Wise v. Johnson Controls, Inc.
784 P.2d 86
Okla. Civ. App.
1989
Check Treatment

*1 sentence, discharge or judgment and trial, him, grant a new or

resentence modify judgment and sen-

correct or appear appropriate.” ap-An

tence relief under this statute is

plication for filing application a verified

commenced imposing of the' district court

with the clerk WISE, Appellant, K.

William CONTROLS, INC., Appellee.

JOHNSON Appeals of No. III.

Division

Sept. 1989.

Rehearing Denied Nov. *2 appealed

Plaintiff the reduction of the punitive damages. Employer filed a “Re- Error, sponse to Preliminary Petition Appeal” Statement and presenting Counter Poteau, McCroskey, appel- A. for Eddie only. two issues Both issues are directed lant. punitive damages. to the award of He Sanders, Jr., Poteau, Douglas ap- alleges W. for there was no bad faith cause of pellee. arising action out of the employer-employ- thus, relationship, “jury

ee verdict awarding punitive damages sup- is not OPINION MEMORANDUM ported by the evidence.” HANSEN, Judge: In overruling Employer’s its order originally brought this Plaintiff lav/suit motion puni for new trial and seeking damages jury, awarded the trial Act, Compensation under the Workers’ $8,500.00 attorney court awarded 5, O.S.1981 6. The returned a ver- Plaintiff. appeals Plaintiff also this award Controls, Inc., (Em- against dict Johnson claiming inadequate it face of the ployer) for actual The trial court contingency fee contract between Plaintiff granted money judgment based on the attorney. argument and his is with Employer verdict and ordered to reinstate out merit. The contingency of a Employer appealed. Employer, Plaintiff. arrangement fee is a matter between the however, did not reinstate Plaintiff at that client and attorney binding and is not supersedeas time but rather obtained a awarding appropriate on the court in bond, staying judgment. thus attorney Thompson fee. v. Andover Oil judg- affirmed the On Court Co., 691 P.2d 77 In addi Employer paid ment favor of Plaintiff. tion, Plaintiff no time records. judgment and reinstated Plaintiff. comply Neither require did he with the requested Employer pay Plaintiff him for Sports ments of Oliver’s Center v. Nation he had would have earned he Insurance, al Standard 615 P.2d 291 during stay period worked while the (Okla.1980). appeal. Employer case was on refused. Although Employer, in his present July Plaintiff filed the lawsuit in propriety raises the issue of the of an seeking punitive damages actual and fees, attorney award of any he did not Employer’s continued bad faith refusal preserve as an issue in his comply with the intent of the orders of appeal.” Accordingly, “counter we will not the trial court—that he be reinstated as of Employer’s challenge consider to the attor the date of the ney fee award. Insur Greene Circle September Trial was set for (Okla.1976). Company, ance 1, 1987, Employer, September offered to attorney partic confess for the actual fees is award of rejected ularly Plaintiff the offer because he within the sound discretion of the court, present rulings wanted to the issue of whose thereon will not be jury. showing returned a disturbed absent a of abuse of $85,- damages plus for the actual discretion. Burk v. State ex rel. Okla (Okla.1979). City, homa 598 P.2d 659 attorney trial court’s award or denial of a motion for trial filed new presumed fees is correct absence alleging the issue of contrary. a record to the Mitchell v. Kim should not have been submitted af brough, 491 P.2d 289 grant a trial The trial court did not new but attorney firm fees. the award reduced the rather primary issue of the amount of actual dam- We now address trial ages appeal, the correctness 1, 1986, provide jury’s effective November court’s treatment specifically not to denying the order $100,000.00. grant- Employer’s for new trial and motion portion ing a remittitur Employer argues *3 not limits to an amount provisions of 40 court relied on the O.S. damages awarded. to seq. et 1987 165.1 as basis §§ However, Legislature the enacted this the of reducing award to amount actual the the as amendment to 9 at same session damages Section 165.3A re- retaliatory discharge the amendment to the pay employee an quires employer an punitive damages up to permitting statutes termination, her at the wages, full his or on the and it became effective on regular designated payday. Section next same date. 165.3B states: statutory long standing A rule of employee employer pay If an fails an jurisdiction construction in this is that A wages under of subsection there statutory provisions, where are two section, employer shall be addi- such special clearly of which and includes tionally liqui- employee to the liable controversy prescribes the matter in in the of two damages dated amount something general different from the stat (2%) unpaid the percent' ute, special general the statute not the upon such failure shall day each which statute, Smittle, applies. City v. Tulsa day pay- upon the continue after $100,- (Okla.1985). Thus, P.2d 367 the equal or in amount required; ment is of the limitations is small- wages, to the whichever unpaid retaliatory discharge apply rather statute er; .... those in The trial than 23 O.S.1987 9.§ reasoning that Plaintiff Based on the erred the dam punitive court larger recovery entitled to a should not be ages under 165.3 to the of the amount actually work- employee than an who was actual ing the trial court reduced the paid, and not in its counter contends set for punitive damages to amount not court should have instructed statute, damages in the above liquidated dam- punitive that it could award proved ages Employer’s if conduct “amounted has parties stipulate this section no Both disregard of his reckless and wanton present action. We application to the However, rights.” transcript of the of the agree. action is continuation following trial reveals the statement retaliatory has discharge lawsuit which not Court: Thus, damages completely

