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Donald Winston has been waiting a long time for justice, but that doesn’t make it any easier for the surgeon to endure 17 years of litigation in a dispute with a hospital in Houston that suspended his privileges in 1983. “It couldn’t be more frustrating. I didn’t expect this at all,” says Winston, now 57 and a litigation consultant in Houston. Winston’s first long wait ended in October 1996, when the 1st Court of Appeals in Houston finally handed down an opinion in Donald Winston M.D., et al. v. American Medical International Inc., et al. nearly four years after oral arguments. At the time, Winston’s appeal was the oldest in the state. The 1st Court’s opinion allowed Winston to proceed with some of his claims, and after mediation in 2000, Winston eventually agreed to a $350,000 settlement of the suit. But Winston is waiting again. This time a fee dispute with Houston plaintiffs’ lawyer John O’Quinn is keeping Winston from getting paid any of the settlement funds that are in the trust account of his lawyer, Michael O’Brien of Houston. According to Winston and his lawyer in the fee dispute, Russell Jones, O’Quinn wants about two-thirds of the settlement, which totals $386,000 with interest. O’Quinn sued Winston and O’Brien in June in county court in Fort Bend County, seeking a court order to compel arbitration of the fee dispute. A judge granted a temporary restraining order preventing O’Brien from distributing the disputed funds and preventing Winston or his company, Galleria Medical Center Inc., from suing O’Quinn over the money. But on July 29, Court-at-Law Judge R.H. “Sandy” Bielstein signed an order dismissing the suit on the ground O’Quinn lacks jurisdiction. “It was the wrong place altogether,” says Jones, a partner in Holoway Jones Law Firm of Sugar Land, Texas, and Winston’s lawyer in the Fort Bend County litigation. After Bielstein dismissed the litigation, a ruling that also dissolved the earlier temporary restraining order, Winston struck back with his own suit, this time a state-court suit filed in Harris County. On Aug. 5, Winston filed suit against O’Quinn, alleging the lawyer violated the state’s Deceptive Trade Practices Act by filing suit in Fort Bend County instead of in Harris County, where he lives. Winston seeks attorney fees and treble damages. O’Quinn’s attorneys in the Fort Bend suit, Richard Tate, of Tate & Associates of Richmond, was out of the office and could not be reached for comment by press time on Aug. 8. O’Quinn, a partner in O’Quinn, Laminack & Pirtle, says his firm is entitled to its share of the settlement money. “We performed the work. We spent the money, and he is just trying to beat us out of what we are entitled to. We sure earned it. We worked on the case for eight years, I believe,” he says. He characterizes the suit Winston filed against him as silly. “You can’t violate the DTPA by filing a lawsuit,” O’Quinn says. “That’s ridiculous.” ON PINS AND NEEDLES Winston’s seemingly never-ending legal problems began in 1983, when the surgeon lost his staff privileges at Twelve Oaks Hospital in Houston for allegedly subpar performance and poor recordkeeping. In 1985, Winston filed suit in federal court against the hospital, American Medical International Inc., and four doctors, alleging the peer review process that led to his loss of privileges was unfair and the defendants tortiously interfered with his business, a clinic in The Galleria in Houston that catered to patients with on-the-job injuries. After U.S. District Judge David Hittner of Houston granted a summary judgment to the defendants on Winston’s federal antitrust and RICO claims in 1990, Winston filed suit in state court. The next year, 80th District Judge William Powell granted the defendants summary judgment and denied Winston a new trial. It was Winston’s appeal of that ruling to the 1st Court that kept Winston on pins and needles for years. The ruling, which came out in October 1996, was mixed. It upheld part of the summary judgment, but allowed Winston to proceed with his claims that the defendants tortiously interfered with his present and prospective contractual and business relationship on the ground they established a competing practice in The Galleria. The $350,000 settlement of that suit is at stake. O’Quinn claims in the suit he filed in Fort Bend County to compel arbitration that Winston’s fee contract calls for arbitration of any fee dispute. He alleges his firm spent $84,777 on expenses on Winston’s long-running litigation and lawyers from his firm spent “many hours of work” on the suit along with O’Brien. O’Quinn says he’s entitled to receive the money he spent on the litigation, along with pre-judgment interest and attorney fees, and says Winston must arbitrate. Winston alleges in his response to that suit that O’Brien, acting on behalf of O’Quinn and himself, modified the terms of the fee contract and agreed the full amount of the settlement would go to Winston, who spent more than $350,000 himself on the litigation even before O’Brien got involved in 1990. He also alleges that O’Quinn isn’t even a party to a 1997 fee contract because only he and O’Brien signed it, although the agreement is between Winston and O’Brien and O’Quinn. Winston says he signed the 1997 contract, replacing one dating back to 1990, at O’Brien’s request. O’Quinn says the contract is valid. O’Brien, a solo practitioner in Houston and Winston’s longtime lawyer in the underlying litigation, did not return two telephone messages seeking comment before presstime. Winston says he would not have settled the litigation with the hospital company if he had known O’Quinn planned to claim most of the money. He says he thought at that time that O’Quinn had invested about $35,000 in the suit and says he’s offered to pay him that amount out of the settlement. But a year and a half after the underlying suit settled, Winston is still waiting for some money. He had faith O’Brien would work out any dispute with O’Quinn, but now finds himself back in the courthouse, this time suing O’Quinn. “I felt I was friendly with these people,” Winston says. “I’m still friendly with Mr. O’Brien.”

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