NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5664-14T3
YOAV KRILL,
Plaintiff-Respondent,
v.
IDT CORPORATION, INC.,
Defendant-Appellant,
and
HOWARD JONAS,
Defendant.
Argued March 16, 2017 – Decided July 21, 2017
Before Judges Alvarez, Accurso and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2012- 13.
Jason C. Cyrulnik (Boies Schiller & Flexner LLP) of the New York Bar, admitted pro hac vice, argued the cause for appellant (Reed Smith LLP, and Mr. Cyrulnik, attorneys; Mr. Cyrulnik, of counsel and on the brief; Daniel Mateo, on the brief).
Leonard Z. Kaufmann argued the cause for respondent (Cohn Lifland Pearlman Herrmann & Knopf LLP, attorneys; Mr. Kaufmann, on the brief). PER CURIAM
Defendant IDT Corporation, Inc.1 appeals a jury's verdict
after a three-day trial awarding $1.5 million in damages to
plaintiff Yoav Krill on his breach of contract complaint. For the
reasons that follow, we affirm.
At the close of Krill's case, IDT unsuccessfully moved for a
directed verdict. In denying the motion, the judge observed that
"the ultimate determination of the facts is going to rest with
findings of credibility . . . within the purview of the jury
alone." The jury verdict sheet, tracking the complaint, presented
the issues in readily understandable terms, to which the jury
responded definitively:
1. Did Plaintiff Yoav Krill and IDT Corporation form a contract? YES; 8-0. 2. Did IDT breach the contract with Yoav Krill? YES; 6-2. 3. Did IDT breach the implied covenant of good faith and fair dealing? YES; 8-0. 4. Did Yoav Krill incur damages a result of the breach of the contract? YES; 8-0. 5. What is the amount of damages incurred by Yoav Krill as a result of the breach of the contract? $1.5 million; 6-2.
In her statement of reasons denying defendant's motion for
judgment notwithstanding the verdict (JNOV), the judge first
1 The only count in the complaint naming defendant Howard Jonas, the fifth count, alleged common-law fraud. That count against him and IDT was dismissed on November 7, 2014, on partial summary judgment.
2 A-5664-14T3 correctly stated the standard for determining such applications.
She next reviewed the testimony developed during the trial,
concluding:
Ultimately, the jury's verdict involved weighing issues of credibility on material facts. The jury charge was without objection and included that consideration and specificity were two necessary elements that they must find in order to return a verdict in favor of plaintiff. In sum, the court finds that reasonable minds could differ, and there were significant issues of credibility which were resolved by the jury in plaintiff's favor.
By way of background, Krill became employed by IDT in May
1998, the same year he met Jonas, with whom he became friends.
IDT is a telecommunications company having its principal place of
business in Newark. Krill has advanced degrees in various subjects
including mathematics. Before working for IDT, he was employed
at LL Airlines, Basic Israel Telecom, and Alcatel. Krill developed
international service for IDT, traveling frequently between Europe
and New Jersey.
The year he first began to work for the company, Krill
assisted Jonas through an employee challenge to Jonas' management.
When IDT expanded in 1999, Krill became a senior vice president
and general director of IDT Europe. He traveled throughout the
globe, building telecom connectivity, including the installation
of submarine cables from Europe to Israel and Egypt. He was
3 A-5664-14T3 instrumental in the installation of trans-Atlantic and trans-
Pacific cables for IDT.
Krill lived in Switzerland, from where he managed IDT's
subsidiaries and global operations. His annual compensation in
the 2000s ranged from $150,000 to $200,000 annually, with bonuses
in one year of $1 million. In April or May 2007, Krill advised
Jonas that he wanted to retire in 2008 upon attaining age sixty-
seven, as he would then be eligible for certain retirement benefits
in Israel. Jonas agreed to accommodate him, and to allow him to
continue working until September 2008, when he would attain the
necessary age. Krill's annual compensation was increased from
$150,000 to $190,000.
In May 2008, Krill learned from Shmuel Jonas, Jonas' son,
that Krill would be terminated by the end of the month. Krill
immediately contacted Jonas, who agreed to allow Krill to stay on
until September. Despite these assurances, on June 3, 2008, Krill
received an email from managing counsel for IDT Labor and
Employment, advising him that his separation and release
agreements were available.
