OpenJurist

982 F2d 525 Dodson v. Manna Pro Corporation &

982 F.2d 525

Dennis DODSON, Plaintiff,
Richard Schwartz & Associates, Ltd., Appellant,
v.
MANNA PRO CORPORATION, Defendant,
Belli, Belli, Brown, Monzione, Fabbro, & Zakaria, Appellee.

No. 92-1621.

United States Court of Appeals,
Eighth Circuit.

Submitted: December 14, 1992.
Filed: December 29, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BATTEY,* District Judge.

PER CURIAM.

1

Richard Schwartz & Associates, Ltd., appeals from a district court order finding that the parties had mutually rescinded an attorneys' fee agreement, and awarding Schwartz's firm twenty-five percent of the attorneys' fee in question. Schwartz argues that the district court erred in holding that the contract was rescinded, and alleges that the court's sole basis for this holding was that the parties couldn't get along. Schwartz also argues that all duties under the contingency fee and fee division contracts were substantially performed, and that the district court improperly considered extrajudicial communications, as well as other irrelevant evidence in modifying the fee agreements.

2

Mutual "rescission may be shown by acts and declarations of the parties which are inconsistent with the continued existence of the previous contract." Tahan v. Garrick, Inc., 701 S.W.2d 189, 191 (Mo. App. 1985). Whether such a rescission occurred is a question of fact. See Miran Inv. Co. v. Medical W. Bldg. Corp., 414 S.W.2d 297, 302-03 (Mo. 1967).

3

The district court found that the agreement was rescinded and made other findings in support of this. Appellant has not shown that these findings are clearly erroneous, and the other claimed errors are without merit. The judgment of the district court is affirmed. See Eighth Cir. R. 47B.

*

The Honorable Richard H. Battey, United States District Judge for the District of South Dakota, sitting by designation