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petitioner’s claims against Kits. He was not permitted to
participate in the store manager case.
Mr. Davis explained many of the circumstances of his
dealings with petitioner and of his litigation against Kits in an
effort to show that he retained the funds in question with
petitioner’s consent and for his benefit. We are not convinced
by these arguments. Mr. Davis was an experienced attorney at the
time in question. If the facts were as he represented, he could
have sent the entire $15,000 to petitioner and requested the
return of $2,500 for whatever legitimate purpose he had in mind.
Alternatively, he could have obtained petitioner’s written
agreement to his retaining $2,500. He did neither. Instead, he
paid only $12,500 to petitioner and offered a questionable
explanation for retaining the balance.
We conclude that petitioner did not constructively receive
the $2,500 that Mr. Davis retained and never sent to petitioner.
Petitioner did not authorize Mr. Davis to retain the $2,500.
Petitioner’s attempts to obtain the money were unsuccessful. The
money simply was not available to him. Moreover, petitioner
received no economic benefit from Mr. Davis’s unilateral decision
to retain the money. There was no possibility that petitioner
could benefit from participating in the store manager case
because the settlement agreement with respect to the lab manager
case and the general release included in that settlement barred
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