Document nNm8nwzk9J9qgnNQmde2MpkYa

4/4/2016 KNEELAND v LUZENAC A M E R IC A IN C | FindLaw Not a Legal Professional? V is it our c o n su m e r site Register | Log-h C A S E S & CODES PRACTICE MANAGEMENT JOBS&CAREERS LEGAL NEWS BLOGS LAW TECHNOLOGY Search FindLaw Forms Law y er Marketing Corporate Counsel Law Students Justice Mail N e w s le tte rs FindLaw , LEGAL MARKETING 103 BEYOND A BASIC WEBSITE Take the confusion o ut o f social media, blogs and video for attorneys. DOWNLOAD THE FREE PLAYBOOK FindLaw Caselaw Montana MT Supreme CL KNEELAM3 v. LUZENAC AMERICA NC KNEELAND v. LUZENAC AMERICA INC Print L U Font size: A A Reset Supreme Court of Montana. Bruce G. KNEELAND, Plaintiff and Appellant, v. LUZENAC AMERICA, INC., Defendant and Respondent. No. 97-149. Decided: June 2,1998 M ichael J. San Souci; Law Office M ichael J. San Souci; Bozem an, for Plaintiff and A pp ellan t. Thom as E. Hattersley, III, an dT eri A . Walter; Gough, Shanahan, Johnson & Waterman; Helena, for Defendant and Respondent. 1 1 The plaintiff, Bruce G. Kneeland, bro u gh t this action alleging that he was w rongfully d ischarged by defendant Luzenac A m erica, Inc. Kneeland appeals the decision o f the Fifth Judicial District Court, M adison County, granting defendant's m otion for sum m ary judgm ent on his breach o f im plied covenant claim. Kneeland also appeals the ju ry verd ict finding that he was not wrongfully discharged b y Luzenac. We affirm. 1 2 We restate the issues as follows: 1 3 1. Did the District Court err in granting sum m ary jud gm en t to Luzenac on Kneeland's claim o f post-term ination bad faith? 1 4 2. Did the D istrict Court p rop erly in stru ct the ju ry ? f 5 3. Was there substantial evidence to support the ju ry verdict? 16 4 . Did the D istrict Court err in den yin g Kneeland's m otions for jud gm en t as a m atter o f law, and motion for a new trial? FACTUAL AND PROCEDURAL BACKGROUND 1 7 I n i 9 8 i , Bruce G. Kneeland was h ired b y C yprus In dustrial M inerals to w o rk for the com pany's Y ellow stone Mine Operation. Later, Cyprus was renam ed Luzenac A m erica, Inc. Luzenac is a talc com pany with principal mine facilities in M ontana and headquarters in Denver, Colorado. Luzenac's M ontana M ines D ivision has th ree mine sites in M ontana th at o perate separately. The largest site is the Y ellow stone Mine near Ennis. The com pany also operates the Beaverhead Mine, a small underground mine in the Ruby Mountains, and the A ntler Mine, a surface mine located south o f Silver Star. 18 In the early 1990s, the talc m arket was in a downturn. Talc, a com m odity, is an industrial mineral. Talc com panies face com petition from other industrial m ineral producers, such as clay and calcium carbonate com panies. A lso, in recent years, there has been a large influx o f talc into the m arket from cheaper, foreign producers. As a result, the United States talc market accum ulated a large supply o f inventory. 1 9 Faced with these conditions, Luzenac's M ontana Mines Division reconfigured its w orkforce in late 1993 and m id-1994 to reduce its personnel by fifty-eight hourly positions. A t first, Luzenac offered volu n tary retirem ent and volun tary incentive packages to trim its workforce. H owever, these incentives did not result in a total reduction o f fifty-eight hourly positions. Subsequently, the com pan y review ed its p erson n el needs and determ in ed w hich jo b p ositions w ould b e red u ced in number and which positions would be eliminated com pletely or reconfigured. 1 1 o The Montana Mines Division had a handbook applicable to all its hourly em ployees published by Cyprus, prior to the com pany's name change in 1992. The handbook was am ended from tim e to time. As o f 1994, the handbook contained a policy dealing with downsizing. The handbook specifically outlined a process by which em ployees m ay "bid" for open positions, or "bum p" into occupied positions in the event o f a reduction in force. A bum p from an em ployee would displace another http://caselaw.findlaw.com/mt-supreme-court/10CI6351.html Personal Injury Lawyers You Owe Us Nothing Unless We Win. Call The Bandas Law Firm Right Now! oo v________j FindLaw Career Center