Concrete Block & Products Co. v. Kurtz

34 Mich. App. 38 (1971) 190 N.W.2d 725

CONCRETE BLOCK & PRODUCTS CO.
v.
KURTZ

Docket No. 6426.

Michigan Court of Appeals.

Decided May 24, 1971.

Kasoff, Young, Gottesman & Kovinsky (Charles Rubinoff, of counsel), for plaintiff.

Nelson & Wilson, for defendant.

Before: J.H. GILLIS, P.J., and O'HARA^[*] and JEANNETTE,^[**] JJ.

Leave to appeal denied, 386 Mich. 755.

PER CURIAM.

This is an appeal as of right from a judgment against defendant, Walter Kurtz, in the amount of $81,116.37 for conversion and misappropriation of the corporate funds of plaintiff Concrete Block & Products Company.

As required by GCR 1963, 517, the trial court sitting without a jury made specific findings of fact regarding the amount of the judgment. Findings of fact by a trial judge in a nonjury action will not be reversed on appeal unless they are clearly erroneous. GCR 1963, 517; McDaniels v. Schroeder (1968), 9 Mich. App. 444; King v. Partridge (1968), 9 Mich. App. 540; Lidke v. Jackson Vibrators, Inc. (1967), 379 Mich. 294. The record supports the court's rulings and this Court will not reverse them.

The defense theory at trial was that there had been a conspiracy between defendant's wife and the family attorney, which he wished to prove by recorded telephone conversations. The trial court would not allow the tapes into evidence as four of the six tapes had been edited. The admission of fewer than all the tapes would have resulted in obvious prejudice. Defendant assigns this as reversible error. He does not show in what respect this alleged conspiracy could alter the amount of the debt owed to Concrete Block. The admission of the tapes was not an essential element of proof since all claims of plaintiff were substantiated by voluminous business records. The attorney's claim of the attorney-client privilege was also properly upheld by the trial court as the record does not support defendant's claim that the privilege was ever waived.

As there are no convincing circumstances disclosing that crucial proof has been overlooked or ignored and the findings of fact are supported by the record, this case is affirmed. Northwest Auto Company v. Mulligan Lincoln-Mercury, Inc. (1957), 348 Mich. 279; Schneider v. Pomerville (1957), 348 Mich. 49; Barnes v. Beck (1957), 348 Mich. 286.

Affirmed. Costs to plaintiff.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[**] Circuit judge, sitting on the Court of Appeals by assignment.