Locigno v. 425 W. Bagley, Inc.

71 N.E.3d 644

2016 Ohio 5924

Natalie LOCIGNO, Plaintiff–Appellee

v.425 WEST BAGLEY, INC., et al., Defendants–Appellants.

No. 103379.

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

Sept. 22, 2016.

Stephen McGowan, Strongsville, OH, for appellant.

In Son J. Loving, Lewis A. Zipkin, Zipkin Whiting Co., L.P.A., David M. Smith, Mazanec Raskin, Ryder Co., L.P.A., James T. Schumacher, Cleveland, OH, for appellee.

Before: JONES, A.J., McCORMACK, J., and S. GALLAGHER, J.

LARRY A. JONES, SR., A.J.

{¶ 1} Defendants-appellants, 425 West Bagley Inc., and its owners, husband and wife, Paul and Vivian Zacharias, and their son, Paul Zacharias, Jr., appeal the trial court's denial of their post-trial motions. We affirm.

{¶ 2} Plaintiff-appellee Natalie Locigno worked at Zach's Steakhouse in Berea as a bartender and server from March 2004 until January 2005. Zach's was a "family" restaurant and bar owned by the Zachariases. According to Locigno, Paul Sr. sexually harassed her on an almost daily basis by asking her to kiss him, making sexual comments, and touching her breasts and buttocks. Locigno alleged that she reported Paul Sr.'s behavior to Vivian and Paul Jr., but they ignored her complaints.

{¶ 3} In 2006, Locigno filed suit against the Zachariases, alleging sexual harassment, sexual discrimination, retaliation, negligent retention, and intentional infliction of emotional distress. The matter proceeded to a jury trial.

{¶ 4} Locigno testified that when she arrived for her first day of work, Paul Sr. asked for a "hello kiss." She felt as though she had to give Paul Sr. a kiss during every shift and during some of these kisses he would even try to put his tongue in her mouth. His behavior was not limited to Locigno. Paul Sr. would tell the female waitstaff to "line up" "for your good morning kiss." Paul Sr. made numerous comments on Locigno's appearance and body and offered to buy her and the other female staff lingerie. Throughout her employment at the restaurant, Paul Sr. touched, grabbed, or swatted Locigno's buttocks and breasts and made comments of a sexual nature.

{¶ 5} Locigno testified that Paul Jr., who also worked at the restaurant, once told her that his penis was like a can of Red Bull and would often called her stupid. Paul Jr. kept pornography on his office computer and would offer to show it to Locigno and other employees. Paul Sr. kept adult magazines at the restaurant; one popular adult magazine was delivered directly to the restaurant. Vivian denied that the magazine was delivered to the restaurant, but Paul Jr. admitted that they received it on a monthly basis.

{¶ 6} Locigno reported the harassment by Paul Sr. to both Paul Jr. and Vivian, but according to Locigno, they did nothing to change the atmosphere at the restaurant. Vivian told Locigno she could get another job if she was not happy in her current position.

{¶ 7} Near the end of her employment with Zach's, Locigno made a tape recording of an encounter with Paul Sr. in his office. She told him that she did not feel comfortable with him touching her. Paul Sr. responded, "I do it because I know it makes you feel f* * *ed up and nervous." He then asked her to give him a hug.

{¶ 8} Tanya Roberts, who worked at Zach's around the same time as Locigno, testified that she felt obligated to kiss Paul Sr. and witnessed him kiss and touch other female servers, including Locigno. Roberts reported an incident of inappropriate touching to Vivian, but according to Roberts, Vivian did not believe her and told Roberts not to talk about it. Gina Gramuglia, who also worked at Zach's around the same time as Locigno, testified that she witnessed Paul Sr. kiss female servers and touch them on the buttocks, use "foul language," and "talk dirty" to female staff. Susan Scardino testified that she worked at Zach's and witnessed servers kissing Paul Sr. as they arrived for their shifts and saw him grab the buttocks of female staff as they walked by his regular booth. She also saw Paul Jr. watch porn in his office "at least once a week."

{¶ 9} Vivian testified that she was at the restaurant five to six days a week, working in the kitchen and always during the day. She denied she received complaints that Paul Sr. kissed or inappropriately touched female staff. She admitted that Locigno approached her shortly before she quit and she told Locigno that she could find another job if she was not happy working at Zach's.

{¶ 10} Paul Jr. testified that he worked everyday at Zach's from morning to night, either in the kitchen or in the office. He admitted to calling Locigno stupid. He admitted that Locigno complained to him about having to kiss Paul Sr. and testified that he sat his father down and had a talk with him about it.

