Baron v. Lerman, 50637

• Decision Date: 23 September 1986
• Docket Number: No. 50637,50637
• Citation: 719 S.W.2d 72
• Court: Missouri Court of Appeals
• Parties: Sheldon BARON and Earl Salsman, Plaintiffs/Respondents, v. Samuel LERMAN, Bernice Lerman, Paul Lerman and L & L Packaging, Defendants/Appellants.

Page 72

719 S.W.2d 72

Sheldon BARON and Earl Salsman, Plaintiffs/Respondents, v. Samuel LERMAN, Bernice Lerman, Paul Lerman and L & L Packaging, Defendants/Appellants.

No. 50637.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 23, 1986.

Rehearing Denied Nov. 4, 1986.

Arthur G. Muegler, Jr., St. Louis, for defendants/appellants.

Mark E. Goodman, St. Louis, for plaintiffs/respondents.

KAROHL, Presiding Judge.

Clients appeal jury verdict and judgment for plaintiffs who claimed fees for accounting and tax services rendered between 1980 and 1982. Plaintiffs brought a three count suit in quantum meruit. Count I was against Samuel and Bernice Lerman; Count II against Samuel and Paul Lerman d/b/a "Samuel Lerman & Associates", a general partnership; and Count III against L & L Packaging Company and Samuel Lerman. The jury found for plaintiffs on their claims and against defendants on their counterclaim against plaintiffs for tortious conversion of business records. We reverse and remand.

Plaintiffs Sheldon Baron and Earl Salsman are general partners in their accounting partnership, Baron, Salsman & Company. Sheldon Baron first began providing accounting services for defendant Samuel Lerman in 1961, while working for another accounting firm. Baron became a partner in this firm, which split amicably in 1974. From 1974 to 1980 Baron rendered accounting services to Samuel Lerman.

Sheldon Baron and Earl Salsman formed Baron, Salsman & Company on December 15, 1980. The new partnership continued to provide accounting and financial services to Samuel Lerman, his wife Bernice, his son Paul, Samuel Lerman & Associates, L & L Packaging Company and related businesses until 1982. These services included bookkeeping, financial report preparation, income tax preparation and financial consulting. Plaintiffs billed Lerman and his businesses on an hourly charge based on time records.

This case arose over disputed billings between the parties during 1980-1982. Plaintiffs submitted as evidence invoices for accounting services, contending they had not been paid. Defendants responded that the hourly rates and the number of hours charged were both excessive. Defendants further counterclaimed against plaintiffs, arguing that Sheldon Baron had refused, after demand, to return Samuel Lerman's business records and documents. Defendants referred in particular to their Exhibit Z, an original executed tissue copy of the Samuel Lerman & Associates partnership agreement. The jury returned verdicts against defendants for the unpaid balances owing plaintiffs; $1,712 against Samuel and Bernice Lerman, $4,562 against Samuel and Paul Lerman, $1,545 against L & L Packaging Company. It also found against all defendants on their counterclaim against plaintiffs for tortious conversion of Exhibit Z.

Defendant argues ten points on appeal: (1) defendants were entitled to judgment as a matter of law on their counterclaim because evidence of conversion was unrefuted; (2) plaintiffs failed to present evidence that all partners of Baron, Salsman & Company were joined as parties and so lacked standing to sue defendants for a debt due; (3) plaintiffs failed to establish a prima facie case of quantum meruit as there was no expert testimony establishing whether hours and rates charged were reasonable and invoices were submitted as evidence without adequate foundation as to their reasonableness; (4) the trial court materially failed to follow MAI 2.00 and 2.11 "packaging rules" for instructions and verdict forms submitted to the jury; (5) using MAI 36.01 instead of MAI 36.05 was prejudicial error because, based on plaintiffs' petition, the jury was required to make separate findings of liability against each defendant; (6) it was error to refuse defendants' proffered converse verdict directors (No. 7 and 9); each of the verdict directors misstated the law, deviated from MAI format, are unsupported by the evidence, fail to specify against which defendant a verdict should be entered, fail to include a definition of "agency" and require a verdict on "Counts I, II or III" which counts are not otherwise identified; (10) the court erred in striking from defendants' answer a statute of frauds affirmative defense and in giving an instruction which unlawfully tries to enforce Samuel Lerman's verbal guarantee to pay. We find defendants' sixth point dispositive.

Defendants assert that the court erred in refusing their proffered converse instructions to plaintiffs' verdict directors. The verdict directors and refused converse instructions are as follows:

INSTRUCTION NO. 7 [Count I]

Your verdict must be for plaintiffs on Count I if you believe:

First, plaintiffs furnished accounting services to defendants Samuel Lerman and Bernice Lerman, and

Second, defendants Samuel Lerman and Bernice Lerman accepted such services, unless you believe that plaintiffs are not entitled to recover by reason of Instruction Number 16.

