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Miller v. Miller & Miller Accountants9/5/2001
JUDGMENT: Affirmed in part, reversed in part and jury verdict reinstated.
On June 12, 1997, appellant, Raymond Miller, filed a complaint against appellee, Miller & Miller Accountants, Inc., alleging negligence, breach of fiduciary duty and accounting malpractice relating to appellant's acquisition of a company called Refurbco, Inc. and its corporate affiliate, Unique Communications, from Gary Underhill. Both appellant and Mr. Underhill were clients of appellee. Appellant acquired the company with a partner, Robert Troyer, an accountant and employee of appellee. Appellee's employees who allegedly worked on the deal were Gary Lovett and Robert Klopfer. The deal closed in April of 1992 for $76,088.25. Following the acquisition, the company deteriorated. Appellant claimed the company's financial statements prepared by appellee were not as they appeared to be.
Appellant asked Mr. Underhill to rescind the transaction. In October of 1992, Mr. Underhill agreed, in consideration of appellant paying him $100,000 and signing a covenant not to sue. On March 31, 2000, appellee filed a motion for summary judgment based upon the covenant not to sue. By entry filed May 24, 2000, the trial court found the covenant not to sue did not apply to appellant's claims against appellee, but did apply to appellant's claims against Mr. Troyer, as a business partner and as an employee of appellee. A jury trial commenced on June 6, 2000. The trial court directed a verdict in favor of appellee on the issue of breach of fiduciary duty. The jury found in favor of appellant in the amount of $176,088, but found appellant twenty percent comparatively negligent. Following the verdict, the trial court issued a ruling on two motions filed by appellee, a motion for a directed verdict and a motion for judgment notwithstanding the verdict. By judgment entry after trial filed July 19, 2000, the trial court found appellant's counsel mislead the jury in closing argument, and ordered a new trial or a remittitur to $70,000. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ORDERING A NEW TRIAL SUA SPONTE UNDER CIV.R. 59(D) IN THE ABSENCE OF ANY JUSTIFIABLE GROUNDS UNDER CIVIL RULE 59(A).
II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ORDERING A NEW TRIAL SUA SPONTE UNDER CIV.R. 59(D) WITHOUT GIVING PLAINTIFF THE REQUISITE NOTICE AND HEARING.
III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE JURY ON IMPLIED ASSUMPTION OF RISK/CONTRIBUTORY NEGLIGENCE AS AN AFFIRMATIVE DEFENSE.
IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING A DIRECTED VERDICT DISMISSING PLAINTIFF'S CLAIM AGAINST DEFENDANT FOR BREACH OF FIDUCIARY DUTY.
V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING PARTIAL SUMMARY JUDGMENT DISMISSING ANY CLAIM AGAINST DEFENDANT FOR THE ALLEGED MISCONDUCT OF ITS STAFF ACCOUNTANT WHOM PLAINTIFF HAD COVENANTED NOT TO SUE INDIVIDUALLY.
VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTING PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST.
Appellee also filed an appeal. Assignment of error is as follows:
CROSS-ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY NOT GRANTING MILLER & MILLER'S MOTIONS FOR A DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT AS A MATTER OF LAW BASED UPON THE PLAINTIFF'S FAILURE TO INTRODUCE EXPERT TESTIMONY AND/OR SUPPORTING EVIDENCE ESTABLISHING HIS PROFESSIONAL MALPRACTICE CLAIM.
I.
Appellant claims the trial court erred in ordering a new trial or a remittitur. We agree
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