                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JAN 30 1998
                               FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    JOSEPH E. RICH, M.D.,
    an individual,

                 Plaintiff-Appellant,
                                                       No. 96-6235
    v.                                           (D.C. No. CIV-95-616-A)
                                                       (W.D. Okla.)
    MED-NATIONAL INC.,

                 Defendant-Appellee,

          and

    THE DEPARTMENT OF THE AIR
    FORCE; SHEILA A. WIDNALL, in
    her official capacity as Secretary of
    the Air Force, LT. COLONEL
    KATHERINE E. SCHEIRMAN,
    COLONEL DAVID BISSELL, and
    ROBERT S. WELLBORN, JR.,

                 Defendants.




                               ORDER AND JUDGMENT *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Joseph E. Rich, M.D, brought this action against defendants

relating to his termination as a physician working under contract with

Med-National, Inc., at Tinker Air Force Base near Oklahoma City. Plaintiff’s

claims against defendants Department of the Air Force, Widnall, Scheirman,

Bissell, and Wellborn were dismissed and are not part of this appeal. Against the

remaining defendant, Med-National, plaintiff asserted claims for breach of

contract, breach of implied covenant of good faith and fair dealing, fraudulent

inducement to contract, and violation of Oklahoma wage law. The district court

granted summary judgment in Med-National’s favor on the good faith and fair

dealing and Oklahoma wage law claims, and denied plaintiff’s motion for

summary judgment on his breach of contract claim. At trial, the district court

granted Med-National’s motion for judgment as a matter of law on the fraudulent

inducement claim, and the jury rendered a verdict against plaintiff on his breach



                                        -2-
of contract claim. Plaintiff appeals, raising issues relating only to his breach of

contract and Oklahoma wage law claims.


                                           I

      The relevant facts briefly stated are these. Med-National had a contract

with the Air Force to provide physician services at the Tinker Air Force Base

Hospital and Clinic. In late 1993, Med-National solicited and eventually hired

plaintiff under contract to fill an OB-GYN position under the Air Force contract

beginning on January 3, 1994, for the remaining life of its contract with the Air

Force, which was scheduled to end in 1998. Plaintiff’s contract with

Med-National (as well as Med-National’s contract with the Air Force) required

that he obtain privileges to practice at Tinker from the base’s credentialing

committee. To obtain privileges, plaintiff had to provide, through Med-National,

a history of his licensing and privileges in other states and at other hospitals. The

committee granted plaintiff provisional privileges on January 3, 1994, which

allowed him to practice, and granted him full privileges three months later.

      Plaintiff practiced at Tinker from January 2 to May 26, 1994. During this

time, there were several official complaints regarding his practice. On May 26,

1994, the credentials committee placed plaintiff’s privileges to practice at Tinker

in abeyance due to his providing allegedly incomplete and misleading information

regarding his previous licensing in Kansas and Kentucky. The initial abeyance

                                          -3-
period was fourteen days, which was extended another fourteen days on June 16.

On June 23, 1994, Med-National summarily terminated its contract with plaintiff,

its stated reasons being the abeyance of his privileges and the complaints

regarding his performance.

      Section XII of plaintiff’s contract with Med-National provided that it could

be terminated upon written or oral notice on the occurrence of any of the

following events:

      1.    Whenever the Physician shall cease to be a “Licensed
      Physician” in the state or states in which he is licensed to practice
      medicine. . . .

      2.    The death of the Physician (in which case notice shall not be
      necessary).

      3.    The inability of the Physician to practice medicine due to
      physical or mental disability exceeding a period of thirty (30) days.

      4.    Whenever the Physician fails or refuses to perform faithfully
      and diligently the duties as set forth in the Contract.

      5.     The Company shall have the right to terminate this Agreement
      with thirty (30) days notice being given to the Physician at any time
      for cause, or as stated herein. . . .

