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Miller v. Miller & Miller Accountants9/5/2001
. By judgment entry after trial filed July 19, 2000, the trial court found the jury's verdict was motivated by appellant's "no man can serve two masters" argument during closing: It was his [Mr. Underhill's] understanding in addition to representing him in the sale of the company that they were giving advice and recommendations to Mr. Miller on what this company is worth. That's from Mr. Underhill himself. It's one of the few things he did recall this morning.
How can you do that? The Bible says you cannot serve two masters at the same time. And in this case that's exactly what was done. And because there were two masters being served at the same time, two clients whose interests were adverse, this firm had loyalty to two people. It owed a duty of loyalty to a client the same as I stand here before you representing Mr. Miller I have a duty of loyalty to represent him to the best of my ability.
If I were to tell you folks, oh, by the way, I'm doing my best and I have the degree of loyalty and I am giving him 100 percent, but my representing his client the same way.
Pardon me? Wait. You can't have two attorneys in the same firm representing adverse interests because it calls into question your loyalty, your integrity and your ability to impartially evaluate and give your client good advice. Vol. IV T. at 442-443.
The trial court deemed this argument improper because the issue of breach of fiduciary relationship had been precluded by a previous trial court ruling. Vol. IV T. at 277-279. We note the trial court found that the jury made an inappropriate decision based upon less than a page of recorded transcript in a trial that lasted five days and consisted of four hundred ninety-five pages of transcript. Further, we note the complained of argument was prefaced by counsel arguing appellant's claims were based upon negligence: What I am telling you is that negligence is not fraud and negligence is you didn't do a reasonable job in representing your client. And there is no dispute here that they were representing Raymond Miller in terms of evaluating, analyzing, giving advice and recommendations, even to the point Mr. Underhill said in the transaction he hardly talked to Raymond, everything was run through the accounting firm. Vol. IV T. at 441-442.
Appellant's counsel's final closing also spoke in terms of negligence. Vol. IV T. at 463. The jury charge given by the trial court also centered on negligence: Plaintiff, Raymond Miller, claims that the defendant, Miller and Miller Accountants, Incorporated, undertook to do financial advice and accounting work for him in his acquisition of two business; Refurbco Communications and Unique Communications during 1991 and 1992. Plaintiff further claims that Miller and Miller were professionally negligent in performing the duties they agreed to perform for him in that transaction, resulting in a bad business deal and financial loss to him.
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All right. In regard to negligence, to prove an accounting negligence, Mr. Miller must prove to you by the greater weight of the evidence that an accountant at Miller and Miller, other than Robert Troyer, was negligent in performing a duty which he agreed to perform for Mr. Miller, that that negligence proximately caused an injury to Mr. Miller, and the amount of damages he suffered is the proximate result of the accountant's negligence.
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Let's talk about what is negligence? Negligence simply means failure to use ordinary care. Every person is required to use ordinary care in carrying out a duty to avoid injuring another person or another's property. Ordinary care is the care a reasonably careful person would use under the
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