Belinski v. Goodman

• Citation: 354 A.2d 92,139 N.J.Super. 351
• Parties: Mary G. BELINSKI, t/a Topper Realty, Plaintiff-Respondent, v. Howard GOODMAN et al., Defendants-Appellants, and Irving Trust Company, a banking corporation of the State of New York, Charles M. Young, Cross-Claimants.
• Decision Date: 23 February 1976
• Court: New Jersey Superior Court – Appellate Division

Page 351

139 N.J.Super. 351

354 A.2d 92

Mary G. BELINSKI, t/a Topper Realty, Plaintiff-Respondent, v. Howard GOODMAN et al., Defendants-Appellants and Irving Trust Company, a banking corporation of the State of New York, Charles M. Young, Cross-Claimants.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 13, 1976.

Decided Feb. 23, 1976.

Wilentz, Goldman & Spitzer, Perth Amboy, for defendants-appellants (Warren W. Wilentz, Perth Amboy, of counsel, Mark Rosenthal and Marvin Lehman, Perth Amboy, on the brief).

Vincent F. X. Carlsen, Hackensack, for plaintiff-respondent.

Before Judges MATTHEWS, LORA and MORGAN.

MORGAN, J.A.D.

This was an action for tortious interference with prospective economic advantage arising out of the negotiations for the sale of a parcel of realty consisting of a large home on five acres of land located in Alpine, Bergen County. Plaintiff, Mary Belinski, is a real estate broker trading as Topper Realty. The property belonged to the estate of Katherine Shaw-Kennedy, and was being held for sale by the Irving Trust Company (hereinafter the 'bank'), coexecutor of the estate and a cross-claimant in this action, who gave plaintiff a nonexclusive authorization to sell this property.

In the spring of 1970 defendants Howard and Rona Goodman, husband and wife, consulted plaintiff with respect to locating suitable residential property in the Alpine area. Defendants became interested in the Shaw-Kennedy property and accordingly, plaintiff engaged in extensive negotiations with the bank on their behalf. At one point the parties reached agreement for a price of $275,000, but the sale was never consummated because of title problems with respect to part of the property. Negotiations nonetheless continued into the spring of 1971, with plaintiff acting as the sole broker.

In May 1971 defendants asked plaintiff to cut her commission. She agreed to accept $10,000 on the condition that the money be deposited in a trust account immediately and held there until closing. Mr. Goodman apparently became angered at this request and soon thereafter informed plaintiff that he was no longer interested in the property.

At about the same time a man named Zuman (Mrs. Goodman's former husband) commenced negotiations with the bank on behalf of a corporation known as the '11th Ave. 26th Corp.' with respect to the same property, advising the bank that the corporation was a 'front' for a wealthy oil operator who wished to purchase the property for his mistress. Following execution of a contract of sale for $203,040 title was transferred to this corporate entity on September 23, 1971. Zuman received a commission of $9,500. Plaintiff soon discovered, however, that this corporation was a mere Alter ego for the Goodmans and the sale to this corporation had the effect of depriving plaintiff of the commission to which she would have been entitled had the goodmans taken title in their own names. The present suit was thereupon instituted and, following trial, a jury awarded plaintiff $25,000 against the Goodmans and the 11th Ave. 26th Corp. This judgment was appealed and the Appellate Division, in an unreported decision, affirmed the judgment as to liability but remanded the case for a new trial on the issue of damages only. Defendants' petition for certification was denied.

Following a new trial on the damage issue, the jury returned a verdict of $9,720 in compensatory damages and $20,000 punitive damages. ¹ Defendants' motion for judgment N.o.v. or, in the alternative, for a new trial, was denied. Defendant objected to that part of the judgment which calculated prejudgment interest on the punitive damages awarded.

Defendants' contention that there was insufficient evidence adduced to permit the jury to estimate the amount of compensatory damages with some reasonable degree of certainty is without merit. The compensatory damage award of $9,720 was not, as defendants contend, based upon mere speculation. The evidence disclosed that plaintiff's commission was agreed by her to be $10,000 and that Zuman received a $9,500 commission as broker for the sale of this very property to defendants. The jury could reasonably have concluded, based upon this evidence, that plaintiff's loss resulting from defendants' tortious conduct, was somewhere between those two figures.

