Jonnel Enterprises, Inc., Appellant, v. Dollar Savings Bank of New York, Appellee, 624 F.2d 398 (2d Cir. 1980)

This appeal is from an order denying a motion for a new trial after a jury verdict in favor of Dollar Savings Bank of New York (Dollar) in the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge. The motion for a new trial was grounded on a remark made by the court during cross-examination of a Dollar witness, on certain portions of the charge, and on the court's use of special interrogatories. Bearing in mind the principles of Fed. R. Civ. P. 61,¹  we affirm.

The complaint in this suit, brought by a Pennsylvania real estate developer and his two corporations engaged in the development of the Monroe Plaza Shopping Center in Monroeville, Pennsylvania (collectively "Jonnel"), against Dollar, a New York mutual savings bank, alleged breach of a commitment to lend Jonnel $1,100,000, to be secured by a mortgage on the shopping center. The principal defenses at trial were (1) that the amount of the mortgage commitment had been validly reduced, first from $1,100,000 to $925,000 and then to $800,000, an amount that would have been insufficient to cover all outstanding judgments and liens against the property so as to give Dollar its requisite first mortgage; and (2) that Dollar's counsel did not unreasonably or arbitrarily withhold their opinion that the title to the premises was satisfactory as of the date on which the commitment terminated by its terms. In connection with these defenses Dollar introduced evidence that some $845,000 worth of judgments and liens against the premises were not sufficiently cleared up to enable a closing to take place, and further argued that possibilities of violations of law existed, contrary to the mortgage commitment agreement,²  in that the Borough of Monroeville had not indicated zoning compliance and the Commonwealth of Pennsylvania had never issued a required Certificate of Occupancy. Dollar also argued that Jonnel or its representatives simply had not taken adequate steps to prepare for or schedule a closing in New York before July 31, 1969, when the mortgage commitment expired. Because Jonnel had apparently made some efforts to schedule a closing in the days just before the deadline, some of the testimony at trial focused on the mechanics of a closing, especially on what arrangements must be completed before a closing is actually held.

Jonnel's first claim is that the trial judge made prejudicial remarks during the cross-examination of Mr. Kurt Lore, a lawyer for Dollar. The comment complained of is contained in the portion of the transcript set forth in the margin.³  Jonnel objects to the judge's statement that as a "straight question of law" satisfaction of outstanding judgments on payment at closing, or subordination of them, would not have made the Dollar mortgage a valid first lien. This, Jonnel contends, was not only clearly untrue under controlling Pennsylvania law, as was pointed out to the court immediately, but made "such an impact upon the jury as to make their fair consideration of the primary issue in the case impossible." Dollar argues on the other hand that no objection was made and that in any event any error was harmless. We will treat counsel's express disagreement with the judge as a valid objection under Fed. R. Civ. P. 46. But we conclude that the remarks did not affect the outcome.

In the first place, the cross-examination did not, as appellant contends, relate directly to the "primary issue for the jury." At this point in the trial, Jonnel's counsel was trying to show that it was unreasonable for Dollar's lawyer to withhold his opinion that the title to the premises was satisfactory. In doing so, in earlier cross-examination set out in the margin,⁴  he had already elicited a concession from Mr. Lore contrary to the court's statement i. e., a statement that Dollar could have gotten a valid first lien if other liens and judgments were all satisfied. Subsequently no one argued, and the judge certainly did not charge,⁵  the theory of the case that the judge evidently⁶  was acting upon at the time he made these remarks. No one, that is, claimed that a valid first lien for Dollar would never have been possible, regardless of whatever other liens were eliminated. Instead, Dollar centered its defense on the contention that Jonnel's preparations simply were not sufficiently completed prior to the deadline. And the judge's instructions also treated this question as the main issue. In short, while the judge's remarks were unfortunate, we simply cannot say that Dollar may have won because of them. Thus, any error does not rise to a level requiring the granting of a new trial under Rule 61.

Jonnel's next point is that the court below erred in its charge to the jury concerning what Jonnel had to show at trial about its preparations for a closing. The portion of the charge objected to is set out in the margin.⁷  The argument is, in effect, that in this instruction the court adopted the defendant's argument that custom and practice require assurances from the borrower about the handling of all other liens, prior to the closing date of the loan. Appellant considers this instruction unjustified by the evidence presented. We disagree.

