The opinion of the court was delivered by: BERNARD NEWMAN
BERNARD NEWMAN, Senior Judge, United States Court of International Trade, sitting as a United States District Court Judge by Designation:
The parties, asserting various errors in the court's Opinion, Findings of Fact and Conclusions of Law dated November 25, 1991, and the judgment entered thereon dated November 29, 1991, have cross-moved for relief under Fed.R.Civ.P. 52(b), 59(a) and (e). Additionally, plaintiffs seek a new trial to adduce additional evidence regarding the Trust's claim of a $ 500,000 cash advance to the Hotel by wire transfer for working capital.
For the reasons that follow, plaintiffs' applications are denied in toto ; defendant's applications are granted in part.
Plaintiffs contend that the court erred in holding: "the plaintiff [sic] is [sic] absolutely obligated to pay the defendant an amount equal to the total of accounts receivable in favor of the Hotel as of the Management Transfer Date, September 30, 1987." Affirmation of Noel W. Hauser, dated December 5, 1991, par. 4 (emphasis added). Plaintiffs further argue that the accounts receivable in question for which the court determined plaintiffs had an obligation to reimburse the Trust relate only to the period after May 15, 1987, which accounts according to plaintiff belonged to Goldman under § 7(a) of the Amendment. Finally, plaintiffs claim that the court's award to defendant of $ 50,774.86 for accounts receivable is unsupported by the record. Accordingly, plaintiffs request that the court subtract $ 50,774.86 from the sum awarded to the Trust. The request is denied.
Counsel for plaintiffs has misread the court's opinion. The court did not hold that plaintiffs are liable to the Trust for accounts receivable as of the Management Transfer Date, September 30, 1987. Rather, the court determined that pursuant to § 7(a) of the Amendment, after the Management Transfer Date (viz., September 30, 1987) Goldman was obligated to reimburse the Trust $ 50,774.86 for the uncollected balance of accounts receivable that existed as of the First Closing, May 15, 1987. Plaintiffs concede that after the Management Transfer Date the Trust was entitled to the uncollected balance of accounts receivable existing as of the First Closing - May 15, 1987.
Burch's credible and uncontradicted testimony (Burch, Tr. 106) and the figures shown in plaintiffs' exhibits 5 and 6 (based on the books and records of the Hotel) establish that the accounts receivable as of the First Closing (May 15, 1987) amounted to $ 850,623.55 and that by the Management Transfer date (September 30, 1987) the Trust had withdrawn $ 799,848.69 from the Hotel during the Seller Management Period, leaving a balance due the Trust for uncollected accounts receivable of $ 50,774.86. Consequently, the court adheres to its prior award to the Trust of the balance of accounts receivable that existed as of May 15, 1987, to which the Trust was entitled under § 7.
Plaintiffs persist in their challenge to the Trust's right pursuant to the Amendment to use revenues generated by the Hotel during the Seller Management Period to pay bills received during such period for expenses incurred prior to that period. In further support of their position, plaintiffs have annexed an affidavit dated December 5, 1991 executed by Paul Underhill, Goldman's representative at the Hotel during the Seller Management Period. Ostensibly, the affidavit calls to the court's attention controlling new facts.
According to Underhill's affidavit, a substantial percentage of the Hotel's sales of food, lodging, and other services were credit card transactions and other accounts receivable rather than cash receipts. Plaintiffs maintain that since under § 7(a) accounts receivable generated by the Trust after the First Closing for sales during the Seller Management Period belonged to Goldman, Burch had no right to pay ...