Lussier v. North Troy Engineering Co., Inc.

• Decision Date: 30 March 1988
• Docket Number: No. 85-089,85-089
• Citation: 544 A.2d 1173,149 Vt. 486
• Parties: Roger R. LUSSIER v. NORTH TROY ENGINEERING COMPANY, INC. and Roger R. LUSSIER v. Saad GABR.
• Court: Vermont Supreme Court

Page 1173

544 A.2d 1173

149 Vt. 486

Roger R. LUSSIER v. NORTH TROY ENGINEERING COMPANY, INC. and Roger R. LUSSIER v. Saad GABR.

No. 85-089.

Supreme Court of Vermont.

March 30, 1988.

David C. Drew, Lyndonville, for plaintiff-appellant.

Zuccaro, Willis & Bent, St. Johnsbury, for defendant-appellee Gabr and defendant-appellant North Troy Engineering, Inc.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, ¹ JJ.

GIBSON, Justice.

Plaintiff appeals from the trial court's granting of a directed verdict in favor of defendant Saad Gabr; defendant North Troy Engineering Co., Inc. (North Troy) cross-appeals from a jury verdict against it. We affirm the judgment entered by the trial court.

During the months of September and October of 1982, plaintiff entered into a contractual agreement with defendant North Troy, the precise terms of which are in dispute. Undisputed is the fact that plaintiff was hired to find a Vermont bank, the controlling interest of which could be purchased by North Troy at a price less than one and one-half times the bank's equity. As consideration for this service, plaintiff would receive a "finder's fee" of $50,000.

On December 12, 1982, plaintiff met with defendant Gabr, the sole stockholder of North Troy. During this meeting, the parties discussed the possible purchase of two banks, one of which was the Bradford Bank of Vermont. Plaintiff told Mr. Gabr he was concerned that North Troy would not have the financial ability to pay plaintiff the $50,000 finder's fee. Mr. Gabr thereupon orally assured plaintiff that if North Troy did not pay plaintiff, he would pay plaintiff.

Although there is no evidence that plaintiff ever met with the shareholders of any bank to ascertain that a deal could be made for the purchase of a controlling interest, plaintiff nonetheless alleges that he performed his part of the contract after the meeting of December 12. He requested payment of his fee from North Troy, which refused the request. When Mr. Gabr refused a similar request, plaintiff then brought suit against both defendants.

At trial, at the close of plaintiff's case, the court directed a verdict in favor of Mr. Gabr on the ground that Mr. Gabr's oral promise to pay was unenforceable under the Statute of Frauds. Thereafter, the jury returned a verdict against North Troy.

I.

In its cross-appeal from the jury verdict, North Troy maintains that there was insufficient evidence for the jury to ascertain the terms of the agreement between the parties; thus, the jury could not have determined whether plaintiff had fulfilled the agreement when he reported back that the Bradford Bank met all of the specified requirements and was available for purchase by North Troy at a price of one and one-quarter times equity. North Troy further maintains that even if the agreement required only that plaintiff locate a Vermont bank that North Troy could purchase, plaintiff did not "substantially perform" because the proposed sale was never put before the bank's shareholders for approval. In essence, North Troy contends that plaintiff never established that enough shareholders were willing to sell a controlling interest in the bank, and plaintiff therefore did not present sufficient evidence to support the verdict.

At the close of plaintiff's evidence and again at the close of all the evidence, North Troy moved for a directed verdict on the ground that the evidence was insufficient to support the plaintiff's allegations. The nub of the motion was that plaintiff could not have performed his part of the agreement until the question of whether to sell to North Troy had been submitted to the bank's shareholders and approved by those holding a majority of the shares of stock. It is undisputed that this question was never presented to or voted on by the shareholders of the Bradford Bank. North Troy received an adverse ruling on its motion by the trial court both at the close of plaintiff's evidence and again at the close of all the evidence. North Troy contends that the trial court erred, and now seeks the entry of judgment in its favor on the basis of its motion for directed verdict.

A.

