Filed: May 18, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1098 ROBERT DONNERT; DAVID DONNERT, Plaintiffs - Appellees, and TIFFANY HARTMANN, Plaintiff, v. FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum & Bailey Circus, Defendant - Appellant. No. 14-1147 ROBERT DONNERT; DAVID DONNERT, Plaintiffs - Appellants, and TIFFANY HARTMANN, Plaintiff, v. FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum & Bailey Circus, Defendant - Appellee. Appeals from the United States
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1098 ROBERT DONNERT; DAVID DONNERT, Plaintiffs - Appellees, and TIFFANY HARTMANN, Plaintiff, v. FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum & Bailey Circus, Defendant - Appellant. No. 14-1147 ROBERT DONNERT; DAVID DONNERT, Plaintiffs - Appellants, and TIFFANY HARTMANN, Plaintiff, v. FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum & Bailey Circus, Defendant - Appellee. Appeals from the United States D..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1098
ROBERT DONNERT; DAVID DONNERT,
Plaintiffs - Appellees,
and
TIFFANY HARTMANN,
Plaintiff,
v.
FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum &
Bailey Circus,
Defendant - Appellant.
No. 14-1147
ROBERT DONNERT; DAVID DONNERT,
Plaintiffs - Appellants,
and
TIFFANY HARTMANN,
Plaintiff,
v.
FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum &
Bailey Circus,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:13-cv-00040-TSE-TRJ)
Argued: March 24, 2015 Decided: May 18, 2015
Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Wilkinson
joined.
ARGUED: William Boyle Porter, BLANKINGSHIP & KEITH, PC, Fairfax,
Virginia, for Appellant/Cross-Appellee. Robert Wayne Pierce,
THE PIERCE LAW FIRM, LLC, Annapolis, Maryland, for
Appellees/Cross-Appellants. ON BRIEF: Laurie Proctor,
BLANKINGSHIP & KEITH, PC, Fairfax, Virginia, for
Appellant/Cross-Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
NIEMEYER, Circuit Judge:
David and Robert Donnert, circus performers, horse
trainers, and brothers, commenced this breach-of-contract action
against Feld Entertainment, Inc., which operates the Ringling
Bros. and Barnum & Bailey Circus. They alleged that Feld
Entertainment wrongfully terminated two contracts -- an
April 21, 2010 Circus Acts Employment Contract (the “Employment
Contract”) and an April 21, 2010 Lease of four horses and
related equipment for use in the Donnerts’ circus acts (the
“Lease”) -- and that it violated the Florida Whistle-Blower’s
Act of 1986, Fla. Stat. § 448.102(3), by retaliating against
them for complaining about circus safety and refusing to
participate in a dangerous show.
Before trial, the district court dismissed the Donnerts’
claim under the Whistle-Blower’s Act but permitted the contract
claims to go to trial. A jury returned a verdict in favor of
the Donnerts in the amount of $114,400.
Both parties appealed the judgment. On appeal, Feld
Entertainment challenges two jury instructions given by the
district court and the court’s denial of its post-trial motions.
The Donnerts challenge the dismissal of their Whistle-Blower’s
Act claim and the exclusion of evidence of their out-of-pocket
expenses in proving damages. Because we find no reversible
error, we affirm.
3
I
In the Employment Contract, the Donnerts agreed to perform,
for a fixed duration, a “horse riding act with juggling &
acrobatics” and a “comedy horse riding act,” subject to Feld
Entertainment’s supervision, direction, and control. In the
Lease, the Donnerts leased to Feld Entertainment four trained
horses and related equipment for use in their circus acts.
In Paragraph 7(c) of the Lease, which formed the basis of
the dispute in this case, the Donnerts “acknowledge[d] that
safety [was] of paramount concern to [Feld Entertainment] as it
relate[d] to animals, the public, and [Feld Entertainment’s]
animal care and other staff,” and they promised to “take all
necessary steps to ensure such level of safety.” Also, Feld
Entertainment agreed to “work with [the Donnerts] to facilitate
compliance” with those safety obligations.
