Doreen Denise Mowery v. The City of Carter Lake, Iowa, a Municipality, Gerald Waltrip, John \"Pat\" Paterson, Mary Schomer, Frank Corcoran, and Ronald Cumberledge, Individuals ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-2014
Filed March 3, 2021
DOREEN DENISE MOWERY,
Plaintiff-Appellee,
vs.
THE CITY OF CARTER LAKE, IOWA, a Municipality, GERALD WALTRIP,
JOHN “PAT” PATERSON, MARY SCHOMER, FRANK CORCORAN, and
RONALD CUMBERLEDGE, Individuals,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
The defendants appeal an adverse judgment in this action by a former
employee for breach of contract, promissory estoppel, and retaliatory discharge in
violation of public policy. AFFIRMED ON CONDITION AND CASE REMANDED.
Robert M. Livingston and Kristopher K. Madsen of Stuart Tinley Law Firm,
LLP, Council Bluffs, for appellants.
Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, for appellee.
Heard by Bower, C.J., and Tabor and Mullins, JJ.
2
BOWER, Chief Judge.
Former city clerk Doreen Mowery sued the City of Carter Lake, Gerald
“Jerry” Waltrip, John “Pat” Paterson, Mary Schomer, Frank Corcoran, and Ronald
Cumberledge (collectively “the defendants”) for breach of contract, promissory
estoppel, and retaliatory discharge in violation of public policy. The defendants
appeal an adverse jury verdict, contending the district court erred in failing to direct
a verdict in their favor on each claim or, in the alternative, to order remittitur of
duplicate damages awarded by the jury.
The defendants assert that, assuming there was a contract which provided
for severance if Mowery’s employment was “terminated” during the five-year term,
“this case is a case where [Mowery] was not reappointed [as city clerk]. She wasn’t
terminated. She wasn’t fired. She wasn’t discharged.” The jury rejected the
defendants’ argument, finding specifically the failure to reappoint Mowery was a
violation of public policy and Mowery’s refusal “to pay dual compensation to
Councilwoman Mary Schomer” was ”a determining factor for her termination on
January 18, 2016.” There is substantial evidence to support the jury’s findings and
conclusions. However, the jury awarded duplicative damages for back pay. We
affirm on all issues except remittitur, and we conditionally affirm the trial court’s
denial of the defendants’ motion for new trial.
I. Background Facts and Proceedings.
Pursuant to Carter Lake City Ordinance 20.01, “At its first meeting in
January following the regular city election the [city] council shall appoint by majority
vote a city clerk to serve for a term of two years.” Compensation is “as established
by resolution of the council.”
3
Mowery was appointed city clerk in 1978, 1980, 1982, 1984, and 1986.
Waltrip was elected as mayor in 1986. Waltrip and Mowery had a very contentious
relationship. Mowery resigned her position in 1988 due to Waltrip’s treatment of
her. Waltrip remained mayor through 1993.
In 2002, Mowery was approached by Carter Lake’s city clerk to help with
getting the city’s financial books in order and board meeting minutes completed,
which had not been kept current for about two years. Mowery was working for an
accounting firm at the time. The city arranged to pay the accounting firm for
Mowery’s time during the two months it took her to complete the tasks.
While she was helping the city, then-Mayor Emil Hauser asked Mowery to
return to Carter Lake as city clerk. Mowery did not want to leave her well-
compensated employment with the accounting firm to return to the city clerk
position unless given some assurances against arbitrary removal. The mayor told
her to write up “what it would take” for her to return. Mowery provided a list, which
included, in part, a “[five]-year contract with a [six]-week severance package to
include full pay, reimbursement for unused vacation and sick pay, and complete
benefits (health, dental, vision, life)”; an annual salary with a 2% pay increase
annually on January 1 for the term of the contract; three weeks of vacation starting
January 2003; funds to attend professional organizations; and a list of priorities
and expectations from the mayor and council. The mayor and council approved,
4
and Mowery returned as city clerk on June 3, 2002, and was reappointed in 2004
and 2006.1
On January 11, 2007, the city council approved a “Letter of Understanding–
Compensation” signed by then-Mayor Russell Kramer and Mowery. The 2007
letter of understanding provided, in part:
1. Employee was hired to serve as the City Clerk, effective
June 3, 2002.
2. Employee is an employee-at-will, serving at the pleasure of
the Mayor and City Council, as set out in the Code of Iowa and City
Ordinances. This is not a contract for employment.
3. The position of City Clerk is a salaried position, ineligible
for overtime and comp time . . . [setting out salary and annual
increases through January 1, 2012].
4. Additional benefits are as follows: [setting out vacation,
administrative leave, holidays and sick leave, health insurance, and
life insurance].
5. Employee will be evaluated on an annual basis at the same
time as the other City Department Heads.
6. If the Employee’s services are terminated by the Employer,
the Employee will be granted a [four]-month severance package to
include full pay, reimbursement for unused vacation and sick pay,
and complete benefits of health, dental, vision, and life insurance.
7. Employer agrees to budget funds for attendance at
[professional organizations.]
8. This Letter of Understanding contains all the terms of
employment between the parties. Any changes must be in writing to
be effective.
Mowery and the mayor signed the letter of understanding on February 9. Mowery
was appointed in 2008, 2010, and 2012.
On May 21, 2012, the city council approved a new “Letter of Understanding–
Compensation,” which was signed by Mayor Kramer and Mowery. The following
terms were included:
1 Mowery’s list of requirements was admitted into evidence, but no city records of
the written agreement reached or the city council minutes approving the agreement
were presented. Mowery was not yet city clerk when the agreement was reached.
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1. Employee was appointed to serve as the City Clerk,
effective upon mutual agreement of compensation package and by
council approval on June 3, 2002.
2. Employee is an employee-at-will, serving at the pleasure of
the Mayor and City Council, as set out in the Code of Iowa and City
Ordinances. This is not a contract for employment.
3. The position of City Clerk is a salaried position, ineligible
for overtime and comp time. The current salary for the position is
$68,500.00 annually. Pay increases will be conditioned upon
continuing employment, and satisfactory reviews, of the Employer.
Pay increases will be given effective January 1 of each year and will
be negotiated with the council prior to January 1 of each year.
