Foster v. Bittersweet Experience, Inc.

Foster v. Bittersweet Experience, Inc.  (2000-532); 173 Vt. 617; 796 A.2d 483

[Filed 25-Feb-2002]

[Motion for Reargument Denied 29-Mar-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-532

                            SEPTEMBER TERM, 2001


  Robert and Roberta Foster            }	APPEALED FROM:
                                       }
                                       }
       v.                              }	Rutland Superior Court
                                       }	
  Bittersweet Experience, Inc. and     }
  Jeff Gehris                          }	DOCKET NO. S0515-97RcC

                                                Trial Judge: Richard W. Norton

       In the above-entitled cause, the Clerk will enter:

       Following a jury verdict in favor of plaintiffs Robert and Roberta
  Foster, defendant Bittersweet Experience, Inc. appeals the verdict and the
  Rutland Superior Court's denial of its motion for judgment notwithstanding
  the verdict, or in the alternative, for a new trial.  Defendant raises four
  arguments on appeal: (1) the trial court erred in its charge to the jury
  regarding the mitigation of damages, whether plaintiff Robert Foster was
  discharged, and whether such discharge was a result of his refusal to take
  a polygraph examination or some other intervening cause; (2) the special
  verdict forms were confusing and contrary to 21 V.S.A. § 494; (3) the
  verdict, with respect to money damages, was not based on sufficient
  evidence; and (4) the court erred in not granting its motion for judgment
  notwithstanding the verdict.  We affirm.  

       The following facts are those adduced at trial, taken in the light
  most favorable to the plaintiff.  See Canton v. Graniteville Fire Dist. No.
  4, 171 Vt. 551, 551, 762 A.2d 808, 809 (2000) (mem.) (jury verdict
  sustainable if, looking at the evidence in the light most favorable to
  verdict winner and excluding any modifying evidence, there is evidence
  fairly and reasonably tending to support it.).  Defendant Bittersweet
  Experience, Inc., the owner of "The Nightspot," a dance club in Killington,
  Vermont, hired plaintiff Robert Foster as a bouncer, doorman and host in
  1991.   Plaintiff worked the door at the club, collecting fees for
  entrance, screening customers for "seasons passes" to the club, and
  breaking up fights on the floor.   

       In November 1996, Jeffrey Gehris, the president and owner of
  Bittersweet Experience, Inc., met with plaintiff to confront him regarding
  rumors from fellow employees that plaintiff was stealing money from
  defendant's front door fees.  When plaintiff denied that he was stealing,
  Mr. Gehris requested that plaintiff consider taking a polygraph test to
  "clear his name."  Originally, plaintiff agreed to take a polygraph, but
  after speaking with an attorney, contacted Mr. Gehris to tell him that he
  had decided against it. 

   

       Following plaintiff's refusal to take the polygraph, the club manager
  reassigned plaintiff from his post as head doorman to work "on the floor." 
  Perceiving this action to be a demotion, plaintiff became upset, broke
  several glasses, and confronted the club manager.  The manager refused to
  speak with him, explaining that plaintiff was drunk and upset and that he
  should speak with Mr. Gehris.  The following day, Mr. Gehris contacted
  plaintiff at home.  Again, he explained that plaintiff could repair the
  situation by taking a polygraph, but that in the meantime, he suggested
  that plaintiff not come to work that evening. Plaintiff stayed home that
  Saturday evening, as Mr. Gehris requested, and when he reported to work on
  Sunday evening, he was told by the manager that he was "off the schedule"
  until plaintiff and Mr. Gehris had resolved the situation.  Plaintiff
  called Mr. Gehris following his conversation with the manager.  Mr. Gehris
  explained that plaintiff was off the schedule and again reiterated that he
  would like plaintiff to take a polygraph examination and that he would be
  willing to pay for it. 

       Plaintiff filed an action against defendant alleging, inter alia, that
  he was unlawfully discharged as a result of his refusal to take a polygraph
  examination, in violation of the Vermont Polygraph Protection Act, 21
  V.S.A. §§ 494 - 494(e).  The case was tried by a jury, and the jury found
  in favor of plaintiff, awarding him $10,452.00 in economic damages. 
  Defendant filed a motion for judgment notwithstanding the verdict or in the
  alternative for a new trial, and on November 6, 2000, the motion was
  denied. 