The contracts provided for a brief probationary period,
after which Feld Entertainment could terminate the contracts
only if the Donnerts “fail[ed] to perform in a first class,
professional manner, [or] disrupt[ed] or impede[d] [Feld
Entertainment’s] creative and production value and direction of
the Production in any way either through action or failure to
comply with [Feld Entertainment’s] instructions.”
After the Donnerts began training and rehearsing with the
circus, Feld Entertainment modified the order of performances so
4
that the Donnerts’ comedy act would immediately follow a tiger
act. The Donnerts feared that the tigers’ strong smell and the
substantial noise associated with dismantling the tiger cage
would cause their horse, Cornbread, to become scared and run
off, potentially injuring himself, a performer, or a patron.
They believed that their concerns were vindicated when Cornbread
began having difficulties performing the comedy act and when the
horse stepped on David Donnert’s leg during a
rehearsal. In January 2011, Robert Donnert sent Feld
Entertainment an email informing it that “[w]ith the show order
the way it is now it is not safe for my comedy horses.” The
parties discussed the safety issue, and, after they failed to
reach a mutually agreeable solution, Feld Entertainment
terminated the contracts by a letter dated January 9, 2011. The
letter invoked Feld Entertainment’s unfettered right to
terminate the contracts during the probationary period. The
probationary period, however, had already expired. Recognizing
that fact, Feld Entertainment later insisted that it had cause
to terminate the contracts in any event because of the Donnerts’
refusal to perform their acts in the order directed.
The Donnerts commenced this action again Feld Entertainment
for breach of contract and violation of the Florida Whistle-
Blower’s Act. The district court dismissed the Whistle-Blower’s
Act claim pursuant to the Employment Contract’s choice-of-law
5
provision, which specified that Virginia law would govern the
employment relationship. Following a three-day trial, a jury
awarded the Donnerts $114,400 on their breach-of-contract
claims. In denying Feld Entertainment’s post-trial motion for
judgment as a matter of law or for a new trial, the district
court concluded that there was a legally sufficient evidentiary
basis for the jury to find that “the show’s new order presented
safety issues”; that Feld Entertainment “did not attempt in good
faith to work with plaintiffs to resolve [those] safety
issue[s]”; and consequently that Feld Entertainment breached
Paragraph 7(c) of the Lease. The court also rejected Feld
Entertainment’s claims of prejudice based on repeated remarks at
trial by the Donnerts and their counsel regarding excluded
evidence.
From the final judgment entered on the verdict, Feld
Entertainment appealed, and the Donnerts cross-appealed.
II
Feld Entertainment maintains initially that the district
court erred in instructing the jury on the implied duty of good
faith and on the wrongful prevention of performance. The court
gave the following instructions on those subjects:
Both parties to a contract have a duty of good faith
and fair dealing to act as they promised. Such a duty
of good faith and fair dealing is implied in every
contract. Each contracting party is entitled to
6
assume that the other party intends to perform the
contract in good faith. But the duty of good faith
and fair dealing does not add any duties to the
contract not already contained within the terms of the
contract, nor does it change or subtract any duties
from the contract. It is simply a duty to act in good
faith according to the terms of the contract.
* * *
A party to a contract who prevents the other party
from performing his obligations under a contract has
breached the contract. But a party does not breach
the contract if the party exercises a right it has
under the contract.
It is beyond argument that the court’s instructions
accurately stated the law in Virginia. See Keiler v. Valley
Proteins, Inc., No. 88858, 1989 WL 646549, at *2 (Va. Cir. Ct.
