NOT FOR PUBLICATION WITHOUT THE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-1612-19








          Defendant/Third-Party Plaintiff,



     Third-Party Defendant.

                   Submitted April 19, 2021 – Decided May 21, 2021
            Before Judges Rothstadt and Mayer.

            On appeal from the Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-5751-16.

            Rubin, Kaplan & Associates, attorneys for
            appellant/cross-respondent Mitchell & Associates, Inc.
            (Evelyn A. Donegan, of counsel and on the briefs).

            Archer & Greiner, PC, attorneys for respondent/cross-
            appellant PCB Apps, LLC (Michael J. Lauricella, of
            counsel and on the briefs).


      Plaintiff Mitchell & Associates, Inc. appeals from the following orders:

pretrial discovery orders;1 evidentiary and in limine determinations rendered by

the trial judge on September 3, 2019; a September 9, 2019 order barring

plaintiff's representative from presenting certain testimony during trial; an

October 25, 2019 order denying plaintiff's motion for additur or, alternatively ,

a new trial on damages only; and a November 13, 2019 order for judgment

awarding damages to plaintiff in the amount of $177,000. Defendant PCB Apps,

LLC (PCB) cross-appeals from the following: denial of its motion in limine to

preclude testimony by plaintiff's representative regarding PCB's financial

  Plaintiff's notice of appeal includes four pretrial discovery orders: a November
21, 2019 order, two January 25, 2019 orders, and a March 26, 2019 order. Only
one discovery order, a January 25, 2019 order, was included in plaintiff's
figures; an order denying PCB's motion for a directed verdict; and an October

25, 2019 order denying PCB's Rule 4:40 motion. We affirm all orders on appeal

and cross-appeal.

       We begin with a brief summary of the parties' dispute. Three individuals,

Dwight Mitchell, Bryan Boutte, and Nag Karaka sought to form a joint venture.

Their effort to form a joint venture never materialized in a formal written

agreement, although the three men participated in multiple email exchanges and

face-to-face meetings regarding the joint venture.          Mitchell eventually

demanded payment for plaintiff's work performed pursuant to the joint venture.

Boutte, Karaka, and their separate companies declined to pay plaintiff.

       The following is a more detailed recitation of the facts giving rise to the

appeal and cross-appeal based on the testimony adduced by the witnesses during

the trial.

Testimony of Dwight Mitchell

       Plaintiff's principal, Mitchell, testified his company implemented large

scale computer systems for multi-national corporations. Specifically, plaintiff

sells and services software to clients.       On occasion, plaintiff employed

subcontractors to perform its work. In 2014, plaintiff worked on a project for

AT&T and AT&T's client, Berry Plastics, Inc. (Berry). Realizing it needed

assistance with the AT&T and Berry job, plaintiff hired subcontractors through


        Through the AT&T and Berry work, Mitchell met Boutte.3 Boutte wanted

to work with Mitchell and potentially form a partnership. Mitchell initially

declined the offer to form a partnership. Boutte then offered to invest $100,000

as a "capital investment" in a potential partnership, and Mitchell agreed to work

with Boutte and Nola. The partnership intended to sell services to AT&T's

clients who might require computer system services.

        In a September 25, 2014 email to an executive at AT&T, Boutte confirmed

formation of a partnership with Mitchell, writing "though we have not signed

any contracts, [Mitchell] and I are in an agreement with moving forward in a


        Originally, the partnership was limited to Mitchell and Boutte. A few

weeks later, the men explored the possibility of including Karaka and PCB in

the partnership. The three men met in New Brunswick on October 17, 2014, to

discuss "form[ing] a joint venture." At the meeting, the three men agreed each

would invest $100,000 in capital toward the joint venture. In an October 18,

    Karaka's company is PCB.
    Boutte's company is defendant Nola Business Solutions, Inc. (Nola).
2014 email recapping the meeting, Boutte wrote, "we all agree that we will move

towards a joint venture[,]" and "[a]ll three parties will share equally on an

opportunity's net profit." At trial, Mitchell took the position this email formed

the joint venture agreement.

      In November 2014, Boutte sent an email referring to PCB and plaintiff as

"core partners of Nola." In late November 2014, the three men exchanged emails

regarding the partnership. Mitchell emailed Boutte and Karaka, stating he

wanted to "get up to speed on . . . finalizing our legal agreement." Karaka agreed

it was "a good idea to complete the business plan," and he circulated a "proposed

final agreement for the consortium."

      However, Karaka's draft document differed from the agreement discussed

among the three men on October 1, 2014. For example, the effective start date

of the joint venture changed from October 2014 to January 15, 2015. In addition,

the draft document proposed the "shareholding" date would commence in April

2015. Additionally, the three men would buy into Nola in April, instead of

fronting the $100,000 capital investment immediately. Mitchell disagreed with

the proposed changes in the draft document. As a result, Boutte and Karaka

prepared a second draft document to address Mitchell's concerns.

      On January 15, 2015, the three men again discussed the "joint venture

agreement." Mitchell expressed concern over the lack of immediate payment of

the capital investment, stating he and Kavaka were carrying significant costs

without financial assistance from Boutte. Boutte and Karaka decided to draft a

more "equitable" agreement.