4. Additional benefits are as follows:
a. [Two hundred] hours of vacation annually (effective on
January 1 of each year) with no carryover of unused hours. Upon
retirement or resignation the employee will be paid for any unused
vacation time.
b. [Eighty] hours of annual administrative leave, with no
carryover of unused administrative leave, effective on January 1 of
each year.
c. Holiday leave will be granted as set out in the Employee
Handbook.
d. Employee shall earn four hundred eighty (480) hours of sick
leave per year with no carryover of unused hours, beginning in the
tenth year of employment and every year thereafter.
e. Upon retirement or resignation the employee will be paid
for any unused sick time. . . .
....
5. A performance evaluation will be conducted by the Mayor
and Council on an annual basis at the same time as the other City
Department heads.
6. If the Employee’s services are terminated by the Employer,
during the five-year term of this agreement, the Employee will be
granted [twelve] months’ severance pay. Severance package to
include full pay, reimbursement for unused vacation and sick pay and
complete benefits of health, dental, vision and life insurance.
....
8. This Letter of Understanding contains all of the terms of
employment between the parties. Any changes must be in writing to
be effective.
9. The term of this Letter of Understanding is for a five year
period beginning June 3, 2012 and ending June 2, 2017.
In the fall of 2013, Waltrip was again elected mayor of Carter Lake. Prior to
Waltrip taking office in January 2014, a woman who worked on his election
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campaign dropped several boxes at the city clerk’s counter with the comment,
“These are for Doreen so she can pack up her stuff.” However, Mowery was
reappointed in 2014 and continued to serve as city clerk. Cumberledge was a
member of the council at the time and voted “no” on Mowery’s appointment.
Mowery and Waltrip’s working relationship remained difficult. Waltrip did not
approve of the council’s use of letters of understanding. He was vocal about his
belief that Mowery had “too much authority.” The minutes from a December 16,
2014 council meeting note: “Council member [Ed] Aldmeyer stated that since the
mayor has taken office, he believes he has been bullying the city clerk. He also
thinks the mayor has a target on the clerk’s position and her since before he took
office.”
In November 2015, three new members were elected to the city council—
Schomer, Corcoran, and Paterson. They would join incumbent council members
Cumberledge and Barbara Melonis. At the time of her election, Schomer was
employed as a librarian in the Carter Lake Library and was paid by the city.
Mowery’s duties as city clerk included being the city treasurer “responsible
for the safe custody of all funds of the City in the manner provided by law” and the
“accurate account of all disbursements, money or property, specifying date, to
whom, and from what fund paid.”2 Mowery received a comment from a citizen
concerned whether Schomer could be paid as both a city council member and as
a librarian.3 Mowery informed the person the city had done it before but referred
2Carter Lake Municipal Code §§ 21.01, .03(1), (4).
3 Iowa Code section 372.13(8) (2015) provides in part: “Except as provided in
section 362.5, an elected city officer is not entitled to receive any other
7
the person to the city attorney, the league of municipalities, and the attorney
general. Mowery then received a call from the league of municipalities, which
Mowery directed to City Attorney Joe Thornton and asked him to “take care of the
matter.”
On November 10, 2015, Thornton wrote a memorandum addressed to the
mayor and city council, which states, in part:
Applying the above principles to the facts discussed, I have
concluded that Iowa Code [section] 372.13(8) is applicable to these
circumstances if Mary Schomer continues to be employed at the
Library while she is serving as a member of the City Council of the
City of Carter Lake, Iowa.
Mary Schomer is an employee of the City of Carter Lake and
was elected as a member of the City Council. While Mary Schomer
is hired by the Board of Trustees of the Library and not by the City
Council, she is still a “city employee” and therefore subject to the
restrictions of Iowa Code [section] 372.13(8).
As such, under Iowa Code [section] 372.13(8), she is
prohibited from receiving any other compensation (other than the
compensation she would receive as a member of the City Council)
from city employment which would include the compensation she
would receive as an employee at the Library during her tenure in
office.
While nothing prohibits Mary Schomer from continuing her
employment at the Library while she is serving as a member of the
City Council, she cannot receive any wages or salary from that
employment while she is serving as a member of the City Council.
Mowery advised Schomer and Waltrip of this information and provided
Thornton’s memorandum to the city council members prior to the January 2016
meeting. Mowery informed the mayor and city council she would not be paying
Schomer in both capacities as she was not willing to violate Iowa law.
compensation for any other city office or city employment during that officer’s
tenure in office, but may be reimbursed for actual expenses incurred.”
8
Schomer came to city hall in early January and Mowery asked her what they
were going to do. Mowery told Schomer that if Schomer had a written statement
from an attorney, Mowery would consider it and “try to make the correct decision.”
Mowery did not receive anything from Schomer.
On January 4, 2016, Waltrip confronted Mowery and demanded that she
issue checks to Schomer in both of her capacities. Mowery informed him she could
not legally do so unless given authority contrary to Thornton’s. Waltrip “point[ed]
his finger and scream[ed] at [Mowery] as he was saying, You will pay her or we
will take care of you on January 18th.” And then he left the office.
On January 18, 2016, the city council met for the first time following the
election, Thornton and Mowery were in attendance. As city clerk, Mowery kept the
minutes of council meetings. Cumberledge moved to appoint Michael O’Bradovich
as city attorney, and Paterson seconded the motion. Per the minutes of the
meeting, Melonis “questioned why Joe Thornton was not being re-appointed.
Council member Cumberledge replied that he believed it was time for a change.”
Cumberledge and the three new members voted in favor, Melonis voted against.
Melonis then made a motion to reappoint Mowery as city clerk. There was
no second to the motion. Cumberledge then moved to not reappoint Mowery, the
motion was seconded by Paterson, and the motion was passed on the votes of
Cumberledge, Paterson, Corcoran, and Schomer. Mowery asked the city council
if there was a reason for the denial of the reappointment and “[c]ouncil member
Cumberledge replied that he would not comment due to possible litigation.” No
city clerk was appointed.
9
Waltrip asked for a brief recess4 and when the meeting reconvened, Waltrip
asked Cumberledge to take the minutes of the remainder of the meeting.5
At the conclusion of agenda items, the minutes indicate:
[Melonis] commented that the Mayor like[d] longevity in asking for
reappointment of a long time planning board member but yet we
have released a long time city clerk and attorney. She was surprised
about the [city] attorney’s release and now has found out there was
a meeting that she was intentionally or by oversight not privy to. . . .
She then read a statement that she intended to speak about earlier
about council member’s Schomer’s dual positions with the city. She
cited a couple of Iowa laws and believes the Iowa law is being
violated and wants no part of the city’s payment or compensation to
someone who will allow themselves to receive dual compensation.