      6.    The Physician may terminate this Agreement by giving thirty
      (30) days notice to the Company of his intent, stating reasons and
      exact date of departure.

      7.     Failure to obtain approval of the Credentials Committee and/or
      the Credentials Review Organization shall give the Company the
      right to terminate this Agreement at any time by giving notice to the
      Physician of his failure to receive approval. . . .


                                         -4-
Appellant’s App. Vol. I at 72-73. In terminating plaintiff, Med-National

specifically relied on paragraphs 4, 5, and 7 above. See id. at 81. It did not

compensate plaintiff for any time after May 26, the date his privileges were first

placed in abeyance.

      Plaintiff subsequently brought this action. In his breach of contract claim,

he contended that Med-National terminated him without cause and that in any

event he was entitled to thirty-days’ notice prior to termination, which

Med-National did not provide. In his Oklahoma wage law claim, he contended

that Med-National owed him for unpaid compensation for the period from May 26

to July 23, 1994, the date he contended the contract could have been terminated

considering the thirty-days’ notice requirement. On appeal, plaintiff raises four

issues: (1) the district court erred in denying his motion for summary judgment

on his breach of contract claim; (2) the jury’s verdict against him on his breach of

contract claim is not supported by sufficient evidence; (3) the district court erred

in refusing to instruct the jury regarding contract ambiguity and construction; and

(4) the district court erred in granting summary judgment against him on his

Oklahoma wage law claim.




                                         -5-
                                          II

                          A. Denial of Summary Judgment

      Plaintiff first contends that the district court erred in denying summary

judgment on that part of his breach of contract claim in which he contended he

was entitled to thirty-days’ notice prior to termination. Plaintiff contended that

paragraph 5 of the termination clause in the contract, which Med-National cited in

its termination letter, required that he be provided thirty-days’ notice prior to his

termination. In denying summary judgment, the court stated:

              The Court finds that genuine issues of material fact preclude
      summary judgment for either plaintiff or Med-National on this issue.
      The [Fed. R. Civ. P.] 56(c) evidence presented by the parties paints a
      confused picture of why plaintiff was terminated. According to Med-
      National, it was informed that the possibility of plaintiff’s privileges
      being reinstated was non-existent. The question is whether Med-
      National relied solely on ¶ XII(5) in its decision to terminate. If so,
      it will be liable for breach of contract for failing to provide thirty
      days notice. This question involves a factual issue that must be
      decided by the jury. Accordingly, summary judgment is
      inappropriate on this issue.

Appellant’s App. Vol. III at 652-53.

      Post-trial appellate review of a denial of summary judgment differs

depending on the reason for the denial. Where summary judgment has been

denied and the case proceeds to trial, we may review the denial of summary

judgment if that denial was based on purely a legal issue. See Wolfgang v. Mid-




                                          -6-
America Motorsports, Inc., 111 F.3d 1515, 1521 (10th Cir. 1997). The same is

not true, however, where the denial is based on factual issues, as in this case.

      The denial of summary judgment based on factual disputes is not
      properly reviewable on an appeal from a final judgment entered after
      trial. Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51 (10th Cir.,
      cert. denied, 507 U.S. 973, . . . (1993). “[E]ven if summary
      judgment was erroneously denied, the proper redress would not be
      through appeal of that denial but through subsequent motions for
      judgment as a matter of law . . . and appellate review of those
      motions if they were denied.” Id. at 1251. Failure to renew a
      summary judgment argument--when denial was based on factual
      disputes--in a motion for judgment as a matter of law under
      Fed. R. Civ. P. 50(a)(1) at the close of all the evidence is considered
      a waiver of the issue on appeal. Allahar v. Zahora, 59 F.3d 693,
      695-96 (7th Cir. 1995).

Wolfgang, 111 F.3d at 1521. Plaintiff did not move for judgment as a matter of

law. We therefore will not review the district court’s denial of his summary

judgment motion because it did so due to factual disputes.

