COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69026 PAUL W. BLATNICKY : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION SHELLER-GLOBE CORPORATION : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 28, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-123146 JUDGMENT: MODIFIED, AND AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DAVID ROLOFF (#0038241) GOLDSTEIN & ROLOFF CO., L.P.A. 1440 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 For Defendant-Appellant: THOMAS H. SHUNK (#0025793) ELLIOTT S. AZOFF (Z00008411) BAKER & HOSTETLER 3200 National City Center Cleveland, Ohio 44114 - 2 - 2 SPELLACY, C.J.: Defendant-appellant Sheller-Globe Corporation appeals the trial court's judgment award granting plaintiff-appellee Paul Blatnicky $1,001,888.00 in damages. Sheller-Globe raises four assignments of error: I. ON REMAND, THE TRIAL COURT ERRED IN FAILING TO FOLLOW THE LAW OF THE CASE REGARDING COMPUTA- TION OF DAMAGES, WHEN IT AWARDED PLAINTIFF--AN AT-WILL EMPLOYEE--COMPENSATION FOR LOST WAGES "UNTIL THE EXPIRATION OF [PLAINTIFF'S] WORK LIFE EXPECTANCY. II. ON REMAND, THE TRIAL COURT ERRED IN BASING ITS AWARD OF DAMAGES UPON A FINDING THAT PLAINTIFF "WOULD HAVE BEEN THE PRESIDENT UNTIL THE EXPIRATION OF HIS WORK LIFE EXPECTANCY," WHICH FINDING WAS NOT SUPPORTED BY ANY EVIDENCE IN THE RECORD. III. ON REMAND, THE TRIAL COURT'S AWARD OF DAMAGES WAS NOT SUPPORTED BY ANY EVIDENCE IN THE RECORD. IV. ON REMAND, THE TRIAL COURT ERRED IN ADDING A TEN PERCENT PRE-JUDGMENT INTEREST COMPONENT TO THE AWARD OF DAMAGES--TOTALING $222,931.00. After reviewing the record and the arguments of the parties, we find that Sheller-Globe's first and second assignment of error have merit; Sheller-Globe's third assignment of error, however, lacks merit in part; and Sheller-Globe's fourth assignment of error lacks merit. As a result, the judgment of the trial court is modified, and affirmed as modified. I. In January 1987, plaintiff-appellee Paul Blatnicky (herein- after "Blatnicky") initiated the present action against his former - 3 - 3 employer, defendant-appellant Sheller-Globe Corporation, alleging breach of contract and promissory estoppel. Both claims were based on Sheller-Globe's failure to promote Blatnicky to president of Sheller-Globe's Office Products Group; and Sheller-Globe's failure to honor its promise to pay Blatnicky benefits and three years salary as severance pay after he was terminated. Sheller-Globe responded by filing a motion for summary judgment which was granted by the trial court. Blatnicky appealed the trial court's grant of summary judgment. On appeal, this court affirmed the entry of summary judgment for both the breach of contract claims and the severance pay portion of the promissory estoppel claim, but reversed the grant of summary judgment regarding the promotion portion of the promissory estoppel claim. The cause was then remanded for further proceedings. See, Blatnicky v. Sheller-Globe Corp. (May 17, 1990), Cuyahoga App. No. 56695, unreported. On remand, the trial court, in calculating Blatnicky's damage award based its findings of fact and conclusions of law on the "average work life of an individual Mr. Blatnicky's age" as well as on Blatnicky's belief that, if he were terminated, he would be awarded severance pay and other benefits for three years, found for Blatnicky in the amount of $360,000.00 with a pre-judgment interest. Sheller-Globe subsequently appealed the court's judgment award. (Findings of Fact and Conclusions of Law, April 12, 1993). On appeal, this court found that Sheller-Globe's first, - 4 - 4 second, and fifth assignment of error lacked merit. However, this court found that Sheller-Globe's third assignment of error, that the trial court had miscalculated the damage award, had merit and the cause was remanded for further proceedings. This court then set forth the proper method for measuring damages to be awarded to the plaintiff-appellee Blatnicky on remand. II. In May 1984, Paul Blatnicky, a vice-president at Addressograph-Multigraph, was contacted by Clyde Sullivan, an executive recruiter retained by Sheller-Globe. Mr. Sullivan informed Blatnicky that Sheller-Globe wanted to replace the president of the Office Products Group, Mr. Zimet. Because Mr. Zimet was unaware of plans to replace him, Sullivan told Blatnicky that he would be hired into a newly created vice-president's position and later would replace Mr. Zimet as president. In June, 1984, Blatnicky met with the chief operating officer of Sheller-Globe, James Graham, at which meeting Graham told Blatnicky that Zimet would remain as president for eighteen months or, if he failed to meet his business plan, less. Subsequently, Blatnicky was contacted several times by Sullivan encouraging