To preserve for appeal a request for judgment pursuant to a motion for directed verdict, defendant must have filed a motion for judgment notwithstanding the verdict (n.o.v.) with the trial court. See Johnson v. New York, N.H. & H.R., 344 U.S. 48, 50-54, 73 S.Ct. 125, 126-29, 97 L.Ed. 77 (1952) (under Fed.R.Civ.P. 50(b), ² appeals court could not enter judgment for defendant on arguments raised in its motion for directed verdict, absent motion for judgment n.o.v.); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 218, 67 S.Ct. 752, 756, 91 L.Ed. 849 (1947) (in absence of motion for judgment n.o.v., appellate court was without power to enter judgment contrary to jury verdict); see also 9 C. Wright & A. Miller, Federal Practice and Procedure Civil § 2537, at 604 (1971) ("Judgment cannot be had as a matter of law, either after verdict or after a jury disagreement, in the absence of a motion for judgment.").

In the instant case, North Troy did not request judgment n.o.v. under V.R.C.P. 50(b). In the absence of such a motion, we may not enter judgment for North Troy, should we agree with its position. We are not necessarily precluded, however, from reviewing the trial court's ruling on the motion for directed verdict to determine whether there was error warranting reversal and a new trial. See Lenard v. Argento, 699 F.2d 874, 888 (7th Cir.), cert. denied 464 U.S. 815, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983) (failure of appellant to file motion for judgment n.o.v. or motion for new trial limits the relief available from the appellate court to that of possibly ordering a new trial) (citing Cone, 330 U.S. 212, 67 S.Ct. 752; 5A J. Moore & J. Lucas, Moore's Federal Practice p 50.12 (2d ed. 1981)); see also Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1511 (Fed.Cir.1984) (where no posttrial motions for judgment n.o.v. or new trial were filed and appeal is directly from judgment entered on jury's verdict, review of sufficiency of evidence is extremely limited or nonexistent, prejudicial legal error must be shown to have occurred in conduct of trial, and action of appellate court is limited to affirmance or remand for new trial).

North Troy contends that, not only was the evidence insufficient, but there was, in fact, an absence of evidence that would warrant sending the case to the jury, because plaintiff never obtained a commitment from shareholders owning a majority of the shares of a bank that they would sell their stock to North Troy. In light of North Troy's contention that there was an absence of any evidence to support the verdict, we shall, in our discretion, review the issue, despite the lack of a motion for judgment n.o.v., to determine whether a new trial is warranted. See Jones v. Reliance Ins. Co., 607 F.2d 1, 3-4 (D.C.Cir.1979) (where appellant failed to move for judgment n.o.v., appellate relief was limited to ordering a new trial, and trial court's refusal to direct a verdict was ground for a new trial only if record revealed a complete absence of evidence to support jury's verdict).

B.

Motions for directed verdict require a consideration of the evidence in the light most favorable to the nonmoving party, excluding the effect of any modifying evidence. Sachse v. Lumley, 147 Vt. 584, 586, 524 A.2d 599, 600 (1987). If there is any evidence fairly and reasonably supporting the nonmoving party's claim, the case should go to the jury, and a directed verdict would be improper. Id.

Viewing the evidence in the light most favorable to plaintiff, and excluding the effect of any modifying evidence, we find that the record discloses the following facts. In October 1982, an agreement was consummated between plaintiff and North Troy whereby plaintiff agreed to search for a Vermont bank that could be purchased by North Troy at a price not to exceed one and one-half times the bank's equity. Plaintiff was to pay his own expenses for all the preliminary work in finding such a bank. If successful, plaintiff was to be paid a finder's fee, or commission, of $50,000.

Plaintiff proceeded to investigate several possibilities, including the Caledonia Bank and the Bradford Bank. On December 12, 1982, he met with Mr. Gabr, who promised to pay plaintiff's commission if North Troy failed to do so. The next day, plaintiff met with the president of the Bradford Bank, who agreed to a sale of that bank to North Troy at a price of one and one-quarter times the equity. The bank president assured plaintiff there would be no difficulty in obtaining shareholder approval inasmuch as the bank had previously been offered for sale for less than that amount. On December 22, 1982, the bank president met with plaintiff, defendant Gabr, and the vice president of North Troy at Mr. Gabr's home in North Hatley, Quebec to confirm that North Troy's offer to purchase the Bradford Bank had been accepted.

On January 31, 1983, a meeting was held in Sherbrooke, Quebec, attended by plaintiff Mr. Gabr, Mr. Gabr's...