                              B. Insufficient Evidence

      Plaintiff next contends that the jury’s verdict that Med-National did not

breach the contract by terminating him without cause is not supported by

sufficient evidence. As we noted above, however, plaintiff failed to move for

judgment as a matter of law on this (or any) issue. He therefore failed to preserve

this issue for appellate review, and we will not consider it further. See FDIC v.

United Pac. Ins. Co., 20 F.3d 1070, 1076 (10th Cir. 1994).




                                          -7-
                                 C. Jury Instructions

      Plaintiff also contends that the district court erred in failing to instruct the

jury on contract ambiguity and construction as he had requested. 1 In rejecting at


1
       Plaintiff objected to the district court’s rejection of three of his proposed
instructions. Proposed instruction No. 2 stated that the jury needed to decide the
meaning of certain quoted terms in the contract, including the termination clause,
and then stated that:

             In deciding the meaning of these terms, you must decide what the
      intent of the parties was when they made their contract. To decide what
      their intent was you should first examine the language of the contract. You
      may also consider the circumstances under which the parties made the
      contract, and what the parties themselves believed the terms meant as
      shown by the evidence.

            A contract should be interpreted so that it is reasonable and capable
      of being carried out, if this can be done without changing the intention of
      the parties.

Appellant’s App. Vol. III at 713. Proposed instruction No. 3, labeled “Entire
Contract,” stated that:

            A contract is to be interpreted as a whole, and the overall intention of
      the parties is controlling over the separate parts of a contract.

             If possible, each part of a contract must be used to help interpret the
      other parts, but if one part is wholly inconsistent with the general intention
      of the parties, it should be rejected.

Id. at 714. Proposed instruction No. 4, labeled “Construction Against Party
Causing Uncertainty,” stated:

            If you cannot decide the intention of the parties after considering
      Instruction Nos. ___ to ___, then you should interpret the unclear terms in
      the contract most strongly against the party responsible for the uncertainty.
                                                                      (continued...)

                                          -8-
trial plaintiff’s objections to the instructions, the district court stated that “[t]he

question, in my opinion, is not whether anything in the contract is ambiguous, it’s

which term applies to which situation, and the jury has to decide what the

situation is and then they decide which term applies to it.” Appellant’s App. Vol.

V at 1455. The court did not give any instructions to guide the jury on

interpreting or construing the contract. Three days after the trial had concluded,

the court issued a written order further explaining its reasons for rejecting

plaintiff’s objections, stating that plaintiff had waived any issue regarding

whether the contract was ambiguous because he had failed to raise the issue

timely. Plaintiff contends both that the objection was timely and that the court’s

failure to instruct as he requested was prejudicial.

         We review a district court’s decision whether to give a particular

instruction for abuse of discretion. See Harrison v. Eddy Potash, Inc., 112 F.3d


1
    (...continued)
          In this case, you are instructed that Med-National drafted the contract and
          is the party responsible for any uncertainty.

Id. at 715. Instruction Nos. 2 and 3, which were virtually identical to instructions
proposed by Med-National, also included this note: “This Instruction should only
be given if the Court determines that one or more terms of the [contract] is/are
ambiguous.” Id. at 713, 715. Plaintiff also objected to the court’s instruction No.
13 “to the extent that instruction contains a statement that the contract is clear and
unambiguous.” Id. at 1455. That instruction stated in part that “[y]ou are advised
that a contract that is clear and unambiguous in its terms is binding on all parties
to the contract. Such a contract should be accepted by you as the agreement of
the parties.” Id. at 740.

                                            -9-
1437, 1442 (10th Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3137 (Aug. 6,

1997). We conduct a de novo review to determine whether the instructions as a

whole correctly stated the governing law and provided the jury with an adequate

understanding of the issues and applicable standards. See id. “Reversal is

warranted only where a deficient jury instruction is prejudicial.” Id. (quotation

omitted).

