PRESENT: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
JOAN IRVINE SMITH
OPINION BY
v. Record No. 980250 SENIOR JUSTICE RICHARD H. POFF
November 6, 1998
FLOYD R. LITTEN
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
As defined by the employer named in an employee's suit
claiming damages for employment termination based upon age
discrimination, the issue on appeal is whether the trial court
"erred in allowing the stipulation into evidence of the
defendant's net worth of $50,000,000.00 when there was no
evidence of willful or wanton conduct or a conscious disregard
of the plaintiff's rights". The underlying question is whether
the evidence was sufficient to support the trial court's ruling
authorizing the jury to consider an award of punitive damages.
Floyd R. Litten (Litten) filed a motion for judgment
against Joan Irvine Smith (Ms. Smith) alleging, inter alia, that
he had been "terminated due to his age"; that this constituted a
"wrongful termination of employment in violation of the public
policy of the Commonwealth of Virginia against discrimination in
employment"; that the "unlawful termination . . . was wilful
and wanton, and evinced conscious disregard for the rights of
Litten"; and that he was entitled to both compensatory and
punitive damages.
The record shows that, in 1972, Ms. Smith employed Litten
as caretaker of a large estate in Fauquier County that she had
inherited. She and her husband, Morton Smith (Mr. Smith), lived
in the manor house and allowed Litten, his wife, and his son to
occupy another house on the property. In 1976, Ms. Smith moved
to California where she made her home, never returning to her
Virginia estate. After the Smiths' divorce in 1976, Ms. Smith
authorized Mr. Smith to operate the horse farm on her Virginia
estate.
In 1994, James Rich, an adjoining neighbor of the Smith
estate for 20 years, telephoned Mr. Smith and inquired about a
rumor he had heard that Ms. Smith had fired Litten. Mr. Smith
confirmed the rumor and explained that Litten, who was 79 years
of age, was "just too old and he hasn't done much around the
farm for several years." Rich said that Mr. Smith "kind of runs
the show over there . . . with [Mrs.] Ann Bland."
Mrs. Bland testified that Ms. Smith considered her "the
overseer or the caretaker or just the farm manager." In a
deposition conducted in California and admitted into evidence,
Ms. Smith agreed that "both Mrs. Bland and Mr. Smith were [her]
representatives in dealing with Mr. Litten" and that both had
told her that Litten had stopped working the hours required of
him. Other neighbors disagreed. Rich testified that the Smith
property was "[v]ery well maintained" by Litten, because "he saw
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to the details." Another neighbor, William Leach, agreed that
he "never saw any evidence of neglect" and that he wished his
own property "looked as well."
Litten testified that neither Mrs. Bland nor Mr. Smith ever
told him that he was not doing his work satisfactorily. Litten
explained that sometimes he would not work Saturdays because of
the overtime he had worked during the week. He also stated
that, during hot weather, he would take longer lunch periods and
make up the time in the cooler evenings. Litten said that, when
he asked Ms. Smith if he could plant his garden on her property,
she said, “I don’t give a damn if you put the whole front yard
in a garden.” Litten admitted sharing the produce from his
garden with neighbors and friends, and selling some at the
market, but he claimed that he could do so because it “was my
produce.”
In her deposition, Ms. Smith said that she had made the
decision to fire Litten "just prior to July of '94" and had
instructed Mrs. Bland "to terminate him and . . . to call [her
attorney] and have Mr. Litten given notice."
Litten first learned of his discharge when Mrs. Bland
approached him at work. Litten testified that she "come [sic]
over and stopped" him and told him "you've got to get out, Mrs.
Smith's got somebody to replace you." Litten said that, in
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reply to his question concerning his garden, Mrs. Bland said,
"no, no garden . . . be out in 30 days."
In a letter addressed to Litten dated July 1, 1994, Ms.
Smith's attorney informed him that he was "terminated from [his]
employment with Mrs. Smith effective July 1, 1994", that he was
"expected to vacate the house . . . by August 1, 1994", and that
"the keys, tools, and any other miscellaneous items that belong
to Mrs. Smith, should be turned in by July 15, 1994."
The attorney's letter did not state any reason for Litten's
termination, and Ms. Smith never gave him one. In her
deposition, Ms. Smith explained that her representatives, Mrs.
Bland and Mr. Smith, had told her that Litten was using her
pickup truck to transport garden produce, wild walnuts grown on
her property, and firewood cut there for sale to local
merchants.
At the conclusion of Litten's evidence, Ms. Smith moved to
strike Litten's claim of punitive damages and objected to the
introduction of a stipulation reached by counsel that Ms.
Smith's net worth was approximately $50,000,000. The objection
was based upon the ground that "there is no factual evidence as
to malice, ill will or spite or conscious disregard of Mr.
Litten's rights." The trial court overruled the objection, and
the stipulation was read before the jury.
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The court instructed the jury on punitive damages as
follows:
If you find that Mr. Litten is entitled to be
compensated for his damages and you further believe by
the greater weight of the evidence that [Ms.] Smith or
Ann Bland acted under circumstances amounting to a
willful and wanton disregard of Mr. Litten's rights,
then you may also award punitive damages to punish
[Ms. Smith] and to serve as an example to prevent
others from acting in a similar way.