When Krill returned to his office from Israel, it was only
to find he was locked out and that his access card for entry into
the building no longer worked. Jonas' son advised that he would
not be paid if he did not sign the release and separation
4 A-5664-14T3 agreement. As a result, Krill retained counsel, Bruce Johnson,
Esquire, who wrote to IDT's Labor and Employment attorney, advising
that he had been retained to represent Krill. On June 9, 2008,
Krill contacted James Courter, the IDT Chief Executive Officer
(CEO), and protested his termination. On June 12, 2008, Jonas
contacted Krill and advised that the termination had been an error,
and agreed his employment could continue until September 2008.
On June 26, 2008, Johnson wrote to IDT seeking to enter into
a written agreement for a $3.5 million severance package, asserting
that Krill had been fired based on his age and nationality, and
treated unlike similarly situated managers who upon separation
received substantial severance pay. The letter specifically
referred to Krill's intent to file suit in the event no agreement
could be reached.
The following day, Jonas called Krill and on July 2, the men
met at a restaurant. During the meeting, Jonas explained that the
company was encountering some financial difficulties. They agreed
to meet to engage in further discussions, ultimately rescheduling
to July 10.
When Krill met with Jonas, he demanded $3.5 million based on
his knowledge of other IDT employees who received severance
packages upon the conclusion of their service to the company. For
5 A-5664-14T3 example, Krill mentioned his own assistant, who received a $2.5
million severance payment.
Krill and Jonas met again on July 30, 2008, at which point
according to Krill the men agreed he should be paid $2.5 million.
Because IDT was experiencing financial difficulties, Jonas said
the money could not be paid immediately.
Krill testified that Jonas agreed to pay $250,000 in salary
for four years, and two additional payments of $800,000 and
$700,000. In return, Krill agreed to be available for additional
work for IDT as necessary over the next four years, and that he
would forego suing the company because the parties had arrived at
an agreement. On cross-examination, Krill appeared to contradict
himself and stated that he did not agree to release any "hostile
claim" he may have had.
During his July 30, 2008 meeting with Jonas, Krill called his
attorney on speakerphone, and reviewed the terms of the agreement
the two men had reached. Jonas, according to Johnson's testimony,
confirmed the financial terms, and said that Johnson and Ira
Greenstein, a lawyer who represented that he was the president of
IDT, would finalize the terms. Krill later advised Courter, who
was present for part of the meeting, that a deal had been struck.
Krill's salary and work privileges were reinstated in August
2008. In August and September, Krill, Johnson, and Greenstein met
6 A-5664-14T3 regarding the agreement. Greenstein advised it was his job to
arrange for the $1.5 million additional payments, and that Dov
Schwell, an IDT attorney, would arrange for the four annual
$250,000 payments. At one of these meetings, Greenstein said that
the $1.5 million would be financed through an affiliate company.
At trial, Krill testified that Greenstein never questioned the
$2.5 million figure. Greenstein did not testify.
On September 24, 2008, Jonas called Krill to confirm the
agreement, but mentioned that there were difficulties in obtaining
the money. He offered to immediately pay $625,000 and cut the
lawyers out of the deal. Krill refused.
In the summer of 2009, Krill and Courter met at the Newark
Club. Krill testified that Courter confirmed that Jonas had agreed
to the settlement.
Throughout the four years he was paid $250,000 annually by
IDT, Krill was the chairman of a business known as Suspect
Detection Systems, from which enterprise he received stock
options. IDT was aware of his involvement and did not object.
IDT never paid Krill the $1.5 million in additional payments.
During his four years of receiving the $250,000 payments,
Krill assisted in a lawsuit involving Tyco. He may have also been
involved in a deposition in a case against Telligent, but could
not recall the date. Krill said that neither he nor Jonas
7 A-5664-14T3 discussed a release, non-compete, or non-disparagement agreement.
No more specific discussion regarding the work that Krill would
perform was ever conducted.
Krill, at least, did not consider that unusual. He had never
had a written agreement with Jonas regarding his employment. When
shown a copy of a proposed 1998 employment agreement bearing his
signature, Krill identified the document at trial as merely a
proposal presented by his own attorney when he first began to work
for IDT. It was never signed by the company. Krill said that the
chief operating officer of the company told him that IDT did not
enter into written agreements for executives.
