Opinion
DOCKET NO. A-5668-11T2
04-11-2013
PETER VIGLIONE and JANE VIGLIONE, Plaintiffs-Respondents/Cross-Appellants, v. ANTHONY FRISINA, Defendant-Appellant/Cross-Respondent.
Michael A. Malia argued the cause for appellant/cross-respondent (King, Kitrick, Jackson & McWeeney, LLC, attorneys; Mr. Malia, on the brief). William Goldberg argued the cause for respondents/cross-appellants.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Nugent and Happas.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1982-10.
Michael A. Malia argued the cause for appellant/cross-respondent (King, Kitrick, Jackson & McWeeney, LLC, attorneys; Mr. Malia, on the brief).
William Goldberg argued the cause for respondents/cross-appellants. PER CURIAM
Following the close of the evidence in this jury trial, the court granted a directed verdict on liability to plaintiffs, Peter and Jane Viglione, sellers of a bay front property, in their breach of contract suit against defendant buyer, Anthony Frisina, for cancellation based on alleged dock misrepresentations and sellers' nondisclosure of a pending mortgage foreclosure. The court declined sellers' request to enter a directed verdict as to damages, and the jury returned a verdict less than that sought by sellers. Following the court's denial of both parties' motions for a new trial, buyer appealed and sellers cross-appealed. We affirm.
Although Peter was the sole seller on the contract, for ease of reference in this opinion, we will refer to the Vigliones as "sellers" and, where necessary, refer to either "Peter" or "Jane." We intend no disrespect by the use of their first names.
I.
Sellers filed a complaint against buyer to recover damages for breach of a sales contract involving their waterfront residence located in Toms River. Buyer answered the complaint, asserting counterclaims for breach of contract, fraudulent and negligent misrepresentation, estoppel, and breach of the covenant of good faith and fair dealing. Sellers filed an answer to the counterclaims.
Judge Rochelle Gizinski presided over a four-day jury trial in May 2012. After the close of evidence, the judge granted sellers' motion for a directed liability verdict and dismissal of the counterclaims. She found the defense presented sufficient evidence challenging damages to get to a jury. The jury returned a $75,000 damage verdict, which was substantially less than that sought by sellers. Following denial of the parties' motions for a new trial, the judge entered an order for judgment on July 11, 2012, amended on August 24, 2012. Buyer appealed the directed verdict on liability and dismissal of his counterclaims, and sellers cross-appealed the denial of their motion for a directed verdict on damages.
II.
Peter testified at trial, along with Charles Lindstrom, the engineer involved in the construction of the dock. He additionally presented portions of the deposition testimony of Jane, who was also his listing realtor. Buyer testified, along with his wife Lori, cousin Frank Catonese, acquaintance William Noe, and real estate agent Irene Shepherd.
Other than corroborating buyer's experience on April 24, 2010 when he tested the depth of the water around the dock, Noe and Catonese provided no additional relevant information.
Peter testified he built the 4000 square foot bay front home in 1997 and a 200-foot dock in l998, with two lifts where he kept his boats. Lindstrom designed the dock and ensured it complied with all federal, state and local requirements. Lindstrom explained that Silver Bay "is shallower than other areas of the bay and other rivers" and during high tide, the water would only rise a few more inches.
Peter decided to sell the property in March of 2009 because he was struggling to pay the mortgage and was delinquent in installments; however, no evidence was presented that foreclosure proceedings were threatened at that time. Jane listed the property for $1,490,000. Peter signed an MLS sellers' disclosure statement on March 27, 2009, stating "no" to the question of whether he was "aware of any existing or threatened legal action affecting the property[.]"
Foreclosure proceedings were commenced in August 2009, and Peter had no expectation of bringing the mortgage current. He did not update the disclosure form. On February 22, 2010, he reduced the price to $1,399,000.
There was a slight discrepancy as to the number of visits buyer had before signing the contract. Peter testified that in early March 2010, buyer and his wife visited the property, during which he and buyer had a short conversation about boating while in the backyard when buyer saw his twenty-nine-foot boat. According to Peter, in response to buyer's inquiry of whether the water was deep enough for his boat, a forty-foot Hustler, Peter said:
"I don't know about your boat" . . . "but you know, I've never had a problem." . . . .
and I pointed over about a hundred feet away was the 42-foot Formula which was actually bigger than his, and I said, "[t]hat's my neighbor, and he has no problem." . . . I said, "[t]here's plenty of water for his boat." And that's where I left it.
