Schreibman v. Zanetti, WD

• Decision Date: 18 July 1995
• Docket Number: No. WD,WD
• Citation: 909 S.W.2d 692
• Parties: Michael SCHREIBMAN, Appellant/Cross-Respondent, v. Karen ZANETTI, Defendant, and Paul M. Katcher, Paul M. Katcher and Associates, Paul Katcher and Associates, Inc., and Katcher and Associates, Inc., Respondents/Cross-Appellants. 48476.
• Court: Missouri Court of Appeals

Page 692

909 S.W.2d 692

Michael SCHREIBMAN, Appellant/Cross-Respondent, v. Karen ZANETTI, Defendant, and Paul M. Katcher, Paul M. Katcher and Associates, Paul

Katcher and Associates, Inc., and Katcher and

Associates, Inc., Respondents/Cross-Appellants.

No. WD 48476.

Missouri Court of Appeals,

Western District.

July 18, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 29, 1995.

Scott Mach, Kansas City, for appellant.

Tammy N. Etem, Kansas City, for defendant Karen Joan Zanetti.

Morris J. Nunn, Kansas City, for respondents.

Before SPINDEN, P.J., and ULRICH and SMART, JJ.

SPINDEN, Presiding Judge.

Michael Schreibman, Paul Katcher and Karen Zanetti ¹ organized a partnership to operate a business in 1977. The business endured until 1985 when quarrelling broke up the relationship and led to this lawsuit. In February 1985, after Katcher terminated his relationship with Schreibman, Schreibman sued Katcher, three of Katcher's corporations, and Zanetti. Schreibman accused Katcher of not paying Schreibman commissions and the value of one-quarter interest in the business. Schreibman also charged Katcher with converting business property and with making fraudulent misrepresentations. Schreibman accused Zanetti of breaching their 1981 separation agreement.

The jury returned verdicts for Schreibman on all the counts submitted against Katcher. The trial court entered judgment against Katcher and his corporations, but it merged all of the damage awards into the jury's award for fraud. The jury also returned a verdict for Schreibman against Zanetti. ² Schreibman and Katcher appeal. We affirm the circuit court's judgment.

Facts

Schreibman met Katcher in 1975 or 1976 when Schreibman asked a Chicago manufacturer, Enesco, to let him represent it as an independent representative. Because Schreibman lived in St. Louis, Enesco told him to talk to Katcher, its independent representative who lived in St. Louis.

Schreibman called Katcher and told him that his wife Zanetti was interested in working for him by selling Enesco products. Katcher hired Zanetti. Katcher later told Schreibman that Enesco was considering changing its marketing plans. He said that Enesco was pressuring him to increase his customer base and to sell directly to his distributors' customers. Schreibman suggested that Katcher persuade Enesco to use a showroom to reach new customers.

Katcher and Zanetti later went to Chicago to convince Enesco officials to try Schreibman's showroom concept. Enesco accepted the idea and agreed to work with Katcher in opening one.

Katcher asked Schreibman to work for him in setting up the showroom. Schreibman said that he would not work for anyone and that he wanted control of any business with which he was involved. Katcher later asked Schreibman again to work for him, but Schreibman refused. Katcher then suggested that they become "partners." ³ Katcher and Schreibman had several meetings to negotiate an agreement. They orally agreed to a partnership which included Zanetti. Schreibman wanted to put their understanding in writing, but Katcher did not, and the agreement remained oral.

Schreibman, Katcher and Zanetti opened the showroom in Kansas City during January 1978. Katcher remained in St. Louis and managed affairs with Enesco. Schreibman and Zanetti moved to the Kansas City area to manage the showroom. Zanetti took care of the showroom's day-to-day operations and clerical responsibilities. Schreibman took care of road sales and hired the showroom personnel. All three shared expenses. Katcher and Schreibman put some of their partnership earnings back into the partnership account.

The business began booming in 1980 when Enesco introduced "Precious Moment" figurines to the showroom. By 1984, their annual sales reached $10 million. Prosperity brought unrest and quarrelling.

First came an end to Zanetti's and Schreibman's marriage in November 1981. Although they continued to work together, their relationship became increasingly disharmonious.

By 1983 Schreibman and Katcher were arguing. Schreibman suspected Katcher of cheating him, and Katcher was denying that he was Schreibman's partner. Although the two met on June 1, 1984, to "patch things up," their quarreling persisted. In 1985 Katcher announced the end of his relationship with Schreibman. On February 15, 1985, Katcher wrote Schreibman: "Effective February 18th, you will no longer represent Paul Katcher & Associates.... I will pay commissions for the next 60 days of 1985."