      We conclude that the court erred in failing to give plaintiff’s requested

instructions regarding contract construction and ambiguity. Turning first to the

court’s post-judgment determination that plaintiff waived these issues, we believe

plaintiff’s objections were timely and preserved these issues for both the district

court’s and our consideration. Fed. R. Civ. P. 51 provides that “[n]o party may

assign as error the giving or the failure to give an instruction unless that party

objects thereto before the jury retires to consider its verdict, stating distinctly the

matter objected to and the grounds of the objection.” This requirement allows the

district court an opportunity to make changes to instructions and correct any

errors, and, from an appellate standpoint, prevents a litigant from taking

advantage of any error that the district court could have rectified. See Weir v.

Federal Ins. Co., 811 F.2d 1387, 1390 (10th Cir. 1987); Aspen Highlands Skiing

Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1514 (10th Cir. 1984), aff’d, 472 U.S.

585 (1985).


                                          -10-
      Plaintiff submitted his proposed instructions on the first day of trial, and

while the court indicated they were filed substantially out of time, the court did

not reject the proposed instructions as untimely. 2 After the court instructed the

jury, and importantly, before the jury retired, the court asked if there were any

objections. That was when plaintiff raised his objections, which is what Rule 51

requires. In denying the objections, the court stated that it did not find the

contract to be ambiguous, and there is no indication the court did not understand

the objections. See City of Wichita v. United States Gypsum Co., 72 F.3d 1491,

1495 n.1 (10th Cir. 1996). The court thus was presented with an opportunity to

make any necessary changes to the instructions, and it determined that none were


2
       While the court indicated in its post-judgment order that plaintiff’s
submission of these proposed instructions was the first notice to the court that
plaintiff was contending that the contract was ambiguous, it also noted that

      [i]n the numerous summary judgment filings, plaintiff did not address
      the issue [of contract ambiguity], except to note that the contract was
      not ambiguous, but if it were, that any ambiguity be construed
      against the defendant. Plaintiff’s Trial Brief alleges that “Med-
      National has argued a strained and self-serving interpretation of the
      notice of termination provisions of the Agreement and has attempted
      to impose an ambiguity into the language of the Agreement where
      none exists.”

Appellant’s App. Vol. III at 751. The fact that both parties took contrary views
of the contract language provided some indication that the contract may be
ambiguous. Cf. Pollock v. FDIC, 17 F.3d 798, 803 n.7 (5th Cir. 1994) (“[I]t is
implicit in the argument that a document which is unambiguous in one direction
necessarily involves some element that the instrument is, at least, not
unambiguous in the other direction.”).

                                         -11-
necessary. Rule 51 does not require that an objection have been previously raised

for it to be effective. See Productive Automated Sys. Corp. v. CPI Sys., Inc., 61

F.3d 620, 624 (8th Cir. 1995) (“Nothing in the rule requires that a party’s

objection occur at an instructions conference or at any other particular time,

provided that the party asserts an objection before the jury retires.”); Gregg v.

U.S. Indus., Inc., 887 F.2d 1462, 1467-68 & n.6 (11th Cir. 1989) (finding

objection timely even though made after party had previously agreed to it at

instruction conference). We thus proceed to the merits of plaintiff’s argument.

      Plaintiff’s general contention is that under section XII of the contract, all

terminations (except those due to death) require thirty-days’ notice. In other

words, plaintiff contends that paragraph 5, the only paragraph specifically

requiring Med-National to give thirty-days’ notice, applies to all terminations

including those under paragraphs 4 and 7, which Med-National claimed were the

bases for termination. Plaintiff’s general position is that this is what the contract

plainly means, but his fall-back position is that if the contract does not plainly

mean this, then it is ambiguous and should be construed in his favor. As noted

earlier, the three relevant paragraphs allow termination on written or oral notice

in the following circumstances:

      4.    Whenever the Physician fails or refuses to perform faithfully
      and diligently the duties as set forth in the Contract.



