Opinion
J-A15022-19 No. 3340 EDA 2018
08-02-2019
ESTATE OF THEODORE R. FLINT, DEBORAH D. FLINT AND POLYMERIC SYSTEMS, INC. v. LOUIS GIANSANTE, ESQ., AND GIANSANTE & COBB, LLC JOSEPH A. MCGINLEY, ESQUIRE AND JOSEPH A. MCGINLEY, ATTORNEY, LLC APPEAL OF: JOSEPH A. MCGINLEY, ESQUIRE
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated October 22, 2018
In the Court of Common Pleas of Chester County
Civil Division at No(s): 04-09152 BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J. MEMORANDUM BY GANTMAN, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Joseph A. McGinley, appeals from the order entered in the Chester County Court of Common Pleas, which granted the motion of Appellees, Estate of Theodore R. Flint, Deborah D. Flint, and Polymeric Systems, Inc., to enter judgment per the agreed-upon settlement and conclude all causes of action. For the following reasons, we affirm.
The relevant facts and procedural history of this case are as follows. On August 20, 1996, Mr. and Mrs. Flint retained Appellant and Louis Giansante to represent them in litigation concerning asbestos and other contaminants on their commercial property where they operated their business, Polymeric Systems, Inc. ("PSI"). At that time, both attorneys worked for Lavin, Coleman, Finarreli, & Gray ("Lavin"), but both attorneys later left and each established his own separate practice. Following their departure from Lavin, the attorneys agreed to continue representing the Flints under the same 1996 fee agreement. The fee agreement provided for a one-third contingent fee for any monetary reward, and a $135.00 hourly fee for time spent seeking non-monetary relief. Specifically, the agreement stated:
3. Clients agree to pay for Attorneys' services in connection with this claim by payment of [one-third] of the net recovery whether recovery is made by settlement, verdict or judgment.( See Contingent Fee Agreement, dated 8/20/96, at 1; R.R. at R-84.)
* * *
6. If it becomes necessary to enter into negotiations with Insurance Companies or other entities to seek non-monetary relief, such as indemnification, on the clients' behalf our charges for services will be at the hourly Attorney rate of $135.
The Flints' case soon disintegrated after they lost several pre-trial motions. As a result, on June 24, 2004, the Flints settled for a cash amount of $40,800.00, which was much lower than the multi-million dollars they had originally sought. The settlement also provided that the defendants in the contamination litigation would bear two-thirds of the cost of completing an environmental assessment of the property. Following settlement, Appellant and Attorney Giansante demanded one-third of the $40,800.00 (or $13,600.00), plus they claimed they were additionally owed $135.00/hour for every hour spent working on the case from 2001 to 2004. The Flints refused to pay, so Attorney Giansante sued the Flints in New Jersey; and Appellant threatened to file a similar lawsuit against the Flints in Pennsylvania.
On November 8, 2004, Appellees (the Flints and PSI) filed a complaint for (1) declaratory judgment regarding the amount of fees owed and (2) attorney's fees and costs in defending against the demand for additional legal fees. The court entered an order on August 4, 2006, in which the court determined the fee agreement was clear on its face and the attorneys were not entitled to payment of $135.00/hour for all hours spent on the case. The court also decided the matter could proceed to trial on the question of how many hours the attorneys had spent negotiating for non-monetary relief (for which they would be entitled to $135.00/hour) and whether the attorneys owed the Flints reimbursement for attorney's fees and the costs of litigating the declaratory judgment action. Appellant and Attorney Giansante filed separate appeals, which this Court consolidated.
On November 15, 2007, this Court quashed the appeals as interlocutory and remanded for further proceedings, stating the August 4, 2006 order was not a final order because it failed to resolve all outstanding claims; our Supreme Court denied allowance of appeal on December 24, 2008. See Flint v. Giansante , 944 A.2d 807 (Pa.Super. 2007), appeal denied, 599 Pa. 710, 962 A.2d 1197 (2008). The case remained dormant for several years due to administrative orders and other delays. On August 22, 2013, Appellant and Attorney Giansante filed a joint motion to reconsider the August 4, 2006 order. The court denied the motion on January 15, 2016.
On November 14, 2017, the date scheduled for trial, the parties agreed on the record to a "stipulated verdict" of $6,750.00 (representing $135.00/hour for 50 hours) to be paid by the Flints to Appellant and Attorney Giansante. At the time of the agreement, Appellant stated:
This is [Appellant] and we have agreed to stipulate to a number of hours, given the restriction of testimony that was discussed for the hour[s] that [the court] referred to.( See Hearing, dated 11/14/17, at 3-4; R.R. at R-129-30.) All of the parties agreed to prepare and file the stipulated judgment memorializing the verdict, but Appellant subsequently refused to sign the proposed stipulated judgment. As a result, Appellees filed a motion on September 21, 2018, to enter "judgment per the agreed-upon settlement" and to mark the case settled, discontinued, and ended. Attorney Giansante agreed with Appellees' motion. Appellant did not respond or oppose the motion. On October 22, 2018, the court granted Appellees' motion as unopposed, entered judgment on the stipulated verdict, and marked the case as follows:
We believe that the testimony that was going to be permitted was restricted to some time for federal mediation, some time for the last day of—or the first day of trial, the underlying case, and limited preparation time for the federal mediation.
