Carter v. R&B Pizza Co., Inc.

[Cite as Carter v. R&B Pizza Co., Inc., 2010-Ohio-5937.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
BENITA CARTER, )
)
PLAINTIFF-APPELLANT, )
)
V. ) CASE NO. 09 JE 34
)
R&B PIZZA CO., INC., ET AL., ) OPINION
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Jefferson County, Ohio
Case No. 04CV239
JUDGMENT: Reversed. Judgment for Plaintiff-
Appellant.
APPEARANCES:
For Plaintiff-Appellant Attorney Jack N. Turoff
20320 Farnsleigh Road
Shaker Heights, Ohio 44122
For Defendant-Appellee Richard Cordray
Ohio Attorney General
Eric Tarbox
Assistant Attorney General
150 East Gay Street, 22nd Flr.
Columbus, Ohio 43215-3130
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: December 6, 2010
[Cite as Carter v. R&B Pizza Co., Inc., 2010-Ohio-5937.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Benita Carter, appeals from Jefferson County
Common Pleas Court judgments denying her motion for directed verdict and denying
her motions for judgment notwithstanding the verdict or for a new trial. A jury verdict
was entered in favor of defendant-appellee, the Administrator of the Bureau of
Workers’ Compensation, finding that appellant was not entitled to workers’
compensation benefits.
{¶2} This is the second time this case has been before this court. In Carter
v. R&B Pizza Co., Inc., 7th Dist. No. 06-JE-5, 2008-Ohio-1530, at ¶`3-4, we set out
the following pertinent facts:
{¶3} “Benita Carter is said to have run R & B Pizza Company, Inc., dba
Pizza Express, a business located next to her house in Cadiz, Ohio. She was the
vice president, treasurer and secretary, and her husband was the sole stockholder
and president. (Tr. 156-157). Her husband also owned Wise Guys Pizza, Inc., dba
Speedies Pizza, a business he operated in Midland, Pennsylvania.
{¶4} “In September 2001, Ms. Carter was driving on Route 22 in Jefferson
County when a drunk driver entered oncoming traffic and crashed into her vehicle.
She filed for Ohio workers' compensation benefits claiming that she had been
delivering pizza supplies from the Pennsylvania pizza store to R & B Pizza in Ohio.
When her application was denied and the Industrial Commission refused her appeal,
she filed a complaint and notice of appeal in the trial court.”
{¶5} The case went to trial where the jury returned a verdict in favor of
appellee. The trial court granted appellant’s motion for a new trial finding that the
judgment was not supported by the weight of the evidence because appellant was
clearly an employee acting within the scope of her employment when the accident
occurred. On appeal, we found that the trial court’s decision to grant a new trial was
correct, but for reasons other than those put forth by the trial court. We found that
the jury was erroneously charged on the definition of “employee,” and therefore, the
jury’s verdict was unreliable. Id. at ¶47.
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{¶6} Consequently, this case proceeded to a new trial on June 30, 2009.
This time the parties stipulated that appellant was an employee of R&B. Thus, the
only issue for the jury was whether appellant was acting in the scope of her
employment when the accident occurred. At the close of evidence, appellant moved
for a directed verdict. The trial court overruled the motion. Subsequently, the jury
returned a verdict in favor of appellee finding that appellant is not entitled to
participate in the Ohio Workers’ Compensation Fund.
{¶7} Appellant subsequently filed a motion for judgment notwithstanding the
verdict (JNOV) or, in the alternative, motion for a new trial. The trial court denied
appellant’s motions.
{¶8} Appellant filed a timely notice of appeal on September 17, 2009.
{¶9} Appellant raises five assignments of error. Her first and fifth
assignments of error are related and therefore, we will address them together. They
state, respectively:
{¶10} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO FIND THAT BENITA CARTER WAS ACTING WITHIN THE SCOPE OF
HER EMPLOYMENT AS A MATTER OF LAW.”