                                         -12-
      5.     The Company shall have the right to terminate this Agreement
      with thirty (30) days notice being given to the Physician at any time
      for cause, or as stated herein. . . .

      7.     Failure to obtain approval of the Credentials Committee and/or
      the Credentials Review Organization shall give the Company the
      right to terminate this Agreement at any time by giving notice to the
      Physician of his failure to receive approval. . . .

In denying plaintiff’s summary judgment motion, the district court had rejected

plaintiff’s position, holding that the thirty-days’ notice provision applied only to

paragraph 5 and that unless paragraph 5 was the sole basis for plaintiff’s

termination, he was not entitled to the notice period.

      Whether a contract is ambiguous is a question of law. See Canutillo Indep.

Sch. Dist. v. National Union Fire Ins. Co., 99 F.3d 695, 700 (5th Cir. 1996)

(applying Texas law). 3 A contract is ambiguous if it is reasonably susceptible to

at least two different meanings. See id. In determining whether a contract is

ambiguous, we “examine and consider the entire writing in an effort to harmonize

and give effect to all the provisions of the contract so that none will be rendered

meaningless.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (emphasis

omitted).




3
       Although plaintiff argued in the district court that Oklahoma law applied to
the breach of contract claim, he does not challenge on appeal the court’s
determination that Texas law applied.

                                         -13-
      We agree with plaintiff that the termination provisions are ambiguous

regarding notice. Paragraph 5 requires thirty-days’ notice for terminations “for

cause, or as stated herein.” Paragraphs 4 and 7 allow terminations for particular

causes--failure or refusal to perform faithfully and diligently and failure to obtain

credentials approval. Med-National contends that these particular causes fall

within paragraph 5’s “exclusion” for terminations otherwise “as stated herein”

that do not require thirty-days’ notice. That may be one reasonable meaning of

the three paragraphs, but it is not the only one. If that were the only meaning,

then paragraph 7’s provision for termination “at any time,” which clearly

contemplates an exception to paragraph 5’s thirty-days’ notice requirement, would

be superfluous. To give that provision of paragraph 7 meaning, paragraph 5 could

be read as requiring thirty-days’ notice for any termination for cause unless

section XII elsewhere allows termination on different terms. Under that

interpretation, a termination under paragraph 4, which omits paragraph 7’s

provision for terminations “at any time,” would require thirty-days’ notice.

Moreover, Med-National’s view that “cause” in paragraph 5 necessarily excludes

all causes mentioned elsewhere in section XII leaves paragraph 5 virtually empty

of any significant meaning; that is, it is difficult to imagine a termination for

cause that would be not covered by some other paragraph of section XII. In any




                                          -14-
event, the termination provisions in the contract are poorly written and are

ambiguous.

      Because the termination provisions are ambiguous, their interpretation

becomes a factual matter. See Coker, 650 S.W.2d at 394. Proper jury

instructions regarding contract interpretation thus become critical. Texas follows

the general rule that ambiguous contracts should be construed against the drafter,

see, e.g., Enell Corp. v. Longoria, 834 S.W.2d 132, 134 (Tex. Ct. App. 1992); cf.

Clardy Mfg. Co. v. Marine Midlands Bus. Loans Inc., 88 F.3d 347, 355 (5th Cir.

1996) (noting that under Texas law, the rule is disfavored but should be applied

when other rules of construction fail), cert. denied, 117 S. Ct. 740 (1997), and it

is undisputed here that Med-National drafted the contract. We conclude that the

court should have given plaintiff’s proposed instruction No. 4 dealing with

ambiguity (“Construction against Party Causing Uncertainty”), as well as

plaintiff’s proposed instruction Nos. 2 and 3, the general contract interpretation

instructions.