It is upon the restricted testimony that we have stipulated to this amount.
AND NOW, this 22nd day of October 2018, upon of the
[Appellees'] Motion for Entry of Judgment per Agreed-Upon Settlement, and no opposition thereto being filed, it is hereby ORDERED that the motion is GRANTED.( See Trial Court Order, filed October 22, 2018; R.R. at R-1) ( See also docket entries).
It is FURTHER ORDERED that judgment is entered in the amount of $6,750.00 to be paid (solely to the extent not already paid), by [Appellees] to [Appellant and Attorney Giansante], and that this judgment, in conjunction with the partial declarations made previously by this [c]ourt, finally declares the rights of the parties in this action and brings to a conclusion all causes of action.
Appellant filed a notice of appeal on November 13, 2018. On November 20, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant complied on December 12, 2018. On January 28, 2019, Appellees filed in this Court an application to dismiss or quash Appellant's appeal, claiming Appellant had acquiesced in the "settlement" and did not oppose the motion to enforce it, so he is no longer an aggrieved party. Appellant responded on February 19, 2019, claiming he only agreed to the "settlement" because a trial would not have been "valuable" and an "agreed or stipulated verdict" would permit this Court to review the court's interpretation of the parties' fee agreement. On February 26, 2019, this Court denied Appellees' motion without prejudice to raise the issue in their appellate brief.
Appellant raises the following issues on appeal:
WHETHER THE TRIAL COURT'S INTERPRETATION OF THE FEE AGREEMENT MUST BE CONSISTENT WITH THE
EXPRESSED UNDERSTANDINGS OF COUNSEL AND CLIENT, AND INCORPORATE THE PURSUIT OF ALTERNATE THEORIES SEEKING MONEY DAMAGES AND NON-MONETARY RELIEF?
WHETHER THE COMPLAINT IN THE UNDERLYING ACTION, WHOSE TERMS WERE VERIFIED BY THE FLINTS AND POLYMERIC SYSTEMS, WHICH TERMS CONSTITUTE JUDICIAL ADMISSIONS, DEMONSTRATES THAT "NON-MONETARY RELIEF" UNDER PARAGRAPH 6 OF THE FEE AGREEMENT WAS SOUGHT AFTER AND WORKED FOR FROM THE BEGINNING OF THE CASE?
WHETHER THE TRIAL COURT WAS ENTITLED TO MAKE A FACTUAL DETERMINATION THAT ALL ASPECTS OF THE UNDERLYING LITIGATION WERE CONCLUDED PRIOR TO COUNSEL'S TERMINATION WHERE THE RECORD REFLECTS AN ORDER, AND ACTIVITY IN ACCORDANCE WITH THAT ORDER, REQUIRING ALL PARTIES TO CONTINUE GROUNDWATER TESTING AND FURTHER MOVEMENT TOWARD REMEDIATION?
WHETHER PENNSYLVANIA LAW REQUIRES THE FEE RESOLUTION FOR TERMINATED COUNSEL BE BY QUANTUM MERUIT? ...
WHETHER THE TRIAL COURT ERRED IN BARRING ALL EVIDENCE OF HOURS WORKED AND THE REASONABLENESS OF THOSE HOURS FROM JURY PRESENTATION AND WHETHER THE TRIAL COURT ERRED IN LIMITING EVIDENCE OF HOURS WORKED TO TWO DAYS OF FEDERAL COURT MEDIATION AND SOME PREPARATION THEREFORE?
WHETHER THE TRIAL COURT ERRED IN DETERMINING IN 2006 THAT THE FEE AGREEMENT WAS A CONTINGENT FEE AGREEMENT ONLY, WITH RARE EXCEPTION FOR DIRECT NEGOTIATIONS WITH INSURERS, WHERE THE FINDING IS UNDERCUT BY THE COMPLAINT THAT WAS VERIFIED BY THE FLINTS AND POLYMERIC SYSTEMS?
WHETHER THE EXPECTATIONS OF THE FLINTS AND COUNSEL AT THE TIME OF THE UNDERLYING SETTLEMENT WAS TO MOVE FORWARD WITH CHARACTERIZATION OF
THE SOIL; CONTINUED PURSUIT OF POLLUTERS; AND ULTIMATELY TO ACHIEVE FULL REMEDIATION OF THE SOIL TO ACT II PERMITTED LEVELS OF CONTAMINATION?(Appellant's Brief at 2-4).