Attorney Corporate Counsel Academic Judicial Clerk Summer Associate Intern Law Librarian ^ Search Jobs Post a Job | View More Jobs View More C ar A ccident Injury? You may qualify fo r compensation. Find Out Today! e C la im In jury.co m Need a New Take? Read FindLaw's Supreme Court Blog To Get the Freshest Updates N ow ! b lo g s.find la w .co m /sup re m e _co u rt Injury Claim ? Find out how much your settlement could be w orth. e C la im In jury.co m PLAINTIFF'S EXHIBIT CAM-136 1/7 4/4/2016 em ployee currently occupying that position. KNEELAND v LUZENAC A M E R IC A INC | FindLaw I l l The em ployees o f the Montana Mines Division were aware that it was o ver staffed and required downsizing. The em ployees approached Mike Toelle, the general m anager, with their concerns. To achieve an equitable result acceptable to all personnel, Toelle form ed a com m ittee of hourly em ployees from all three mine sites. The purpose o f the com m ittee was to develop a consensus on how the downsizing should occur and revise the policy on reducing the workforce. Under the policy the com m ittee developed, Y ellow stone Mine em ployees, like Kneeland, could bid for any open position available at their mine. These em ployees could also bump into any position at the Y ellow stone Mine or into a designated "en try-level" position at the Beaverhead mine, if they had the necessary qualifications for the position and m ore seniority than the individual occupying the position. 1 13 Job descriptions were posted detailing the open positions available for bid, and the entry level positions v u ln erab le to bum ping. Em ployees w ere requested to fill out bid and bum p sheets identifying the position they were seeking. The person with the m ost seniority and necessary qualifications for the position would be chosen. A com m ittee evaluated each application and an applicant was required to gain the consensus o f the m embers o f the com m ittee before being selected for a position. 1 14 A t first, Kneeland attem pted to bid into the positions o f plant m aintenance and m obile m aintenance at the Y ellow ston e Mine. H ow ever, those positions were filled by applicants with m ore seniority than Kneeland. He then attem pted to bum p into the position o f underground m echanic at the Beaverhead Mine. That position was not vulnerable to bum ping and his application was rejected. He also attem pted to bum p into the p osition o f un dergroun d m ine su pp ort at the Beaverh ead Mine, b u t was unsuccessful because he lacked the published minimum qualifications for that position. Kneeland made no other attem pt to bid upon or bump into any other position for which he was eligible. Therefore, after the application process was o ver, Kneeland was laid off in a reduction in force from Luzenac in m id-1994. 1 15 In July 1994, after the workforce reduction, Luzenac acquired Montana Talc Company, a com petitor with a mine site adjacent to the Yellow stone Mine facility. Due to the acquisition, Luzenac hired five individuals whom they had recently terminated. Kneeland was not one o f those hired back to w ork for Luzenac. 1 16 On Septem ber 2 7 ,1 9 9 4 , Kneeland filed a com plain t in th e Fifth Jud icial D istrict Court, M adison County, alleging w rongful d isch arge and related to rt claim s, in cluding co n sp iracy. He also alleged a claim based on "post-term ination bad faith," arising out o f Luzenac's failure to reinstate, recall, or reh ire him after acquirin g the M ontana Talc Com pany. On N ovem ber 1 ,1 9 9 4 , Luzenac filed its answ er to the com plaint, denying the allegations and setting forth num erous affirmative defenses. 1 1 7 On D ecem ber 1 ,1 9 9 5 , Luzenac filed m otions, m ovin g for sum m ary jud gm en t against all o f Kneeland's claims. Kneeland filed a m otion to recover sanctions, alleging that Luzenac violated Rule 11 by m oving for summary judgm ent on all claims. A hearing was held and the parties stipulated that the claim based on civil conspiracy should be dismissed. 