pierce stronczer law, llc michelle pierce stronczer … · michelle pierce stronczer (0066531)...
TRANSCRIPT
No. 2011-1120
In the Supreme Court of Ohio
APPEAL FROM THE COURT OF APPEALSEIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY, OHIO
CASE No. 10-094908
RONALD LURI,Appellant/Cross-Appellee,
V.
REPUBLIC SERVICES, INC., et al.,Appellees/Cross-Appellants.
MERIT BRIEF OF APPELLANT RONALD LURI
ROBIN G. WEAVER (0020673)STEPHEN P. ANWAY (0075105)SQUIRE, SANDERS & DEMPSEY, L.L.P.4900 Key Tower127 Public SquareCleveland, OH 44114Tel: (216) 479-8500Fax: (216) 479-8780E-mail: rweaver(a ssd.com
sanway^cr^ssd.com
Attorneys for Appellees/Cross-AppellantsRepublic Services, Inc.; RepublicServices of Ohio Hauling, LLC; RepublicServices of Ohio I, LLC, Jim Bowen, andRon Krall '
IRENE C. KEYSE-WALKER (0013143)(COUNSEL OF RECORD)BENJAMIN C. SASSE (0072856)TUCKER ELLIS & WEST LLP1150 Huntington Building925 Euclid AvenueCleveland, Ohio 44115-1475Tel: (216) 592-5000Fax: (216) 592-5009E-mail: ikeyse-walkerntuckereIlis com
bsassektuckerellis.com
Attorney for Appellant/Cross-AppelleeRonald Luri
SHANNON J. POLK (0072891)RiCHARD C. HAaER (0046788)HABER POLK KABAT, LLP737 Bolivar Road, Suite 4400Cleveland, OH 44115Tel: (216) 241-0700Fax: (216) 241-0739E-mail: spolk(a^haberpolk.com
rhaber^a haberpolk.com
MICHELLE PIERCE STRONCZER (0066531)PIERCE STRONCZER LAW, LLC8931 Brecksville Rd.P.O. Box 470606Cleveland, OH 44147-0606Tel: (440) 262-3630E-mail: shelley.stronczerk ierceleeal.com
Additional Counselfor Appellant/Cross-Appellee Ronald Luri
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .................... .................................,...........,.........:....................... m
1. INTRODUCTION..........................................................................................:.......:. 1
II. STATEMENT OF THE FACTS .... ........................................................................... 2
A. The Parties .....................................:............................................................... 2
B. Luri's Unlawful Termination ......................................................................... 3
C. Post-Filing Efforts to Conceal Unlawful Retaliation .................................... 5
D. The Jury Verdicts and Post-Trial Proceedings . ............................................. 6
E. Luri L ................:.........:....:............................................................................. 7
F. Luri II . ...........................................:............................................................... 9
III. ARGUMENT ..............................................:.....................................................:.....11
Proposition of Law No. 1 ............................................................................:...........11
Punitive damage awards represent a jury's determination ofthe amount required to punish and deter a specific defendant'smalicious misconduct. Consistent with those jury findings,reviewing courts must consider each defendant's punitivedamage award independently for the application of "caps"under R.C. 2315.21(D) .........................................................:.......................11
A. The Plain and Unambiguous Language of R.C.2315.21(D)(2)(a) Caps Each of the Corporate PunitiveDamage Awards at $7 Million ..............................:.:.................................... 12
B. The Majority's Creation of a Joint Liability "Exception" IsUnsupported by Law or Policy ..................................................:................. 15
C. The Majority's Creation of "Joint" Liability for a SingleCapped Punitive Damage Award Improperly Dilutes theIndividualized "Punish and Deter" Purpose of PunitiveDamages . ....................................:................................................................ 19
IV. CONCLUSION ...................................................................................................... 22i
PaEe
CERTIFICATE OF SERVICE .................:.......................................:....:............................ 24
APPENDIX Appx. Page
Notice of Appeal to Ohio Supreme Court (June 30, 2011) ................................................. 1
Joumal Entry and Opinion, Eighth Appellate District (May 19, 2011) (Luri II) ................ 5
Journal Entry and Opinion, Eighth Appellate District (Oct. 23, 2009) (Luri I) ................ 27
Journal Entry, Cuyahoga County Common Pleas Court (March 2, 2011) ....:................... 42
Journal Entry, Cuyahoga County Common Pleas Court (Sept. 25, 2008) ........................ 44
Journal Entry, Cuyahoga County Common Pleas Court (Sept. 25, 2008) .... .................... 45
Journal Entry, Cuyahoga County Common Pleas Court (Sept. 18, 2008) ........................ 46
Journal Entry, Cuyahoga County Common Pleas Court (July 3, 2008) ........................... 47
R.C. 2315.21 .......................:...:.......................................................................................... 48
R.C. 4112.02(I) .....:.......................................................................:.....................:.........:.... 52
ii
TABLE OF CONTENTS
PaEe
Cases
Ahern v. Ameritech Corp.(2000), 137 OhioApp.3d 754 .....................:.......................................................... 16
Arbino v. Johnson & Johnson(2007), 116 Ohio St.3d 468.., ............................................................:.............. 13,19
Armbruster v. Quinn(C.A.6, 1983), 711 F.2d 1332, abrogated on other grounds, Arbaugh v. Y&HCorp. (2006), 546 U.S. 500 ............:....................................................................... 16
Barnes v. Univ. Hosps. of Cleveland(2008), 119 Ohio St.3d 173 ..............:..................................................:..........:......... 8
BMW of North America, Inc. v. Gore(1996), 517 U.S. 559 ........................................................................:....................... 8
Bowling v. Heil Co.(1987), 31 Ohio St.3d 277 ...........:............................................:............................. 15
Dardinger v. Anthem Blue Cross & Blue Shield(2002), 98 Ohio St.3d 77 ....................:......................................:...................... 20, 22
Faieta v. World Harvest Church,l0th Dist. No. 08AP-527, 2008-Ohio-6959 ............................................... 13, 15, 16
Havel v. St. Joseph,S.Ct. No. 2010-48 ..................................................................................................... 1
Luri v. Republic Services, Inc.,8th Dist. No. 92152, 2009-Ohio-5691 ..........................:........:............................. 7, 8
Luri v. Republic Servs., Inc.,193 Ohio App.3d 682, 2011-Ohio-2389 ..................:.................................:..... passim
Minix v. Canarecci(C.A.7, 2010), 597 F.3d 824 .....:.............:.........:....:................................................ 12
Pang v. Minch(1993), 53 Ohio St.3d 186 ....................... .................. ......................... ............ 15, 18
iii
PaEePapa v. Katy Industries, Inc.
(C.A.7, 1999), 166 F.3d 937 ................................................................................... 16
Portage Cty. Bd. of Commrs. v. Akron(2006), 109 Ohio St.3d 106 .................................................................................... 12
Rice v. CertainTeed(1999), 84 Ohio St.3d 417 .....:..........:..................................................................... 19
State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn.(1996), 74 Ohio St.3d 543 ...................................................................................... 12
State Farm Mut. Auto Ins. Co. v. Campbell(2003), 538 U.S. 408 ................................................................................................ 8
United States v. Best Foods(1998), 524 U.S. 51 ................................:.....................................:....................16-17
Wightman v. Consol. Rail Corp.(1999), 86 Ohio St.3d 431 ..:...................:..............................................................: 20
Statutes
R.C. 2315.18 ..................:......................................................:.............................................. 7
R.C. 2315.21 ..........................:....................................................................................... 7,20
R.C. 2315.21(B)(1) .........................................:.................................................................... 1
R.C. 2315.21(C)(1) ....................................................:....................................................... 20
R.C. 2315.21(D) ...................................................:........:........:.....................:.......... 9, 10, 21
R.C. 2315.21(D)(2)(a) .. .............................................................................................. passim
R.C. 4112.02(1) .........................................................................:.......................................... 1
iv
PageOther Authorities
Restatement of the Law 2d, Torts (1965), Section 433B(2), Comment d ......................... 15
v
I. INTRODUCTION
This appeal arises out of a jury verdict in favor of Plaintiff-Appellant Ron Luri on
his R.C. 4112.02(I) claim for unlawful retaliation. The limited issue to be briefed' is the
proper calculation of punitive damage "caps" for an award based on misconduct so
highly reprehensible that it "speaks to an award in the full amount authorized by the
legislature" in R.C. 2315.21(D)(2)(a). (App. Op., Appendix ("Appx.") 22, ¶38.) More
specifically, this Court accepted jurisdiction of the panel split on how the "cap" is to be
calculated for three of the five punitive damage awards returned by the jury in this case.
Both the applicable statute and the facts needed for the calculation are
straightforward. R.C. 2315.21(D)(2)(a) instructs courts to limit the judgment on punitive
awards to "two times the amount of the compensatory damages awarded to the plaintiff
from that defendant." (Appx. 49.) The parties agreed upon the jury interrogatories and
verdict forms that provided the numbers for the calculation. (Tr. 1561, 1712, Supp. 102,
103.) Those interrogatory answers and completed verdicts established:
That each of the three corporate and two individual Defendantsunlawfully retaliated against Ron Luri, causing $3.5 million incompensatory damages;
' In a cross-appeal, and in a separate appeal from a certified conflict (S.Ct. No. 2011-1097), Defendants-Appellees assert that R.C. 2315.21(B)(1) - the constitutionality ofwhich has never been placed at issue in this case - is constitutional. This Court acceptedjurisdiction of that portion of the Defendants-Appellees' cross-appeal and the certifiedconflict, but held both without briefing, pending the resolution of Havel v. St. Joseph,
S.Ct. No. 2010-48.
. By clear and convincing evidence, that each of the three corporateand two individual Defendants acted with actual malice toward Luri;and
The amount of punitive damages that the jury deemed necessary topunish and deter the malicious conduct of each of the fiveDefendants.
(Supp. 1-15.)
Only the three corporate punitive damage awards are before this Court. Applying
the plain and unambiguous language of Ohio's punitive damage cap, judgment on those
awards is limited to two times the $3.5 million compensatory damages that the jury
awarded "to the plaintiff from that defendant." This Court therefore should adopt the
calculations of the dissenting opinion and order judgment on punitive damage awards of
$7 million against each of the three corporate Defendants.
II. STATEMENT OF THE FACTS
A. The Parties.
Plaintiff-Appellant Ron Luri is a career waste management industry employee
who has worked as a General Manager in the Cleveland area since at least 1991. He
served as the General Manager for the three Cleveland Division facilities of Defendant-
Appellant Republic Services of Ohio Hauling, LLC ("Ohio Hauling") from 1998 until his
unlawful termination in April 2007. All three facilities showed continuous financial
improvement under his stewardship, and were on track for their best financial
performance ever in 2007. (Tr. 557-69, 591, 888-93, Supp. 49-52, 58, 79-80.)
2
In addition to Ohio Hauling, Luri's Complaint named four other defendants who
participated in the unlawful retaliation: (1) Defendant-Appellee. Republic Services of
Ohio I, LLC ("Republic Ohio") and its Area President, James Bowen (Luri's direct
supervisor); and (2) Defendant-Appellee Republic Services, Inc. ("Republic") and its
Regional Vice President, Ron Krall (Bowen's direct supervisor). While the jury awarded
punitive damages against all five Defendants - Republic, Republic Ohio, Ohio Hauling,
Krall, and Bowen - only the punitive damage awards against Republic, Republic Ohio
and Ohio Hauling are at issue in this appeal.
Luri's Unlawful Termination.
The events leading up to Luri's unlawful termination began in August 2006, when
Bowen was promoted to Area President of Republic Ohio and, with the "buy-in and
approval" of corporate officers (including Republic Vice President Krall), drafted and
implemented an "action plan" for Ohio Hauling's various divisions that identified
employees who needed to be "retrain[ed]" or "replace[d]," and that targeted older
workers for termination. (Tr. 384-86, 393-97, 741-43, 1267-68, Supp. 24-25, 26-27, 73-
74, 90.) In November 2006, Bowen told Luri to fire his three oldest workers and, at the
same time, told the General Manager of the Akron/Canton Division to eliminate positions
held by four of his oldest workers. (Tr. 573-74, 577-78, 741-45, 1484-88, Supp. 53, 54,
73-74, 99-100.) Luri refused Bowen's directive, explaining that firing older workers for
no reason, "and suddenly coming up [with] a reason for firing him and then replacing him
with a younger employee would put the company in a bad position or possible lawsuit."
(Id. 574-75, Supp. 53-54.)
After Luri voiced his objections, Bowen "all of a sudden" became critical of Luri's
"communication skills" and "management style." (Tr. 570-72, 579, Supp. 52-53, 55.)
Bowen began creating a paper trail (his "Ron Luri file") to assert a fictional, "he didn't
conduct enough meetings" basis for terminating a top performing manager. Included in
the file were false statements regarding "action plans" allegedly discussed with Luri and
false reports of other employees' allegedly negative comments about Luri. (Tr. 435-36,
444, 579-80, 585-94; 597-613, 1121-23, Supp. 33, 35, 55, 56-58, 59-63, 85.) Bowen was
assisted in those endeavors by Krall, who commissioned a survey to purportedly identify
"employee issues" at Luri's Cleveland Division, and who approved Bowen's
fictionalized "Improvement Directives" as a "good start." (Tr. 359-62, 436, 444-56,
1121, 1217-21, Supp. 18-19. 33. 35-38, 85, 86-87.)
In February 2007, Bowen forwarded Luri a memorandum purporting to "recap" a
non-existent discussion from the day before, falsely stating that Bowen and Luri had
collectively decided to "flip flop" the position of Luri's oldest employee (Frank Pascuzzi,
one of the three Luri had refused to terminate) and a much younger employee, and
instructing Luri to make sure that Pascuzzi "voluntarily" asked to be reassigned "as soon
as possible." (Tr. 607-10, Supp. 62.) Interpreting the e-mail as a suggestion to create a
pretext for terminating Pascuzzi, Luri instead worked with Pascuzzi so that he could keep
working with no change in pay. (Tr. 614-19, Supp. 63-65.) Luri also responded to
4
Bowen's complaints about his management style (receiving no response), and followed
Bowen's numerous "directives" and "action plans" to the best of his ability throughout
February, March, and April. During that time no one criticized his performance and
Bowen neither followed up nor checked on his progress. (Tr. 611-14, 1465-67, Supp. 63,
94.)
