SMITH v. LITTEN
November 6, 1998
Record No. 980250
JOAN IRVINE SMITH
FLOYD R. LITTEN
Carleton Penn, Judge Designate
PRESENT: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
OPINION BY SENIOR JUSTICE RICHARD H. POFF
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
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 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
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 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.
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 Sect. 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
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 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
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
because of . . . age . . . in
employment". Code Sect. 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
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 conclusion" the jury could reach. Jordan
v. Sauve and Koons, 219 Va. 448, 454, 247 S.E.2d 739, 742
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
is sufficient to support an award of compensatory damages, the
victim’s right to punitive damages and the quantum thereof are
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.