June 15, 1989) (holding that a duty of good faith is implied in
employment contracts of definite duration); Ward’s Equip., Inc.
v. New Holland N. Am., Inc.,
493 S.E.2d 516, 520 (Va. 1997)
(holding that the implied duty of good faith “cannot be the
vehicle for rewriting an unambiguous contract in order to create
duties that do not otherwise exist”); Whitt v. Godwin,
139 S.E.2d 841, 844 (Va. 1965) (holding that a contracting party
who wrongfully prevents another party’s performance has breached
the contract). Nonetheless, Feld Entertainment argues that the
instructions should not have been given at all because the legal
principles have no application to the facts of this case. We do
not agree.
7
At trial, the Donnerts argued that by reordering the show
in a manner that was unsafe, Feld Entertainment induced them
either to breach their duty to perform the comedy act as
directed by Feld Entertainment or to breach their duty under
Paragraph 7(c) of the Lease to “take all necessary steps” to
ensure that their acts were safe. They argued that Feld
Entertainment’s conduct in reorganizing the show was wrongful
because its exclusive right to control the sequence of the show
was restricted by Paragraph 7(c), which obligated Feld
Entertainment to work with the Donnerts to facilitate compliance
with their safety obligations, as well as by Feld
Entertainment’s freestanding duty, implicit in the Employment
Contract, to work with the Donnerts in good faith to ensure a
safe performance. Although Feld Entertainment takes issue with
the Donnerts’ interpretation of Paragraph 7(c), their
interpretation is at least plausible, entitling them to have the
meaning of the provision submitted to the jury for resolution.
See Foreign Mission Bd. of the S. Baptist Convention v. Wade,
409 S.E.2d 144, 146 (Va. 1991). And because the challenged jury
instructions were directly relevant to the Donnerts’ viable
theories of liability, the district court did not abuse its
discretion in giving them.
Feld Entertainment next contends that the district court
should have granted its renewed post-trial motion for judgment
8
as a matter of law pursuant to Federal Rule of Civil
Procedure 50(b) because the evidence demonstrated that it had
cause to terminate the Donnerts for refusing to perform as
directed. ∗ Viewing the evidence in the light most favorable to
the Donnerts, however, there was a legally sufficient
evidentiary basis for the jury to conclude (1) that Feld
Entertainment breached Paragraph 7(c) and/or the implied duty of
good faith by reordering the show in a manner that was unsafe
and subsequently failing to address the Donnerts’ safety
concerns, and (2) that, through its breach, it made it
impossible for the Donnerts to meet all of their contractual
obligations.
Feld Entertainment also argues that it should have been
entitled to judgment as a matter of law because the Donnerts
failed to present sufficient evidence of their damages. In
presenting evidence of damages, the Donnerts proved the maximum
weekly pay to which they were entitled under the Employment
Contract and the Lease, the number of weeks remaining in the
agreements at the time they were terminated, and the amount of
income that they secured by other employment, thus mitigating
damages. In finding damages, the jury apparently multiplied the
∗
Feld Entertainment also challenges the denial of its
motion for summary judgment on similar grounds. However, that
denial is not appealable after trial. Bunn v. Oldendorff
Carriers GmbH & Co. KG, 723 F.3d 454, 460 n.3 (4th Cir. 2013).
9
maximum weekly pay by the number of weeks remaining and
subtracted the Donnerts’ other income. Noting that the weekly
pay to which the Donnerts were entitled varied according to the
number of performances scheduled in a given week and the
percentage of those performances in which the Donnerts
participated, Feld Entertainment maintains that this method of
calculating damages was insufficient because the Donnerts
presented no evidence at trial as to how many of the weeks
remaining were full performance weeks. But in a breach-of-
contract claim, a plaintiff need not prove damages with exact
precision; reasonable certainty is sufficient. See, e.g., Isle
of Wight Cnty. v. Nogiec, 704 S.E.2d 83, 85-86 (Va. 2011);
Agostini v. Consolvo,
153 S.E. 676, 680 (Va. 1930). The
Donnerts’ method of proving damages resulted in a reasonable
estimate of what they would have been paid but for their
termination. Therefore, the district court properly denied the
Donnerts’ renewed motion for judgment as a matter of law.