      Mitchell continued to disagree with the proposal because the terms

identified plaintiff as working for Nola rather than serving as Nola's partner.

Mitchell, expecting to receive a "partnership document," believed the document

did not memorialize the terms of the joint venture agreement.

      In late January 2015, the three men resumed discussions to finalize the

joint venture agreement. Mitchell sought to form a limited liability company

(LLC) in which the three men would be shareholders in the LLC.           Boutte

explained he was unable to convert Nola into an LLC.

      On February 1, 2015, the men had a telephone conference to discuss the

status of the joint venture. Boutte noted Mitchell's disapproval of the proposed

payment structure and invited Mitchell to present a counterproposal. Mitchell

wanted to implement the plan outlined during the October 17, 2014 meeting and

memorialized in the October 18, 2014 email, which he claimed called for sharing

"gross profit" equally.

        Three days later, Mitchell sent an email to Karaka, asking if Karaka

finished drafting the "consortium agreement." On February 27, 2015, Karaka

sent a revised agreement that included a capital contribution in the amount of

$400,000 instead of $100,000 and spread the payment over time rather than an

initial lump sum payment. Because he never discussed the increased capital

contribution, Mitchell deemed the revised document "unacceptable."

        Mitchell requested the original agreement set forth in the October 18, 2014

email be effectuated. Boutte and Karaka preferred the new proposal. While the

men had further discussions regarding a joint venture, there was never a formal

written agreement.

         On March 6, 2015, Boutte sent an email to Mitchell regarding receipt of

payment from AT&T for work performed by the group. Boutte asked Mitchell

to sign a sales commission agreement in order to pay plaintiff for its share of the


        Although Mitchell agreed to return a signed copy of the agreement, he did

not do so. Mitchell refused to sign the sales commission agreement, reiterating

he wanted to proceed with the joint venture as stated in the October 18, 2014


      Mitchell testified the three men continued working despite their

disagreements related to the joint venture. According to Mitchell, he remained

"actively involved," planning and performing billable work on behalf of the joint


      Soon after, Mitchell decided to end his involvement with the other men.

On March 27, 2015, Boutte again requested Mitchell sign the sales commission

agreement. In a March 27, 2015 email, Mitchell declined to sign the document,

writing "[Boutte] and [Karaka] can partner on this opportunity going forward."

After this date, plaintiff did not perform any work for Berry. While Mitchell

had no desire to help Boutte and Karaka going forward, he "expected to be paid

for the work . . . already done," including the work to establish the joint venture

and completed for Berry. Mitchell never spoke with Boutte or Karaka after the

March 27 emails.

      At trial, Mitchell testified as to the amount defendants owed plaintiff.

Mitchell explained PCB billed Berry a total of $5,601,825 and Nola billed Berry

a total of $1,157,255. According to Mitchell's calculations, under the joint

venture agreement, plaintiff was owed a one-third share of thirty percent of the

amount billed by PCB and Nola. Thus, Mitchell testified defendants owed

$675,908 to plaintiff.

      On cross-examination, Mitchell testified the October 2014 joint venture

agreement was controlling despite his failure to tender the required $100,000

capital contribution. He supported this contention by explaining neither Boutte

nor Karaka made the $100,000 investment in the joint venture.

      Regarding plaintiff's damages, Mitchell testified the October 2014

proposal called for thirty percent of gross revenue to be split evenly among the

three partners. According to Mitchell, the thirty percent figure was an accurate

estimate of the partnership's actual profit and was the standard markup for

plaintiff's work prior to participating in the joint venture. Mitchell, however,

admitted his damages calculation included revenue received nearly three years

after his decision to leave the joint venture.

      Mitchell explained the October 18, 2014 email, stating the three men

would share the "net profit" rather than "gross profits," was subsequently

clarified. However, he conceded there was no writing reflecting any such

clarification. According to Mitchell, plaintiff worked for Berry three months

prior to any discussion regarding a joint venture, and plaintiff was owed money

for that work.

      Mitchell indicated the October 18, 2014 email served as the written

agreement for the joint venture and there was no formal memorialization of "all

the finite details." According to Mitchell, the email did not include "everything"

discussed during the October 2014 face-to-face meeting, such as the required

"monetary contribution." Mitchell claimed he did not respond to the October

18, 2014 email because he "trusted" Boutte and Karaka and believed the parties

had a "verbal" agreement.

      During his testimony, Mitchell included sums in his damages calculation

for work billed to AT&T that failed to net any profit. Similarly, Mitchell's

damages included bills submitted to AT&T without any markup, resulting in

zero profits on those billed services.

Testimony of Nag Karaka

      Karaka testified he intended to form a joint venture with Mitchell. In

October 2014, Karaka, Boutte, and Mitchell sought to form a joint venture to

conduct work for Berry and pursue work on behalf of other clients. According

to Karaka, Mitchell would supply a client list and technical know-how for the

joint venture. He also testified the costs associated with the joint venture would

be split three ways.

      Karaka's company, PCB, billed Berry a total of $5,545,390.08. PCB also

billed $967,703.03 to Nola for work on behalf of Berry. However, PCB only

received $5,164,989.53 for its Berry work.