On cross-examination, Krill was asked about the failure of
the parties to have entered into a written agreement, and whether
that was the result of the absence of any "meeting of the minds
between [he] and IDT[.]" Krill responded, "correct."
Johnson's account corroborated Krill's testimony. He
recalled that during the July 30 phone call, Jonas confirmed that
IDT would pay Krill $250,000 per year for four years, would also
pay $800,000 immediately, and $700,000 at a later date. Johnson
could not remember the date that was discussed. When he said that
some form of security would be necessary to guarantee the payments,
Jonas agreed.
8 A-5664-14T3 Johnson also recalled meeting twice with Krill and
Greenstein, and discussing how the money would be obtained to pay
Krill. Greenstein stated that Schwell would be processing the
$250,000 annual payments, and that Krill would be providing
additional services for that compensation. The additional
services would include working on a dispute involving Tyco,
remaining chairman of the board of IDT Europe, assisting IDT in
negotiations with the IRS involving the sale of NotetoPhone, and
facilitating an opportunity for IDT to invest in Suspect Detection
Systems, Ltd., in which Krill had been heavily involved.
Johnson recalled Greenstein saying that he was personally
attempting to obtain the remaining $1.5 million, which Johnson
understood would be paid in an initial, secured $800,000 payment
within sixty days, possibly coming from another corporate entity,
while the remaining $700,000 would also be secured, but paid in
yearly increments. After the meeting, Johnson received an email
from Greenstein to the effect that he should be able to deliver
as discussed within a sixty-day timetable.
Johnson also testified that Schwell was not aware of the
$800,000 and $700,000 payments, and was involved only in drafting
an employment agreement. The document Schwell prepared included
the $250,000 annual compensation but not the remaining $1.5
million. Johnson marked up the employment agreement and sent an
9 A-5664-14T3 email to Greenstein, suggesting that perhaps some discussion
should be had with Schwell because Schwell was unaware of the
terms that Krill and Jonas had reached.
Johnson's proposed changes to the Schwell agreement revised
the scope of Krill's employment. Johnson's changes were: that
Krill was not required to work in Newark nor required to devote
his efforts to the company full-time, increased Krill's
compensation in the fourth year from $175,000 to $250,000, removed
a provision which would have nullified prior bonuses, removed a
"release" provision, added an indemnification clause for Krill's
benefit, amended the terms regarding termination to ensure that
Krill would be paid the $1 million annual installments he had been
promised, and modified the merger clause to allow the parties to
enter into other agreements because there might be other
understandings that the parties would reach related to Krill's
employment.
Johnson sent the marked-up document to Schwell, but never
received any communication that the changes were unacceptable or
negotiations broken off. No written agreement was ever reached.
In the email to Greenstein, Johnson had also sought an update
on the $1.5 million additional payments. Greenstein had
reaffirmed that he was responsible for funding those payments.
10 A-5664-14T3 Johnson met again with Greenstein and Krill on September 2,
2008, to discuss securing the $1.5 million payments. Greenstein
confirmed IDT was still committed to the same terms that Jonas had
confirmed to Johnson on July 30, 2008. They discussed including
language in the employment agreement Schwell was drafting
regarding Krill's entitlement to additional bonus payments, and
discussed drafting a side letter or a side agreement in which
plaintiff agreed to waive any age-related claims against IDT.
Greenstein asked for wiring instructions for the $800,000
installment because another company other than IDT would be making
the payment and did not have that information.
Johnson and Greenstein subsequently communicated regarding
the security for the $1.5 million payment. No one ever advised
Johnson that IDT was not going to complete the transaction, nor
did anyone from IDT ever advise him that the company had not
entered into an agreement to pay Krill a total of $2.5 million.
Johnson was adamant that he was attempting to memorialize an
agreement that had been already reached between Krill and Jonas.
Although Greenstein did not testify, Schwell did. At the
time of these negotiations, he had been employed as in-house
counsel for IDT. His testimony was that the reason no written
agreement was entered into was that key terms were not agreed
upon, including minimum performance standards, IDT's right to
11 A-5664-14T3 termination, releases, indemnities requested by Krill, and the
insertion of a merger clause. He also stated that he was only
responsible for the $250,000 a year payments, and that he had no
knowledge of the additional $1.5 million settlement. He never
specifically broke off negotiations because the parties could not
agree on terms. He acknowledged that despite the absence of a
written agreement, Krill was paid $250,000 a year for each of four
years.
