Paull v. Paull, s. 59249

• Decision Date: 29 October 1991
• Docket Number: Nos. 59249,59250,s. 59249
• Citation: 819 S.W.2d 68
• Parties: Albert PAULL, Plaintiff-Respondent, and Richard Paull, Plaintiff-Respondent, v. Melvin PAULL and Theodore Paull, Defendants-Appellants, and Fair Mercantile Company, Fair-Paull Investment Company, and Mercantile Acceptance Corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 68

819 S.W.2d 68

Albert PAULL, Plaintiff-Respondent, and Richard Paull, Plaintiff-Respondent, v. Melvin PAULL and Theodore Paull, Defendants-Appellants, and Fair Mercantile Company, Fair-Paull Investment Company, and Mercantile Acceptance Corporation, Defendants-Appellants.

Nos. 59249, 59250.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 29, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Dec. 4, 1991.

John P. Emde, Wilbur L. Tomlinson, St. Louis, Carl Michael Bakewell, Bernard Barken, Clayton, for defendants-appellants.

Carroll J. Donohue, St. Louis, for plaintiffs-respondents.

Albert Paull, pro se.

STEPHAN, Judge.

These two appeals stem from a series of orders the trial court entered on May 23, 1990, September 25, 1990, September 27, 1990, and October 18, 1990, wherein the trial court enforced a settlement agreement entered into among three corporations and four stockholders in said corporations. Two stockholders and the three corporations currently challenge the terms of the enforcement orders. We remand.

At the outset, an explanation of the host of characters in this almost ten year controversy is necessary. Albert Paull ("Albert") and his son, Richard Paull ("Richard"), are the plaintiffs/respondents. At the time of trial, they were represented by Carroll J. Donohue and Husch, Eppenberger, Donohue, Cornfeld and Jenkins. Richard, plus Albert's other children (Jeffrey, Lawrence, Wayne and Deborah) are still currently represented by Mr. Donohue. ¹ However, Albert, a member of the Missouri Bar, is now representing himself.

Melvin Paull ("Melvin"), Theodore Paull ("Theodore"), Fair Mercantile Company, Fair-Paull Investment Company and Mercantile Acceptance Corporation ("the three corporate defendants") are the defendants/appellants. Melvin and Theodore were represented at trial, and are still represented by: John P. Emde, Wilbur L. Tomlinson, and Armstrong, Teasdale, Schlafly, Davis & Dicus. The three corporate defendants were represented at trial, and are still represented by: Bernard Barken, C. Michael Bakewell, and Barken and Bakewell.

Albert, Melvin, and Theodore are all brothers. They, and their immediate families, are, most likely, the only stockholders of the three corporate defendants.

On August 31, 1982, ² Albert and Richard instituted suit against Melvin, Theodore and the three corporate defendants. On January 23, 1989, Albert and Richard filed their second amended petition which contained eight counts. In this petition, Albert and Richard sought: (1) liquidation of the three defendant corporations; (2) an accounting; (3) injunctive relief barring: (a) acts of oppression; (b) misappropriation of both monies and assets; and (c) mismanagement; (4) attorney's fees and costs; (5) statutory damages based on Melvin's and Theodore's refusal to permit Albert, Richard and the other stockholders to inspect corporate records; (6) orders compelling the three corporate defendants to pay dividends; (7) damages against Fair Mercantile Company based upon an alleged employment agreement between Albert, Melvin and Theodore specifying that the three corporate defendants would similarly benefit and compensate the three brothers; (8) damages against Melvin and Theodore based upon malicious interference with the contractual relationship between: Albert, Richard and the three corporate defendants; (9) damages against Mercantile Acceptance Corporation for breach of an alleged employment contract; (10) damages against Melvin and Theodore based upon alleged malicious interference with Richard's contractual employment relationship with Mercantile Acceptance Corporation; and (11) punitive damages against Melvin, Theodore and the three corporate defendants for their alleged malicious conduct. Melvin, Theodore and the three corporate defendants denied all allegations.

The cause was set for trial on July 17, 1989, before the Honorable Richard Mehan. Before receiving any evidence, Judge Mehan stated in the presence of counsel and the parties that: (1) the dispute was a family matter; (2) its judicial resolution would be long and costly; and (3) the parties should endeavor to settle. The parties' respective counsel negotiated throughout the day on July 17, 1990. However, they were unable to reach a settlement. The parties and their respective attorneys returned to the courtroom on July 18, 1989. Mr. Emde indicated that he had a new approach whereby Albert's family could choose either to buy all of Melvin's and Theodore's shares for $1.7 million each or Albert's family could sell their shares for $1.7 million. Since none of the families had sufficient assets to buy the shares, the parties agreed that the three corporate defendants' funds would be used to pay for the shares. The proposal provided that the exercise of the option would entail the settlement of the case and a disposition of all matters between the families.

