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Murcott v. Best Western International8/31/2000
Maine and Romulus, Michigan matters, Best Western argues that Murcott put aside his concerns and carried out instructions from Huff and Brown to discourage the applications. Best Western seems to argue that Murcott cannot wear the mantle of "whistle-blower" unless he refused to carry out his employer's directions. In effect, Best Western argues that Murcott insufficiently protested his employer's actions and should have been insubordinate. Best Western offers no legal authority for this argument. We decline to impose such a requirement on whistle-blowers because it would deter an employee's legitimate expressions of concern. The trial court's ruling on this issue is affirmed.
b. Best Western Waived The Argument That Murcott Lacked A Good Faith Belief That The Protested Actions Were Illegal.
Best Western further argues that Murcott lacked a good-faith belief that its conduct violated federal and state antitrust laws. Murcott responds that Best Western has waived the issue by failing to raise it in any dispositive trial motion. Best Western responds that the issue appears in the parties' joint pre-trial statement, where it does appear, obliquely and only in passing.
We find that Best Western has waived the good faith argument. A joint pre-trial statement controls the subsequent course of litigation and may amend the pleadings. See Carlton v. Emhart, 138 Ariz. 353, 355, 674 P.2d 907, 909 (App. 1983) (a joint pre-trial memorandum that omitted a lack of personal jurisdiction defense removed the defense from the case). In a case paralleling Carlton, we held that the appellant waived an argument about whether the appellee had become a licensee because the record did not indicate that the appellee's status was squarely raised in the motion for directed verdict. See Van Dever v. Sears, Roebuck & Co., 129 Ariz. 150, 152, 629 P.2d 566, 568 (App. 1981). In analyzing the waiver issue, we stated, "[Appellant's] reference to the issue in a trial memorandum is not enough to preserve the issue for appeal under the circumstances presented here." Id. Likewise, we conclude here that Best Western has waived the good faith issue, and therefore we cannot consider it on appeal. See id.; see also Westin Tucson Hotel Co. v. State Dep't of Revenue, 188 Ariz. 360, 364, 936 P.2d 183, 187 (App. 1997)(questions not directly raised in the trial court cannot be considered on appeal).
c. Murcott's Whistle-Blowing Activities Were Directed To Those Who Could Take Corrective Action.
Best Western also argues that Murcott's claim fails as a matter of law because (1) he failed to report the relevant activities to persons who could take corrective action, and (2) he failed to report these activities to external authorities.
Best Western notes that Murcott directed his complaints to the individual defendants and to the board of directors, none of whom could correct the problem. See Faust v. Ryder Commercial Leasing & Servs., 954 S.W.2d 383 (Mo. App. 1997)(plaintiff did not "blow the whistle" by speaking only to the wrongdoer himself).
Murcott replies that he complained to the board itself about the Page applications, not merely to its individual members. He also directed his protests to Sundlof and raised concerns about potential antitrust law violations with Evans, who was then his supervisor, company President and Chief Executive Officer.
We find that Murcott's protests to Evans and Sundlof and to the board generally were legally sufficient. Evans was at least a higher authority whose executive status cannot be discounted. See Brenneke v. Department of Mo., Veteran of Foreign Wars, 984 S.W.2d 134 (Mo. App. 1998) (a report of wrong
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