Michael Mockovak, M.d., App v. King And Mockovak Eye Center, Resps
74544-1
| Wash. Ct. App. | Oct 30, 2017Background
- Drs. Michael King and Michael Mockovak were equal owners of King and Mockovak Eye Center, Inc. (KMEC) and Clearly Lasik; businesses became heavily indebted after the 2008–09 recession.
- In late 2009 Mockovak was arrested and later convicted for attempting to arrange King’s murder; his medical license was suspended and later revoked, and he ceased practicing.
- Mockovak withdrew funds from corporate accounts after arrest; King formed King Lasik and used its income to pay about $1.4 million of corporate debts.
- Multiple civil suits and counterclaims followed; prior rulings established (for trial purposes) that Mockovak became ineligible to own KMEC shares as of his license suspension (Jan. 26, 2010) and that his dissenter valuation date was Jan. 27, 2011.
- At trial the jury found a partnership existed, found Mockovak breached fiduciary duties (but awarded no damages), rejected Mockovak’s individual claims, and valued his cancelled KMEC shares at negative $233,584. Post-trial appeals followed.
Issues
| Issue | Plaintiff's Argument (King) | Defendant's Argument (Mockovak) | Held |
|---|---|---|---|
| Who must determine fair value of cancelled KMEC shares (court vs. jury) | Court should allow jury valuation (trial court proceeded that way) | RCW 236.13.300 gives exclusive, plenary jurisdiction to the court to determine dissenter fair value; court must decide valuation | Court erred by letting jury decide valuation; trial court should enter valuation based on admitted trial evidence on remand (no new full trial required) |
| Bifurcation of valuation issue | Not necessary; intertwined with other issues | Valuation should be bifurcated and decided by court before/aside from jury | Denial of bifurcation was not an abuse of discretion because issues were intertwined; but valuation still must be determined by court post-trial |
| Juror bias for cause based on criminal conviction | Many jurors expressed difficulty; King argued group voir dire showed ability to follow instructions | Mockovak argued court should excuse jurors who admitted bias | Court did not abuse discretion: judge’s voir dire and observations supported seating jurors who said they could follow instructions |
| Requested curative/constitutional jury instructions about convictions and forfeiture | King implicitly opposed; King sought to exclude prejudicial references | Mockovak sought (1) instruction to disregard non-stipulated criminal evidence and (2) instruction that conviction does not forfeit property under state constitution | Court did not abuse discretion in refusing both: first instruction overly broad/favoring defendant and inconsistent with record; second was confusing and argumentative |
| Closing-argument misconduct/new trial | King's counsel argued emotionally about crimes and remorse; no contemporaneous objection | Mockovak argued closing was prejudicial and warrants new trial | Denial of new trial affirmed: without contemporaneous objection misconduct must be flagrant; here argument was not so flagrant that an instruction could not have cured prejudice |
| Partnership damages and statute of frauds | King: oral partnership at will, damages available for breach | Mockovak: statute of frauds (agreements not performable within a year) voids oral partnership damages | Court erred in barring King from seeking damages: partnership at will not within statute of frauds; jury should decide damages for breach — remand for a new trial limited to whether King is entitled to partnership damages |
| Motion to amend pleadings to add fiduciary-duty claim | King moved late to add personal breach-of-fiduciary-duty claim seeking emotional damages | Mockovak argued undue delay and prejudice (discovery deadlines passed) | Trial court did not abuse discretion in denying amendment due to undue delay and prejudice |
Key Cases Cited
- Eadleview Tech., Inc. v. Pikover, 192 Wn. App. 299 (Ct. App. 2015) (court makes ultimate valuation decision in dissenter's rights action)
- Jensen v. Beaird, 40 Wn. App. 1 (Ct. App. 1985) (denial of bifurcation reviewed for abuse of discretion)
- Stiley v. Block, 130 Wn.2d 486 (Wash. 1996) (trial court discretion on jury instructions)
- Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517 (Wash. 2000) (standards for new trial based on misconduct)
- Malnar v. Carlson, 128 Wn.2d 521 (Wash. 1996) (statute of frauds does not bar oral at-will partnerships)