       We will not overturn a trial court's conclusions if they are
  reasonably supported by the findings, nor will we set aside its findings
  unless they are clearly erroneous.  Agency of Natural Res. v. Glens Falls
  Ins. Co., 169 Vt. 426, 432, 736 A.2d 768, 772 (1999).  We will review the
  jury's findings "in the light most favorable to the judgment, disregarding
  modifying evidence," and will disturb the findings only where there is no
  credible evidence to support them, not merely where they are contradicted
  by substantial evidence.  Id.     

       On appeal, defendant first argues that the trial court erroneously
  instructed the jury on plaintiff's duty to mitigate damages, failed to
  instruct the jury on whether an intervening cause might have accounted for
  plaintiff's dismissal, and improperly instructed the jury on plaintiff's
  discharge.  Defendant failed to preserve each of these objections to the
  jury instructions during trial.  

        
       A party claiming error on an instruction to the jury may do so only
  where they have distinctly stated the objection, and the grounds for that
  objection before the jury retires with the instructions to deliberate the
  case.  V.R.C.P. 51(b).  Defendant's counsel did make an objection to the
  court's failure to include a mitigation instruction explaining that the
  jury could deduct not only what plaintiff made during his period of lost
  wages, but what he could have made.  The court reinstructed the jury on the
  issue of mitigation, subsequent to that objection, and defendant's counsel
  approached the bench again.  However, counsel failed to renew the
  objection.  

  

  The bench conference amounted to a discussion about the charge without
  defense counsel distinctly objecting to the court's new instruction; thus,
  he waived this issue for appeal.  See id.  

       Defendant also claims that the court's failure to instruct the jury on
  intervening cause was error.  Again, defendant has failed to preserve this
  objection.  While defendant's counsel raised his concerns about the lack of
  an instruction on intervening cause at the charge conference, he failed to
  renew this objection after the charge was read to the jury.  V.R.C.P.
  51(b); See Wood v. Wood, 166 Vt. 608, 693 A.2d 673, 674 (1997)(mem.)
  (objection following jury instructions necessary to preserve issue for
  appeal); See Bacon v. Lascelles, 165 Vt. 214, 222, 678 A.2d 902, 907 (1996)
  (same).  Finally, defendant claims the court failed to instruct the jury on
  the issue of discharge.  Defendant never raised this objection to the jury
  instructions below, and accordingly, we will not consider it here.  See
  V.R.C.P. 51(b) (a party must distinctly state its objection to the
  instructions, before the jury retires to deliberate, or it waives its right
  to claim error on appeal.)

       Defendant next argues that the trial court erred in not presenting a
  separate interrogatory as to whether plaintiff had in fact been discharged. 
  Defendant contends, therefore, that the second interrogatory which read:
  "[w]as the plaintiff's refusal to take a polygraph test a motivating factor
  in the defendant's decision not to place plaintiff on the work schedule,
  thus discharging him," was confusing to the jury.  Defendant asserts that
  the question of whether plaintiff was discharged is an element of 21 V.S.A.
  § 494(d) that must be presented to the jury as the sole arbiter of the
  facts.

       There is no merit to defendant's objection.  As an element of 21
  V.S.A. § 494(d), plaintiff must established that he was "discharged,
  disciplined or discriminated against."  In this case, the evidence was
  uncontroverted that plaintiff was taken "off the schedule" and never put
  back on it.  Mr. Gehris testified that plaintiff was taken off the schedule
  and that he told his manager, "I said these are the conditions and he's -
  he's out of here until he meets - until he comes in and can apologize to
  everybody."  Moreover, the second special interrogatory placed directly
  before the jury the central issue of the case: whether plaintiff's refusal
  to take a polygraph examination was a motivating factor in defendant's
  decision not to place plaintiff on the work schedule.  Had the jury
  believed defendant's theory of the case, the interrogatory could only have
  been answered in the negative.  Once the jury determined that plaintiff's
  refusal to take a polygraph was a motivating factor in defendant's decision
  not to place plaintiff on the work schedule, the issue became one of
  damages in the amount of lost wages.  Whether the wages were lost as a
  result of being taken "off the schedule" or being "discharged," defendant
  can make no showing of prejudice since the evidence amply supports the
  jury's finding that defendant's decision not to pay plaintiff was motivated
  by plaintiff's refusal to take a polygraph.   
        
