Muslow v. A.G. Edwards & Sons, Inc.

• Decision Date: 10 June 1987
• Docket Number: No. 18708-CA,18708-CA
• Court: Court of Appeal of Louisiana — District of US
• Parties: Irwin I. MUSLOW, Plaintiff-Appellant, v. A.G. EDWARDS & SONS, INC. & Keith O'Kelley, Defendants-Appellees.

Page 1012

509 So.2d 1012

Irwin I. MUSLOW, Plaintiff-Appellant, v. A.G. EDWARDS & SONS, INC. & Keith O'Kelley, Defendants-Appellees.

No. 18708-CA.

Court of Appeal of Louisiana,

Second Circuit.

June 10, 1987.

Writ Denied Oct. 2, 1987.

Pugh & Pugh by Robert G. Pugh, Shreveport, for plaintiff-appellant.

Blanchard, Walker, O'Quin & Roberts by John T. Cox, Jr., J. Wes Wyche, Shreveport, for defendants-appellees.

Before HALL, MARVIN and LINDSAY, JJ.

LINDSAY, Judge.

On July 13, 1984, plaintiff, Irwin I. Muslow, filed suit against A.G. Edwards & Sons, Inc. and Keith O'Kelley claiming damages for defamation, intentional infliction of mental suffering, assault, invasion of business interest and refusal of right to inspect corporate records. Trial was held on September 19 and 20, 1985. On June 27, 1986, the trial court, in an excellent written opinion, much of which we rely upon herein, rejected all claims of the plaintiff with prejudice and at plaintiff's cost. A judgment in favor of defendants was signed on July 9, 1986. From this judgment the plaintiff has appealed. We affirm.

BACKGROUND FACTS

Mr. Muslow, the plaintiff, had both a personal and partnership account with the Shreveport office of A.G. Edwards & Sons, Inc., (Edwards) for many years. However, he had not actually transacted any business with Edwards since 1979 until January 12, 1984. On January 12, 1984, Mr. Muslow contacted a broker at Edwards, Mr. William R. Axford, Jr., and placed a "day order" to purchase one thousand shares of the stock of Delta Drilling Company if that stock reached a specified price. In anticipation of the purchase Mr. Muslow signed a tax withholding certificate. The order was not filled on January 12, 1984 because the requisite market conditions failed to materialize. Because the order was not filled, it expired at the end of the day. Thus, plaintiff has not conducted any business with Edwards since 1979 which resulted in a fee being paid to Edwards. During this time period, Mr. Muslow maintained an account with one of Edwards' competitors, Merrill, Lynch, Pierce, Fenner & Smith, Inc.

Mr. Muslow is an attorney-at-law. He also places great emphasis upon his position as a financial adviser to his friends. Mr. Muslow is not a broker or licensed agent but does discuss market conditions and business transactions with numerous people. Mr. Muslow testified that by giving his advice, he created referrals for Edwards which resulted in transactions involving millions of dollars being handled by Edwards.

It was established at trial that Mr. Muslow went to the office of A.G. Edwards numerous times each week, if not daily. When he visited A.G. Edwards offices, he used the equipment provided for the convenience of Edwards' customers which was located in the public area of the offices, which included the quote machine, tickertape, New York Stock Exchange tape and the Dow Jones news service wire. There he would frequently engage in conversations with other persons using the machines and discuss various aspects of the stock market. While engaging in these conversations, Mr. Muslow sometimes mentioned that he used the offices of Merrill-Lynch and even admitted in his testimony that he had used the phone in the Edwards' office to place an order with Merrill-Lynch.

Approximately two weeks before the incident giving rise to this litigation, Mr. Keith O'Kelley, the manager of the A.G. Edwards' Shreveport office, posted a sign near to the machines which was intended to discourage individuals from collecting information at Edwards while trading at another brokerage house. Mr. O'Kelley had noticed several persons, including Mr. Muslow, who had frequently used Edwards' equipment but were not doing business there. Through the utilization of this sign, Mr. O'Kelley hoped that these individuals would be reminded to conduct their stock transactions with his office. The sign read as follows:

NOTICE

In this area of our office, we at A.G. Edwards & Sons, Inc. are happy to provide our customers and prospective customers quotation and last trade information on stocks, both listed and OTC, bonds, options, commodities, financial and index figures, market statistics, along with the Dow Jones news, Poors Stock Reports, New York Stock Exchange and American Stock Exchange tickertape and related facilities for using them. These are extra services for our customers, as each broker already has this information on his desk in his office. The cost of these services are advancing as is exhibited by the fact that most other brokers are no longer providing this service. We appreciate our customers and intend to continue to provide these as long as we possibly can.

However, we are noting flagrant abuses of these services by persons who do not have active accounts with us, yet come here to obtain news and price information to direct trades to competing firms that do not go to the expense of providing such services. We do not think that this is fair or proper.