been resolved. The Court has drawn instructions based provisions be controlled should upon received, dis- instructions and the therein. counsel, cussions with and has Counsel,_ under- those to It’s the statutes, standing of the discussions with originally enacted in 5 and Counsel, agree- that both counsel are in faith tort action for bad dis- create a instructions, have ment with these charge. Dynaspan, In Hicks Tulsa thereto, objections no and that there (Okla.App.1985), request- no be are other instructions to damages are re- punitive Court held that (emphasis supplied). ed. retaliatory discharge cases if coverable in proves objections pleads being the Plaintiff There by Employer, fall under 23 O.S.1981 9 we of the case instructions raised facts only defendant is for fundamental when a must examine them which allows negli- fraud, gross objection made to an oppression, error. Where no was guilty malice, not set out intent reckless and instruction at trial level it is gence, evil will review the rights. Af- this Court disregard of another’s wanton incorrectly decision, Legislature claim that the instruction was amended ter that fraud, Corp., sufficiency plaintiff’s evidence of Motors given. v. General Jordan Reading oppression. pro- malice or two legislative together, visions believe the error in find no fundamental intent have been to limit must giving the instruction discharge retaliatory cases to dam much of how $100,000 (85 6), or less O.S. but in no prov peculiarly within ages to award is event should exceed actu- It held be will not be ince al awarded unless the Trial Court grossly appears to be so excessive unless it record, determines, sufficiency on the or im passion, prejudice result or the plaintiff’s proof puni- of entitlement to Lennington, *4 proper sympathy. Jones v. ease, In the I find (Okla.App.1981). finding by a Trial no record of such any point evidence does by the clear mandate of 23 O.S. preju- passion, jury was the victim the Trial Court was to order arriving in at its improper sympathy dice a remittitur of insofar as damage exemplary award. awarded exceeded law, determined, a as matter must be passion result of clearly the have been respectfully part, I concur in therefore judge to reduce it. prejudice a trial part. dissent Pontiac, Sopkin v. Premier The trial court had law or fact on grounds the amount of a reduction in base jury. According-

damages awarded

ly, order case RE- is REVERSED the trial court

MANDED with directions to jury's based on to enter S.D.F., In the Matter D.D.F. respects the trial In all other verdict. Minor Children. court is AFFIRMED. FARMER, Appellant, Michael Dee REYNOLDS, J., concurs. BAILEY, C.J., separate dissents with Oklahoma, ex rel. DEPART STATE of opinion. SERVICES, and MENT HUMAN OF BAILEY, Judge: Chief S.D.F., Children, Ap D.D.F. and Minor opinion majority I concur with While pellees. attor- affirming the award of in this case I from that ney’s Appellant, dissent opinion the Trial part of the which reverses remittitur of

Court’s regard, that 23 O.S.1987 believe Appeals Supp. 9 and 85 O.S.1987 Division No. 3. Clearly on the pari materia. be read 24, 1989. hand, Oct. 6 limits awards of 85 O.S. $100,000 in damages to less than scope. cases within Twenty-three, oth- 9 of Title Section hand, specifically prohibits any

er damages in excess of Court, on the damages, unless the presence of and outside the

record prima facie determination

makes