On April 12, 2007, Bowen e-mailed Krall, seeking permission to terminate Luri's
employment. (Tr. 1230-31, Supp. 88-89.) Krall approved the request, copying the
Republic entities' Human Resources Manager "to make sure that we're not missing
anything here." (Id.) Shortly thereafter, Luri was summoned and terminated. Krall was
present when Bowen blurted out the real reason for Luri's termination ("he said, `Plus
you didn't fire Frank Pascuzzi"'), and cut off Luri when he attempted to challenge his
discharge. (Tr. 624, Supp. 66.)
Soon thereafter, Luri interviewed with another waste management company,
which was looking for someone in the Cleveland area. But Defendants prevented Luri
from being hired by refusing to waive the restrictions in his covenant not to compete.
(Tr. 475-76, 625-27, 704, Supp. 43, 66-67, 69.)
C. Post-Filing Efforts to Conceal Unlawful Retaliation.
After Luri filed suit, Bowen attempted to conceal his unlawful conduct by
backdating an October 2006 memo, after supplementing it to make it appear that Luri had
performance issues before he opposed age discrimination. (Exhs. 35, 37; Tr. 414-21,
493-97, 550, 779-84, 1351, Supp. 112-13, 30-31, 45-47, 76-77, 91.) He then produced
5
the altered document in discovery (Tr. 422, Supp. 32). Bowen also created and
backdated a handwritten set of notes describing a non-existent plant visit that allegedly
yielded unfavorable comments about Luri's management style, and instructed employees
to create documents supporting false allegations. (Id., Exhs. 15, 34, 34A, 39; Tr. 436-47,
458-62, 473, 785-86, 996-99, Supp. 107-111, 114-15, 33, 39-40, 42, 77, 82-83.) Ohio
Hauling's General Manager was one of those who participated in the effort to cover up
unlawful retaliation by creating and then supplementing (to make "more specific") a
document used to make the unsupported claim that Luri had falsified expense reports.
(Exhs. 34, 34A; Tr. 443-47, 978-79, Supp. 108-09, 35-36, 81.)
D. The Jury Verdicts and Post-Trial Proceedings.
The eight-day jury trial did not go well for Defendants. Sixteen witnesses
testified, including a forensic computer expert who conclusively established Bowen's
post-filing alteration of evidence. Cross-examinations of Defendants' witnesses
repeatedly exposed duplicitous testimony and the false "paper trail" created by Bowen,
assisted by Krall and others.
The case was submitted to the jury with interrogatories and verdict forms agreed
upon by the parties after Defendants insisted that the jury consider punitive damages
individually as to each of the five Defendants. (Tr. 1557-61, 1712, Supp. 101-02, 103.)
On July 3, 2008 the juryreturned verdicts and consistent interrogatory answers awarding
Luri $3.5 million in compensatory damages, and punitive damages against Republic
($21.5 million), Republic Ohio ($10.75 million), Ohio Hauiing ($10.75 million), Ronald
6
Krall ($83,394), and James Bowen ($25,205); and attorney's fees. ( 'Rogs and Verdicts,
Supp. 1-15; JE (7/8/08), Appx. 47..)
Fourteen days after the trial court entered judgment on the verdicts, Defendants
filed a Motion for Judgment Notwithstanding the Verdict ("JNOV") and a Motion for
New Trial/Remittitur. In those motions, Defendants asserted, for the first time, that the
Chapter 4112 action was a "tort" action subject to non-economic and punitive damage
"caps" in R.C. 2315.18 and R.C. 2315.21.Alternatively, Defendants alleged that the
corporate punitive damage awards were excessive and violative of due process under the
United States Constitution.
Luri moved for prejudgment interest (PJI) and submitted his attotney fees and
costs; Defendants stipulated to their "bad faith" negotiations (to avoid discovery on
same) and to Luri's "lodestar" fee calculation. (JE (9/25/08), Appx. 44.)
E. Luri L
The events leading up to the Defendants' first appeal are described in Ronald Luri
v. Republic Services, Inc., 8th Dist. No. 92152 ("Luri r') (Appx. 27-41). On September
17, 2008, two days before the scheduled hearing on Luri's PJI and attorney fee motions,
the trial court faxed all counsel its entry denying Defendants' post-trial motions.. (Luri I,
Appx. 31-32, ¶9; JE (9/18/08), Appx. 46.) During the September 19 hearing, the trial
judge informed the parties that she was going to supplement the September 17 journal
7
entry with "Barnes'n findings. (Luri I, Appx. 33-34, ¶13.) Defendants then orally
requested, and were granted, until October 3, 2008 to submit proposed "Barnes" findings.
(Id., Appx. 34, ¶14.) The trial judge journalized her intent to supplement the September
17 order and Defendants' extension in a journal entry issued September 22, 2008. (Luri
I, Appx. 34, ¶15; JE (9/22/08), Appx. 45.)
On September 25, the trial court entered an order awarding PJI, attorney fees and
costs. (Luri I, Appx. 34, ¶16; JE (9/25/08), Appx. 44.)
On October 1, two days before the expiration of their requested extension of time,
Defendants filed a premature notice of appeal and instructed the trial court that it no
longer had jurisdiction to enter its Barnes findings. (Luri I, Appx. 34-35, ¶¶17-18.)
Defendants then argued in their appellate brief and brief opposing Luri's Motion to
Dismiss the premature appeal that the trial court had "erred" by not making the very
Barnes findings that Defendants had prevented by their premature appeal - an argument
the Court of Appeals described as "disingenuous at best." (Id., Appx. 35, ¶17; 36, ¶20.)
The appeal was dismissed only after full briefing and a few days before the scheduled
oral argument. The trial court entered its Barnes findings on March 2, 2010. (JE
(3/2/10), Appx. 42-43.)
z Barnes v. Univ. Hosps. of Cleveland (2008), 119 Ohio St.3d 173, instructing appellatecourts that are reviewing due process challenges to punitive damage awards to makefactual findings consistent with the "guideposts" in BMW of North America, Inc. v. Gore(1996), 517 U.S. 559 and State Farm Mut. Auto Ins. Co. v. Campbell (2003), 538 U.S.408.
8
F. Lurill.
Following their appellate "trial run," Defendants obtained new counsel, who filed
a second appeal asserting "errors" never raised at trial or in the first appeal.
While rejecting the bulk of Defendants' challenges as waived and invited, the
Eighth District Court of Appeals held that the three corporate punitive damage awards
were subject to post-trial reduction. To determine the reduction, the court concluded that
R.C. 2315.21(D)(2)(a) applied to the awards and that Defendants' reprehensible and
malicious conduct3 "speaks to an award of punitive damages in the full amount
authorized by the legislature" in R.C. 2315.21(D). (Id., Appx. 22-23, ¶38.)
The majority, however, declined to cap each of the three corporate awards at $7
million. Instead, the majority combined the three corporate punitive damage awards into
a single award and "capped" that single award at $7 million. The majority offered no
' The court concluded that the reprehensibility of Defendants' conduct, "weighs heavilyin favor of a large punitive damage award" because after Luri objected to discrimination:
Bowen devised a plan to terminate him, fabricated evidence,and submitted this evidence during discovery to justify hisactions. Krall then used this fabricated evidence for the samejustification. After terminating Luri from a job in aspecialized, consolidated industry, appellants refused to waivethe non-compete clause in his employment contract, whichfurther hampered Luri's ability to support himself and hisfamily.
(Id., Appx. 21-22, ¶35.) The record further supported the trial court finding of "repeatedretaliatory and discriminatory conduct" and that Luri suffered "significant" harm. (Id.,Appx. 21-22, ¶¶35, 36.)
9
statutory analysis to support its consolidation of the three jury awards, stating only that
"Luri advanced a single-employer theory of liability to impute wrongdoing to multiple
business entities in this case" and "can collect at most $3.5 million in compensatory
damages" from all of the Defendants. (Id., Appx., 18-19, ¶3 1.)
The partial dissent explains that Defendants had argued "that because the trial
court determined that they were jointly and severally liable to Luri in the amount of $3.5
million, this is the amount `awarded to the plaintiff."' (Id., Appx. 25, ¶47.) But as the
dissent correctly points out, that interpretation of R.C. 2315.21(D):
* * * omits key terms of the statute * * * which calculates thepunitive damages as "two times the amount of thecompensatory damages awarded to the plaintiff from thatdefendant." (Emphasis added.) Arbino v. Johnson &Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d420 ("The statute limits punitive damages in tort actions to amaximum of two times the total amount of compensatorydamages awarded to a plaintiff per defendant"). Thedetermination of joint and several liability does not alter thisanalysis, as plaintiff has been awarded compensatorydamages "from that defendant." There is no provision forlimiting the awards where there are joint and severaltortfeasors.
(Id., Appx. 26.)
10
III. ARGUMENT
Proposition of Law No. 1
Punitive damage awards represent a jury's determinationof the amount required to punish and deter a specificdefendant's malicious misconduct. Consistent with thosejury findings, reviewing courts must consider eachdefendant's punitive damage award independently for theapplication of "caps" under R.C. 2315.21(D).
An "award of punitive damages in the full amount authorized by the legislature"
(Appx. 22-23, ¶38) produces the following punitive damage judgments in this case:
. Republic: $7 million (reduced from $21.5 million)
. Republic Ohio: $7 million (reduced from $10.75 million)
• Ohio Hauling: $7 million (reduced from $10.75 million)
Although it is not entirely clear, it appears that the majority did not disagree;
rather, they concluded that "[w]hile there may be cases" where the plain and
unambiguous language of the statute applies, "that is not the case here[.]" (Appx. 18-19,
¶31.) The "exception" adopted by the majority is joint and several liability - i.e., because
"Luri advanced a single-employer theory of liability to impute wrongdoing to multiple
business entities" and "can collect at most $3.5 million in compensatory damages" (id.),
the three corporate damage awards must be combined into a single award.
A"joint liability" exception to the plain language of R.C. 2315.21(D)(2)(a) is
unsupported by the statute, common law or policy, and should be rejected by this Court.
The fact that a plaintiff can "collect" only a single compensatory award does not alter the
statutory language capping punitive damages at two times the compensatory damages
11
awarded against "that defendant." Nor does joint liability for compensatory damages
affect individual liability for individually assessed punitive damages at common law.
See, e.g., Minix v. Canarecci (C.A.7, 2010), 597 F.3d 824, 830 ("Although the principle
of joint and several liability prevents Minix from recovering duplicative compensatory
damages, it does not affect the defendants' individual liability for punitive damages,
which are assessed separately against each defendant"). Nor is the creation of a"joint
liability" exception to the plain language of R.C. 2315.21(D)(2)(a) supported by any
public policy or societal interest when, as here, the evidence, jury interrogatory answers,
and jury verdicts establish: ( 1) that each of the three corporate Defendants participated in
the unlawful retaliation; (2) each of the three corporate Defendants acted with actual
malice; and (3) Defendants themselves insisted on individualized punitive damage
awards.
A. The Plain and Unambiguous Language of R.C.2315.21(D)(2)(a) Caps Each of the Corporate PunitiveDamage Awards at $7 Million.
"Following a primary rule of construction, we must apply a statute as it is written
when its meaning is unambiguous and definite." Portage Cty. Bd. of Commrs. v. Akron
(2006), 109 Ohio St.3d 106, ¶52, citing State ex rel. Savarese v. Buckeye Local School
Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545. The method for calculating punitive
damage caps is set forth in plain and unambiguous language, and without exception or
qualification. R.C. 2315.21(D)(2)(a) provides (emphasis added):
12
(2) Except as provided in division (D)(6) of this section, all ofthe following apply regarding any award of punitive orexemplary damages in a tort action:
(a) the court shall not enter judgment for punitive orexemplary damages in excess of two times the amount of thecompensatory damages awarded to the plaintiff from that
defendant, as determined pursuant to division (B)(2) or (3) ofthis section.
See Arbino v. Johnson & Johnson (2007), 116 Ohio St.3d 468, ¶86 (emphasis added)
("The statute limits punitive damages in tort actions to a maximum of two times the total
amount of compensatory damages awarded to a plaintiff per defendant"). See, also,
Faieta v. World Harvest Church, 10th Dist. No. 08AP-527, 2008-Ohio-6959, ¶¶86-91
(concluding that "two times the amount of the compensatory damages awarded to the
plaintiff from that defendant" is "plain and unambiguous").
Determining punitive damages awards "in the full amount authorized by the
legislature" (Appx. 22-23, ¶38) required a simple, two-step process.
First, the court of appeals had to determine the amount of the compensatory
damages the jury awarded "to the plaintiff from that defendant." The answer is found in
Jury Interrogatory No. 2 (Supp. 9). That Interrogatory asks: "Which defendants do you
find by a preponderance of the evidence have unlawfully retaliated against the plaintiff?"
(Id.) To assist the jury in its completion of that interrogatory, the trial court explained:
It lists all the Defendants out, and you would check which
ones you believe owe compensatory damages. If you don'tbelieve they owe, then don't check that box.
13
(Tr. 1774; Supp. 104 (emphasis added).) The jury found that each of the five Defendants
unlawfully retaliated against Luri, establishing that each Defendant is "that defendant"
against whom the jury awarded compensatory damages. Interrogatory No. 3 (Supp. 10)
states the "amount of compensatory damages" ($3.5 million) "to be awarded to the
plaintiff on his retaliation claim" and the jury's Compensatory Damages Verdict (Supp.
1) awards $3.5 million to "plaintiff RONALD LURI * * * and against the Defendant(s)"
who retaliated against Luri, as described in the interrogatories. The jury therefore
awarded $3.5 million to Luri from Republic, Republic Ohio, Ohio Hauling, Krall and
Bowen.
Second, the court of appeals had to determine whether any of the five punitive
damage awards set forth in Interrogatory No. 6 (Supp. 14) and the five Punitive Damage
Verdicts (Supp. 2-6) exceeded two times $3.5 million and, if so, reduce that Defendant's
award accordingly. Because each of the three corporate punitive damage awards
exceeded $7 million, the court of appeals should have reduced the jury's $21.5 million
punitive damage award against Republic by $14.5 million; reduced the jury's $10.75
million punitive damage award against Republic Ohio by $3.75 million; and reduced the
jury's $10.75 punitive damage award against Ohio Hauling by $3.75 million.