On cross-examination, Peter was asked whether he intended by the abovementioned statement to let buyer know there was plenty of water for his boat. He responded:
Not at all. It was just an indication of what I experienced and what I saw with my own two eyes. But his boat, I had no idea how deep his boat was or what the draft was. He said it was a deep V hull or something, and I have no idea what that means or how deep it is. So there's no way I could've told him that.Lori similarly testified that Peter pointed to his neighbor's boat, which she and her husband "just kind of equated the fact, well, if they have a big boat on the lift, I'm sure we'll have no problem here with our boat."
The parties testified that the draft measurement indicates the necessary water depth for the boat to operate.
Buyer testified that he was an avid boater and owned three boats that his family used recreationally. Buyer said he stopped by the property the day before he brought his wife there and, while in the backyard, he told Peter the type and speed of his boats and "what [he] was looking for." Peter assured him "his dock, the placement would enable [buyer] to . . . use the lift and . . . do all the recreational boating that [he] could ever want to do there." According to buyer, on the return visit with his wife, when they went to the water again, "Peter assured [him] that [he] wouldn't have a problem using that dock or the lift."
Buyer explained that the dock was about seven or eight feet off the water requiring use of the lift. He inquired whether there was "enough water here that you can put a boat on the lift and get the boat off the lift," and he testified Peter replied, "[t]here's plenty of water. You'll never have trouble. . . . [L]ook at my neighbor's boat. Look, look, there's plenty of water. You can get your boat off the lift without any trouble." Buyer acknowledged, however, that it was his "intention from the very beginning to test the water[.]"
Peter accepted buyer's offer of $1,125,000 and on April 7, 2010, signed the pre-printed sales agreement prepared by Shepherd, which set May l4 as the closing date. The contract included a standard integration clause, stating: "This Agreement contains the entire agreement of the parties. No representations have been made by any of the parties, the Broker(s) or his/her/their agents except as set forth in this Agreement."
On April 17, 2010, Jane and Shepherd discussed the status of the deal. Shepherd testified she told Jane, "[t]he only thing we have to do is the home inspection and [buyer] has to check the depth of the water to make sure he can dock his boat." According to Shepherd, Jane told her the water was "about three and a half to four feet deep" by the dock but Shepherd did not convey that statement to buyer.
Buyer's attorney modified the agreement during the attorney review period, adding, in part, the following clause:
7. Seller represents that the dock which is included in the purchase of sale was properly constructed and all proper licensing was secured from all federal, state and municipal agencies relating to the installation of said dock. Seller further represents that the dock placement will enable the Buyer to use said dock for recreational boating.
. . . .
In the event of a conflict between this addendum and the pre-printed Contract, the terms of this Addendum shall control.
Sellers consented to the addendum on April 20, 2010. On April 22, 2010, buyer's attorney sent a letter to buyer, copied to sellers' attorney and the realtor, confirming they were out of attorney review. Buyer testified, however, that he did not know the purpose of "attorney review" and did not put a boat in the water before April 22 because he was "in Florida on business and . . . looking for a boat."
On April 24, 2010, buyer, Catonese and Noe took Catonese's boat to the property. As they approached the property, buyer noticed the water became shallow; Catonese had to raise his outboard engine to avoid hitting the bottom. They measured water depths by the neighbor's boat and sellers' dock, which were thirty to thirty-two inches and twenty-eight inches, respectively. He explained that the draft of two of his boats was thirty to thirty-six inches so he could not get close to the dock or use sellers' lift. Buyer made several visits to confirm that the depth of the water by sellers' dock would not accommodate his boats.
By letter of April 26, 2010, buyer cancelled the contract, citing paragraph seven of the addendum. By letter of May 7, sellers' attorney requested buyer reconsider and noted, for the first time, the pending foreclosure. On May 12, buyer's attorney confirmed the termination of the contract.
Peter put the house back on the market the following day, reducing the listed price by $100,000 to $1,299,000. On July 10, 2010, he executed a contract to sell the property for $999,000. The sale closed on September 8, 2010. Peter testified he accepted the reduced sale price because "during that time prices were going down dramatically" and "[m]onth by month [his] house became worth less and less[.]" Furthermore, mortgage "[i]nterest was being posted, [t]he situation was just getting worse[,]" and he "had no choice[.]" Although sellers' attorney stated that Jane "was going to testify about the price" and she was present at counsel table during the entire trial, she did not take the stand. Peter claimed $147,328 in damages, the $126,000 difference between the sale price and buyer's contract price of $1,125,000, plus the carrying costs.