If the evidence affords a basis for estimating the damages with some reasonable degree of certainty, it is sufficient * * * The rule relating to the uncertainty of damages applies to the uncertainty as to the fact of damage and not as to its amount, and where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery * * * (Tessmar v. Grosner, 23 N.J. 193, 203, 128 A.2d 467, 472 (1957); citations omitted)

See also, Betenbaugh v. Princeton Hospital, 50 N.J. 390, 393, 235 A.2d 889 (1967); Paolicelli v. Wojciechowski, 132 N.J.Super. 274, 278, 333 A.2d 332 (App.Div.1975), certif. den. 68 N.J. 153, 154, 343 A.2d 441 (1975). Since we hold that sufficient evidence supports the award of compensatory damages, it becomes unnecessary for us to consider defendants' contention that an award of punitive damages cannot stand in absence of an award of compensatory damages.

Defendants next contend that improper remarks of plaintiff's counsel made during the course of summation influenced the jury's verdict as to the amount of damages. Defendants point to counsel's characterization of Mr. Goodman as a 'man of suspicion' who employs devious ways to accomplish his ends, a 'wheeler-dealer,' a 'schemer,' a man with an 'evil mind' with 'no heart' and with 'ice water where the blood should flow.' The overall tenor of these remarks was a description of Goodman as a wealthy, ruthless, corrupt and immoral businessman taking advantage of an honest and hardworking realtor. Although defense counsel moved for a mistrial at the conclusion of this summation, the basis of this motion was the several references to defendant's financial status (about which more later), and thus the point of argument must be regarded as referring to plain error.

Defendants' reliance upon Paxton v. Misiuk, 54 N.J.Super. 15, 148 A.2d 217 (App.Div.1959), ² and Haid v. Loderstedt, 45 N.J.Super. 547, 133 A.2d 655 (App.Div.1957), is inappropriate. Both were personal injury negligence cases in which counsel, during summation, made reference to matters not in issue. In Paxton the condemned remarks cast aspersions on the litigant's character which was not in issue. In Haid judgment for defendant was reversed because of defendant counsel's remark which implied that defendant was not insured when in fact he was. Neither case concerned an award for punitive damages in which the degree of malice with which the tort was committed was relevant. Cf. Pierce v. Yaccarino, 72 N.J.Super. 252, 178 A.2d 213 (App.Div.1962).

The claim for punitive damages in the present case made relevant the quality of defendants' motivation and intent with regard to the transaction in question. An act to give rise to punitive damages must be actuated by "actual malice, which is nothing more or less than intentional wrongdoing--an evil-minded at * * *." Di Giovanni v. Pessel, 55 N.J. 188, 191, 260 A.2d 510, 511 (1970).

* * * There must be circumstances of aggravation or outrage, such as spite or 'malice,' or a fraudulent or evil motive on the part of the defendant * * *. (Id. at 190, 260 A.2d at 511.)

Hence, the evidence presented, which arguably showed defendant to be a man of low moral fibre with respect to the transaction in question, and disclosed the wrongful motivation with which he undertook to accept title in a corporate name in order to deprive plaintiff of a commission, was relevant and reference thereto in summation was, therefore, not improper. The evidence, and the argument based thereon, bore on the degree of actual malice which attended his conduct and was therefore relevant to the amount of punitive damages appropriate in the case. No error, let alone plain error, has been shown.

Defendants next contend that prejudicial error occurred when plaintiff's counsel in summation referred to Goodman as a millionaire. The challenged remarks read as follows:

Do you realize what you have to earn to be able to keep over $300,000 with our taxes the way they are today, income taxes? That man's in the millionaire class. He earns millions of dollars. How do you punish a man like that? How do you punish him? You punish him where it hurts.

Shortly thereafter defense counsel moved for a mistrial because of these statements, and although the motion was denied, the trial judge did...