The dissenting judge correctly calculated the "full amount authorized by the
legislature" to be $7 million against Republic, $7 million against Republic Ohio, and $7
million against Ohio Hauling. This Court therefore should reverse the majority, adopt the
reasoning of the partial dissent, and order the entry of judgment accordingly.
14
B. The Majority's Creation of a Joint Liability "Exception"Is Unsupported by Law or Policy.
Neither the plain language of R.C. 2315.21(D)(2)(a) nor the nature and purpose of
joint and several liability supports the majority's creation of a joint liability exception to
the statutory calculation of punitive damage caps. As the dissent points out, joint liability
constitutes, by operation of law, an award of compensatory damages for the entire harm
to the plaintiff "from that defendant" (Appx. 25-26, ¶47.) See, also, Bowling v. Heil Co.
(1987), 31 Ohio St.3d 277, 286 (noting that joint and several liability for an indivisible
injury caused by concurrent wrongful acts "has long been a part of the common law in
Ohio"); Pang v. Minch (1993), 53 Ohio St.3d 186, 198 (quoting Comment d to Section
433B(2) of the Restatement of the Law 2d, Torts (1965), to explain the "injustice" of
allowing a wrongdoer not to bear "the full responsibility" for injury he or she inflicted
simply because "the harm he has inflicted has combined with similar harm inflicted by
other wrongdoers"). That a plaintiff can only "collect" those damages once has no
bearing on the calculation of a punitive damage cap that is two times the compensatory
damages "awarded" to the plaintiff "from that defendant."
The Tenth District rejected a similar attempt to dilute the compensatory "base" for
calculating a punitive damages cap in Faieta, 2008-Ohio-6959. The defendant in that
case argued that "two times the amount of the compensatory damages awarded to the
plaintiff from the defendant" referred to the compensatory damages after those damages
were "capped" pursuant to the non-economic damage cap statute. Id., ¶88. The Tenth
15
District rejected the argument, affirming the trial court's application of the plain and
unambiguous language of R.C. 2315.21(D)(2)(a), which caps punitive damages at two
times the compensatory damages "awarded" to the plaintiff from that defendant. Id.,
¶¶89-91. Because statutory caps are only applied after the jury has "made an award" of
compensatory damages, punitive damages are limited to two times the uncapped
compensatory damages "awarded" to the plaintiff from that defendant. Id., ¶¶90-91.
Nor does Luri's assertion of the "single employer" doctrine affect the analysis.
The single employer doctrine is a form of joint and several liability applicable in
employment actions - the doctrine "makes the affiliated corporation * * * jointly
responsible for the [discriminatory] acts of the immediate employer." Armbruster v.
Quinn (C.A.6, 1983), 711 F.2d 1332, 1337, abrogated on other grounds, Arbaugh v. Y&H
Corp. (2006), 546 U.S. 500. While the majority characterizes the doctrine as "imput[ing]
wrongdoing to multiple business entities," joint liability under the single employer
doctrine will apply when, as here, evidence shows that a parent corporation "directed the
discriminatory act, practice, or policy of which the employee of. its subsidiary was
complaining." Papa v. Katy Industries, Inc. (C.A.7, 1999), 166 F.3d 937, 940-42.
Accord Ahern v. Ameritech Corp. (2000), 137 Ohio App.3d 754, 767-68 (rejecting
argument of parent company that it could not be responsible for damages awarded for age
discrimination because plaintiff "was not one of its employees"; the argument "ignores
the evidence supporting its role in the events which led to [plaintiff's] termination from
his employment"). See also United States v. Best Foods (1998), 524 U.S. 51:
16
As Justice (then-Professor) Douglas noted almost 70 yearsago, derivative liability cases are to be distinguished fromthose in which "the alleged wrong can seemingly be traced tothe parent through the conduit of its own personnel andmanagement" and "the parent is directly a participant in thewrong complained of." * * * In such cases, the parent isdirectly liable for its own actions.
524 U.S. at 64-65 (citations and footnote omitted). That is what the evidence established
in this case.
Republic, and its Regional Vice President Krall, demonstrated a "top down"
corporate culture of intimidation and retaliation. Although he knew it was against the
law to discriminate on the basis of age and retaliate against those who opposed that
discrimination, Krall and Republic provided "buy-in and approval" for an action plan that
targeted older workers for termination and helped to create a pretext for Luri's
termination by initiating a spurious "survey" of Cleveland Division employees. He also
participated in the decision to terminate Luri for opposing age discrimination, was
present when Bowen told Luri the real reason he was being terminated (because he would
not "fire Frank Pascuzzi"), and cut Luri off when,he objected. (Tr. 363-64, 370-71, 384-
86, 393-97, 573-74, 577-78, 624, 739-45, 1217-18, 1221, 1230-33, 1267-68, 1484-88,
Supp. 19, 21, 24-25, 27, 53, 54, 66, 73-74, 86, 87-90, 99-100.) Republic's human
resources director confirmed that a determining factor in Luri's termination was his
refusal to follow Bowen's staffing directives. (Tr. 730-32, Supp. 70-71.) Finally,
Republic also interfered with Luri's attempt to secure a comparable position with another
company. (Tr. 625-27, Supp. 66-67.)
17
Republic Ohio, through Area President Bowen, concocted a false paper trail to
cover up the retaliatory motive for Luri's termination. Bowen confirmed, in front of both
Krall and Luri, that Luri was being terminated because he refused to fire Frank Pascuzzi,
and tried to conceal his reprehensible conduct by altering and back-dating evidence to
make it appear that Luri had performance issues before he opposed age discrimination.
He also created notes describing a non-existent visit to the Cleveland Division, and
instructed others to create evidence. (Tr. 414-22, 435-49, 456-63, 473, 493-97, 550, 598-
600, 608-09, 779-86, 996-99, 1351, 1384, 1484, Supp. at 30-32, 33-36, 38-40, 42, 45-47,
59-60, 62, 76-77, 83, 91, 92, 99.)
Ohio Hauling, through General Manager Al Marino and others, not only
participated in the retaliation, but also assisted in the creation, alteration, and
supplementation of evidence to carry out and conceal unlawful retaliation. (Tr. at 443-
47, 978-79, 997-1002, Supp. 35-36, 81, 83-84.)
In short, well-established law confirms that each of the wrongdoers participating
in the retaliation causing an indivisible harm to Ron Luri, "may justly be required" to
"bear[] full responsibility" for the totality of compensatory damages caused by their
unlawful acts. Pang, 53 Ohio St.3d at 198 (citation omitted). The majority's conclusion
that the jury's $3.5 million compensatory damage award does not represent the
compensatory damages awarded "to the plaintiff from that defendant" is thus in error and
should be reversed.
18
C. The Majority's Creation of "Joint" Liability for a SingleCapped Punitive Damage Award Improperly Dilutes theIndividualized "Punish and Deter" Purpose of PunitiveDamages.
Applying the plain and unambiguous language of R.C. 2415.21(D)(2)(a) also
comports with the individualized nature of punitive damages. The majority's dilution of
the three corporate punitive damage awards (by combining them into a single, "joint"
award) ignores the jury's specific, individualized consideration, per Defendants'
insistence, of: (1) the actual malice of each Defendant; and (2) the individualized
punitive damage award necessary to punish and deter that Defendant's reprehensible
conduct. It further confuses the plaintiff-focused, "make-whole" remedy of
compensatory damages from the defendant-focused, "punish and deter" purpose of
punitive damages.' See Arbino, 116 Ohio St.3d at 488, ¶97:
[P]unitive damages "are not compensation for injury. Instead,they are private fines levied by civil juries to punishreprehensible conduct and to deter its future occurrence."Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 350, 94S.Ct. 2997, 41 L.Ed.2d 789. "The purpose of punitivedamages is not to compensate a plaintiff, but to punish anddeter certain conduct." Moskovitz v. Mt. Sinai Med. Ctr.(1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331.
4 Punitive damage awards in actions under R.C. Chapter 4112 have a similar purpose.See Rice v. CertainTeed ( 1999), 84 Ohio St.3d 417, 419-21 (allowing punitive damages inemployment actions consistent with the purpose to be accomplished by the "totality ofOhio's anti-discrimination scheme," including "deterring socially inimical businesspractices").
19
R.C. 2315.21 codifies the defendant-focused nature of punitive damages by
allowing a punitive award only when the plaintiff proves by clear and convincing
evidence that "that defendant" engaged in or ratified reprehensible acts. See R.C.
2315.21(C)(1) (emphasis added):
(C) * * * [P]unitive or exemplary damages are notrecoverable from a defendant in question in a tort actionunless * * *:
(1) The actions or omissions of that defendant demonstratemalice or aggravated or egregious fraud, or that defendant asprincipal or master knowingly authorized, participated in, orratified actions or omissions of an agent or a servant that sodemonstrate.
(Appx. 49.)
Because they are designed to punish and deter a specific defendant's conduct,
punitive damage awards are necessarily tailored to individual conduct. See Dardinger v.
Anthem Blue Cross & Blue Shield (2002), 98 Ohio St.3d 77, 102 (emphasis added) (the
"focus" of a punitive damage award "should be the defendant, and the consideration
should be what it will take to bring about the twin aims of punishment and deterrence as
to that defendant"); Wightman v. Consol. Rail Corp. ( 1999); 86 Ohio St.3d 431, 439
(affirming a punitive damage award where the trial judge believed a deterrent effect was
necessary for Conrail "because it was unwilling to accept responsibility for the collision"
and its trial strategy reflected a "corporate attitude" which "needs to be changed").
Like the trial judge in Wightman, the jury in this case believed a"deterrent effect
was necessary" for each of the corporate DefPndants that was umvillir.g to accept
20
responsibility for its unlawful retaliation, and that pursued a trial strategy reflecting a "top
down" corporate culture determined to make an example of Ron Luri after he resisted a
policy that targeted older employees for elimination. Nothing in R.C. 2315.21(D), this
Court's punitive damage jurisprudence, or public policy support diluting those awards
because there were multiple bad actors.
At trial, Defendants took full advantage of the common law and statutory focus on
each Defendant's conduct by insisting that the jury return individualized - not "joint" -
findings of actual malice and punitive damage awards. Specifically, the trial court was
prepared to give an interrogatory that would have the jury "state the amount of punitive
damages to be awarded to Plaintiff on his retaliation claim against any of the
Defendants." (Tr. 1559, Supp. 101.) Counsel for defense objected that "we need each
Defendant that's named as a Defendant in this case to be separated out so that we know
whether the jurors are finding liability against that particular Defendant or not."
(Tr. 1559-60, Supp. 101-02.) Defendants' objections prevailed. After a short break, the
court reports:
We went off the record for awhile, and counsel has conferredand have come up with an agreed upon set of interrogatories.We're going to have separate punitive damages for threecorporate Defendants.
(Tr. 1561, Supp. 102, emphasis added.)
On appeal, however, the corporate Defendants sang a different tune, arguing that
because they were jointly and severally liable to Luri, they could only be liable for a
21
single, "joint" punitive damage award capped at $7 million. (Appx. 25-26, ¶47.) This
Court has explicitly cautioned that parties "must decide their issues, incorporate them
into their strategy, and be responsible for the results[.]" Dardinger, 98 Ohio St.3d at 93,
¶148. The individualized punitive damage awards requested by Defendants and awarded
by the jury are based on each Defendant's reprehensible conduct, must be paid by each
offending Defendant, and must be capped at $7 million each to represent the full amount
authorized by the legislature in R.C. 2315.21(D)(2)(a).
IV. CONCLUSION
A $7 million punitive damage judgment against each of the three corporate
Defendants comports with the plain and unambiguous language of R.C.
2315.21(D)(2)(a); the evidence proving each corporate Defendant's participation in
unlawful retaliation and reprehensible conduct; jury interrogatories and verdict forms that
found individual misconduct and actual malice as to each of the Defendants (per
Defendants' insistence); the purpose of punitive damages to punish reprehensible conduct
and to deter its future occurrence; the purpose of Ohio's anti-discrimination statutes to
deter socially inimical business practices; and the inescapable logic that a punitive
damage award designed to fulfill the twin aims of punishment and deterrence as to that
defendant must necessarily take into account the full amount of compensable harm
caused by that defendant's unlawful conduct.
22
For all of these reasons, this Court should vacate that portion of the majority
decision consolidating the three corporate punitive damage awards and remand for entry
of judgment consistent with the partial dissent.
Shannon J. Polk (0072891)Richard C. Haber (0046788)HABER POLK KABAT, LLP737 Bolivar Road, Suite 4400Cleveland, OH 44115Tel: (216) 241-0700Fax: (216) 241-0739E-mail: spolkAhaberpolk.com
rhaberLaDhaberpolk. com
Michelle Pierce Stronczer (0066531)PIERCE STRONCZER LAW, LLC8931 Brecksville Rd.P.O. Box 470606Cleveland, OH 44147-0606Tel: (440) 262-3630 (direct)E-mail: shelley.stronczera,piercele al.com
Respectfully submitted,
I^Irene C. Keyse-Walker (00`13143)Benjamin C. Sasse (0072856)TUCKER ELLIS & WEST LLP1150 Huntington Building925 Euclid AvenueCleveland, OH 44115-1414Tel: (216) 592-5000Fax: (216) 592-5009E-mail: ikeyse-walker(a^tuckerellis.com
bsassegtuckerellis. com
Attorneys for Appellant/Cross-Appellee Ronald Luri
23
CERTIFICATE OF SERVICE
A copy of the foregoing has been served this 28th day of November, 2011, by U.S.
Mail, postage prepaid, upon the following:
Robin G. Weaver Attorneys for Appellees/Cross-AppellantsStephen P. Anway Republic Services, Inc.; Republic ServicesSQUIRE, SANDERS & DEMPSEY ofOhio Hauling, LLC; Republic Services of4900 Key Tower Ohio I, LLC, Jim Bowen, and Ron Krall127 Public SquareCleveland, OH 44114
O e of the Attorneys for Ap`pellant/Cross-Appellee Ronald Luri
011547.000001.1350663.1
24
APPENDIX
No.201j -112 0(Related to Pending otice of Certified
Conflict, Supreme Court Case No. 2011-1097)
In the Supreme Court of Ohio
APPEAI., FROM TIIH COURT OFAPPEALSEIGI l'tI IAPPELLATE DISTRICT
CLYAHOGACOIJNTY, OHIO.