The carrying costs consisted of real estate taxes ($4590), sewer assessment ($126), Tidelands licensing fee ($200), judgment interest ($297), mortgage interest ($14,531), late payment charges ($752), homeowner's insurance ($691), and flood insurance ($141).
Buyer testified that had he been informed of the threatened or pending foreclosure prior to canceling the contract, he would not have gone through with the sale because he was concerned with "the bank tak[ing the house] in the interim" between the deposit and closing. Shepherd testified about the purpose of the disclosure form and opined that it should be updated by the seller.
The jury returned a $75,000 damage verdict. This appeal and cross-appeal ensued. On appeal, buyer argues:
POINT I
THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS' MOTIONS AT TRIAL, FINDING IN THE PLAINTIFFS' FAVOR THAT THE DEFENDANT BREACHED THE CONTRACT, WHICH CONSTITUTED REVERSIBLE ERROR.
A. The trial court erred in interpreting the contract's plain meaning.POINT II
B. Alternatively, the trial court erred in finding an ambiguity in the contract language and taking the breach of contract issue away from the jury.
THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS' MOTIONS AT TRIAL, DISMISSING THE DEFENDANT'S DEFENSE AND COUNTERCLAIM FOR THE PLAINTIFFS' BREACH OF CONTRACT, WHICH CONSTITUTED REVERSIBLE ERROR.
A. There was sufficient evidence presented at trial that the plaintiff breached the contract by representing to the defendant that he would be able to use the dock for recreational boating, which was not true.POINT III
B. There was sufficient evidence presented at trial that the plaintiffs breached the contract by failing to disclose that the home they were selling was in foreclosure.
THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS' MOTIONS AT TRIAL, DISMISSING THE DEFENDANT'S DEFENSE AND COUNTERCLAIM FOR THE PLAINTIFFS' FRAUD AND FRAUDULENT MISREPRESENTATIONS, WHICH CONSTITUTED REVERSIBLE ERROR.
A. The trial court applied the wrong standard of clear and convincing evidence instead of the lesser standard of preponderance of the evidence.POINT IV
B. There was sufficient evidence presented at trial that the plaintiffs fraudulently misrepresented to the defendant that he would be able to use the dock for recreational boating, which was not true.
C. There was sufficient evidence presented at trial that the plaintiffs fraudulently misrepresented the property they were selling by failing to disclose that the home was in foreclosure.
THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFF'S MOTIONS AT TRIAL, DISMISSING THE DEFENDANT'S COUNTERCLAIM FOR THE PLAINTIFFS' NEGLIGENT MISREPRESENTATIONS, WHICH CONSTITUTED REVERSIBLE ERROR.
A. The trial court erred in finding that there could not be negligent misrepresentation in a real estate contract.
B. There was sufficient evidence presented at trial that the plaintiffs negligently misrepresented to the defendant that he would be able to use the dock for recreational boating, which was not true.
C. There was sufficient evidence presented at trial that the plaintiffs negligently
misrepresented the property they were selling by failing to DISCLOSE that the home was in foreclosure.POINT V
THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS' MOTIONS AT TRIAL, DISMISSING THE DEFENDANT'S DEFENSE OF ESTOPPEL, WHICH CONSTITUTED REVERSIBLE ERROR.
POINT VI
THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS' MOTIONS AT TRIAL, DISMISSING THE DEFENDANT'S DEFENSE OF THE PLAINTIFFS' BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, WHICH CONSTITUTED REVERSIBLE ERROR.
Sellers argue in their cross-appeal that the jury verdict on damages should be set aside and judgment should be entered for the full amount of damages incurred by them. Based on our review of the record and applicable law, we are not persuaded by either party's arguments.
III.
"The interpretation of a contract is subject to de novo review by an appellate court." Kieffer v. Best Buy, 205 N.J. 213, 222 (2011). The legal conclusions of the trial court are reviewed de novo, without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We employ the same standard on review as did the trial court in a motion for a directed verdict. Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 108 (App. Div.), certif. denied, 156 N.J. 407 (1998). We reverse the grant of a directed verdict only if, accepting as true the evidence presented by the non-moving party and affording that party all favorable inferences, reasonable minds could differ. Ibid.
