Becker v. Direct Energy, LP

• Decision Date: 12 October 2018
• Docket Number: No. 27957,27957
• Parties: Stephen B. BECKER, Plaintiff-Appellee v. DIRECT ENERGY, LP, Defendant-Appellant
• Court: Ohio Court of Appeals

112 N.E.3d 978

2018 Ohio 4134

Stephen B. BECKER, Plaintiff-Appellee

v.DIRECT ENERGY, LP, Defendant-Appellant

No. 27957

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered October 12, 2018

JEFFREY M. SILVERSTEIN, Atty. Reg. No. 0016948 and RANDOLPH H. FREKING, Atty. Reg. No. 0009158, 600 Vine Street, 9th Floor, Cincinnati, Ohio 45202, Attorneys for Plaintiff-Appellee.

ANGELIQUE PAUL NEWCOMB, Atty. Reg. No. 0068094 and CHAD J. KALDOR, Atty. Reg. No. 0079957, 21 East State Street, 16th Floor, Columbus, Ohio 43215, Attorneys for Defendant-Appellant.

OPINION

WELBAUM, P.J.

{¶ 1} In this case, Defendant-Appellant Direct Energy, L.P. ("DE") appeals from a judgment in favor of Plaintiff-Appellee, Stephen Becker, on claims for breach of an employment agreement and breach of the duty of good faith and fair dealing. After a jury trial, the jury awarded Becker $655,733.44 in damages and rejected Becker's claim for defamation.

{¶ 2} In support of its appeal, DE contends that the trial court erred in overruling its motion for summary judgment and in denying its motion for directed verdict on Becker's claims for breach of contract and breach of the duty of good faith and fair dealing. According to DE, the trial court also erred in instructing the jury on the breach of contract claim. Finally, DE contends that the trial court abused its discretion in finding that DE acted in bad faith and awarding attorney fees to Becker.

{¶ 3} We conclude that the alleged error in denial of DE's motion for summary judgment was moot or harmless, due to the judgment in Becker's favor, and the fact that the issues involved were not pure questions of law. Furthermore, the trial court did not err in denying DE's motion for directed verdict, as substantial competent evidence existed to support Becker's claims, and reasonable minds might reach different conclusions based on the evidence presented.

{¶ 4} The trial court also did not err in instructing the jury on Becker's claim for breach of contract. DE waived most of the alleged errors by failing to object, and there was no error, let alone plain error, in the instructions that were given. Finally, the trial court did not abuse its discretion by awarding attorney fees to Becker, given the jury's finding that DE acted in bad faith. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 5} Construing the facts in favor of Becker,¹ the evidence was as follows. In 1972, Stephen Becker began his career as an installer for a heating and air conditioning company. Becker then went to work for Airtron as a sales engineer in 1982. He was later promoted to vice president of Airtron's Indianapolis division, and eventually, with a group of about 26 managers, purchased stock and formed an employee stock ownership plan.

{¶ 6} In May 1997, Becker and the other five remaining owners sold Airtron to GroupMAC. Becker then had a one-year employment agreement, but ended up staying until November 1998, at which time he retired. From 1998 to 2004, Becker and others ran a nonprofit organization called Character Council of Indiana, which did character training and consulting work for businesses. Becker worked at Character Council as a volunteer.

{¶ 7} In 2004, Eric Salzer recruited Becker to work as a senior vice president of consumer/services operations for Residential Services Group ("RSG"). Salzer had worked with Becker at Airtron and was the president and CEO of RSG at the time.² Salzer recruited Becker because Becker had a track record of outstanding performance when he worked at Airtron. Becker was placed in charge of a number of divisions, including the Airtron Indianapolis division.

{¶ 8} Becker was classified as an L-4, and such employees sign employment agreements. On September 24, 2004, Becker signed an employment agreement prepared by DE's legal department. Various provisions in the agreement covered matters like non-competition, intellectual property, bonuses, salary, benefits, and so on. Pertinent to the litigation was Article IX, which addressed termination.

{¶ 9} This article provided in Section 9.2, that if the company terminated Becker without cause, he would be entitled to 24 month's salary, plus any pro-rata accrued bonus and vacation pay to the date of termination. In addition, Becker was entitled to reimbursement for up to 18 months of COBRA premiums, and for additional premiums beyond that, if COBRA coverage ceased before the end of the 24-month salary continuation period. Under Section 9.1, Becker was allowed to terminate his employment and the agreement by providing three months' notice; in this situation, the company could choose to specify an earlier termination date, but would be liable for the outstanding portion of three months' salary, benefits, vacation, and perquisites.