CASE No.10-094908
RONALD LURI,Appellant,
REPUBLIC SERVICES, INC., et al.,Appeltees.
NOTICE OFAPPEALOFAPPELLANTRONAI.D LURI
RoBIN G WEAVER (0020673)STSPIEN P. ANwnX (0075105)SQUIRE, SANDERS & DEMPSEY, L.L.P.4900 Key Tower127 Public SquareCleveland,OH 44114Tel: (216) 479•8500 .Fax: (216) 479-8780E-mail: rweaverCa ssd.com
--^ktder7t,.^'s7 ^ ",r°!lees-R^publicServices, Ine.; Republic Services of OhioHauling, LLC; Republic Services of Ohio
I; LI,C, Jim Bowen, and Ron Krall
J11N 3020#1
GLERK OF GOURT-SI1PR€NfEt6tiRi OF-OMtIO=
TPF.Ne C. KEYSE-WALKER (0013143)(COUNSEL OF RECORD)BENJAMIN C. SASSP (0072856),TUCKER ELLIS & WEST LLP1150 Huntington Building925 Euclid AvenueCleveland, Obio 44115-1475Tel: (216) 592-5000Fax: (216) 592-5009E-mail: ike^[email protected]
bsasse(a)tuckerellis.com
Attorney forAppe(lantRanald Luri
CLE?lttIF.G0ll4fSUPREMEG01lRT0^ FON1Yp ^j
APPX. "t
2
SHnNNON J. Pouc (0072891)RiCHARD C. HABIIt (0046788)HABER POLK KABAT, LLP737 Bolivar. Road, Suite 4400
_Cleveland, OH 44115Tel: (216) 241-0700Fax: (216) 241-0739E-niail:slrolkC?ahaberpolk com
rhahei("a7haberpolk.com
MICHELLEPIERCE STRONCZER (0066531)PIERCE STRONCZER LAW, LLC6900 South Edgerton Rd., Suite 108Cleveland, OH 44141-3193Tel: (440) 262-3630E-mail:shelley.stronczerna uiercelegal corn
Additional Counsel forAppelZant.RonaldLuri
APPX. 2
NOTICE OF APPEAL OF APPELLANT RONALD LURI
Appellant Ronald Luri hereby gives notice of appeal to the Supreme Court of Ohio
from the judgment of the Cuyahoga County Court of Appeals, Eighth AppeIlate District,
entered in Court of Appeals Case No. 10-94908 on May 19, 2011. _
This is case, is one of public or great general interest.
Shannon J. Polk (0072891)Richard C. Haber (0046788).Ht1BER POLK KABAT, LLP737 Bolivar Road,. Suite 4400Cleveland, OIi 44115Tel: (216) z41-0700Fax: (216) 241-.0739E-maii: spolk(alhaberpolk com
rhaber(@habWolk.com
Ivlichelle Pierce Sttonczer (0066531)PIERCE STRONCZER LAW, LLC6900 South Edgerton Rd., Suite 108Cleveland, OI3` 44141-3193Tel: (440) 262-3630 (direct)E-mail: sheRey-stronczer(@piercelegal.com
Respectfully submitted,.
Irene C. Keyse-Walker (113143)(COUNSEL OF RECORD)Benjaniin C. Sasse (0072856)TUCKER.ELI.IS & WFST LLP1150 Huntington.BuiIding925 Fuclid AvenueCleveland, OH 44115-1414Tel: (216) 592-5000Fax:.. (216) 592-5009E-mail; ikeyse-wallcer(cr^tuckerellis com
bsasseno tuckerellis com
Altorneys forAppellee Ronald Luri
APPX. 3
CERTIFICATE OF SERVICE
A copy of the foregoirig has been served this 29th day of June, 2011, by U.S. Mail,
postage prepaid, upon the following:
Robin O WeaverStephen P. Anway
Attoriteys forAppellees Republic Services,Inc.; Republic Services of Ohio.llauling,LLC; Republic Services of Ohio I, LLC, JimBorven, and Ron Krall
SQUIRE, SANDERS & DEMPSEY, L.L.P.4900 Key Tower127 Public SquareCIeveland, OH 44114
" 011547.000001.1278372.1 .
One of the Attorneys fofAppellantRonald Lurt
.2
APPX. 4
[Cite as Luri P. Republic Serva, Inc., 193 Oho App.3d 682, 2011-Ohio-2389:1
Court of Appeals of OhioEIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINIONNo. 94908
LURI,
APPELLEE,
REPUBLIC SERVICES, INC. ET AL.,
APPELLANTS.
JUDGMENT:AFFIRMED IN PAR,T, REVERSED IN PART,
AND RENIANDED
Civil Appeal from theCuyahoga County Court of Common Pleas
Case No. CV-633043
APPX. 5
BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 19, 2011
Haber Polk Kabat, L_L.P.,Shannon J. Polk, and Richard C. Haber;Tucker Ellis & West, L.L.P.,Irene C. Keyse-Walker, and Benjamin C. Sasse;And Pierce Stronezer Law, L.L.C., andMichelle Pierce Stronczer, for appellee.:
Squire, Sanders & Dempsey, L.L.P.,Stephen P. Anway, and Robin G. Weaver,for appellants.
FRANK D. CELEBREZZE Jr., Judge:
{¶ 1) Appellants, Republic Services, Inc. ("Republic"), Republic Services
of Ohio I; L.L.C. (`°Republic Ohio"), Republic Services of Ohio Hauling, L.L.C.
("Ohio Hauling"), James Bowen, and Ronald Krall, appeal from an adverse
judgment and the largest retaliatory discharge jury award in Ohio history -
over $46 million. We affirm the jury's verdict, but reuiand for imposition of
statutory punitive-damage limits.
{1[2} Appellee Ronald Luri was employed as the general manager in
charge of the Cleveland division of Ohio Hauling. His direct supervisor,
Bowen, was employed by Republic Ohio. Luri also reported to Bowen's
supervisor, Krall, who was employed by Republic.
APPX. 6
{¶3} According to Luri, sometime in November 2006, Bowen
approached him with an action plan that called for, among other things, the
termination of three employees. Luri testified that Bowen instructed him to
fire Frank Pascuzzi, George Fiser, and Louis Darienzo, Luri's three oldest
employees: Luri testified that he informed Bowen that Pascuzzi had strong
performance evaluations, and terminating him without reason could result in
a discrimination lawsuit. He also informed Bowen that Pascuzzi had a
medical condition that could result in a disability-discrimination suit. Luri
testified that he refused to fire the three individuals.
{1(4} Thereafter, Luri's performance evaluations were worse than in
;previous years, and Bowen instituted "improvements directives" for Luri to
complete, including conducting weekly meetings and providing more
information to Bowen. . Appellants claim that these directives were not
accomplished, and as a result, Luri was terminated on ApriI27, 2007.
{¶5} Luri then filed suit on August 17, 2007, alleging claims of
retaliatory discharge under R.C. 4112.02(I). After receiving notice of the
litigation as a named party, it appears from the evidence presented at trial
that Bowen had altered at least one piece of evidence to justify Luri's
termination. Luri claims that as many as three pieces of evidence were
altered or fabricated and submitted to him during discovery.
APPX. 7
t1[6} Appellants twice moved to bifurcate the trialpursuant to the
Ohio Tort Reform Statutory provisions in R.C. 2315 et seq., as well as Civ.R.
42(B). The oom•t denied these motions, and trial commenced on June 24,
2008. This lengthy trial concluded with a jury verdict finding against all
defendants and awarding Luri $3.5 million in compensatory damages, jointly
and severally against all defendants, and $43,108,599 in punitive damages.'
Appellants moved for remittitur, a new trial, and for judgment
notwithstanding the verdict. These motions were all denied. Luri sought
an award for attorney fees and for prejudgment interest on the compensatory
damages froirt the date of his termination. The trial court awarded Luri over
$1 million in attorney fees and prejudgment interest on the entire
compensatory-damages award.
Law and Analysis
Bifurcation
{¶ 7) Appellants first argue that the trial court "erred by failing to
apply B.C. 2315.21(B)(1), which requires mandatory bifurcation." Appellants
assert that bifurcation is mandatory upon motion.z This court disagrees.
' The jury awarded punitive damages as follows: $21,500;000 against Republic, $10,750,000against Republic Ohio, $10,750,000 against Ohio Hauling, $83,394 against Krall, and $25,205 againstBowen.
?. R.C. 2315.21(B)(1) states, "In a tort action that is tried to a jury and in which a plaintiff
makes a claim for compensatory damages and a claim for punitive or exemplary damages, upon themotion of any party, the trial of the tort action shall be bifurcated ***"
APPX. 8
{1[8} In Barnes u. Uniu. Hosps. of Cleveland, Cuyahoga App. Nos.
87247, 87285, 87710, 87903, and 87946, 2006-Ohio-6266, ¶ 34, affirmed in
part and reversed in part on other grounds 119 Ohio .St.3d 173,
2008-Ohio-3344, 893 N.E.2d 142, we held that a court retains discretion to
determine whether bifurcation is appropriate even in the face of R.C.
2315.21(B) and its mandatory language. Generally, a court's jurisdiction is
set by the legislature, but as the Ohio Supreme Court noted, "the Modern
Courts Amendment of 1968, Section 5(B), Article IV, Ohio Constitution,
empowers this court to create rules of practice and procedure for the courts of
this state. As we explained in Proctor v. Kardassilaris, 115 Ohio St.3d 71,
2007-Ohio-4838, 873 N.E.2d 872, Section 5(B), Article IV 'expressly states
that rules created in this manner "shaIl not abridge, .enlarge; or modify any
substantive right."' Id. at 117. `Thus, if a rule created pursuant to Section
5(B), Article IV confficts with a statute, the rule will control for procedural
matters, and the statute -will control for matters of substantive law.' Id."
Erwin u. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 28.
Since bifurcation is a procedural matter, the trial court retains discretion in
determining whether such an action is warranted.
APPX. 9
{¶ 9} This determination is further buttressed by this court's decision
in Havel v. Villa St. Joseph, Cuyahoga App. No. 94677, 2010-0hio-5251,3 in
which we held that R.C. 2315.21(B)(1) is an unconstitutional usurpation of
the judiciary's ability to control procedural matters because it conflicts with
Civ.R. 42(B).4 Id. at ¶ 9. The Fifth District Court of Appeals has agreed
with this determination. Hyers v. Brown, Stark App. No. 2010-CA-00238,
2011-Ohio-892; Plaugher v. Oniala, Stark App. No. 2010 CA 00204;
2011-Ohio=1207, ¶19-20. However, the Tenth District, in Hanners v. Ho 4Vah
Genting H'ire & Cable SDN BHD, Franklin App. No- 09AP-361,
2009-Ohio-6481, ¶ 30, held that R.C. 2315.21 is substantive law in a
proceduraI package. This interpretation deprives courts of the power
granted under the constitution of this state. "If then the courts are to regard
the constitution; and the constitution is superior to any ordinary act of the
legislature; the constitution, and not such ordinary act, must govern the case
to which they both apply." Marbury v. Madison (1803), 5 U.S. (1 Cranch)
137, 178, 2 L.Ed. 60.
This issue is currently before the Ohio Supreme Court to resolve a conflict between districts.See Hacel v. Vi11a St Joseph, 127 Ohio St:3d, 1530, 2011-Ohio-376, 940 N.E.2d 985.
° This Civil Rule states, "[T]he court, after a hearing, in furtherance of convenience or toavoid prejudice, or when separate trials will be conducive to expedition and economy, may order a
separate triaLof any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue orof any number of claims ***."
APPX. 10
{¶ 10} Appellants also argue that their motion was unopposed and
therefore should have been granted whether based on R.C. 2315.21 or Civ.R.
42(B). However, under the above cases, the trial court retains discretion to
decide the issue. To constitute an abuse of discretion, the ruling must be
unreasonable, arbitrary, or unconscionable. Blakemore u. Blakemore (1983),
5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶11} Barnes found that "[t]he issues surrounding compensatory
damages and punitive damages in this case were closely intertwined.
[Appellant's] request to bifurcate would have resulted in two lengthy
proceedings where essentially the same testimony given by the same
witnesses would be presented. Knowing that bifurcation would require a
tremendous amount of duplicate testimony, the presiding judge determined it
was unwarranted." Id., 2006-Ohio-6266, at ¶ 35.
{¶ 12} Here, the malice evidence required for punitive damages was also
the evidence used to rebut appellants' arguments that Luri was terminated
for cause. The manufacture of evidence was intertwined in arguments
relating to both compensatory and punitive damages. Appellants also argue
that the trial court should not have allowed testimony about the financial
position of appellants, but it was Krall, while on cross-examination, who
introduced this line of questioning without prompting from Luri. Therefore,
APPX. 11
the trial court did not abuse its discretion in denying appellants' bifurcation
motion.
Application of Other Ohio Tort Reform Provisions
111131 In their second and third assignments of error, appellants argue
that the trial court committed plain error when it failed to apply various
provisions of R.C. Chapter 2315. First, appellants claim that the trial court
failed to instruct the jury pursuant to R.C. 2315.18(C).6 However, appellants
never requested such an instruction and specifically agreed to their propriety
before submission to the jury.6
.{¶ 14} We must first determine whether. these provisions apply to an
action based on R.C. 4112. In analyzing whether the punitive-damages caps
within R.C. 2315.21 applied to a claim of a breach of fiduciary duty under
R.C. 1751.09, Ohio's Southern District Court determined that they do not
apply based on the language in R.C. 1701.59 and the intent of the legislature.
Kramer Consulting, Inc. u. McCarthy (Mar: 8, 2006); S.D.Ohio
No. C2-02-116_ While the same reasoning would appear to apply to claims
under R.C. 4112, the same court later held that "an action brought under
Ohio Rev. Code 4112 is a`tort action' as it is `a civil action for damages for
injury or loss to person or property.'" Geiger v. Pjizer, Inc. (Apr- 15, 2009),
Appellants' statement of this error reads, "The trial court erred in failing to subnut an instructionregarding noneconomic damages, as requiredby R.C. 2315.18(C)."
APPX. 12
S.D.Ohio No. 2:06-CV-636, 2009 WL 1026479, quoting Ridley v. Fed. Express,
Cuyahoga App. No. 82904, 2004-Ohio-2543, Ij 89, citing former R.C.
