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Mogull v. CB Commercial Real Estate Group Inc.3/9/1999
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 18, 1999
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
The opinion of the court was delivered by
Following a lengthy trial in this sex discrimination case, and in response to special interrogatories, a jury concluded that defendant CB Commercial Real Estate Group, Inc. (CB) had denied plaintiff certain employment benefits and had discharged her and had not presented legitimate nondiscriminatory reasons therefor. It awarded her compensatory and punitive damages totaling $6,500,000. Additionally, the trial Judge awarded plaintiff $211,460.13 in prejudgment interest, $14,249.10 taxed costs and $624,150.20 counsel fees against CB. Because we are convinced the jury charge contained fundamental errors which may well have affected the jury's proper application of plaintiff's burden of proof and CB's burden of going forward in a Law Against Discrimination (LAD) suit brought pursuant to N.J.S.A. 10:5-1 to -49, we reverse and remand. Since we cannot be sure that the errors did not taint both the discriminatory denial of employment benefits verdict and the discriminatory discharge verdict, we reverse the entire verdict and remand for a new trial against CB.
Both parties raise a number of other issues, some relating to evidence, some relating to damages and some relating to counsel fees. Since the matter must be retried, these issues are moot. We observe only that on retrial, we assume the punitive damage jury charge will reflect our decision in Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 355 (App. Div.), certif. denied, 152 N.J. 189 (1997). We also observe that CB may now be able to amend its answer to include plaintiff's alleged breach of her duty of loyalty as a defense, as opposed to a separate counterclaim. And see McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995). Finally, as to plaintiff's cross-appeal from the dismissal of the complaint against all individual defendants except Appel, we are convinced that aspect of the cross-appeal is without merit and requires no further opinion. R. 2:11-3(e)(1)(E). The retrial on remand, then, will be against CB only.
I.
Given our Disposition of this appeal, we need not discuss at length the extensive evidence produced by both sides over the course of the thirty-four day trial. Suffice it to say that this litigation seems to have had its genesis when plaintiff, who had obtained her real estate license and began working in the real estate field in 1974, was hired in 1976 by Appel, who was at that time managing partner of Sutton & Towne, a real estate company in Paramus. Appel had been in the real estate field since 1957. Appel trained plaintiff and, for a year and a half, between 1977 and 1978, they had more than a working relationship which, ostensibly at that time, ended without adverse effects upon their ability to continue working together. They did so on a number of transactions, sharing the salesperson's commissions. They also worked on other transactions independently.
In 1980, Sutton & Towne was acquired by CB. Appel was brought in as a vice-president; plaintiff was employed as a broker-salesperson. Plaintiff ultimately was promoted to an associate vice-president; at the time of the trial, Appel was the managing officer of CB's Hackensack office. During the trial, plaintiff alleged that over the course of her years at CB from 1980 to her termination in 1992, she had been subjected to a course of long-term discrimination reflected by being excluded from various office activities and real estate tr
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