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Thompson v. Better-Bilt Aluminum Products Co.3/28/1996
strates that the trial court carefully instructed the jury on the weight it should give such evidence, we do not believe the admission of the evidence amounted to a clear abuse of discretion on the trial court's part or that prejudice in fact resulted.
Special Interrogatories
At the close of trial, the court instructed the jury on wrongful termination and then addressed the after-acquired evidence issue as follows:
Defendant claims and must prove the after acquired evidence defense. An employer may use after acquired evidence of an employee's material misstatement of fact on an employment application in defense of a suit for wrongful termination.
The term after acquired evidence means evidence that was not discovered by the employer until after the employee's employment was terminated.
Defendant claims it would have had the right to terminate Jason Thompson for a material misstatement of fact on his application for employment. A misstatement of fact is material if it is important and would have resulted in Jason Thompson's immediate termination had Better-Bilt known of it during his employment.
Ladies and gentlemen, you're going to be given two questions to answer. First question: Did Jason Thompson make a material misstatement of fact in his employment application for employment with Better-Bilt? And, then, it says "answer," and there is a line for yes and a line for no, and you put a yes or no, depending on what you find.
Second question: If your answer to the above is yes, would Better-Bilt have discharged or terminated Jason Thompson for the misstatement if it had learned of the misstatement while Jason Thompson was still employed by Better-Bilt? Again, you would answer yes on no.
Ladies and gentlemen, if your answer to both A and B is yes, the Court will later decide whether the after acquired evidence defense would bar any recovery by Jason Thompson or only reduce the amount of damages.
Thompson claims that the trial court's interrogatories were improper because they deprived the jury of rendering a general verdict based upon properly formulated law. Thompson asserts that if the jury had found for him on the wrongful termination claim, its verdict might ultimately be inconsistent with the court's, and that the interrogatories confused the jury about the effectiveness of its general verdict. In light of our foregoing Discussion of the after-acquired evidence issue, however, and the fact that the jury did not answer the interrogatories, we do not conclude that Thompson was prejudiced by the submission of these special interrogatories.
Attorneys' Fees
Because we believe that the action appealed in the second proceeding sounded in tort and not contract, we decline to grant Better-Bilt's request for attorney's fees. See Morris v. Achen Const. Co., 155 Ariz. 512, 514, 747 P.2d 1211, 1213 (1988) (where tort can be committed without a breach of contract, the action does not arise out of contract for the purposes of A.R.S. ยง 12.341.01).
Conclusion
The trial court did not err in dismissing Thompson's negligence and breach of contract claims, nor in instructing the jury. Thompson did not preserve the claim of error premised on McKennon. Thompson was not prejudiced by the special interrogatories to the jury. Accordingly, we affirm.
JON W. THOMPSON, Presiding Judge
Concurring
SUSAN A. EHRLICH, Judge
THOMAS C. KLEINSCHMIDT, Judge
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