{¶11} “THE TRIAL COURT’S REFUSAL TO GRANT APPELLANT’S MOTION
FOR J.N.O.V. OR NEW TRIAL RESULTED IN A GROSS MISCARRIAGE OF
JUSTICE BASED ON THE FACTS OF THIS CASE.”
{¶12} Appellant argues that, in ruling on her motions for directed verdict and
JNOV, the trial court failed to consider the liberal construction of workers’
compensation law in favor of finding coverage for the employee. Appellant asserts
that there was no evidence to contradict that she was acting within the scope of her
employment at the time of the accident. Given the lack of contradictory evidence and
the liberal construction of workers’ compensation law, appellant argues the court
should have granted her motion for directed verdict. She contends that appellee’s
arguments in rebuttal were focused on weight of the evidence and witness credibility.
Instead, appellant argues that the appropriate test was one of sufficiency.
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{¶13} A motion for directed verdict tests the sufficiency of the evidence at trial,
not the weight of such evidence or the credibility of witnesses. Northeast Ohio Elite
Gymnastics Training Ctr., Inc. v. Osborne, 183 Ohio App.3d 104, 2009-Ohio-2612, at
¶6, citing Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court shall
grant a motion for a directed verdict when, “after construing the evidence most
strongly in favor of the party against whom the motion is directed, [it] finds that upon
any determinative issue reasonable minds could come to but one conclusion upon
the evidence submitted and that conclusion is adverse to such party.” Civ.R.
50(A)(4).
{¶14} When ruling on a motion for JNOV, the trial court applies the same test
applied to a motion for a directed verdict. Boardman Tp. Park Dist. v. Boardman
Supply Co. (Jan. 23, 2001), 7th Dist. No. 99-CA-297. In ruling on a JNOV motion,
courts do not consider the weight of the evidence or witness credibility, but simply
consider whether sufficient evidence exists to support the verdict. Wells Fargo
Financial Leasing Inc. v. Gilliland, 4th Dist. Nos. 05CA2993, 05CA3006, 2006-Ohio-
2756, at ¶28. If substantial competent evidence supports the non-moving party, and
reasonable minds could reach different conclusions about that evidence, the court
must deny the motion. Id. at ¶ 27.
{¶15} An appellate court reviews a trial court's rulings on motions for directed
verdict and for JNOV de novo because they present questions of law. Peam v.
Daimler Chrysler Corp. (2002), 148 Ohio App.3d 228, 240; Julian v. Creekside Health
Center, 7th Dist. No. 03-MA-21, 2004-Ohio-3197, at ¶8.
{¶16} We must examine the relevant evidence presented at trial to determine
whether the trial court properly denied appellant’s motions for directed verdict and
JNOV.
{¶17} Ronald Carter, appellant’s ex-husband, testified that he owned two
pizza shops, R&B Pizza Express in Cadiz, Ohio and Speedies Pizza in Pennsylvania.
(Tr. 108). He testified that he ran the Pennsylvania shop and appellant ran the Ohio
shop. (Tr. 109-110).
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{¶18} On the day of the accident, Ronald testified that he and appellant went
together to the Pennsylvania shop. (Tr. 112). Ronald stated that appellant
accompanied him that day so that she could meet with their bookkeeper. (Tr. 112).
He stated that appellant had to go over the monthly bookwork for the Ohio store. (Tr.
112). Ronald stated that appellant travelled to Pennsylvania once a month to meet
with the bookkeeper regarding the books for the Ohio store, which she kept track of.
(Tr. 112-13). Additionally, Ronald stated that appellant had to pick up pizza supplies
for the Ohio store. (Tr. 113). This was something that she did two or three times a
week. (Tr. 113).
{¶19} Although appellant was scheduled to meet the bookkeeper that day,
Ronald testified the bookkeeper never showed up. (Tr. 116). He stated that the
bookkeeper frequently stood them up. (Tr. 116). While appellant was waiting on the
bookkeeper, Ronald stated that he went to a bar up the street to help them fix some
equipment. (Tr. 116-17). He stayed at the bar for a few hours and had a few drinks.