      Karaka explained he worked for AT&T as a "solutions architect." After

leaving AT&T, Karaka formed PCB.               PCB's services included selling,

implementing, and supporting software solutions for other companies.

      Karaka and PCB first worked with Mitchell in 2013 as a subcontractor for

plaintiff. The two companies worked well together, and Karaka had a "great"

relationship with Mitchell.

      Karaka told the jury about the face-to-face meeting with Mitchell and

Boutte on October 17, 2014. At the meeting, Karaka, Boutte, and Mitchell

discussed a partnership. He described the meeting as informal and explained

nothing was decided at the meeting. According to Karaka, the three men never

agreed to a three-way split of thirty percent of the gross profit and did not discuss

a per person capital contribution of $100,000 to fund the joint venture.

      Immediately after this meeting, Boutte sent an email summarizing the

discussions and identifying the next steps in the joint venture process. The

summary did not include capital contributions or sharing thirty percent of gross

profits. Karaka believed Boutte's email accurately reflected the sharing of "net

profits" among the parties.

      According to Karaka, Mitchell never said he considered Boutte's October

18, 2014 email to be the joint venture agreement. Karaka explained the men

"were still discussing" and never finalized any agreement. Despite the lack of a

formal agreement, the three men continued discussing a joint venture and

working together.

      Regarding Mitchell's March 27, 2015 email, Karaka understood Mitchell

no longer wished to be part of a joint venture or work for Berry. Karaka never

heard from Mitchell after this email.

      Without plaintiff's participation, Karaka and Boutte continued working for

Berry. Plaintiff was not involved in work for Berry or any other joint venture

clients after March 2015.

      Karaka testified regarding payment received by PCB for the Berry work.

PCB received $5.1 million in total payment from Berry, not $5.5 million as

Mitchell alleged. Contrary to Mitchell's testimony, Karaka explained PCB did

not receive a thirty percent gross profit margin. According to Karaka, PCB lost

money for the first five months due to substantial startup costs. He explained

PCB lost "a little more than" a "quarter of a million dollars" in that time frame.

Karaka testified PCB made approximately $25,000 in total profits from the

Berry work, significantly lower than the $675,000 amount plaintiff sought as its

one-third share of the profits.

      Karaka testified PCB, through Nola, received payment for various Berry

work between January and March 2015 to mid 2019. PCB received $10,914 a

month for its work during this time period.

      Karaka was asked why PCB continued to work with Berry if its profit

margin was so small. Karaka replied that some of the work was unexpected and

future projects, which PCB anticipated would be more profitable, were


Testimony of Bryan Boutte

      Boutte explained his initial introduction to plaintiff.   Boutte's prior

employer did a substantial amount of work for AT&T and Berry. Because

Boutte's employer needed a specific software program specialist to complete the

Berry work, plaintiff became a vendor for the project. Mitchell served as a

project manager, but plaintiff required more manpower to complete the job, and

Mitchell hired PCB to assist plaintiff.

      Believing his prior employer was squandering business opportunities,

Boutte sought to foster his own business relationship with AT&T and mentioned

the idea to an AT&T employee. The AT&T employee encouraged Boutte to

form his own company and partner with AT&T. In September 2014, Boutte

formed Nola.

      Boutte told Mitchell about his forming Nola, but Mitchell initially had no

interest in partnering with Nola. When Boutte again discussed the business,

emphasizing Nola's relationship with AT&T, Mitchell became interested.

Mitchell suggested including PCB as part of a business opportunity.

      On October 4, 2014, Boutte and Mitchell signed a letter of intent. Five

days later, Boutte and Karaka signed a letter of intent. The letters of intent

protected confidential and proprietary information and explained the parties

were exploring a partnership. The documents explicitly stated no party was

obligated to enter into an agreement. The documents further provided, "This

letter sets forth the entire agreement of the parties . . . and may not be amended

or modified except pursuant in a written agreement signed by the parties hereto."

According to Boutte, this provision meant any agreement to form a partnership

required a signed written contract.

      On October 17, 2014, Boutte, Karaka, and Mitchell met face-to-face in

New Brunswick. Boutte characterized the meeting as an informal "discussion"

with "lively ideas going back and forth." According to Boutte, the men made

"some decisions that we said we wanted to put in process" but no "business

relationships" were "consummated." As a result of this meeting, the three men

agreed to work toward "putting together something" and everyone would be paid

equally. Because the agreement was "no[t] set in concrete," Boutte explained

further discussion was required to "flesh it out." Boutte intended to schedule

future "periodic meetings" related to the partnership.

      Immediately after the meeting, Boutte sent the October 18, 2014 email,

summarizing the discussions during face-to-face gathering. The email provided

"action items," describing the next steps in the partnership. The "major" action

items according to the email included moving towards a "joint venture model,"

fleshing out the model, and testing the model. The model contemplated the three

men acting as vendors, becoming Nola shareholders, or forming a separate


      In the October 18, 2014 email, Boutte stated "net profits" would be split

among the partners, with "net profits" meaning revenue minus expenses.

According to Boutte, the term "gross profits" was omitted from the email

because it was never discussed during the in-person meeting. Nor was there any

mention of capital contributions during the meeting.