We only reverse a trial judge's denial of a motion for new trial where "it clearly appears that there was a miscarriage of justice under the law." Jastram v. Kruse, 197 N.J. 216, 230 (2008); R. 2:10-1. We employ a similar standard as the trial court, except we "afford 'due deference' to the trial court's 'feel of the case' with regard to the assessment of intangibles, such as witness credibility." Jastram, supra, 197 N.J. at 230 (internal quotation marks omitted). The determination of inadequacy or excessiveness of the verdict is made by viewing the totality of the evidence in the light most favorable to the prevailing party. Caldwell v. Haynes, 136 N.J. 422, 432 (1994).
Buyer contends the judge incorrectly interpreted the contract by excluding sellers' unwritten representations in interpreting paragraph seven of the addendum and ignoring the plain meaning buyer ascribed to the provision, i.e., that "recreational boating" meant buyer's recreational boating. Alternatively, buyer contends the language was ambiguous and the question should have been submitted to the jury. We disagree.
Generally, the interpretation of contract terms "are decided by the court as a matter of law unless the meaning is both unclear and dependent on conflicting testimony." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 2001). In other words, a court must first decide if an ambiguity exists. "An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations. . . . To determine the meaning of the terms of an agreement by the objective manifestations of the parties' intent, the terms of the contract must be given their 'plain and ordinary meaning.'" Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, 283 (D.N.J. l992), aff'd, 993 F.2d 877 (3d Cir. 1993)).
Parol evidence is admissible in construing a contract, not to change the contract's unambiguous terms, but to put the words in context. Conway v. 287 Corp. Ctr. Assoc., 187 N.J. 259, 26870 (2006); Global Inv., L.P., v. Cliff, 419 N.J. Super. 1, 11 (App. Div. 2011). As the Supreme Court explained:
The polestar of construction is the intention of the parties to the contract as revealed by the language used, taken as an entirety; and, in the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain are necessarily to be regarded. The admission
of evidence of extrinsic facts is not for the purpose of changing the writing, but to secure light by which to measure its actual significance. Such evidence is adducible only for the purpose of interpreting the writing--not for the purpose of modifying or enlarging or curtailing its terms, but to aid in determining the meaning of what has been said. So far as the evidence tends to show, not the meaning of the writing, but an intention wholly unexpressed in the writing, it is irrelevant.
[Conway, supra, 187 N.J. at 269.]
Where a contract demonstrates that the parties have merged all prior negotiations and agreements in writing, the parol evidence rule bars evidence of prior negotiations and agreements tending to add or vary the terms of the writing being considered. Filmlife, Inc. v. Mal "Z" Ena, Inc., 251 N.J. Super. 570, 573 (App. Div. 1991). This tenet is especially true when the contract itself contains an integration clause. Harker v. McKissock, 12 N.J. 310, 321-22 (1953) ("The essence of voluntary integration is the intentional reduction of the act to a single memorial; and where such is the case the law deems the writing to be the sole and indisputable repository of the intention of the parties.")
We read as a whole all writings forming part of the same transaction. Nester, supra, 301 N.J. Super. at 210. Thus the addendum must be read as part of the original contract, which contained a standard integration clause. Buyer has failed to demonstrate any legal basis to look beyond the plain language of the addendum drafted by his own attorney and cannot rely upon sellers' pre-contract representations regarding the dock. See Filmlife, supra, 251 N.J. Super. at 573-75 ("Extrinsic evidence to prove fraud is admitted because it is not offered to alter or vary express terms of a contract, but rather, to avoid the contract or 'to prosecute a separate action predicated upon the fraud[,]'" and provided the alleged fraud concerns a matter not addressed in the agreement.).
Judge Gizinski found paragraph seven clear and without ambiguity, explaining:
So really the only bone of contention, so to speak, if you will, with respect to the language of the contract involved in this matter has to do with this sentence, and I quote, "Seller further represents that the dock placement will enable the Buyer to use said dock for recreational boating."
Now, I have to look at the sentence and I have to give it its plain meaning, and the plain meaning that I ascribe to those words is that the dock that was placed at the rear of the [sellers'] property allowed the buyer to use it for recreational boating. I have heard no evidence whatsoever that this dock could not be used for recreational boating. All I have heard is that in [buyer's] opinion the dock could not be used for his boat. I didn't hear an expert come in, I didn't hear that it couldn't be used with any other kind of boats; just that it would not accommodate his boat.