Courter, although he was not present during the meetings
between Krill and Jonas, confirmed he met with Krill at the Newark
Club. Contrary to Krill's testimony, he said that he told Krill
there was no agreement.
Courter was the only witness who testified it was standard
practice for the company to enter into written agreements with
high-level employees, a fact disputed by the other witnesses,
including those testifying for IDT.
Jonas testified that he had agreed to pay Krill half of his
salary and keep him on part-time for four years until he reached
retirement age in Israel. His son mistakenly fired Krill four
months before he became eligible. Although Jonas acknowledged
receiving a letter from Krill's attorney demanding $3.5 million,
he thought the amount was ridiculous considering that Krill had
already received close to $800,000 for the last four years.
12 A-5664-14T3 Furthermore, Jonas claimed that he agreed to keep Krill on IDT's
payroll for four more years with an annual salary increase to
$250,000, if he was able to do so, only because Krill had been
diagnosed with thyroid cancer, and his wife had health issues as
well. He denied the payments were made pursuant to an agreement.
In deposition, however, Jonas had confirmed that IDT agreed
to pay Krill in exchange for his availability and his decision not
to sue the company for wrongful termination. He also acknowledged
that even though Krill had agreed to remain available, there were
no specific responsibilities he was expected to fulfil during this
period of time.
Jonas denied agreeing to pay Krill the additional
$1.5 million in severance. He acknowledged having a meeting during
the course of which Johnson was on the phone, however, he said
that the conversation was like "watching a movie" because he never
agreed to anything. He denied being put on speakerphone, denied
confirming a $2.5 million payment with Johnson, denied ever
speaking with Johnson, and insisted he did not even know what his
voice sounded like. Jonas further testified that Greenstein held
a ceremonial title as president of IDT, but did not have the
authority to commit to payments on behalf of IDT.
Now on appeal, IDT raises the following points for our
consideration:
13 A-5664-14T3 I. JNOV Dismissing Krill's Claim Should Be Granted Because The Undisputed Evidence Showed That The Parties Never Reached Agreement On A Release From Krill To IDT – A Term That Krill Himself Alleged To Be Material.
II. The Parties' Undisputed Failure To Reach Agreement On The Terms Of Krill's Purported Employment Warrants JNOV In IDT's Favor, Or, At A Minimum, A New Trial.
III. At A Minimum, IDT Is Entitled To A New Trial Because The Evidence Shows That The Parties Did Not Intend To Be Bound By Their July 30 Meeting.
I.
A motion for a judgment notwithstanding the verdict
under Rule 4:40-2 must be denied if the evidence, together with
legitimate inferences therefrom, could sustain the
judgment. Riley v. Keenan, 406 N.J. Super. 281, 298 (App. Div.)
(citing Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)), certif.
denied, 200 N.J. 207 (2009). We do not weigh the evidence.
Polyard v. Terry, 160 N.J. Super. 497, 505-06 (App. Div. 1978),
aff'd o.b., 79 N.J. 547 (1979). Rather, we accept as true all
evidence which supports the position of the party defending against
the motion and accord the defending party the benefit of all
inferences which can reasonably and legitimately be drawn. If
reasonable minds can differ, the motion must be denied. Filgueiras
v. Newark Pub. Sch., 426 N.J. Super. 449, 456 (App. Div.) (quoting
14 A-5664-14T3 Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)), certif. denied, 212
N.J. 460 (2012).
This court's review of an order denying a new trial motion
is limited to consideration of whether it clearly results in a
miscarriage of justice under the law. R. 2:10-1; Dolson v.
Anastasia, 55 N.J. 2, 5-7 (1969). Due deference is given to the
trial court's "feel of the case." Jastram v. Kruse, 197 N.J. 216,
230 (2008) (citation omitted). Evidence is viewed in the light
most favorable to the party opposing the motion, Caldwell v.
Haynes, 136 N.J. 422, 432 (1994), and we do not substitute our
judgment for that of the jury, granting the motion "only where to
do otherwise would result in a miscarriage of justice shocking to
the conscience of the court." Risko v. Thompson Muller Auto.
Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Kulbacki v.
Sobchinsky, 38 N.J. 435, 456 (1962)).
