Professional Documents
Culture Documents
February 8, 2011
v.
APPELLATE DIVISION
RYAN AUTOMOTIVE, L.L.C. and
NILESH KOTESHA, a/k/a NEIL
KOTESHA,
Defendants-Respondents.
__________________________________________________
MESSANO, J.A.D.
damages.
I.
(a)
1
To the extent defendants contend that plaintiff's proofs were
insufficient to support an award of punitive damages, we need
not consider "whether there was contrary evidence; instead the
focus [is] . . . on whether there was too little evidence of
egregiousness presented by plaintiff to get to the jury on the
issue at all." Quinlan v. Curtiss-Wright Corp., 204 N.J. 239,
276 (2010) (citing Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).
Additionally, since defendants have not cross-appealed, any
issues regarding the jury's finding that that they violated the
LAD or its award of compensatory damages are not before us. R.
2:3-4(a); and see Pressler & Verniero, Current N.J. Court Rules,
comment 2 on R. 2:3-4 (2011) ("Ordinarily, a respondent . . .
must cross-appeal in order to obtain relief from the
judgment.").
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garnered awards for her work, including the "Ryan Pinnacle
2
Plaintiff's complaint misspelled Kotecha's surname as
"Kotesha." Although we have adopted that spelling in the
caption, we shall use the correct spelling throughout the course
of this opinion.
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concerns about employee conduct and declining business. Kotecha
cell phone and told her to call Ryan's owner, Rod Ryan. Kotecha
claimed that Rod Ryan would not be upset at his use of foul
Kathryn Reynolds.
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A few days later, Kotecha became irate with Danz over a
trivial matter and followed her into her office. Kotecha told
her, "don't come back, don't ever come back again," and began
she was fired, Danz packed her belongings and went home, only to
advised Rod Ryan that plaintiff "ha[d] a good case down the
road."
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Kotecha's insults and crude comments escalated. Plaintiff
menstruating.
believed.
who would receive annual awards from the dealership. Names were
usually removed from the list only if the salesperson had left
employment with the dealership, and Noce knew plaintiff had not
people," and plaintiff's name was removed from the internal BMW
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On or about February 23, 2006, Seervai showed plaintiff and
Kotecha told plaintiff to "shut the fuck up," walked inside, and
for quite some time," and was "taking Xanax and Prozac."
3
Testimony on defendants' case indicated that it was their
intention to terminate plaintiff on the following Monday because
of tardiness and other work related issues.
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(b)
distress and punitive damages under the LAD. She argued that
management."
individually at the end of the case. She argued that there was
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no evidence to support a finding that Kotecha aided or abetted
and the common law tort, the judge concluded "[there was] a fact
the jury in the initial charge that "if they find liability they
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about the possibility of a bifurcated trial on punitive damages.
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find for [plaintiff] on the legal theory of intentional
plaintiff $80,108.80 "to compensate for her lost wages and back
pay[.]"4
4
The parties later reached an agreement "relating to taxes" and,
by consent, increased the amount to $104,140.44.
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And that's it.
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place on September 25. First, the judge concluded that the
on its merits.
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six or seven yes, we would have had a second
phase. They didn't.
II.
5
The caption of the order, dated September 30, indicates that
plaintiff's motion was brought pursuant to Rule 4:49-2, though
the body of the order notes that "[n]o timely post-trial motions
[were made] pursuant to Rule 4:49-1." To the extent the judge
determined plaintiff's motion for reconsideration was untimely,
he was mistaken. First, from the colloquy that took place on
the day the verdict was received, it was clearly understood that
plaintiff would seek relief from the judge's ruling on her
punitive damages claim and would also submit a request for
counsel fees. Second, the "Order of Disposition" entered on the
day of the verdict was not a final judgment and did not trigger
the time constraints of Rule 4:49-2. See Pressler & Verniero,
Current N.J. Court Rules, comment 1 on R. 4:49-2 (2011) ("The
time prescription of th[e] rule applies only to final judgments
and orders."). Lastly, plaintiff's motion was not a motion for
a new trial pursuant to Rule 4:49-1.
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that question six was a "bridge" question designed to
State Bank, 353 N.J. Super. 145, 152 (App. Div. 2002). "Because
153.
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The Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17 (the
5.13(c); see also Smith v. Whitaker, 160 N.J. 221, 245 (1999)
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"[T]he test for egregiousness . . . [is] satisfied if plaintiff
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the jury. See, e.g., Quinlan, supra, 204 N.J. at 275-77
368 N.J. Super. 479, 497 (App. Div. 2004) (finding of "egregious
jury's verdict, i.e., what was the import, if any, of the jury's
Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 587 (2009)
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that "defendant acted intentionally or recklessly"; "defendant's
When the judge reviewed the verdict sheet with the jury
"willful" nor "wanton" were ever defined for the jury in the
should they have been, because those states of mind are not
6
Although we note that pursuant to the PDA, a plaintiff must
demonstrate by clear and convincing evidence that the
defendant's "acts or omissions were actuated by actual malice or
accompanied by a wanton and willful disregard." N.J.S.A. 2A:15-
5.12(a) (emphasis added).
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punitive damages during the liability phase of the trial. See
N.J.S.A. 2A:15-5.13(b).
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reasonableness of that conclusion comports with the jury's
receive any award for emotional pain and mental anguish damages.
PDA.
Court noted in Tarr, supra, 181 N.J. at 80, "[a] cause of action
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she only asks us to limit the import of the jury's answer to
Fiberglas Corp., 282 N.J. Super. 373, 394 (App. Div.) (noting
certif. denied, 142 N.J. 518 (1995). Both sides also agree
be told only that defendants violated the LAD and that plaintiff
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second jury should also be told that plaintiff had not proven
We can find few reported cases that squarely deal with the
question. See, e.g., White v. Ford Motor Co., 500 F.3d 963, 974
L.P., 603 F. Supp. 2d 220, 223 (D. Me. 2009) (determining that
Inc. v. Fla. Mobile Home Supply, 625 So.2d 1283, 1289 (Fla.
A.2d 633, 659 (Md. 1992) (noting only that on re-trial "the
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However, we take some guidance from the model jury charge
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lost wages and back pay as a result, and provide the jury with
because that issue has already been decided. The sound exercise
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conduct. Instructing the second jury that it has already been
of the trial.
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