1 18 On F ebruary 6 ,1 9 9 6 , the co u rt gran ted sum m ary jud gm en t to Luzenac on Kneeland's claim s o f intentional infliction of em otional distress and post-term ination bad faith. The court denied summary judgm ent on Kneeland's wrongful discharge claim, finding that "a factual issue exists as to whether there has been a violation o f express provisions o f a written personnel policy in reduction o f force." The court also denied Kneeland's request for the im position o f attorney fees and sanctions against Luzenac. 1 19 On F ebruary 1 3 ,1 9 9 6 , Kneeland filed a p etition for recon sid eratio n o f the court's ruling on sum mary judgm ent relating to Kneeland's claim for post-term ination bad faith. In the alternative, Kneeland requested that the court certify the claim as final pursuant to Rule 54(b), M .R.Civ.P., in order for this Court to review the issue. The District Court granted the m otion to certify and postponed any further action on the case pending a ruling by this Court. 1 20 Kneeland filed a "notice o f certification o f proposition o f state law" with this Court on February 26 ,19 9 6 . We issued an order on February 2 9 ,19 9 6 , stating that Kneeland's request would be handled as an appeal o f a jud gm en t pursuant to Rule 54(b) b u t that we w ould not rule on the p ro p riety o f the Rule 54(b) certification at that time. Luzenac then filed a m otion to dismiss the appeal, arguing that the requirem ents for Rule 54(b) certification had not been met. We agreed, and on March 2 8 ,1996, this Court dism issed Kneeland's appeal pursuant to Rule 54(b). 1 21 A ju ry trial began on O ctober 1 5 ,1 9 9 6 , on Kneeland's w rongful discharge claim . On O ctober 21, 1996, the ju ry return a unanimous verdict for Luzenac. Judgment was entered on October 3 1,19 9 6 . On N o vem ber 1 ,1 9 9 6 , Kneeland filed a m otion for jud gm en t as a m atter o f la w ,1 o r altern atively, m otion for a new trial. On N ovem ber 29 ,19 9 6 , the District Court denied Kneeland's m otion. On D ecem ber 3 0 ,1 9 9 6 , Kneeland filed a notice o f appeal. Kneeland now appeals from the ord er o f sum mary judgm ent dismissing his claim o f post-term ination bad faith, the final judgm ent and ju ry verdict, and from the order denying his post-trial motion. http://casel aw.fi ndlaw.conVmt-supreme-court/1006351 .html 2/7 4 /4 /2 0 1 6 ISSUE 1 K N E E U \N D v LUZENAC A M E R IC A IN C | FindLaw 123 Did the District Court err in granting summary judgment to Luzenac on Kneeland's claim of post-termination bad faith? 124 Our standard of review in appeals from summary judgment rulings is de novo. See Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239,242,907 P.2d 154,156; Meadv. Inc. (1994), 264 Mont. 465,470, 872 P.2d 782, 785. When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v. Yellowstone County (1995), 272 Mont. 261,264,900 P.2d90i, 903. In Bruner, we set forth our inquiry: The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred. Bruner, 272 Mont, at 264-65, 900 P.2d at 903 (citations omitted). 125 Kneeland argues that the District Court erred in granting summary judgment to Luzenac on his claim based on post-termination bad faith. The court had ruled that Kneeland's claim was precluded by the Montana Wrongful Discharge From Employment Act (WDFEA), 39-2-913, MCA. Kneeland argues that Luzenac's failure to rehire him after it had acquired Montana Talc Company constitutes a separate and independent tort of post-termination bad-faith. f 26 By its own terms, the WDFEA "sets forth certain rights and remedies with respect to wrongful discharge" and "provides the exclusive remedy for a wrongful discharge from employment." Section 39-2-902, MCA. The Act provides that "no claim for discharge may arise from tort or express or implied contract." Section 39-2-913, MCA. Furthermore, under the WDFEA, "[t]here is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in [the Act]." Section 39-2-905(3), MCA. 127 In construing 39-2-913, MCA, we have held that the section bars all claims arising from an asserted wrongful discharge based upon common law tort or implied or express contract. Beasley v. Semitool, Inc. (1993), 258 Mont. 258,261,853 P.2d 84,86. However, not all tort or contract claims are barred by 39-2-913, MCA, because they arise from employment. Rather, 39-2-913, MCA, bars only those tort and contract claims which are "for discharge." Beasley, 258 Mont, at 262, 853 P.2d at 128 First, we examine whether Kneeland's claim of post-termination bad faith constitutes a separate and independent tort unrelated to the alleged wrongful discharge. Kneeland claims that Luzenac is liable for bad faith because it failed to rehire him after it acquired Montana Talc Company and hired five workers. Luzenac counters that it had no duty to rehire Kneeland after he had been permanently terminated in the reduction offeree in 1994. 