FIFTH THIRD BANK OF KENTUCKY, INC. AND FIFTH THIRD BANCORP v. KENNETH D. PARROT
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RENDERED: June 30, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: July 14, 2000; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001176-MR
FIFTH THIRD BANK OF KENTUCKY, INC.
AND FIFTH THIRD BANCORP
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN RYAN, JUDGE
ACTION NO. 95-CI-006745
KENNETH D. PARROT
AND:
APPELLEE
1999-CA-001246-MR
KENNETH D. PARROT
v.
CROSS-APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN RYAN, JUDGE
ACTION NO. 95-CI-006745
FIFTH THIRD BANK OF KENTUCKY, INC.
AND FIFTH THIRD BANCORP
OPINION
AFFIRMING ON APPEAL AND
AFFIRMING ON CROSS-APPEAL
** ** ** ** **
BEFORE:
APPELLANTS
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
CROSS-APPELLEES
MILLER, JUDGE:
Fifth Third Bank of Kentucky, Inc. (Fifth Third)
and Fifth Third Bancorp (Bancorp) bring this appeal from a
judgment of the Jefferson Circuit Court entered without jury on
April 21, 1999.
Kenneth D. Parrot files a cross-appeal.
We
affirm on appeal and on cross-appeal.
Bancorp is a multi-bank holding company located in
Ohio.
Fifth Third is a wholly owned subsidiary of Bancorp.
In
1993, Bancorp embarked upon a plan to merge Cumberland Federal
Bancorporation (Cumberland) of Kentucky into Fifth Third.
At the
time, Parrot, a ten-year employee of Cumberland, was serving as
senior vice-president and marketing director of Cumberland at a
salary of over $80,000.00 per year.
In the spring of 1994,
Parrot was advised that his job was to be abolished.
In May,
1994, he was offered a job as regional sales manager with Fifth
Third Securities, a wholly owned subsidiary of Fifth Third.
He
accepted the position although his income was reduced by half.
The job, however, did not work out and he resigned on February
24, 1995.
Parrot claimed severance benefits under an
“Affiliation Agreement” executed by Fifth Third and Cumberland on
January 10, 1994.
The agreement provided for severance benefits
to those employees who left Fifth Third's employment within six
months after the date of August 31, 1994.
Specifically, the
provision provided as follows:
Fifth Third shall use its best efforts but
shall not be under any obligation to continue
the employment at Fifth Third or at a Fifth
Third subsidiary or affiliate each of the
employees of Cumberland and Thrift
Subsidiary. Any Cumberland or Thrift
Subsidiary employee who continues his
employment with Fifth Third after the
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Effective Time shall receive the standard
package of employee benefits that are
provided holding company-wide . . . . Such
employees shall receive credit for their
period of service to Cumberland and/or Thrift
Subsidiary for purposes of determining
participation and vesting in all Fifth Third
employee plans (but not the Fifth Third
Bancorp Master Retirement Plan and Fifth
Third Bancorp Master Profit Sharing Plan),
but not for purposes of determining the
benefits accrued thereunder. In addition,
employees of Cumberland or Thrift Subsidiary
who continue as employees of Fifth Third or a
Fifth Third affiliate or subsidiary as at the
Effective Time shall be given credit for
years of service with Cumberland or Thrift
Subsidiary at the rate of twelve (12) days
for each credited year of service to be
applied towards their Fifth Third accumulated
sick day balance, not to exceed one hundred
thirty (130) days. Any employee whose
employment is terminated by Fifth Third other
than for cause or who voluntarily resigns
after being notified by Fifth Third that, as
a condition of employment, such employee must
work at a location more than 30 highway miles
from such employee's former location of
employment or that such employee's salary
will be decreased by 10% or more, in any case
only within six months after the Effective
Time, shall be entitled to severance pay
equal to, in the case of a salaried employee
other than an officer, one week's pay for
each year of service up to a maximum of
twelve (12) week's pay, in the case of an
officer, one week's pay for each year of
service up to a maximum of twenty four (24)
week's pay and, in the case of an hourly
employee, one week's pay for each year of
service up to a maximum of six (6) week's
pay, plus applicable COBRA benefits. Nothing
contained in this Paragraph VII.B.2 shall be
construed or interpreted to limit or modify
in any way Fifth Third's at will employment
policy. (Emphasis added.)