Mowery stated that as clerk she would do whatever was asked of her “as
long as it wasn’t illegal or immoral. She then read a statement of all that transpired
in the days and months after the election regarding the issue with council member
Schomer.”
Schomer stated she would have her attorney come to the next meeting.
Paterson stated “it is not up to the city. If people want to complain they need to
take it to the election commission or the state. The city council cannot do anything
about it.”
Mowery received a letter from deputy city clerk Ruehle dated February 22,
2016, and check in the amount of $10,035.09. The cover letter stated: “Enclosed
is paperwork terminating your employment with the City of Carter Lake. Please
find your final check, information on COBRA insurance and a certified check.”
4 During the recess, Waltrip was observed in the hallway demanding Mowery leave
the building. A security officer stepped in and stated Mowery had a right to attend
the public meeting.
5 The deputy clerk Lisa Ruehle was in the meeting room at this time but was not
asked to step in and take minutes.
10
Mowery did not endorse the check believing she was entitled to receive
$106,285.61 under the severance package that had been approved by the city
council in May 2012.
Mowery filed this suit against the defendants, asserting breach of contract,
promissory estoppel, and retaliatory discharge in violation of public policy.
The defendants sought summary judgment on the ground there had been
no termination or discharge. The court denied the defendants’ motion for summary
judgment, noting: (1) “the existence and terms of a contract, and whether the
contract was breached, are ordinarily questions of fact”; (2) equitable estoppel can
be applied to municipalities “where the interests of justice, morality and common
fairness clearly dictate that course” and because “a jury could reasonably find that
the city council had modified the terms and conditions of [Mowery’s] appointment
and that she may have been terminated rather than denied reappointment,” the
issue was “a jury issue and not an issue for summary judgment”; and (3) “there is
a clearly defined public policy that protects employees when they refuse to
participate in illegal activities, which would be undermined by a discharge from
employment” and there were disputed issues whether Mowery was retaliated
against or simply not reappointed that “depend entirely on credibility and weight of
the evidence.”
The case was tried to a jury in September 2019. Paterson, Kramer, Waltrip,
Cumberledge, Ruehle, Melonis, Corcoran, Greg Mowery, Doreen Mowery, and
O’Bradovich all testified. Schomer died prior to trial.
Paterson testified that he and Waltrip started discussing letters of
understanding in 2013 when Waltrip had decided to run for mayor. Paterson and
11
his wife wrote a letter to the Iowa Attorney General in 2014 asking about the legality
of such letters of understanding and suggesting they were made in closed
sessions. The attorney general’s office directed the Patersons to the Iowa Public
Information Office, which responded it was without jurisdiction if the event about
which the complaint was made had occurred more than sixty days ago, and
directed them to the Pottawattamie County Attorney’s office. Paterson did not
follow up. Paterson, however, did send copies of letters of understanding to his
personal attorney and asked of their legality. Eventually, Paterson published
Mowery’s letter of understanding in the local newsletter.
Paterson also testified he and Waltrip met with Waltrip’s personal attorney
and former Carter Lake city attorney O’Bradovich in either 2013 or 2014. They
discussed the legality of the letters of understanding. They discussed
O’Bradovich’s interest in becoming the city attorney for Carter Lake again.
Paterson decided to run for city council in 2015 and was encouraged to do
so by Waltrip. Paterson testified that in December 2015, there were telephone
discussions between him, Corcoran, Cumberledge, and Schomer concerning
Mowery and agreed “all [were] on the same page that [we] did not want to reappoint
Doreen Mowery as city clerk.” Paterson also testified he learned of the dual
compensation issue concerning Mary Schomer after talking to someone in the
“League of Cities” but claimed it was not part of his decision with respect to
Mowery. He stated he did not want to appoint Mowery because of her
abrasiveness and other conduct he had heard about from others.
Former Mayor Kramer testified he had signed Mowery’s 2012 letter of
understanding, which was approved by the city council on May 21, 2012. Kramer
12
testified the purpose of the letter of understanding was to provide Mowery
protection and benefits because city department heads could not belong to a
union. He testified the letter of understanding covered “anything . . . not for just
cause. If . . . she had made a gross mistake or negligent of duty, then they would
say, you know, this doesn’t hold true.” Kramer testified “all the department heads”
had letters of understanding because “they wanted some kind of protections that
the union people were getting that they weren’t getting.” Kramer also testified
about Waltrip’s dislike of the letters of understanding and about the contentious
relationship between Waltrip and Mowery.
Waltrip testified he did not like the letters of understanding and wanted to
do away with them. He acknowledged he had met with Paterson, who shared a
his dislike of the letters of understanding. Waltrip also stated he had encouraged
Paterson, Corcoran, and Schomer to run for city council in 2015. Waltrip testified
he believed Schomer should be paid in both capacities and he told Mowery to do
so. He denied having any involvement in Mowery’s non-reappointment.
Melonis testified she voted in favor of the 2012 letter of understanding:
Q. All right. What did you understand that document’s
purpose to be as a member of the council? A. As a member of the
council, I believed it to be as long as Doreen was performing to the
expectations of the council and the mayor that she would not be
unjustly terminated at the whim of one of the public officials.
Q. And that if that happened, she would have a severance
package? A. Yes.
Melonis was asked about the January 18, 2016 council meeting. This
exchange occurred:
Q. Okay. Did you have any idea that [Mowery] was not going
to be reappointed by reason of their votes? A. No, and I was
absolutely shocked when it happened.
13
....
Q. All right. I want to ask you some questions about the issue
involving Mary Schomer. She likewise was elected in November of
2015 to begin serving a four-year term as council member on
January 1 of 2016? A. Correct.
....
Q. . . . So let’s go back to the election. Her election to the
council by reason of her other employment at the city library created
a legal issue for the—the city council members, correct? A. Very few
thought so.
Q. Okay. Did you think so? A. I did think so.
Q And what was your opinion? A. The opinion is that state
law says you cannot receive dual compensation.
Q. Did you undertake to research that yourself? A. Yes, I did.
Q. And based upon your research did you make that
conclusion? A. I did.
Q. Leading up to that January 18th, 2016, council meeting,
had you been provided a written opinion from city attorney Joe
Thornton on that issue? A. Yes.
Q. And did you read that opinion? A. Yes.
Q. And do you remember what Mr. Thornton’s conclusion was
on the issue of whether Mary Schomer could be paid in both
capacities? A. His was the same as mine, it was not allowable.