This finding was amply supported by the record and law. The judge correctly interpreted the plain, unambiguous language of the addendum and rejected buyer's claim that the language was specific to his ability to use his boats at the dock. As the judge noted, the provision did not indicate that buyer needed a certain minimum depth of water because he had a very specific boat in mind. Nor did buyer call his attorney, the scrivener of the addendum, as a witness regarding any discussions about this provision, or seek to introduce any emails he sent to his attorney about the issue, to support buyer's view of the meaning he ascribed to paragraph seven.
In fact, paragraph seven made no reference whatsoever to the use of buyer's particular boats. Rather, it addressed three questions, all pertaining to the dock: (1) the proper construction of the dock; (2) securing appropriate licensing from federal, state, and local authorities relating to the installation of the dock; and (3) the dock placement would enable buyer to use it for recreational boating. Buyer presented no evidence, expert or otherwise, to dispute Lindstrom's testimony about the accuracy of these representations, which included that the dock could be used for recreational boating.
Moreover, sellers made no direct representation about buyer's ability to use the dock for his boats; rather, buyer and his wife incorrectly inferred that fact from sellers' general comments and made that deduction at their own peril. Accepting as true the facts as presented by buyer, including Peter's statement that there was "plenty of water" and his gesturing to his neighbor's forty-two foot boat up on a lift, the judge appropriately concluded that buyer had failed to demonstrate fraud or misrepresentation by sellers by clear and convincing evidence. As the judge noted, no evidence was presented that there was not "plenty of water" for sellers or their neighbor to operate their boats; buyer, however, with "42 years of experience," was "essentially" seeking for "sellers to be responsible to determine and to know the amount of water that [his] boat requires." See Suarez v. E. Int'l Coll., 428 N.J. Super. 10, 29 (App. Div. 2012) (holding that to support a claim of affirmative misrepresentation, a "plaintiff must show the misrepresentation of a fact that exists at or before the time the representation is made"), certif. denied, _ N.J. _(2013); Walid v. Yolanada for Irene Couture, 425 N.J. Super. 171, 181, 184 (App. Div. 2012) (holding that experience is relevant in evaluating whether the reliance was justified).
We discern no error in the court's use of this standard in evaluating buyer's fraud defenses and counterclaims. Both the model jury charge for legal and equitable fraud instruct judges to apply the clear and convincing evidence standard. Model Jury Charge (Civil), 3.30E, "Fraud—Deceit" (1992); Model Jury Charge (Civil), 4.10.N.2.b. "Equitable Fraud" (1999). See also Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610-11 (1997) (affirming the finding of no common-law fraud against the developer/broker under the clear and convincing evidence standard); Walid v. Yolanda for Irene Couture, 425 N.J. Super. 171, 186 (App. Div. 2012) (finding the "plaintiffs proved by clear and convincing evidence that they justifiably relied upon misrepresentations of income which induced them to enter into the contract"); Stoeker v. Echevarria, 408 N.J. Super. 597, 617-18 (App. Div.) (holding that common-law fraud must be proven by clear and convincing evidence), certif. denied, 200 N.J. 549 (2009); Stochastic Decisions v. DiDominico, 236 N.J. Super. 388, 395-96 (App. Div. 1989) (holding that legal fraud must be proven by clear and convincing evidence), certif. denied, 121 N.J. 607 (1990). Although in Italian Fisherman, Inc. v. Commercial Union Assurance Co., 215 N.J. Super. 278, 281-82 (App. Div.), certif. denied, 107 N.J. 152 (1987), we utilized a preponderance of the evidence standard to fraud asserted as an affirmative defense, the claim was insurance fraud based on the criminal act of arson and we expressly distinguished the case from equitable fraud.
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As further noted by Judge Gizinski, buyer was aware, based on conversations with his realtor, that he had an affirmative duty to conduct his own due diligence respecting the depth of the water at sellers' dock. Buyer's acknowledgement on cross-examination that he told Shepherd he "would have to put a boat in the water, bring it over there and see if there was enough water to operate the boat[,]" clearly belies any claim of fraud on sellers' part. Buyer, however, did not take this step within the time frame to cancel the contract without consequences because he was in Florida and was unaware of the legal ramifications of the three-day attorney review period.