      Boutte's October 18, 2014 email also included items not discussed as part

of the face-to-face meeting. Boutte included the items because he believed the

additional terms were important for a partnership structure. One addition was

the creation of a "Master Services Agreement," identifying the mechanism for

Nola's payment to PCB and plaintiff because those parties were incurring costs

and fronting resources for the partnership.

      Boutte testified the email summary was not intended to memorialize a

joint venture agreement but rather a recitation of statements made during the

face-to-face meeting.     Neither Karaka nor Mitchell responded to Boutte's

October 18, 2014 email.

      In a November 3, 2014 email to Karaka and Mitchell, Boutte set forth the

next steps in formulating the partnership, trying to "document as much as

possible" in the email. While the three men continued to discuss forming

partnership, no agreement was reached on the issue.

      Eventually, Nola placed a vendor with a client through PCB, generating

revenue for Nola. As a result, Boutte wanted to pay plaintiff, and he forwarded

a sales commission agreement to be signed by Mitchell.4 Mitchell claimed his

attorney needed to review the agreement.

      Boutte subsequently received an email from Mitchell's attorney, who

advised that Nola should be converted into an LLC. Boutte explained he formed

Nola as a corporation and did not want to convert the entity to an LLC.

  Boutte sent a similar agreement to PCB. Karaka signed the agreement on
behalf of PCB and returned the document to Boutte.
Moreover, Boutte found the suggestion premature as the three men were still

discussing the best option for formal ownership in the joint venture.

      In March 2015, Boutte again asked Mitchell to sign the sales commission

agreement so he could pay plaintiff for the AT&T work. Mitchell claimed he

would forward the signed agreement but never did.

      Boutte had discussions with AT&T regarding a new work proposal with

Mitchell serving as a program manager for the technical work. An AT&T

employee told Boutte to remove Mitchell from the proposal but did not explain

the reason for the request. Boutte suspected AT&T had doubts about Mitchell

and plaintiff's work performance.

      In March 2015, Berry decided to stop working with Mitchell. Later that

month, Boutte sent another copy of the sales commission agreement to Mitchell

to sign. In a March 27, 2015 email, Mitchell declined to sign the agreement and

stated Boutte and Karaka could "partner on this opportunity going forward."

According to Boutte, the "opportunity" referred to work for AT&T and Berry.

After the March 27 email, Boutte did not hear from Mitchell, and plaintiff was

never a part of the joint venture.

      Boutte denied agreeing to pay plaintiff a third of gross profits or revenues

generated. Boutte testified the joint venture proposed splitting net profits evenly

among the three men. He also testified there was never a joint venture to support

plaintiff's damages claim.

      According to Boutte, there was a "gentlemen's agreement" to "be partners

in pursuing opportunities." Boutte testified:

              [T]here was a target towards developing a joint venture.
              We had not and never had developed a joint venture.
              We had an agreement that said we would continue to
              work together and actually mapped out a three[-]phase
              approach. This was phase one that says we can work
              together[,] and we had an understanding that if these
              opportunities came to fruition without having
              investment in either one's company, that we would
              share the profits regardless of who was doing the

      On February 23, 2017, nearly two years after Mitchell's email declining

to pursue a partnership opportunity, Mitchell sent an email to Boutte. In that

email, Mitchell claimed, "although we never finalized the agreement," plaintiff

still expected payment from the "Berry Plastics Consortium."             The email

surprised Boutte because Mitchell opted out of the potential joint venture on his

own accord.

      During cross-examination, Boutte explained he never offered to invest

$100,000 as a capital contribution to persuade Mitchell to partner in the joint

venture.   However, Boutte conceded the three men discussed contributing

$100,000 each to capitalize the joint venture.

Testimony of Debbie Garrison

      Debbie Garrison, who worked at Berry, testified on behalf of defendants.

Garrison knew plaintiff and Mitchell. Garrison initially recommended Mitchell

as a project manager for Berry. However, neither plaintiff nor Mitchell signed

a contract with Berry.

      Plaintiff worked for Berry in its Belgium office. After completion of this

work, Berry declined to use plaintiff for future work. Garrison received several

complaints regarding Mitchell's work and contacted AT&T for advice. AT&T

recommended Berry use a different project manager as a result of the

complaints. Berry ceased working with plaintiff in March 2015.

Testimony of Anthony Pedano

      Anthony Pedano, an AT&T employee, testified for defendants. Pedano

first met Mitchell in 2014 because AT&T needed to replace an existing project

team. AT&T had no intention of hiring Mitchell or plaintiff, and only interacted

with plaintiff as a "vendor."

      Pedano knew Boutte, and the two discussed Boutte's business. It was

Pedano who suggested Boutte name his company "Nola." Nola and AT&T

entered into a separate vendor agreement that did not involve Mitchell or his


       After plaintiff completed the initial vendor work for AT&T, Pedano

mentioned using Mitchell and his company on future projects with Berry.

Pedano learned Berry sought to discontinue using plaintiff and Mitchell due to

"personality conflicts that were developing on the project team." According to

Pedano, Garrison recommended AT&T cease using plaintiff.

