Continental Eagle Corp. v. Mokrzycki

• Decision Date: 25 November 1992
• Citation: 611 So.2d 313
• Parties: CONTINENTAL EAGLE CORPORATION, et al. v. David MOKRZYCKI. 1910817.
• Court: Alabama Supreme Court

Page 313

611 So.2d 313

CONTINENTAL EAGLE

CORPORATION, et al. v. David MOKRZYCKI.

1910817.

Supreme Court of Alabama.

Nov. 25, 1992.

Terry A. Sides of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellants.

Thomas J. Methvin and J. Stanton Glasscox, Montgomery, for appellee.

HORNSBY, Chief Justice.

The corporate defendant and its personnel director, John L. Fiddler, appeal from a judgment based on a jury verdict on a retaliatory discharge claim. ¹ The jury rendered a verdict in favor of the plaintiff, David Mokrzycki, in the amount of $122,240 compensatory damages and $100,000 punitive damages. We affirm.

Mokrzycki, alleging retaliatory discharge, sued under Ala.Code 1975, § 25-5-11.1. He claimed that Continental Eagle Corporation ("CEC") terminated his employment because he had filed a worker's compensation claim for a back injury he sustained while at work. Mokrzycki saw the company doctor, and he was unable to work for one week. On May 30, 1989, the doctor released Mokrzycki, but restricted him to light labor. Mokrzycki performed light labor at CEC; then on June 6, 1989, he complained to his supervisor that his back was bothering him. The CEC supervisor released Mokrzycki from work to see a doctor. The neurosurgeon Mokrzycki saw recommended surgery to repair a ruptured disc in his back.

Mokrzycki testified that after his visit to the doctor he was unable to get out of bed and could not go to work. Mokrzycki presented evidence that his wife telephoned CEC's personnel office to explain that he was unable to work because of back pain. Mokrzycki's wife testified that she telephoned each day that Mokrzycki did not go to work. CEC, however, claims that it never received calls from her. After Mokrzycki had been absent from work eight days, CEC sent him a letter telling him that it considered him to have "voluntarily terminated" his employment with CEC because it had not heard from him in eight days.

Mokrzycki contends that this termination was wrongfully made in retaliation for his having filed for worker's compensation benefits. CEC contends that it never terminated him, but that he terminated his own job by failing to follow the company's policy on absences, which requires that employees who are absent from work notify CEC of the absence by following specified procedures. Mokrzycki presented evidence that CEC failed to follow its own policy by failing to give Mokrzycki either written or oral notice, before discharging him because of unexcused absences, as required by the policy. Mokrzycki also demonstrated that CEC knew that its actions would harm him. The jury awarded him $122,240 in compensatory damages and $100,000 in punitive damages.

Shortly after the jury returned its verdict, the parties settled Mokrzycki's claim against CEC for worker's compensation benefits. Therefore, the jury was presented no evidence regarding any amounts paid by CEC to Mokrzycki for his worker's compensation claim. ²

CEC appeals, challenging the jury verdict on a number of issues. CEC also appeals the denial of its motion for summary judgment.

I. Summary Judgment

CEC filed a motion for summary judgment, which the trial court denied. CEC contends that the trial court erred in denying that motion. We note that, to prevail on its motion, CEC was required to show, by admissible evidence, that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So.2d 872 (Ala.1979)); Rule 56(c), A.R.Civ.P. On review, this Court must evaluate the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie Inc., 564 So.2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986).

Once CEC made this showing, Mokrzycki then had the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So.2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). The present action was filed after June 11, 1987; therefore, all factual showings must be supported by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). To withstand a motion for summary judgment, a plaintiff claiming retaliatory discharge under § 25-5-11.1 must present substantial evidence that he or she was terminated for seeking worker's compensation benefits, and that the reasons proffered by the employer for the termination are not true, but are a pretext for an otherwise impermissible termination. Twilley v. Daubert Coated Products, Inc., 536 So.2d 1364, 1369 (Ala.1988).

