Boris Miller v. Simon Smiller
Published: Aug. 13, 1994 | Result Date: Jun. 27, 1994 | Filing Date: Jan. 1, 1900 |Case number: BC058726 – $89,000
Facts
Originally Plaintiff Boris Miller sued Defendant Simon Smiller on an alleged promissory note; Defendants Simon Smiller and Olympian Headwear, Inc., then became Cross-complainants and sued all Cross-defendants: Boris Miller; Vadim Levotman; and Mark Miller -- for constructive fraud -- and Cross-defendant Boris Miller for breach of contract. In early 1989 Boris Miller entered into negotiations with Mr. Simon Smiller to purchase a one-half interest in a 10-year-old company owned solely by Smiller, that manufactures specialty embroidered baseball style caps and is known as Olympian Headwear Company. Smiller was interested in selling to prepare for retirement and Miller wanted a business for his 2 sons, Vadim Levotman and Mark Miller. By the Spring of 1989, they had agreed on a purchase price, and the company was to be incorporated with Miller and Smiller each owning 50% of the stock in the corporation. Smiller, Boris Miller, Vadim Levotman, and Mark Miller were to be officers and/or directors of the corporation. Mr. Miller made a substantial down payment on the total purchase price. The parties agreed that Vadim Levotman, who had represented himself as a CPA, would be responsible for forming the corporation and setting up new accounting procedures. While waiting for the corporation to be formed Vadim Levotman asked Smiller to sign a promissory note -- allegedly to be destroyed when the corporation was formed -- to provide proof of the down payment in the event of a mishap. For the next 22 months, Vadim Levotman and Mark Miller were paid by the corporation on the basis of their fathers' 50% ownership. During this same time period, Miller failed to pay the balance of the purchase price. After 22 months, Miller asked that Smiller buy back his interest in the company. They agreed on a buy-back price equal to the down payment minus one half of the long-term debt which the corporation had incurred during the period of co-ownership. Smiller paid this amount. Once payment was received, Miller sued Smiller on the basis of the promissory note signed in 1989, seeking principal and interest from May of 1989. Smiller Cross-complained for constructive fraud.
Settlement Discussions
Cross-complainant contends their original offer was for a mutual dismissal increased to a $63,000 demand during deliberations; and Plaintiff/Cross-defendant Miller demanded $112,000 decreased to $50,000 during deliberations.
Damages
Miller claimed $112,000 in principal and interest owing on the alleged promissory note of 1989. Smiller and Olympian Headwear, Inc., claimed $113,000 in damages for constructive fraud and breach of the buy-back agreement.
Deliberation
2.5 days
Poll
12-0
Length
10 days
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