Willey v. RileyWilley v. Riley
In this action by plaintiff attorney against defendants, his former law firm and employer, two questions are presented. On appeal, defendants contend substantial evidence did not support submission by the district court to the jury of plaintiffs claim for intentional interference with a prospective contract. On cross-appeal, plaintiff attorney contends the court erred in granting defendants summary judgment on plaintiffs claim for conversion concerning the handling of a case settlement check.
Finding reversible error only in the district court’s submission to the jury of plaintiffs claim for intentional interference with a prospective contract, we reverse on the appeal аnd affirm on the cross-appeal. We remand for appropriate judgment.
I. Background facets and proceedings. In June 1987, attorney Tom Riley, of the Tom Riley Law Firm, P.C., hired attorney Wythe Willey to work as a full-time associate for the law firm. Under the terms of Willey’s employment agreement, Riley agreed to compensate Willey:
(1)A base salary of $60,000 per year, payable periodically or 60% of total billings, whichever is greater, and
(2) A bonus equal to one-third of the firm “profits” on contingent fee cases that [Willey] handle[d] and [brought] into the office. “Profits” are generally the balance received by the [Tom Riley] office after deducting hourly charges and expenses.
(3) For cases in which [Willey] [did] not participate, a bonus equal to 10% of the legal work that [he] [brought] into the office.
Soon thereafter, Willey went to work for Riley and the law firm and received regular compensation based on the agreement.
On March 30, 1990, Willey left several letters at the Tom Riley Law Firm office for Riley stating that he was resigning from his associate position with the law firm effective immediately. Riley was out of town on the day Willey resigned, and Willey did not inform Riley in person or over the telephone of his resignation.
Upon returning to the office on April 1, Riley learned of Willey’s resignation when he found the letters left by Willey. In one letter, Willey itemized sums totaling $235,664 that he contended the law firm still owed him at the time of his resignation.
On April 12, after his resignation from the law firm, Willey filed a petition at law in district court against Riley and the law firm seeking alleged unpaid wages, damages, and attorney fees pursuant to Iowa Code chapter 91A (1989). Riley and the law firm answered and counterclaimed, alleging Willey owed the firm damages based on fees Willey allegedly received directly from clients for services rendered to clients while employed by the law firm. One alleged instance involved Wil-ley’s representation of Reese Communications Companies, Inc., a public relations company that performs lobbying work with state legislatures and the United States Congress for Philip Morris U.S.A. and other companies. This allegation involved fees Willey аllegedly received from Reese and failed to turn over to his employer law firm. 1
In March 1991, Willey amended his petition against Riley and the law firm to include allegations that (1) Riley intentionally interfered with prospective contractual relationships between Willey and two companies, Reese and Philip Morris, and that (2) Riley wrongfully converted a $650,000 settlement check in a wrongful death ease in which Willey was the lead attorney. The conversion claim was dismissed by the court prior to trial in sustaining defendants’ motion for summary judgment.
The case proceeded to trial.
The jury found defendants were liable under Iowa Code chapter 91A (1991) for wrongfully withholding $35,599.07 in wages from Willey, with $32,590.53 of that amount found to be intentionally withheld. This verdict and judgment thereon is not challenged on appeal by either party.
The jury also awarded Willey $30,000 in damages after finding defendants intentionally interfered with Willey’s prospective contractual relationship with Philip Morris. The jury also found defendants intentionally interfered with Willey’s contractual relationship with Reese but concluded Willey suffered no damages as a result of the wrongful interference.
The district court entered a total judgment, including liquidated damages pursuant to Iowa Code section 91A.2(6), of $98,189.60 with interest against defendants.
After the verdicts, defendants filed a motion for judgment notwithstanding the verdict,
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Plaintiffs intentional interference with a prospective contract claim with Philip Morris, which survived defendants’ motions for directеd verdict and judgment notwithstanding the verdict, is the only issue raised in defendants’ appeal. Plaintiffs conversion claim, dismissed prior to trial pursuant to a summary judgment motion filed by defendants, is the only issue raised in plaintiffs cross-appeal.
The record indicates that the parties have each filed charges with the appropriate authority claiming violations of the canons of professional responsibility by the other party in actions at issue in the present case. We do not address those ethics charges in this opinion.
II. Defendants’ appeal concerning plaintiffs claim of intentional interference with a prospective contract. The appeal, filed by defendants Riley and the law firm, is from the district court’s order overruling defendants’ motion for judgment notwithstanding the verdict in favor of plaintiff on plaintiffs claim for intentional interference with a prospective contractual relationship with Philip Morris. The intentional interference claim is rooted in two telephone calls initiated by Tom Riley, Willey’s former employer, to Philip Morris, a company for which Willey formerly lobbied.
