Preston v. Phelps Dodge Copper Products Co.

• Court: Connecticut Court of Appeals
• Writing for the Court: FOTI; In this opinion SPEAR; LANDAU
• Citation: Preston v. Phelps Dodge Copper Products Co., 35 Conn.App. 850, 647 A.2d 364 (Conn. App. 1994)
• Decision Date: 06 September 1994
• Docket Number: No. 11818,11818
• Parties: , 63 USLW 2244, 9 IER Cases 1617 Richard L. PRESTON v. PHELPS DODGE COPPER PRODUCTS COMPANY.

Page 364

647 A.2d 364

35 Conn.App. 850, 63 USLW 2244, 9 IER

Cases 1617

Richard L. PRESTON v. PHELPS DODGE COPPER PRODUCTS COMPANY.

No. 11818.

Appellate Court of Connecticut.

Argued Jan. 12, 1994.

Decided Sept. 6, 1994.

John W. Powers, with whom were Ronald Lasky, Theodore Stamatakos and, on the brief, Otto P. Witt, for appellant (defendant).

Barry J. Ward, with whom, on the brief, was Gilbert Shasha, for appellee (plaintiff).

Before FOTI, LANDAU and SPEAR, JJ.

FOTI, Judge.

The defendant appeals from the trial court's judgment, rendered after the jury verdict in this wrongful discharge action, awarding the plaintiff $246,000 for back pay, future wage loss and impairment of earning capacity, $50,000 for infliction of emotional distress, and $500,000 in punitive damages.

The plaintiff, Richard L. Preston, brought an action against his former employer, Phelps Dodge Copper Products Company (Phelps) in a five count complaint that alleged (1) wrongful discharge in violation of public policy, (2) breach of an implied covenant of good faith and fair dealing, (3) breach of an implied employment contract, (4) fraud, and (5) intentional infliction of emotional distress. The trial court granted Phelp's motion for a directed verdict as to the fourth count, and the jury answered eight separate interrogatories in finding for the plaintiff on all other counts. The jury also found that Phelps' conduct was "malicious and outrageous" and motivated by bad faith and, accordingly, awarded punitive damages.

The trial court rendered judgment in accordance with the verdict on October 1, 1992. On October 8, 1992, Phelps filed a motion to set aside the verdict and a motion for remittitur. On November 9, 1992, the trial court heard arguments and denied the motion to set aside because it was untimely filed. The court also granted, in part, the motion for remittitur. The court found the verdict as to punitive damages to be excessive and ordered that part of the judgment set aside unless within fourteen days the plaintiff filed a remittitur of $347,000 ¹ with the court. The plaintiff timely filed the remittitur and the court ordered that judgment be entered for the plaintiff in the amount of $449,000 ² in damages plus reasonable costs.

Phelps claims on appeal that the trial court improperly (1) instructed the jury and (2) ordered a remittitur for an insufficient sum. ³ Phelps also claims that the evidence was insufficient to sustain the jury's verdict. We reverse the trial court's judgment in part.

The jury reasonably could have found the following facts. In December, 1981, Phelps, a company involved in metallurgy, hired the plaintiff as a technician in its quality assurance laboratory. In January, 1988, the plaintiff was assigned additional duties as laboratory safety and maintenance coordinator. On a few occasions, the plaintiff reported unsafe conditions or a breach of safety procedures. He also reported falsification of data as to certain copper "contamination" of production liquids, and an apparent cover-up of a safety breach. On June 15, 1989, the plaintiff was discharged because of his persistent complaints about safety. He was called into the office of the personnel manager and told that his job had been eliminated and that he was being laid off. He was offered severance pay of $3400 if he would sign a covenant not to sue. The plaintiff refused to sign the agreement and left the plant.

Following his discharge, the plaintiff became extremely depressed and often sat silently for hours, oblivious to his surroundings. His relationship with his wife and children became strained and distant and he consulted a psychologist. After a year of unemployment and low paying and unsatisfying jobs, he found employment at Olin Metals Research in New Haven. This job involved a daily roundtrip commute of 128 miles compared to six miles to Phelps.

Following the plaintiff's discharge, Phelps discovered an incident of prior misconduct by the plaintiff while he was still employed. In August, 1988, because of his frustration and anger with his employer, the plaintiff had entered the restroom used by the plant manager and the personnel manager and put poison ivy on the toilet seat and stall. The plaintiff then informed three of his friends as to what he had done, warning them not to use the toilet. The plaintiff felt this was his way of getting back at management. As a result, the plant manager, who is highly allergic to poison ivy, developed a severe reaction that took more than two months to cure.

