Edwards v. Andrews, Davis, Legg, Bixler, Milsten & Murrah, Inc.

• Decision Date: 01 June 1982
• Docket Number: 54859,Nos. 54858,s. 54858
• Citation: 1982 OK 72,650 P.2d 857
• Parties: Roberta EDWARDS, Appellant, v. ANDREWS, DAVIS, LEGG, BIXLER, MILSTEN & MURRAH, INC., Appellee. Roberta EDWARDS, Respondent-Appellant, v. ANDREWS, DAVIS, LEGG, BIXLER, MILSTEN & MURRAH, INC., Movants-Appellees.
• Court: Oklahoma Supreme Court

Page 857

650 P.2d 857

1982 OK 72

Roberta EDWARDS, Appellant, v. ANDREWS, DAVIS, LEGG, BIXLER, MILSTEN & MURRAH, INC., Appellee.

Roberta EDWARDS, Respondent-Appellant, v. ANDREWS, DAVIS, LEGG, BIXLER, MILSTEN & MURRAH, INC.,

Movants-Appellees.

Nos. 54858, 54859.

Supreme Court of Oklahoma.

June 1, 1982.

Rehearing Denied Sept. 24, 1982.

Appeals from the District Court, Oklahoma County; Charles Owens, Stewart M. Hunter, Judges.

The above cases stand unconsolidated as companion cases and are discussed together for the Court's convenience:

Cause No. 54,858, appealed from the District Court of Oklahoma County, Oklahoma, pled an action for damages incurred by reason of legal malpractice. The trial court sustained a demurrer to the petition on the basis that on the face of the petition it appeared the bringing of the action was barred by the applicable statute of limitations, 12 O.S. 1971 § 95 3rd. The action was dismissed, and this appeal ensued.

Cause No. 54,859, appealed from the District Court of Oklahoma County, arises from the legal representation subject to litigation in the above cause, and was brought to enforce the Attorneys' Charging Lien found in 5 O.S. 1971 § 6, against the proceeds of the judgment obtained through services of the attorney in this action. Judgment was granted for attorneys' fees less payment, and appeal ensued on the basis of failure to admit evidence disclosed in an offer of proof, as well as on the basis the Court by his judgment erroneously attempted to enforce a possessory lien.

JUDGMENT OF THE TRIAL COURT IN EACH CAUSE IS AFFIRMED.

William J. Skepnek, Linn, Helms, Kirk & Burkett, Oklahoma City, for appellant.

William B. Rogers, R. Steven Haught, Oklahoma City, for appellee.

HARGRAVE, Justice.

I. NO. 54,858

From an order of the District Court of Oklahoma County sustaining the demurrer of defendant and dismissing the cause of plaintiff, Roberta Edwards, this appeal is prosecuted. The demurrer of Andrews, Davis, Legg, Bixler, Milsten & Murrah, Inc., was sustained upon the ground that the action for damages incurred as a result of alleged legal malpractice was barred by the applicable statute of limitations, 12 O.S. 1971 § 95, 3rd.

The defendant firm represented plaintiff in four actions in Colorado and Oklahoma. On October 12, 1976, defendant advised plaintiff to enter into a settlement of these actions. Plaintiff also alleges in her amended petition that defendant failed to exercise reasonable care in drafting the settlement and warranty deed that accompanied it and that failure to obtain collateral on the settlement prior to dismissal of the actions with prejudice finally required suit to be brought to enforce the settlement on December 15, 1976. Defendants' representation of plaintiff was terminated September 7, 1977. This action pleading damages resulting from legal malpractice was commenced August 23, 1979. The defendant filed a general demurrer and brief in support thereof, arguing the statute of limitations issue.

The trial court sustained the demurrer, stating the petition discloses upon its face that the statute of limitations bars the prosecution of this action.

