In the Circuit Court of Newton County, Missouri

IN THE CIRCUIT COURT OF NEWTON COUNTY, MISSOURI

STEVE P. HART

STEVEN A. HAYS

Serve: Steven A. Hays

622 South Main

Joplin, MO 64801

and

Plaintiff,

)

) Case Number: I )J.if-c va l?0

)

) F I l E D

)

RICHARD DAVIDSON )

Serve: Richard Davidson )

203 East Main ) Neosho, MO 64850, ) Defendants. )

JUL 14 2014

PATTY A. KRUEGER

CLERK OF THE CIRCUIT COURT

PETITION FOR DAMAGES

COMES NOW Plaintiff Steve P. Hart and for his causes of action against Defendants

Steven A. Hays and Richard Davidson, states and alleges as follows:

Allegations Applicable to Multiple Counts

1. Plaintiff Steve Hart is resident of the State of Missouri, residing at 2801 South High, Neosho, Missouri. At all times relevant hereto, Plaintiff Steve Hart was and is a duly elected City Council Member for the City of Neosho, Missouri.

2. Defendant Steven Hays is an attorney licensed to practice law in the State of Missouri and has a principal place of business located at 622 South Main, Joplin, Jasper County, Missouri. At all times alleged herein, Defendant Steven Hays was the City Attorney for the City ofNeosho, Missouri.

3. Defendant Richard Davidson is a resident of the State of Missouri, residing in

Neosho, Newton County, Missouri. At all times herein alleged, Richard Davidson was the Mayor of the City ofNeosho, Missouri.

4. Venue is appropriate in the Circuit Court of Newton County pursuant to Mo. Rev. Stat. § 508.010.4 in that Plaintiff Steve Hart was first injured in Newton County Missouri by the tortious acts of Defendants.

5. Pursuant to Article IV, Section 8 of the Charter of the City ofNeosho (hereinafter "the Neosho Charter"), Steven Hays, as City Attorney, is required to act as the "chief legal advisor to the Council, the Manager, and all City departments, officers and agencies." Neosho Charter§ 4.08 (emphasis added).

6. Article II, Section 2 of the Neosho Charter provides the "Members of the Council shall be the elective officers of the City." Neosho Charter§ 2.02 (emphasis added). As an officer of the City of Neosho, Councilman Steve Hart is and was City Attorney Steven Hays' client, and City Attorney Steven Hays is and was Councilman Steve Hart's attorney.

7. At all times and in all respects alleged herein, City Attorney Steven Hays is and was Councilman Steve Hart's attorney for all City of Neosho legal matters and has repeatedly advised Councilman Hart that he was Councilman Hart's attorney for all City of Neosho legal matters.

8. As an attorney licensed to practice law in the State of Missouri, City Attorney

Steven Hays is obligated to know and abide by the Missouri Rules of Professional Conduct.

9. On or about April 2013, City Attorney Steven Hays came to the office of

Councilman Hart to discuss City of Neosho legal matters with Councilman Hart.

10. Without Councilman Hart's knowledge or permission, City Attorney Steven Hays, with the intent to do harm to Councilman Hart, secretly recorded said discussion on a recording device in violation of Missouri Rule of Professional Conduct 4-1.4. See Missouri Supreme Court Advisory Committee Formal Opinion 123, which provides:

If ... recording ... a conversation with a current client, the attorney must give some notice to the client that he is, or may be, recording the conversation. Giving this notice is necessary under the attorney's duty to communicate with the client and is consistent with the attorney's duty of loyalty to the client.

11. After secretly recording the conversation with his client Councilman Hart, City Attorney Steven Hays, with the intent to do harm to Councilman Hart, wrongfully released and! or caused to be released a copy of only a portion of the recorded conversation to third parties, including the news media, in violation of Missouri Rule of Professional Conduct 4-1.6 (client confidentiality).

12. Before a copy of only a portion of the recorded conversation was wrongfully released to the news media, City Attorney Steven Hays also wrongfully released and/or wrongfully instructed Neosho City Clerk Nora Houdyshell to release a copy of the same portion of the secretly recorded conversation "in response" to a series of Sunshine Requests made to the City ofNeosho which requested communications between specific officers and employees of the City. See, Handwritten note of City Clerk Nora Houdyshell, which is attached hereto and incorporated herein as "Exhibit A," demonstrating that City Attorney Steven Hays advised her that the copied portion of the secretly recorded conversation was "public record." The Sunshine Requests which the recording was produced in response to did not request communications between Plaintiff Steve Hart and Defendant Steven Hays. A copy of those Sunshine Requests and City Clerk Nora Houdyshell's May 14, 2014 invoice regarding the same are attached hereto and incorporated herein as "Exhibit B."