I

There are two threshold matters that we must determine. We must decide whether this appeal is taken from a final judgment and, if so, what is the appropriate standard of review.

The plaintiff argues that Phelps did not appeal from a final judgment because it appealed from the judgment and not the action by the court following the motion for remittitur. Alternatively, he claims that if the judgment was final, then Phelps should not be allowed to obtain review of the action by this court on the motion for remittitur because Phelps failed to amend its appeal to include the postjudgment remittitur order.

"The lack of a final judgment implicates the authority of this court to hear the appeal because it is a jurisdictional defect." Mac's Car City, Inc. v. DiLoreto, 33 Conn.App. 131, 132, 634 A.2d 1187 (1993). "Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented." (Internal quotation marks omitted.) Cross v. Hudon, 27 Conn.App. 729, 732, 609 A.2d 1021 (1992).

It is obvious that a final judgment was rendered on October 1, 1992. A judgment rendered following the jury verdict finally resolved the dispute that gave rise to this litigation. The filing of the motion for remittitur by Phelps had no effect on the finality of that judgment. The subsequent granting of that motion did not set aside the previously rendered final judgment and thereby vacate it for appeal purposes. Rather, the court ordered only that the judgment on punitive damages would be set aside if the plaintiff failed to file a remittitur in the amount specified by the court. The judgment itself was not disturbed by the timely filing of the remittitur; the amount of the judgment was merely modified. ⁴

We also conclude that Phelps need not have amended its appeal form to include the order granting its motion for remittitur in part and denying it in part. Phelps' motion for remittitur claimed that the award by the jury was excessive. On appeal, Phelps argues that the amount of the reduction ordered by the trial court in granting the remittitur was not large enough. The claims both raise the same issue: that the amount awarded to the plaintiff was excessive. The claim was properly preserved and raised in the preliminary statement of issues. Phelps is entitled to appellate review.

Also as a preliminary matter, we must determine the appropriate standard of review. In order to have plenary review on appeal, an appellant must file a timely motion to set aside the verdict. Practice Book § 4185; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988). It has long been our law that unless a motion to set aside a verdict is filed, appellate review is limited "to ascertaining whether there has been 'plain error.' " Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). Plain error review "is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986)." (Internal quotation marks omitted.) Small v. South Norwalk Savings Bank, supra, 205 Conn. at 759, 535 A.2d 1292.

A motion to set aside a verdict must be filed with the trial court clerk within five days after the date the verdict is accepted or judgment is rendered. Practice Book § 320. In the present case, the motion to set aside was not filed within the prescribed five day period and, consequently, was denied as untimely. The issues on appeal, therefore, must be tested by the plain error standard.

The plain error standard, however, does not apply to any claim arising from the trial court's action on the motion for remittitur. Goral v. Kenney, 26 Conn.App. 231, 240, 600 A.2d 1031 (1991). We, therefore, afford plenary review to Phelps' claims regarding the order of remittitur, and apply a plain error standard to all other issues. ⁵

II

Phelps claims that the trial court improperly instructed the jury by refusing to give its requested instruction regarding the after acquired evidence of the plaintiff's misconduct. Phelps argues that the instruction was proper because it may have related to the award of future lost wages, often commonly referred to as "front pay." ⁶ Phelps also alleges that the trial court improperly refused to instruct as requested on the definition of "extreme and outrageous" conduct and "severe mental distress."

A

At trial, Phelps submitted a supplemental requested instruction on future wage loss as follows: "The plaintiff is claiming damages for future loss of income. In his testimony, [the] plaintiff gave his claimed amount of future loss. [The] [p]laintiff assumed that raises and overtime at Phelps Dodge would have remained constant for twenty-three years. As with all aspects of damages, the amount of damages must be reasonable. You are not permitted to award speculative damages, but only those which [the] plaintiff has proved by a preponderance of the evidence. [The] [p]laintiff offered no evidence for loss of fringe benefits, thus no amount should be included for any claimed loss of fringe benefits. Likewise, [the] plaintiff offered no evidence in support of his claimed loss of pension benefits, thus, no amount should be included for any claimed loss of pension...