Meyers v. Hot Bagels Factory, Inc., 131 Ohio App. 3d 82 (Ohio App. 1/22/1999)
| Decision Date | 22 January 1999 |
| Docket Number | Appeal No. C-980241.,Appeal No. C-980199. |
| Citation | 721 N.E.2d 1068,131 Ohio App. 3d 82 |
| Parties | Kathleen Meyers, Plaintiff-Appellee/Cross-Appellant, v. Hot Bagels Factory, Inc., and John Marx, Defendants-Appellants/Cross-Appellees. |
| Court | Ohio Court of Appeals |
Sirkin, Pinales, Mezibov, Schwartz, Marc D. Mezibov, John P. Feldmeier, For Plaintiff-appellee/cross-appellant.
Bruce B. McIntosh, for Defendants-Appellants/Cross-Appellees.
Appellee/cross-appellant Kathleen A. Meyers met Steven Clark and Pat Shea for a sandwich at a local restaurant/bagel store known as Marx Hot Bagels. Appellant/cross-appellee John Marx is the president of appellant/cross-appellee Hot Bagels Factory, Inc., a company comprised of four bagel stores, including Marx Hot Bagels. Meyers and her companions entered the bagel store, sat at the counter, and ordered their food. At some time Meyers placed a "to-go" order. At the end of the meal, Clark and Marx engaged in a conversation in which Clark informed Marx that Meyers preferred a competitor's menu. After that conversation, Marx, in the presence of everyone in the store, walked up to Meyers and said, He then proceeded to tell her a sexual anecdote about two customers. At the conclusion, he asked Meyers, Marx asked Meyers if she were embarrassed. She told him that he was disgusting, that he was humiliating her and that he owed her an apology. As she then turned to get her "to-go" order, Marx stated,
Meyers's testimony was substantially corroborated by Clark and Shea. Clark also testified that Marx said, "Women are only good for fucking." Shea testified that he heard Clark and Marx engage in banter and that he heard Marx make a comment about Clark being with a younger woman. He said Marx commented that Meyers had "a nice ass" and "something like she's got a nice ass or are you fucking her, too."
Marx testified he had no memory of the incident and that he felt victimized by the lawsuit. A salesman and an employee in the store on the day of the incident testified they did not hear Marx say "fuck" or "ass." The employee testified Marx was aggressive and that a lot of what he did in the restaurant could be misconstrued. He described the atmosphere of the restaurant as "wild and wacky."
Subsequently, Meyers described the incident as a "brutal attack" and a "verbal rape." She was upset. Soon after the incident and the filing of this lawsuit, Meyers saw Marx walking in front of her house and became very frightened. Her sister, who also saw Marx that day, described him as stomping past Meyers's house in his uniform, clutching his hat. She testified he "appeared to have a temper as he was walking past." After seeing Marx in her neighborhood, Meyers put steel bars on all the windows of her house and began to sleep with a baseball bat next to her bed and a golf club next to her son's bed.
After the incident, Meyers was unable to sleep, eat, concentrate, or work, and became less socially active. Her friends and family noticed the difference in her personality and told her she needed to seek professional help. She contacted Dr. Myszak, a psychologist, and had five sessions with her. Dr. Myszak diagnosed Meyers as experiencing post-traumatic stress syndrome.
Dr. Myszak testified that the incident at Marx Bagels was the cause of Meyers's post-traumatic stress syndrome, that Meyers's reaction was not an overreaction and that any woman would have reacted strongly. She stated that Meyers's involvement in a prior abusive relationship was relevant in terms of Meyers's reaction to Marx's conduct, but that even had Meyers not had that history, she would have sought help following the incident with Marx. She also testified that she believed Meyers would experience future emotional difficulties as a result of the incident and would require further treatment.
Meyers's complaint asserted three claims: (1) that Marx violated her right to be free of gender discrimination with respect to public accommodations under R.C. 4112.02(G); (2) that his conduct constituted intentional infliction of emotional distress; and (3) that his actions constituted sexual harassment. The trial court granted summary judgment to Marx on the claims of gender discrimination and sexual harassment.
Meyers tried her claim of intentional infliction of emotional distress to a jury. The jury found in her favor and awarded her $ 15,000 in compensatory damages and $ 50,000 in punitive damages. It also determined she was entitled to attorney fees. The trial court awarded her $ 22,171.25 in attorney fees and $ 1,345.10 in costs. Marx filed a motion for judgment notwithstanding the verdict or, alternatively, a motion for a new trial, which the trial court denied. Marx filed an appeal and Meyers filed a cross-appeal. We first address Marx's appeal.1
Marx raises five assignments of error. In his first assignment, he challenges the trial court's denial of his motions for summary judgment, directed verdict, and judgment notwithstanding the verdict (jnov). In his second assignment, Marx claims the trial court erred in denying his motions on the issues of attorney fees and punitive damages. Marx contends in his third assignment that the trial court erred in failing to grant him either a mistrial or a new trial. Marx argues in his fourth assignment that the trial court erred in failing to hold that the punitive-damage award was excessive. In his last assignment, Marx claims the trial court erred by denying his request for an oral hearing on the issue of attorney fees.