A "miscarriage of justice" has been described as a "pervading
sense of "wrongness" needed to justify [an] appellate or trial
judge undoing of a jury verdict . . . [which] can arise . . . from
manifest lack of inherently credible evidence to support the
finding, obvious overlooking or under-valuation of crucial
evidence, [or] a clearly unjust result. " Lindenmuth v. Holden,
296 N.J. Super. 42, 48 (App. Div. 1996) (alterations in original)
15 A-5664-14T3 (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977)),
certif. denied, 149 N.J. 34 (1997).
II.
An oral contract requires a meeting of the minds, offer and
acceptance, consideration, and sufficiently defined terms. See
Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). An
alleged contract is unenforceable if the parties do not agree on
an essential term or if the essential term is not described with
sufficient specificity to allow the performance of the parties to
"be ascertained with reasonable certainty." Ibid. Vagueness is
only fatal where "the contract [is] so vague or indefinite that
it [can]not realistically be enforced." Satellite Entm't Ctr.,
Inc. v. Keaton, 347 N.J. Super. 268, 277 (App. Div. 2002); see
Weichert, supra, 128 N.J. at 435 (failure to include essential
terms prevents recognition of parties' obligations); West Caldwell
v. Caldwell, 26 N.J. 9, 24-25 (1958) (intent of parties could not
be determined from vague terms).
"The mere anticipation of a written memorialization of an
oral agreement does not as a matter of law vitiate an oral
contract if the elements of a contract are contained in the
oral agreement." McBarron v. Kipling Woods, L.L.C., 365 N.J.
Super. 114, 116 (App. Div. 2004). Parties may contract orally and
be bound by that agreement, but the plaintiff must show that the
16 A-5664-14T3 parties agreed upon all of the terms and if so, whether they
intended an obligation to arise only on the execution of a formal
writing. Trs. of First Presbyterian Church in Newark v. Howard
Co.-Jewelers, 22 N.J. Super. 494, 502 (App. Div. 1952), aff'd 12
N.J. 410 (1953); see also McBarron, supra, 365 N.J. Super. at 116-
17. Whether an oral agreement was intended not to bind the parties
until a written contract was executed is a matter of intent
determined in large part by a credibility evaluation of witnesses.
McBarron, supra, 365 N.J. Super. at 117.
Forbearance from legal action is well recognized as a
detriment sufficient to support a contract, i.e.,
consideration. Onorato Constr., Inc. v. Eastman Constr. Co., 312
N.J. Super. 565, 571 (App. Div. 1998). Even where it is not
directly stated as consideration, it may exist by implication.
Ibid. (citation omitted).
III.
The jury, based no doubt on its conclusions regarding the
credibility of the witnesses, found Krill and IDT entered into an
enforceable agreement. Krill's testimony, if believed, when
joined with other circumstances in the case, easily supports a
judgment in Krill's favor. We accept this evidence as true, and
give him the benefit of inferences which can be reasonably and
17 A-5664-14T3 legitimately drawn therefrom. Filqueiras, supra, 426 N.J. Super.
at 456.
In support of its position, IDT focuses on Krill's statement
on cross-examination that he had not agreed to release defendant
from any hostile claims during the July 30, 2008 meeting. That,
however, was not his statement on direct. Krill was apparently
believed in his direct testimony, and the jury disregarded his
one-word response to a leading question on cross-examination. At
the time of the trial, Krill was in his seventies, and had
struggled with his health. Whether for this or other reasons, the
jury chose to disregard his one-word answer in cross-examination.
In our view, reasonable minds can differ as to whether
forbearance from suit was an expressly agreed upon term. Thus,
the JNOV should not have been granted. See ibid. Furthermore,
the jury knew that in the years since the agreement was reached,
Krill did not file any other lawsuit against IDT. That the issue
of Krill's forbearance from filing a discrimination suit was not
clearly spelled out as a term did not invalidate the agreement
overall.
In Satellite Entertainment Center, Inc., supra, 347 N.J.
Super. at 270, 276, this court upheld a jury verdict for the
defendant on his counterclaim, finding that a contract for the
sale of his business to the plaintiff was sufficiently specific.
18 A-5664-14T3 There, the defendant leased restaurant space from the plaintiff,
and the plaintiff allegedly promised to pay the defendant $175,000
for his business if he vacated by the end of 1995 because he had
other plans for the space. Id. at 272-73. The defendant complied
but the plaintiff did not pay. Id. at 273. On appeal, the
plaintiff argued, inter alia, that a contract for the sale of the
business should have been invalidated for lack of specificity
concerning the terms. Id. at 276.