Q. So as long as she served as a council member by reason
of her election she was not capable of receiving pay by reason of her
position as a member of the library staff? A. She would have to give
up one of the compensations, she could not be dually compensated.
....
Q. All right, and what did you learn from Doreen in that
conversation, to the best of your recollection? A. Doreen’s opinion
was the same as mine, that she was not—it was not allowable by law
for the dual compensation and she was not going to write the check.
Q. Did she voice that opinion to all members of the city
council? A. Yes.
At the time of trial, Cumberledge was serving as the mayor of Carter Lake.
He testified he and the 2016 incoming council members Paterson, Corcoran, and
Schomer had phone calls or met one-on-one prior to the January 2016 meeting
and discussed various items, including to not reappoint Mowery.6 Cumberledge
expressed dissatisfaction with Mowery’s job performance and salary and did not
6 Cumberledge had voted “no” on Mowery’s 2014 appointment.
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believe the council was bound by the 2012 letter of understanding, stating his belief
it should be tied to the term of the appointment.
Mowery and her husband both testified about the events leading up to the
January 2016 council meeting and the effect of the loss of job had on her
vocationally, monetarily, and emotionally. Mowery testified she learned Corcoran,
Cumberledge, Paterson, and O’Bradovich had met at the Carter Lake library in
mid-November. Mowery prepared a statement prior to the January 2016 council
meeting.
On cross-examination, Mowery acknowledged the city clerk is an appointed
position and she testified the letter of understanding was not a contract of
employment. She “considered the agreement to cover my severance package in
the event that I was no longer working for the City of Carter Lake due to no
improper actions upon my part.” Mowery testified, “I promised I would come and
do my best job, and they promised to pay me a severance package if something
happened that I had no control over.”
Mowery stated:
I believe 100 percent with all my heart that they got rid of me because
I refused to violate the law and pay Mary Schomer. There is nothing
that anyone will ever say that will convince me any differently of that
because had they had all these other reasons that they’ve given, they
would have told me at the council meeting when I asked. They would
have communicated that with me. They chose to hide that after the
fact is my belief.
Mowery acknowledged Waltrip did not have a vote on her reappointment “but he
certainly influenced [the council members.]”
The defendants called O’Bradovich to testify. O’Bradovich testified he first
saw the letters of understanding in 2015 when Waltrip and Paterson brought them
15
to him. He offered them his impression that the agreements were “void as against
public policy” as they were for longer than the term of appointment. He opined a
letter of understanding was not an employment agreement. “I also pointed out to
them that the city clerk is an employee at will but serves at the pleasure of the city
council, not the mayor and the city council.”
The jury found in Mowery’s favor on all theories presented. On the breach-
of-contract claim, the jury answered interrogatories finding: (1) the letter of
understanding was a contract between Mowery and Carter Lake; (2) Carter Lake
breached the contract with Mowery; and (3) the city’s breach caused damage to
Mowery. The jury awarded no damages on this claim.
On the promissory estoppel claim, the jury specifically found: (1) there was
“a clear and definite promise made to Doreen Mowery in the Letters of
Understanding”; (2) Carter Lake understood “Mowery was seeking an assurance
upon which she could rely and without which she would not act”; (3) Mowery
reasonably relied on the promises made to her in the letter of understanding;
(4) Carter Lake broke the promises made to Mowery in the letter of understanding;
and (5) Mowery suffered damages caused by the city breaking its promises to her
in the Letter of Understanding. The jury awarded damages in the amount of
$106,285.61, which included $73,424 for back pay.
On her claim of discharge in violation of public policy, the jury found: (1) the
failure to reappoint Mowery was a violation of public policy and (2) Mowery’s
refusal “to pay dual compensation to Councilwoman Mary Schomer” was ”a
determining factor for her termination on January 18, 2016.” The jury awarded
16
back pay from January 18, 2015, to the time of trial in the amount of $65,000 and
$100,000 for past mental pain and suffering.
The defendants filed a motion for judgment notwithstanding the verdict
(JNOV) or, in the alternative, for remittitur, asserting the damages awarded were
duplicative. The court ruled:
Defendants argued that Plaintiff was not terminated or discharged,
but was simply not reappointed. Defendants asserted that because
city clerks are appointed by the city council for two year terms under
the ordinance, the failure to reappoint Plaintiff is not actionable.
Defendants assert that the Letter of Understanding relied upon by
Plaintiff is not a contract. Defendants assert that even if the Letter of
Understanding is a contract, it is void as against public policy
because it attempts to bind future city councils to a term for the clerk
beyond that permitted in the ordinance. Defendants claim that even
if the Letter of Understanding is a contract it was not breached by the
council’s failure to reappoint Plaintiff. Defendants assert that
promissory estoppel must fail because the promises Plaintiff relied
upon were contained in the Letter of Understanding. Defendants rely
on Westphal v. the City of Council Bluffs, 275 N.W.2d 439 (Iowa
1978), for the proposition that without an underlying legal right for
Plaintiff to hold the office of clerk, an action for damages may not be
used to protest the proceedings used to end her tenure. Plaintiff
resisted the motion for [JNOV].
The jury is the fact finder. When considering a motion for
[JNOV], the jury’s findings are viewed in the light most favorable to
the nonmoving party. The jury found that the Letter of Understanding
was a contract that provided a severance package to Plaintiff if she
lost her position as clerk. The council failed to reappoint Plaintiff to
the position as city clerk during the period of time covered by the
Letter of Understanding, activating the severance package contained
in the Letter of Understanding. The Letter of Understanding was not
void as against public policy. The jury found that Plaintiff reasonably
relied on the promises contained in the Letter of Understanding. The
jury followed the instructions by not awarding damages for both
breach of contract and promissory estoppel, even though it found
that Plaintiff had proven both theories of recovery.
The jury found that Plaintiff’s refusal to pay Mary Schomer two
salaries contrary to legal advice she received was a significant factor
in her discharge/termination/nonreappointment. The jury found that
Plaintiff’s discharge/termination/nonreappointment was in violation
of public policy and awarded damages for the time period from her
non-reappointment through the time of trial. The damages awarded
17
by the jury for termination in violation of public policy are supported
by substantial evidence.
This case presents different issues than Westphal. Westphal
did not have the benefit of a Letter of Understanding or other contract
providing severance for nonreappointment within a specified period
of time. Westphal did not present evidence that his non-
reappointment was a violation of any public policy. In this case
Plaintiff presented evidence on those issues and the jury made
findings of fact. The jury did not award duplicate damages. The
Motion for [JNOV] is overruled. The motion for remittitur is overruled.