him to accept the position. Blatnicky was also informed that Sheller- Globe was willing to postpone his start date so that he would be able to collect his yearly bonus from Addressograph-Multigraph. Blatnicky accepted Sheller-Globe's offer and began work in November 1984. Blatnicky remained in constant contact with Graham; and in - 5 - 5 March 1985, Blatnicky met with Graham who told him to "just act presidential". In late December 1984, or early January 1985, Blatnicky turned down an offer to return to his old job as Vice-President of Operations at Addressograph-Multigraph. Sheller-Globe never made Blatnicky president. In February 1986, Sheller-Globe was taken over through a leverage buy-out; and it was determined that Sheller-Globe was to reduce the number of employees in order to reduce costs. On April 21, 1986, Blatnicky was informed that he had been discharged. III. In its first and second assignment of error, Sheller-Globe contends the trial court erred in failing to follow the law of the case regarding the computation of damages in awarding compensation for lost wages to Blatnicky, an at-will employee, "until the expiration of [plaintiff's] work life expectancy." The doctrine of the "law of the case" provides that "the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and the reviewing levels." Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, citing Gohman v. St. Bernard (1924), 111 Ohio St. 726, 730, reversed on other grounds; New York Life Ins. Co. v. Hosbrook (1935), 130 Ohio St. 101; Gottfried v. Yocum (App. 1953), 72 Ohio Law Abs. 343, 345. Although this is not a binding rule of substantive law, it is a rule of practice - 6 - 6 "necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the constitution." Id. This court previously established Blatnicky's damage award was not to be based "upon the average work life of an individual of the age of Mr. Blatnicky", nor was the damage award to be based on Mr. Blatnicky's contention that "he would be entitled to a severance benefit which included three years salary and other benefits." Blatnicky v. Sheller-Globe Corp. (June 23, 1994), Cuyahoga App. No. 65516, unreported. Rather in Blatnicky v. Sheller-Globe Corp. (June 23, 1994), Cuyahoga App. No. 65516, unreported, this court specifically mandated that Blatnicky's damages should be calculated in the following manner: 1) Blatnicky should recover damages for the detriment he suffered by relying on the promise that he would be made president within eighteen months of his June 1984 discussion with Graham, including the following: a. loss related to his leaving Addressograph-Multigraph; and b. loss related to Blatnicky's turning down the offer to return to Addressograph-Multigraph 2) The difference in compensation between president and vice-president from the time Blatnicky should have been made president until his discharge as a vice-president instead of president. 3) Blatnicky's diminished career opportunities in being discharged as a vice-president instead of a president. The trial court's approach to the calculation of damages based on Blatnicky's work life expectancy was contrary to the position - 7 - 7 taken by this court, as well as the position taken by Blatnicky that Blatnicky's employment was at-will. As an employee at-will, Blatnicky did not have a reliance interest in life-time employment, nor did the promise by Sheller-Globe to Blatnicky that he would be made president ensure him lifetime employment. Therefore, the trial court should not have considered Blatnicky's work life expectancy as a factor when calculating the damage award. Rather, the trial court should have calculated the award of damages based upon the facts as determined by it at trial, and in compliance with the mandate of this court. Accordingly, Sheller-Globe's first and second assignments of error are well taken. IV. In its third assignment of error, Sheller-Globe contends that the trial court's award of damages was not supported by any evidence in the record. The trial court, in calculating damages, based Blatnicky's award on its finding that Blatnicky would have been earning $110,000.00 per year at Addressograph-Multigraph had he not relied on Sheller-Globe's promise that he would have been made president, taken the position at Sheller-Globe, and not rejected Addressograph-Multigraph's offer to return. The trial court found that Blatnicky would then be "entitled to a recovery based on $110,000.00 per year less, as an offset, the amount of compensation he has received during the period from October 1, 1985 until - 8 - 8 February 1, 2001." (Finding and Memorandum to Counsel, April 21, 1995). In reviewing the findings of the trial court, we "must presume the trials court's findings are correct, in absence of evidence to the contrary, as the trial judge is best able to view the witnesses and use such observations in weighing their credibility." Cleveland v. Assn. of Fire Fighters Local, 93 (1991), 73 Ohio App.3d 220, 226. The judgment of the trial court will not be disturbed as being against the manifest weight of the evidence where the "judgment [is] supported by some competent, credible evidence going to all the essential elements of the case." Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. The central issue before this court is whether the trial court's judgment granting Blatnicky $518,900.00 in back pay with interest; and $260,057.00 in future losses was against the manifest weight of the evidence. In reviewing the trial judge's damage calculations, reversal of the judgment of the trial court as being against the manifest weight of the evidence is not proper with respect to the trial court's judgment granting Blatnicky $518,900.00 in back pay with interest. However, the granting of $260,057.00 in future losses to Blatnicky is found to be against the manifest weight of the evidence, as well as against previous findings and mandate of this court. With respect to the issue of back pay, testimony was elicited at trial from Blatnicky concerning his annual earnings from 1985 - 9 - 9 through 1994. Testimony was also elicited from Blatnicky at trial that his annual salary at Addressograph-Multigraph was $77,000.00 plus an annual bonus up to 40% of his annual salary. Therefore, the trial court's findings and damage calculation based on $110,000.00 per year offset by Blatnicky's annual earnings from 1985 through 1994 was supported by competent, credible evidence in the record. The award of future losses, however, appears to be based on the trial court's determination that Blatnicky was to be compensated for his entire work life expectancy. As determined by this court previously, Blatnicky only had a reliance interest, not an expectancy interest in Sheller-Globe's promise to make him president. Furthermore, this court determined that Blatnicky is not entitled to damages based on his entire work life. Clearly, the trial court's damage calculation for future losses did not comply with the mandate set forth by this court in Blatnicky v. Sheller-Globe (June 23, 1994), Cuyahoga App. No. 65516, unreported. After reviewing the record, and in compliance with our previous mandate, we find no evidence which supports the trial court's award of future losses. The award of future losses, therefore, should be overruled. For the reasons set forth above, Sheller-Globe's third assignment of error with regard to back pay is not well taken. However, Sheller-Globe's fourth assignment of error with regard to future interest is well taken. - 10 - V. In its fourth assignment of error, Sheller-Globe contends that the trial court erred when it awarded Blatnicky pre-judgment interest. This court previously determined that the trial court's damage award was based on compensatory, non-statutory interest. Blatnicky v. Sheller-Globe (June 23, 1994), Cuyahoga App. No. 65516, unreported. Where interest is in the nature of compensatory damages, not a penalty "it is in the discretion of the trier of fact to include an element of interest within the damage award." DeSantis v. Smedley (1986), 34 Ohio App.3d 218, 221. Therefore, the award of interest as a portion of compensatory damages by the trial court was proper. Sheller-Globe's fourth assignment of error is overruled. Judgment modified, and affirmed as modified. - 11 - This cause is modified, and affirmed as modified consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, J. CONCURS; DIANE KARPINSKI, J. CONCURS IN JUDGMENT ONLY. (See Concurring Opinion LEO M. SPELLACY Attached) CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69026 : PAUL W. BLATNICKY : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION SHELLER-GLOBE CORPORATION : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 28, 1996 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I respectfully concur in judgment only. In partially reversing the trial court on future damages, the majority incorrectly interpreted this court's prior ruling on the calculation of damages. In its prior decision, this court never said that the trial court was not to compute future damages based on an estimate of how long plaintiff was likely to continue working, nor did this court rule against any future damages. This court did articulate factors for the trial court to use. These criteria, however, do not exclude future damages. On the contrary, the factors cited are quite open ended, especially the one that advises the court to consider the loss plaintiff suffered in - 2 - 2 rejecting the offer to return to his prior employment. Thus the