2315.21(A)(1). This finding would include such actions within the umbra of
Ohio's tart-reform provisions.
{q15} The Ohio Supreme Court has also noted the types of actions to
which R.C. 2315.18 does not apply and held them to include "tort actions in
the Court of Claims or against:political subdivisions. under R.C. Chapter
2744, *** actions for wrongful death, medical or dental malpractice, or
breach of contract. R.C. 2315.18(A)(7) and (Ii)(1) through (3)." Arbino v.
Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶
27, fn, 3. Absent from this list are actions based on statutory remedies,
including, among others, diserimination suits. When coupled with the
holdings above, R.C. 2315 et seq. applies to retaliatory-discharge actions
brought under R.C. 4112, and the trial court was required to apply its
pxrovisions if appropriately asked.
{¶16} R.C. 2315.18(C) provides, "In determining an award of
compensatory damages for noneconomic loss in a tort action, the trier of fact
shall not consider any of the following:
{¶ 171 "(1) Evidence of a defendant's alleged wrongdoing, misconduct, or
guilt;
6Appellate counsel for appellants would like it known that they were not trial counsel.
APPX. 13
{¶ 18} "(2) Evidence of the defendant's wealth or financial resources;
111191 "(3) All other evidence that is offered for the purpose of punishing
the defendant, rather than offered for a compensatory purpose."
{1120} Because appellants never r.equested instructions based on R.C.
2315.18, we review this assigned error under a plain-error analysis. "In
appeals of civil cases, the plain-error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously
affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process
itself." Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099,
syllabus= - Therefore, to constitute plain error, the error must be "obvious and
prejudicial error, neither objected to nor affirmatively waived;" and"if
permitted, would have a material adverse effect on the character and public
confidence in judicial proceedings." Ilinkle v. Cleveland Clinic Found., 159
Ohio App-3d 351, 2004-Ohio-6853, 823 N.E.2d 945, ¶ 78.
{1[21} Here, appellants collaborated with the court and Luri in crafting
the jury instructions given. Several courts of appeals have held that an
agreed-upon jury uistruction that forms the basis for error on appeal is
invited error. See State u. Briscoe, Cuyahoga App. No. 89979,
2008-Ohio-6276, ¶ 33 (objection to an agreed jury instruction on appeal
APPX. 14
constituted invited error, which was not grounds for reversal); Merkl u.
Seibert, Hamilton App. Nos. C-080973 and C-081033, 2009-Ohio-5473, 1 48
("Not only did Merkl fail to object to the court's instruction, but she
collaborated with the court and defense counsel on its wording and
specifically agreed tathe instruction as given- Merkl cannot take advantage
of an error that she invited or induced the court to make").
{11221 Appellants did not submit such a limiting instruction or even
mention R.C. Chapter 2315 when proposing jury instructions. Appellants'
initial proposed jury instructions for compensatory damages stated, "[Y]ou
will decide by the greater weight of the evidence an amount of money that
will reasonably compensate [Luril for the actual damage proximately caused
by the conduct of [appellants]. In deciding this amount, if any, you will
consider the nature, character, seriousness, and duration of any emotional
pain, suffering or inconvenience [Luri] may have experienced." The amended
proposed instructions are substantially the same. Appellants never raised
this issue before the trial court when it could have been addressed, and their
oversight should not result in reversal. See Friedland v. Djukic, Cuyahoga
App. Nos. 94319 and 94470, 2010-Ohio-5777, ¶ 40.
APPX- 15
{¶ 231 Similarly, appellants' issue with the failure of the court to provide
a jury interrogatory detailing findings on noneconomic damages was invited.7
The invited-error doctrine equally applies here where the jury instructions,
verdict forms, and jury interrogatories were approved by appellants without
even suggesting the now complained-of error. See Siuda u. Howard,
Hamilton App. Nos: C-000656 and C-000687, 2002-Ohio-2292.
{¶24} R.C. 2315.18(D) states, "If a trial is conducted in a tort action to
recover damages for injury . or loss to person or property and a plaintiff
prevails in that action, *** the jury in a jury trial shall return a general
verdict accompanied by answers to interrogatories, that shall specify all of the
following: (1) The total compensatory damages recoverable by the plaintiff; (2)
[t]he portion of the total compensatory damages that represents damages for
economic. loss; (3) [t]he portion of the total compensatory damages that
represents damages for noneconomic loss."
{¶ 25} In Faieta u. World Harvest Church, Franklin App. No. O8AP-527,
2008-Ohio-6959, ¶ 84-85, the Tenth District Court of Appeals noted that
"defendants not only failed to object to the jury interrogatories and verdict
forms, they invited the alleged error. Defendants drafted verdict forms and
interrogatories and submitted them to. the trial court. Like those actually
' Appellants' assigned error states, "The trial court erred by failing to provide theinterrogatory required by R.C. 2315.18(D) and by fai]ing to apply 1he cap on noneconomic
APPX. 16
submitted to the jury, defendants' drafts asked the jury to determine the
amount of damages awarded to `plaintiffs' collectively, not individually, and
they did not ask the jury to apportion each type of damages between each
defendant."
[126) In the present case, appellants submitted interrogatories and
agreed upon the final versions submitted to the jury. Those interrogatories
did not separate past and future economic damages, nor economic and
noneconomic damages. Appellants' failure to raise the issue and their
proffering of the relied-upon interrogatories invited the error.
{1271 Appellants never sought the application of Ohio tort-reform
provisions during trial, apart from bifurcation. It was only in postverdict
motions that appellants asked the trial court for their application. This error
on appellants' part should not serve as the basis for obtaining a new trial
when it could have so easily been addressed and corrected.if properly raised.
{q 28} By failing to request an interrogatory distinguishing noneconomic
damages, the trial court could not apply the damages limits:set forth in R.C.
2315.18(B)(2),8 which appellants requested in their posttrial motions. This
compensatory damages in R.C. 2315.18(13)(2)."
8 u
[T]he amount of compensatory damages that represents damages for noneconomic loss thatis recoverable in a tort action under this section to recover damages for injury or loss to person or
property shall not exceed the gi-eater of two hundred fifry thousand dollars or an amonnt that is equalto three times the economic loss, as detemuned by the trier of fact, of the plaintiff in that tort action to
a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum
APPX. 17
failure was precipitated.by appellants' submission of interrogatories and jury
instructions.that did not provide for such details. Appellants failed to raise
these issues at the proper-time, and their nescience should not result in a new
trial. Accordingly, these assignments of error are overruled.
Punitive-Damage Caps
{¶29} Appellants next argue that, when presented with a proper
posttrial motion, the trial court "fail[ed] to apply the Ohio Tort Reform
provision in R.C. 2315.21(D)(2)(a), which require[d] the trial court to apply a
cap on punitive damages equal to twice the amount of compensatory
damages."
(1[30} R.C. 2315.21(D)(2)(a) provides, "In a tort action, the trier of fact
shall determine the liability of any defendant for punitive or exemplary
damages and the amount of those damages. *** Except as provided in
division (D)(6) of this section, all of the following apply regarding any award
of punitive or exemplary damages in a tort action: (a) The court shall not
enter judgment for punitive or exemplary damages in excess of two times the
amount of the compensatory damages awarded to the plaintiff from that
defendant, as determined pursuant to division (B)(2) or (3) of this section."
{¶ 31) Our holding above, that Ohio tort reform provisions apply to
discrimination actions, means that upon proper motion, the trial court was
of five hundred thousand dollars for each occurrence that is the basis of that tort action."
APPX. 18
required to limit the award of punitive damages to two times the amount of
compensatory damages. In this case, the trial court was not prevented from
applying.this provision by appellants' failure to ca}rit to the court's attention
when it had the ability to address such a request. This is because the trial
court could apply the limit without engaging in the type of guessing game
required in applying the compensatory-damage provisions. See Srail v. RJF
Internatl. Corp. (1998), 126 Ohio App.3d 689, 702, 711 N.E.2d 264.
Therefore, the trial court erred in failing to limit the amount of punitive
damages to $7 million. Luri argues that the amount of punitive damages
should be calculated for each defendant, meaning that each would be subject
to punitive damages up to.$7 million. While there may be cases where Luri's
calculation would apply, that is not the case here, where Luri advanced a
single-employer theory of liability to impute wrongdoing to multiple business
entities in this case. Because Luri can collect at most $3.5 million in
compensatory damages, the trial court should have limited the amount of
punitive damages to $7 million. Its failure to do so necessitates reversal and
remand.
APPX. 19
Due Process
{¶32} In their fifth assignment of error, appellants argue that the
award of $43 million in punitive damages violates their due process rights
under the federal and state constitutions.9 While our holding above limits
this argument, it does not completely dispose of it.
{133} In &MW v. Gore (1996), 519 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d
809, the Supreme Court attempted to outline the permissible bounds of
punitive-damage awards under the Due Pro.cess Clause of the United States
Constitution. It recognized, "Punitive damages may properly be imposed to
further a -State's legitimate interests in punishing unlawful conduct and.
deterring its repetition. In our federal system, States necessarily have
considerable flexibility in determining the level of punitive damages that they
will allow in different-classes of eases and in any particular case. Most
States that authorize exemplary damages afford the jury similar latitude,
requiring only that the damages awarded be reasonably necessary to
vindicate the State's legitimate interests in punishment and deterrence."
(Citations omitted.) Id. at 568. -
{¶ 34) The court set forth three factors it used to analyze the
punitive-damages award before it: The reprehensibility of the conduct, the
' This assigned error states, `°The trial court en'ed by failing to reduce the punitive damagesbecause they are violative of the U.S. Constitution and Ohio law."
APPX. 20
disparity between the harm or potential harm suffered and the amount of the
award, and the difference between the award and the civil penalties
authorized or, imposed in comparable cases. Id. at 575. See also State Farm
Mut. Auto. Ins. Co: v. Campbell (2003), 538 U.S. 408, 123 S.Ct. 1513, 155
L.Ed:2d 585. The Ohio Supreme Court has directed this court to apply the
Gore factors to independently determine whether an award is excessive.
Barnes, 2006-Ohio-6266, at ¶ 40.
{¶35} Appellants demonstrated reprehensible conduct in this case.,
After Luri refused to engage in what he thought was discriminatory conduct,
Bowen devised a plan to terminate him, fabricated evidence, and submitted
this evidence during discovery to justify his actions. Krall then used this
fabricated evidence for the same justification. After terminating Luri from a
job in a specialized, consolidated industry, appellants refused to waive the
noncompete clause in his employment contract, which further hampered
Luri's ability to support himself and his family. This conduct weighs heavily
in favor of a Iarge punitive-damage award and is the most important factor in
the Gore analysis. See Gore, 517 U.S. at 575. The trial court also found
that. this conduct demonstrated a. pattern of repeated retaliatory and
discriminatory conduct. Nothing in the record demonstrates to this court
that this finding was incorrect. From an action plan calling for the
termination or demotion of some of appellants' oldest employees, to
APPX. 21
fabricating evidence in an attempt to justify Luri's termination, there is
evidence in the record supportiiig a pattern of conduct justifying substantial
punitive damages.
{¶36} The harin suffered by Luri was also significant in this case.
Appellants would have this court determine that a ratio of compensatory to
punitive damages of one-to-one is appropriate in this case because the harm
was economic, and Luri was a well-paid executive who was not economically
vulnerable. While Luri did earn a substantial salary, as the trial court
noted, citing Wightrnan v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 715
N.E.2d 546, a"punitive damages award is more about a defendant's behavior
than the plaintiffs loss."
{137) Here, comparable jury verdicts imposed where a pattern of
persistent conduct was shown demonstrate that a two-to-one ratio is not
beyond the bounds of due process. Merrick v. Paul Revere Life Ins. Co.
(D.Nev.2008), 594 F.Supp.2d 1168; 1190; Burns v. Prudential Sees., Inc., 167
Ohio App.3d 809, 2006-Ohio-3550. This court has also upheld a five-to-one
ratio in an employment-discrimination case. Griffin v; MDK Food Seru., Inc.,
155 Ohio App.3d 698, 2004-Ohio-133, 803 N.E.2d 834, ¶ 49, 57.
{4138; In this case, appellants' behavior speaks to an award of punitive
damages in the full amount authorized by the legislature. On remand, the
APPX. 22
trial court should feel free to enter an amount of punitive damages up to the
bounds imposed by R.C. 2315.21.
Prejudgnient Interest
{l(39} Appellants finally argue that the trial court erred in awarding
prejudgment interest on the full amount of compensatory damages when that
amount included pay Luri would not have yet earned, or "future damages."ro
{¶40} R.C. 1343,03(C)(1) states, "Interest on a judgment, decree, or
order for the payment of money rendered in a civil action based on tortious
conduct and not settled by agreement of the parties, shall be computed from
the date the cause of action accrued to the date ori which the inoneyis paid if,
upon motion of any party to the action, the court determines at a hearing held
subsequent to the verdict or decision in the action that the party required to
pay the money failed to make a good faith effort to settle the case and that
the party to whom the money is to be paid did not fail to make a good faith
effort to settle the case."
{¶41} This statute encourages the "settlement of meritorious claims,
and the compensation.of a successful party for losses suffered as the result of
the failure of an opposing party to exercise good faith in negotiating a
settlement." Lovewell v. Physicians Ins. Co. of Ohio (1997), 79 Ohio St.3d
19 This assigned enor. states, "The trial comt erred by awarding prejudgment interest onfront-pay compensatorydamages"
APPX. 23
143, 147, 679 N.E.2d 1119. "Therefore, an injured party in a tort action is,
under appropriate circumstances, entitled to recover interest from the date
the-eause of action accrues." Andre v. Case Design, Inc., 154 Ohio App.3d
323, 2003-Ohio-4960, 797 N.E.2d 132, ¶ 7.
{¶ 42} Appellants did not request that the jury parse the amount of
compensatory damages into any categories. As with the application of
provisions of Ohio's tort-reform statutes, appellants invited this error by
subniitting instructions and interrogatories that did not separate out future
damages. Appellants' error will not- induce this court "to speculate
concerning the specifics of the jury's award." Srail, 126 Ohio App.3d at 702.
This assignment of error is overruled. -
Conclusion
(¶ 43) Appellants caused a great many of the supposed errors
complained of in this case, which should not result in reversal. Fiowever,. on
proper motion, the trial court should have applied the damages caps set forth
in R.C_ 2315.21(D)(2)(a). Accordingly, this case must be remanded.