The defendants now appeal, essentially raising the same arguments they
did in the district court.
II. Scope and Standards of Review.
“Parties are entitled to have their legal theories submitted to the jury if they
are supported by the pleadings and substantial evidence in the record.” Beyer v.
Todd, 601 N.W.2d 35, 38 (Iowa 1999). “In weighing the sufficiency of the evidence,
we give it the most favorable construction possible in favor of the party urging
submission.” Hoekstra v. Farm Bureau Mut. Ins. Co., 382 N.W.2d 100, 107–08
(Iowa 1986). “A motion for [JNOV] should be granted if there is not substantial
evidence to support the elements of the plaintiff’s claim.” Thornton v. Am.
Interstate Ins. Co., 940 N.W.2d 1, 8 (Iowa 2020). “Evidence is substantial when a
reasonable mind would accept it as adequate to reach a conclusion.” Johnson v.
Dodgen, 451 N.W.2d 168, 171 (Iowa 1990).
“Where damages are not supported by the evidence, the court may ‘order
a remittitur as a condition to avoiding a new trial.’” Thornton, 940 N.W.2d at 8
(quoting Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 777 (Iowa 2009)). “When
ordering remittitur, the court ‘award should be reduced “to the maximum amount
proved” under the record.’” Id. (citation omitted).
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III. Discussion.
The defendants insist Mowery’s non-reappointment cannot possibly be
found to be a termination or discharge and, therefore, each claim necessarily fails.
A. Discharge in violation of public policy. Iowa law recognizes a “public-
policy exception to the at-will employment doctrine” which “limits an employer’s
discretion to discharge an at-will employee when the discharge would undermine
a clearly defined and well-recognized public policy of the state.” See Berry v.
Liberty Holdings, Inc., 803 N.W.2d 106, 109 (Iowa 2011). The defendants do not
contest that requiring an employee to perform an illegal act is contrary to public
policy. See Jasper, 764 N.W.2d at 767–68 (noting “[w]e have recognized the tort
of wrongful discharge . . . protects the refusal by an employee to engage in activity
that is violative of public policy”).
The defendants assert, “It is undisputed, however, that Plaintiff was not
discharged (or terminated).” This is a serious mischaracterization of the parties’
positions. Whether Mowery was terminated and therefore able to claim the
protection of the public-policy exception to the at-will employment doctrine was a
central issue in the case.
Citing Westphal, the defendants argue: “[Mowery’s] wrongful discharge
claim comes down to the question of whether dismissal or termination can be
shown by a refusal to reappoint. Under Iowa law, appointment is required before
termination can be considered. In other words, a failure to reappoint does not
amount to termination.” We disagree that the cited authority supports the
proposition as characterized.
19
In Westphal, the city clerk had been reappointed a number of times and had
“prepared a resolution for reappointment for 1972 and presented it to the council,
but for some reason no action was taken on it.” 275 N.W.2d at 441. The relevant
municipal ordinance provided:
The City Clerk shall be elected by the City Council on the first
Monday in April of each even numbered year, or as soon as
practicable thereafter, and he shall hold office for the term of two
years from the first Monday in April and until his successor has been
elected and qualified.
Id. However, he continued to perform his duties and receive a salary in 1972,
1973, 1974, 1975, and 1976—despite no formal appointment in any of those years.
Id. In 1976, the “council appropriated and paid his salary as a part of its budget,
and on August 2, 1976, provided a five percent salary raise for him.” Id.
A municipal election was to be held on October 18, 1976. Id.
Approximately a week before the election, Councilman Lewis
“discovered” the dormant [municipal] ordinance requiring election of
a clerk. He met with two other councilmen just prior to the regularly
scheduled council meeting and discussed the matter. The election
of a clerk was not on the agenda for that meeting, but was brought
up by Lewis after a motion for adjournment. The council voted, [three
to two], to appoint Westphal’s deputy as clerk. This lawsuit followed.
Id.
The clerk sued the city for lost compensation, claiming he had been
removed from office in a manner contrary to Iowa Code section 372.15 (governing
removal of appointees to city offices).7 Id. To fall within the protections of section
7 Iowa Code section 372.15 provides:
Except as otherwise provided by state or city law, all persons
appointed to city office may be removed by the officer or body making
the appointment, but every such removal shall be by written order.
The order shall give the reasons, be filed in the office of the city clerk,
and a copy shall be sent by certified mail to the person removed who,
20
372.15, the clerk argued he was entitled to remain in his position until 1978 based
on the theory that despite no formal appointment, the council had ratified or
confirmed his appointment by its actions. Id. at 443.
The supreme court rejected the clerk’s claim, noting the appointment of a
public officer requires “an open, unequivocal act evidencing it” and must be “made
in strict compliance with the statute or constitution granting the power to appoint.”
Id. The supreme court found that the clerk was properly initially appointed to office,
and during the years he had acted as city clerk but had not been formally appointed
to the office his status was that of a holdover appointee. Id. at 444. As a holdover
appointee, he could be removed from office without the notice and hearing
protections set forth in Iowa Code section 372.15. Id. at 445. The court noted:
“Under our view of this case, he was not removed within the meaning of that
section; he was simply not reappointed.” Id. (emphasis added).
Relying on this sentence, the defendants argue that Mowery cannot show
she was terminated or discharged. However, they fail to acknowledge the
sentence immediately following: “His status as a holdover clerk was terminated.”
Id. (emphasis added).
We observe Mowery might well be considered to have been a holdover
clerk. Iowa Code section 69.1A provides: “Except when otherwise provided, every
officer elected or appointed for a fixed term shall hold office until a successor is
upon request filed with the clerk within thirty days of the date of
mailing the copy, shall be granted a public hearing before the council
on all issues connected with the removal. The hearing shall be held
within thirty days of the date the request is filed, unless the person
removed requests a later date.
The provision was enacted in 1975 and remains in effect unchanged.
21
elected and qualified, unless the officer resigns, or is removed or suspended, as
provided by law.” (Emphasis added.) Here, Carter Lake City Ordinance 20.01
provides, “At its first meeting in January following the regular city election the [city]
council shall appoint by majority vote a city clerk to serve for a term of two years.”