Finally, Feld Entertainment argues that the jury’s verdict
should have been vacated and a new trial granted under Federal
Rule of Civil Procedure 59(a) because the Donnerts and their
counsel made repeated references at trial to two pieces of
evidence that the district court had excluded -- namely,
irrelevant evidence that another one of the Donnerts’ horses had
slipped and suffered injuries while performing a different act
10
with a different Ringling Bros. circus unit, and inadmissible
hearsay evidence of a veterinarian’s discharge report pertaining
to injuries suffered by Cornbread. In denying the motion, the
district court found that the statements did not constitute a
clear miscarriage of justice sufficient to warrant a new trial
because “on those occasions that defendant objected to these
remarks, the objection was sustained and plaintiffs’ statements
were stricken.” Because the trial judge was in the best
position to assess the prejudice caused by the Donnerts’
remarks, we cannot conclude that the district court abused its
discretion in denying Feld Entertainment’s motion. See Konkel
v. Bob Evans Farms Inc., 165 F.3d 275, 280 (4th Cir. 1999)
(holding that a trial judge is entitled to “the benefit of every
doubt” on review of the denial of a Rule 59(a) motion (quoting
Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 438–39
(1996))); Poynter ex rel. Poynter v. Ratcliff,
874 F.2d 219, 223
(4th Cir. 1989) (stating that the denial of a Rule 59(a) motion
“is not reviewable save in the most exceptional circumstances”).
III
With respect to their cross-appeal, the Donnerts contend
that the district court erred in relying on the Employment
Contract’s choice-of-law provision -- which states that “all
claims and disputes relating” to “the employment relationship”
11
are to be “governed by the laws of the Commonwealth of Virginia”
-- to dismiss their claim under the Florida Whistle-Blower’s
Act. They argue that because the provision does not expressly
exclude Virginia’s choice-of-law rules, those rules are
incorporated into the Employment Contract. And under Virginia’s
choice-of-law rules, which call for the application of the law
of the lex loci delicti (“the place of the wrong”) to tort
claims, see Jones v. R.S. Jones & Assocs., Inc., 431 S.E.2d 33,
34 (Va. 1993), the Donnerts argue that Florida law should govern
their retaliatory-discharge claim, given that the Donnerts’
contracts were terminated in Florida.
“In the absence of a contrary indication of intention,”
however, “the reference [in a choice-of-law provision] is to the
local law of the state of the chosen law,” which excludes a
state’s choice-of-law rules. Restatement (Second) of Conflict
of Laws §§ 4, 187(3); see also, e.g., Chan v. Soc’y Expeditions,
Inc., 123 F.3d 1287, 1297 (9th Cir. 1997). Because the
Employment Contract’s choice-of-law provision calls for
application of Virginia local law to “all claims and disputes
relating” to “the employment relationship,” Virginia law applies
to the Donnerts’ retaliatory-discharge claim. Cf. Hitachi
Credit Am. Corp. v. Signet Bank,
166 F.3d 614, 628 (4th Cir.
1999) (holding under Virginia choice-of-law principles that
Virginia law governed the plaintiff’s tort claim, where the
12
employment contract specified that Virginia substantive law
governed interpretation of the contract and all “rights and
obligations of the parties”).
The Donnerts argue alternatively, relying on
section 187(2)(b) of the Restatement (Second) of Conflict of
Laws, that applying Virginia substantive law would offend a
fundamental public policy of Florida by effectuating a waiver of
their statutory right to sue their former employer for unlawful
retaliation and consequently that Florida law should apply.
Conceding that Virginia law also prohibits an employer from
“discharg[ing] . . . an employee because the employee has filed
a safety or health complaint,” Va. Code Ann. § 40.1-51.2:1, the
Donnerts argue nonetheless that § 40.1-51.2:1 does not protect
them because they were terminated in Florida and, as they argue,
that provision does not apply extraterritorially. Virginia’s
Administrative Code, however, expressly provides that “[a]ll
Virginia statutes, standards, and regulations pertaining to
occupational safety and health shall apply to every employer,
employee and place of employment in the Commonwealth of
Virginia,” with several exceptions not applicable here. 16 Va.