The effective time set forth in the foregoing provision was six
months after August 31, 1994.
within this time period.
Parrot's last employment was
Nevertheless, severance benefits were
denied.
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On December 4, 1995, Parrot filed suit against Bancorp
and Fifth Third alleging breach of contract as well as the tort
of fraud and outrageous conduct as a basis for recovering
damages.
On January 20, 1999, Parrot was granted summary
judgment on his contract claim.
On April 9, 1999, Bancorp and
Fifth Third were granted judgment dismissing Parrot's claim of
fraud and outrageous conduct.
This appeal and cross-appeal
ensued.
Bancorp and Fifth Third claim that Parrot was not
entitled to summary judgment on his contract claim and that, in
fact, they were entitled to summary judgment.
They further claim
that if Parrot was entitled to judgment the computation of prejudgment and post-judgment interest was incorrect.
On cross-appeal, Parrot claims that the circuit court
erred in dismissing his tort claim of fraud and outrageous
conduct.
We first address the issues presented on the direct
appeal.
As we view this matter, it is a question of law
involving interpretation of the severance provision in the
Affiliation Agreement entered into between Fifth Third and
Cumberland.
The matter presents no factual issue, thus it is one
of law for the court.
The construction as well as the meaning
and legal affect of written instruments are matters of law for
the court.
See Morganfield National Bank v. Damien Elder & Sons,
Ky., 836 S.W.2d 893 (1992).
Our review is de novo.
See
Louisville Edible Oil Products, Inc. v. Revenue Cabinet,
Commonwealth of Kentucky, Ky. App., 957 S.W.2d 272 (1997).
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The plain wording of the severance provision mandates
that Parrot receive severance pay.
provided therein.
He met the three requirements
Parrot voluntarily resigned after his pay had
been lowered by Fifth Third's subsidiary to a level demonstrating
more than a ten percent reduction in salary.
His resignation
came within six months after the effective date of August 31,
1994.
We, therefore, concur with the circuit court's
interpretation of severance benefit provision.
As a matter of
law, Parrot was entitled to severance benefits.
Next, Fifth Third and Bancorp complain about prejudgment and post-judgment interest.
The trial judge determined
that Parrot was entitled to pre-judgment interest.
determination was appropriate.
We think this
See Nucorp. v. General Electric
Company, Ky., 812 S.W.2d 136 (1991).
Parrot terminated his employment on February 24, 1995.
The trial judge determined that pre-judgment interest would begin
running four days later, or on February 28, 1995.
We agree with
this determination.
As to post-judgment interest, the trial judge commenced
accrual as of January 20, 1999, the date that Parrot was granted
summary judgment.
Appellant argues that the post-judgment
interest should not have began running until the date of the
final appealable judgment or April 21, 1999.
We will not
consider any error assigned to this disparity under the rule of
de minimis non curat lex.
See Bryan v. Security Trust Co., 296
Ky. 95, 176 S.W.2d 104 (1943).
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We now turn to Parrot's cross-appeal claiming he was
entitled to have his claim of fraud and outrageous conduct
submitted to the jury.
contention.
We perceive no merit whatsoever in this
The record is void of any evidence supporting action
on behalf of either Fifth Third or Bancorp that could be
characterized as outrageous or extreme.
See Humana of Kentucky,
Inc. v. Seitz, Ky, 796 S.W.2d 1 (1990).
In fact, we think there
was a just basis for dispute and that the conduct of Fifth Third
and Bancorp cannot be classified other than mere
inappropriateness.
Cf. Wathen v. General Electric Co., 115 F.3d
400 (6th Cir. 1997) (correctly addressing Kentucky law).
For
these reasons, we think failure to submit the tort claims to the
jury was not error.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed on appeal and cross-appeal.
ALL CONCUR.
BRIEFS FOR APPELLANTS/CROSSAPPELLEES:
BRIEFS FOR APPELLEE/CROSSAPPELLANT:
Kenneth S. Handmaker
Louisville, Kentucky
Kathryn A. Quesenberry
Louisville, Kentucky
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