      The court’s failure to give appropriate instructions is not reversible error

unless, considering the instructions as a whole, we have substantial doubt whether

they properly guided the jury, see Mason v. Oklahoma Turnpike Auth., 115 F.3d

1442, 1454 (10th Cir. 1997), and we determine the error to have been prejudicial,

see Harrison, 112 F.3d at 1442. The jury instructions in this case were, at best,


                                         -15-
confusing and incomplete. At the minimum, they deprived plaintiff of the

opportunity to fairly present and the jury to consider a theory of plaintiff’s case--

ambiguity--which we have determined was an appropriate and timely presented

theory. This error was prejudicial.

      To fully appreciate the shortcomings of the jury instructions, it is helpful to

understand the confusion throughout the trial in the treatment of the concept of

ambiguity. Notwithstanding the trial court’s post-trial suggestion that the theory

of ambiguity was not timely presented, both sides were permitted to present

testimony of the meaning of the contractual notice requirement. See Appellant’s

App. Vol. IV at 967-70; Vol. V at 1253-56. Furthermore, the court confusingly

referenced the concept of ambiguity in its Instruction No. 13:

             The claim in this case is for damages resulting from a breach
      of contract. A contract is defined as an agreement to do or not to do
      a certain thing or things. In this case, the contract was in writing and
      is in evidence before you, that is, the Physician Services Agreement.

             A contract is breached or broken when a party to the contract
      fails without legal excuse to do what it promised to do in the
      contract. You are advised that a contract that is clear and
      unambiguous in its terms is binding on all parties to the contract.
      Such a contract should be accepted by you as the agreement of the
      parties.

Appellant’s App. Vol. III at 740 (emphasis added). In responding to plaintiff’s

objection to the italicized portion, the court initially denied that the instruction

told the jury the contract was clear and unambiguous. See id. Vol. V at 1455.


                                          -16-
Almost immediately thereafter, however, the court suggested that the contract was

unambiguous. See id. (“The question, in my opinion, is not whether anything in

the contract is ambiguous, it’s which terms applies to which situation . . . .”).

      It is from these confusing origins that the jury instructions came. If not a

direction that the contract in issue was clear and unambiguous, the reference in

Instruction No. 13 to “a contract that is clear and unambiguous” was at least

confusing as the only reference in the instructions to the concept of ambiguity.

Confusion, however, is the least of the maladies. The principal defect in the

instructions was the failure to specify for the jury its obligation to resolve the

ambiguity. Plaintiff’s proposed but rejected Instruction Nos. 2, 3, and 4 not only

properly expressed the jury’s duty to resolve the ambiguity, but they gave the jury

the very tools necessary to resolve the contractual meaning and the parties’

intent. 4 Most importantly, plaintiff’s proposed Instruction No. 4 would have

directed the jury to construe the unclear terms against the drafter, Med-National,

if all other factors failed to resolve the parties’ intent.

      In failing to instruct the jury on its duty to resolve the ambiguity, in failing

to provide the jury with the basic tools of contract interpretation, and in failing to



4
       The trier of fact must resolve contractual ambiguity by determining the
parties’ intent. See Coker, 650 S.W.2d at 394-95. Defendant Med-National does
not challenge the legal principles enunciated in plaintiff’s proposed Instructions
Nos. 2, 3, or 4; it challenges only their applicability.

                                           -17-
direct the jury to construe the contract against Med-National, the court not only

erred but did so to the significant prejudice of the plaintiff. These failings

deprived the plaintiff of the opportunity to fairly present and the jury to consider

a theory of plaintiff’s case, i.e., ambiguity. In this case, such deprivation

constitutes prejudicial error. See Perlmutter v. United States Gypsum, 4 F.3d 864,

872-73 (10th Cir. 1993); Sullivan v. NFL, 34 F.3d 1091, 1107-09 (1st Cir. 1994);

cf. EEOC v. Atlantic Community School Dist., 879 F.2d 434, 437 (8th Cir. 1989).

      We therefore conclude that plaintiff is entitled to a new trial on that portion

of his breach of contract claim relating to failure to provide thirty-days’ notice

prior to termination.

