Patricia J. Toole v. C. Thomas Cook, 99-LW-2510
| Decision Date | 06 May 1999 |
| Docket Number | 98AP-486,99-LW-2510 |
| Parties | Patricia J. Toole, Plaintiff-Appellee, (Cross-Appellant) v. C. Thomas Cook et al., Defendants-Appellants, (Cross-Appellees) CASE |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Russell E. Kelm, for appellee (cross-appellant).
Schottenstein Zox & Dunn, and James E. Davidson, for appellants (cross-appellees).
Defendants-appellants, C. Thomas Cook ("Cook"), J. Robert Mack ("Mack"), and Banc One Services Corp. ("Banc One") (collectively "defendants" or "appellants"), appeal from a jury verdict in favor of plaintiff-appellee, Patricia J. Toole ("plaintiff" or "appellee") on her claims of promissory estoppel and unlawful retaliation. In particular, the appellants contend that the evidence adduced below was insufficient to support either her claims or the jury's award of punitive damages. Plaintiff has cross appealed the trial courts refusal to award attorney fees. We affirm in all respects.
In early May 1995, after nineteen years with her employer in Cleveland, Ohio, plaintiff accepted the position of Vice-President of Telecommunications with defendant Banc One in Columbus, Ohio. Plaintiff claims that she took the position with Banc One only after Cook, one of her superiors-to-be at Banc One, made oral statements to plaintiff that she believed were specific promises of long-term job security. Plaintiff began work with Banc One on July 5, 1995.
Approximately seven months later, on February 14, 1996, Cook informed plaintiff that her position at Banc One was being eliminated due to budget reductions. At the same time, plaintiff was given a written "Notification of Downsizing" stating: (1) that her position was being eliminated "effective 5/14/96"; (2) that until May 14, 1996, she would "remain an active employee" of Banc One with full pay and benefits; (3) that it was not necessary for her to return to the workplace; (4) that she was to immediately "take an active role" in searching for a new position either internal or external to Banc One; (5) that she would receive preferential treatment on available Banc One jobs including the internal assistance of Banc One human resources personnel; (6) that she would be provided executive outplacement services; and (7) that if she failed to find a comparable job by May 14, 1996, and provided she signed a "Separation Agreement and General Release," plaintiff would receive a severance payment of four additional months of pay. If plaintiff chose to leave Banc One or accepted a transfer of employment before May 14, 1996, she would not be eligible for the severance pay.
One week later, on February 21, 1996, plaintiff sued Banc One and Cook alleging a promissory estoppel claim, as well as claims of age and sex discrimination under Ohio law. At least four times in her complaint, plaintiff alleged that she had been "terminated" by Banc One on February 14, 1996.
Upon receipt of the complaint, Mack, the Corporate Compliance Manager in the Human Resources Department for Bank One Corporation (Banc One's parent corporation), sent a letter dated February 27, 1996, to plaintiff acknowledging the filing of the lawsuit and withdrawing the above-described "benefits package." In particular, the letter stated as follows:
Dear Ms. Toole:
J. Robert Mack
In response to the February 27, 1996 letter, plaintiff amended her complaint by adding an unlawful retaliation claim against Banc One and Mack personally.
After summary judgment was granted for defendants on plaintiff's age and sex discrimination claims, a jury trial on plaintiff's promissory estoppel and retaliation claims was commenced on September 22, 1997. At the close of plaintiff s case and at the conclusion of all the evidence, the defendants moved for a directed verdict on plaintiff's claims and request for punitive damages. Both motions were denied. On October 2, 1997, the jury returned a verdict for plaintiff on both of her claims. The jury awarded plaintiff $115,316 in compensatory damages, $105,000 in emotional damages, $250,000 in punitive damages, and found that she was entitled to her attorney fees. On April 22, 1998, the trial court overruled plaintiff's request for attorney fees holding that the punitive damages otherwise awarded by the jury were sufficient to both compensate the plaintiff for her attorney fees and still have the appropriate deterrent effect on the defendants. On May 1, 1998, after a series of post-trial motions by the parties, the trial court entered judgment in favor of plaintiff for a total of $489,205.81--equaling the $470,316 awarded by the jury plus prejudgment interest of $18,889.81. It is from this judgment entry that the parties timely appealed.
Defendants raise the following three assignments of error:
Plaintiff raises the following single assignment of error:
The trial court erred in refusing to award any attorney's fees as a part of punitive damages when the jury mandates such an award.
Applicable to all three of their assignments of error, appellants first argue that plaintiff's claims are preempted by the National Bank Act. In particular, appellants argue that Section 24, Title 12, U.S.Code preempts state laws governing the employment relationship between a national bank and its officers, which appellants contend would include plaintiffs promissory estoppel and state law retaliation claim at issue here. Appellants, however, failed to raise this preemption defense in their answer or argue it at any stage of the litigation below. As such, appellants have waived this argument and are precluded from raising it here on appeal. See Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427 (); Cooper v. Grace Baptist Church of Columbus, Ohio, Inc. (1992), 81 Ohio App.3d 728, 735 ().
In their third assignment of error, appellants contend that the trial court erred in failing to grant them a directed verdict or judgment notwithstanding the verdict ("JNOV") pursuant to Civ.R. 50 or a new trial pursuant to Civ.R. 59(A)(6) as to plaintiffs retaliation claim. In particular, appellants contend that the evidence adduced at trial was otherwise insufficient as a matter of law to support a claim for retaliation and/or that the jury verdict finding such retaliation was otherwise against the manifest weight of the evidence.
The standard for determining a motion for directed verdict or a judgment notwithstanding the verdict is akin to that used for determining a motion for summary judgment. A motion for directed verdict or JNOV may be granted if "the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party." Civ.R. 50(A)(4). Thus, the trial court does not engage in a weighing of the evidence or evaluate the credibility of the witnesses. "Rather, the court is confronted solely with a question of law: Was there sufficient material evidence presented at trial on this issue to create a factual question for the jury?" Malone v. Courtyard By Marriott (1996), 74 Ohio St.3d 440, 445; see, also, Miller v. Paulson (1994), 97 Ohio App.3d 217, 221 (). Appellate review of a motion for directed verdict or JNOV is de novo.
The standard for determining a motion for new trial under Civ.R 59(A)(6) is different from that used in determining a motion for directed verdict or JNOV. When a party files a motion for a new trial on the grounds that the judgment is not sustained by the weight of the evidence, the trial court must engage in a limited weighing of the evidence including the credibility of the witnesses. Rohde v. Farmer (1970), 23 Ohio St.2d 82, paragraph three of the syllabus, 92-93; Miller, supra, at 224. Thus, while a trial court may not grant a new trial because of a mere disagreement with the jury, the trial court may do so in order to prevent a miscarriage of justice because the...
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