129 This Court has held that the breach of a covenant or a contract may result in the tort ofbad faith only in exceptional circumstances. To be actionable the plaintiff must establish a special relationship. See Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767. In this case, Kneeland has not established that a contract existed between him and Luzenac after his termination. Therefore, there is no need to establish whether or not a special relationship existed between Kneeland and Luzenac or if Luzenac acted tortiously in failing to rehire him. 130 In fact, once Kneeland was terminated in 1994, Luzenac had no duty to rehire Kneeland at any time in the future. Kneeland understood that once he was terminated, Luzenac had no further obligations to him. Kneeland so testified in his deposition: Q: All right. Nobody [at Luzenac] promised you, "We're going to hire you back." A: No. As a matter of fact, this wasn't a layoff. Mr. Pearson stood up in front of the whole room and said this was a termination. Q: Okay. A: So that if we do rehire, we have no obligation to rehire anybody. That's why we are offering this separation package. Q: And that was clear to you? A: Yes, at that particular point in time. Kneeland was also unable to identify any basis for his claim that Luzenac had a duty to rehire: Q: . I am asking you ifyou thought you had some kind of personnel policy right, some right that is established by an employee guideline or a statement you saw? What do you think established, in your view, this concept that you had a right to be rehired back to the company? http://caselaw.findlaw.corrVm t-suprem e-court/1006351 .html 3 /7 4 /4 /2 0 1 6 K N E E U \N D v LUZENAC A M E R IC A IN C | FindLaw A: I guess I didn't feel that I had a right to be rehired back. I felt that in good faith they should have hired me back. 132 Kneeland admitted that there was no representation or policy by Luzenac that established a duty or obligation for the company to hire him back at any time in the future. He admitted that he understood at the time he was terminated that his separation from Luzenac was permanent. Furthermore, he cannot establish the existence of a contract or special relationship that would support a claim for post-termination bad faith. 133 We determine that Kneeland's tort claim is not actionable under the WDFEA and is also precluded by the Act because he cannot establish a basis for the claim aside from his discharge in 1994. Therefore, we conclude that the District Court was correct in granting summary judgment to Luzenac and denying Kneeland's claim for post-termination bad faith. ISSUE 2 134 Did the District Court properly instruct the jury? 135 We have previously stated that the district court has discretion when it decides how to instruct the jury, taking into consideration the parties'theories, and that we will not overturn the court's decision absent an abuse of discretion. Cechovic v. Hardin &Associates, Inc. (1995), 273 Mont. 104, 116,902 P.2d 520,527. When we examine whether jury instructions were properly given or refused, we consider the instructions in their entirety, as well as in connection with the other instructions given and the evidence at trial. Cechovic, 273 Mont, at 116,902 P.2d at 527. H36 First, Kneeland argues that the District Court erred when it refused Kneeland's proposed Instruction No. 4. Instruction No. 4, given by the District Court, to which Kneeland objected, read as follows: A discharge is wrongful if it is done without good cause or if the employer violated the express provisions of its own written personnel policy. Under Montana law, "discharge" includes any termination of employment, including resignation, elimination of the job, layofffor lack ofwork, or any other cutback in the number of employees for legitimate business reasons. 