Zalud v. Boltz9/18/2000
A jury found that James Boltz breached a contract to transfer stock to Paul Zalud, and awarded Zalud $450,000. Upon Boltz's motion for a new trial on damages or a reduction in damages, the trial court struck the testimony of Zalud's expert witness and found that in its absence, the damage award was not supported by the evidence. Zalud appeals. Boltz cross appeals denial of his motion for judgment as a matter of law, arguing that mutual assent on all essential terms is lacking.
Because mutual assent is a question of fact and the jury had substantial evidence from which to find it, we affirm denial of Boltz's motion for judgment as a matter of law. Because the trial court's pretrial ruling on the admissibility of the expert's testimony was tentative and specific, and Boltz waived objection by failing to renew his objection at trial, we reverse the order granting a new trial and reinstate the verdict.
FACTS
James Boltz and his wife own Lynnwood Cycle Barn, a motorcycle and motorsport dealership. Paul Zalud began working at Cycle Barn in 1992 and within a year, was responsible for ordering inventory, supervising employees, and overseeing promotions and advertising.
While employed at Cycle Barn, Zalud began racing 'karts' go-carts capable of speeds of 28 to 32 miles per hour as a hobby. To improve speed and performance, Zalud made a number of modifications to the karts, including a second engine, different tires, carburetion and exhaust system, and upgraded components. After Zalud's modifications, the karts traveled approximately 100 miles per hour.
Boltz's awareness of and interest in high-performance karts also developed. In late 1994 or early 1995, Zalud thought it would be good business for Cycle Barn to manufacture and assemble high-performance karts, and he assembled a high-performance 'shifter kart' for Cycle Barn to present at a trade show.
Eventually, Boltz and Zalud entered into a venture together. Boltz contributed capital and business acumen and Zalud contributed labor and technical expertise. The operation was separated from Cycle Barn and began to operate under a shell corporation that Boltz owned. The name of the corporation was changed to KARBZ, Inc., an acronym for karts, Boltz, and Zalud. In fairly short order, however, disagreements arose over ownership, management, and operation issues.
In 1996, Boltz terminated Zalud's employment. Boltz extended a written offer to pay Zalud his salary for October if Zalud released Boltz, Lynnwood Cycle Barn, and KARBZ, Inc. from all claims, including claims of ownership of KARBZ. In the same document, Boltz offered to sell to Zalud 100 percent of the business and operations of KARBZ, Inc. The purchase price was to be Boltz's total investment, which he 'estimated to be approximately in excess of $900,000, inclusive of general intangibles and goodwill, in addition to actual cash invested.' Boltz wanted to be paid in cash within 90 days. Zalud refused the offer.
Zalud commenced this action against Boltz and KARBZ, Inc., alleging breach of contract, breach of partnership agreement, wrongful termination, and defamation. Before trial, Boltz moved to exclude Zalud's stock valuation expert. The court denied the motion. The court also denied Boltz's motion to dismiss after Zalud presented his case.
In a special verdict, a jury found Boltz breached a promise to transfer 50 percent of the shares of stock in KARBZ, Inc. to Zalud, and that total fair cash market value of KARBZ, Inc. as of the date of the breach was $900,000. The jury awarded Zalud $450,000 in damages.
After the trial, Boltz moved for judgment as a matter of law, or in
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