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COMMERCIAL CREDIT BUS. LOANS, INC. v. MARTIN

January 10, 1984

COMMERCIAL CREDIT BUSINESS LOANS, INC., Plaintiff
v.
ROBERT I. MARTIN, ET AL., Defendants



The opinion of the court was delivered by: DITTER

 Following a trial which lasted 32 days, the jury returned a verdict against the plaintiff, Commercial Credit Business Loans, Inc. (CCBL), on its complaint to recover on a personal guaranty and in favor of defendant Robert Martin on his counterclaim. *fn1" The jury awarded Robert Martin $4,000,000. in compensatory damages and $1,000,000. in punitive damages. Presently before me are the plaintiff's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. For the reasons that follow, I will deny plaintiff's motion for judgment notwithstanding the verdict but grant its motion for a new trial.

 Where a party moves for a judgment notwithstanding the verdict and for a new trial, the court must rule on both motions. Universal Computer Systems, Inc. v. Medical Services Ass'n of Pennsylvania, 474 F. Supp. 472, 475 (M.D. Pa. 1979), aff'd 628 F.2d 820 (3d Cir. 1980). The applicable standard for the motions are distinctly different. In ruling on a motion for judgment notwithstanding the verdict the court "must expose the evidence to the strongest light favorable to the party against whom the motion is made and give him the advantage of every fair and reasonable inference." Danny Kresky Enterprises Corp. v. Magid, 716 F.2d 206, 209 (3d Cir. 1983), quoting Inventive Music Ltd. v. Cohen, 617 F.2d 29, 31 (3d Cir. 1980). A judgment n.o.v. should not be granted unless, based upon the entire record, there is insufficient evidence for a reasonable, fair-minded juror, in the exercise of impartial judgment, to return such a verdict. See Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888, 891 (4th Cir. 1980).

 In contrast, a motion for a new trial goes beyond a mere inquiry into the sufficiency of the evidence. "Even where there is 'substantial evidence' the trial judge may set aside a verdict for the reason that it is against the clear weight of the evidence, or that damages are excessive, or that substantial errors have occurred in the admission or rejection of evidence." Keystone Floor Products Co. v. Beattie Manufacturing Co., 432 F. Supp. 869 (E.D. Pa. 1977). In addition, even where a jury could have permissibly drawn the inference it did from the record, a new trial may be ordered where counsel engaged in improper conduct which had a prejudicial effect upon the jury. See Draper v. Airco, Inc., 580 F.2d 91 (3d Cir. 1978). *fn2" In such circumstances, the trial court may set aside the verdict in order to prevent a miscarriage of justice. In the present case, a new trial is required because of a persistent pattern of misconduct by defendants' counsel that continued despite my numerous admonitions.

 I. Facts

 Viewed in the light most favorable to the defendants, the following facts emerged at trial: between September, 1973, and December, 1973, CCBL made a series of loans totaling in excess of $2 million to Rimar Manufacturing, Inc. (Rimar) and its wholly-owned subsidiary, Pier 7, Inc. (Pier 7). Rimar was a public company with approximately 2000 stockholders. Martin was a substantial shareholder of Rimar, as well as its president and that of Pier 7. Shortly after the closing of the original loan transactions, CCBL became concerned over the expansion policy undertaken by Martin. Soon after Rimar acquired a new company, Rimar of Connecticut, in October, 1974, CCBL decided to terminate its financing agreement with Rimar and Pier 7. John Romoser, a CCBL account executive who had formerly handled the Rimar account, testified that when CCBL officials learned that Rimar had purchased the Connecticut enterprise, "management was extremely upset" and stated that "they were going to crucify the S.O.B." Romoser further testified that CCBL intended to continue its "liquidation" program until Martin was bankrupt. As part of this program, CCBL began to reduce the amount that Rimar could borrow from CCBL while simultaneously collecting Rimar's accounts receivable. The net result was a severe diminution of Rimar's cash flow which created a substantial likelihood that Rimar would be forced into bankruptcy.

 In early September, 1975, Rimar, Pier 7, Martin, and his wife brought an action against CCBL and three of its officers in federal court and obtained a temporary restraining order allowing Rimar to withhold certain accounts receivable from CCBL. The action was settled by way of a stipulation which is the foundation of the present action. This document modified the terms of the original loan agreement and provided, inter alia, that CCBL would continue to provide financing for a period of up to six months during which Rimar would seek an alternative source of financing. See para. 3 of Stipulation and Order. In addition, CCBL agreed not to "reinstitute any program of liquidation against any of the above Plaintiffs, and no new procedure will be instituted by CCBL during the term of this Stipulation and Order which would reduce the availability due Plaintiffs" unless 10 days notice was given. para. 18 of Stipulation and Order. In return, Rimar, Pier 7, and the Martins agreed inter alia, to release CCBL from liability by reason of CCBL's previous actions. See para. 10 of Stipulation and Order. In addition, the Martins agreed to provide a $250,000. personal guaranty for the obligations of Rimar and Pier 7. See para. 16 of Stipulation and Order.