"If the terms of a contract are clear, they are to be enforced as written." Malick v. Seaview Lincoln Mercury, 398 N.J. Super. 182, 187 (App. Div. 2008). "[C]ourt[s] will not write a new contract for the parties or vary, enlarge, alter or distort its terms for the benefit of one to the detriment of the other under the guise of judicial interpretation." Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 197 (2004) (first alteration in original). As there was no breach by sellers regarding this provision, the judge properly concluded that buyer was bound, as a matter of law, to the terms of the contract and was not permitted to cancel it on this basis. Buyer's remaining arguments regarding his counterclaims pertaining to this issue are without sufficient merit to discuss in detail in this opinion. R. 2:11-3(e)(1)(E). Accordingly, a directed verdict was correctly entered on this issue.
We also reject buyer's argument that sellers' non-disclosure of the mortgage foreclosure proceedings was a fraudulent misrepresentation or material breach of the contract. A party materially breaches a contract when he or she "fails to perform 'essential obligations under the contract,'" during the course of performance, "and the other party may elect to terminate it." Ingrassia Constr. Co., Inc. v. Vernon Twp. Bd. of Educ., 345 N.J. Super. 130, 136-37 (App. Div. 2001).
As the judge noted, at the time the disclosure was signed, the property was not in foreclosure so the representation at the time was not a misrepresentation of a present or past fact. Although it would have been preferable for sellers to have updated the disclosure form after being served with the foreclosure complaint, buyer failed to demonstrate how the omission affected the essential terms or obligations of the sale agreement. The parties contracted for marketable title as of the closing date, which was not affected by the foreclosure; contrary to buyer's belief, the bank could not have stepped in and "taken" the property before closing. Accordingly, the judge properly ruled as a matter of law that the nondisclosure was irrelevant to buyer's fraud claim and entered a directed verdict on liability.
We turn now to sellers' cross-appeal. Sellers argue they are entitled to the full $147,328 sought because buyer presented no evidence they failed to mitigate damages, and the damages were otherwise uncontested. We disagree.
Following the directed verdict, prior to the final charge conference, the judge advised that she could not "call the damages as a matter of law" because buyer's mitigation defense raised material factual issues relating to the final sale price, which was the basis for most of the damage claim. Sellers' counsel responded that he "agreed" with her "but barely," then argued that Peter was not cross-examined on his computation of damages. The judge disagreed and submitted the damage issue to the jury. The jury awarded what it believed was a reasonable amount based on the evidence, i.e., $75,000.
The judge denied sellers' motion for a new trial on the issue of damages, finding the jury had sufficient evidence to assess the reasonableness of sellers' mitigation efforts and other aspects of the resale. She explained that credibility was relevant because sellers had a lawsuit in place by the time they accepted the second offer and noted that Jane did not testify to explain why they relisted the property for $100,000 less, stating:
I'm not saying you needed to. It's just the jurors had enough in this case from both sides to decide the effort, if you will, that was put in to sell the house once the Frisina deal fell through.
Judge Gizinski concluded:
Mitigation is such a soft thing. It's effort. . . . And effort is not as easy to quantify . . . .
. . . .
[T]he issue of mitigation is one for the jury to consider. They consider all kinds of things, not just what a good price was to put the house back on, but what they eventually took, why they took it. There was also some testimony about the contents and that the [sellers] may have made some money in the sale of the furniture or something. . . . I don't know what went into their consideration.
But I can say that their verdict doesn't shock my conscience.
"[A] trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence." Caldwell v. Haynes, 136 N.J. 422, 432 (1994). "The verdict must shock the judicial conscience." Ibid. "[I]f the verdict . . . has reasonable support in the record, the jury's evaluation should be regarded as final." Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977). Thus, a jury's verdict "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." Id. at 597-98. "The object is to correct clear error or mistake by the jury." Id. at 598.
We are satisfied the judge properly submitted the damage issue to the jury. The evidence at trial showed that sellers made considerable efforts to sell their house to buyer, listing it at $1,399,000, and negotiating a sales price of $1,125,000. Sellers, however, provided no explanation for the $100,000 reduction in their relisting two months later, as opposed to any other number, nor any testimony regarding their efforts to market the property that resulted in the sale to the Higgins for $999,999. In assessing sellers' mitigation efforts, the jury was thus free to conclude they did not make the same efforts to resell the house and to award them less than the requested damages. Sellers failed to demonstrate that the verdict was against the weight of the evidence and constituted a miscarriage of justice.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION