Vander Zee v. Karabatsos

• Citation: 589 F.2d 723,191 U.S.App.D.C. 200
• Decision Date: 08 February 1979
• Docket Number: No. 77-1487,77-1487
• Parties: , 191 U.S.App.D.C. 200 Rein J. VANDER ZEE, Appellant, v. Kimon T. KARABATSOS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 723

589 F.2d 723

52 A.L.R.Fed. 485, 191 U.S.App.D.C. 200

Rein J. VANDER ZEE, Appellant, v. Kimon T. KARABATSOS et al.

No. 77-1487.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 25, 1978.

Decided Dec. 21, 1978.

Rehearing Denied Feb. 8, 1979.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 76-0468).

Walter T. Charlton, Washington, D. C., for appellant.

Kenneth A. Lazarus, Washington, D. C., with whom James J. Bierbower, Washington, D. C., was on the brief, for appellees.

Before TAMM and ROBB, Circuit Judges, and WILLIAM B. JONES, ^* Senior United States District Judge for the District of Columbia.

Opinion for the court filed by WILLIAM B. JONES, Senior District Judge.

WILLIAM B. JONES, Senior District Judge:

This case involves an alleged oral contract entered into between the plaintiff-appellant Rein J. Vander Zee and the defendant-appellee Kimon T. Karabatsos. In the trial below, the jury returned a verdict in favor of the plaintiff-appellant. The District Court then overturned the jury's determination by issuing a judgment notwithstanding the verdict (n. o. v.) pursuant to Federal Rule of Civil Procedure 50(b). The Court also contingently granted a new trial under Rule 50(c). Vander Zee has appealed from these rulings. For reasons stated herein, we reverse the entry of judgment n. o. v. and remand for a decision on whether to grant a new trial limited to the issue of damages.

I. INTRODUCTION

The complaint in this action was brought by Rein J. Vander Zee, an attorney licensed to practice in the District of Columbia and Texas. Appellant Vander Zee is attempting to recover funds that allegedly are owed to him by Kimon Karabatsos, the defendant-appellee.

In early 1975, Vander Zee was approached by William H. Savage, President of Savage/Fogarty, a real estate management firm, in connection with certain leasing difficulties that faced the company. The two men were acquainted because they previously had shared law offices. On this occasion, Savage requested Vander Zee to assist the company in renegotiating a lease between the General Services Administration (hereinafter the "GSA") and the Savage/Fogarty Company. The lease involved certain office space located at 1800 North Kent Street, Rosslyn, Virginia. The Savage/Fogarty Company had bought the property at a court ordered bankruptcy sale, and the previous owners' lease with the GSA required renegotiation in view of the bankruptcy and forced sale of the building.

Vander Zee declined Savage's request for direct assistance, explaining that extensive commitments in Texas left him with too little time to "keep on top of" the renegotiation sessions. Vander Zee did, however, offer to help find someone capable of advising Savage/Fogarty on the leasing matter.

Savage accepted Vander Zee's offer to refer a person capable of handling the GSA renegotiations. Indeed, according to Vander Zee, Savage suggested that Vander Zee be compensated for the referral service by splitting the fees eventually earned by the as yet undetermined third party. (Tr. at 94.) At trial, Savage denied making such a suggestion. (Tr. at 16-17.)

Vander Zee began to consider candidates who might qualify for the leasing negotiations needed by the Savage/Fogarty Company. Appellant Vander Zee claims that his screening process stretched over a six week period, and involved consideration of approximately two hundred people. Only two individuals, however, actually were contacted. (Tr. at 128.)

During this period, Vander Zee solicited the advice of Oliver Dompierre, the assistant to the Minority in the United States Senate. Dompierre recommended the appellee, Kimon T. Karabatsos. Karabatsos was not a lawyer, but was a licensed real estate broker in Virginia who had been self-employed as a business and government consultant for the past six years.

Vander Zee then contacted Karabatsos, and discussed the matter with him. Having concluded that Karabatsos was an acceptable candidate for the job, Vander Zee arranged a meeting between Karabatsos and William J. Fogarty, who appeared on behalf of the Savage/Fogarty Company. The meeting took place at the "116 Club," a private club in which both Vander Zee and Karabatsos were members.

Subsequent to this introduction, Vander Zee invited Karabatsos to his home for a breakfast meeting. It was on this occasion that the parties allegedly entered an oral agreement that entitled Vander Zee to one third of all compensation earned by Karabatsos for work done in renegotiating the GSA lease. (Tr. at 57-59; 99-100.)