{¶ 11} Paul Sr. testified that it was not a requirement for his female servers to kiss him, but that he could not remember any that had worked for him that he had not kissed. He admitted to offering to buy female employees clothing, lingerie, and jewelry. He admitted to offering to buy Locigno a bra "[i]f she wanted one" because "she needed a little sprucing up." He denied ever touching Locigno's breasts or buttocks, except maybe by accident.

{¶ 12} The jury returned a verdict in favor of Locigno. The jury awarded $3,400 in lost wages and $25,000 for pain and suffering on the sexual harassment claim against each of the Zachariases and $50,000 in punitive damages against Paul Sr. plus attorney fees in an amount to be determined by the court. After the jury verdict, the Zachariases moved for judgment notwithstanding the verdict ("JNOV"), or in the alternative, for a mistrial or a new trial. The trial court denied the motions. Locigno moved for attorney fees based on the award of punitive damages, and the trial court awarded her $99,370 in attorney fees.

{¶ 13} The Zachariases appealed and raise three assignments of error for our review. Further facts will be discussed under the appropriate assignments of error.

I. The trial court erred by denying the individual defendants motions for judgment notwithstanding the verdict and/or motions for a mistrial/new trial based on prejudicial counsel misconduct during the trial and closing argument.

II. The trial court committed plain error by erroneously changing the burden of proof on punitive damages and attorneys fees from clear and convincing to preponderance of the evidence on the interrogatories given to the jury prior to their deliberations.

III. The trial court erred by engaging in ex parte communications with the jury during their deliberations without notifying counsel where juror misconduct was reported to the judge; the judge should have subjected the jury to voir dire on the misconduct allegations.

I. Law and Analysis

A. JNOV and Motion for New Trial

{¶ 14} "A Civ.R. 50(B) motion for judgment notwithstanding the verdict tests the legal adequacy of the evidence * * * so it is based solely on the evidence produced at trial." (Citation omitted.) Jones v. MetroHealth Med. Ctr., 2016-Ohio-4858, 68 N.E.3d 281, ¶ 21. It is a question of law that does not require the reviewing court to weigh the evidence or test the credibility of witnesses. Di v. Cleveland Clinic Found., 2016-Ohio-686, 60 N.E.3d 582, ¶ 40, citing Ruta v. Breckenridge–Remy Co., 69 Ohio St.2d 66, 430 N.E.2d 935 (1982). A Civ.R. 59 motion for a new trial, however, is generally reviewed under an abuse of discretion standard. Shaw Steel, Inc. v. Ronfeldt Mfg., L.L.C., 8th Dist. Cuyahoga No. 102665, 2016-Ohio-1117, 2016 WL 1071455, ¶ 33.

{¶ 15} The Zachariases argue that the trial court erred in denying their new trial motion based on attorney misconduct and their JNOV motions based on insufficient evidence as it relates to Vivian and Paul Jr. Because they do not challenge the court's denial of Paul Sr.'s motion for JNOV, we will not consider it.

1. Motion for New Trial

{¶ 16} Civ.R. 59(A)(2) states that a new trial may be granted due to misconduct of the prevailing party. The Zachariases argue that opposing counsel improperly questioned Vivian regarding previous complaints of sexual harassment against Paul Sr. and those questions prejudiced the jury against them. During Vivian's cross-examination, Locigno attempted to introduce into evidence an uncertified copy of a complaint filed in federal court that listed Paul Sr. as the defendant. As soon as Locigno referenced the document, the court dismissed the jury and a lengthy discussion was had among the court and the parties. The court ruled that Locigno could use the document to refresh Vivian's memory, but could not use it as extrinsic evidence to show that she had knowledge of prior complaints of sexual harassment against Paul Sr.:

Court: Here's what I'm going to let you ask her. I'm going to let you ask her if she was aware of complaints by anyone as to this behavior.

Counsel for Locigno: Okay.

Court: And then I will let you refresh her recollection with this and see if that refreshes her recollection. And then, at that point, she's either going to say yes it does * * * or she says no and then you're done. And that's it.

{¶ 17} In their post-trial motions, the Zachariases challenge the following comments made during Vivian's cross-examination:

Counsel for Locigno: Handing you what has been marked as Plaintiff's Exhibit 8, please read to yourself the front, please. Please turn to page two and read paragraph six.

* * *

Counsel for Locigno: Were you aware of complaints by anyone about Paul Zacharias' behavior regarding being forced to kiss him prior to Natalie's complaint to you?

Vivian: No.

Counsel for Locigno: Now, please turn to page two and read to yourself paragraphs six, seven, and eight. Does that refresh your recollection about any prior complaints about Paul Zacharias asking his employees to kiss him?

Court: Sustained.

Counsel for Locigno: Does that refresh your recollection regarding your previous answer?

Court: Sustained.

Counsel for Locigno: Would you read the rest?

Court: That's not the question that I indicated you could

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