We found the basic terms were clear, including the firm price
of $175,000, and the description of the defendant's business assets
being purchased, which would have included tangible assets,
inventory and good will. Id. at 276. The fact that the parties
did not itemize the inventory to be turned over was immaterial,
particularly in light of the fact that the plaintiff was most
interested in the defendant vacating the property before a certain
date. Ibid. The court found ample evidence in the record to
support the verdict, and found that the trial turned almost
entirely on credibility issues. Satellite Entm't Ctr., Inc.,
supra, 347 N.J. Super. at 270.
In like manner, here there was sufficient evidence for the
jury to conclude that Krill and Jonas agreed Krill would not sue
IDT. Although the scope of the release was not specifically
explained, IDT was certainly aware and the jury knew that Johnson
19 A-5664-14T3 had sent a letter on June 26, 2008, referring to potential claims
by Krill against IDT. The letter also mentioned IDT's failure to
pay Krill a severance package similar to those paid to others when
they separated from the company.
The testimony and the record established sufficient evidence
of a mutual understanding regarding Krill's severance, including
that he would not sue IDT if he were paid a settlement. And
certainly, IDT could not deny that it paid Krill $250,000 per year
for four years. The reasonable inference to be drawn from this
testimony is that the agreement existed, and that it included
Krill's forbearance.
IDT also argues the parties did not reach agreement over
IDT's attempt to define the scope of the release, that they
continued to negotiate the release term, and ultimately never
agreed upon a final version of the document exchanged by Johnson
and IDT. Defendant cites to an August 26, 2008 proposed written
agreement from IDT to Krill which included release provisions that
were outright rejected by Krill. That Johnson sent a draft
agreement to Schwell that did not include a release provision is
immaterial, assuming that the parties were bound by their earlier
oral agreement, a finding the jury reached.
Johnson, in unqualified testimony, stated that Krill entered
into an agreement, the essential terms of which were reached by
20 A-5664-14T3 July 30, 2008, and that his subsequent discussions with Schwell
and Greenstein were efforts to attempt to memorialize the agreement
in writing. Since Greenstein did not testify, that testimony
stood unrefuted. The jury resolved any question regarding whether
an enforceable oral agreement existed as of July 30, 2008, in
favor of Krill.
The jury knew that IDT paid Krill $1 million of the
$2.5 million owed even though Johnson and Schwell were unable to
convert the oral agreement into a signed, written contract. Krill
acknowledged that the lawyers would finalize the terms during his
July 30 meeting with Jonas. The jury, however, was free to credit
other portions of Krill's testimony, in addition to Johnson's. At
the same time, the jury likely found Courter and Jonas not credible
based on their testimony that was contradicted by evidence
presented by Krill. Courter's statement that the company enters
into written agreements with executives was contradicted by both
Krill and Jonas. Jonas' testimony contradicted Johnson's and
Krill's testimony on the subject of whether Jonas spoke with
Johnson and confirmed to him the terms of the $2.5 million
settlement.
Thus, when drawing all inferences in favor of plaintiff,
there is sufficient evidence for the jury to have found that Krill
and Jonas orally agreed on the terms of the release and were not
21 A-5664-14T3 further negotiating those terms. Defendant was properly denied a
new trial and JNOV.
IV.
Defendant also contends that no contract was reached between
the parties because they did not agree on the scope of Krill's
employment, and IDT is entitled either to JNOV or a new trial.
Jonas made clear through his deposition testimony that, as part
of the agreement, Krill would be available "for any help we might
need that he was in a position to provide." Jonas further
acknowledged in his direct testimony at trial that it "was sort
of understood that he would you know report personally to me, and
if there was something you know that he had a special talent that
he could do or something like I found for him, I – I would – I
would have him do that, but there – there wasn't." Krill testified
in a similar manner, that he would be "available for the company
for the next four years, whatever they need from me." The jury
was free to credit Krill's testimony and Jonas' testimony on this
term, while discrediting Jonas' argument that he never reached an
agreement with Krill. After all, Krill was paid $1 million by
defendant over four years without a written agreement specifying
what "being available" specifically meant.