{¶ 44} This cause is affirmed in part and reversed in part, and the cause
is. remanded to the lower court for further proceedings consistent with this
opinion.
Judgment affirmed in part
and reversed in part,
APPX. 24
and cause remanded.
GALLAGHER, J., concurs.
KILBANE, A.J., concurs in part and dissents in part.
IiILBANE, A.J., concurs in part and dissents in part.
{¶45) I respectfully dissent from the majority's determination that the
trial court should have limited the amount of punitive damages to $7 million.
I would conclude that plaintiff is entitled to $7 million in punitive damages
from each defendant rather than $7 million in total punitive damages.
{146} R.G. 2315.21(D) sets forth certain limits on punitive damages and
provides:
(2) Except-as provided in division (D)(6) of this
section, all of the following apply regarding any award of
punitive or exemplary damages in a tort action:
(a) The court shall not enter judgment for punitive or
exemplary damages in excess of two times the amount of
the compensatory damages awarded to the plaintiff from
that defendant, as determined pursuant to division (B)(2) or
(3) of this section.
{547} The.defendants maintain that because the trial court determined
that they were jointly and severally liable to Luri in the amount of $3.5
APPX. 25
million, this is the amount "awarded to the plaintiff." Therefore, defendants
claim that plaintiffs recovery of punitive damages is limited to two times this
amount or a total of $7 million in punitive damages. -This interpretation
omits key terms of the statute, however, which calculates the punitive
damages as "two times the aniount of the compensatory damages awarded to
the plaintiff from that defenda,nt :" (Emphasis added.) Arbino v: Johnson &
Johnson, 116 Ohio St.3d468, 2007-Ohio-6948, 880 N.E:2d 420 ("The statute
limits punitive damages in tort actions to a maximum of two times the total
amount of compensatory damages awarded to a plaintiff per defendant").
The determination of joint and several liability does not alter this analysis, as
plaintiff has been awarded compensatory damages "from that defendant."
There is no provision for limiting the awards where tliere are joint and
several tortfeasors. I therefore dissent insofar as the majority has limited
plaintiffs recovery to punitive damages in this matter to.$7 million.
APPX. 26
[Cite as Luri v. Republic Servs., Inc., 2009-Ohio-5691.1
EIGHTH APPELLATE DISTRICTCOUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINIONNo.92152 ,
RONALD LURI
PLAINTIFF-APPELLEE
vs.
REPUBLIC SERVICES, INC., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:DISMISSED
Civil Appeal from theCuyahoga County Gourt of Common Pleas
Case No_ CV-633043
BEFORE: Kilbane, P.J., Stewart,.J:", and Boyle, J.
RELEASED: October 23, 2009.
JOURNALIZED:
APPX. 27
ATTORNEYS FOR APPELLANTS
David A. PosnerJames A. Stater, Jr.Thomas D. WarrenBaker & Hostetler, LLP3200 National City Center1900 East Ninth StreetCleveland; Ohio 44114-3485
AndrewS. PollisHahn Loeser Parks, LLP2800 BP America Building200 Public SquareCleveland, Ohio 44114-2301
ATTORNEYS FOR APPELLEE
Shannon J. PolkDaniel M. ConnellRichard C_ HaberHaber Polk, LLPEaton Center, Suite 6201111 Superior Avenue, EastCleveland, Ohio 44114
Irene C. Keyse-WalkerBenjamin C. SasseTucker Ellis & West, LLP1150 Huntington Building925 Euclid AvenueCleveland, Ohio 44115-1475
Appellee's Attorneys continued on page li
ATTORNEYS FOR APPELLEE (CONT_)l
APPX. 28
Michelle Pierce StronezerPierce Stronczer Law LLC6900 S. Edgerton Road, Suite 108.Cleveland; Ohio 44141-3193
N.B. This entry is an announcement of the court's decision. See App.R.. 22(B) and26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(C) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) daysof the announcement of the court's decision. The time period. for review by theSupreme Court of Ohio shall begin to run upon the journalization of this court'sannouncement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II,Section 2(A)(l).
MARY EILEEN KILBANE, P.J.,: .
APPX. 29
{¶ 1} Appellants, Republic Services, Inc. ("Republic"), Republic Services
of Ohio Hauling, LLC ("Ohio Hauling"), Republic Services of Ohio I, LLC
(''Ohio I"), Jim Bawen ("Bowen"), and Ron Krall ("Krall") (collectively known
as "appellants"), appeal the July 3, 2008 jury verdict in favor of Ronald Luri
("appellee"), with respect to his retaliation claim stemming from his unlawful
termination under R.C. 4112.02(I). The jury awarded Luri3.5 million
dollars in compensatory, damages and approximately '43 million dollars in
punitive damages.
{¶ 2} Appellants argue that the trial court erred by denying their
motion for judgment notwithstanding the verdict and their motion for new
trial. Appellants claim that the trial court erred in failing to reduce
allegedly excessive compensatory and punitive damages awards: Finally,
appellants -argue that the trial court erred in awarding excessive attorneys'
fees and in granting prejudgment interest. Appellants' six assignments of
error focus solely on the trial court's rulings on posttrial motions.
{13} Because appellants prematurely filed their notice of appeal,
thereby. depriving the trial court of its stated intention to issue a final
judgment entry supplementing its reasons for denying appellants' motion for
new trial or in the alternative for remittitur, we dismiss the instant appeal
for lack of a final appealable order under R.C. 2505.02 and Civ.R. 54.
APPX. 30
Procedural History
{¶ 41 On August 17, 2007, Luri filed the instant lawsuit alleging that
-he was retaliatorily discharged tinder R.C. 4112:02(I) after refusing to
terminate his three oldest employees. In his complaint, Luri also alleged
that appellants discriminated against him because of his age in violation of
both R.C. 4112.14(A) and Ohio public policy.
{¶5} On June 24, 2008, a jury trial commenced on Luri's retaliation
claim. At, trial, Luri proved that after he refused to fire the three targeted
employees on the basis of their age, his siupervisors retaliated against him for
engaging in protected activity under Ohio's Civil Rights statute, R.C. 4112, et
seq;, that such retaliation eventually led to his unlawful termination, and
that his supervisors attempted to justify their nefarious activity by
fabricating evidence and backdating documents in order to create a sham
"paper trail" justifying Luri s unlawful termination.
[1[61 On July 3, 2008, a jury found in favor of Luri.
{¶ 7} On•July 8, 2008, the trial court entered judgment in Luri's favor.
{¶ 8} On July 22, 2008, appellants filed a motion for judgment
notwithstanding the verdict, and a motion for new trial or in the alternative
for remittitur, alleging that the punitive damage awards against them
violated their right to due process.
{¶ 9} On September 17, 2008, the trial court faxed an entry to all
APPX. 31
counsel denying appellants' motion for new trial or in the alternative for
remittitur.
{¶ 10} On September 18, 2008, the trial court jaurnalized its entry
denying the motion for new trial or in the alternative for remittitur withaut
opinion.
{¶ 11} On September 19, 2008, the trial court convened a hearing on
pending posttrial motions. During this hearing, appellee's counsel, as the
prevailing party in accordance with Civ.R. 52 and Loc.R. 19, provided the
trial court with a proposed supplemental journal entry to accotnpany its
earlier ruling, augmenting the court's September 18, 2008 entry denying the,
motion for new trial or in the alternative for remittitur, to include an analysis
of the due process "guideposts" elucidated in BtVfW ofN. Am. v. Gore (1996),
517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809, based upon theOhio Supreme
Court's recent pronouncements in Barnes v. Univ. Hosps. of Cleveland. 119
Ohio St.3d 173, 2008-Ohio-3344, 893 N.E_2d 142. (Tr. 1849.)
{¶ 12} In Barnes, the Ohio Supreme Court held, inter alia, that trial
courts are required to analyze ajury's punitive damage award under BMW of
N. Am. when it stated: -
"This discretionary appeaI was accepted on the issues ofwhether *** the trial court is required to analyze thejury's punitive damage award under BMW of1V. Ani., ***.We answer yes ***." Barnes at 174.
APPX. 32
{¶ 13} Appellants' counsel professed that they never received the court's
facsimile denying their motions, yet the court produced: a copy of its
confirmation sheet faxing the entry to appellants' counsel. During the
hearing, appellants' counsel inquired of the court regarding its denial of
appellants' motion for new trial or in the alternative for remittitur:
"[Counsel for appellants]:
But I take it Your Honor did not consider the Barnes casein making that determination?
The Court:
Well, no. You're speculating what I did consider and Ithink svhat counsel's asking the Court to do is provide aIittle bit more edification pursuant to the Barnes case. Iconsidered every case that was cited within that.
So I basically just ruled on the motions, but I. think it isalways helpful if the prevailing party wants to submit amore detailed entry for the trial court to look at. Thatway, I can look through it and see which the Court agreeswith and maybe that.would provide you the edificationyou seek.
I read them all and I took them all "into consideration and
I wanted to have them ruled on before today's hearing so
that you would know that.
,.***
APPX. 33
So rather than have you come back in a couple of years,should you be appealing this case, and provide edificationon a case that's not as fresh in my mind, would I mindlooking at this? I. don't have any issue with that.
[Counsel for appellants]:
Thank you, your honor., Thank you." (Tr. 1852-1853.)
{¶ 14) At the conclusion of the hearing, pursuant to appellants' request,the trial court granted appellants a two-week extension or until October 3;2008, within which.to provide an alternative proposed supplemental entry oran opportunity to respond to appellee's proposed stipplemental entry.
{If 151 On September 22, 2008, the trial court memorialized the hearing
in the following joiurnal entry, which states in pertinent part:
"Hearing held September 19, 2008 on Pl Ronald Luri'sApplication for Attorney's Fees and Motion to Tax Costspursuant to. Rule 54 and Pl Ronald Luri's Motion. forPrejudgment Interest. On a previous date, court ruledupon defendants' motion for new trial or in the alternativefor remittitur . [sic]. Plaintiff, the. prevailing party,pursuant to Ohio Rule of Civil Procedure 52, and LocalRule 19, subinitted _ proposed findings to the Court.Defendants' counsel requested until October 3, 2008, to .submit proposed findings; without objection. Requestgranted. Upon receipt of said findings, Court shallincorporate a set of findings into the record as set forth inthe above referenced procedural rules *** 9/22/08 noticeissued." (Emphasis added.)
{¶1G) On September 25, 2008, the triaL court journaiized an entry
granting appellee's motion for attorneys' fees, motion for prejudgment
interest, and motion to tax costs without opinion.
{¶ 17) On October 1, 2008, instead of presenting the trial court with a
APPX. 34
supplemental journal entry containing its own proposed findings; appellants
filed their notice of appeal. In their brief, appellants argue, inter alia, that
the trial court's September 22, 2008 entry was made in error because the trial
court did not expressly conduct the Barnes analysis in the record, despite
the fact that appellants were fully apprised of the trial court's intent to do so
based upon their involvement at the posttrial motion hearing.
{¶ 18) On October 2, 2008, appellants filed an "opposition" to appeilee's
pi-oposed supplemental journal entry in common pleas court, aiguing, inter
alia, that their appeal divested the trial court of jurisdiction from placing its
findings in the record. This argument contains incorrect statements of fact,
given appellants'.prior agreement at the September 19, 2008 hearing that
they would submit their own proposed entry to the court by October 3; 2008,
pursuant.to Civ.R. 52 and Loc.R. 19, so the court could finalize ruling on all
posttrial motions. The trial court's subsequent journal entry states explicitly
that it will conclude its ruling on posttrial motions when it states:
"Defendants' counsel requested until October 3, 2008, tosubmit proposed findings, without objection. Requestgranted. Upon receipt of said findings, Court shallincorporate a set of fin.dings into the record." See, 9122t09journal entry, supra.
{![ 19} On November 5, 2008,appellee filed a motion to dismiss, or in the
alternative for limited remand. Appellee argues that the trial court's
APPX. 35
September 22, 2008 posttrial order expressly states the trial court's intent to
finalize ruling on appellant's motion for new trial or in the alternative far
remittitur. We agree.
{1[2111 On November 18, 2008, appellants filed a brief in oppositiotn to
appellee's motion to dismiss the instant appeal in this court. Appellants
refer to the trial court's September 19, 2008 hearing and the trial court's
September 22, 2008 journal entry, arguing that "[a)mong the. trial court's
errors was its failure to heed the Ohio Supreme Court's recent decision in
Barnes tsupra], which requires trial courts to explain.their reasoning for
upholding punitive damages in the face of constitutional challenges." Based
upon the above-cited exchange between the court and appellants' counsel in
which the trial. court stated that it considered Barnes, the trial court's
subsequent entry stating its intention to provide a written Barnes analysis at
the parties' joint request, and finally, the trial court's acquiescence to
appellants' request for a two-week extension to provide the court with its own
proposed supplemental entry for the court's consideration in the final
judgment entry, we find this argument to be disingenuous at best.
Analysis
{IW21} When an order contemplates further action, and the judge does
not certify any part of the order as final under Civ.R. 54(B), it is not final
under R.C. 2505.02. See Nwabara v. Willacy, Cuyahoga App. Nos. 79416
APPX. 36
and 79717; 2002-Ohio-1279, at 4, citing Vanest v. Pillsbury Co. (1997), 124
Ohio App.3d 525, 534, 706 N.E.2d 825, 831.
111221 A review of the record indicates that appellants deprived the trial
court of the opportunity to issue a final order by prematurely filing the
instant appeal. The trial court's September 22, 2008 journal entry granted
appellants' request to supplement the trial court's findings regarding its
previous entry denying the motion for new trial or for remittitur by October 3,
2008. Instead of doing so, appellants prematurely filed their notice of appeal
on October 1, 2008, arguing solely that the trial court erred in ruling on
posttrial motions, despite the fact that appellants were engaged with the trial
court in clarifying, and ruling on, those same motions.
{¶ 231 In their brief in opposition to appellee's motion to dismiss,
appellants argue they were concerned about the losing their 30 days within.
which to fil.e an appeal under App.R. 4(A), because under App.R. 4(B)(2),' the
trial court's September 25, 2008 order on the posttrial motions for attorneys'
fees, prejudgment interest, and the motion to tax costsdecided "all remaining
post-trial motions."Inexplicably, appellants argue that no party requested
findings of fact and conclusions of law under Civ.R. 52, and as a consequence,
iApp.R: 4(B)(2), provides: "In a civil case ***, if a party files a timelymotion foi * * * a new trial under Civ.R. 59(B), * * * the time for filing a notice ofappeal.begins to run as to all parties d3hen the order disposing of the motion isentered."
