Cruz v. English Nanny & Governess Sch. Inc., 103714

• Decision Date: 08 June 2017
• Docket Number: No. 103714,103714
• Citation: 2017 Ohio 4176,92 N.E.3d 143
• Parties: Christina CRUZ, et al., Plaintiffs–Appellees Cross–Appellants v. ENGLISH NANNY & GOVERNESS SCHOOL INC., et al., Defendants–Appellants Cross–Appellees
• Court: Ohio Court of Appeals

92 N.E.3d 143

2017 Ohio 4176

Christina CRUZ, et al., Plaintiffs–Appellees Cross–Appellants

v.ENGLISH NANNY & GOVERNESS SCHOOL INC., et al., Defendants–Appellants Cross–Appellees

No. 103714

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

RELEASED AND JOURNALIZED: June 8, 2017

John F. Hill, Melinda Smith Yeargin, Buckingham, Doolittle & Burroughs, 3800 Embassy Parkway, Suite 300, Akron, Ohio 44333, William D. Edwards, Paul R. Harris, Alyson Terrell, Ulmer & Berne, L.L.P., 1660 West 2nd Street, Suite 1100, Cleveland, Ohio 44113, Corey Noel Thrush, 127 Public Square, Suite 4100, Key Tower, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANTS/CROSS–APPELLEES

Peter G. Pattakos, Subodh Chandra, Sandhya Gupta, Patrick Haney, Chandra Law Firm, L.L.C., 1265 West 6th Street, Suite 400, Cleveland, Ohio 44113, ALSO LISTED: AMICI CURIAE, ATTORNEYS FOR APPELLEES/CROSS–APPELLANTS

Raymond Vasvari, K. Ann Zimmerman, 1100 Erieview Tower, 1301 East Ninth Street, Cleveland, Ohio 44114, ATTORNEYS FOR THE OHIO ASSOCIATION OF BROADCASTERS, THE OHIO NEWSPAPERS ASSOCIATION, THE OHIO COALITION FOR OPEN GOVERNMENT, PROGRESS OHIO EDUCATION, INC., THE ASSOCIATION OF ALTERNATIVE NEWS MEDIA, THE OHIO CHAPTER OF THE NATIONAL LAWYERS GUILD, CAIR–OHIO, AND NINE MEMBERS OF THE OHIO BAR

Jonathan Peters, Freda J. Levenson, 4506 Chester Avenue, Cleveland, Ohio 44103–0000, ATTORNEYS FOR AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION

J. Michael Murray, Steven D. Shafron, Bergman, Gordon, Murray & DeVan, 55 Public Square, Suite 2200, Cleveland, Ohio 44113–0000, ATTORNEYS FOR FIRST AMENDMENT LAWYERS ASSOCIATION

BEFORE: Keough, A.J., Blackmon, J., and Laster Mays, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, A.J.:

{¶ 1} Defendants-appellants/cross-appellees, English Nanny & Governess School ("the School"), English Nannies, Inc., d.b.a. English Nannies & Governess, Inc., ("the Placement Agency"), Sheilagh Roth ("Roth"), and Bradford Gaylord ("Gaylord") (collectively "defendants" or "English Nanny"), appeal the trial court's decision denying their motion for directed verdict and judgment notwithstanding the verdict on plaintiff-appellee/cross-appellant, Christina Cruz's ("Cruz"), claim for intentional infliction of emotional distress, and plaintiff-appellee/cross-appellant, Heidi Kaiser's ("Kaiser"), claim for wrongful discharge.

{¶ 2} Cruz appeals the trial court's decision granting defendants' motion for remittitur on her claim for intentional infliction of emotional distress. Cruz and Kaiser collectively appeal the trial court's decision reducing their attorney fee award. Finally, cross-appellant, attorney Peter Pattakos, appeals the trial court's decision imposing sanctions against him.

{¶ 3} For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Procedural History

{¶ 4} The case arises from the relationship between Cruz and the defendants, and the demise of that relationship upon Cruz's decision to report an allegation of child abuse. Cruz believed that the defendants were not supportive of her decision to report the alleged abuse, and the defendants believed that Cruz's allegations were not well-founded. Cruz believed that she was blackballed from being placed as a nanny after she decided to report the abuse, and Kaiser believed she was wrongfully terminated from English Nanny for not participating in the alleged cover-up of the child abuse report and for disclosing information to Cruz regarding the defendants' skepticism about Cruz's allegations.

{¶ 5} In November 2011, Cruz and Kaiser (collectively "the plaintiffs") filed a complaint against the English Nanny defendants, Bradford Holdings, and C.F.H. Ltd. In the complaint, Cruz brought causes of action for wrongful termination against public policy, defamation, negligent and intentional infliction of emotional distress, and breach of contract. Kaiser raised causes of action for wrongful termination against public policy and defamation. Defendants denied these claims and asserted a breach of contract counterclaim against Cruz.

