Baker v. Mundaca Investment Corp.

JANET K. BAKER, )

Plaintiff-Appellee, ) ) Appeal No. FILED ) 01A01-9809-CH-00498 ) June 29, 1999 v. ) ) Davidson Chancery Cecil Crowson, Jr. MUNDACA INVESTMENT ) Appellate Court Clerk CORPORATION, ) ) Defendant-Appellant, )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE CAROL L. McCOY, CHANCELLOR

ROBERT D. TUKE and W. EDWARD RAMAGE TUKE YOPP & SWEENEY, PLC 414 Union Street, Suite 1100 Nashville, Tennessee 37219 Attorney for Plaintiff-Appellee

JEFFREY A. GREENE and G. MILLER HOGAN, II CASTLEMAN & GREENE, PLLC 110 Glancy Street, Suite 109 Goodlettsville, Tennessee 37072 Attorney for Defendant-Appellant

AFFIRMED AND REMANDED

HERSCHEL P. FRANKS, JUDGE

CONCUR: GODDARD, P.J. CANTRELL, J.

OPINION

This action involves a d ispute over loan brok erage fee s. Defend antappellant Mundaca Investment Corp. (“Mundaca”) purchased “loan packages” at auction. A single package typically consisted of several individual loans secured by real estate. M undaca h ired Plaintiff J anet Bak er to assist it in ob taining finan cing to bid on these packages.

Under the parties’ initial agreement, Baker received a 1.5% commission on all closed , funded lo ans. In De cember, 1 992, the pa rties orally modif ied this agreement. According to Mundaca, the parties agreed that Baker would not receive a new commission each time Mundaca paid down its indebtedness and re-borrowed on the same line of credit. In exchange, Baker was to receive 1.5% of the entire amount of the line o f credit at the b eginning, re gardless of the amou nt Mun daca actua lly borrowed. Mundaca contends that the parties did not modify the portion of the agreem ent requ iring the loans to be clos ed bef ore Ba ker earn ed her f ee.

According to Baker, the parties agreed that she would receive only one commission on a given line of credit. In exchange, Mundaca would pay her commiss ion whe n the lende r committe d to lend rath er than w hen the loa n actually closed.

Baker helped Mundaca to obtain a $5,000,000.00 loan commitment from SouthTrust Bank. A commitment agreement was signed on February 3, 1995, but the loan never closed. Baker sought a $75,000.00 commission, which Mundaca refu sed to pay.

This action resulted, and Baker initially bro ught fou r claims for u npaid fees. Mundaca paid fees for two of the claims before trial and Baker moved for summary judgment on the remaining claims. The Court granted summary judgment *3 on the second claim but denied it on the first. The ca se was tried before a jury, wh ere Baker asserted alternative claim s for breach of con tract or quantum meruit. The Trial Court directed a verdict for Mundaca on the quantum meruit claim, and the jury returne d a verd ict for B aker on the con tract claim for $7 5,000.0 0.

Mundaca contends that the Trial Court erred in admitting the testimony of plaintiff’s two expert witnesses, and argues that the witnesses were not qualified and did not sub stantially as sist the ju ry.

Questions regarding the admissibility, qualifications, relevancy and competency of an expert’s testimony are generally left to the discretion of the trial court. McD aniel v. C SX Tr ansp., In c., 955 S .W.2d 257 (T enn. 19 97), cert. denied, 118 S.Ct. 22 96 (19 98).

Mundaca contends that the plaintiff’s expert witnesses were not qualifie d beca use the y lacked e xperien ce with the type o f loans involv ed in this case. Specifically, neither had significant experience working with notes secured by real estate mortgages rather than the real estate itself. Both witnesses, however, had extensive experience in the mortgage banking and brokerage industry. The witnesses testified that, in the ir opinion, the re was no differenc e betwee n the loans in volved in this case and other types of loans with which they were experienced. They testified that the u nderlying security w as the sa me in e ither insta nce.

The Trial Court has wide discretion in assessing the qualifications of experts . We fin d no ab use of discretio n by the T rial Cou rt. See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 43 9 (Tenn. 1992).

Mund aca also arg ues the exp erts’ testimony did not “substa ntially assist” the jury. G enerally, the que stion of w hat will “sub stantially assist” the jur y is for the t rial cour t to deter mine. Primm v. Wickes Lumber Co., 845 S.W.2d 768 (Tenn.App. 1992). In this case, the Trial Court limited the content of the experts’ *4 testimony to the commo n practices in the industry, and did not allow any expert testimony concerning how the parties set fees in this case, nor did it permit testimony conce rning th e indus try standa rds of s etting a f ee.

