Brady v. Nestor

496 N.E.2d 148, 398 Mass. 184, 1986 Mass. LEXIS 1449
CourtMassachusetts Supreme Judicial Court
DecidedAugust 11, 1986
StatusPublished
Cited by17 cases

This text of 496 N.E.2d 148 (Brady v. Nestor) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. Nestor, 496 N.E.2d 148, 398 Mass. 184, 1986 Mass. LEXIS 1449 (Mass. 1986).

Opinions

O’Connor, J.

In this attorney malpractice case, the jury awarded the plaintiff $30,000. The defendant attorney appealed from the judgment on several grounds. We transferred the case here on our own motion. We reverse the judgment on the ground [185]*185that the evidence did not warrant a finding of damages and order the entry of a judgment for the defendant.

The plaintiff’s amended complaint sets forth two distinct claims. First, the complaint alleges that on May 9, 1975, the plaintiff was discharged from her employment at Itek Corporation (Itek) because she is a woman, and that the defendant negligently failed to file timely complaints of unlawful discrimination with the Equal Employment Opportunity Commission (EEOC), a Federal agency, and with the Massachusetts Commission Against Discrimination (MCAD). As a result, according to the complaint, the plaintiff was barred from obtaining a reinstatement order and an award compensating her for her lost wages and legal expenses, for which she is entitled to damages. The second claim is that on or about June 2, 1975, Itek advised the defendant of its willingness to reinstate the plaintiff to her former position, that the defendant did not communicate that offer to her, and that, if he had done so, the plaintiff would have returned to her former position without loss of pay or benefits. On that claim, the plaintiff seeks damages for her loss of pay and benefits resulting from her failure to return to work.

In his answer, the defendant admits that he agreed to file sex discrimination charges with the EEOC and the MCAD, and that he failed to do so. The answer also admits that on or about June 2, 1975, Itek advised the defendant that it was willing to reinstate the plaintiff to her former position. Contradicting the amended complaint, however, the answer asserts that the defendant communicated Itek’s offer to the plaintiff and that she rejected it.

The parties ’ testimony at trial was consistent with their pleadings and, for the most part, need not be repeated here. It is enough to say that the plaintiff testified that Itek paid her salary until August 1, 1975, that the defendant had not told her about Itek’s June 2, 1975, offer, and that, if he had told her, she would have accepted the offer because she only wanted her job back. The defendant’s testimony, on the other hand, was [186]*186that he told the plaintiff about Itek’s offer1 and that she rejected it on the asserted ground that “she’d be going back into the same kind of circumstances that existed,” and that there were “several people that she would be working for she didn’t feel comfortable with.”

Before the presentation of evidence bearing on damages, the judge submitted several special questions to the jury. In response to those questions, the jury determined, in the plaintiff’s favor, that she had had a valid sex discrimination claim against Itek and the defendant had not filed it properly. But they also determined, in the defendant’s favor, that the defendant had communicated Itek’s reinstatement offer to the plaintiff and she had rejected it.

Following the announcement and recording of the jury’s answers to the special questions, the judge and counsel briefly conferred about damages. During that discussion, defense counsel stated, “I don’t see how the plaintiff can hope to proceed on a damage theory here when the plaintiff failed to mitigate her damages, and failed to accept the reinstatement offer. I think the damage issue becomes moot.” The trial nevertheless resumed.

We discuss the subsequent procedural events in some detail because they bear on a contested matter— whether the defendant adequately preserved his right to appellate review of his motions for a directed verdict and for judgment notwithstanding the verdict on the ground of insufficiency of the evidence of damages. The plaintiff introduced the testimony of an expert concerning what the plaintiff’s probable earnings would have been had she remained in Itek’s employ. After the expert’s testimony, the parties rested. The defendant then filed a written motion that the judge direct the jury to award the plaintiff only nominal damages in the sum of $1.00. The motion stated as grounds that the “plaintiff has failed to prove that her rejection of the reinstatement offer was reasonable, that she mitigated damages, and that she sustained any damages at all, including [187]*187any damages relative to back pay, in the underlying action.” Referring to Smith v. Ariens Co., 375 Mass. 620, 627 (1978), and Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974, 975 (1976), the judge denied the motion without argument, stating that the case would be submitted to the jury “reserving all rights as to legal questions regarding the adequacy of evidence to prove damages, or any other such questions.” In the cases to which the judge referred, we articulated the principle that, except when it is very clear that a directed verdict is required, a trial judge should deny a motion for a directed verdict and postpone the resolution of questions concerning the sufficiency of evidence until the judge rules on a subsequent motion for judgment notwithstanding the verdict pursuant to Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974).

Following the jury verdict awarding the plaintiff $30,000, the defendant filed a motion for judgment notwithstanding the verdict and a memorandum in support thereof. This was consistent with the judge’s earlier reservation of the parties’ rights to raise legal questions concerning the adequacy of evidence on damages. The motion set forth numerous grounds including the following: the “plaintiff failed to prove that she reasonably rejected the reinstatement offer (indeed, plaintiff’s own evidence was that she wanted to be reinstated to her former position at Itek and plaintiff’s husband testified that she had no concern about returning to work for those persons at Itek who had previously been her supervisors) . . . [and] plaintiff’s rejection of the reinstatement offer tolled any back pay liability as of the date the offer terminated. Therefore, plaintiff’s right to claim damages terminated as of August 1, 1975, as of which date she had no damages, or, at best, nominal damages.” In the memorandum in support of his motion for judgment notwithstanding the verdict, the defendant specifically relied on Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), a case in which the Supreme Court held that a discharged employee claiming to be a victim of discrimination is not entitled to an award for pay lost after he has rejected a reinstatement offer unless there are “special circumstances” justifying his rejection of the offer.

[188]*188We are satisfied that the defendant adequately preserved his right to appellate review. We not only rely on the defendant’s statement to the judge before evidence on damages was introduced, referred to above, but we rely also on the defendant’s motion for a directed verdict, on the judge’s reservation of the defendant’s right thereafter to argue the sufficiency of the plaintiff’s evidence on damages, and on the defendant’s motion for judgment notwithstanding the verdict with its supporting memorandum making the same sufficiency of the evidence argument that the defendant makes here.

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Brady v. Nestor
496 N.E.2d 148 (Massachusetts Supreme Judicial Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
496 N.E.2d 148, 398 Mass. 184, 1986 Mass. LEXIS 1449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-nestor-mass-1986.