J. David Golub - Page 20




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          net sale proceeds was not the receipt of taxable income but                  
          rather “a partial restitution by tortfeasor”.                                
               Petitioner is in effect seeking to relitigate in this forum             
          his claims that Kidder Peabody improperly handled his account.               
          These are claims that the District Court ordered the parties to              
          arbitrate, but petitioner has failed to comply with that order.              
          Petitioner apparently is displeased with the results he obtained             
          in District Court.  Therefore, having made appeals, and otherwise            
          sought reconsideration, of the District Court’s order until                  
          enjoined from any further filings, petitioner now seeks to bring             
          Kidder Peabody (as a “hostile witness”) into this Court.                     
          Petitioner, however, has already had ample opportunity to                    
          demonstrate the alleged tortious conversion, but, because he                 
          refuses to obey the District Court’s order, he has failed to do              
          so.                                                                          
               In any event, the evidence before this Court flatly belies              
          petitioner’s contentions of tortious conversion.  The written                
          agreements between Kidder Peabody and petitioner reveal an agency            
          relationship between a broker and its customer.  Although                    
          disputes clearly arose, we have no reason to find that the agency            
          relationship ended before November 14, 1991, when petitioner,                
          after considerable prodding by Kidder Peabody, submitted an                  
          explicit authorization to liquidate his account.                             







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