Both of the lawyers who testified about closings indicated that at least some pre-closing preparations are customary. Jonnel's lawyer, Harry Menzer, testified about Pennsylvania practices. He stated that major arrangements affecting the title, such as paying off existing liens, transferring insurance to the new mortgagee, and assigning leases, generally take place at the closing itself. However he also described a previous deal that included a "pre-closing," describing this meeting as an occasion for the parties to undertake the time-consuming task of making sure that all the documents "comport." Kurt Lore, Dollar's New York counsel, who described the New York practices, was also somewhat ambiguous about the subject of preparations prior to the closing. When asked about the mechanics of closing a deal he did state that "(i)n New York we gather information after having made substantially sure that the title report is or will be marked up, that is marked up by the representative of the title company in a fashion satisfactory to the lender."

In addition, common sense does indeed, as the judge suggested, lead one to doubt that the lender's lawyers are expected to render an immediate opinion on the validity of title with all the documents on that subject just submitted at the time of the closing. The record therefore contains a substantial foundation for that portion of Judge Duffy's charge concerning the customs and practices followed at real estate closings.

Jonnel's third argument is that the trial judge committed prejudicial error by charging the jury on the principles of estoppel in connection with the alleged modification of the mortgage commitment. The modifications involved obligated Dollar to lend amounts less than the original commitment of $1.1 million in the event that Jonnel failed to meet its initial goal of leases with $180,000 annual rent. They also added a requirement that a certain percentage of the leases obtained be for "AAA I rated tenants." These modifications were intended to aid Jonnel in obtaining short-term construction financing by decreasing the risk that Dollar's long-term loan would fall through. The validity of these modifications was an issue at trial because of Dollar's defense that a lower loan figure of $800,000 would not have been sufficient to cover the outstanding liens.

Estoppel was charged because the letters purporting to modify the commitment were not agreed to in writing by Jonnel. Jonnel's Point for Charge Number Two was that any modification of the original mortgage commitment (with the exception of the expiration date, which Dollar later extended unilaterally as it was authorized to do) was unenforceable unless evidenced by a written document signed by both Jonnel and Dollar. The court, however, charged the jury that it could find that there were valid modifications under an estoppel theory, apparently on the basis that, when Dollar extended the expiration date of the mortgage commitment over one year later, it was relying on Jonnel's acceptance of the modification in amounts.

No objection was taken to this portion of the charge and that alone is sufficient to prevent Jonnel from prevailing on appeal under Fed. R. Civ. P. 51. True, Jonnel did request a charge that would have obviated the estoppel charge that was ultimately given, but we think there was ample evidence to indicate that the modifications were clearly understood by appellant and became part of its contractual arrangements with appellee. The changes were made to help make the transaction go through, since construction lenders needed assurance that a permanent mortgage would be forthcoming even if the leases ultimately signed were less valuable than anticipated. The modifications mainly increased the obligations of Dollar, because the bank was required to lend money even if total signed leases were some $50,000.00 a year less in rentals than was originally specified in the initial $1,100,000 commitment. Moreover, there was an admission in the testimony of Mr. Jonnet, appellant's president, that he had agreed to take the $800,000 specified as a possible loan amount in the second modification letter, even though he already owed the construction lender $845,000. He hoped that one of the construction lenders, Commercial Bank and Trust Co., would loan him the balance on the strength of his previous dealings with it. Thus, appellant's contention that there was "no evidence or testimony in the entire case that plaintiff accepted the modifications as proposed in these letters" is simply not true.

Jonnel's last contention, which it also neglected to preserve for appeal by failure to object, is that the district court committed error by permitting the jury to return a verdict for Dollar without answering certain special interrogatories that had been submitted to it. These interrogatories pertained to whether Jonnel fulfilled the conditions for the loan prior to the deadline, whether there was a valid modification of the contract, whether the contract required Jonnel to obtain certain rental levels for "major" or "triple A" tenants and whether those levels were met, and whether Dollar unreasonably withheld approval of Jonnel's title and documents. The court instructed the jury to answer these questions if it found for Jonnel, but not if it found for Dollar.

The argument is that the questions would have been equally useful in explaining the jury's verdict in favor of Dollar. We take it that the judge considered these questions relevant only to damage issues, although Jonnel argues correctly that they also related to some of Dollar's defenses to liability. Nevertheless, we see no reason why such questions were essential in this case. It was therefore quite proper for the court to use the special interrogatory procedure only for damages. The fact that they had to be answered in case of a verdict in favor of Jonnel, but not in case of a verdict in favor of Dollar is, we think, immaterial.

Judgment affirmed.