Lehman v. Zuckerman

• Decision Date: 05 December 1990
• Docket Number: No. A90A1305,A90A1305
• Citation: 198 Ga.App. 202,400 S.E.2d 704
• Parties: LEHMAN v. ZUCKERMAN et al.
• Court: Georgia Court of Appeals

Page 704

400 S.E.2d 704

198 Ga.App. 202

LEHMAN v. ZUCKERMAN et al.

No. A90A1305.

Court of Appeals of Georgia.

Dec. 5, 1990.

Rehearing Denied Dec. 20, 1990.

Certiorari Denied Jan. 31, 1991.

Vincent, Chorey, Taylor & Feil, Kenneth I. Sokolov, Atlanta, for appellant.

Howell W. Ragsdale, Jr., Atlanta, for appellees.

COOPER, Judge.

Appellant, an experienced builder, and appellee Howard Zuckerman, a real estate investor, formed Seville Construction Group, a construction company in which appellant served as construction manager and Zuckerman was responsible for obtaining financing for company projects. Two other companies grew out of the construction company--Seville Equipment Leasing, which leased construction equipment to the construction company and Homes by Seville, which constructed single family homes. To supplement bank financing Zuckerman contributed his own money when necessary to complete projects, and when the real estate market began a downturn and the companies had difficulty covering expenses, Zuckerman provided more money to cover expenses. Eventually, Zuckerman decided to dissolve all three of the companies, and to facilitate the dissolution, appellant and Zuckerman executed a memorandum of understanding, which required appellant to repay Zuckerman what had been previously advanced for construction loans, material and subcontractor payments. When appellant refused to pay, Zuckerman brought the instant action to recover the principal balance plus interest. Zuckerman subsequently assigned his interest in the memorandum of understanding to Seville Holding Group, Ltd., which was added as a plaintiff to the action. Appellant answered the complaint and asserted a counterclaim for fraud and breach of a stock transfer agreement. The jury returned a verdict for appellees in the amount of $273,808.62, and this appeal follows the trial court's entry of a judgment thereon.

1. In his first enumeration of error, appellant contends the verdict was not supported by the evidence because appellees failed to prove specifically what money was advanced for construction loans, material and subcontractor payments as provided in the memorandum. The record demonstrates that Zuckerman contributed a total of $675,914.07 toward the operation of the three companies, however, ultimately prayed in the complaint for $554,823.67, after adding interest and crediting reimbursements and the proceeds from the sale of two homes. At trial, Zuckerman testified that subsequent to the filing of the suit, other credits to the balance were identified which brought the total sought down to $413,256.19. The memorandum of understanding recited that as of its signing, the balance of funds owed to Zuckerman was $211,000. Appellant introduced into evidence a computerized list prepared by Zuckerman which identified each advancement made to the companies for which he sought reimbursement, the date, the amount, amounts repaid and periodic interest calculations. An official from the commercial real estate loan department of a bank provided a list of the bank's prime interest rate charges during the relevant time period. Appellant contends that appellees' damage calculation is erroneous and the product of guesswork, speculation and conjecture, pointing to Zuckerman's less than precise references to figures using the terms "probably" and "around" and his admissions that mistakes were made in the interest calculation and that the amount prayed for represented all the money he put into the companies, including some expenses not recoverable under the categories specified in the memorandum, i.e., salary paid to the office manager. Zuckerman, however, defended the inclusion of salary paid to appellant to induce him to remain until the dissolution concluded, computer maintenance and interest, payments on his personal automobile and interest on loans for funds he borrowed personally and used to cover the companies' shortfalls. Zuckerman admitted that his calculation contained errors, but maintained that the miscalculation "probably" benefitted appellant "in the neighborhood" of "maybe" $1,000.

"Even though a verdict may be against the preponderance of the evidence, the appellate court cannot interfere with that verdict if it is supported by some evidence. [Cit.]" Costarides v. Skelton, 193 Ga.App. 470(1), 388 S.E.2d 62 (1989). Contrary to appellant's contentions, in the instant case, there was sufficient evidence to determine the amount of damages with reasonable certainty. Bennett v. Assoc. Food Stores, 118 Ga.App. 711, 716, 165 S.E.2d 581 (1968).

2. In his second and third enumerations, appellant argues that the trial court erred in refusing to grant a directed verdict based upon appellees' failure to prove damages stemming from the breach and failure to compute damages. "A verdict shall be directed only when the evidence demands--as distinguished from merely seeming to preponderate towards--a certain verdict. OCGA § 9-11-50(a) requires 'no conflict in the evidence as to any material issue' in order for a directed verdict to be authorized. [Cit.]" Morris v. Futch, 193 Ga.App. 132(1), 386 S.E.2d 905 (1989). The record demonstrates the existence of factual questions as to whether or not the damages claimed by appellees were recoverable under the memorandum; therefore, the trial court did not err in submitting the case to the jury.

3. Appellant next argues the trial court erred in permitting Zuckerman to testify as to appellees' damages over his objections based upon the best evidence rule and hearsay. Appellant contends that Zuckerman's testimony regarding his damages was not based on his own personal knowledge or on records he prepared, thus the testimony was inadmissible and further that Zuckerman should have been required to produce the checks representing his expenditures and statements evidencing the proceeds from the sale of property. The trial court did not err in admitting the testimony as proof of payment to the companies. The best evidence rule is applicable where the terms of a writing are material, in which case, the original writing must be produced. Merrill Lynch, etc., Smith v. Zimmerman, 248 Ga. 580, 285 S.E.2d 181 (1981). " '[It] does not apply to fact of payment of the charges. [Cit.]' [Cit.]" Commercial Union Ins. Co. v. Smith, 179 Ga.App. 734(3), 347 S.E.2d 701 (1986).

As to appellant's contentions regarding hearsay, review of the transcript reveals no timely objection to Zuckerman's testimony; hence, there is nothing for us to review. See Ely v. State, 192 Ga.App. 203(3), 384 S.E.2d 268 (1989); Warren v. Jenkins, 190 Ga.App. 442(2), 379 S.E.2d 19 (1989). This enumeration of error is without merit.

4. Appellant enumerates as error the admission of a chronological list prepared by Bank South of the prime rate from 1981 until 1989 as a business record. Appellant urges that no proper foundation was made for the introduction of the document. The bank employee testified that he was generally familiar...