law of the case does not control whether the trial court should have awarded future damages. Since reinstatement is not feasible, the plaintiff must be awarded damages to make him whole. If legal remedies will not make an aggrieved party whole, equitable remedies also are available. State ex rel. Wright v. Weyandt (1977), 50 Ohio St.2d 194, 197, [parallel citations omitted]. In employment disputes specifically, the court may use equitable remedies to make the injured party whole. Collini v. Cincinnati (1993), 87 Ohio App.3d 553, 556-557. The Ohio Supreme Court has approved awarding front pay as an equitable remedy designed to financially compensate employees where "reinstatement" of the employee would be impractical or inadequate. In such circumstances an award of front pay enables the court to make the injured party whole, although reinstatement is the preferred remedy. *** Second, as an equitable remedy, it is left to the sound discretion of the trial court to determine whether front pay is appropriate under the circumstances of the case. If it is determined that front pay is an appropriate remedy, then the jury should determine the amount of damages. *** Third, it is apparent that front- pay damages are temporary in nature, as they are designed to assist the discharged employee during the transition to new employment of equal or similar status. Worrell v. Multipress, Inc. (1989), 45 Ohio St. 3d 241, 246. 1/ (Citations omitted. ) The record plainly indicates that plaintiff never found permanent employment of equal or similar status. To award him merely $4,500, as the defense outrageously suggests, would deny substantial justice and reward the breach of contracts. 1/ In one of the citations omitted a court upheld the award of front pay to a discharged employee until anticipated retirement, for a total of twenty-eight years' lost income. - 3 - 3 This court properly affirmed the trial court's award of back pay, that is, what he would have earned had he accepted the offer to return to his prior employment, which he left to his detriment by relying upon the promises of the defendant. The remedy in a promissory estoppel claim should depend on "what justice requires in a particular case. Factors to be considered are the definiteness in measuring the damages caused by the reliance and whether the promise relied upon obligates the promisor into the future. 1A Corbin, Corbin on Contracts (1963) 221, Section 200, 240- 241, Section 205." Mers v. Dispatch Printing Co. (1988), 39 Ohio App. 3d 99, 105. This is an age of probability, not certainty. Courts in other areas of the law routinely award future damages based upon probability. Where contracts are breached, new businesses which could have failed at birth are able to recover lost profits into the future. Spouses are awarded compensation for loss of consortium when marriages have increasingly become little different from at-will contracts. Plaintiffs in personal injury cases are awarded compensation for future lost wages on the assumption that their work life would have continued uninterrupted, whether their employment is at-will or not. The difference between what controls damages in personal injury cases and in promissory estoppel employment cases increasingly appears an intellectual fiction. The fundamental issue is whether there is reasonable certainty that damage is likely to occur into the future. Restatement of the Law 2d, Contracts (1981) 145, Remedies, Section 352. The facts of this case support such a conclusion. On the one hand the promises - 4 - 4 as to plaintiff's future career at Sheller-Globe were reiterated constantly and firmly both before and after he accepted their offer. So too, at the firm he left, the record shows there was a high degree of probability he would rise to the presidency of a division, or beyond. For example, his evaluation in June of 1984 stated he was promotable to division president of AMI. This evaluation had the approval of the chief executive officer. His immediate supervisor testified "it was just a matter of time that he was going to become a division president." Had he stayed, he would have been a "prime candidate" for the presidency of two different divisions, which vacancies subsequently occurred. This was the opinion of a man who not only was his supervisor but also ultimately became president and chief operating officer of AMI. These facts suffice to award future damages. However, I did not see sufficient foundation for the calculation of damages past the current time (that is, testimony on the likelihood of and reasonable time for obtaining comparable employment in the future). I agree that the evidence supports the amount of damages this court affirmed, but disagree with the basis upon which this court denied .