{¶ 6} In March 2012, the trial court granted, in part, English Nanny's motion for partial judgment on the pleadings by dismissing the case against Bradford Holdings and C.F.H. Ltd. The court also dismissed Cruz's claims for wrongful termination in violation of public policy and negligent infliction of emotional distress.

{¶ 7} In October 2013, the trial court granted summary judgment in favor of Gaylord on Cruz's claims for defamation, intentional infliction of emotional distress, and breach of contract, and on Kaiser's claims of wrongful termination in violation of public policy and defamation. The trial court also granted summary judgment in favor of Roth on Cruz's claims for breach of contract, defamation, and intentional infliction of emotional distress, and on Kaiser's claim for wrongful termination. The trial court granted summary judgment in favor of the School and the Placement Agency on Cruz's claims for defamation, breach of contract based on breach of the retail installment contract, and intentional infliction of emotional distress.

{¶ 8} In January 2014, Cruz moved for reconsideration of the trial court's decision granting summary judgment on her claim for intentional infliction of emotional distress. The request for reconsideration was based on the production of placement files that English Nanny produced after the trial court granted Cruz's motion to compel discovery. The trial court found that Cruz's introduction of this newly produced discoverable evidence was sufficient to withstand summary judgment on Cruz's intentional infliction of emotional distress claim.

{¶ 9} Accordingly, the causes of action left for trial were: Cruz's claims against the remaining English Nanny defendants for intentional infliction of emotional distress, and her claim against the School and Placement Agency for breach of contract based on the exclusive placement agreement; and Kaiser's claim for wrongful termination in violation of public policy against the School and the Placement Agency, and her claims for defamation against the School, the Placement Agency, and Roth.¹ Additionally, English Nanny's counterclaim against Cruz for breach of contract remained.

{¶ 10} On March 31, 2015, jury selection began for trial. At the end of voir dire, counsel for English Nanny commented that an article about the case had been published by Scene Magazine and was accessible on the internet. Before opening statements on April 2, 2015, discussion occurred about the article in Scene Magazine. The periodical containing the article was available on the internet and print copies were available free of charge in the courthouse and in a location where potential jurors could obtain a copy and view the article. The trial court questioned the parties about the source of the article, and attorney Pattakos explained that he had provided Scene Magazine with publicly available information about the case. The article contained only the plaintiffs' perspective about the matter and revealed unfavorable information about the defendants' case. Additionally, the online article had generated comments from the public that were unfavorable to the defendants.

{¶ 11} The trial court conducted an oral hearing on whether the availability of the article in the periodical had tainted the jurors in the case. The court concluded that attorney Pattakos's conduct was problematic, but found after questioning the jury, that the jury was not tainted so as to warrant a mistrial. However, the judge declared a mistrial days later for reasons unrelated to the Scene Magazine article, and the jurors were excused.

II. Jury Trial

{¶ 12} On May 19, 2015, a second jury was impaneled and the following relevant facts were presented; additional facts will be discussed as they pertain to each assignment of error.

{¶ 13} English Nanny & Governess School, Inc. is a prestigious trade school that has been training professional nannies and governesses since 1985. Roth is the executive director of the school, and Gaylord is the director of operations of the Placement Agency that works to help match families with nannies from among the School's qualified graduates. Kaiser worked briefly as a placement director at the Placement Agency in early 2011, while Cruz was a student at the School.

{¶ 14} In the spring of 2011, Cruz enrolled as a student at the School. When she enrolled, she paid $2,000 and signed a Retail Installment Contract with the School to borrow $7,100, the balance of the original $9,100 cost of tuition and fees. Pursuant to the contract, Cruz agreed to repay the loan beginning in August 2011.

A. Cruz's Claim

{¶ 15} After Cruz's graduation in June 2011, Kaiser, as the placement director, arranged for Cruz to spend a weekend with a single father and his two daughters in Pennsylvania interviewing for a nanny position. Cruz testified that during this trip, she felt uncomfortable and certain events, actions, and interactions caused her alarm. Specifically, she stated that during the final evening she was with the family, she witnessed an inappropriate sexual act between the father and the oldest daughter. Cruz testified that she was shocked and nervous and did not know what she should do considering she was alone in the house with the family. She decided she would seek guidance from English Nanny on how to proceed with reporting the abuse.

{¶ 16} On July 9, 2011, after returning to Ohio, she told Kaiser what she had seen between the father and his daughter. On July 14, Cruz told Barbara Francis, director of operations for the Placement Agency, about the incident and that she was "getting the feeling that [Gaylord was] not happy about [what happened], that it's going to affect [her] placement." (Tr. 793.) Cruz disclosed to Francis that Kaiser told her that Gaylord was "annoyed" and that if she reported, it would "cause a big mess." (Tr. 794.)

{¶ 17} According to Cruz, Francis told...