Schreibman sued Katcher and Zanetti. The jury returned verdicts for Schreibman and against Katcher in these amounts: $525,000 actual damages and $500,000 punitive damages for fraudulent misrepresentation; $48,230 actual damages and $50,000 punitive damages for conversion; $65,000 for breach of contract for money due in commissions; and $500,000 for breach of partnership. The trial court, however, concluded that the damage verdicts for breach of contract, conversion and breach of partnership merged with the damages for fraud.

Katcher appeals. He contends that the trial court erred by (1) allowing Schreibman's expert to give an opinion about the business' value; (2) admitting Schreibman's and Schreibman's wife's opinion of the value of certain aspects of the business; (3) submitting the case to the jury and refusing to grant Katcher's motions for summary judgment, directed verdict, judgment notwithstanding the verdict, or in the alternative, motion for new trial, because the issues required an accounting by a court of equity; (4) not using MAI 26.06 in instructing the jury concerning Schreibman's breach of contract claims; (5) allowing Schreibman to quote Katcher's threats concerning what he would do if Schreibman sued him; (6) denying his motions for directed verdict and judgment notwithstanding the verdict or, in the alternative, a new trial because the jury's verdict on the fraud claim and breach of partnership claim were inconsistent; (7) instructing the jury on the fraud claim; (8) not granting Katcher's motions for directed verdict, judgment notwithstanding the verdict, or, in the alternative, for new trial on Schreibman's claims of breach of contract and conversion; and (9) entering judgment against Katcher's three corporations from that judgment.

Schreibman also appeals. He complains that the trial court erred by merging damages and by concluding that he was not entitled to prejudgment interest.

Katcher's Points on Appeal

Expert Testimony

Katcher argues three points of error concerning the testimony of Schreibman's expert, Steven Walter, who expressed an opinion of the value of Schreibman's share of the business. Katcher asserts: (1) the expert was not sufficiently educated and experienced to qualify for recognition as an expert; (2) Schreibman did not lay a sufficient foundation for books and other facts on which the expert relied; and (3) the expert did not consider the value for partnership assets and good will and that the partnership was terminable-at-will.

The trial court did not err in recognizing Walter as an expert. A witness' qualifications to render an expert opinion is a matter within the trial court's discretion. Mehra v. Mehra, 819 S.W.2d 351, 355 (Mo. banc 1991). "The trial judge has a broad discretion in determining whether or not a particular witness has sufficiently qualified to give an expert opinion on the subject, and in the absence of abuse of this discretion cannot be successfully charged with error." State of Missouri ex rel. State Highway Commission v. Cone, 338 S.W.2d 22, 27 (Mo.1960).

Walter testified that he had a master's degree in business administration, was a certified financial analyst, and was a candidate for admission to the American Society of Appraisers. He also testified that he was involved with evaluating closely-held entities at George K. Baum Investment Bankers in Kansas City. His responsibilities involved writing fairness opinions for acquisitions and mergers and valuing private entities or securities in legal matters. He testified that almost all of his practice involved evaluating the value of businesses.

In light of this testimony, we do not discern an abuse of discretion in the trial court's recognizing him as an expert. That Walter had not previously valued a business such as the one in question was not a determining factor; it was a matter of the proper weight to be given the evidence, not an issue of its admissibility. The depth and breadth of experts' experience and knowledge are pertinent to the weight to be accorded their testimony, not to the admissibility of their opinion. St. Louis Southwestern Railway Company v. Federal Compress and Warehouse Company, 803 S.W.2d 40, 43 (Mo.App.1990).

We also disagree with Katcher's complaint that the trial court erred by not requiring Schreibman to lay a sufficient foundation for Walter's opinion. Katcher contends that Schreibman did not lay a sufficient foundation for Walter's reliance on (1) books which he could not declare to be authoritative; (2) an evaluation formula which Walter could not declare to be widely accepted by appraisers; and (3) facts prepared by Schreibman's wife.

Walter did refer to books, but Schreibman did not attempt to introduce them into evidence, and we do not discern any requirement that he do so. Hence, he did not need to establish a foundation for introducing the books into evidence. He needed only to satisfy the requirements of § 490.065, RSMO 1994, to establish a foundation for his expert's testimony.

We further disagree with Katcher's complaint that Schreibman did not lay a sufficient foundation for Walter's reliance on an evaluation formula or methodology suggested by an expert he did not know. In § 490.065.3, the General Assembly authorized the acceptance of an expert's opinion although that opinion may be based on facts or data supplied by a third party, including another expert. The statute says:

The facts or data in a...