The testimony concerning common practices in the industry was relevant to the plaintiff’s quantum meruit claim. Altho ugh the T rial Court ultim ately granted a directed verdict on that issue, the motion for directed verdict was not made until after plaintiff had presented her experts. Thus, the quantum meruit claim was at issue w hen the eviden ce wa s admitt ed. See Barr v. Plastic Sur gery Co nsultants, 760 S.W.2d 585 (Mo.Ct.App. 1988) (evidence relating to claim disposed of by directed verdict was relevant and material at trial as issue was still viable). Moreover, Mundaca was p ermitted to prese nt its ow n expe rt on the issue.

Mundaca also argues that despite the Trial Court’s limitation, one of the plaintiff’s ex perts impro perly testified that p laintiff had e arned her f ee under th e facts of this case. The Trial Court sustained Mundaca’s objection and issued a detailed curative instruction to the jury. The jury is presumed to have followed this instruction. State v. Smith, 893 S.W.2d 908 (Tenn. 1994). Taking into account other material evidence in favor of plaintiff’s position, the brevity of the question and response and the detailed c urative instruc tion, the Co urt did not err o n this issue. M oreover, the re is other evidence to support plaintiff’s position, including her own testimony and eviden ce con cerning the parti es’ cou rse of c onduc t.

Mundaca next contends the Trial Court erred in admitting evidence of its financial co ndition. Spe cifically, the Trial Ju dge perm itted counse l for plaintiff to question John Groomes, the Chairman of Mundaca, concerning the “created value” of the company. According to the witness, “[c]reated value is an estimate of what is out there to be c ollected . . .” Th e plaintiff arg ues that this ev idence w as importan t to establish her quantum meruit claim, w hich w as still at iss ue at tha t point in the trial. *5 Specifically, she argues that the information was necessary to show that Mundaca benefitted from her services. Mundaca contends that this evidence was irrelevant even to the quantum meruit claim because only the payment for the SouthTrust loan was at issue.

In this case, the evidence concerning “created value” was introduced only for th e years du ring w hich pla intiff pr ovided broker age ser vices fo r Mun daca. No evidence was introduced concerning Mundaca’s actual value at or near the time of trial. Additionally, the witness repeatedly explained that Mundaca’s “created value” was d ifferen t from its actual v alue.

Assum ing, arguendo, that the Trial C ourt erred in a dmitting this evidence, we find no reversible error. The T rial Court instructed the jury to disregard all evidence concerning defendant’s financial condition and not to consider that the plaintiff ’s contri bution was a s ubstan tial or sign ificant re ason f or Mu ndaca ’s succe ss. Additionally, the Trial Court noted there were numerous other figures in evidence substantially similar in magnitude to the “created value” numbers. Some of the loans were f or millio ns of d ollars an d one lo an pac kage w as appr oxima tely $20,0 00,000 .00.

Finally, Mundaca argu es that the Trial Court erred in gra nting summary judgment on plaintiff’s claim for a commission due on two loan renewals. The plaintiff’s compensation for these loan renewals is not related to the modification of the parti es’ oral c ontract.

In her Motion for Summary Judgment, plaintiff stated that she and Mundaca agreed that she would receive a 1.5% f ee annually upon the renewal of these two loans. She received a fee for January 1994 through December 1995, but not for the 1996 r enewal. S he also stated that she had always receiv ed renew al fees direc tly from Mundaca and that these fees were not related to the interest rates paid to the two lenders. Th e record also contains the affidavit of one of the lenders, K .R. Stanfill, *6 who stated that John Groomes informed him that plaintiff’s fee was “in addition to the interest rate.”

In response to plaintiff’s motion, Mundaca included the affidavit of John G roomes. G roomes sta ted that he d id not “believ e” that plaintiff was entitled to a fee on these loan renewals. He further stated that because of an “apparent miscommunication,” his company “believed” the renegotiated rate for 1996 included the plaintiff’s fees. The affidavit fails to set forth specific facts contradicting plaintiff’s affidavits. We therefore conclude that Mundaca’s counter-affidavit did not establish a dispu ted ma terial fac t on the is sue. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 199 7).

We affirm the Trial Court’s judgment approving the jury verdict and the granting of the summ ary judgmen t.

The cost of the appeal is assessed to the appellant and the cause remanded.

________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Houston M. Goddard, P.J.

___________________________ Ben H. Cantrell, J.