A. Additional facts. In August 1988, after Willey joined the law firm, Willey entered into a service agreement with Reese Communications Companies, Inc., to perform various services from September 1, 1988 to December 31, 1989. At that time, Reese hired Willey to be a company representative in Iowa and to manage a pilot program for Philiр Morris involving grass roots lobbying efforts.
Riley allegedly did not learn of Willey’s contractual agreement with Philip Morris until after March 30, 1990, the day Willey terminated his employment with the law firm. Willey admitted he never discussed with Riley his contractual relationship with Philip Morris. Riley allegedly first learned of Wil-ley’s connection to Philip Morris by way of a memorandum that was faxed from Patricia Wilson, midwest rеgional manager of Philip Morris’ government affairs division, to Willey at the law firm on Friday, March 30, 1990 at 6:03 p.m. Wilson, in charge of Philip Morris’ lobbying activities in Iowa, was the person to whom Willey reported on a regular basis. Willey had given Wilson the law firm’s telephone and fax numbers in order for her to know how and where to reach him if needed. Willey did not inform Wilson of his plans to resign from the law firm and move to a new location until after he had completed his move on April 2, 1990. At the time Philip Morris faxed the memorandum to the law firm in care of Willey, Riley was out of town and Willey had already resigned from the firm and was gone from the office.
After the fax was brought to Riley’s attention on Monday, April 2, Riley initiated one of two telephone calls to Patricia Wilson of Philip Morris. The first conversation occurred on April 2, the same day Riley returned to the office and learned of Willey’s resignation.
On that date, prior to Riley telephoning her, Wilson telephoned the law firm and asked to speak with Willey in regard to the fax. A secretary or receptionist of the law firm informed Wilson that Willey was not in the office at that time, but, if the fax was sent to the law firm, Willey must have received it.
Wilson was not informed during the telephone conversation with the secretary or receptionist that Willey had resigned from the firm. Wilson left a message that she was desperate to contact Willey and that “if anybody at the firm or just anyonе knew where he was, to please have him call [her].” On the same day as Wilson’s telephone call, Riley saw the message and fax from Wilson and then telephoned her.
When Riley telephoned Wilson, he informed her he was in possession of the memorandum that she had faxed to Willey and then he began asking her questions about Willey’s relationship with Philip Morris. According to Wilson, Riley did not say anything derogatory about Willey during their telephone conversation, yet she felt very uncomfortable talking with Riley when he started asking a lot of questions. Wilson refused to answer any of Riley’s questions and ended the brief telephone call. As a result of this telephone call, Wilson’s supervisors instructed her to not tаke any more telephone calls from Riley.
Approximately two weeks to a month after Riley’s first telephone call to Wilson, 3 Riley telephoned Wilson a second time and again asked her specific questions concerning Wil-ley’s relationship with Philip Morris. Once again, Wilson informed Riley that she could not answer his questions. Before this second conversation ended, Riley told Wilson that she could either answer the questions at that time or she could answer them pursuant to a subpoena. After this comment, Wilson, feeling upset by Riley’s statement, abruptly ended the conversation with Riley.
Sometime during the spring of 1990, Wilson reported Riley’s second telephone call to her immediate suрervisor and then to Philip Morris’ associate general counsel. Wilson’s supervisors instructed her, based on the in
Willey’s original contract with Philip Morris was scheduled to run through December 1990. However, in July 1990, Philip Morris hired another lobbyist to do the work that Willey was responsible for prior to Philip Morris’ decision to sever all contacts with him.
Wilson also testified that but for the two telephone calls she received from Riley, she would have continued to work with Willey under the 1990 service agreement that Willey had entered into with Philip Morris. She also stаted that she would have renewed Willey’s lobbying contract at the end of 1990 but for Riley’s telephone calls. 4 According to Wilson, it is typical for Philip Morris to retain lobbyists or renew their contracts year after year, if possible.
In an amended petition filed in March 1991, plaintiff alleged that Riley or the law firm intentionally and wrongfully interfered with his prospective lobbying contract with Philip Morris.
B. Whether a jury question was generated on plaintiff’s claim for intentional interference with prospective contract. The question is whether substantial evidence supports plaintiffs claim for intentional interference with plaintiffs prospective contract with Philip Morris. If the answer is yes, the district court сorrectly overruled defendants’ motion for judgment notwithstanding the verdict for plaintiff on this claim. If the answer is no, we must reverse on this issue.