Willful and wanton conduct is acting consciously
in disregard of another person's rights or acting with
a reckless indifference to the consequences to another
person while aware of one's conduct and while also
aware, from one's knowledge of existing circumstances
and conditions, that one's conduct would probably
result in injury to another.
The jury retired and, upon consideration of the evidence
and the court's instructions, returned a verdict awarding Litten
$36,000 in compensatory damages and $50,000 in punitive damages.
Initially, we note that the 1995 amendments to the Virginia
Human Rights Act, Code § 2.1-725, place certain limits upon an
employee's right to punitive damages for wrongful termination of
employment. Because Litten was terminated and filed this motion
for judgment before those amendments became effective, his cause
of action is governed by the common law of Virginia.
In Shaw v. Titan Corporation, 255 Va. 535, 498 S.E.2d 696
(1998), we considered an appeal of a wrongful termination action
filed before the 1995 amendments to the Virginia Human Rights
Act took effect. There, we recognized wrongful termination as
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an "intentional tort" and ruled that, "[w]hen a plaintiff pleads
and proves an intentional tort under the common law of Virginia,
the trier of fact may award punitive damages." Id. at 545, 498
S.E.2d at 701.
On brief, Ms. Smith acknowledges that "a review of the key
pieces of evidence that focus on the termination may establish a
discriminatory discharge claim". She argues, however, that the
evidence is "free from any singular aggravating act on behalf of
the Employer . . . that justifies admission of the Employer's
net worth for consideration by the jury." We disagree.
Under the well-established standard of appellate review, a
trial court's judgment is presumed to be correct and, on appeal,
we must view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the
prevailing party at trial. Ravenwood Towers, Inc. v. Woodyard,
244 Va. 51, 57, 419 S.E.2d 627, 630 (1992). Additionally, as
the party who comes before us with a jury verdict approved by
the trial court, Litten "occupies the most favored position
known to the law." Id. (quoting Pugsley v. Privette, 220 Va.
892, 901, 263 S.E.2d 69, 76 (1980)); accord Evaluation Research
Corp. v. Alequin, 247 Va. 143, 147, 439 S.E.2d 387, 390 (1994).
The Virginia Human Rights Act declares that "[i]t is the
policy of the Commonwealth of Virginia . . . [t]o safeguard all
individuals within the Commonwealth from unlawful discrimination
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because of . . . age . . . in employment". Code § 2.1-715. By
its finding in favor of Litten, the jury necessarily concluded
that Ms. Smith had violated that provision of the Act and that
she had unlawfully discriminated against Litten by discharging
him because, as her acknowledged representative reported, he had
become "just too old". The court confirmed the jury's verdict,
and Ms. Smith assigned no error to that ruling.
In considering whether the court properly admitted the
stipulation as to Ms. Smith's net worth, we must decide whether
there was sufficient evidence to submit the issue of punitive
damages to the jury. In Hamilton Development Co. v. Broad Rock
Club, 248 Va. 40, 45, 445 S.E.2d 140, 143 (1994), we said that
the purpose of an award of punitive damages "is not so much to
compensate the plaintiff but to punish the wrongdoer and to warn
others". We hold that the stipulation of the wrongdoer's net
worth was material to that twofold purpose and relevant to a
determination of the quantum of the award.
Punitive damages "may be recovered 'only where there is
misconduct or actual malice, or such recklessness or negligence
as to evince a conscious disregard of the rights of others.'"
Id. (quoting Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685,
152 S.E.2d 271, 277 (1967)). However, the conclusion that there
was misconduct or malice, or that a party acted with a conscious
disregard of another's rights need only be a "possible
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conclusion" the jury could reach. Jordan v. Sauve and Koons,
219 Va. 448, 454, 247 S.E.2d 739, 742 (1978).
In Jordan, the plaintiff sued a car dealer for fraud in
connection with her purchase of an automobile, seeking both
compensatory and punitive damages. At the conclusion of the
plaintiff's evidence, the trial court struck the claim for
punitive damages. Reversing that ruling, we remanded the case,
reasoning that:
Considered in a light most favorable to
plaintiff, the evidence of Sauve's misrepresentation
that the car was new, coupled with his misstatements
about the accumulated mileage, price sticker, brakes,
sticker price and discount, and financing, would have
justified the jury in finding Sauve's misconduct to be
of such a reckless and negligent character as to
evince a conscious disregard of Jordan's rights.
Though not inevitable, this was a possible conclusion,
making the punitive damage issue one for the jury to
decide on proper instructions. Id.
Applying the rationale from Jordan to the facts of this
case, we cannot say that the jury was unjustified in concluding
that Ms. Smith acted with a conscious disregard of Litten's
common law rights.
A summary of our opinions shows that if a tortfeasor's tort
was intentional rather than negligent, i.e., deliberately
committed with intent to harm the victim; or, if a tortfeasor's
negligent act or omission in violation of the common law
reflects malice, willful or wanton conduct, or a conscious
disregard of the victim's common law rights; and if the evidence
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is sufficient to support an award of compensatory damages, the
victim's right to punitive damages and the quantum thereof are
jury questions.
The trial court's instructions to the jury constituted a
fair summary of these principles. The jury found the evidence
sufficient to support an award of damages compensating Litten
for the losses he sustained and an award of damages punishing
Ms. Smith for committing a common law wrong. Finding no merit
in Ms. Smith's assignment of error, we will affirm the judgment
of the trial court.
Affirmed.
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