13. As a direct result of Defendant Steven Hays' conduct described herein, an edited

version of the secretly recorded conversation aired on local news station KSN on Friday, June

13th, during the late night news, and the unedited partial recording of the conversation was

published online on KSN's website as well as the Facebook page of City Councilman Charles

Collinsworth.

COUNTI

Legal Malpractice

Plaintiffv. Defendant Steven Hays

COMES NOW Plaintiff Steve Hart and for Count I of this Petition against Defendant

Steven Hays states and alleges as follows:

14. The preceding paragraphs of this Petition are incorporated by reference as if fully set forth herein.

15. At all times and in all respects alleged herein, Plaintiff Steve Hart and Defendant

Steven Hays had an attorney-client relationship.

16. As a result, Defendant Steven Hays owed to Plaintiff Steve Hart the duty to abide by Missouri Rules of Professional Conduct 4-1.6 (client confidentiality), 4-1.13 (organization as client), and 4-1.4 (communication).

17. Defendant Steven Hays, with the purpose of doing harm to Steve Hart, intentionally violated Missouri Rules of Professional Conduct 4-1.6, 4-1.13 and 4-1.4 in the following particulars, to wit:

a. unlawfully and secretly recording a privileged and confidential communication between Councilman Hart and City Attorney Steven Hays;

b. unlawfully and tortiously releasing part of the secretly recorded confidential conversation to third parties, including but not limited to the news media;

c. unlawfully and tortiously providing employees of the City of Neosho, including

but not limited to City Clerk Nora Houdyshell, with copies of part of the secretly recorded confidential conversation;

d. unlawfully and tortiously instructing employees of the City of Neosho, including but not limited to City Clerk Nora Houdyshell, that copies of part of the secretly recorded confidential conversation were public record subject to release by the City of Neosho.

18. That as a direct and proximate result of the intentional conduct of Defendant Steven Hays alleged above, Plaintiff Steve Hart has been damaged and will continue to sustain damages, including but not limited to damage to his personal reputation, humiliation, lost income, damage to his business, mental anguish, pain and suffering, and loss of enjoyment of life.

WHEREFORE, Plaintiff Steve Hart prays for judgment under Count I of this Petition against Defendant Steven Hays in an amount in excess of twenty-five thousand dollars ($25,000.00), and in a sum fair and reasonable and for such other relief as the court deems just and proper.

COUNT II

Breach of Fiduciary Duty/Constructive Fraud

Plaintiff v. Defendant Steven Hays

COMES NOW Plaintiff Steve Hart and for Count II of this Petition against Defendant

Steven Hays states and alleges as follows:

19. The preceding paragraphs of this Petition are incorporated by reference as if fully set forth herein.

20. At all times and in all respects alleged herein, Plaintiff Steve Hart and Defendant

Steven Hays had an attorney-client relationship.

21. Defendant Steven Hays owed to Plaintiff Steve Hart the fiduciary duties of undivided loyalty and confidentiality.

22. Defendant Steven Hays owed to Plaintiff Steve Hart the duty to abide by Missouri

Rules of Professional Conduct 4-1.6, 4-1.13 (organization as client) and 4-1.4 (communication).

23. Defendant Steven Hays, with the purpose of doing harm to Steve Hart, intentionally breached his fiduciary duties of undivided loyalty and confidentiality and intentionally violated Missouri Rules of Professional Conduct 4-1.6, 4-1.13 and 4-1.4 in the following particulars, to wit:

a. unlawfully and secretly recording a privileged and confidential communication between Councilman Hart and City Attorney Steven Hays;

b. unlawfully and tortiously releasing part of the secretly recorded confidential conversation to third parties, including but not limited to the news media;

c. unlawfully and tortiously providing employees of the City of Neosho, including but not limited to City Clerk Nora Houdyshell, with copies of part of the secretly recorded confidential conversation;

24. That as a direct and proximate result of the above said intentional breaches of fiduciary duties, Plaintiff Steve Hart has been damaged and will continue to sustain damages, including but not limited to damage to his personal reputation, humiliation, lost income, damage to his business, mental anguish, pain and suffering, and loss of enjoyment of life.

