Dean Witter Reynolds, Inc. v. Corley

699 S.W.2d 21, 1985 Mo. App. LEXIS 3636
CourtMissouri Court of Appeals
DecidedJuly 23, 1985
DocketNo. 48503
StatusPublished
Cited by5 cases

This text of 699 S.W.2d 21 (Dean Witter Reynolds, Inc. v. Corley) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean Witter Reynolds, Inc. v. Corley, 699 S.W.2d 21, 1985 Mo. App. LEXIS 3636 (Mo. Ct. App. 1985).

Opinion

SNYDER, Judge.

This litigation arose out of an unfortunate dispute between a lawyer and his client who had a claim against a broker. The broker, Dean Witter Reynolds, Inc. filed an interpleader suit seeking determination of who had the right to the funds Dean Witter was holding in its customer’s account. Marilyn D. Corley, the customer, and Richard M. Jacobs, the lawyer, were joined as defendants. Corley has filed a motion to dismiss the appeal which was submitted with the case. The motion is granted and the appeal dismissed.

Corley had discussed the mishandling of her account with an employee of Dean Witter and, according to her testimony, Dean Witter had made a firm offer of extra cash of $8,000.00 over and above securities worth $10,428.65. Mr. Camp, the employee of Dean Witter with whom Corley talked, said that he thought his original extra cash offer was $18,000.00 or $14,000.00. Mrs. Corley received the impression that there was a firm offer of only $8,000.00 and that she expected that Mr. Camp, for Dean Witter, would increase his offer to $12,000.00 plus the securities which were in her name.

Corley brought all of her records pertaining to her transactions with Dean Witter to Jacobs at the time of their first meeting on September 19, 1980. Jacobs told her she had an excellent case worth $60,000.00 or $80,000.00, and Corley signed a 40% contingent fee contract for any amount obtained by Jacobs in excess of $12,000.00. Corley testified that she told Jacobs she wished to add “No securities, cash only,” but Jacobs told her, “Oh, no, we both understand what we mean.”

Corley had second thoughts over the weekend about retaining an attorney and decided she did not wish to have a lawyer represent her. She called Jacobs at approximately 9:00 a.m. on Monday, September 22, 1980, told him she wanted to dismiss the case and discharge him as her lawyer, and explained her reason. She offered to pay for the hour she had spent with him.

Jacobs refused to be discharged and told Corley that she had signed a contract which she had to live up to and that there was nothing she could do about it. Corley testified that Jacobs then hung up on her. On Tuesday, September 23, 1980, Corley received a letter from Jacobs dated September 19, 1980, confirming their contract for legal services. A copy of the contingency fee agreement was enclosed with the letter.

Corley attempted to dismiss Jacobs two more times, but he refused to be dismissed, claiming a contractual obligation which prevented her from firing him.

Jacobs called Corley and said he had settled her case on October 23, 1980. She had given him no authority to settle her [23]*23case and she refused to sign the releases which Jacobs had sent. He threatened her with a million-dollar lawsuit, but on December 23, 1980 she settled her claim directly with Dean Witter and executed a release prepared by Dean Witter.

On December 17,1980 and again on June 13, 1982, Jacobs wrote letters to inform Dean Witter of his interest in Corley’s money. Dean Witter later released to Corley the bulk of her undisputed securities, but on March 17, 1981 filed an interpleader action and paid into the court the cash portion of the settlement.

Corley made a written request to Jacobs on February 15, 1981 for the return of her Dean Witter records, but he refused to return the records to her, claiming that he had a possessory attorney’s lien on them.

Corley signed a consent to arbitration form on March 2, 1981 in which she agreed to be bound by the decision of a panel of the Committee of Resolution of Fee Disputes of the Bar Association of Metropolitan St. Louis. Jacobs signed a similar form on April 1, 1981.

On May 15, both Corley and Jacobs participated in an arbitration hearing before the fee dispute committee of the St. Louis Metropolitan Bar Association. The arbitration hearing resulted in an award of a $10,172.28 fee to Jacobs.

In the Dean Witter interpleader suit Cor-ley filed a cross-claim in three counts against Jacobs and Jacobs filed a cross-claim in three counts against Corley. The trial court ruled in favor of Corley on Count I of her cross-claim, setting aside the $10,172.28 fee arbitration award to Jacobs. The trial court found for Corley on Count II, awarding her damages of one dollar for conversion of her brokerage account records. The trial court ordered that the original sum of $21,707.00, which had been paid to the clerk of the court, plus earned interest, be paid over to Corley. The judgment was for Jacobs on Count III of Cor-ley’s cross-claim. The judgment was for Corley on all three counts of Jacobs’ cross-claim.

Appellant Jacobs contends the trial court erred in vacating the arbitration award and in finding in favor of Corley on her conversion claim. He also charges the trial court erred in denying relief to him under the prima facie tort doctrine and on the theory of abuse of process.

Respondent Corley has moved to dismiss Jacob’s appeal for two reasons. First, because he changed a page of the trial transcript before he filed it with the court and second, because he failed to file a complete transcript.

In one volume of the transcript of the hearing, appellant removed an original page and substituted instead a xerox copy of the page from which a portion had been whited out. On the original page it had showed an asterisk before several names and down below an asterisk with the words “not transcribed at special request of the appellant.” On the xerox copy filed with the court, appellant had whited out an asterisk before Marilyn Corley’s name and the words below “at special request of the appellant.”

His purpose in doing this was not clear except that when the transcript was first filed it contained only the direct examination of the chairman of the fee dispute panel and the cross-examination of Corley. The cross-examination of the panel chairman and the direct examination of Corley were omitted, as was the testimony of three other witnesses including the intake person at the St. Louis Metropolitan Bar Association for the fee dispute matter and the attorney who represented Corley during the fee dispute hearing.

The record does not disclose the identity of the third missing witness or the subject of his testimony.

Whatever appellant’s purpose in altering the transcript page when he filed it, it was an attempt to deceive the court or his party opponent. Apparently he did not want it said that he had ordered the court reporter not to transcribe certain portions of the record.

[24]*24It might also be well to say that when the transcript was filed by appellant it was in three volumes, one of which was first thought to contain the testimony of the three missing witnesses, but upon examination was found to be simply a duplicate of one of the other volumes. To put the best possible construction on the confusion attendant upon the filing of the transcript, the court will assume that the duplicate volumes were filed inadvertently and that there was no intent to deceive the court into thinking that a complete transcript had been filed.

Appellant’s conduct in altering a page of the transcript was unforgiveable. Respondent Corley asserts that it was alteration of a public record, but it arguably did not become a public record until it was filed with this court. Nonetheless, the alteration of the page after it had been approved by the trial judge was conduct which cannot be approved by this court.

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Related

Corley v. Jacobs
820 S.W.2d 668 (Missouri Court of Appeals, 1991)
Jacobs v. Corley
793 S.W.2d 512 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
699 S.W.2d 21, 1985 Mo. App. LEXIS 3636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-witter-reynolds-inc-v-corley-moctapp-1985.