Martin v. Buckman

• Decision Date: 07 June 1994
• Docket Number: No. 78523,No. 4,78523,4
• Citation: 1994 OK CIV APP 89,883 P.2d 185
• Parties: 1994 OK CIV APP 89 C. Rabon MARTIN, Attorney of Record for Plaintiff, Appellant, v. Steven V. BUCKMAN, Attorney Lien Claimant, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 185

883 P.2d 185

1994 OK CIV APP 89

C. Rabon MARTIN, Attorney of Record for Plaintiff, Appellant, v. Steven V. BUCKMAN, Attorney Lien Claimant, Appellee.

No. 78523.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 4.

Court of Appeals of Oklahoma Division No. 4.

June 7, 1994.

Rehearing Denied July 5, 1994.

Certiorari Denied Oct. 4, 1994.

Appeal from the District Court of Tulsa County, Donald C. Lane, Trial Judge.

C. Rabon Martin, Martin & Associates, Tulsa, for appellant.

Loyal J. Roach, Tulsa, for appellee.

BRIGHTMIRE, Chief Judge.

The order under attack is one in which the trial court sought to equitably divide an attorney's fee fund generated by the professional services of two lawyers pursuant to two contingent fee contracts, the first one being with the appellee attorney who was discharged by the client without cause. The principal complaint of the appealing successor attorney is that the trial court awarded the discharged attorney too much of the fee fund--an award which is said to be clearly against the weight of the evidence, at least in part. The discharged attorney cross appeals complaining that the trial court erred in denying his motion for an attorney's fee award as the prevailing party.

The trial court's order, both as to the award and the denial of the appellee's motion for an attorney's fee, is affirmed.

I

The operative facts are these. Shortly before midnight on December 4, 1986, Sally J. McDaniel was driving her brother's car westward on South 71st Street in Tulsa, Oklahoma. At one point she came to a hill and, as she approached the crest, an eastbound Tulsa Police car engaged in the high-speed pursuit of a stolen vehicle suddenly appeared in her lane and crashed head-on into her, demolishing the cars, and seriously injuring her.

McDaniel's brother, Ted Burke, also a Tulsa police officer, contacted his attorney, Steven V. Buckman, about representing both Burke and McDaniel. Burke and attorney Buckman negotiated a contingent fee contract whereby attorney Buckman would represent McDaniel with regard to her claim for personal injuries against "the City of Tulsa, all available insurance carriers," ¹ and the police officer. For his efforts, Buckman was to receive "33 percent of any settlement that was reached without trial...." McDaniel executed the contract in the hospital December 8, 1986. Attorney Buckman also agreed to represent Burke and his wife, Olga, in their claim for property damage as owners of the vehicle McDaniel was driving when she was injured.

Attorney Buckman, who had been practicing law a little over two years, began researching the law and otherwise investigating various theories of recovery and sources of liability insurance in an effort "to circumvent the $100,000.00 limit of the political subdivision." Such efforts included the exploration of an action under 42 U.S.C. § 1983, alleging the City's hot-pursuit policy violated McDaniel's civil rights, or a manufacturer's products liability action assailing the car's crashworthiness. He rejected both theories after doing substantial research and finding that the weight of authority was, as he put it, "squarely opposed to treating a high-speed pursuit as a [s] 1983 action." He also reached a conclusion that it was not feasible "to try to hold General Motors responsibile [sic ] for two vehicles colliding at approximately 90 miles per hour...."

In January 1987, Buckman timely filed notice of McDaniel's claim with the City in compliance with the Governmental Tort Claims Act, ² and began efforts to establish the existence of uninsured motorist coverage. First, however, he had to determine which of two automobile insurance policies held by the Burkes covered the wrecked vehicle. This, he said, was not as easy as it might seem because the Burkes owned several vehicles covered by two different carriers, and neither carrier had been advised of the Burkes' recent purchase of the automobile involved in the crash. And to make matters even worse, the Burkes were unable to produce either a title establishing their ownership of the car or, initially, a copy of an insurance verification form. The insurers therefore denied liability.