137 Kneeland's proposed Instruction No. 4 provided: "Discharge" includes a constructive discharge as defined in subsection (1) and any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason. Kneeland requested this instruction based on his contention that Luzenac's failure to rehire him is actionable under WDFEA. 138 Although not entirely clear, it appears that Kneeland attempted to bring his "failure to rehire claim" back within the auspices of the WDFEA during the jury trial. Kneeland's proposed Instruction No. 4 included the "failure to recall or rehire" language contained in the definition of discharge provided in 39-2-903(2), MCA. In the pretrial proceedings, however, Kneeland maintained that the defendant's post-termination conduct was outside the purview of the WDFEA. As stated above, we have concluded that the District Court was correct in dismissing on summary judgment Kneeland's claim that Luzenac was liable for a separate and independent tort of post-termination bad faith. 139 We determine that Kneeland's claim that Luzenac is liable for wrongful discharge because it failed to rehire or recall him is also without merit. Therefore, we conclude that the District Court properly instructed the jury in the court's Instruction No. 4. This was not a situation where the "failure to recall or rehire" language should have been included in the definition of "discharge." Kneeland testified at length that he considered his termination from Luzenac to be permanent. He was not temporarily laid off or in a recall status. See Arnold v. Boise Cascade Corp. (1993), 259 Mont. 259,856 P.2d 217. Kneeland was permanently separated and received a severance. Thus, we hold that the District Court properly exercised its discretion in giving the court's Instruction No. 4. H40 Next, Kneeland argues that the District Court erred by instructing the jury on the defense of failure to complete an internal appeal procedure. Kneeland claims that the court erred in allowing Luzenac to present as a defense Kneeland's failure to complete the company's internal appeal process. Kneeland argues that since Luzenac did not assert his failure to complete the internal grievance process as an affirmative defense in this action, the jury should not have considered it. f 4 l On October 17,1996, the parties discussed the settlement of instructions before the case was turned over to the jury. Instruction No. 8 given by the District Court reads as follows: If an employer maintains written internal procedures under which the employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing a wrongful discharge action. The employee's failure to initiate or exhaust available internal procedures is a defense to a wrongful discharge claim. This instruction was based on 39-2-911 (2), MCA, which states that an "employee's failure to initiate http://caselaw.findlaw.corrVm t-suprem e-court/1006351 .html 4 /7 4/4/2016 KNEEU\ND v LUZENAC AM ERICA INC | FindLaw or exhaust available internal procedures is a defense to an action brought under this part." 142 Luzenac counters that Kneeland made no objection when the court and the parties settled the instructions. Moreover, Luzenac argues that this affirmative defense was included within the pretrial order jointly prepared by both parties before the trial. 143 This Court has previously held that, generally, a failure to object to a jury instruction at the trial level amounts to a waiver ofthe right to raise the objection on appeal. State v. Holzapfel (1988), 230 Mont. 10 5,113,748 P.2d953,957. The instruction which is given without objection becomes the law ofthe case. Wisher v. Higgs (1993), 257 Mont. 132,143,849 P.2d 152,158. The transcript shows that both parties and the court thoroughly discussed Luzenac's proposed jury instruction that became Instruction No. 8. After reviewing the transcript, we note that Kneeland did not object to Instruction No. 8. Thus, because Kneeland did not object, we determine that Instruction No. 8 was properly before the jury. Furthermore, Kneeland was put on notice by Luzenac to this affirmative defense in the pretrial order. ISSUE 3 H44 Was there substantial evidence to support the jury verdict? I45 In Lee v. Kane (1995), 270 Mont. 505, 893 P.2d 854, this Court discussed our standard of review of a jury verdict in a civil case: Our scope of review ofjury verdicts is necessarily very limited. This Court will not reverse ajury verdict which is supported by substantial credible evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence. Finally, upon reviewing ajury verdict to determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party. Kane, 270 Mont, at 510-11,893 P.2dat 857 (quoting Hansen v. Hansen(i992), 254 Mont. 152,157, 835 P.2d 748,750-51). 