Admin. Code 25-60-20. Feld Entertainment is undoubtedly an
“employer . . . in the Commonwealth of Virginia.” Indeed, the
Employment Contract states that there is no other jurisdiction
in which Feld Entertainment maintains significant permanent
13
contacts. Therefore, Va. Code Ann. § 40.1-51.2:1 would have
applied to Feld Entertainment’s allegedly retaliatory personnel
action. And while the Donnerts note that Virginia law is less
protective of whistleblowers than Florida law, “[t]he forum will
not refrain from applying the chosen law merely because this
would lead to a different result.” See Restatement (Second) of
Conflict of Laws § 187(2) cmt. g. The district court did not
err in dismissing the Donnerts’ Florida Whistle-Blower’s Act
claim pursuant to the Employment Contract’s Virginia choice-of-
law provision.
The Donnerts also contend on appeal that the district court
erred in preventing them, as a discovery sanction, from proving
$121,860 of out-of-pocket damages. During the discovery phase
of the litigation, in response to an interrogatory asking them
to itemize the nature and amount of each of their claims for
damages and to produce documents evincing those damages, the
Donnerts identified 14 categories of out-of-pocket damages that
they intended to prove at trial apart from the loss of future
pay under the Employment Contract and the Lease. When, however,
the Donnerts failed to produce documents evincing that they had
actually incurred these damages, Feld Entertainment filed a
motion to compel their production. At a hearing on the motion
on May 23, 2013, the magistrate judge warned the Donnerts’
counsel as follows:
14
[The documents] are overdue. It’s your clients’
lawsuit. . . . [T]here comes a time at which documents
have to be produced or else you can’t rely on them.
So I am going to set that time at 5:00 o’clock [on May
28], and your clients are not going to be able to
claim damages for any out-of-pocket expenses for a
veterinary bill or anything else that [Feld
Entertainment’s counsel doesn’t] have in [her] hands
by close of business [on May 28].
After the Donnerts failed to produce any documents relating to
out-of-pocket expenses by May 28, Feld Entertainment filed a
motion to strike all claims for out-of-pocket expenses as a
sanction under Federal Rule of Civil Procedure 37(b)(2)(A). At
a hearing, the magistrate judge noted that his May 23 ruling
“[took] care of most, if not all,” of the sanctions request.
When, on the eve of trial, Feld Entertainment learned that the
Donnerts planned to offer oral evidence of their out-of-pocket
damages, it filed a motion in limine with the district court to
exclude all testimony and documents relating to those damages.
The district court granted the motion, finding that the
magistrate judge’s May 23 oral ruling prohibited the Donnerts
from claiming at trial any damages for which documentation was
not produced by May 28.
The Donnerts contend on appeal that the magistrate judge
had merely ordered that they could not offer at trial
documentary evidence of their out-of-pocket damages that they
did not produce by May 28, and they argue that the district
court erroneously converted this document-exclusion order into
15
an issue-preclusion order. We conclude, however, that the
district court did not err in its characterization of the
magistrate judge’s order. The magistrate judge specifically
warned the Donnerts that they would not “be able to claim
damages for any out-of-pocket expenses for a veterinary bill or
anything else that [Feld Entertainment’s counsel did not] have
in [her] hands by close of business [on May 28].” (Emphasis
added). Moreover, it would have been unfair to permit the
Donnerts to testify to their out-of-pocket expenses without
providing any receipts or other documentation to substantiate
their estimates. And the record reflects that the Donnerts were
consistently dilatory in complying with their discovery
obligations. Thus, we conclude that the district court did not
abuse its discretion in granting Feld Entertainment’s motion in
limine.
* * *
For the reasons given, we affirm the judgment of the
district court.
AFFIRMED
16