APPX. 37
the tolling provision within App.R. 4(B)(2) is inapplicable. We find this
argumerit unavailing, given appellants' own request for an extension to
provide a supplemental journal entry on the September 22, 2008 orders,
which were clearly not yet final based upon the record cited above.
{¶24} Under App.R. 4(A), a party has 30 days to appeal. a final
judgment. In a civil case, however, when certain postjudgment motions are
filed, the time for filing a notice of appeal does not begin to run until the order
disposing of all postjudgment motions is entered. App.R. 4(B)(2). One type
of postjudgment motion that tolls.the time for appeal is a motion for findings
of fact and conclusions oflaw under.Civ.R. 52. The parties invoked Loc.R. 19
and Civ.R. 52 on the record. Both rules allow the prevailing party in a civil
action to request findings of fact and conclusions of law; As the trial court
and appellee's counsel stated at the September 19, 2008 hearing:
"The Court:
"I was actually going. to say that the prevailing partywould have the ability to present the Court with a moredetailed entry and that's what you're doing here today?
[Counsel for appellee]:
I believe that's right your Honor, .yes. Yes, your honor.It'sour-
The Court:
You're citing. Rule 19 for some reason I thought it wasanother Rule of.Civil Procedure in our court. Is that
APPX. 38
maybe -
[Counsel for appellee]:
Local rule 19:
The Court:
Oh. Local rule. (Tr. 1850).
.^***
The Court:.
I.was going to ask you, in my mind it's somewhere in the50s, maybe 52, 1 think, that says that ***. (Tr. 1855:)
[Counsel for appellee]:
Your Honor, pursuant to that rule [Civ:R. 52], it's myunderstanding that the Defendants have an opportunityto submit their own journal entry to you as well orcomment on ours. So perhaps we could set a time framefor you to do so before you provide us that edification.
The Court:
How much time would you like, Counsels?
[CounseT for appellants]:
Your Honor, two weeks, please.
The Court:
Okay. No problem. I'lt hold it. (Tr. 1856-1857.)
{¶ 25} Based upon the statements of appellants' counsel at tr.
APPX. 39
1855-1857, their arguments about the propriety of App.R. 4(B)(2) are
misplaced, and clearly belied by the record.
11126) The September 22, 2008 order obviously contemplates further
action; it is not final under R.C. 2505.02. The trial judge did not include any
language certifying any part of the order as final under Civ.R. 54(B) and was
deprived of including such findings in the record when appellants brought the
instant appeal. The parties were in the midst of arguing posttrial motions
when appellants sought an extension to provide a proposed supplemental
entry clarifying one of those motions. Instead of so doing, appellants
prematurely filed the instant appeal. We therefore dismiss the. appeal for
lack of a final appealable order. Appellee's motion to dismiss is granted.
Appeal dismissed.
It is ordered that appellee recover from appellants costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
APPX. 40
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., andMARY J. BOYLE, J., CONCUR
APPX. 41
RONALD LURIPlaintiff
Iil^i^lillllH^hII^IIN^III^'lif^inlllE illli61950229
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
I Case No: CV-07-633043
Judge: BRIDGET M MCCAFFERTY
REPUBLIC SERVICES INC. ET ALDefendant
JOURNAL ENTRY
COUNSEL WAS ORDERED TO SUBMIT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW TO THE COURTBY 10/3Y1008. ON 10/1/2008, DEFENDANT'S COUNSEL FILED.tTS APPEAL. SAID APPEAL WAS DISMISSED. AS SUCH,COURT PROVIDES EDIFICATION-0F AS FOLLOWS:
PRIOR TO RULING ON THE DEFENDANTS' MOTION FORNEW TRIAL OR IN THE ALTERNATIVE FOR REMI"ITITUR,FILED 7/22T1008, THE COURTREVIEWED THE PUNITIVE DAMAGE AWARDS AS TO EACH DEFENDANT IN LIGHT OFTHE GUIDEPOSTS ENUMERATED IN BARNES V. UNIVERSITY HOSPITALS OF CLEVELAND, ET AL., (2008) 119 OHIOST. 3D 173. IN BARNES, THE COURT HELD THAT THE FOLLOWING MUST BE CONSIDERED IN REV IE W ING ANAWARD OF PUNITIVE DAMAGES:
1. DEGREEOF REPREHENSIBILITY OFTHECONDUCT2. RATIOOF PUNITIVE DAMAGES TO COMPENSATORY DAMAGES3. SANCTIONS FOR COMPARABLE MISCONDUCT.
DEGREEOFREPREHENSIBILITYTHE CRITICAL FACTORS SET FORTH BY THE BARNES COURT WERE FOLLOWED IN DETERMINING THE DEGREEOF:REPREHENSIBILITY OF EACH OF THE DEFENDANTS' CONDUCT. THIS COURT FINDS THAT THE HARM CAUSEDWAS PRIMARILY ECONOMIC AS OPPOSED TO PHYSICAL. THE EVIDENCE ESTABLISHED THAT THE ECONOMICHARM INFLICTED WASSIGNIFICANT; THAT THE DEFENDANTS BOTH PERSONALLY AND IN THEIR CORPORATECAPACITY ACTED WITH A RECKLESS DISREGARD FOR THE WELFARE OF THE PLAINTIFF; THAT THE PLAINTIFFWAS FINANCIALLY VULNERABLE; THAT THE CONDUCT THE DEFENDANTS ENGAGED IN BOTH PERSONALLYAND IN THEIR CORPORATE CAPACITY EVOLVED OVER A PERIOD OF TIME AND WAS COMPOSED OF REPEATEDACTIONS, AND FINALLY THAT THE HARM WAS THE RESULT OF INTENTIONAL MALICE AND DECEIT..
RATfOTHEPUNITIVEDAMAGES WEREAWARDEDAGAINST:MULTIPLEDEFENDANTSFOLLOWINGIURYDETERMINATIONS THAT EACH DEFENDANT ACTED WITH ACTUAL MALICE. THE REVIEW OF THE AWARDS FORPROPORTIONALITY AS TOBACH DEFENDANT ISAS FOLLOWS:REPUBLIC SERVICES: 6-1REPUBLIC SERVICES OF OHIO: LLC 3-1REPUBLIC SERVICES OF OHIO HAULING, LLC: 3-1RONALD KRALL- LESS THAN I-ilAMESBOWEN-LESSTHANI-I -
LARGE DtSPARITY BETWEEN PUNITIVE AND ACTUAL DAMAGES AWARDS IS ALLOWABLE BECAUSE A PUNITIVEDAMAGES A WARD IS MORE ABOUT A DEFENDANT'S BEHAVIOR THAN THE PLAINTIFF'S LOSS. WIGHTMAN V.CONSOLIDATED RAIL CORP., (1999) 86 OHIO ST.3D 431 "THE NUMBERS COMPOSING THE RATIO OF ACTUALDAMAGES TOPUNITIVE DAMAGES IS A DETERMINATION TO BE MADE BY THE TRIAL COURT IN THE FIRSTINSTANCE, SUBJECT TO APPELLATE REVIEW." BARNES AT 181. THIS COURT FINDS THAT IN LIGHT OF THE.
03/D2/2010Page 1 of2
APPX. 42
,L ^ . I.I'^'II,III,I^I^,1^^p1'll^^tl,Rl'I^I^II ^II'f
61950229
BEHAVIOR OF THE DEFENDANTS, THE RATIO IS NOT SO SIGNIFICANT AS TO OVERTURN THE FINDING OF THE
JURY. . . . . - ,
SANCTIONS FOR COMPARABLE MISCONDUCTTHE THIRD GUIDEPOST REQUIRES THE EVALUATION OF THE STATUTORY FINES AVAILABLE FOR SIMILARMALFEASANCE. THEBARNESCOURTSTATED: "HERETHETRIALCOURT,SUBJECTTOAPPELLATEREVIEW,MUST COMPARE OTHER SANCTIONS AVAILABLE UNDER OHIO LAW FOR THE WRONG DONE IN DETERMININGWHETHER THE PUNITIVE DAMAGE AWARD WAS EXCESSIVE." AT 182.
IN THE PRESENT MATfER THERE ARE NOT ANY CRIMINAL SANCTIONS FOR THE TYPE OF CONDUCT IN WHICHTHE DEFENDANTSENGAGEDi THE OHIO LEGISLATUREHAS,.THROUGHTHE REVISED CODE, AUTHORIZEDPUNITIVE DAMAGES. THE JURY HAS SPOKEN ON THIS ISSUE AND THE COURT DOES NOT FIND ANY BASIS FOROVERTURNINGTHE JURY'S DETERMINATION.
WHEREFORE, THIS COURT FINDS THAT PURSUANT TO THE ANALYSIS SET FORTH IN BARNES, THE PUNITIVEDAMAGE AWARDS RETURNED BY THE JURY DO NOT VIOLATE FEDERAL DUE PROCESS AS TO ANY OF THEDEFENDANi'SANDSUPPLEMENTS ITS JOURNAL ENTRY ACCORDINGLY.
IT IS SO ORDERED,
NOTICE VIA FACSIMILE.
RECEIVED FOR FILING
MAR 0 3 2010
GEP^A ^^.EEyV E ST,CLERK
9Y.(°PUTY
THE STATE OF OHtO 1, G ERALD E. FUERST, CLERK OFCoYafioDaCOUnty SS, THECOURTOFCOMMONPLEAS
WITHIN AND FOD SAID COUNTXHEHEBY CEHTIFYTiIAT THE ADOYE AND FOHF.G YMG IS THULY!^ '/`^M TNE--0JpCfL
O ON ILEfH1dY0F^i'E^t r 'r^u''{ppr ^ ^yF• SEA! OF S. ^^ f^OHL THIS
AY Qf^^.^0C. :n, p^.
^.if1' 9,^/^
^^
^A►Tw^; i ^+Tr !Cle
t4A
03l02/2010
rk
Page 2 of 2
APPX. 43
IH1^1^11^^1^IINI11kl1111111111111Na1f Ilill^53703099
RONALD LURIPlaindff
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
I Case No: CV-07-633043
REPUBLIC SERVICES INC ETALDefendant
Judge: BRIDGET M MCCAFFERTY
.iOURNAL ENTRY
P 1 RONALD LURI MOTION FOR PREIUDGMENT EVTEREST, FII,ED 7/22(08IS GRANTED. TIIE PARTIES STIPULATEDTO THE FACT TIiATPLAINTIFF MADE A GOODFATTH E,FFORT TO NEGOTIATEBEFORE TRIALANDDEFENDANTS'DIDNOTMAKEA GOODFAFSHEFFORTTONEGOTIATEBEFORETIt7AL: THEAGREEDUPONJURYIN'I'ERROGATORIES DID NOT SEPARATE PAST AND FUTURE DAMAGES. THE7URYAWARDEDCOMPENSATORYDAMAGES IN THEAMOUNI'OF$3.5MILLION. THEREFORE,PREJUDGMENTINTERESTISAWARDEDFROM8/17107THROUGH 718l08 AT THE STATUTORY RATE OF 8%.
P1 RONAI.D LURI PLAINTIFFS APPLICATION FOR ATTORNEY'S FEES AND MOTION TO TAX COSTS PURSUANT TORULE 54, F1I.ED7/22/08I5 GRANTED. THERE IS NODISAGREEMENT BIiIYTEEN THE PARTIES TIIATA LODESTARFIGURE OF $529,306:00APPLIES.
THIS COURT FINDS TIfATA MULTIPLIER OF 2.0IS APPROPRIATE IN TBIS CASE IN LIGHT OF THE FACTORS LISTEDIN DR1.5.AMTJLTIPLIER OF 2.0 IS APPROPRIATE BECAUSE OF THE EXTENSIVt TIMEAND LABOR REQUII2ED FORTHIS CASE. THE NOVELTY AND DIFIFTCULTY OF THE QUESTIONS INVOLYED: THE SICILLREQUISTTE TO PERFORMTHE LEGAL SERVICESPROPERLY Tfffi CASE RBQUBLED THEMAJORITY OF THE ATTORNEYS A.T1'BNITONDURING ITS PENDENCY, THEREBY PRECLUDING'iBE ATTORNEY'S FROMOTIIERR CASES. THEEXCEPTIONALJURY VERDICT OBTAINED BY THE ATTORNEY'S FOR THE PLAIDITIFF. LASTLY, THB EXPERIBNCB, REPUTATION,AND ABILITY OFTHE.PLAEMWS LAWYBRS. THEREFORE, PLAINlIFF IS AWARDED $I,058,612.00INATTORNEY'SFEES.
THE COURT FURTIIER FIIQDSTHAT PLAINIIFF IS ENTITLED TO LITIGATION EXPENSES AND COSTS PURSUANT TORULE 54 IN THE AMOUNT OF $37,838.78.
IT IS SO ORDERED.
NOTICB VIA FACSRIILE ANDE-MAE..
RECEIVPB OdR FILING
SEP: 2 5 2008
09/24/2008Page 1 of I
APPX. 44
53642573
RONALD LURIPlaintiff
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
I Case No: CV-07-633043
Judge: BRIDGET M MCCAFFERTY
REPUBLIC SERVICES INC. ET ALDefendant
JOURNAL ENTRY
HEARING HELD SEPTEMBER 19, 2008 ON P1 RONALDLURI'S APPLICAIION FOR ATFNYS FEES AND MOTION TOTAX COSTS PURSUANT TO RULE 54 ANDP1 RONALD LURI MOTION FOR PREJUDGMENT INTEREST. COURTORDERS A TRANSCRIPT OF SAID PROCEEDINGS AT STATE'S EXPENSE.