Certainly "available for the company" is vague. But IDT did
not present any complaints regarding Krill's failure to perform,
22 A-5664-14T3 in fact, IDT continued to pay Krill the $250,000 per year for four
years. There was no dispute regarding the specificity of the term
until this lawsuit was filed. Accordingly, not only was there
sufficient evidence for the jury to find for Krill, no miscarriage
of justice occurred which warranted a new trial.
Lastly, IDT contends that it is entitled to a new trial
because the evidence established that the parties did not intend
to be bound by their July 30 meeting. IDT further asserts that
the parties only intended to continue to negotiate and enter into
a written contract, and that if that final step was not taken, it
was because of a material disagreement in terms.
As previously noted, parties may contract orally and be bound
by such an oral agreement, so long as the parties seeking
enforcement can demonstrate all essential terms were agreed upon,
and that it was not understood that any obligation would arise
only on the execution of a formal writing. See Trs. of First
Presbyterian Church in Newark, supra, 22 N.J. Super. at 502; see
also McBarron, supra, 365 N.J. Super. at 117.
In McBarron, supra, 365 N.J. Super. at 115-16, we reversed
the trial court's grant of summary judgment in favor of a seller
who withdrew from an agreement, finding that an issue of material
fact was raised concerning whether the seller intended to be bound
23 A-5664-14T3 by an oral contract of sale for real estate. In McBarron, the
buyers, a husband and wife, brought an action to enforce an oral
contract to purchase a lot on which they intended to build a
home. Id. at 115, 118. The buyers claimed an oral agreement to
purchase the property for $185,000 was formed during telephone
conversations with Barry Jost, who was representing the seller-
defendant. Id. at 118. The telephone conversations were the
culmination of a long course of negotiations. Id. at 117. Jost
called the husband and told him that the purchase price of the lot
was $185,000, which the husband accepted. He then asked if the
transaction was a "done deal," to which Jost replied,
"definitely." Id. at 118. Jost told the husband that he and his
wife were "like family" and that the seller's attorney would "draw
up" an agreement. Ibid. Before the end of the telephone
conversation, Jost assured him that "the deal was done." McBarron,
supra, 365 N.J. Super. at 118. Four days later, Jost called the
husband and advised him that a builder-friend had offered $190,000
for the lot, but did not attempt to renege, acknowledging that
they "had a deal" and Jost would "honor it." Ibid. Jost added
that he had explained to his friend that the husband and wife were
the "contractual owners" of the property. Ibid. The husband
tape-recorded the conversation, during which Jost repeatedly
confirmed that they had a deal. Id. at 118-19. Jost later called
24 A-5664-14T3 the husband "to renege on the agreement" because he had received
a significantly higher offer by a corporate entity. Id. at
118. The buyers filed an action to enforce the agreement. Id. at
115, 119.
We said that "the mere anticipation of a written
memorialization of an oral agreement," provided that all the
elements of a contract are present, "does not as a matter of law
vitiate an oral contract." McBarron, supra, 365 N.J. Super. at
116. The buyers' proofs, if credited by a trier of fact, would
support by clear and convincing evidence a finding that the parties
had entered into an oral contract for the sale of the lot. Id. at
119.
The controlling question in this litigation was whether Krill
and Jonas entered into a binding oral contract on July 30, 2008,
or whether they expected and intended not to be bound by the terms
of their discussion unless and until a written agreement was
drafted. In fact, the jury was instructed that there must have
been "a meeting of the minds" in order to bind the parties. The
jury weighed the evidence, and found for Krill on the issue.
As the judge acknowledged in rendering her decision both on
the motions for directed verdict, JNOV, and a new trial, the jury
reached its decision based on credibility. It is apparent from
their decision that the jurors believed Krill and his attorney
25 A-5664-14T3 Johnson. Jonas' credibility may have been diminished in light of
the email from Greenstein to Johnson confirming that IDT was
responsible for a $1.5 million payment to Krill, in addition to
the four $250,000 a year payments he would receive. These
circumstances supported Krill and his attorney's testimony, and
seriously undercut that of IDT's representatives.
Thus, no manifest injustice resulted from the jury's verdict.
To the contrary, substantial evidence demonstrated that IDT
intended to pay Krill $2.5 million and may have done so sooner,
had it not been negatively impacted by the 2008 financial crisis.
Accordingly, IDT has failed to meet the standard for a new trial,
and the judge's decision was therefore proper.
Affirmed.
26 A-5664-14T3