146 Kneeland argues that the jury verdict is not supported by substantial evidence. However, outside of discounting the credibility of the witnesses that testified, his brief contains nothing to support his contention that "the evidence at trial raised the direct and inescapable conclusion that [Luzenac] was guilty of a pattern of selective and disparate treatment of Kneeland over a course of years." 147 As Luzenac points out, it presented testimony regarding the treatment ofthe mine's employees during the downsizing. Luzenac offered testimony through Toelle stating the reasons for the mine's downsizing and how the process was carried out. He testified that all decisions were based on the consensus of a committee comprised of different department heads, managers, and supervisors. Toelle testified that Luzenac tried to avoid as many layoffs as possible by offering early retirement and voluntary resignation packages to any employee who wanted to leave. Toelle also explained that Kneeland was not qualified for the positions he sought or had less seniority than the people ultimately chosen for those positions. 148 Furthermore, upon questioning by Luzenac, Kneeland admitted that although he believed that the review committee had an ulterior motive against him, his accusations were not based on any evidence, but were merely speculation. Kneeland also admitted that he tried to bid for or bump into positions which were awarded to employees who had more seniority than he did or who were more qualified than he was, and that he bid for a position that was not available for bidding or bumping. f 49 As for Kneeland's claim that he should have been hired for one of the positions that became available after Luzenac acquired Montana Talc Company, he admitted that his termination was permanent and that he had no recall rights. Also, as we have stated above, there is no factual or legal basis to Kneeland's claim that Luzenac had a duty to rehire him following the reduction of force. In denying Kneeland's motion for judgment as a matter of law or, in the alternative, for a new trial, the District Court stated: The suggestion that the evidence of wrongful discharge was `overwhelming' is not sustained by the record. The evidence was `overwhelming' sustaining Defendant's positions, not Plaintiffs. The unanimous verdict confirms the assessment. This Court agrees. 151 It is within the province of the jury to determine the weight to be given to evidence presented and to judge the credibility of witnesses, and in reviewing the jury's verdict we must view the evidence in the light most favorable to the prevailing party. See Hogan v. Flathead Health Center, Inc.(1992), 255 Mont. 388,842 P.2d335; SilvisThrough Silvisv. Hobbs (1992), 251 Mont. 4 0 7 ,824P.2d 1013. We conclude that when the evidence in this case is viewed in the light most favorable to Luzenac, the jury's verdict is supported by substantial credible evidence. http://caselaw.findlaw.com/mt-supreme-court/1006351 .html 5/7 4/4/2016 ISSUE 4 KNEELAND v LUZENAC A M E R IC A INC | FindLaw H52 Did the D istrict Court err in den yin g Kneeland's m otions for ju d gm en t as a m atter o f law, and motion for a new trial? H53 The standard o f re v ie w in appeals from the denial o f a m otion for jud gm en t as a m atter o f law, made pursuant to Rule 50(b), M .K C iv.P., is the same as that form erly used for review o f a m otion for a directed verdict, and may be granted only w here it appears as a m atter o f law that a party could not prevail upon any view o f the evidence including the legitim ate inferences