Marx argues in his first assignment that the trial court erred in denying his motions for summary judgment, directed verdict, and judgment notwithstanding the verdict. He claims that Meyers failed to prove negligent infliction of emotional distress, because the record is devoid of evidence demonstrating (1) that he knew or should have known his comments would result in serious emotional distress, or (2) that there was a specific threat of physical harm. We need not concern ourselves with Marx's argument regarding negligent infliction of emotional distress. The only claim on which Marx was denied summary judgment and that went to trial was Meyers's claim for intentional infliction of emotional distress.
We first address that portion of Marx's assignment concerning his motion for directed verdict. Our review of the record shows that Marx moved for a directed verdict at the end of Meyers's case-in-chief. He failed to renew the motion at the close of all the evidence. A directed-verdict motion raised after the presentation of the plaintiff's case must be renewed at the conclusion of all the evidence to preserve the error for appeal.2 Marx's failure to renew his motion constitutes a waiver of any error in the trial court's refusal to grant a directed verdict.
We next address Marx's assignment of error as it relates to the denial of his motion for summary judgment. When determining whether to grant summary judgment, a trial court must, upon viewing the evidence most favorable to the nonmoving party, determine whether there is no genuine issue of material fact, whether the moving party is entitled to judgment as a matter of law, and whether reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party.3
Marx argued in his summary-judgment motion that he was entitled to judgment as a matter of law because Meyers could not prove defamation. This argument fails. Meyers did not have to prove an underlying cause of action. A claim for intentional infliction of emotional distress is an independent action.4 The trial court did not err in concluding that Marx was not entitled to summary judgment on this basis.
As to Marx's assignment concerning the denial of his jnov motion, the issue is whether, with the evidence and admissions construed most strongly in favor of Meyers, there was substantial evidence to support her side of the case upon which reasonable minds could have reached different conclusions. If such evidence was presented at trial, the trial court correctly denied Marx's motion.5 A jnov motion presents questions of law, not questions of fact, although evidence must be reviewed and considered.6 Marx argues that his motion should have been granted because Meyers failed to demonstrate that he was aware of her vulnerable position.
Ohio recognizes two types of actions for intentional or willful misconduct resulting in emotional distress. The first type of case is one in which the relationship between the plaintiff and the defendant is not necessarily of primary importance. In that situation, "one who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another is subject to liability for such emotional distress * * * ."7 We have further explained these elements in Ekunsumi v. Cincinnati Restoration, Inc.,8 where we held that in order to recover on a claim for intentional infliction of emotional distress, a plaintiff must prove that "(1) the defendant either intended to cause emotional distress or knew or should have known that its conduct would result in serious emotional distress to the plaintiff; (2) defendant's conduct was outrageous and...
To continue reading
Request your trial
-
Wright v. Suzuki Motor Corp., 2005 Ohio 3494 (OH 6/27/2005), 03CA2.
...upon which reasonable minds could reach different conclusions, the court must deny the motion. See Meyers v. Hot Bagels Factory, Inc. (1999), 131 Ohio App.3d 82, 92, 721 N.E.2d 1068. Like the directed verdict motion, a JNOV motion also presents a question of law, which we review de novo. Id......
-
Greenwood v. Delphi Automotive Systems, Inc.
...be regarded as atrocious, and utterly intolerable in a civilized community." Yeager, 453 N.E.2d at 671; Meyers v. Hot Bagels Factory, Inc., 131 Ohio App.3d 82, 721 N.E.2d 1068 (1999). The Ohio Supreme Court has adopted Section 46(1) of the Restatement of Law 2d, Torts (1965) and the accompa......
-
Kassay v. Niederst Mgmt., Ltd.
...2013 WL 6858576 ; Zangrando v. Kuder , 9th Dist. Summit No. 22448, 2006-Ohio-1549, 2006 WL 826081 ; Meyers v. Hot Bagels Factory, Inc. , 131 Ohio App.3d 82, 721 N.E.2d 1068 (1st Dist.1999) ; Motley v. Flowers & Versagi Court Reporters, Inc. , 8th Dist. Cuyahoga No. 72069, 1997 WL 767466 (De......
-
Dodge v. U.S., No. C-3-96-110.
...be regarded as atrocious, and utterly intolerable in a civilized community." Yeager, 453 N.E.2d at 671; Meyers v. Hot Bagels Factory, Inc., 131 Ohio App.3d 82, 721 N.E.2d 1068 (1999). The Ohio Supreme Court has adopted Section 46(1) of the Restatement of Law 2d, Torts (1965) and the accompa......