Luri v. Republic Serv. Inc.

• Decision Date: 19 May 2011
• Docket Number: No. 94908.,94908.
• Citation: 2011 -Ohio- 2389,112 Fair Empl.Prac.Cas. (BNA) 547,193 Ohio App.3d 682,24 A.D. Cases 1269,953 N.E.2d 859,161 Lab.Cas. P 61145
• Parties: LURI, Appellee,v.REPUBLIC SERVICES, INC. et al., Appellants.
• Court: Ohio Court of Appeals

193 Ohio App.3d 682

953 N.E.2d 859

112 Fair Empl.Prac.Cas. (BNA) 547

161 Lab.Cas. P 61,145

24 A.D. Cases 1269

2011 -Ohio- 2389

LURI, Appellee,

v.REPUBLIC SERVICES, INC. et al., Appellants.

No. 94908.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided May 19, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalR.C. § 2315.21(B) Haber Polk Kabat, L.L.P., Shannon J. Polk, and Richard C. Haber; Tucker Ellis & West, L.L.P., Irene C. Keyse–Walker, and Benjamin C. Sasse; and Pierce Stronczer Law, L.L.C., and Michelle Pierce Stronczer, Cleveland, for appellee.Squire, Sanders & Dempsey, L.L.P., Stephen P. Anway, and Robin G. Weaver, Cleveland, for appellants.FRANK D. CELEBREZZE JR., Judge.

[Ohio App.3d 685] {¶ 1} Appellants, Republic Services, Inc. (“Republic”), Republic Services of Ohio I, L.L.C. (“Republic Ohio”), Republic Services of Ohio Hauling, L.L.C. (“Ohio Hauling”), James Bowen, and Ronald Krall, appeal from an adverse judgment and the largest retaliatory discharge jury award in Ohio history—over $46 million. We affirm the jury's verdict, but remand for imposition of statutory punitive-damage limits.

{¶ 2} Appellee Ronald Luri was employed as the general manager in charge of the Cleveland division of Ohio Hauling. His direct supervisor, Bowen, was employed by Republic Ohio. Luri also reported to Bowen's supervisor, Krall, who was employed by Republic.

{¶ 3} According to Luri, sometime in November 2006, Bowen approached him with an action plan that called for, among other things, the termination of three employees. Luri testified that Bowen instructed him to fire Frank Pascuzzi, George Fiser, and Louis Darienzo, Luri's three oldest employees. Luri testified that he informed Bowen that Pascuzzi had strong performance evaluations, and terminating him without reason could result in a discrimination lawsuit. He also informed Bowen that Pascuzzi had a medical condition that could result in a [Ohio App.3d 686] disability-discrimination suit. Luri testified that he refused to fire the three individuals.

{¶ 4} Thereafter, Luri's performance evaluations were worse than in previous years, and Bowen instituted “improvements directives” for Luri to complete, including conducting weekly meetings and providing more information to Bowen. Appellants claim that these directives were not accomplished, and as a result, Luri was terminated on April 27, 2007.

{¶ 5} Luri then filed suit on August 17, 2007, alleging claims of retaliatory discharge under R.C. 4112.02(I). After receiving notice of the litigation as a named party, it appears from the evidence presented at trial that Bowen had altered at least one piece of evidence to justify Luri's termination. Luri claims that as many as three pieces of evidence were altered or fabricated and submitted to him during discovery.

{¶ 6} Appellants twice moved to bifurcate the trial pursuant to the Ohio Tort Reform Statutory provisions in R.C. 2315 et seq., as well as Civ.R. 42(B). The court denied these motions, and trial commenced on June 24, 2008. This lengthy trial concluded with a jury verdict finding against all defendants and awarding Luri $3.5 million in compensatory damages, jointly and severally against all defendants, and $43,108,599 in punitive damages.¹ Appellants moved for remittitur, a new trial, and for judgment notwithstanding the verdict. These motions were all denied. Luri sought an award for attorney fees and for prejudgment interest on the compensatory damages from the date of his termination. The trial court awarded Luri over $1 million in attorney fees and prejudgment interest on the entire compensatory-damages award.

Law and Analysis

Bifurcation

{¶ 7} Appellants first argue that the trial court “erred by failing to apply R.C. 2315.21(B)(1), which requires mandatory bifurcation.” Appellants assert that bifurcation is mandatory upon motion.² This court disagrees.