To our customers, we say--"WELCOME and THANK YOU." To the abusers, we intend to say something else.

On March 20, 1984, Mr. Muslow came to the Edwards office. Mr. O'Kelley approached Mr. Muslow while in the public area of the office. Mr. Muslow testified that Mr. O'Kelly asked him in a normal tone of voice if he had read the sign. Mr. Muslow replied that he had not and Mr. O'Kelley asked him to do so. At this point, Mr. Muslow then read the sign. The evidence as to what transpired thereafter was conflicting.

Mr. Muslow testified that Mr. O'Kelley then rudely and harshly ordered him to leave the premises at once. Mr. Muslow testified that he then requested that he and Mr. O'Kelley talk about the situation in O'Kelley's office since they were currently in a public area. Both Mr. Muslow and Mr. O'Kelley testified that other people were present in the public area at this time. However, no one was presented at trial to testify that he heard Mr. O'Kelley talking to Mr. Muslow while in the public area.

When the parties retired to Mr. O'Kelley's office, Mr. Muslow sat across the desk from Mr. O'Kelley. Mr. O'Kelley's office is enclosed by glass. There was one door. The office door remained open. Mr. Muslow stated that when he inquired as to what had upset Mr. O'Kelley, Mr. O'Kelley "threw" himself across the desk, finger extended. Mr. Muslow testified that he thought Mr. O'Kelley was going to hit him and he ducked. Mr. O'Kelley allegedly called Mr. Muslow several names, including a "son of a bitch," "a liar," and "a leech." Mr. Muslow did not leave, but asked that Mr. Axford be summoned.

Mr. O'Kelley testified that he did not order Mr. Muslow off the premises while the two were in the public area. He testified that pursuant to Mr. Muslow's request, they went to Mr. O'Kelley's office. Mr. O'Kelley testified that he then attempted to explain to Mr. Muslow the expense of maintaining the tickertapes and other services. Mr. O'Kelley denied cursing Mr. Muslow, threatening him or calling him names.

Mr. Axford, a vice president at Edwards' Shreveport office, testified that his office was next to Mr. O'Kelley's, with only a glass wall between them. Mr. Axford testified that he neither heard nor saw anything that attracted his attention to the adjoining office that day until Mr. O'Kelley tapped on the glass and motioned for him to come over.

Mr. Muslow testified that when Mr. Axford entered the office he told Mr. Axford that while he might appear calm on the outside, he was in fact extremely upset. Mr. Muslow further stated that he recited to Mr. Axford what Mr. O'Kelley had called him; to which Mr. Axford replied, "I can understand why you would be upset." Mr. Muslow then asked him to verify the unfulfilled day order issued in January. Mr. Axford did so and stated that he did not want to get involved in the matter and left. Mr. Axford testified that, while he remembered the Muslow statement about not being calm and his own verification of the January order, he did not recall any other statement. He did not remember Mr. Muslow enumerating the names Mr. O'Kelley allegedly called him and he did not recall personally saying that he understood Mr. Muslow's composure. Mr. O'Kelley also testified that he did not recall Mr. Muslow reciting the alleged insults.

After Mr. Axford left Mr. O'Kelley's office, Mr. Muslow asked if Mr. O'Kelley would repeat those names in the courthouse on the witness stand; to which he received an affirmative response. They then exited the office and Muslow asked for Mr. O'Kelley's complaints in writing. Mr. O'Kelley declined.

Mr. O'Kelley's version of the conclusion of the incident is somewhat different. Mr. O'Kelley testified that he took Mr. Muslow's reference to the courthouse as a threat to sue. He told Mr. Muslow that if he was going to sue and wasn't going to do business with Edwards, it would be best if he didn't return. Mr. Muslow then allegedly asked what would happen if he returned anyway. Mr. O'Kelley stated that it was his understanding that "if you come back on a (sic) premises when you were not welcome, it constituted (sic) a trespass."

At some point during the incident in Mr. O'Kelley's office, Mr. Muslow informed Mr. O'Kelley of the large volume of business he claims to have obtained for Edwards. He also told Mr. O'Kelley that he was a stockholder in Edwards. On that day, Mr. Muslow had about thirty-one shares of stock in Edwards held in his Merrill-Lynch account in a "street name."

Following the incident in the Edwards office, Mr. Muslow complained to executives of Edwards. On March 25, 1984, he sent a mailgram to the chairman and president of the company, Mr. B.F. Edwards, III. On March 29, 1984, Stephen G. Sneeringer, vice president and counsel, responded, requesting more information. Mr. Muslow's brother also wrote to Mr. B.F. Edwards, III; Sneeringer likewise responded to him. On April 12, 1984 Mr. Muslow wrote a letter to Mr. Edwards. On April 24, Sneeringer wrote Mr....