Norman v. Del Elia
| Decision Date | 24 March 1975 |
| Docket Number | No. 11702,11702 |
| Parties | Howard NORMAN, Appellant, v. Joe DEL ELIA et al., Appellees. |
| Court | Arizona Supreme Court |
Filler, Paytas, Shannon, Fleming & Stephenson, P.C. by Harold C. Stephenson, Phoenix, for appellant.
Lewis & Roca by Paul Ulrich and I. Jerome Hirsch, Phoenix, for appellees.
Jurisdiction of this case was taken pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.
The plaintiff, a certified public accountant, filed a complaint against Joe Del Elia, Lorraine B. Del Elia, his wife, Del Elia Consultants, Inc., Eecolite Barricade Co., and Delcor, Inc. The complaint alleged that the defendant Del Elia had contracted with the plaintiff to perform accounting services for the previously named corporate entities. It further alleged that although the work was performed on the books and accounts of the corporations named, the work was performed at the request of Del Elia or on behalf of Del Elia and the community. The plaintiff further alleged that the named corporations were owned and controlled by the Del Elias and that they were alter egos of the corporate defendants.
The defendants filed an answer and counterclaim asserting that accounting services had been performed for the corporate defendants and the charges therefor were the responsibility of the corporations, not the individual defendants. It was alleged that some of the charges asserted in the complaint were incorrect and that no services had been performed for Delcor, Inc. The answer also pointed out the fact that previously the billings for services were directed to the corporations and had in the past been paid by them. Accounting services rendered by the plaintiff to the Del Elias, individually, it was alleged, had been paid.
The case went to trial before a jury. Prior to the jury verdict, the court directed a verdict for the Del Elias as to the claims for services to the corporations. The jury was given interrogatories for the purpose of determining the amounts owed by the corporate defendants. They awarded the plaintiff $1,066.00 against Del Elia Consultants, Inc.; $4,800.10 against Eecolite Barricade Company; and $3,217.00 against Delcor, Inc. Formal written judgment was signed by the court in conformity with the interrogatories returned by the jury.
The plaintiff filed his notice of appeal, appealing from all of the judgment, except the parts thereof which reflect findings of fact by the jury as to amounts owed by the enumerated corporate defendants.
In this appeal, the plaintiff presents five questions. First, he asserts that the evidence shows at least a prima facie case establishing a contract between plaintiff and Del Elia for the performance of accounting services for the various corporations which required the court to submit the issue to the jury. With this proposition we do not agree. There is No evidence that Del Elia personally obligated himself to the plaintiff in the performance of services for the various corporations. Nor, from the facts presented, can we find such relationship implied.
The plaintiff next contends that the trial court committed error in refusing to admit exhibits 11, 12, 13, 14, and 16 in evidence. In general, it can be said that each of these exhibits was cumulative and merely supportive of other evidence which had been presented by testimony. Since the court directed a verdict for the Del Elias, error could be found in this ruling only if the exhibit interjected some additional evidence which should have changed this result. In examining the contents of each exhibit, we find nothing which accomplishes this.
Exhibit 11 was a copy of a deed and escrow statement indicating that Del Elia Consultants sold the Del Elia home which was in the corporate name. It was apparent that the plaintiff was by this transaction attempting to show irregularities by defendant Del Elia in the handling of the corporation. By this device he hoped to support his alter ego theory discussed later in this opinion. The testimony showed that the grantee of the deed was Del Elia's brother-in-law, but the books of the corporation reflect an appropriate reduction in the amount owed by the corporation to Del Elia. We note also that exhibit 11 was not listed in the pretrial statement nor was it exchanged with opposing counsel prior to trial. Rule 6, Uniform Rules of Practice of the Superior Court, 17A A.R.S. The failure to comply with the rule was alone sufficient basis for the court to refuse to admit the exhibit.
Exhibits 12 and 14 are annual reports of Del Elia Consultants, Inc., and Delcor, Inc., respectively. They are cumulative and could have no effect on the...
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