The Litigation

       Believing a joint venture agreement existed, plaintiff sued PCB and

Karaka for breach of the agreement. Plaintiff amended its complaint to add a

claim against Nola for breach of the agreement. In a third amended complaint,

plaintiff added claims against defendants for tortious interference, unfair

competition, and breach of the joint venture. Defendants filed answers and


       Disputes arose during discovery requiring judicial resolution.        In an

October 12, 2018 order, the motion judge denied plaintiff's motion to compel

the production of documents regarding revenue generated by PCB and Nola. 5

Plaintiff filed a motion for reconsideration or clarification regarding the October

2018 discovery order.      In a November 21, 2018 order, the motion judge

compelled defendants to produce certain records. However, nothing in the

    Plaintiff's motion requested "actual QuickBooks Reports as to expenses."
language of the November 2018 order compelled defendants to produce expense

back-up documents.6

      In January 2019, plaintiff filed a motion to enforce the November 2018

discovery order. Plaintiff claimed defendants produced document summaries

rather than original documents.      During argument on plaintiff's discovery

motion, the motion judge found plaintiff's request "to get every last back up

document" was "oppressive." In an effort to end discovery motion practice, the

motion judge signed a January 25, 2019 order requiring plaintiff to select ten

documents "at random" from PCB's expense report and compelling defendants

to supply the original statements of work (SOW) between Berry and PCB for

the selected documents. According to the judge, if the documents matched the

summaries, the issue would be resolved. In the event the documents did not

match the summaries, plaintiff could return to court for additional relief.

      In February 2019, PCB produced the back-up documents for the ten

selected items from the expense reports, as well as the other documents to be

produced pursuant to the January 2019 order.

   Significantly, plaintiff's counsel prepared the form of the November 2018
order. If plaintiff sought statements of work, as it argues on appeal, there is no
mention of such documents in the order.
      After receiving the back-up documents, plaintiff again moved to compel

the production of documents. In a March 26, 2019 order, the judge denied the

motion, noting, "If the plaintiff is able to demonstrate at trial that the [d]efendant

has intentionally withheld discoverable documents, the [p]laintiff may seek from

the trial judge a jury instruction for a negative inference."

      After the completion of discovery and adjournment of several trial dates,

trial was scheduled for September 2019. Prior to the start of trial, the trial judge

entertained several motions.

      Plaintiff filed a motion on the eve of trial to amend its complaint to include

claims for fraudulent concealment and spoliation. The judge denied the motion,

finding a request to amend the complaint to add new causes of action two days

before the start of trial was prejudicial to defendants. The judge explained it

would be inappropriate to allow plaintiff to "completely expand the scope of

what the trial would be addressing . . . with no opportunity for the defense to

engage in further discovery . . . ." Further, the judge stated there was more than

ample time for plaintiff to have sought to amend its complaint earlier based on

the five extensions of discovery and five adjournments of the trial. She also

noted plaintiff never moved to reopen discovery to assert the new claims or file

a motion for sanctions against defendants based on the alleged withholding of


      In denying the request to add a claim for spoliation of evidence, the judge

found plaintiff could not meet the "spoliation factors under a [Rule] 4:62

analysis . . . ." Regarding plaintiff's request for an adverse inference based on

defendants' purported withholding of discovery, the judge concluded the claim

was "not supported in this record and it would be improper for the [c]ourt to

permit that."      Rejecting plaintiff's request to add a claim for fraudulent

concealment, the judge noted fraud must be pleaded with specificity and "there

is not that specificity here."

      In another pretrial motion filed by plaintiff, the judge denied a request to

allow Mitchell to "testify as to certain gross profit per hour figures in terms of

trying to come up with damages calculations . . . to posit for the jury . . . ." In a

related pretrial motion on behalf of defendants, the judge "bar[red] plaintiff from

being able to be presented as an expert on the issue of damages." The judge

deemed any testimony by Mitchell related to a thirty-eight percent profit margin

was "clearly within . . . the purview of an expert . . . to go through how PCB

arrived at . . . their gross profit and the amounts by which . . . to do that


       After deciding the pretrial motions, the matter was tried before a jury over

the course of eight days, starting on September 9, 2019 and ending on September

19, 2019.

       After the close of plaintiff's case, PCB and Nola moved for a directed

verdict under Rule 4:37-2. The judge partially granted defendants' motions for

a directed verdict, dismissing counts five and six, alleging unfair competition.

However, the judge allowed plaintiff to proceed on its claims for breach of

contract based on the existence of a joint venture. According to the judge, "it's

going to be for the jury's consideration as to what they can glean from the

evidence constituted the material terms . . . of that joint venture in the event that

they find one existed."

       At the close of the evidence, defendants moved for judgment under Rule

4:40. After hearing argument on the motion, the judge reserved, explaining the

rule provides a judge "can submit all issues to the jury and then if [the judge]

believes that there is an error with respect to what should have gone before them,

[the judge] can correct [any issues] within [ten] days of receiving a

verdict . . . ."

      The judge conducted a charge conference with counsel and then charged

the jury accordingly.     After receiving the judge's instructions, the jury

deliberated on plaintiff's remaining claims.

      During deliberations, the jury submitted several written questions to the

judge. The first question read: "Do damages have to be calculated on numbers

as evidenced or based on the jury's calculation of fairness?" After consulting

with counsel, the judge reread the sections of the jury charge germane to

damages calculations.