In deposition, Mokrzycki initially testified that he thought CEC terminated him because of a "lack of communication." Later in the same deposition, however, Mokrzycki indicated that CEC had fired him because he filed a worker's compensation claim. CEC contends that the trial court erred in considering Mokrzycki's deposition testimony in support of his claim. CEC argues that Mokrzycki changed his testimony to create an issue of fact in an attempt to avoid a summary judgment. We have held that a party is not allowed to directly contradict prior sworn testimony to avoid the entry of a summary judgment. Doe v. Swift, 570 So.2d 1209, 1214 (Ala.1990). "When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Doe v. Swift, at 1214, quoting Robinson v. Hank Roberts, Inc., 514 So.2d 958, 961 (Ala.1987), quoting in turn Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir.1984).

The record reveals that Mokrzycki's modification of his testimony occurred within the same deposition and occurred because Mokrzycki "didn't understand" the question. Mokrzycki did not directly contradict his testimony "just to create an issue of fact in an attempt to avoid a summary judgment." Doe v. Swift, supra, at 1214. Therefore, the trial court properly considered Mokrzycki's deposition testimony.

After carefully reviewing the record, we conclude that Mokrzycki presented sufficient evidence to establish the existence of genuine issues of material fact regarding CEC's termination of Mokrzycki and the cause of that termination. Therefore, the trial court properly denied CEC's motion for summary judgment.

II. Juror Misconduct

CEC contends that the trial court erred to reversal in failing to grant a new trial on the grounds of juror misconduct. After the trial, CEC discovered something that it claims was a juror's misconduct and that it alleges probably prejudiced CEC's right to peremptorily challenge the juror. CEC then made a motion for a new trial on that basis, which the trial court denied.

The record indicates that a juror, P.C., worked as a legal secretary to an attorney who had represented a plaintiff in a case similar to the one in this case shortly before and during the trial of this case. P.C. typed the necessary pleadings, put together trial exhibits, and relayed telephone messages.

P.C. did not respond affirmatively to the following question asked during voir dire of the jury venire:

"BY THE COURT: Any of you know of or have any reason why you should not be selected to serve on this jury?"

CEC contends that P.C.'s failure to disclose her involvement in a similar case probably prejudiced CEC and requires a new trial. The issue before us is whether the trial court abused its discretion in denying CEC's motion for a new trial based on P.C.'s failure to answer on voir dire that she was a secretary to a lawyer who handled a separate, but similar, lawsuit.

When the trial court is presented with a new trial motion based upon either an improper or a nonexistent response to a voir dire question, "the court must determine whether the response or lack of response has resulted in probable prejudice to the movant." Eaton v. Horton, 565 So.2d 183, 185 (Ala.1990); Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970). The question of prejudice is primarily within the trial court's discretion, and any ruling on the motion for new trial will be reversed only upon a showing of an abuse of the trial court's discretion. Eaton, at 185.

Here, the question posed by the trial court was general. CEC offered no evidence that P.C. intentionally failed to answer or did not answer truthfully. In fact, CEC does not show that the juror was required to reveal her involvement in response to such a general question. The alleged misconduct in this case does not establish a false answer to the voir dire, and it does not establish "probable prejudice." Therefore, the trial court did not abuse its discretion in denying CEC's motion for a new trial.

III. Improperly Obtained Jury Verdict

CEC contends that Mokrzycki gave false or deliberately misleading testimony with respect to his 1990 income tax return. CEC asserts that this alleged misleading testimony amounts to a misrepresentation and is grounds for setting aside the judgment based on the jury verdict, under Rule 60(b)(3), A.R.Civ.P. Under Rule 60(b)(3), a court may relieve a party from a final judgment for fraud, misrepresentation, or other misconduct of an adverse party.

To obtain relief under Rule 60(b)(3), the party asserting that an adverse party improperly obtained a verdict through fraud, misrepresentation, or other misconduct must prove, by clear and...