(Emphasis added.) Contrary to that mandate, the city council did not appoint a city
clerk at the January 2016 meeting. Nor did Mowery resign. The paperwork sent
to her by Carter Lake noted her employment was terminated and was
accompanied by the council’s calculation of Mowery’s severance under the
employee handbook.
In any event, with respect to her claim of wrongful discharge, Instruction 17
provided:
In order to establish a case of wrongful discharge in violation of public
policy, Plaintiff will have to show that she was “discharged” or
“terminated” from her employment. Appointment to a position is
required before termination can be considered. A failure to reappoint
does not amount to a termination, unless the failure to reappoint is a
violation of Public Policy, as defined in Instruction No. 18.
Instruction 18 in turn states:
For Plaintiff to recover for Wrongful Discharge from her employment
in violation of Public Policy, she must prove all of the following
propositions:
1. She was an employee of the City of Carter Lake, Iowa.
2. The City of Carter Lake discharged Plaintiff from her
employment with the City of Carter Lake.
3. Plaintiff’s refusal to violate Iowa Code section 372.13(8)
with regard to dual compensation of Councilwoman Schomer was
the determining factor for her termination.
4. The termination caused damage to Plaintiff.
5. The nature and extent of the damage.
While the defendants generally objected to any instruction on wrongful
discharge, they do not assert instructional error as an issue on appeal or provide
22
any authority in support of such a claim; consequently any error is waived. See
Iowa R. App. P. 6.903(2)(g) (requiring an argument section for “each issue raised
on appeal” and noting “[f]ailure to cite authority in support of an issue may be
deemed waiver of that issue”). The instructions provide the law of the case for
purposes of our review. State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009).
Mowery and Melonis both testified Mowery was not reappointed due to her
refusal to pay Schomer in a dual capacity. The jury found Mowery was terminated.
And the jury specifically found Mowery’s refusal “to pay dual compensation to
Councilwoman Mary Schomer” was “a determining factor for her termination on
January 18, 2016.” The jury awarded as damages on this wrongful-discharge
claim back pay in the amount of $65,000 and past mental pain and suffering in the
amount of $100,000.
At oral argument, counsel for the defendants argued there is no remedy for
a wrongfully-discharged municipal employee. We cannot agree. Our supreme
court has recently discussed the wrongful-discharge doctrine, stating, “Our
reasoning for adopting the wrongful-discharge claim focused on the need to
provide a remedy for conduct that violated legislatively declared public policy.”
Ferguson v. Exide Techs., Inc., 936 N.W.2d 429, 431–32 (Iowa 2019) (emphasis
added).
We have explored and reaffirmed the doctrine in many cases
since Springer. In Borschel v. City of Perry, we explained that there
were three primary situations when an action for wrongful discharge
in violation of public policy was available. Those situations included
“retaliation for performing an important and socially desirable act,
exercising a statutory right, or refusing to commit an unlawful act.”
We observed that “[s]uch policies may be expressed in the
constitution and the statutes of the state.”
23
Id. at 432 (citations omitted).
In Jasper, the supreme court reiterated public policy could be expressed in
statutes, but noted:
The use of statutes as a source of public policy also helps provide
the essential notice to employers and employees of conduct that can
lead to dismissal, as well as conduct that can lead to tort liability. The
public-policy exception was adopted merely to place a limitation on
an employer’s discretion to discharge an employee when the public
policy is so clear and well-defined that it should be understood and
accepted in our society as a benchmark. Our reliance on statutes as
a source of this limitation has been a way to ensure that the tort
continues to serve its objectives.
While we have justifiably relied on statutes, we have not
closed the door to using other sources as a means to derive public
policy to support the tort. We have repeatedly observed that our
constitution is a proper source of public policy. Moreover, we have
recognized that other jurisdictions have used administrative
regulations as a source of public policy, yet we have not had the
occasion to decide the issue until today.
764 N.W.2d at 763. Noting that “administrative regulations ultimately adopted are
necessarily tied to the broad directives of the legislature and effectuate the intent
of the enabling legislation,” “have the force and effect of a statute,” and “are
required to be consistent with the underlying broader statutory enactment,” the
court concluded “the justification for relying on statutes as a source of public policy
can equally apply to administrative regulations.” Id. at 764.
In analyzing whether the particular administrative regulations concerning
staff ratios in childcare facilities encompassed such a public policy, the court
stated, “a policy sought to be derived from an enactment must affect a public
interest so that the tort advances general social policies, not internal employment
policies or individual interests.” Id. at 766.
24
Pursuant to Carter Lake’s municipal code, Mowery had duties as city clerk
and city treasurer to be “responsible for the safe custody of all funds of the City in
the manner provided by law” and provide the “accurate account of all
disbursements, money or property, specifying date, to whom, and from what fund
paid.” Carter Lake Municipal Code §§ 21.01, .03(1), .03(4). These ordinances are
consistent with the government’s fundamental duty and authority to protect the
public fisc. See generally Endress v. Iowa Dep’t of Human Servs., 944 N.W.2d 71,
94 (Iowa 2020) (McDonald, J., dissenting in part) (noting the government’s general
duty and authority to protect the fisc is “fundamental to the sound operation of
government”). We believe these ordinances support a clear public policy and
provide a basis for allowing a claim for wrongful discharge in violation of public
policy.
Mowery was informed by the city attorney that Schomer could not receive
dual compensation under Iowa Code section 372.13(8). To require Mowery to pay
Schomer dual compensation would violate that fundamental governmental duty to
protect the municipality’s funds and Mowery’s statutory duties as the custodian of
those municipal funds. Mowery informed the city council of the problem. The city
council then terminated Mowery’s employment, as well as that of the city attorney
who issued the legal opinion relied upon by Mowery.
The jury findings are binding if supported by substantial evidence. See Iowa
R. App. P. 6.904(3)(a). There was substantial evidence presented that Mowery’s
refusal to pay Schomer in her dual capacities as librarian and city council member
was a determining factor in the council’s decision to not reappoint Mowery, which
under the jury instruction amounted to a termination. While there was evidence to
25
the contrary as well, it is the jury’s duty to resolve factual questions, and the jury is
free to believe or disbelieve the witnesses’ testimony. Est. of Hagedorn v.
Peterson, 690 N.W.2d 84, 88 (Iowa 2004) (“[T]he credibility of witnesses is
peculiarly the responsibility of the fact finder to assess.”).
The court did not err in denying the defendants’ motion for JNOV on the
claim of discharge in violation of public policy.