{¶ 8} In

Barnes v. Univ. Hosps. of Cleveland, Cuyahoga App. Nos. 87247, 87285, 87710, 87903, and 87946, 2006-Ohio-6266, 2006 WL 3446244, ¶ 34, [Ohio App.3d 687] affirmed in part and reversed in part on other grounds 119 Ohio St.3d 173, 2008-Ohio-3344, 893 N.E.2d 142, we held that a court retains discretion to determine whether bifurcation is appropriate even in the face of R.C. 2315.21(B) and its mandatory language. Generally, a court's jurisdiction is set by the legislature, but as the Ohio Supreme Court noted, “the Modern Courts Amendment of 1968, Section 5(B), Article IV, Ohio Constitution, empowers this court to create rules of practice and procedure for the courts of this state. As we explained in Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, Section 5(B), Article IV ‘expressly states that rules created in this manner “shall not abridge, enlarge, or modify any substantive right.” ’ Id. at ¶ 17. ‘Thus, if a rule created pursuant to Section 5(B), Article IV conflicts with a statute, the rule will control for procedural matters, and the statute will control for matters of substantive law.’ Id.” Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 28. Since bifurcation is a procedural matter, the trial court retains discretion in determining whether such an action is warranted.

{¶ 9} This determination is further buttressed by this court's decision in Havel v. Villa St. Joseph, Cuyahoga App. No. 94677, 2010-Ohio-5251, 2010 WL 4308208,³ in which we held that R.C. 2315.21(B)(1) is an unconstitutional usurpation of the judiciary's ability to control procedural matters because it conflicts with Civ.R. 42(B).⁴ Id. at ¶ 9. The Fifth District Court of Appeals has agreed with this determination. Myers v. Brown, 192 Ohio App.3d 670, 2011-Ohio-892, 950 N.E.2d 213; Plaugher v. Oniala, Stark App. No. 2010 CA 00204, 2011-Ohio-1207, 2011 WL 883984, ¶ 19–20. However, the Tenth District, in Hanners v. Ho Wah Genting Wire & Cable SDN BHD, Franklin App. No. 09AP–361, 2009-Ohio-6481, 2009 WL 4698618, ¶ 30, held that R.C. 2315.21 is substantive law in a procedural package. This interpretation deprives courts of the power granted under the constitution of this state. “If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60.

{¶ 10} Appellants also argue that their motion was unopposed and therefore should have been granted whether based on R.C. 2315.21 or Civ.R. 42(B). However, under the above cases, the trial court retains discretion to decide the issue. To constitute an abuse of discretion, the ruling must be unreasonable, [Ohio App.3d 688] arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140.

{¶ 11} Barnes found that “[t]he issues surrounding compensatory damages and punitive damages in this case were closely intertwined. [Appellant's] request to bifurcate would have resulted in two lengthy proceedings where essentially the same testimony given by the same witnesses would be presented. Knowing that bifurcation would require a tremendous amount of duplicate testimony, the presiding judge determined it was unwarranted.” Id., 2006-Ohio-6266, 2006 WL 3446244, at ¶ 35.

{¶ 12} Here, the malice evidence required for punitive damages was also the evidence used to rebut appellants' arguments that Luri was terminated for cause. The manufacture of evidence was intertwined in arguments relating to both compensatory and punitive damages. Appellants also argue that the trial court should not have allowed testimony about the financial position of appellants, but it was Krall, while on cross-examination, who introduced this line of questioning without prompting from Luri. Therefore, the trial court did not abuse its discretion in denying appellants' bifurcation motion.

Application of Other Ohio Tort Reform Provisions

{¶ 13} In their second and third assignments of error, appellants argue that the trial court committed plain error when it failed to apply various provisions of R.C. Chapter 2315. First, appellants claim that the trial court failed to instruct the jury pursuant to R.C. 2315.18(C).⁵ However, appellants never requested such an instruction and specifically agreed to their propriety before submission to the jury.⁶

{¶ 14} We must first determine whether these provisions apply to an action based on R.C. 4112. In analyzing whether the punitive-damages caps within R.C. 2315.21 applied to a claim of a breach of fiduciary duty under R.C. 1701.59, Ohio's Southern District Court determined that they do not apply based on the language in R.C. 1701.59 and the intent of the legislature. Kramer Consulting, Inc. v. McCarthy (Mar. 8, 2006), S.D.Ohio No. C2–02–116, 2006 WL 581244. While the same reasoning would appear to apply to claims under R.C. 4112, the same court later held that “an action brought under Ohio Rev.Code 4112 is a ‘tort action’ as it is ‘a civil action for damages for injury or loss to person or property.’ ” [Ohio App.3d 689] Geiger v. Pfizer, Inc. (Apr. 15, 2009), S.D.Ohio No. 2:06–CV–636, 2009 WL 1026479, quoting Ridley v. Fed. Express, Cuyahoga App. No. 82904, 2004-Ohio-2543, 2004 WL 1119591, ¶ 89, citing former R.C. 2315.21(A)(1). This finding would include such actions within the umbra of Ohio's tort-reform provisions.

{¶ 15} The Ohio Supreme Court has also noted the types of actions to which R.C. 2315.18 does not apply and held them to include “tort actions in the Court of Claims or against political subdivisions under R.C. Chapter 2744, * * * actions for wrongful death, medical or dental malpractice, or breach of contract. R.C. 2315.18(A)(7) and (H)(1) through (3).” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 27, fn. 3. Absent from this list are actions based on statutory remedies, including, among others, discrimination suits....