DIRECT TRAVEL, INC., et al. v. HERBERT S. EDELBERG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2483-04T12483-04T1

DIRECT TRAVEL, INC., DIRECT TRAVEL OF

CALIFORNIA, INC., DIRECT TRAVEL OF

CHICAGO, INC., DIRECTLINK TECHNOLOGIES,

DIRECT TRAVEL VACATIONS, INC., and

HERBERT S. EDELBERG,

Plaintiffs-Appellants,

v.

VTS TRAVEL ENTERPRISES, INC.

and VINCENT VITTI,

Defendants-Respondents.

________________________________________

 

Argued: September 12, 2006 - Decided December 18, 2006

Before Judges Kestin, Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, BER-L-7723-02.

Neil H. Deutsch argued the cause for appellants (Deutsch Resnick, attorneys; Mr. Deutsch and Steven Siegler, on the brief).

Christopher C. Botta argued the cause for respondents (Botta & Carver, attorneys; Mr. Botta, of counsel and, with Kelly J. Kirk, on the brief).

PER CURIAM

Plaintiffs appeal from a judgment in their favor, arguing an entitlement to an additional $250,000 in contract damages. The judgment reflects a jury verdict in favor of defendants on the validity and effectiveness of an "amended consulting agreement" between plaintiff Herbert S. Edelberg and defendant VTS Travel Enterprises, Inc. (VTS). The trial court had previously denied plaintiffs' motion for summary judgment on that question and their motion for reconsideration. Following the trial, the court denied plaintiffs' motion for a new trial and other relief. The parties have stipulated a dismissal of defendants' cross-appeal from the judgment. We affirm.

The dispute stems from the sale of a business by plaintiffs to defendants. The parties signed several contracts to effect the sale, including a "consulting agreement" between Edelberg and VTS dated June 25, 1999, that provided in clause 2, under the heading "Consulting Fees," for an "Initial Payment" in the following terms: "Upon execution of this Agreement, [VTS] shall pay [Edelberg] an initial Consulting fee of $250,000." A week later, on July 2, 1999, Edelberg and VTS entered into an "amended consulting agreement" that contained the following modified "Initial Payment" provision: "Upon execution of this Agreement, [VTS] shall advance [Edelberg] an initial Consulting fee of $250,000 to be applied against the earnout due [Edelberg] under paragraph 2(c) herein. The advanced payment of $250,000 shall be prorated during years 2 and 3 of this Agreement." Several other changes in the agreement reflected this modification, including the addition of clause 7e: "This Agreement supercedes and amends the Consultant Agreement between the parties hereto dated June 25, 1999 which hereby rescinded and deemed to be of no further legal effect." [sic]

Edelberg has contended throughout that the "initial payment" provision in the first agreement was clear and unambiguous, that the second agreement was unsupported by independent consideration, and that he entered into it under duress. He has also contended that the "affirmative defense of clarification" furnished no adequate basis for validating the amended consulting agreement or for admitting parol evidence to establish the intent of the parties. He asserts on appeal that the trial court erred in denying his motion for summary judgment on these grounds, in admitting parol evidence for consideration by the jury, and in "instructing the jury to consider the affirmative defense of clarification even if it determined that the parties had a meeting of the minds that the $250,000 payment was a non-repayable fee."

The first four questions submitted to the jury bore upon these issues. The jury found, inter alia, that Edelberg had established that he and VTS "had a meeting of the minds that Edelberg would receive a consulting fee of $250,000 in connection with the sale[;]" that VTS had not established "that the amended consulting agreement was a document entered into under seal[;]" that Edelberg had not established that the amended consulting agreement "was entered into in the complete absence of consideration[;]" and that Edelberg had not established that the amended consulting agreement "was entered into under duress."

Our analysis of the record, in the light of the written and oral arguments advanced by the parties and prevailing standards of law, discloses that the denial of plaintiff's motion for summary judgment was correct substantially for the reasons stated by Judge Jonathan Harris in his oral opinion; and that Judge Walsh, who presided over the trial, committed no error either in declining to rule that the consulting agreement was clear and unambiguous or in admitting parol evidence to aid in resolution of the issues. We also discern no flaw warranting our intervention in the court's instructions to the jury and the jury interrogatories. Moreover, the record discloses that the evidence in the case provided sufficient support for the jury's verdict that the amended consulting agreement was valid and binding.

We reject plaintiffs' argument that the jury's answers to interrogatories one and three were inconsistent. The first question asked whether the parties had agreed that Edelberg would receive a consulting fee. The third focused on the nature, scope and circumstances of the amended consulting agreement as it bore upon the issue of independent consideration, including the need for clarification. The trial court was clearly correct to view the parties' understandings and intentions as an issue of fact to be resolved by the jury.

 
We also reject plaintiffs' argument, advanced on appeal, that the third interrogatory misallocated the burden of proof. Plaintiff lodged no objection before the trial court to the wording of that interrogatory or the attendant instruction, and will not be heard to raise the issue for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). See also Mogull v. CB Commercial Real Esate Group, Inc., 162 N.J. 449, 470-71 (2000) ("a correct jury charge can cure an ambiguity in a jury interrogatory"); Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415-20 (1997)(same). There was no plain error here. See R. 1:7-2; 1:7-5; 2:10-2; Mogull, supra, 162 N.J. at 466-71. The trial judge charged the jury that "VTS has the burden of establishing . . . that clarification of [the parties'] rights or duties [under their contract] existed here."

The judgment is affirmed.

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A-2483-04T1

December 18, 2006