(Tr. 118-20).
{¶20} Ronald also testified about the pizza supplies. He identified a bill for
the pizza supplies for the Ohio store dated the day of the accident. (Tr. 120-21, Ex.
5). These supplies were in appellant’s car at the time of the accident. (Tr. 121). The
supplies included: pizza sauce, flour, salad oil, cheese, pepperoni, wings, beef slices,
breast fillets, sausage, yeast, meatballs, bacon crumbles, anchovies, and foil. (Ex.
5). He stated that he and appellant were taking the supplies to the Ohio store that
night because some of them were perishable and needed to be refrigerated right
away. (Tr. 123-24, 137). He also identified a picture of appellant’s vehicle taken
after the crash depicting the contents of the vehicle, including many of the supplies.
(Tr. 124; Ex. 1).
{¶21} Appellant’s and Ronald’s son, Ronald Carter Jr., also testified. He
stated that he worked in both pizza shops for some time. (Tr. 144). He testified that
his mother ran the Ohio pizza shop while his father ran the Pennsylvania shop. (Tr.
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144). Ronald Jr. stated that he saw his mother work at the Pennsylvania shop a few
times. (Tr. 145).
{¶22} Finally, appellant testified. Like Ronald, she testified that Ronald
owned both pizza shops, that she ran the Ohio shop, and that he ran the
Pennsylvania shop. (Tr. 162-64). Appellant stated that she usually had two
employees. (Tr. 164). In 2001, however, she stated that the Ohio store was
suffering financially and she could no longer afford help. (Tr. 165). She stated too
that she started buying her supplies from Pennsylvania because the Pennsylvania
store was doing well and she could buy supplies on credit there. (Tr. 165-66). She
stated that she usually went to Pennsylvania twice a week to pick up supplies. (Tr.
167, 171). Additionally, appellant testified that she went to Pennsylvania
approximately once a month to meet with the bookkeeper. (Tr. 167-68, 171). She
stated that she frequently had to wait for the bookkeeper to show up and sometimes,
the bookkeeper failed to keep their appointments. (Tr. 168).
{¶23} As to the day of the accident, appellant testified that she and Ronald left
Ohio a little after 2:00 p.m. (Tr. 172). She stated that the purpose of her trip was
twofold: she was going to meet with the bookkeeper and she was going to pick up
supplies for the Ohio store. (Tr. 173).
{¶24} Upon arriving in Pennsylvania, appellant testified that the bookkeeper
never showed up. (Tr. 174). Appellant testified that this was not unusual as the
bookkeeper frequently missed their appointment. (Tr. 174). Appellant stated that
she waited at the Pennsylvania shop for the bookkeeper. (Tr. 174). Appellant stated
that the only time she did any work in the Pennsylvania shop was if she was there
waiting on supplies for the Ohio store or for the bookkeeper and the employees
needed help answering the phone or taking an order. (Tr. 175).
{¶25} While she waited at the Pennsylvania shop, appellant stated that
Ronald went to help the owner of the bar down the street fix some equipment. (Tr.
176). While she waited, she made calls to the Ohio shop to see if they were running
low on any supplies and if they needed them right away and made calls to the
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bookkeeper to see if she was coming. (Tr. 177). Appellant stated that the supplies
for the Ohio store were delivered around 6:00 p.m. and Ronald returned around
10:00 p.m. (Tr. 177-78). She testified that the two of them loaded up her vehicle with
the supplies and she began to drive home. (Tr. 178). Included in the supplies,
appellant stated, were chicken wings, pizza sauce, cheese, flour, pepperoni,
sausage, buns, and tomatoes. (Tr. 178-79). Some of these items were perishable
so appellant intended to put them away as soon as they got back to Ohio. (Tr. 179).
{¶26} Appellant stated that the only reason she ever went to Pennsylvania
was for business purposes. (Tr. 184).
