Dooms v. First Home Savings Bank

376 S.W.3d 666, 33 I.E.R. Cas. (BNA) 1175, 2012 WL 676385, 2012 Mo. App. LEXIS 265
CourtMissouri Court of Appeals
DecidedMarch 1, 2012
DocketNo. SD 31282
StatusPublished
Cited by2 cases

This text of 376 S.W.3d 666 (Dooms v. First Home Savings Bank) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dooms v. First Home Savings Bank, 376 S.W.3d 666, 33 I.E.R. Cas. (BNA) 1175, 2012 WL 676385, 2012 Mo. App. LEXIS 265 (Mo. Ct. App. 2012).

Opinion

DON E. BURRELL, Presiding Judge.

Vicky J. Dooms (“Plaintiff’) sued her former employer, First Home Savings Bank (“Bank”), and its parent company, First Bancshares, Inc. (collectively, “Defendants”), for damages based on a claim that Defendants wrongfully discharged Plaintiff from her employment in violation of public policy. The case was tried to a jury, which returned verdicts awarding Plaintiff $182,000 in compensatory damages and an additional $235,000 in punitive damages. The trial court entered judgment consistent with the jury’s verdicts.

Defendants now appeal that judgment in three points relied on that claim the trial court erred in: 1) submitting punitive damages to the jury because there was no clear and convincing evidence of evil motive or reckless indifference on the part of Defendants; 2) denying Defendants’ motion for remittitur “because the $235,000 [punitive damages] award violates due process in that there was no evidence of reprehensibility”; and 3) not granting a motion for a new trial on the issue of punitive damages because the jury based its award on Defendants’ gross assets instead of net worth.

Finding no merit in any of these claims, we affirm the judgment of the trial court.

Applicable Law & Principles of Review

A public-policy exception to the employment-at-will doctrine provides that an employer may be liable for damages if the employer terminates an at-will employee “(1) for refusing to violate the law or any well-established and clear mandate of public policy as expressed in the constitution, statutes, regulations promulgated pursuant to statute, or rules created by a governmental body or (2) for reporting wrongdoing or violations of law to superiors or public authorities.” Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo. banc 2010).1 The employee’s “whistle blowing” need not be the exclusive cause of termination, but only a contributing factor. Id. at 94-95. In a whistle-blpwing case, “[w]hether there is sufficient evidence to support an award of punitive damages is a question of law.” Drury v. Missouri Youth Soccer Ass’n, Inc., 259 S.W.3d 558, 573 (Mo.App. E.D.2008).

When reviewing whether a plaintiff has made a submissible case for punitive damages, we look at the evidence in the light most favorable to submission, while disregarding all evidence and inferences which are adverse thereto. Hoyt v. GE Capital Mortg. Services, Inc., 193 S.W.3d 315, 322 (Mo.App.E.D.2006). “A [670]*670submissible case is made if the evidence and the inferences drawn therefrom are sufficient to permit a reasonable juror to conclude that the plaintiff established with convincing clarity — that is, that it was highly probable — that the defendant’s conduct was outrageous because of evil motive or reckless indifference.” Brady v. Curators of University of Missouri, 213 S.W.3d 101, 109 (Mo.App. E.D.2006).

Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 849 (Mo.App. E.D.2007).

“The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Whether a punitive damages award comports with constitutional due process requirements is also reviewed de novo. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). “The rule has long been established that to preserve constitutional questions for review on appeal, the constitutional issue must be raised in the trial court at the earliest opportunity, consistent with good pleading and orderly procedure.” Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 701 (Mo. banc 2008).

“A party’s failure to object at trial to testimony, evidence or argument preserves nothing for review on appeal.” Collins v. Hertenstein, 90 S.W.3d 87, 100 (Mo.App. W.D.2002). “If reviewed at all, unpreserved error is reviewed only for plain error.” Ledure v. BNSF Ry. Co., 351 S.W.3d 13, 20 (Mo.App. S.D.2011).

Facts and Procedural Background

“We view all the evidence in the light most favorable to the plaintiff, giving him or her the benefit of all reasonable inferences, and disregarding the defendant’s evidence except to the extent that it aids the plaintiffs case.” Dunn v. Enterprise Rent-A-Car Co., 170 S.W.3d 1, 3 (Mo.App. E.D.2005). Our following summary of the relevant evidence is presented in accordance with this standard.

Plaintiff worked at Bank’s Mountain Grove location from 1987 until April 10, 2007. After her initial employment as a receptionist, Plaintiff was promoted to facilities manager in 2000 or 2001. She also became the “security officer” at the Mountain Grove location in approximately 2003, and additional duties relating to foreclosed properties were assigned to her in 2003 or 2004.

Sometime in 2005, Plaintiff told Susan Uchtman, Bank’s chief financial officer, that Bank’s president, Charles Schumacher, had authorized a loan to his brother in Nebraska and that a lawsuit regarding that loan had been filed. Uchtman testified that the loan violated certain federal banking regulations. In summer 2005, after the federal Office of Thrift Supervision (“OTS”) had summoned Bank’s board of directors to a meeting in Dallas, Texas, Plaintiff observed Schumacher putting many documents in the shredding bin. Plaintiff reported what she saw to Ucht-man. Uchtman and Colleen Stofer, Bank’s operations officer, opened the shredding bin and discovered that it contained loan documents. Uchtman and Stofer recalled that the documents included materials that dealt with a loan to one of Schumacher’s family members. A state regulatory examination of Bank was scheduled to take place “within a month” of that event.

Schumacher told Plaintiff to take specific property off the foreclosed list because he had told a Bank board member that it had been sold. Plaintiff took it off the foreclosed list for one month and then put it back on. Plaintiff reported her concerns to John Moody, a member of Bank’s board [671]*671of directors, who also happened to be a judge. Moody came to Bank and met with Uchtman, Stofer, and Plaintiff. Schu-macher left his employment with Bank within one-to-two weeks of that meeting.

Jim Duncan was hired as Bank’s new president at the end of 2005. Six employees resigned in February 2006, after announcing that they were resigning from Bank so that they could form a branch for another bank. The departing employees were observed taking bank information with them. Although Plaintiff reported this alleged behavior to Duncan, she believed that he did not take any action on it.

Plaintiff also became concerned when Duncan began making loans outside Bank’s geographic area to his associates in Poplar Bluff.

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376 S.W.3d 666, 33 I.E.R. Cas. (BNA) 1175, 2012 WL 676385, 2012 Mo. App. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dooms-v-first-home-savings-bank-moctapp-2012.