Duffy v. Cope, 93150.

• Decision Date: 11 September 2000
• Docket Number: No. 93150.,93150.
• Parties: Jane Annette DUFFY, Plaintiff, v. Robert McDowell COPE, McAllister & Reed, Inc., Crockett's Smokehouse, Inc., and Crockett's Smokehouse of S. May Ave., Inc., Defendants, Robinson & Hoover, Appellant/Counter-Appellee, v. Durbin, Larimore & Bialick, P.C., Appellee/Counter-Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

18 P.3d 366

2000 OK CIV APP 140

Jane Annette DUFFY, Plaintiff, v. Robert McDowell COPE, McAllister & Reed, Inc., Crockett's Smokehouse, Inc., and Crockett's Smokehouse of S. May Ave., Inc., Defendants, Robinson & Hoover, Appellant/Counter-Appellee, v. Durbin, Larimore & Bialick, P.C., Appellee/Counter-Appellant.

No. 93150.

Court of Civil Appeals of Oklahoma, Division No. 1.

September 11, 2000.

Certiorari Denied December 5, 2000.

Michael R. Hoover, Robert E. Norman, Oklahoma City, Oklahoma, for Appellant.

Gary C. Bachman, Margo M. Brown, Oklahoma City, for Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

OPINION

CARL B. JONES, Presiding Judge:

¶ 1 This appeal involves two law firms disputing the trial court's division of a $340,000.00 contingent fee. The court awarded $140,000.00 to attorneys, Robinson & Hoover (Hoover), and $200,000.00 to the firm of Durbin, Larimore & Bialick (DLB). Hoover appealed and DLB has counter-appealed.

¶ 2 The Plaintiff, Jane Duffy, retained Hoover shortly after being involved in a September, 1996 automobile accident with Defendant, Robert Cope, an employee of Defendant, Crockett's Smokehouse. Hoover filed a personal injury action against the Defendants in February, 1997. Hoover's fee agreement with Duffy was 40% of any recovery. For the next year and one-half Hoover investigated the accident, pursued a workers' compensation case, did formal discovery, moved to compel discovery responses, responded to Defendants' Motions for Summary Judgment, participated in mediation sessions, engaged in settlement negotiations and attended pre-trial conferences.

¶ 3 The first mediation occurred in March, 1998. It was unsuccessful with Plaintiff's demand at over $1,000,000.00, and Defendants offering $125,000.00. A second mediation was held in April, 1998. At that time Defendant Cope's attorney advised Hoover he had the authority to offer his $250,000.00 auto liability policy limits but that Duffy would have to sign a covenant not to execute against Cope for collection of any judgment she might get in excess of $250,000.00. After discussing this with Ms. Duffy, Hoover advised Cope's attorney that they could enter into that agreement. Hoover also advised one of the attorneys representing the Defendants that Duffy's "bottom line" was $600,000.00. These actions taken by Hoover were, according to him, with Duffy's knowledge and permission. The mediation was unsuccessful. ¶ 4 Several days later, on April 20, Ms. Duffy delivered a letter to Hoover terminating his representation of her and requesting his file.¹ She hired DLB and entered into a 40% contingent fee agreement with them. Hoover was initially reluctant to give his file to DLB without assurances of getting paid. Within a few days, however, the file was provided to DLB, who entered their appearance on April 27, 1998. On April 28, the Defendants' insurer gave one of Defendants' attorneys authority to settle with Plaintiff for up to $600,000.00.

¶ 5 Trial was scheduled just a month or so away. DLB was able to get a continuance of the trial date, researched insurance coverage issues, interviewed doctors and the investigating police officer, obtained new and updated medical reports and obtained copies of insurance policies. A third mediation was held in June, 1998. At that mediation, the case was settled for $850,000.00. At the hearing on the fee dispute Hoover contended that he was entitled to 40% of $600,000.00 and DLB was entitled to 40% of the remaining $250,000.00. Hoover argues that while he was still Ms. Duffy's attorney the Defendants' insurer had authorized settlement authority of up to $600,000.00, although only $250,000.00 had actually been offered while Hoover was involved. DLB took the position that Hoover mishandled the case and that of the $340,000.00 for attorney fees, Hoover should only receive $75,000.00.

¶ 6 The trial court, in a finding of fact, stated that the entry of DLB into the case on behalf of Ms. Duffy was a significant factor in Defendants' insurer's decision to extend settlement authority of $600,000.00. The trial court concluded that Hoover's agreement to enter into the covenant not to execute was not in his client, Duffy's, best interest and therefore her termination of Hoover was for "just cause". The $340,000.00 attorney fee fund was divided $140,000.00 to Hoover and $200,000.00 to DLB.

¶ 7 On appeal, Hoover contends the $140,000.00 awarded to him was not a reasonable proportion of the contingent fee fund, the fee awarded was against the weight of the evidence and contrary to law and that he was not discharged for cause. DLB's counter-appeal contends that Hoover should have been awarded no fee because he was terminated for cause, that any fee awarded to Hoover should have been on the basis of criteria set forth in State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, and that Hoover's fee was clearly against the weight of the evidence and contrary to law and equity. An action to enforce an attorney's lien, which this is, is an equitable matter. Martin v. Buckman, 1994 OK CIV APP 89, 883 P.2d 185, 192, 196. A judgment in a case of equitable cognizance will be sustained on appeal unless it is found to be...