1.
Judgment notwithstanding the verdict standards.
To determine whether substantial evidence supports plaintiff’s claim for intentional interference with plaintiff’s prospective contract with Philip Morris, we view the evidence in accordance with the same principles required for review by the district court.
Smith v. Smithway Motor Xpress, Inc.,
Our only inquiry in assessing a motion for judgment notwithstanding the verdict is whether there is sufficient evidence to justify submitting the case to the jury.
Faught,
2. Substantial evidence inquiry. Defendants contend that plaintiff did not present substantial evidence to support each element of his intentional interference with a prospective contract claim. Because we conclude plaintiff Willey did not present at least substantial evidence that Riley’s two telephone calls to Philip Morris were made for the predominant purpose to financially injure or destroy Willey, we reverse the district court’s judgment on this issue.
Interference with a prospective business contract is an intentional tort which
1. The plaintiff had a prospective contractual relationship with a third person.
2. The defendant knew of the prospective relationship.
3. The defendant intentionally and improperly interfered with the relationship in one or more particulars.
4. The interference caused either the third party not to enter into or to continue the relationship or that the interference prevented the plaintiff from entering into or continuing the relationship.
5. The amount of damage.
Nesler,
After examining the record in the present ease, we conclude, plaintiff has presented no evidence that Riley’s two telephone calls were made for the sole or predominant purpose to financially injure or destroy the plaintiff. Rather than presenting evidence on the issue of intent, plaintiff speculates that Riley made the telephone calls to Philip Morris due to hard feelings between himself and Riley rooted in Willey’s decision to resign from Riley’s law firm and Willey’s filing of a lawsuit against the law firm. Speculation, however, is not evidence and a case should not be submitted to a jury for deliberation when no evidence has been presented.
See Harsha,
We find, as a matter of law, no inference can be drawn to support plaintiffs interference with a prospective contract claim from the fact that Riley made two telephone calls to Wilson, one of which was made after Wil-ley filed a lawsuit against Riley and his law firm. The evidence showed Riley telephoned Philip Morris for one purpose: to inquire into the nature and extent of the relationship between the company and one of his former employees. We find this purpose was legitimate especially in light of the fact Willey, аs an associate attorney of Riley’s law firm, was presumably not permitted to personally accept fees from clients without accounting for such fees to the law firm. Wilson had become a potential witness in the pending fee dispute between Willey and the defendants. Also, defendant law firm would be responsible and possibly liable for Willey’s work done for Philip Morris while an associate of the defendant law firm.
Furthermore, if Philip Morris chose to terminate Willey’s lobbying contract after Riley telephoned the company or after learning of Willey’s legal dispute with Riley, that was Philip Morris’ choice and the termination of the lobbying contract was merely incidental to Riley’s legitimаte inquiries to Philip Morris regarding his associate’s dealings with the company.
Unlike Willey’s contentions, there is simply no evidence to support plaintiffs speculation that Riley acted with an improper motive or acted with the intent to financially injure or destroy Willey or his lobbying business. The record is absent of any evidence that Riley, who is not a lobbyist, would have any reason to interfere with his former associate’s lobbying business. We emphasize that plaintiff and defendants agree Riley said nothing derogatory to Wilson about Willey during either of the telephone calls at issue.
Other cases have similarly dismissed intentional interference with prospective contract claims for lack of substаntive evidence to
In sum, we conclude defendants’ motion for judgment notwithstanding the verdict on plaintiffs claim for intentional interference with a prospective contract with Philip Morris should have been sustained, and, thus, we reverse the district court’s ruling to the contrary.
III. Plaintiffs cross-appeal concerning his conversion claim. The cross-appeal, filed by plaintiff Willey, concerns the district court’s grant of defendant’s pretrial motion for summary judgment on plaintiffs conversion claim, set forth in Willey’s amended petition. The conversion claim is rooted in the endorsement and disposition of a settlement check in a wrongful death case primarily handled by Willey, during his tenure with the Tom Riley Law Firm, entitled “In the Matter of the Estate of Jamie Lynn Harder.”
A. Additional facts. The Harder litigation began in May 1988 and ran through February 1990. The origin of the litigation was the death of Jamie Lynn Harder in an accidental airplane crash in Colorado on April 3, 1988. Jamie was the seventeen-year-old daughter of John and Carole Harder.