       Next, defendant claims that its motion for judgment as a matter of
  law, pursuant to V.R.C.P. 50, was improperly dismissed on the grounds that
  defendant failed to renew the motion at the close of evidence as required
  by Rule 50(b). See V.R.C.P. 50(b) ("Renewal of the motion is necessary to
  appeal from a denial of or a failure to grant a motion for judgment as a
  matter of law.").  Defendant argues that it properly raised the Rule 50
  motion at the close of plaintiff's

  

  evidence, that the trial court recognized the motion and deferred a ruling
  until the close of defendant's case and accordingly, that defendant was not
  required to raise the motion again after a mere "300 seconds" of testimony.  

       We construe Rule 50 strictly.  Ulm v. Ford Motor Company, 170 Vt. 281,
  750 A.2d 981 (2000) ("[E]ven where a motion for directed verdict was made
  at the end of plaintiff's case, if not renewed at the close of all evidence
  as required by V.R.C.P. 50(b), the issues are waived.") (internal
  quotations omitted).  Though recently, in Cooper v. Cooper, __ Vt. __, 783 A.2d 430 (2001), we held that while Rule 50 is to be strictly construed,
  "we should not lose sight of the purpose of a Rule 50 motion, that is, to
  give the nonmoving party an opportunity to cure the defects in proof that
  might otherwise preclude the case from going to the jury." ___ Vt. at __,
  783 A.2d  at 438-39 (citing Maynard v. Travelers Ins. Co., 149 Vt. 158, 162,
  540 A.2d 1032, 1034 (1987)).  The best method to insure that the purposes
  of Rule 50 are met, and that therefore, the nonmoving party is given
  adequate warning of the defects in its case, is strict enforcement of the
  renewal requirement, Maynard, 149 Vt. at 162, 540 A.2d  at 1034,
  particularly where, as here, the nonmoving party has put on additional
  evidence.  Moreover, defendant never challenged the sufficiency of the
  evidence on economic damages, even when he was setting forth Rule 50
  motions at the close of his case, prior to plaintiff's rebuttal.  Under the
  circumstances, unlike those in Cooper, we cannot find that the actions and
  efforts of defendant were sufficient to overcome strict enforcement of the
  renewal requirements established by Maynard.  See id.

       Finally, defendant argues that this Court should order a new trial
  because the jury's verdict was excessive and had no reasonable basis.  The
  trial court considered defendant's motion for a new trial pursuant to Rule
  59(a), and determined that the jury's award in this case was not excessive. 
  We will affirm the trial court determination so long as there has been no
  abuse of discretion.  Longwood v. Lord, 163 Vt. 210, 216, 657 A.2d 555, 559
  (1995).   

        
       The jury heard substantial evidence of damages, which in this case
  consisted exclusively of lost wages.(FN1)  Plaintiff reported an income of
  $13,042.00 in his 1996 tax returns and $17,330.00 in his 1997 tax returns.
  The jury heard evidence that plaintiff had worked approximately four nights
  a week at $100 per night, not including bonuses, and that the Nightspot had
  increased wages to $125 a night the season that plaintiff was discharged. 
  Moreover, the six months lost wages that the jury was considering fell in
  the "ski season," when plaintiff worked one more night a week than the rest
  of the year, and received higher bonuses on average.  The jury's finding of

  

  $15,400, mitigated by wages actually earned during those six months, for a
  final verdict of $10,452 is amply supported by the evidence; thus, the
  trial court properly denied defendant's motion for a new trial.

       Affirmed.    

       BY THE COURT:

  _______________________________________
  Jeffrey L. Amestoy, Chief Justice

  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  James L. Morse, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Marilyn S. Skoglund, Associate Justice

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                                  Footnotes


  FN1.  Defendant argued below that the Polygraph Protection Act provides no
  private remedy to plaintiff. We do not address this issue as it was not
  properly preserved for appellate review.  We note that under Murray v. St.
  Michael's College, 164 Vt. 205, 667 A.2d 294 (1995), we recognized a
  private right of action for money damages can be appropriate where
  employers have discriminated against employees, violating public policy,
  and thereby creating both a public and a private wrong, "each of which is
  entitled to vindication."  Id. at 210, 667 A.2d  at 298.