      The second jury question, submitted in three parts, read: "Are we

permitted to include damages? What are damages? Legal fees?" Because the

judge and counsel were confused as to the meaning of these three questions, the

judge asked the jury to return to the deliberation room and clarify their

questions. After the jury discussed their questions outside the presence of the

judge and counsel, the jury returned to the courtroom, and the judge asked the

jury foreperson for clarification. The foreperson replied, "We wanted to know

what the definition of damages is."         The judge repeated the jury charges

governing damages. The judge also explained plaintiff asserted no claim to legal

fees in this case and the jury should not consider legal fees.

      The jury rendered a verdict on September 19, 2019. By unanimous vote,

the jury found plaintiff proved there was a joint venture between plaintiff, PCB,

and Nola, and plaintiff "performed pursuant to the terms of the joint venture

agreement." In addition, the jury unanimously found PCB and Nola breached

their obligation to plaintiff, and the breach resulted in damages. By a five to

one vote, the jury awarded damages to plaintiff in the amount of $177,000.

      On October 25, 2019, the judge heard post-trial motions. Plaintiff moved

for additur or, alternatively, a new trial. PCB moved for a judgment under Rule

4:40 or, alternatively, remittitur. The judge denied the requests for additur and

remittitur, noting additur or remittitur required an agreement between the parties

and they did not agree.

      In denying plaintiff's motion for a new trial limited to damages, the judge

found the jury's verdict was "not shocking to the [c]ourt's conscience." She

explained "[i]t [was] well within [the jury's] purview to have listened to the

evidence, made determinations on what they feel there was agreement on, to

balance the equities in terms of their assessment of what the proofs were relative

to damages and to reach . . . a calculation with respect to damages that was

acceptable and just to them." Additionally, she noted "ambiguity" in the record

regarding damages and indicated "there [was] nothing off of this very . . .

substantial trial record, that would cause the [c]ourt to find that the high standard

for a [m]otion for a [n]ew [t]rial with respect to damages has been reached."

      The judge also denied PCB's renewed Rule 4:40 motion, focusing on "the

factors necessary for plaintiff to establish a prima facie case for a joint venture."

She concluded giving plaintiff "the benefit of all evidence that can be gleaned

in the record . . . . the jury had the ability to look at all [the] factors and to

properly adjudicate the issue of whether they believed plaintiff had proven the

establishment of a joint venture . . . ." The judge stated, "[T]he jury listened

attentively for a long time with respect to a lot of conflicting evidence and did a

yeoman's job of being able to come to a resolution that they felt was justified

within the record."

      On appeal, plaintiff challenges various pre-trial and post-trial orders

issued by the court, arguing the judges erred with respect to their rulings. In

addition, plaintiff argues it is entitled to additur or, alternatively, a new trial as

to damages only. We reject plaintiff's arguments.

      We first address plaintiff's challenge to the pretrial discovery orders. We

review discovery orders for abuse of discretion. Capital Health Sys., Inc. v.

Horizon Healthcare Servs., Inc., 

230 N.J. 73

, 79-80 (2017). "[A]ppellate courts

are not to intervene but instead will defer to a trial judge's discovery rulings

absent an abuse of discretion or a judge's misunderstanding or misapplication of

the law." 

Id. at 78-79

 (citing Pomerantz Paper Corp. v. New Cmty. Corp., 


N.J. 344

, 371 (2011)).

      Here, we discern no mistake of law or abuse of discretion regarding the

motion judge's discovery orders.      Plaintiff and defendants sought judicial

resolution of discovery disputes concerning defendants' disclosure of documents

related to plaintiff's damages claim. After presiding over three separate motions

related to plaintiff's continued demands for documents, the motion jud ge

characterized plaintiff's third motion as "oppressive" in that plaintiff sought to

obtain "every last back up document."

      As the trial judge aptly noted, the motion judge made a "Solomon"-like

decision to resolve the parties' discovery issues. The judge ordered plaintiff to

select ten documents "at random" from PCB's expense report and compelled

defendants to supply the original SOW for the selected documents. The motion

judge found PCB complied with the January 25, 2019 order.

      We defer to the motion judge's discovery rulings.        Plaintiff failed to

explain how production of every single SOW and supporting backup

documentation were required to support its damages calculation. Moreover,

nothing precluded plaintiff from issuing subpoenas to obtain the information

from the entities who were billed for work performed by defendants. On this

record, we discern no abuse of discretion or misapplication of the law regarding

the motion judge's discovery orders.

      Plaintiff also argues the trial judge erred in denying its motions in limine.

We review a trial court's grant or denial of an in limine motion for abuse of

discretion. Brenman v. Demello, 

191 N.J. 18

, 31 (2007).

      We reject plaintiff's argument that PCB's failure to produce every SOW,

despite PCB's compliance with the court's discovery orders, entitled it to a

spoliation inference. As the trial judge explained, the parties were engaged in

"legitimate and ongoing and repeated discovery disputes . . . ." She concluded

defendants complied with the discovery orders and plaintiff's requests were "not

substantiated in the record." As a result, no discovery sanctions were warranted,

and the trial judge properly denied plaintiff's motion in limine.

