July 18, 2011
J.C. KAPAS REAL ESTATE COMPANY AND JOHN KAPAS, PLAINTIFFS-RESPONDENTS,
US INTERNATIONAL HOSPITALITY, INC. D/B/A VILLA ROBERTO RISTORANTE, GATOLLARI ENTERPRISES, INC., PERPARIM "ROBERTO" GATOLLARI,
FIRDES "DAISY" GATOLLARI, VAL GATOLLARI, AND TIM GATOLLARI, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2790-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2011
Before Judges A. A. Rodriguez and Reisner.
US International Hospitality, Inc, doing business as Villa Roberto Ristorante; Gatollari Enterprises, Inc.; Perparim "Roberto" Gatollari; Firdes "Daisy" Gatollari; Val Gatollari; and Tim Gatollari (collectively "Sellers"), appeal from a May 7, 2010 judgment in favor of J.C. Kapas Real Estate Company and John Kapas (collectively "Broker") in the amount of $285,558.10 in compensatory damages including interest and $15,000 in punitive damages. Sellers also appeal from the May 14, 2010 order denying a new trial. We affirm.
Sellers entered into a listing agreement with Broker for the sale of Villa Roberto Ristorante, including the Rochelle Park property on which it is located and a liquor license. Seller Perparim "Roberto" Gatollari, is an experienced restaurateur. The Broker represents itself as "The Restaurant Specialist." The June 28, 2007 listing agreement called for a listing price of $2,750,000, with a ten percent commission payable to Broker. The listing agreement provided that the "[c]ommission shall be earned when the Agreement of Sale is executed by the Buyer and Seller as to any sale." Another provision of the listing agreement states, "commission shall be deemed earned if Broker produces a customer with a written offer consistent with the Listing Agreement."
It is undisputed that an agreement of sale was never executed. It is also undisputed that Broker produced a purchaser, Paul Skiadas. Kapas and Skiadas both testified that Skiadas was ready, willing and able to enter into an agreement of sale consistent with the listing agreement.
However, Sellers and Skiadas never entered into a contract. According to Kapas, in July 2007, he learned that Seller was working with Tim Delaney, another broker, to sell the restaurant, in violation of the exclusive listing agreement. Broker sued Sellers to recover the commission, asserting causes of action for breach of contract and fraud.
At a jury trial, Kapas and Skiadas testified for the Broker; and Daisy Gatollari and Robert Gatollari testified for Sellers. The jury found that there was a binding agreement between Broker and Sellers; Broker was entitled to a $275,000 commission; and Sellers were to pay $15,000 punitive damagers. Sellers moved for a new trial. Judge Menelaos W. Toskos denied the motion.
Sellers appeal, contending that, the "jury verdict below is a miscarriage of justice . . . due to the jury overlooking and under evaluating crucial evidence and [the verdict] is clearly unjust." Sellers also contend that "Judge Menelaos W. Toskos erred by denying [Sellers'] motion for a new trial." We disagree.
The first contention is simply a challenge to the jury's verdict, which is the exclusive province of the jury. In a jury trial, neither the trial court nor the Appellate Division weigh credibility and make findings of fact. Credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). As for the denial of the motion for a new trial, the standard of appellate review is that a jury's verdict "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We defer to the jury with respect to "intangibles" not transmitted by the record (e.g., credibility, demeanor, "feel of the case"). Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). However, we review the record and make our own independent determination as to whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979).
Here, after a careful review of the record, we conclude that the jury's verdict is adequately supported by the evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, we perceive no miscarriage of justice warranting a new trial. See Dolson, supra, 55 N.J. at 6-8.
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