ON A PREVIOUS DATE, COURT RULED UPON DEFENDANTS MOTION FOR NEW TRIAL OR IN THE ALTERNATIVEFOR REMITPTI'UR. PLAINTIFF, THE PREVAILING PARTY, PURSUANT TO OHO RULE OF CIVIL PROCEDURE 52, ANDLOCAL RULE 19, SUBMITTED PROPOSED FINDINGS TO THE COURT. DEFENDANT(S) COUNSEL REQUESTED UNTILOCTOBER 3, 2006 TO SUBMIT PROPOSED FINDINGS, WITTIOUT OBJECTION. REQUEST GRANTED. UPON RECEIPT OFSAID FINDINGS, COURT SHALL INCORPORATE A SET OF FINDINGS INTO TBE RECORD AS SET FORTHIN THEABOVE REFERENCED PROCEDURAL RULES.
RECEIVED f OR FILING
SEP 22 2008
09119/2008Page 1 of I
APPX. 45
(nnilnigI^^imilluIIIIg IIIII53580249
RONALD LURIPiaintiff
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
i. Case No: CV-07-633043
Judge: BRIDGET M MCCAFFERTY
REPUBLIC SERVICES INC. ET ALDefendant
JOURNAL ENTRY
DEFENDANTS MOTION FOR NEW TRIAL OR IN THE ALTERNATIVE FOR REMITTITUR, FILED7f22/08, tS DENIED.
DEFENDANT(S) REPUBLIC SERVICES INC(DI), REPUBLIC SERVICES OF OIiIO HAULINC LLC(D2), REPUBLICSERVICES OF OHIO I LLC(D3), REPUBLIC SERVICES OF 0HI0(D4), REPUBLIC WASTE SHRVICES(D5), JIM BOWEN(D(5)AND RON YRACt:(07) MOTION FOtb JUDGMENT NOTWITHSTANDING THE VERDICT UNDER CIVIL RULE 50(B),FILED7/22/08IS DENIED.
NOTICE VIA FACSIMILE.
9;/ 7 -a?4a22 ^,ateJudge Sigaature `^
RECEIVED FOR FILlNG
SEP 18 ZWO
09/17/2008Page 1 of I
APPX. 46
RONALD.LURIPlaintiff
flIIIII IIIII^II^81IalIlIIIGIIi(B^IINIIII IIIII52384393
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
I Case No; CV-07-633043
iudge, BRIl)Gc M MCCAFFSR;^f
REPUBI,IC SERVICES INC. ET ALDefendant
JOURNAL ENTRY
81DISP.JURYTRIAL-FINAL
THE JURY IN'FHIS ACTION HAVING ON THE 3RD DAY OF JULY 2008, RENDERED A VERDICT IN FAVOR OFPLAINTIFF AND AGAINST ALL NAMED DEFENDANTS IN THE AMOUNT OF 3.5 MILLION DOLLARS INCOMPENSATORYDAMAGES.
THE JURY ALSO RENDERED A VERDICT IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANTS FOR PUNITIVEDAMAGES IN THE AMOUNT OF 43 MILLION AND ONE HUNDRED EIGHTTHOUSAND ANDFIVE HUNDRED ANDNINETY NiNE DOLLARS ( 43,108,599.00): TO BE APPORT[ONED AS FOLLOWS:
AGAINST DEFENDANT REPUBLIC SERVICES INC., AND IN FAVOR OF PLAINTIFF, IN THE AMOUNT OF TWENTYONE MILLION FIVE HUNDRED THOUSAND DOLLARS ( $2I,500,000.00);
IN T}IE AMOUNT OF TEN IvIILIdON SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($10,750,000.00) AGAINSTDEFENDANTREPUBLICSERVICESOFDHIOI, LLCANDINFAVOROFPLAINTIFF;
IN THE AMOUNTOF TEN MILLION SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS($10,750,000.00)AGAINSTDEFENDANTRBPUBLICSERVICESOFOHIOHAULING,LLCANDINFAVOROFPLAINTPF; _ - , . . . .
IN THE AMOUNT OF TWENTY FIVE THOUSAND AND TWO HUNDRED AND FIVE DOLLARS($25,205.00) AGAINST DEFENIIANT JAMES BOWEN AND IN FAVOR OF PLAINTIFF;
AND IN THE AMOUNT OF EIGHTY THREETHOUSAND THREE HUNDRED AND NTNETY FOUR DOLLARS ($83,394.00)FOR PLATNTIFF AND AGAINST DEFENDANT RONALDKRALL
.SUDGMENT IS HEREBYRENDERED IN FAVOR OFPLABVTTFF AND AGAINST DEFENDANTS AS REFERENCEDABOVE AT THE COST OF DEFENDANTS, FOR WHICH EXECUTION SHALL 1SSUE.
THElURYALSO FOUND'1'HAT ALL THE ABOVE REFERENCED DEFENDANTS ARE LIABLE FOR PAYMENT OFPLAINTIFF'S ATTORNEYS FEES. A7TORNEYS SHALL CONFERENCE CALL THE COURT WITH AN AGREED UPONHEARINGDATEANDBRIEFINGSCHEDULEFORSAIDHEARING.
IT IS SO ORDERED.FINAL.
COURTCOST ASSESSED TO THE DEFENDANT(S).
-gt dU! 06 2008f17/(YI/1IN10
APPX. 47
2315.21 Punitive or exemplary damages.
(A) As used In this section:
(1) "Tort action" means a civil action for damages for injury or loss to person or property."Tort action° includes a product liability claim for damages for injury or loss to person orproperty that is subject to sections 2307.71 to 2307.80 of the Revised Code, but does notInclude a civil action for damages for a breach of contract or another agreement betweenpersons. . . ^
(2) "Trier of fact" means the jury or, in a nonjury action, the court.
(3) "Home" has the same meaning as in section 3721.10 of the Revised Code.
(4) "Employer" Includes, but is not limited to, a parent, subsidlary, affiliate, division, ordepartment of the employer. If the employer is an individual, the individual shall beconsidered an employer under this section only if the subject of the tort action is relatedto the individual's capacity as an employer.
(5) "Sntall employer" means an employer who employs not more than one hundredpersons on a full-time permanent basis, or, if the employer is ctassified as being in themanufacturing sector by the North American industrial classification system, "smallemployer" means an employer who employs not more than five hundred persons on afull-time permanent basis.
(B)(1) In a tort action that is tried to a jury and in which a plaintiff makes a claim forcompensatory damages and a daim for punitive or exemplary damages, upon the motionof any party, the trial of the tort action shall be bifurcated as follows:
(a) The initial stage of the trial shall relate only to the presentation of evidence, and adetermination by the jury, with respect to whether the plaintiff is entitled to recovercompensatory damages for the injury or loss to person or property from the defendant.During this stage, no party to the tort action shall present, and the court shall not permita party to present, evidence that relates solely to the issue of whether the plaintiff isentitledto recover punitive or exemplary damages for the injury or loss to person orproperty from the defendant.
(b) If the jury determines In the initial stage of the trial that the plaintiff is entitled torecover compensatory damages for the injury or loss to person or property from thedefendant, evidence may be presented In the second stage of the trial, and adetermination by that jury shall be made, with respect to whether the plaintiffadditionally is entitled to recover punitive or exemplary damages for the injury or loss toperson or property from the defendant.
(2) In a tort action that is tried to a jury and in which a plaintiff makes a claim for bothcompensatory damages and. punitive or exemplary damages, the court shall instruct thejury to retum, arid the jury shall return, a general verdict and, if that verdict is in favor ofthe plaintiff, answers to an interrogatory that specifies the total compensatory damagesrecoverable by the plaintiff from each defendant..
(3) In a tort action that is. tried to a, court and in which a plaintiff makes a claim for bothcompensatory damages and punitive or exemplary damages, the court shall make its
APPX. 48
determination with respect to whether the plaintiff is entitled to recover compensatorydamages for the injury or loss to person or property from. the defendant and, if thatdetermination is in favor of the plaintiff, shall make findings of fact that specify the totalcompensatory damages recoverable by the plaintiff from the defendant.
(C) Subject to division (E) of this section,. punitive or exemplary damages are notrecoverable from a defendant in question in a tort action unless both of the followingapply:
(1) The actions or omissions of that defendant demonstrate malice or aggravated oregregious fraud, or that defendant as principal or master knowingly authorized,participated in, or ratified actions or omissions of an agent or servant that sodemonstrate.
(2) The trier of fact has retumed a verdict or has made a determination pursuant todivision (B)(2) or (3) of this section of the total compensatory damages recoverable bythe plaintiff from that defendant.
(D)(1) In a tort action,. the trier of fact shall determine the'liability of any defendant forpunitive or exemplary damages and the amount of those damages.
(2) Except as provided in division (D)(6) of this section, all of the following applyregarding any award of punitive or exemplary damages in a tort action:
(a) The court shall not enter judgment for punitive or exemplary damages in excess oftwo times the amount of the compensatory damages awarded to the plaintiff from thatdefendant, as determined pursuant to division (B)(2) or (3) of this section.
(b) If the defendant Is a small employer or individual, the court shall not enter judgmentfor punitive or exemplary damages in excess of the lesser of two times the amount of thecompensatory damages awarded to the plaintiff from the defendant or ten percent of theemployer's or Individual's net worth when the tort was committed up to a maximum ofthree.hundred fifty thousand dollars, as determined pursuant to division (B)(2) or (3) ofthis section.
(c) Any: attomeys fees awarded as a result of a claim for punitive or exemplary damagesshall not be considered for purposes of determining the cap on punitive damages.
(3) No award of prejudgment interest under division (C)(1) of section 1343.03 of theRevised Code shall include any prejudgment interest on punitive or exemplary damagesfound by the trier of fact.
(4) In a tort action, the burden of proof shall be upon a plaintiff in question, by clear andconvincing evidence, to establish that the, plaintiff is entitled to recover punitive orexemplary damages.
(5)(a) In any tort action, except as provided in division (D)(5)(b) or (6) of this section,punitive or exemplary damages shall not be awarded against a defendant if thatdefendant files with the court a certified judgment, judgment entries, or other evidenceshowing that punitive or exemplary damages have already been awarded and have beencollected, in any state or federal court, against that defendant based on the same act orcourse of conduct that is alleged to have caused the.injury or loss to person or propertyfor which the plaintiff seeks compensatory damages and that the aggregate of those
APPX. 49
previous punitive or exemplary damage awards exceeds the maximum amount ofpunitive or exemplary damages that may be awarded under division (D)(2) of this sectionagainst that defendant in the tort action.
(b) Notwithstanding division (D)(S)(a) of this section and except as provided in division(D)(6) of this section, punitive or exemplary damages may be awarded against adefendant in either of the following types of tort actions:
(i) In subsequent tort actions involving the same act or course of conduct for whichpunitive or exemplary damages have already been awarded, if the court determines byclear and convincing evidence that the plaintiff will offer new and substantial evidence ofpreviously undiscovered, additional behavior of a type described in division (C) of thissection on the part of that defendant, other than the injury or loss for which the plaintiffseeks compensatory damages. In that case, the court shall make speclfic findings of factin the7ecord to support its conclusion. The court shall reduce the amount of any punitiveor exemplary damages otherwise awardable pursuant to this section by the sum of thepunitive or exemplary damages awards previously rendered against that defendant in anystateor federal court. The court shall not inform the jury about the court's determinationand action under division (D)(5)(b)(i) of this section.
(ii) In subsequent tort actions Involving the same act or course of conduct for whichpunitive or exemplary damages have already been awarded, if the court determines byclear and convincing evidence that the total amount of prior punitive or exemplarydamages awards Was totally insufficient to punish that defendant's behavior of a typedescribed in division (C) of this section and to deter that defendant and othets fromsimilar behavior in the future. In that case, the court shall make specific findings of factin the record to support its conclusion. The court shall reduce the amount of any punitiveor exemplary damages otherwise awardable pursuant to this sectidn by the sum of thepunitive or exemplary damages awards previously rendered against that defendant In anystate or federal court. The court shall nofinform the jury about the court's determinationand adion under division (D)(5)(b)(ii) of this section.
(6) Division (D)(2) of this section does not apply to a tort action where the alleged injury,death, or loss to person or property resulted from the defendant acting with one or moreof the culpable mental states of purposely and knowingly as described in section 2901.22of the Revised Code and when the defendant has been convicted of or pleaded guilty to acriminal offense that is a felony, that had as an element of the offense one or more of theculpable mental states of purposely and knowingly as described In that section, and thatis the basis of the tort action.
.(E) This section does not apply to tort actions against the state in the court of ciaims,including, but not iimited to, tort actions against a state university or college that aresubject to division (B)(1) of section 3345.40 of the Revised Code, to tort actions againstpoliticat subdivisions of this state that are commenced under or are subject to Chapter2744. of the Revised Code, or to the extent that another section of the Revised Codeexpressly provides any of the following:
(1). Punitive or exemplary damages are recoverable from a defendant in question in a tortaction on a basis other than that the actions or omissions of that defendant demonstratemalice or aggravated or egregious fraud or on a basis other than that the defendant inquestion as principal or master knowingly authorized, participated in, or ratified actionsor omissions of an agent or servant that so demonstrate.
APPX. 50
(2) Punitive or exemplary damages are recoverable from a defendant in question in a tortaction irrespective of whether the plaintiff in question has adduced proof of actualdamages.
(3) The burden of proof upon a plaintiff in question to recover punitive or exemplarydamages from a defendant in question in a tort action is one other than clear andconvincing evidence.
(4) Punitive-or exemplary damages are not recoverable from a defendant in question in atort action.
(F) If the trier of fact is a Jury, the court shall not instruct the jury with respect to thelimits on punitive or exemplary damages pursuant to division (D) of this section, andneither counsel for any party or a witness shall inform the jury or potential jurors ofthose limits.
(G) When determining the amount of an award of punitive or exemplary damages againsteither a home or a residential facility licensed under section 5123.19 of the Revised Code,the trier of fact shall consider all of the following:
(1) The ability of the home or residential facility to pay the award-of punitive orexemplary damages based on the home's or7esidentiai facility's assets; income, and networth;
(2) Whether the amount of punitive or exemplary damages is sufficient to deter futuretortlous conduct; -
(3) The financial ability of the home or residential facility, both currently and in thefuture, to provide accommodations, personal care services, and skilled nursing care.
Effective Date: 11-07-2002; 04-07-2005
APPX. 51
4112.02 Unlawful discriminatory practices.
It shall be an unlawfut discciminatory practice:
(I) For any person to discrlminate in any manner against any other person because that personhas opposed any unlawful discriminatory practice deflned in this section or because that-personhas made a charge,-testified, assisted, or participated in any manner in any investigation,proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code..
APPX. 52