Fleming v. Mercantile Bank and Trust Co., WD

• Decision Date: 10 January 1989
• Docket Number: No. WD,WD
• Citation: 766 S.W.2d 666
• Parties: Alan J. FLEMING, Appellant, v. MERCANTILE BANK AND TRUST CO., Respondent. 40520.
• Court: Missouri Court of Appeals

Page 666

766 S.W.2d 666

Alan J. FLEMING, Appellant, v. MERCANTILE BANK AND TRUST CO., Respondent.

No. WD 40520.

Missouri Court of Appeals,

Western District.

Jan. 10, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Feb. 28, 1989.

Application to Transfer Denied April 18, 1989.

Sloan R. Wilson, Kansas City, for appellant.

David F. Oliver, Kansas City, for respondent.

Before FENNER, P.J., and MANFORD and GAITAN, JJ.

GAITAN, Judge.

This is an appeal by Alan J. Fleming, plaintiff-appellant, of the trial court granting Mercantile Bank and Trust Company's, defendant-respondent, Motion for Judgment Notwithstanding the Verdict. The jury returned a verdict in favor of plaintiff for damages for tortious interference with a partnership contract (practice of law) by defendant bank, which resulted in the termination of that contract.

Plaintiff has been a member of the Missouri bar since 1977. He was a law clerk for the partnership of Blumer and Nally, P.C., Kansas City, Missouri which specialized mostly in personal injury cases. After holding other jobs as a lawyer, plaintiff became a member of a partnership consisting of himself, and Blumer and Nally, P.C., entitled Blumer and Nally Media Partnership. The media partnership was created on January 1, 1984, and was formed to develop and handle business obtained through television advertising. Plaintiff was a one-third partner in the media partnership.

The media partnership maintained two trust accounts to handle client funds; one at defendant Mercantile Bank and Trust Company, and one at Missouri Bank and Trust Company. Plaintiff had authority to sign checks on both trust accounts. The trust account at Missouri Bank and Trust was not used by the partnership, but was opened solely because the partnership had a real estate loan at that bank.

There was a special arrangement between the media partnership and defendant whereby a settlement check or draft would be accepted as "good funds" in the trust account on the day of the deposit within certain limitations. Rebecca Elliot, vice president in the commercial lending area of defendant bank at that time, was responsible for all Blumer & Nally, P.C. accounts and the media trust account for the media partnership.

The situation which directly lead to this suit involved a settlement check in the Thomas Dowd worker's compensation case. In late June 1985, the Dowd matter had been settled and a settlement check had been issued. As routinely done, when settlements are reached, the client signed the release, endorsed the check, a settlement sheet was prepared by the secretary and the check was deposited. Plaintiff directed one of his employees to deposit the check into the media trust account. The deposit slip, dated June 24, 1985, and which appeared to be in the handwriting of plaintiff's secretary, was mistakenly deposited in the trust account at Missouri Bank and Trust Company instead of at defendant bank. The deposit was in the amount of $7,243.75. Blumer & Nally, P.C. wrote a check to Mr. Dowd from their trust account at defendant bank in the amount of $5,319.22. The check was sent Federal Express to Mr. Dowd in Texas. Between the date of deposit and July 1, 1985, plaintiff received more than one phone call from Mr. Dowd stating that his (Mr. Dowd) bank would not credit the check because there were insufficient funds to cover it. During the first call, plaintiff advised Mr. Dowd to wait one day for the deposit to clear. After a subsequent call from Mr. Dowd stating that the situation remained unchanged, plaintiff called defendant bank to try and get the problem resolved. Plaintiff was concerned about the problem because the check was written on a trust account and he was concerned about the appearance of the mishandling of client funds.

Plaintiff initially spoke with Bernice Mock, secretary to Ms. Elliot. He was informed that Ms. Elliot was out of town. Ms. Mock characterized plaintiff's tone as In mid-August 1985, Ms. Elliot called Mr. Blumer and told him that she had received complaints from bank personnel that plaintiff was very rude, impatient and difficult to deal with. She also conveyed plaintiff's behavior with Ms. Mock and Mr. Goetz to Mr. Blumer. Ms. Elliot specifically testified about complaints she had received from tellers concerning plaintiff's conduct. Ms. Elliot asked that someone else be the communicator or signor on the media trust account or in the alternative, that the account be moved to another bank. No other alternatives were mentioned. Mr. Blumer believes that Ms. Elliot mentioned something about improper handling of the account, but he was not quite sure. Ms. Elliot testified that she was referring to the procedure regarding deposits and the way the procedures were handled.

irate, rude and nasty, while plaintiff stated that he was being direct. Finally, plaintiff was connected with Mr. James Goetz, assistant vice president. Mr. Goetz testified that plaintiff was rude and aggressive, and accused the defendant bank of making a mistake. Plaintiff characterized his manner as "lively" and stated that the volume of both their voices was raised. Subsequent to these conversations, the media partnership discovered that the mistake in the deposit was on their part. Upon Ms. Elliot's return, both Ms. Mock and Mr. Goetz informed Ms. Elliot of their conversation with plaintiff.

Mr. Blumer testified that he was concerned about the situation since the mishandling of client funds could lead to disbarment. The media partnership was dissolved by Blumer & Nally, P.C. the day after Ms. Elliot's telephone call.

Plaintiff's first three points on appeal are in regard to the elements needed for a claim of tortious interference with a contract. The last point is that the trial court erred in not granting plaintiff a new trial on the issues of actual and punitive damages.

Under Missouri law, the five elements required to be established to sustain a cause of action for tortious interference with contractual or business relations are:

1. A contract or valid business relationship or expectancy;

2. knowledge by defendant of the contract or relationship;

3. intentional interference by defendant which induces breach of contract or relationship;

4. absence of justification; and

5. resulting damages.

Francisco v. Kansas City Star Company, 629 S.W.2d 524, 529 (Mo.App.1981). Each and every element must be supported by substantial evidence in order for liability to exist. Id. The last three elements were not supported by substantial evidence in the case at bar.

INTENT

Here, one essential element that is missing from plaintiff's proof is intent on defendant bank's part to cause the termination of the media partnership. At trial, both Ms. Elliot and Mr. Blumer testified that Ms. Elliot never suggested that plaintiff not be a partner in the media partnership. Additionally, Mr. Blumer stated:

Q. Let's use your words. Didn't she tell you then that if that weren't convenient, you all could move your accounts, your media trust account to another bank?

A. She didn't say anything about convenience. She said that the bank had decided that we would either move the account or Alan would be removed from the account.

Q. Okay. All right. She never suggested to you though that Mr. Fleming not be a partner of yours.

A. No. I didn't intend for her to have anything to do with that.

Ms. Elliot testified when asked about what alternatives she suggested to Mr. Blumer as follows:

Q. Which were?

A. I suggested that the relationship would flow more smoothly if someone other than Mr. Fleming was the one that communicated with the bank. That talked. That placed the call. That we--normally in handling a relationship And I suggested that perhaps it would run much smoother if someone other than Mr. Fleming was that person for us to deal with.

the client gives you a name and says, you know, this is the individual that whenever you have a problem or this is the person we want you to talk to.

I alternatively suggested, I said, "However, if this is an inconvenience, I know that you have accounts at other banks, and perhaps if that were the case, maybe you might consider moving this account.

There's always the alternative to move the account to another bank."

Q. In other words, you gave Mr. Blumer two alternatives. One was to have somebody else represent the law firm in its dealing with an account which Mr. Fleming was an owner of, or move the account.

A. I'll repeat myself. I offered two alternatives--

Q. No. I think you...