The appellant proposes in her brief to this Court that it is accepted law in Oklahoma that the statute of limitations is tolled when a party has fraudulently concealed the plaintiff's cause of action from her. It is material on this point to note plaintiff's initial petition attempted to plead fraudulent concealment and the order sustaining a demurrer to that petition states plaintiff has failed to sufficiently plead fraudulent concealment so as to toll the statute of limitations. These allegations found in paragraph 8 of the petition are omitted from the amended petition which does not incorporate the prior pleading by inclusion in totem verbis or by incorporation by reference. Filing of an amended petition complete in itself, not referring to the original petition or prior amendments, is an abandonment of all prior averments not contained in the amended petition. See Scott v. Price, 123 Okl. 172, 247 P. 103 (1926). Accordingly, no reference can be made to the original pleading abandoned by filing a substituted pleading in determining whether the demurrer to the amended petition should be sustained. Seekatz v. Brandenburg, 150 Okl. 53, 300 P. 678 (1931). In the absence of express allegations of fact in the petition pointing to fraudulent concealment, plaintiff urges the reasoning in Seitz v. Jones, 370 P.2d 300 (Okl.1962) is applicable to this action. Plaintiff contends that Seitz allows an inference of fraudulent concealment to arise from silence occurring within the doctor-patient relationship and urges us to extend that concept to the attorney-client relationship so as to toll the running of the statute of limitations. Although Seitz states the petition did not include the words fraudulent concealment, that case nevertheless finds the statute tolled. This result does not arise from an inference of fraudulent concealment. Rather the opinion demonstrates that the facts underlying the concealment were pled. There the negligence alleged was allowing a metal object (a hypodermic needle) to remain in plaintiff after an operation. The plaintiff pled an x-ray taken in June revealed the object's presence and this information was withheld until September. The Court stated: "We are of the opinion that the allegations in the petition clearly show that the plaintiff was prevented from knowing the negligence of the defendants..." Seitz, supra, at 302, therefore does not propose inferring fraudulent concealment.

Appellant additionally argues the concept of continuous treatment as applied to physician and patient relationships should be extended to legal malpractice on the grounds there is no reason to differentiate between the two professions in this respect. The premise that is utilized to support that contention is the citation of Perkins v. United States, 76 F.R.D. 590, at 592 (1976). That case states that the Federal District Court was referring to Federal law. No Oklahoma citation for such a point is referred to and consequently, the appellant's point that the two professions should not be distinguished fails for lack of any demonstration of differentiation in Oklahoma law. The continuous treatment concept mentioned in Perkins, supra, has not been demonstrated to be part of the body of Oklahoma law. Conversely the limitation period in medical malpractice actions as determined by statutory authority negates the application of the continuous treatment doctrine in Oklahoma. See 76 O.S.Supp. 1976 § 18.

Appellant lastly contends that under the authority of Covey v. C.I.T. Corp., 71 F.R.D. 487 (E.D.Okl.1975), defendants are estopped from asserting the limitation question. As previously noted, the amended petition is devoid of allegations of fraud. As recently noted in State ex rel. Western State Hospital v. Stoner, 614 P.2d 59 (Okl.1980), for equitable estoppel to apply to a factual situation there must be a false representation, or concealment of facts made with actual or constructive knowledge of its falsity, where the receiving party is of necessity without knowledge of the truth or the means of making that determination, and the statement must be made with the intent that it be acted upon, and the receiving party must have acted upon the representation to his detriment. Construed in the light most favorable to the plaintiff it is apparent the pleading does not state facts which would bring the doctrine of equitable estoppel into play here. The petition states that defendant failed to inform plaintiff of its negligent actions and that it represented to plaintiff that the problems would be resolved by the firm. In neither case are there facts pled which bring the doctrine of equitable estoppel into play.

The petition discloses upon its face the statute of limitations bars the prosecution of this action and does not contain averments raising a factual question of the tolling of the statute. Consequently, the ruling of the trial court sustaining the demurrer to the petition and its subsequent dismissal on the ground of the statute of limitations is AFFIRMED.

IRWIN, C. J., and LAVENDER, DOOLIN and OPALA, JJ., concur.

BARNES, SIMMS, and HODGES, JJ., dissent.

WILSON, J., certifies her disqualification.

II. NO. 54,859

Roberta Edwards v. Richard Walden.

This appeal raises as error the confirmation of an attorneys' lien in this action covering services rendered not only in this action but other cases which were all resolved by the settlement agreement enforced here. Appellant contends the attorneys' lien could only reach services rendered in the enforcement of the settlement agreement.

This action was commenced for the purpose of enforcing a settlement agreement made between Richard Walden and Roberta Edwards. This settlement resulted in the dismissal of four other lawsuits the plaintiff, Roberta Edwards, had pending against Mr. Walden in Federal Court, Colorado and Oklahoma State Courts. In preparation for the trial of these actions, Dr. Edwards' attorneys, the firm of Andrews, Davis, Legg, Bixler, Milsten & Murrah, Inc., scheduled the deposition of plaintiff and the non-resident defendant for the Thursday preceding the week of trial on one of the actions. At the time and place set for this hearing, the plaintiff and defendant conferred without their respective attorneys and struck a settlement of their disputes including a dismissal of the four actions against defendant. The cases were dismissed and subsequently it became necessary to bring suit to enforce the settlement. Judgment was granted upon the motion for partial summary judgment and the law firm filed a motion to allow fees and sought recovery of those fees through its lien on the judgment proceeds, confirmed by District Court order of June 16, 1978. That order confirmed lien on the funds in possession of the court clerk to secure payment of a...