The parties settled the lawsuit for $650,000 on January 17, 1990. The settlement was approved by the district court on January 22, the date the ease was scheduled to go to trial. On February 2, 1990, Riley sent a law firm employee to the office of the Harder case defense counsel in Davenport to obtain the settlement check. On or about the same date, Willey signed Riley’s name to a letter directed to the defense counsel claiming that interest was accruing on the settlement, and the law firm desired the settlement check to be remitted promptly to “John Harder, Executor of the Estate of Jamie Harder and Tom Riley Law Firm, P.C.” (Emphasis added.) Defendants’ insurer issued a check, pri- or to receiving Willey’s request, in the amount of $650,000 payable to the following named payees: “John Harder, Individually and as Administrator of the Estate of Jamie Lynn Harder, and Carole Harder, and Wythe Willey, their attorney.” (Emphasis added.) The law firm was not a named payee as Willey himself had desired.
When Riley’s employee returned from Davenport with the settlement check, Riley and/or his agents, including Lisa Thirnbeck, Riley’s daughter, endorsed the check in the names of the named payees “for deposit only” and deposited the entire settlement amount into the Tom Riley Trust Accоunt at the City National Bank, which is also the Harders’ bank. 5
On the same day that Riley deposited the $650,000 settlement amount in the law firm’s trust account, Riley transferred two-thirds of the settlement, or $433,334 into a ten day, renewable certificate of deposit in the name of John and Carole Harder. 6 The certificate of deposit earned 7½% interest at the time. At the end of the ten days, the funds were transferred into a money market account in the Harders’ name in anticipation that the check would clear by that date. On February 27, the law firm issued a check to the Harders for $424,341.58 after deduction of expenses owed by the Harders to the defendant law firm.
The law firm was left with its prospective one-third contingency fee, or $216,666, in its trust account. Of this amount, Riley transferred $166,666 into a ten day, renewable certificate of deposit, also earning 7½% interest, in the law firm’s name. Riley transferred the remaining $50,000 into the law firm’s general account. All of the transactions initiated by Riley concerning the settlement proceeds occurred prior to February 28, the date the district court authorized the fees and expenses of the law firm arising from its litigation in the wrongful death action to be paid by the administrator of Jamie Harder’s estate.
Pursuant to Willey’s employment contract with the law firm, the law firm paid him $54,192.19 as a bonus for his work on the Harder case.
In March 1991, based on Riley’s handling of the settlement check, Willey amеnded his earlier petition and claimed the defendants wrongfully converted the settlement check
In January 1993, pursuant to defendants’ motion, the district court dismissed Willey’s conversion claim in a summary judgment order. Defendants successfully contended that neither Riley nor the law firm were hable to Willey for conversion because there was no wrongful control or dominion over the Harder settlement draft on behalf of the defendants as far as Willey was concerned.
Plaintiff cross-appealed the court’s grant of summary judgment for defendants on his conversion claim.
B. Whether a genuine issue of material fact existed as to plaintiffs conversion claim. On cross-appeal, plaintiff Willey contends the district court erred in sustaining defendants’ motion for summary judgment concerning plaintiffs claim for conversion in defendants’ handling of the $650,000 check settling the Jamie Harder estate wrongful death claim.
1.
Summary judgment standards.
A defendant may move for summary judgment as to ah of the claims asserted against the party under Iowa Rule of Civil Procedure 237(b).
Millington v. Kuba,
When ascertaining whether the district court correctly concluded thе movant has met its burden, we examine whether, upon the basis of such material before the court as would be competent proof at trial, the court would have been compelled to direct a verdict for the movant.
Id.
If a directed verdict,
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The record, for purposes of this summary judgment cross-appeal issue, consists only of the pleadings, motion for summary judgment and resistance, depositions, affidavits, exhibits, and answers to written interrogatories.
See
2. No genuine issue of material fact. On cross-appeal, plaintiff asks that we reverse the district court’s order sustaining defendants’ motion for summary judgment on the conversion issue, and remand the ease to the district court for trial on Willey’s claim of conversion against defendants Riley and the law firm.
Plaintiffs argument hinges on his belief that he had a future possessory interest in the Harder settlement check, and, therefore, Riley committed the tort of conversion when he endorsed the check in Willey’s name and deposited it in the bank in the law firm’s trust account.
The cross-appeal leaves us in the precarious position of analyzing a district court’s pretrial partial grant of a motion for summary judgment after the ease has been tried to a jury on other issues.
See Grefe & Sidney v. Watters,
Plaintiff now asks for a trial on his earlier conversion claim stating that the “jury likely would have awarded Willey punitive damages” due to Riley’s intentional conduct when he endorsed the check in the names of the Harders and Willey. In his briefs, plaintiff does not claim he is entitled to any additional compensatory damages based on the alleged conversion. In fact, the record shows that Riley paid Willey his bonus for his handling of the Harder matter. Other compensation matters were decided by the jury in Willey’s wage claim.