{¶27} On cross examination, appellant stated that she never worked in the
Pennsylvania store. (Tr. 185). And she testified that the bookkeeper became
unreliable when her husband became ill in the past year. (Tr. 185-86). She stated
that on the day of the accident, while she was in Pennsylvania, her son’s friend was
running the Ohio shop. (Tr. 187). But she then stated she was unsure whether he
was there that night or not. (Tr. 188).
{¶28} Because appellee conceded that appellant was an employee, the only
issue in this case was whether appellant was within the scope of her employment
when the accident occurred. Generally, scope of employment questions are
questions of fact for the jury to determine. Osborne v. Lyles (1992), 63 Ohio St.3d
326, 330. However, when reasonable minds can come to only one conclusion,
scope of employment becomes an issue of law. Id. To determine the issue as a
matter of law, the material facts must be undisputed. Id.{¶29} In this case, the uncontroverted evidence demonstrated that appellant
was within the scope of her employment when the accident occurred. The following
facts are undisputed.
{¶30} Appellant and Ronald left Ohio shortly after 2:00 p.m. and drove to the
Pennsylvania shop. Appellant’s purposes in making this trip were (1) to meet with
the bookkeeper regarding the Ohio shop’s monthly accounting and (2) to pick up
supplies for the Ohio shop. As part of running the Ohio shop, appellant travelled to
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Pennsylvania at least once a month to meet with the bookkeeper and at least twice a
week to pick up supplies.
{¶31} The bookkeeper never showed up, however, this was not unusual.
While waiting on her husband to return to the shop, appellant made calls to the
bookkeeper to see if she was coming and also to the Ohio shop to see if they needed
the supplies immediately. The supplies were delivered to the Pennsylvania shop
around 6:00 p.m. Sometime after 10:00 p.m., Ronald returned to the Pennsylvania
shop and he helped appellant load the supplies into her vehicle. Appellant’s vehicle
was loaded with pizza sauce, pepperoni, chicken wings, flour, cheese, and various
other pizza-shop supplies. Appellant was driving and was going directly to the Ohio
shop to refrigerate the perishable supplies. While en route, the accident occurred.
{¶32} Appellee did not contradict these critical facts. It only attempted to call
appellant’s credibility into question by raising questions as to whether anyone was
running the Ohio shop while she was gone, whether she ever worked in the
Pennsylvania shop, and why appellant was using a bookkeeper on whom she could
not rely. None of this testimony challenged the above established facts.
{¶33} The evidence in this case was not complicated. There simply was not
sufficient evidence to support the jury’s verdict. Even when construing the evidence
in the light most favorable to appellee, reasonable minds could only conclude that
appellant was within the scope of her employment. Thus, the trial court should have
granted appellant either a directed verdict or a JNOV. Accordingly, appellant’s first
and fifth assignments of error have merit.
{¶34} Appellant’s second, third, and fourth assignments of error state,
respectively:
{¶35} “AS A MATTER OF LAW, THE BUREAU OF WORKERS
COMPENSATION SHOULD HAVE BEEN ESTOPPED FROM DENYING THAT
BENITA CARTER WAS NOT ACTING WITHIN THE SCOPE OF EMPLOYMENT.”
{¶36} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
UNREASONABLY EXCLUDED THE AMENDED POLICE REPORT WHICH
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FURTHER DETAILS THE CONTENTS OF BENITA CARTER’S VEHICLE AT THE
TIME OF THE ACCIDENT.”
{¶37} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
UNREASONABLY EXCLUDED RONALD CARTER’S TESTIMONY THAT HIS OWN
WORKERS’ COMPENSATION CLAIM FOR THE EXACT SAME ACCIDENT WAS
GRANTED.”
{¶38} Given our resolution of appellant’s first and fifth assignments of error,
her second, third, and fourth assignments of error are moot.
{¶39} For the reasons stated above, the trial court’s judgment is hereby
reversed and judgment is entered in favor of appellant. Appellant is entitled to
participate in the Ohio Workers’ Compensation Fund.
Waite, J., concurs.
DeGenaro, J., concurs.