                           D. Oklahoma Wage Law Claim

      Plaintiff’s final issue is that the district court erred in granting summary

judgment on his Oklahoma wage law claim. Oklahoma law requires an employer

to pay an employee’s wages in full at termination, see Okla. Stat. tit. 40,

§ 165.3.A, and defines “wages” to include “salaries, commissions, holiday and

vacation pay, overtime pay, severance or dismissal pay, bonuses and other similar

advantages agreed upon between the employer and the employee . . . or provided

by the employer to his employees in an established policy,” id. § 165.1.4

(emphasis added). In his complaint, plaintiff alleged Med-National violated the

wage statute by failing to pay him for the period from the time his privileges were


                                         -18-
placed in abeyance to the earliest time he could have been terminated under the

contract, which he contends was thirty days after the date he received notice of

termination. 5 Med-National moved for summary judgment solely on the basis that

plaintiff was not an employee but rather was an independent contractor to whom

the statute did not apply. The district court rejected Med-National’s contention

and concluded that plaintiff was an employee for purposes of the statute.

      The court, however, granted summary judgment to Med-National on two

alternative bases that neither party had addressed. First, it concluded that there

was no evidence that plaintiff performed any work after May 26, 1994, and that

“[a]lthough plaintiff may be owed money for breach of contract, his claims do not

involve any money owed for work actually performed.” Appellant’s App. Vol. III

at 659-60. In addition, the court found that there was a “bona fide disagreement”

over the amount of wages owed and that, pursuant to § 165.4, Med-National’s

payment of the amount it conceded was due resolved plaintiff’s claim. 6

5
       Plaintiff’s contract claim regarding the notice period and his Oklahoma
wage law claim generally seek recovery for the same damages--compensation for
the period from May 26 until he was notified of his termination and then for an
additional thirty days. The Oklahoma wage law also allows recovery of liquidated
damages for an employer’s failure to make timely payment of wages due (§
165.3.B) and of attorney fees and costs (§ 165.9).
6
      Because Med-National did not move for summary judgment on either of
these grounds, the district court should have provided notice to plaintiff that it
was considering granting summary judgment on these grounds. See Tavery v.
United States, 32 F.3d 1423, 1427 n.5 (10th Cir. 1994). Though plaintiff notes on
                                                                      (continued...)

                                        -19-
       On appeal, plaintiff contends that the contract requirement of a notice

period and corresponding compensation qualifies as severance or dismissal pay

under § 165.1.4. We agree with plaintiff’s interpretation of the statute.

Oklahoma courts appear to construe this statute liberally in favor of the employee.

Cf. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d 1091, 1099

(Okla. 1996) (holding that employer’s policy of compensating employees for

legitimate business expenses brings payment for expenses within statute). We

disagree with the district court that the statute only covers “work actually

performed.” Severance or dismissal pay ordinarily would not cover work actually

performed. Plaintiff’s claim for payment for the notice period is similar enough

to severance or dismissal pay that we conclude it would be covered under the

statute.

       We also conclude the district court misread § 165.4 regarding bona fide

disagreements. That section specifically provides that an employee’s acceptance

of the employer’s payment of the amount it concedes is due “shall not constitute a

release as to the balance of his claim.” Payment may relieve an employer from

liability for liquidated damages, but it is unclear what the full effect of § 165.4 is.

Moreover, for a payment to qualify under § 165.4, “the employer shall give


6
 (...continued)
appeal that the court granted summary judgment on grounds not raised by
Med-National, he does not contend that this was error.

                                          -20-
written notice to the employee of the amount of wages which he concedes to be

due.” Since neither party raised this issue on summary judgment, there is no

evidence whether Med-National provided proper notice. We therefore reverse the

district court’s grant of summary judgment on this claim.


                                        III

      The judgment of the district court is AFFIRMED in part and REVERSED

in part, and the case is REMANDED for further proceedings consistent with this

order and judgment.



                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




                                       -21-