      We next review plaintiff's contention the trial judge erred in precluding

Mitchell from testifying as to plaintiff's entitlement to a thirty-eight percent

gross profit in support of plaintiff's damages calculation. We review a trial

court's decision to admit or exclude evidence for abuse of discretion. Estate of

Hanges v. Metro. Prop. & Cas. Ins. Co., 

202 N.J. 369

, 383-84 (2010). Appellate

courts will not disturb a trial court's evidentiary rulings unless they are "so wide

off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins.

Co., 160 N.J.480, 492 (1992) (quoting State v. Carter, 

91 N.J. 86

, 106 (1982)).

at 492.

      Here, the trial judge found Mitchell lacked personal knowledge of the joint

venture's gross profits to allow him to testify plaintiff was entitled to a specific

percentage of defendants' gross profits. See N.J.R.E. 602 ("A witness may

testify to a matter only if evidence is introduced sufficient to support a finding

that the witness has personal knowledge of the matter . . . . This rule does not

apply to expert testimony under Rule 703.") At trial, Mitchell testified as a fact

witness. He was never qualified as an expert witness. Nor is there anything in

the record supporting Mitchell's personal knowledge of the joint venture's

profits. To the contrary, Karaka testified the joint venture had a significantly

lower gross profit rate or lost money on the work performed by it. Based on this

record, we discern no abuse of discretion in excluding Mitchell's testimony

suggesting a thirty-eight percent gross profit on the work performed by the joint


      We next review plaintiff's argument the trial judge erred in denying its

motions to amend the complaint.        We recognize "Rule 4:9-1 requires that

motions for leave to amend be granted liberally" in the interest of justice, and

"the granting of a motion to file an amended complaint always rests in the court's

sound discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 

154 N.J.


, 457 (1998). However, trial courts are free to deny leave to amend a

pleading on the eve of trial. Verni ex rel. Burstein v. Harry M. Stevens, Inc.,

387 N.J. Super. 160

, 195 (App. Div. 2006) (citing Pressler & Verniero, Current

N.J. Court Rules, cmt. 2.2.2 on R. 4:9-1 (2021)). In addition, leave to amend is

properly denied where "allowing the amendment would unduly protract the

litigation or cause undue prejudice." Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.2.1 on R. 4:9-1 (2021) (citing Cutler v. Dorn, 

196 N.J. 419

, 441


      Applying these principles, there is no basis to disturb the trial judge's

denial of plaintiff's motion to amend the complaint. Plaintiff sought leave to

amend its pleading two days prior to the start of the trial after several discovery

extensions and numerous adjournments of the trial date. Further, plaintiff's

proposed amended pleading asserted brand new claims against defendants. The

trial judge properly denied leave to amend, finding the newly added claims ,

raised just before trial, were prejudicial to defendants because defendants would

have to defend the claims absent discovery and without adequate time to prepare

a defense.

      Plaintiff also claims its motion for additur should have been granted or,

alternatively, a new trial on damages only should have been ordered. We


      "A jury's verdict, including an award of damages, is cloaked with a

'presumption of correctness.'" Cuevas v. Wentworth Grp., 

226 N.J. 480

, 501

(2016) (quoting Baxter v. Fairmont Food Co., 

74 N.J. 588

, 598 (1977)). To

overcome "[t]he presumption of correctness that attaches to a damages award[,]"

the party moving for a new trial or additur must "establish, 'clearly and

convincingly,' that the award is 'a miscarriage of justice.'" 


 (quoting Baxter,

74 N.J. at 596


      We review a damages award employing the same standard as the trial

court, "with one exception–an appellate court must pay some deference to a trial

judge's 'feel of the case.'" 


 (quoting Johnson v. Scaccetti, 

192 N.J. 256

, 282

(2007)). We do not disturb the jury's award "unless it is 'so disproportionate to

the injury . . . as to shock the conscience and [convince the court] that to sustain

an award would be manifestly unjust.'" Ming Yu He v. Miller, 

207 N.J. 230


249 (2011) (quoting Baxter, 

74 N.J. at 604

). "[T]he evaluation of damages is a

matter uniquely reposed in the jury's good judgment, and to justify judicial

interference, '[t]he verdict must be "wide of the mark" and pervaded by a sense

of "wrongness."'" Jastram ex. rel Jastram v. Kruse, 

197 N.J. 216

, 229 (2008)

(second alteration in the original) (quoting Johnson, 

192 N.J. at 281


      "The standard of review on appeal from decisions on motions for a new

trial is the same as that governing the trial judge–whether there was a

miscarriage of justice under the law." Risko v. Thompson Muller Auto. Grp.,


206 N.J. 506

, 522 (2011) (citing Bender v. Adelson, 

187 N.J. 411

, 435

(2006)). A court is not required to grant a motion for a new trial because a party

complains the damages award is too small. Anderson v. A.J. Friedman Supply


416 N.J. Super. 46

, 71-72 (App. Div. 2010).