INSTRUCTION NO. 16 [affirmative defense]

Your verdict must be in favor of defendant Samuel Lerman and defendant Bernice Lerman and against plaintiffs if you believe the services actually rendered by plaintiffs were not necessary or beneficial to said defendants. Refused INSTRUCTION AA [converse to No. 7]

Your verdict must be for defendant Samuel Lerman and defendant Bernice Lerman unless you believe said defendants accepted the accounting services rendered by plaintiffs.

INSTRUCTION NO. 10 [Count II]

Your verdict must be for plaintiffs on Count II if you believe:

First, plaintiffs furnished accounting services to defendants Samuel Lerman and Paul Lerman, doing business as Samuel Lerman & Associates and

Second, defendants Samuel Lerman and Paul Lerman doing business as Samuel Lerman & Associates accepted such services, unless you believe that plaintiffs are not entitled to recover by reason of Instruction Number 17.

INSTRUCTION NO. 17 [affirmative defense]

Your verdict must be in favor of defendant Samuel Lerman and defendant Paul Lerman and against plaintiffs if you believe the services actually rendered by plaintiffs were not necessary or beneficial to said defendants.

Refused INSTRUCTION NO. DD [converse to No. 10]

Your verdict must be for defendant Samuel Lerman and defendant Paul Lerman unless you believe said defendants accepted the accounting services rendered by plaintiffs.

INSTRUCTION NO. 14 [Count III]

Your verdict must be for plaintiffs on Count III if you believe:

First, plaintiffs furnished accounting services to defendant L & L Packaging Company,

Second, defendant L & L Packaging Company accepted such services, unless you believe that plaintiffs are not entitled to recover by reason of Instruction Number 18.

INSTRUCTION NO. 18 [affirmative defense]

Your verdict must be in favor of defendant Samuel Lerman and defendant L & L Packaging Company and against plaintiffs if you believe the services actually rendered by plaintiffs were not necessary or beneficial to said defendants.

Refused INSTRUCTION II [converse No. 14]

Your verdict must be for defendant Samuel Lerman and Defendant L & L Packaging Company unless you believe said defendants accepted the accounting services rendered by plaintiffs.

Plaintiffs respond that instructions 16, 17 and 18 are converse instructions and defendants are not entitled to more. We disagree. Defendants' amended answer asserts several affirmative defenses, including those alleging plaintiffs' accounting services were not necessary or beneficial to defendants. Thus, Instructions 16, 17 and 18 instruct the jury on defendants' affirmative defenses. They are not, as plaintiff asserts, converse instructions.

The general comment on converse instructions, MAI 33.01 Missouri Approved Instructions, Third Edition, p. 487, provides that "a defendant is entitled to a converse of plaintiff's verdict directing instruction." Frazier v. Ford Motor Company, 276 S.W.2d 95 (Mo.1955). Defendants offered a true converse instruction on one of the elements essential to plaintiff's recovery. See MAI 33.01 Third Edition p. 487. As such instruction is required if requested a defendant is entitled to have it submitted. Frazier, 276 S.W.2d at 102.

Plaintiffs argue that the trial court's refusal is not erroneous because the instructions as a whole properly cover the theory of defense and, further, that defendants were in no way prejudiced by omitting their converse instruction. We disagree. Under MAI 33.01, defendant is entitled to submit a true converse of any element in plaintiffs' submitted instruction. Of necessity such a converse requires that the jury find anew a disputed fact. Here, defendants' true converse instruction required the jury to decide again whether plaintiffs' services were accepted by the defendants. To say that the jury has already found this fact once is no answer to MAI's provision that a defendant is entitled to submit a converse verdict directing instruction. Under plaintiffs' proposition, defendants' entitlement under MAI to submit a proper converse instruction would be emasculated on the theory that the submitted instructions already covered the theory of defense. The theory of MAI is contrary.

In addition, in answer to plaintiffs' assertion that defendants suffered no prejudice, we note that "[A]ll deviations from the straight and narrow path prescribed in MAI will be presumed prejudicial unless it is made perfectly clear that no prejudice resulted." Scheele v. American Bakeries Company, 427 S.W.2d 361, 364 (Mo.1968). We cannot say that no prejudice resulted from failing to submit a jury instruction to which defendant was entitled. We reverse and remand.

We address only those remaining points which may arise on retrial. Defendants first point asserts that they are entitled to a directed verdict or judgment notwithstanding the verdict on their counterclaim because evidence of conversion was not refuted. A directed verdict is a drastic remedy and should only be granted...