## Facts

- Don Budge, a well-known former professional tennis player who had won Wimbledon and the Davis Cup, entered into a written five-year employment contract with Troy Post.
- The contract was part of a partial settlement of earlier federal litigation between the parties.
- Under the agreement, Budge would serve as a tennis professional at Post’s clubs, resorts, and hotels for seven months each year.
- The contract included a Texas choice-of-law clause providing that Texas law would govern and control construction of the agreement.
- Post assigned Budge to the Cambridge Towers Tennis & Racquet Club in Las Vegas, and Budge began work in October 1978.
- A few months later, Post stopped paying Budge and terminated the relationship, asserting Budge had failed to perform his contractual duties.
- Budge filed a diversity action in the U.S. District Court for the Northern District of Texas for breach of contract, alleging Post breached by discontinuing payment and terminating the contract.
- At trial, the judge instructed the jury to measure damages as the present cash value of the contract’s compensation, reduced by amounts Budge earned or could have earned in similar employment through due diligence.
- After a three-day trial, the jury found for Budge and awarded:
  - \$353,800 for compensation over the 58 months remaining on the contract (after reduction for mitigation found by the jury), and
  - \$85,500 for the value of promised living accommodations and meals.

- In a mitigation interrogatory, the jury found Budge had earned, or with due diligence could earn, \$1,500 during the remaining contract period.
- The district court entered judgment totaling \$455,041, calculated as compensation plus living expenses, minus the \$1,500 mitigation amount, plus \$17,241 in attorney’s fees.
- Post appealed, raising multiple claims of error. Post did not move for a directed verdict and did not move for judgment notwithstanding the verdict.

## Issues

1. Whether substantial evidence supported the jury’s findings on breach and damages (including mitigation), given the limited scope of appellate review and Post’s failure to file directed-verdict or JNOV motions.
2. Whether, under the parties’ Texas choice-of-law clause and Texas law, the jury could be instructed to award damages based on the present cash value of the remaining contractual compensation and benefits minus mitigation.
3. Whether alleged trial errors—including challenges to jury instructions, jury selection, and the attorney’s-fee award—required reversal.

## Decision

- The Fifth Circuit (per curiam) affirmed the district court’s judgment in full.
- The court declined to disturb the verdict because there was some competent evidence supporting the jury’s findings, and appellate review does not permit re-trying the case.
- The court upheld the damages approach using present cash value of the contract (including compensation and promised benefits), reduced by mitigation.
- The court rejected Post’s remaining assignments of error, including complaints about jury instructions, jury selection, and the award of attorney’s fees.

## Legal Principles

- When a contract contains an enforceable Texas choice-of-law clause, Texas law governs the contract dispute in federal diversity litigation.
- For wrongful termination of a fixed-term employment contract under Texas law, damages may be measured by the present cash value of the compensation and contractual benefits for the unexpired term, reduced by amounts actually earned or reasonably obtainable through due diligence.
- A party who does not move for a directed verdict or for JNOV severely limits appellate review of evidentiary sufficiency; a jury verdict will be upheld if supported by substantial evidence, even if the supporting proof is slight.
- A low mitigation finding may stand on appeal where the record contains some support (including the employee’s testimony about efforts to obtain other work).
- Attorney’s fees awarded under applicable Texas law in a contract action will be affirmed absent reversible legal error.

## Conclusion

The Fifth Circuit affirmed a jury verdict that Troy Post breached his five-year employment contract with Don Budge and upheld damages calculated as the present cash value of the remaining contract compensation and benefits minus minimal mitigation, along with attorney’s fees, because the verdict had some evidentiary support and Post’s appellate attacks did not show reversible error under the limited standard of review.


Budge v. Post, 643 F.2d 372 (1981)