Vander Zee brought suit in the District Court to enforce the oral agreement. A jury returned a verdict in favor of the plaintiff-appellant Vander Zee, awarding him "(o)ne third (1/3) of total monies received by the defendant and future monies to be received during the term of the lease with G.S.A." The District Judge overturned the jury finding by entering a judgment notwithstanding the verdict. He concluded that there was no substantial evidence of an oral agreement for the splitting of fees between Vander Zee and Karabatsos and that even if a contract did exist, it could not be enforced because it would constitute illegal "influence peddling" in the procurement of government contracts. The District Court also granted the defendant's motion for a new trial on the grounds that the verdict was against the weight of the evidence. It did not reach the defendant's alternative grounds for a new trial, excessive damages.

II. THE JUDGMENT NOTWITHSTANDING THE VERDICT

A motion for judgment notwithstanding the verdict should not be granted unless the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict. Luck v. Baltimore & Ohio Railroad Co., 166 U.S.App.D.C. 283, 510 F.2d 633 (1975); O'Neil v. W. R. Grace & Co., 410 F.2d 908 (5th Cir. 1969); Bennett v. D.C. Transit System, Inc., 111 U.S.App.D.C. 411, 298 F.2d 325 (1962); McWilliams v. Shepard, 75 U.S.App.D.C. 334, 127 F.2d 18 (1942); McCarthy v. Cahill, 249 F.Supp. 194 (D.D.C.1966); 5A J. Moore, Federal Practice P 50.07(2) (3d ed. 1977). As this Court pointed out in Lester v. Dunn, 154 U.S.App.D.C. 399, 475 F.2d 983 (1973), the standard for awarding a judgment n. o. v. is the same as that applied when ruling on a motion for a directed verdict. And in Alden v. Providence Hospital, 127 U.S.App.D.C. 214, 216, 382 F.2d 163, 165 (1967), we carefully delineated that standard:

The test to be applied in ruling on a motion for a directed verdict made at the close of the plaintiff's case is clear and uncontested in this litigation. Unless the evidence, along with all inferences reasonably to be drawn therefrom, when viewed in the light most favorable to the plaintiff is such that reasonable jurors in fair and impartial exercise of their judgment could not reasonably disagree in finding for the defendant, the motion must be denied.

See also Princemont Construction Co. v. Smith, 140 U.S.App.D.C. 111, 433 F.2d 1217 (1970).

Application of this standard to the facts of the case before us compels this Court to conclude that the District Court improvidently granted a judgment n. o. v. The record supplies ample evidence to support a jury finding that Vander Zee and Karabatsos entered into an enforceable oral contract. Specifically, the jurors heard Vander Zee testify that Karabatsos agreed to a division of fees at their breakfast meeting in consideration for referral of the Savage/Fogarty business. ¹ Rita Crossen backed up Vander Zee's account of the breakfast meeting. Mrs. Crossen, who was married to Vander Zee at the time of the transaction, was present at the meeting and testified that Karabatsos explicitly agreed to a split of the fees. ²

In addition to this direct testimony, the jury could have drawn inferences from other evidence to conclude that an oral contract existed between the parties. For example, the very occurrence of an early-morning breakfast meeting at the home of Vander Zee, on the day after Karabatsos' introduction to Fogarty, might itself imply that an important discussion between Vander Zee and Karabatsos took place at the time. Additionally, Dompierre's testimony concerning discussions with Karabatsos about a fee splitting arrangement with Vander Zee might support an inference that an oral contract existed between the parties. ³

Thus, the evidence presented before the Court, along with all reasonable inferences drawn from it, was not so one-sided that no reasonable jurors could find that an oral contract existed between Vander Zee and Karabatsos. The jury properly could have concluded, as it did, that words exchanged at the breakfast meeting manifested the requisite mutual assent of Vander Zee and Karabatsos to enter into a binding contract. ⁴ A judgment n. o. v. therefore was not appropriate. As Judge Goldberg stated in Powell v. Lititz Mutual Insurance Co., 419 F.2d 62, 64 (5th Cir. 1969) A judgment notwithstanding the verdict is permissible only when without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict. Brady v. Southern Railroad, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943). In other words, where, as here, there is substantial conflicting evidence a judgment notwithstanding the verdict is improper.

III. THE DECISION TO GRANT A NEW TRIAL

Pursuant to Rule 50(c), ⁵ the District Judge made a conditional decision on the defendant's motion for a new trial. He granted the motion, on the grounds that the jury's verdict was against the weight of the evidence and was void, being a "miscarriage of justice." He did not reach the alternative grounds of excessive damages that the defendants advanced.

As implied by Rule 50(c)'s language, this Court has the duty to review the appropriateness of the trial court's conditional grant of a new trial. The rule states, in part, that ...