B. Breach of Contract. The defendants make a three-fold attack on
Mowery’s breach-of-contract claim. First, they assert the letter of understanding is
not a contract by its own terms. Second, they contend the letter of understanding
is void as against public policy. Third, because Mowery was not “terminated” there
was no breach of contract. We have already addressed the third claim above and
have concluded there is substantial evidence from which the jury could find
Mowery was terminated. We turn to the other challenges.
1. Contract. The defendants state, “[T]here can be no breach of contract
claim because, by its own terms, the Letter of Understanding was not a contract.”
Thus, they maintain a breach-of-contract claim fails “as a matter of law.” This
argument is circular and omits crucial terminology in the letter of understanding.
There is no doubt the letter of understanding clearly states it is not a contract
for employment. But Mowery does not claim it is; rather, she asserted the letter of
understanding was a contract which set forth the terms of a severance package to
be paid to her if she lost her position of city clerk without just cause. She testified
she “considered the agreement to cover my severance package in the event that I
was no longer working for the City of Carter Lake due to no improper actions upon
my part.” Mowery testified, “I promised I would come and do my best job, and they
26
promised to pay me a severance package if something happened that I had no
control over.” Kramer testified the purpose of the 2012 letter of understanding was
to provide Mowery protection and benefits should she be terminated for “anything
. . . not for just cause.”
Whether a contract existed was a question of fact for the jury. See
Davenport Bank & Tr. Co. v. State Cent. Bank, 485 N.W.2d 476, 479–80 (Iowa
1992). The jury was instructed:8
To establish her claim for breach of contract, the Plaintiff must prove
all of the following propositions:
1. The parties were capable of contracting.
2. The existence of a contract.
3. The consideration.
4. The terms of the contract.
5. The Plaintiff has done what the contract requires.
6. The Defendants breached the contract.
7. The amount of damages caused by Defendants’ breach of
the contract.
8 Further clarification of the nature of Mowery’s claim is included in Instruction
No. 21:
Plaintiff claims that the Letter of Understanding which was entered
into with the City of Carter Lake and approved by the Carter Lake
City Council on May 21, 2012 was legally binding on the City of
Carter Lake through Promissory Estoppel. For Plaintiff to establish
her claim of Promissory Estoppel, she must prove all of the following
elements:
1. A clear and definite promise.
2. The promise was made with the promisor’s clear
understanding that the promisee was seeking an assurance upon
which the promisee could rely without which she would not act.
3. The promise acted to her substantial detriment in
reasonable reliance on the promise.
4. Injustice can be avoided only by enforcement of the
promise.
If Plaintiff has proven all of these propositions, then the Letter
of Understanding becomes legally enforceable and you may use the
Letter of Understanding to determine the monetary value of Plaintiff’s
severance package.
(Emphasis added.)
27
The jury specifically found the letter of understanding was a contract
between Mowery and Carter Lake; Carter Lake breached the contract with
Mowery; and the city’s breach caused damage to Mowery. We find no reason to
disturb the jury’s findings.
2. Void as against public policy. The defendants next assert the letter of
understanding, if a contract, is void as against public policy. They state, “The Iowa
Supreme Court has continually held that a contract which contemplates the
payment of more or less salary than that specified by law is against public policy.”
The defendants cite to two cases: Du Bois v. City of Oskaloosa, 294 N.W. 302,
304 (Iowa 1940), and Miller v. Marshall County, 641 N.W.2d 742, 751 (Iowa 2002).
We find neither case provides authority for the defendants’ claim.
In Du Bois, “the amount of compensation and the time or times for payment
thereof for a public officer [we]re not determined from the contract of employment
but solely from the legislative provisions applicable to the payment of such
compensation.” 294 N.W. at 303. Consequently, the supreme court found the
city’s attempt to pay a city health officer less than the statutorily-mandated salary
was void. Id. at 304 (noting “[i]t is a general principle that a municipal contract
entered into in violation of a mandatory statute, or a contract in opposition to public
policy, is not merely voidable but void”).
At issue in Miller were explicit limits on the county’s authority to enter into a
lease and lease-purchase agreements under Iowa Code 331.301 (1993). See 641
N.W.2d at 746. The supreme court ruled:
The principal amount of the payments in the ten-year lease
agreement between the Board and Miller exceeded the $500,000
limit on Marshall County’s authority to enter into lease agreements.
28
Because the Board failed to follow the requisite statutory procedures
triggered by the lease terms, the Board did not have the authority to
enter into the contract with Miller. Consequently, the contract was
void and unenforceable.
Id. at 751 (citation omitted).
In Mowery’s case, Carter Lake Municipal Code section 20.01 provides: “The
Clerk shall receive such compensation as established by resolution of the Council.”
That city ordinance refers to Iowa Code section 372.13(3), which in turn states:
“The council shall appoint a city clerk to maintain city records and perform other
duties prescribed by state or city law.” Iowa Code section 372.13(4) states, in part,
“[e]xcept as otherwise provided by state or city law, the council may appoint city
officers and employees, and prescribe their powers, duties, compensation and
terms.” The city council had the authority to set Mowery’s compensation and did
so. The types of statutory limits on municipal authority addressed in Du Bois and
Miller are not present here. Because the defendants have provided no authority
for their claim the contract is contrary to public policy, the claim fails.
C. Promissory Estoppel. The defendants challenge the court’s denial of
JNOV of the promissory estoppel findings on two grounds. First, “The promises
made in the Letter of Understanding were only applicable if Plaintiff was
‘terminated’. . . Plaintiff was not in fact ‘terminated.’” Second, they contend the
exceptional circumstances necessary to invoke promissory estoppel against a
government agency do not exist here. We refer back to our discussion finding
substantial evidence supporting the jury’s finding Mowery was “terminated.”
Our supreme court has identified four elements of promissory estoppel:
(1) a clear and definite promise; (2) the promise was made with the
promisor’s clear understanding that the promisee was seeking an
29
assurance upon which the promisee could rely and without which
[the promisee] would not act; (3) the promisee acted to [the
promisee’s] substantial detriment in reasonable reliance on the
promise; and (4) injustice can be avoided only by enforcement of the
promise.
Kunde v. Est. of Bowman, 920 N.W.2d 803, 810 (Iowa 2018) (quoting Schoff v.
