- 12 - 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 barredPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011