 Notwithstanding the agreements set forth in the Stipulation and Order, disputes continued to arise between the parties. The disagreements centered upon CCBL's procedures in determining the collateral value of accounts receivable and inventory under the loan agreements. The net result of CCBL's actions was to reduce the availability of funds which Rimar could borrow. Because they were unable to continue as viable enterprises in the absence of this financing, Rimar and Pier 7 filed petitions under Chapter XI of the former Bankruptcy Act on January 12, 1976.

 In March, 1976, CCBL filed the present action against Mr. and Mrs. Martin alleging that because of the failure of Rimar and Pier 7 to repay their obligations timely, the Martins were indebted to CCBL in the amount of $250,000. under the terms of their personal guaranty of September 12, 1975. In response, the Martins filed a counterclaim, alleging that during the period of September 12, 1975, to January 12, 1976, CCBL had tortiously violated the terms of the Stipulation and Order in a deliberate attempt to harass and cause financial difficulty to Rimar. The defendants alleged that as a result of CCBL's actions, they suffered substantial damages. *fn3"

 Throughout this entire period, Rimar, Pier 7, and the Martins were represented by Paul Rosen, Esquire. Mr. Rosen counselled and advised them during the continuing problems with CCBL. He wrote letters, made phone calls, and had personal conferences. He appeared in court on behalf of Rimar and the Martins. It was Mr. Rosen who negotiated the settlement of the prior action. He was in constant, often daily contact with the Martins and was intimately acquainted with all that took place. He knew of the difficulties between the Martins and CCBL, not second hand or in broad outline, but first hand and in detail. Unfortunately, he was also their trial counsel in the present case.

 II. Motion for Judgment Notwithstanding the Verdict

 CCBL has asserted three grounds in support of its motion for judgment notwithstanding the verdict: first, as a shareholder and officer of Rimar, Martin may not maintain an individual action against CCBL for what amounts to a primary wrong to the two corporations (Rimar and Pier 7); second, that the defendants failed to prove that during the period of September 12, 1975, through January 12, 1976, CCBL had engaged in any tortious conduct; finally, that Martin failed to establish any link between CCBL's conduct and his alleged damages. Each contention is without merit.

 With regard to the first issue, CCBL asserts that Martin, in his capacity as a stockholder and officer of Rimar, lacks standing to maintain this action. CCBL contends that a claim for breach of a contract with a corporation or for the tortious impairment of its business is vested solely with the corporation, not its stockholders or officers. I have no quarrel with this statement of the law. See e.g., Pitchford v. Pepi, Inc., 531 F.2d 92, 97 (3d Cir. 1975), cert. denied, 426 U.S. 935, 49 L. Ed. 2d 387, 96 S. Ct. 2649 (1976); Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 732 (3d Cir. 1970), cert. denied, 401 U.S. 974, 28 L. Ed. 2d 323, 91 S. Ct. 1190 (1971); ITT Diversified Credit Corp. v. Kimmel, 508 F. Supp. 140, 143-45 (N.D.Ill. 1981); Commercial Credit Development Corp. v. Scottish Inns of America, Inc., 69 F.R.D. 110, 116-17 (E.D. Tenn. 1975). This is, however, not the basis upon which Martin's claim is predicated. Martin has standing to maintain this action because he was a party to the September 12, 1975, Stipulation and Order, the terms of which he has alleged CCBL breached with the deliberate intent of causing injury to him. As such, Martin has an independent basis upon which to bring this action, separate and apart from his status as president and shareholder of Rimar. *fn4" See, e.g., Buschmann v. Professional Men's Association, 405 F.2d 659, 662 (7th Cir. 1969); Stewart Coach Industries, Inc. v. Moore, 512 F. Supp. 879, 888 (S.D. Ohio 1981).

 CCBL also argues that judgment n.o.v. must be granted because Martin failed to prove that between the period of September, 1975, and January, 1976, CCBL had engaged in any tortious conduct. Viewing the evidence in a light most favorable to Martin, I find that there is substantial evidence to support the jury's determination that CCBL violated the terms of the Stipulation and Order with the ...


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