United States Court Had Eastern demoted after the Eleventh Circuit. position takeover from his senior officer’s mid-management position, Shipner to a March 1989. could have invoked the “Good Reason” argued clause and that there was a situation, position. his status or In this
he is “demoted” because Eastern shifted position
him from his as an officer to an- position
other less-desirable and one to previously
which he was not In- entitled.
stead, in his terminated
officer’s and he returned voluntar-
ily safe-guarded pilot position. to his simply ap- Reason” clause
“Good
ply in this instance. Notably, agrees majority position.
1. that Eastern did reverted to the reassign Shipner pilot position to his