      Applying these standards, we are satisfied the trial judge correctly denied

plaintiff's motion for a new trial on damages.        The judge summarized the

divergent testimony concerning plaintiff's damages and explained the jury found

no single witness credible on the issue of damages. The judge noted plaintiff

sought damages over a five-year period despite defense testimony and evidence

indicating plaintiff ended its relationship with the joint venture five months after

the initial face-to-face meeting.     Further, there was conflicting testimony

regarding plaintiff's entitlement to a share of gross profits versus net profits and

how profits would be calculated.

      We also reject plaintiff's contention the jury was confused in calculating

the damages award. "Once the jury is discharged, both trial and appellate courts

are generally bound to respect its decision, lest they act as an additional and

decisive juror." Kassick v. Milwaukee Elec. Tool Corp., 

120 N.J. 130

, 135-36

(1990) (citing Dolson v. Anastasia, 

55 N.J. 2

, 6 (1969)). "The jury's views of

the facts and the credibility of the witnesses as expressed in its verdict are

entitled to deference from both the trial and appellate courts." He, 

207 N.J. at


. We do not reweigh the evidence and substitute our judgment for that of

the jury. See Jastram, 

197 N.J. at 235


      Similarly, we decline to decipher the jury's logic or rationale in awarding

damages based purely on the jury's written questions to the court. Plaintiff offers

only speculation and conjecture as to the meaning of the jury's written questions.

Plaintiff's damages claim was multifaceted and vigorously disputed by

defendants. There is no evidence in the record the jury misunderstood the

evidence or judge's instructions in arriving at the damages award. The judge

consulted with counsel prior to responding to the jury's questions and re-read

the charges regarding the calculation of damages. There is no merit to plaintiff's

argument the jury was confused about damages based on their written questions.

      Further, the jury clearly rejected many components of plaintiff's claim for

damages based on the evidence and testimony. The jury rendered credibility

determinations and reviewed the evidence. In discharging its duty, we do not

second-guess the jury's credibility assessments or weigh the persuasiveness of

the evidence presented. A reasonable jury could accept the testimony and

evidence to determine the sum of $177,000 properly compensated plaintiff for

its damages. While plaintiff sought a much larger award, the amount awarded

is supported by the record based on the jury's considered evaluation of the

conflicting evidence and their credibility determinations regarding the various

witnesses. Under the circumstances, we agree the jury's award did not shock the

judicial conscience, and we perceive no basis to interfere with the damages


      For the same reason, we affirm the trial judge's denial of plaintiff's motion

for additur. See City of Long Branch v. Jui Yung Liu, 

203 N.J. 464

, 492 (2010)

(applying to motions for additur the same standard for new trial motions based

on a claim the damages award is against the weight of the evidence); see also

Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:49-1(a) (2021)

("[N]either additur nor remitter can be ordered unless a new trial, at least on the

damages issue, would be warranted.")

      We next consider PCB's cross-appeal. PCB argues the jury award should

be vacated and plaintiff's claims dismissed. In the event this court declines to

dismiss plaintiff's claims, PCB asserts the jury's award should stand. We reject

PCB's argument for dismissal of plaintiff's claims and affirm the jury's damages


      A motion for judgment may be made at the close of plaintiff's case, Rule

4:37-2(b), or after the verdict, Rule 4:40-1. We review motions under both rules

applying the same standard as the trial court. Smith v. Millville Rescue Squad,

225 N.J. 373

, 397 (2016).    Both motions are governed by the same standard:

"[I]f, accepting as true all the evidence which supports the position of the party

defending against the motion and according [it] the benefit of all inferences

which can reasonably and legitimately be deduce therefrom, reasonable minds

could differ, the motion must be denied." Verdicchio v. Ricca, 

179 N.J. 1

, 30

(2004) (quoting Estate of Roach v. TRW, Inc., 

164 N.J. 598

, 612 (2000)). A

motion made under either rule "should only be granted where no rational juror

could conclude that the plaintiff marshaled sufficient evidence to satisfy each

prima facie element of a cause of action." Godfrey v. Princeton Theological


196 N.J. 178

, 197 (2008) (citing Pitts v. Newark Bd. of Educ., 


N.J. Super. 331

 (App. Div. 2001)).

      In rendering the verdict, the jury found plaintiff performed in accordance

with the terms of the joint venture. Despite the lack of capital contributions by

the three men, the jury heard testimony the parties worked together pursuing

business opportunities, and plaintiff carried significant costs as part of the joint

venture. The jury also heard testimony indicating the exact terms of the joint

venture were fluid and subject to frequent changes. Therefore, the jury could

have credibly concluded plaintiff performed in accordance with the terms of the

joint venture absent a formal written agreement and without payment of a

$100,000 capital contribution by each partner. Because none of the partners

tendered money as part of a capital contribution toward the joint venture, the

jury could have determined such payment was not a material term in forming

the joint venture.

      Additionally, plaintiff presented evidence of damages stemming from the

joint venture. Mitchell testified the parties agreed to split gross profits three-

ways, while defendants denied any such agreement.                Further, plaintiff

admittedly never received payment for work performed by the joint venture

between October 2014 and March 2015 despite the partnership's receipt of

payment from AT&T for work during that time period. Giving plaintiff every

favorable inference, we are satisfied the trial judge properly denied defendants'

motions to dismiss.



Add comment


Recent Posts

Recent Comments