Combined Ins. Co. of Am., 604 N.W.2d 43, 49 (Iowa 1999)). A claim of promissory
estoppel focuses on the elements of “a promise and reliance, rather than
agreement and consideration.” Id.“We have consistently held equitable estoppel will not lie against a
government agency except in exceptional circumstances.” We have
explained that “[a] person seeking to invoke the doctrine of equitable
estoppel against a government body ‘bears a heavy burden,
particularly when the government acts in a sovereign or
governmental role rather than a proprietary role.’” The “exceptional
circumstances” under which equitable estoppel will lie against the
government include instances when, “in addition to the traditional
elements of estoppel, the party raising the estoppel proves
affirmative misconduct or wrongful conduct by the government or a
government agent.”
Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 163, 180 (Iowa 2006) (citations
omitted).
Mowery observes that in denying the defendants’ motion for summary
judgment, the court determined the question of whether exceptional circumstances
existed presented a jury question.9 The defendants contend there are no
exceptional circumstances here to justify submitting the estoppel claim to the jury,
9 The district court wrote “no Iowa cases clearly illustrate the ‘exceptional
circumstances’ required to apply equitable estoppel to municipalities.”
Chamberlain, L.L.C. v. City of Ames, No. 06-1487, 2007 WL 4322186, at *4 (Iowa
Ct. App. Dec. 12, 2007). However, the court observed equitable estoppel will be
applied “where the interests of justice, morality, and common fairness clearly
dictate that course.” 28 Am. Jur. 2d, Estoppel and Waiver § 140 (2018).
30
citing Bailiff v. Adams County Conference Board, 650 N.W.2d 621, 626–27 (Iowa
2002). We find Bailiff distinguishable. There, “the conference board was clearly
acting in its governmental role in compliance with the statutory duties assigned to
it.” Bailiff, 650 N.W.2d at 626–27 (emphasis added). Here, however, the jury found
the defendants were acting contrary to public policy.
Our supreme court has observed, “[T]here is nothing about the
employment-at-will relationship itself that precludes reliance on a theory of
promissory estoppel.” Schoff, 604 N.W.2d at 49. The jury made specific findings
that the defendants wrongfully discharged Mowery and her failure to “to pay dual
compensation to Councilwoman Mary Schomer” was ”a determining factor for her
termination.” Moreover, the jury specifically found: (1) there was “a clear and
definite promise made to Doreen Mowery in the Letters of Understanding”;
(2) Carter Lake understood “Mowery was seeking an assurance upon which she
could rely and without which she would not act”; (3) Mowery reasonably relied on
the promises made to her in the letter of understanding; (4) Carter Lake broke the
promises made to Mowery in the letter of understanding; and (5) Mowery suffered
damages caused by the city breaking its promises to her in the letter of
understanding. We affirm the court’s denial of the defendants’ JNOV motion.
D. Remittitur. Finally, the defendants maintain the trial court abused its
discretion in denying their motion for remittitur, claiming the jury has awarded
duplicative damages. They contend the trial court should have reduced Mowery’s
damages by the $73,424.00, which the jury awarded for back pay, under the theory
the promissory estoppel claim was duplicative of the past lost wages the jury
awarded for the claim of wrongful discharge.
31
In her appellate brief, Mowery argues the jury’s award “flows from the
argument that was consistently championed by these defendants throughout the
trial: The City Clerk position is an appointed position and the term of the
appointment is for two years.”
On this record, the jury found that Mowery was wrongfully
discharged in violation of public policy on January 18, 2016. Were it
not for that wrongful conduct, she would have remained the City
Clerk for another two years, until the first council meeting in January
2018. The severance package compensated her for her losses
during the first year of what would have been another two-year city
clerk appointment. The jury decided to award her another $65,000
in lost wages for that second year following her wrongful
termination. The jury likely did not match the severance package in
its award for past lost wages under the retaliatory discharge claim
because Mowery testified that she had earnings in various substitute
employment opportunities that she pursued during those two years
and the jury could have reasonabl[y] given credit to the Defendants
by reason of Mowery’s mitigation of damages.
This claim on appeal is contrary to Mowery’s position at trial. During
closing argument, Mowery’s counsel stated:
And the measure of damages for the promissory estoppel theory is
set forth in Instruction Number 22, and it’s just the severance
package. It’s the severance package that is set forth in Paragraph 6
of this agreement (indicating), this agreement. She’ll be granted
[twelve] months’ severance pay, severance package to include full
pay, reimbursement for unused vacation and sick pay, complete
benefits of health, dental, vision and life insurance. That’s set forth
in Instruction Number 22. That’s the measure of damages for the
promissory estoppel theory.
Exhibit 42 is Mowery’s calculation of what was owed under the severance
package. Mowery testified she worked 8.5 hours on January 18, 2016, and
32
calculated her current hourly rate of pay was $35.30.10 She testified under the
compensation package her wages for one year were $73,424.
In Jasper, the supreme court observed:
Wrongful discharge of employment in violation of public policy
is an intentional tort in Iowa. The legal remedy provided for victims
of the tort covers the complete injury, including economic loss such
as wages and out-of-pocket expenses, as well as emotional harm.
Emotional harm is a personal injury, and economic loss constitutes
property damage. Thus, both personal injury and property damage
are recoverable.
764 N.W.2d at 769–70 (internal citations omitted).
“A remittitur may be appropriate when . . . the jury’s damage award was not
justified by the evidence before it.” WSH Props., L.L.C. v. Daniels, 761 N.W.2d
45, 52 (Iowa 2008). The jury awarded damages for promissory estoppel as
provided in the letter of understanding, which included $73,424 in “back pay for
twelve months.” Additionally, for wrongful discharge the jury awarded $65,000 in
“back pay from January 18, 2016 to present.” There is no evidentiary basis for
back pay damages in excess of the $73,424. A remittitur is appropriate.
IV. Disposition.
We affirm on all issues except remittitur, and we conditionally affirm the trial
court’s denial of the defendants’ motion for new trial. If, within fifteen days of the
issuance of procedendo, the plaintiff files with the clerk of the district court a
remittitur of all of the judgment in excess of $206,285.61, the judgment of the
district court shall be affirmed; if the plaintiff does not file a remittitur, the district
10 This appears to be the rate of pay she used to calculate her wages: the product
of $35.30 per hour, forty hours per week, and fifty-two weeks in a year, equaling
annual pay of $73,424. Under her 2012 compensation package, Mowery’s annual
salary was $68,500 but contemplated pay increases annually.
33
court shall set the case for a new trial. See WSH Props., L.L.C., 761 N.W.2d at
53.
AFFIRMED ON CONDITION AND CASE REMANDED.