Krejci v. Halak , 34 Ohio App. 3d 1 ( 1986 )

I concur separately to make several points.

I find that the trial court's granting of a new trial is sustainable on one ground. Civ. R. 59(A)(5) empowers the trial court to grant a new trial if it determines that the amount of the recovery is too large when compared to the injury. This rule makes this decision a matter of discretion for the trial court.Rhode v. Farmer (1970), 23 Ohio St.2d 82, 52 O.O. 2d 376,262 N.E.2d 685. Although I disagree with the trial court's decision, I do not find it amounts to an abuse of discretion. A remittitur may have been in order.

Krejci's evidence, if believed, reveals an outrageous course of conduct against him. Krejci took an exam for sergeancy and had the second highest grade, which made him second in line for the promotion. The highest scorer was promoted, but when the next opening occurred for sergeant, Mayor Halak "terminated" the list to avoid promoting Krejci. Krejci then went to court and received a judgment ordering him to be promoted.

The city complied with the letter of the court's order; however, the defendants used a provision requiring a probationary period to later deny Krejci the promotion.

Additionally, the defendants dredged up Krejci's eleven-year-old employment application. They alleged he had given three distinct pieces of false information. He allegedly lied about his residency, his status as a high school graduate, and whether he had received any traffic violations. Eleven years after the fact, defendants suspended Krejci over the application.

The suspension was made without ever interviewing Krejci. Krejci had an explanation for each statement. However, more tellingly, he was able to prove that the hiring authority was aware of the basis of each charge prior to his being hired. The mayor at that time had listened to Krejci's explanation and then decided to hire him.

Krejci's evidence demonstrated that in all likelihood the defendants were aware of the prior decision of the hiring authority. It is clear that basic investigation, such as interviewing Krejci, would have revealed the earlier decision of the hiring authority.

The civil service commission reinstated Krejci after a hearing. Commission members testified that the existence of the prior decision was determinative.

The actions of the defendants were consistent with a pattern of using their offices to abuse an employee who had offended them. Krejci's evidence indicated the existence of a grudge on the part of Halak stemming from Krejci's performance of his duties as juvenile officer. Halak's children were chronically truant and Krejci became involved in their case as a juvenile officer.

The evidence of the defendants' misuse of their offices in order to subject an employee to a series of vengeful job-related censures gave the jury a sufficient basis to conclude their conduct was "``so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369,375, 6 OBR 421, 426, 453 N.E.2d 666, 671.

The trial court, in its discretion, has decided that the award is disproportionate to the damages. This decision will require a retrial.

At retrial, the plaintiff should be permitted to introduce evidence of the circumstances surrounding his demotion. The trial court erroneously determined that evidence of the defendants' actions relating to the demotion was inadmissible. This decision was premised on this court's decision that a writ of mandamus would not be issued to compel a hearing into the circumstances surrounding the demotion of a probationary officer.

This court's prior decision does not prevent the introduction of evidence relating to the demotion, which would tend to show that the demotion was calculated to injure the probationary officer. Evidence of this tenor is relevant and admissible in this case.