Date: 02-08-2001

Case Style: Lapkin v. Garland Bloodworth, Inc.

Case Number: 94,302

Judge: Kenneth L. Buettner

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

Plaintiff's Attorney: Derek S. Casey of Hutton & Hutton, Wichita, Kansas

Defendant's Attorney: John Tucker of Rhodes, Heironymous, Jones, Tucker & Gable, Tulsa, Oklahoma for Garland Bloodworth

William K. Osmond and Lawrence R. Murphy of Robinett & Osmond, Tulsa, Oklahoma for John Alberts.

Description: ird-Party Defendants/Appellants Garland Bloodworth, Inc., d/b/a Bloodworth & Associates (Law Firm), Garland Bloodworth,1 and John Alberts (collectively Attorneys) appeal from summary judgment granted in favor of Defendant/Third-Party Plaintiff/Judgment Assignor Leonard Lapkin, M.D. in Lapkin’s unjust enrichment claim. Because we find no substantial issue of material fact upon the record presented, and because we find Lapkin was entitled to judgment as a matter of law, we affirm summary judgment. However, we reverse and remand for modification of two issues: the finding that Attorneys are jointly and severally liable and the date on which pre-judgment interest began accruing.

Raphael Nevin Pino (Raphael) was incapacitated due to a surgical mistake by Lapkin. Darla Lynn Pino (Darla), individually and as guardian for Raphael, an incapacitated adult, and as guardian and next friend of Angel-Lena Pino, a minor, entered into a settlement agreement with Lapkin for $2.5 million (first settlement agreement) August 7, 1995. The first settlement agreement, including the attorney fee agreement, was approved by the District Court of Canadian County as part of guardianship proceedings involving Raphael. As part of a contingency fee agreement with Law Firm, negotiated by Alberts, the proceeds from the first settlement were divided equally between Law Firm and Darla. Law Firm paid Alberts a salary, but also had an agreement in the Pino case to divide the fee with 2/3 going to Bloodworth and 1/3 going to Alberts.

The first settlement agreement provided that $45,000 would be distributed to Michael Pino, Raphael’s son, and $2,455,000.00 would be applied to the purchase of a structured annuity with the balance to be divided [23 P.3d 961] among the releasers.2 Lapkin’s insurer, Physicians Liability Insurance Company (PLICO) issued a check for $2,455,000.00 August 11, 1995. The check was made payable to Darla, Raphael, and Alberts. Law Firm deposited the check in its trust account August 11, 1995. Also on August 11, 1995, Bloodworth approved a cashier’s check from the trust account in the amount of $1,077,500.00 payable to Darla.3 Bloodworth also on that date wrote a check to Alberts, from the trust account, in the amount of $349,166.66 which included the notation "Pino settlement w/ PLICO Co-Counsel Fee." Bloodworth wrote three $200,000 checks to himself from the trust account, each with the notation "Pino settlement, Co-Counsel Fee." Bloodworth also transferred $300,000 to himself from the trust account for a certificate of deposit with the notation Darla Pino settlement. Finally, a $98,333.34 check was written from the trust account to Law Firm with the notation "transfer to operating Pino."

After the first settlement agreement was approved in Canadian County, Darla discharged Law Firm and hired new counsel to challenge the Canadian County District Court’s jurisdiction. In Case No. 88,064, filed October 28, 1996, the Oklahoma Supreme Court assumed original jurisdiction in the case and held the Canadian County proceedings void for failure to appoint counsel to represent Raphael, as required by In re Guardianship of Deere, 1985 OK 86, 708 P.2d 1123. Included in the Supreme Court’s ruling is an order that the "friendly suit" approving the first settlement agreement and the underlying guardianship were void.

Darla was then appointed guardian of Raphael in Payne County on November 8, 1996 in proceedings in which appointed counsel represented Raphael. Darla then filed a medical malpractice lawsuit in Tulsa County District Court against Lapkin, another doctor, and Hillcrest Medical Center. Darla also sought to have the first settlement agreement rescinded based on the Supreme Court’s decision that it was void. Darla returned her portion of the first settlement agreement proceeds to Lapkin. The Tulsa County District Court granted partial summary judgment on the issue of recission October 27, 1998.

Lapkin then filed a third-party petition against Attorneys seeking return of the remaining proceeds of the first settlement agreement under the theory of unjust enrichment. The Tulsa County District Court granted summary judgment to Lapkin on the unjust enrichment claim September 27, 1*. The trial court awarded Lapkin $1,077,500.00 plus 6% interest from August 11, 1995 to the date of judgment, plus post-judgment interest pursuant to 12 O.S.1991 §727 . Attorneys were held jointly and severally liable for these amounts. In the order granting summary judgment to Lapkin, the trial court expressly determined that there was no just reason for delay and directed the filing of a final judgment in Lapkin’s third-party action. It is from that summary judgment that Attorneys appeal. Lapkin has assigned his judgment to Darla.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed in part, reversed in part, and remanded.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None