Eventually, all parties agreed that Albert's family would deliver all of its stock in the three defendant corporations to Melvin and Theodore, who would thereafter pay Albert's family $1,718,500, and the case would be dismissed with prejudice and costs would be against Melvin and Theodore except that each party would pay their associated deposition costs. The parties, by their respective attorneys, filed a courtroom memo which the trial court approved. It stated: "Cause passed for settlement, subject to approval of shareholders of defendant corporations, not in Court this day." Judge Mehan specifically called counsels' attention to the fact that settlement agreements are enforceable. All parties indicated that they understood.

On July 21, 1989, Albert wrote a letter to Mr. Donohue which implied that he regarded the settlement as being only a sale of stock. After discussing Albert's letter with him, Mr. Donohue felt the matter was resolved, on the basis previously agreed upon.

On September 14, 1989, Mr. Donohue met with Albert, Richard, Jeffrey and Lawrence. Albert again asserted that the settlement was only a sale of stock. Thereafter, Albert wrote a letter or letters to Judge Mehan challenging the settlement. Judge Mehan set a conference for October 10, 1989, although he urged the parties to resolve the matter.

There is some disagreement about the result, if any, reached in the October 10, 1989 conference. Mr. Donohue believed that Albert had again agreed to the settlement. Mr. Emde felt that given some time the settlement could be worked out.

In early December, 1989, Mr. Donohue prepared a draft of the settlement agreement which he sent to Albert. However, Albert refused to proceed with it.

In a letter dated December 5, 1989, from Albert to Judge Mehan, Albert again reiterated that the settlement was only an agreement to sell stock and did not contain a provision that his family would sell their stock with prejudice.

On January 2, 1990, Albert advised the trial court that he dismissed Mr. Donohue and was seeking new counsel.

On February 2, 1990, Melvin and Theodore filed a "Motion to Enforce Settlement". Eleven days later, Albert filed a "Motion For Disqualification and For Other Relief" asking the trial court to disqualify Armstrong, Teasdale from representing Melvin and Theodore.

On February 15, 1990, Mr. Donohue filed a "Response Of Plaintiff Richard Paull and Related Shareholders To Defendant's Motion To Compel Settlement, and Motion of Plaintiff Richard Paull and Related Shareholders To Compel Settlement". In this motion, Mr. Donohue alleged that Melvin's and Theodore's counsel had agreed in September, 1989, that interest would be paid on the $1,718,500 from July 18, 1989.

On March 5, 1990, Albert filed a "Reply To Movant By Respondent, Albert Paull to Defendants' Motion To Compel Settlement, And Motion of Plaintiff Richard Paull and Related Shareholders To Compel Settlement". Again, Albert reiterated that there was not an agreement to sell his stock with prejudice.

On March 9, 1990, Mr. Donohue withdrew as Albert's counsel. Mr. Donohue, however, remained as counsel for Richard and his siblings. At that time, Judge Mehan remanded the matter to Judge Chancellor.

On March 13, 1990, Albert filed a "(1) Motion for Discovery--(2) Motion to Distribute Excess Surplus--(3) Motion to Disqualify Mr. Bernard Barken, Esq. As Company Attorney--(4) Motion To Return This Cause of Action Back To the Court Docket For Trial--(5) Motion For Other Relief Including Mr. Donohue, et al. and Mr. Tomlinson, et al., Motions on File".

On April 20, 1990, the trial court held its first hearing. The court denied Albert's motion to disqualify Armstrong, Teasdale. Subsequently, on April 26, 1990, Albert filed a "Motion for Disqualification [regarding Mr. Barken] (2) Motion To Use The Good Office Of This Court To Issue A Warning That Any False Arrest, Bodily Harm, Or Any Other Illegal Conduct To Any Shareholder Or Legally Elected Director Or Officer Will Not Be Tolerated On Company Premises (3) And For Other Relief". Two days later, Albert filed a "Motion To Amend Judgment Trial By Court--Rule No. 73.01". In this motion, Albert again sought to disqualify the firm of Armstrong, Teasdale.

On May 5, 1990, Judge Chancellor held a hearing on the motions to enforce settlement. At that time, all parties agreed that the issues of interest and attorney's fees would be deferred to a later date. All of the defendants and one of the plaintiffs Richard, agreed that a settlement had been reached on July 18, 1989. The only party who did not agree that a settlement had been reached was Albert, who again contended that there was only an agreement to sell stock. Despite Albert's contention, two of Albert's children, Richard and Jeffrey, testified that Albert understood that the agreement included a provision that said transaction would constitute a total settlement and disposition of all claims that any of the parties had against each other. In closing, the trial court orally stated...