WHEREFORE, Plaintiff Steve Hart prays for judgment under Count II of this Petition

against Defendant Steven Hays in an amount in excess of twenty-five thousand dollars

($25,000.00), and in a sum fair and reasonable and for such other relief as the court deems just and proper.

COUNT III

Civil Conspiracy -

Plaintiffv. Defendants Steven Hays Richard Davidson

COMES NOW Plaintiff Steve Hart and for Count III of this Petition against Defendants

Steven Hays and Richard Davidson states and alleges as follows:

25. The preceding paragraphs of this Petition are incorporated by reference as if fully set forth herein.

26. Outside of the scope of their duties as officials of the City of Neosho, Defendants Steven Hays and Richard Davidson conspired together to politically attack Council members who opposed Richard Davidson on City issues, including but not limited to taking actions attempting to have such Council members removed from the City Council.

27. Steven Hays and Richard Davidson agreed and/or understood that unlawful and/or wrongful means would be used in furtherance of said conspiracy, including but not limited to having Steven Hays intentionally breach his fiduciary duties of undivided loyalty and confidentiality and intentionally violate Missouri Rules of Professional Conduct 4-1.6, 4-1.13 and 4- I .4 in the following particulars, to wit:

a. unlawfully and secretly recording a privileged and confidential communication between Councilman Hart and City Attorney Steven Hays;

b. unlawfully and tortiously releasing part of the secretly recorded confidential conversation to third parties, including but not limited to the news media;

28. That as a direct and proximate result of the above said civil conspiracy and the wrongful and illegal intentional acts taken in furtherance thereof, Plaintiff Steve Hart has been damaged and will continue to sustain damages, including but not limited to damage to his personal reputation, humiliation, lost income, damage to his business, mental anguish, pain and suffering, and loss of enjoyment of life.

WHEREFORE, Plaintiff Steve Hart prays for judgment under Count III of this Petition against Defendants Steven Hays and Richard Davidson, jointly and severally, in an amount in excess of twentyfive thousand dollars ($25,000.00), and in a sum fair and reasonable and for such other relief as the court deems just and proper.

COUNTIV

Punitive Damages -

Plaintiffv. Steven Hays and Richard Davidson

COMES NOW Plaintiff Steve Hart and for Count IV of this Petition against Defendants

Steven Hays and Richard Davidson states and alleges as follows:

29. The preceding paragraphs of this Petition are incorporated by reference as if fully set forth herein.

30. Defendant Steven Hays' aforementioned intentional violations of Missouri Rules

of Professional Conduct 41.6, 4-1.13 and 4-1.4, as more fully described in Count I of this Petition, were outrageous because of Defendant Steven Hays' evil motive and/or reckless indifference to the rights of Steve Hart.

31. Defendant Steven Hays' aforementioned intentional breaches of fiduciary duties and intentional violations of Missouri Rules of Professional Conduct 4-1.6, 4-1.13 and 4-1.4, as more fully described in Count II of this Petition, were outrageous because of Defendant Steven Hays' evil motive and/or reckless indifference to rights of Steve Hart.

32. Defendants Steven Hays' and Richard Davidson's aforementioned conspiracy that they would politically attack Council members who opposed Mayor Richard Davidson on City issues, including but not limited to taking actions attempting to have such council members removed from the City Council, and said Defendants' aforesaid agreement and/or understanding that unlawful and/or wrongful means would be used in furtherance of said conspiracy, as more fully described in Count III of the Petition, were outrageous because of Defendants' evil motive and/or reckless indifference to rights to Steve Hart.

WHEREFORE, Plaintiff Steve Hart, pursuant to Mo. Rev. Stat. § 510.265, prays for judgment under Count IV of this Petition against Defendants Steven Hays and Richard Davidson for punitive damages in the amount of five hundred thousand dollars ($500,000.00) or five times the net amount of the judgment awarded to Plaintiff against Defendants, and in an amount necessary to deter and punish Defendants, as well as for Plaintiffs costs herein incurred and