McDaniel's tort claim was "deemed denied" by the City and attorney Buckman filed a lawsuit on behalf of McDaniel and the Burkes on June 4, 1987, naming the City of Tulsa, the Tulsa Police Department and the two UM insurers as defendants. Attorney Buckman perfected an attorney's charging lien by signing his name on the face of the petition along with the words "attorney's lien claimed." ³

Following this, one of the insurers sought dismissal on the ground that the "Plaintiffs wholly fail to allege that this Defendant had an insurance policy with the Plaintiffs." The City also sought dismissal of the petition because it failed to recite certain jurisdictional prerequisites regarding prior compliance with the tort claims act, and because it named a "legal non-entity, to wit: the Tulsa Police Department." On July 8, 1987, the police department was dismissed and the amended petition was endorsed "attorney's lien claimed."

Attorney Buckman proceeded with discovery in an effort to garner and preserve all available evidence. ⁴ Depositions were taken, interrogatories were served, and documents were exchanged.

By August 1987, attorney Buckman said discovery was nearly complete when the City offered to settle McDaniel's personal injury claim for $80,000. ⁵ Attorney Buckman advised McDaniel not to accept the offer because settling for less than the City's $100,000 maximum liability could jeopardize recovery of any uninsured motorist benefits.

By early fall, attorney Buckman said he was able to get an oral offer of $90,000 from the City's attorney. ⁶ He again advised his client to reject the offer and explained that:

"There were still at least another [$]50,000 in uninsured motorist coverage and, at that point, the second policy of [$]50,000 was looking shakier all the time. But it was still possible we have another hundred thousand dollars in coverage and it just wasn't worth giving it up with her current injuries and damages."

He further stated that he kept after the City to increase its settlement offer so that he could enter into serious negotiations with the UM carriers and perhaps lay the predicate for a bad-faith claim in which punitive damages could be sought. This approach, he had been told by an attorney who had used it, had been successful in a recent federal district court case in which the insured recovered punitive damages based on an insurer's willful refusal to enter into good-faith settlement negotiations when it was "clearly shown from the damages and liability that they should pay the claim."

Then, during her deposition, Olga Burke produced an insurance verification form which identified the appropriate UM carrier. Thus, attorney Buckman was able to determine the limits of liability and advise McDaniel that it appeared the total recovery would be limited to $100,000 from the City and $50,000 from the one UM carrier.

In the meantime, a boyfriend of McDaniel's told her about another attorney and sent her to talk to him. She did, and he told her he thought a § 1983 civil rights claim was viable and, if so, "the [$]100,000 limit would not apply if you could win a civil rights action against the City[.]" As for the potential recovery, she recalled he said "something about the [$]500,000."

On December 21, 1987, a letter from McDaniel was hand delivered to attorney Buckman at his office. In it, McDaniel informed him:

"I have decided to discharge you as my attorney and transfer responsibility for my claims arising from the December 4, 1986, automobile accident to

[the other attorney's name and address].

"Please make my files and records available to [him] at his convenience.

"Also, please provide [him] with an itemization of any expenses you have incurred to date and a detailed listing of your time expended on various activities in the case.

"Thank you for your prompt attention to this matter."

Attorney Buckman said after he received the letter, he "spent about half a day just sitting at my desk staring at the letter trying to figure out why I'd been fired." Indeed, McDaniel said she had never expressed dissatisfaction with his performance, but gradually lost confidence in his ability to handle her claim because "[i]t just seemed like it was taking so long."

On December 23, 1987, attorney Buckman wrote McDaniel a letter expressing his "regret that you have decided to obtain a different attorney rather than allow me to complete this matter" and, because he had "spent a great deal of time in preparing this case and reaching its present position with the City of Tulsa," he had "filed an Attorney's Lien in order to be paid for my fees and expenses." The same day he wrote the City's attorney and the attorney for the UM insurer to confirm the City's settlement offer of $90,000.

The next day, December 24, 1987, attorney Buckman wrote McDaniel's second attorney to inform him that as a result of his, attorney Buckman's, efforts, the case was "all but ready for a Pre-trial Conference and trial" and therefore attorney Buckman's "fee has become fully vested (and earned) in the minimum sum of $30,000.00" plus expenses of $693.92. Attorney Buckman said that at the new attorney's request, they "spent about two hours in my office going through, showing him different pleadings, discussing different things I had done, why I was doing them and the different theories of recovery that were available."

McDaniel stayed with the second attorney "maybe six months" and then discharged him because he "just seemed real busy." ⁷ The second attorney referred her to a third attorney, appellant Martin, with whom she entered into a contingent fee contract for representing her in her claim against the City, plus additional legal services. It provided Martin a fee of 40...