{¶ 10} Section 9.4 involved termination by the company with cause and provided, in relevant part, as follows:

Notwithstanding anything contained in this Agreement, this Agreement and the employment of the Executive may be terminated by the Company for "Cause" by giving notice to the Executive. In such case, the Company shall have no further obligation to the Executive except for payment of his annual base salary and unused vacation due and owing up to the date of termination. For purposes of this agreement, "Cause" shall mean that the Company, acting in good faith based upon the information then known to the Company, determines that the Executive:

* * *

(b) has engaged in acts of fraud, material dishonesty, or other acts of willful misconduct in the course of his duties hereunder * * *.

Plaintiff's Ex. 1, pp. 8-9.

{¶ 11} During the entire time that Becker worked for Airtron, both between 1982 and 1998, and between 2004 and May 3, 2016, Becker was never disciplined in any way. His annual reviews were never anything less than excellent, and he had more outstanding reviews than excellent reviews. Becker's division was also one of the most profitable, and Becker was highly thought of within the Airtron business. From 2004 to 2016, safety consciousness went up tremendously at Airtron and the company environment became a "safety culture."

{¶ 12} As a division manager, Becker was required to do a minimum number of random stop inspections, which were safety inspections. There was no written policy regarding the inspections, and Becker was the one who decided which job sites and employees would be inspected. The inspections were a surprise, because employees were not informed beforehand and were not supposed to know that Becker was coming. These inspections were intended to be positive learning experiences rather than an attempt to catch employees doing something wrong.

{¶ 13} On March 17, 2016, Becker happened to be in a particular subdivision, spotted an Airtron truck, and decided to do a stop inspection. The employees he inspected that day were Brad Eads and Max Manifold. Before Becker got to the house where the truck was parked, he saw Eads "setting" an air conditioner, and noticed it was not level. When he pointed this out, Eads was resistant, but eventually acknowledged that it was not level. As Eads was finishing up the high voltage wiring, Becker also asked if Eads had done a lockout/tagout, and Eads said he had not.

{¶ 14} A lockout/tagout was a required procedure in all instances to prevent employees from receiving electric shocks that can be fatal. Failing to do a lockout/tagout was a serious safety violation. Eads was not receptive to Becker's comments and did not feel the lockout/tagout was needed because he was close to the electrical panel. Becker considered the lockout situation dangerous.

{¶ 15} While at the site, Becker also noticed that the Airtron truck was parked the wrong way on the street, that cones had not been set out, and that Eads was not wearing a hard hat. All these items were safety issues. Finally, there was a serious quality issue with Eads's refrigerant gauges. After the inspection, Becker noted what he found on the company's online system, but he did not discipline Eads. Protocol dictated that Eads's supervisor, Matt Eskew, would take care of discipline, and Becker spoke to Eskew about what he had found. Eskew indicated he would talk to Eads.

{¶ 16} Previously, Eads had been suspended for three days in 2015 for a safety violation involving pit-boards, which are placed in attics to ensure that individuals do not fall through ceilings into a home. DE had a progressive discipline system, as follows: verbal warning; written warning, second written warning, suspension, and then termination.

{¶ 17} Eskew did not administer any discipline to Eads. On March 31, 2016, Becker had an impromptu discussion with Eskew about whether Eads was teachable. He was concerned that Eskew had not handled the situation properly. Becker decided to do another stop inspection and headed to a worksite in Atlanta, Indiana, where Eads was supposed to be working. Becker was tight on time because he did not realize how far north the jobsite was. Becker had a 3:00 p.m. meeting in Indianapolis with some senior leaders and a builder, and being on time was important because Becker had called the meeting.

{¶ 18} When Becker arrived at the jobsite, the truck was again parked in the wrong direction, and no cones were out. Eads was inside a house, and Manifold was standing by a temporary electric pole. Neither employee wore a hard hat. Becker was disappointed and exasperated to see the same safety violations. He was also bothered that he was going to be late for his meeting.

{¶ 19} Manifold told Becker that they had just arrived and were not sure they had power at the site. Manifold then told Eads that Becker was there. When Eads came out of the house, Becker told Eads that he was "going to have your ass right here, right now." Trial Transcript ("Tr."), p. 677. Becker told Manifold to go inside the house. After going in, Manifold heard Becker yelling. He saw Becker poke Eads in the chest, and Eads...