With this background, we turn to the district court’s ruling on the pretrial motion for summary judgment. The only issue that the court was to resolve was whether there were any genuine issues of material fact in dispute
We believe the district court correctly held no genuine issue of material fact existed. The court did not err when it granted defendants’ motion for summary judgment on plaintiffs conversion claim. The court’s rationale is sound and supported by Iowa law.
First, we find Riley had implied authority to sign Willey’s name to the $650,000 settlement check. Willey knew that even though his name was listed as a payee on the settlement check, the law firm was the co-payee requested by Willey along with the Harders.
Willey argues the Uniform Commercial Code suрports his claim for conversion. Although it is true that “[a]n instrument is converted when ... it is paid on a forged endorsement,”
Second, while we do not condone Riley’s acts concerning the handling of the Harder settlement check, we conclude Riley could not have converted a chattel as against Wil-ley that Willey had no right to control prior to probate court approval of attorney fees to be paid from the estate to the law firm.
See, e.g.,
We agree with the district court that plaintiffs conversion claim fails as a matter оf law because Willey, an associate of the defendant law firm, had no right to any attorney fees from the check until the probate court authorized the estate to pay the law firm its one-third contingency fee. A conversion claim cannot he on behalf of a party who has no right to control the chattel which the party claims was converted. See Restatement (Second) of Torts § 222A. After probate court authorization, Willey could be paid by the law firm pursuant to their 1987 fee arrangement. The parties do not dispute the fact that Riley’s endorsement of the settlement draft and handling of the instrument by the bank occurred prior to the probate court’s authorization оf attorney fees to be paid from the Harder estate to the law firm. In any event, the check was the property of the firm and not Willey.
Therefore, we affirm the district court’s grant of summary judgment for defendants on the conversion cross-appeal issue.
IV. Disposition. On the appeal issue, we reverse the portion of the district court’s judgment overruling defendants’ motion for judgment notwithstanding the verdict on the intentional interference with a prospective contract claim concerning Philip Moms. Finding no reversible error on the conversion issue, however, we affirm the cross-appeal. The case is remanded for entry of judgment consistent with this opinion. Costs on appeal arе taxed to plaintiff Willey.
REVERSED ON APPEAL; AFFIRMED ON CROSS-APPEAL; REMANDED.
Notes
. While Willey was a full-time associate of the law firm, Reese compensated Willey $2,500 each month under the lobbying contract. Willey had listed Reese as a "miscellaneous” client in the law firm’s accounts receivable records, but Reese sent money directly to Willey. At one time, the law firm’s records revealed that Reese owed Wil-ley or the law firm $30,000. Willey admitted that he personally accepted $40,000 under his contract with Reese and owed the law firm this amount he had accepted while he was a full-time employee of the law firm. As a result, the law firm began withholding Willey's pay in Novem
Riley allegedly did not learn Willey received money directly from Reese until November 1989, at which time Riley allegedly discovered an unpaid bill of $30,000 owed from Reese to Willey. Willey's contract with Reese terminated on December 31, 1989.
. In a second contract entered into between Wil-ley and Philip Morris, effective March 1 through June 30, Willey agreed to perform lobbying at the state level for $3,500 per month.
. Defendants admit, based on Wilson’s recollection regarding the timing of the second telephone call, that the second telephone conversation between Riley and Wilson must have taken place after Willey filed his April 12 lawsuit against Riley.
. We note that even though Philip Morris discontinued all contact with Willey аfter Riley's telephone calls to Wilson, Philip Morris paid Willey his fees in full and did not exercise its right to terminate the lobbying contract on thirty days notice.
. In answer to Willey's requests for admissions, defendants explained why Riley handled the settlement check in the manner in which he did: “In the absence of Wythe Willey from the office and the non-availability of the Harders and, further, in keeping with long-standing office procedure and the knowledge of the Harders, Tom Riley endorsed the settlement check...." Defendants further contend Willey was aware of the law firm's check handling procedure and assented to it since 1987. Defendants also claim Riley, not Willey, informed the Harders that the settlement check, when rеceived, would be deposited in the law firm's trust account in order for the large sum to begin earning interest, a practice to which defendants assert the Harders also assented.
. The $433,334 amount represented money owed to the Harder estate under the one-third contingent fee agreement entered into at the beginning of Willey and the law firm's representation of Jamie Harder's estate in 1988.
. We note that