to be drawn therefrom . W ilk erso n v . School D istrict (198 5), 2 16 M ont. 20 3, 2 1 1 , 7 0 0 P.2d 6 1 7 , 622. M otions for ju d gm en t as a m atter o f law are proper only when there is a com plete absence o f any evidence to warrant subm ission to a ju r y . D urden v . H ydro Flam e Corp., 1998 MT 4 7 , 55 St. Rep. 198, 288 Mont. 1 , 9 55 P.2d 160, (citing Jacques v. Montana N atl Guard (1982), 199 Mont. 493, 504, 649 P.2d 13 19 ,13 2 5 ). Courts must exercise the greatest self-restraint in interfering with the constitutionally mandated processes o f ju ry decision. Unless there is a com plete absence o f any credible evidence in support o f the v erd ict, a jud gm en t as a m atter o f law m otion is not p ro p e rly granted. Ryan v . City o f Bozem an (1996), 2 79 Mont. 5 0 7 , 510 , 928 P.2d 228, 230. 1 54 Our rev iew o f a d istrict court's denial o f a m otion for new trial is w h eth er the co u rt abused its discretion. Hando v . PPG Industries, Inc. (1995), 2 72 Mont. 14 6 ,14 9 , 900 P.2d 281, 283. Our rev iew o f an appeal based upon insufficiency o f th e ev id en ce to su pp ort the ju ry 's v e rd ict is w hether there is substantial evidence in the record to support the verdict. Cartwright v . Equitable Life Assur. Society ofU .S. (1996), 2 7 6 Mont. 1 ,2 3 ,9 1 4 P.2d 9 76, 990. 155 On O cto ber 1 7 ,1 9 9 6 , at th e clo se o f Luzenac's case in chief, Kneeland m ade an oral m otion for judgm ent as a m atter o f law, indicating that the evidence was overw helm ing that Kneeland was, in some respects, the most qualified and senior em ployee and should not have been passed over for jobs at the mine. The court denied the motion. 1 5 6 On N o vem ber 1 ,1 9 9 6 , after th e ju ry return ed a unanim ous v e rd ic t in fav o r o f Luzenac, Kneeland filed a m otion for judgm ent as a m atter o f law, or alternatively, for a new trial. In his m otion, Kneeland argued that the general verdict form was im proper, Instruction No. 8 regarding the internal grievance procedure was m isleading and prejudicial, and that the evidence was overw helm ingly in his favor. 1 5 7 In an order filed on N ovem ber 29 ,19 9 6 , the court denied Kneeland's m otion. The court stated: The suggestion th at th e ev id en ce o f w rongful discharge was `o verw h elm in g' is not sustained b y the record. The evidence was `overw helm ing' sustaining Defendant's position, not Plaintiffs. The unanimous verdict confirms the assessment. The Plaintiff now objects to the general verdict form which according to the record was agreed to by both parties. In sum m ary, in the Court's view , Plaintiff's post trial m otions are totally w ithout m erit. 15 8 We agree with the assessment of the District Court. A s stated above, we have concluded that Instruction No. 8 was proper for the ju ry to consider in resolving this action. M oreover, Kneeland did not object to the instruction or the general verdict form before it was subm itted to the jury. F urtherm ore, as also stated ab ove, the ju r y 's v e rd ic t is supp orted b y substantial cred ible evid en ce. The ev id en ce was not o verw h elm in g for Kneeland's position, rath er the ev id en ce was overw h elm in g in support o f Luzenac's position. 1 59 In conclusion, we hold that the District Court did not err in denying Kneeland's oral m otion for judgm ent as a m atter o f law, nor did the court abuse its discretion in denying Kneeland's m otion for judgm ent as a m atter o f law or, alternatively, for new trial. 1 60 Affirmed. FOOTNOTES 1. While Kneeland, Luzenac, and the D istrict Court refer to Kneeland's Rule 50 , M .R.Civ,P., m otion as a m otion for judgm ent notwithstanding the verdict, Rule 50 was amended b y order o f this Court, effective M arch 2 6 ,1 9 9 3 , to do aw ay w ith the term s "jud gm en t notw ithstanding th e v e rd ic t" and "d irected v e rd ic t." The p rop er term is "jud gm en t as a m atter o f law ." Th erefore, for p u rposes o f clarity, we will refer to Kneeland's m otion, and all other m otions, as "m otions for judgm ent as a m atter of law." REGNIER, Justice. TURNAGE. C.J., and GRAY, TRIEWEILER and LEAPHART, JJ., concur. 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