As a prefatory matter, Appellees have renewed their application to quash or dismiss the Appellant's appeal. Specifically, Appellees argue Appellant cannot appeal the entry of the final judgment in this case because he acquiesced to the stipulated verdict and failed to oppose the motion to enforce it. Given the parties' knowing and voluntary settlement of their dispute before the trial court, Appellees contend an actual case or controversy no longer exists. Appellees allege Appellant is not an "aggrieved" party for purposes of appeal. Appellees further maintain Appellant did not include any challenge to the parties' voluntary resolution in his Rule 1925(b) statement. Appellees conclude Appellant failed to identify any issues for appeal to undo the settlement or judgment.
Appellant responds he agreed to the stipulated verdict as an "administrative gesture" so he could appeal the court's August 4, 2006 order, which determined Appellant and Attorney Giansante were not entitled to an hourly fee for all hours worked in the case. Appellant contends the record shows he only acquiesced to the stipulated verdict because the court decided to limit testimony, concerning the number of hours Appellant and Attorney Giansante worked on Appellees' case, to the hours they had spent on the first day of trial and in preparation for federal mediation. Appellant maintains he did not intend to enter into a "global settlement" with Appellees. Rather, Appellant argues the only settlement that resulted from the agreed-upon verdict was with Attorney Giansante alone, and Appellant was not a party to that settlement. Appellant concludes his concise statement adequately preserved the issues he now raises on appeal.
Pennsylvania Rule of Appellate Procedure 501 provides:
Rule 501. Any Aggrieved Party May Appeal
Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.
Pa.R.A.P. 501. "A party is 'aggrieved' when the party has been adversely affected by the decision from which the appeal is taken." Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 700 (Pa.Super. 2000), appeal denied, 567 Pa. 715, 785 A.2d 90 (2001). Our Supreme Court has set forth the following guidelines to meet this requirement:Note: Whether or not a party is aggrieved by the action below is a substantive question determined by the effect of the action on the party, etc.
[I]n Pennsylvania, a party must be aggrieved in order to possess standing to pursue litigation. Aggrievability is obtained by having a substantial, direct, and immediate interest in proceedings or litigation. When the standards for substantiality, directness, and immediacy are readily met, the inquiry into aggrievability, and therefore standing, ends.Johnson v. American Standard , 607 Pa. 492, 516, 8 A.3d 318, 333 (2010).
"Ordinarily, a party who consents to, or acquiesces in, a judgment or order cannot appeal therefrom." Brown v. Com., Dept. of Health , 495 Pa. 456, 460, 434 A.2d 1179, 182 (1981). Where an order is entered pursuant to a stipulated agreement, however, appellate review is permitted if the order explicitly allows for an appeal or the record reveals the parties anticipated an appeal. Laird v. Clearfield & Mahoning Ry. Co., 591 Pa. 322, 916 A.2d 1091 (2007) (holding appellate review of pre-trial rulings following entry of stipulated order was not precluded where record revealed appellants expressed desire to preserve their appeal rights, during course of stipulation discussions). The conduct of the parties and the court, and the language of the order are used to determine whether the stipulated agreement envisioned further review. Id. See also Keystone Bldg. Corp. v. Lincoln Sav. And Loan Ass'n , 468 Pa. 85, 360 A.2d 191 (1976) (determining conduct of parties and language of consent decree showed parties had agreed to resolve only one issue in case and did not intend consent decree to be final determination of entire claim; parties preserved their right to litigate other issues).
Additionally, "[i]ssues not raised in the [trial] court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). "[I]ssues are preserved when objections are made timely to the error or offense." Commonwealth v. Baumhammers , 599 Pa. 1, 23, 960 A.2d 59, 73 (2008), cert. denied, 558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31 (2009). "[A] party may not remain silent and afterwards complain of matters which, if erroneous, the court would have corrected." Commonwealth v. Strunk , 953 A.2d 577, 579 (Pa.Super. 2008) (quoting Commonwealth v. Clair , 458 Pa. 418, 423, 326 A.2d 272, 274 (1974)). See e.g. Commonwealth v. Burns , 765 A.2d 1144 (Pa.Super. 2000), appeal denied, 566 Pa. 657, 782 A.2d 542 (2001) (holding appellant waived his argument regarding trial court's decision to strike prospective juror because appellant failed to object on record).
Furthermore, Rule 1925(b) requires that statements "concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(ii). "[I]ssues not included in the Statement and/or not raised in accordance with the provisions of [Rule 1925(b)(4)] are waived." Pa.R.A.P. 1925(b)(4)(vii); Majorsky v. Douglas , 58 A.3d 1250 (Pa.Super. 2012), appeal denied, 620 Pa. 732, 70 A.3d 811 (2013), cert. denied, 571 U.S. 1127, 134 S.Ct. 910, 187 L.Ed.2d 780 (2014).
Instantly, on November 14, 2017, the parties agreed on the record to a stipulated verdict of $6,750.00, to be paid by Appellees to Appellant and Attorney Giansante. All of the parties agreed to the preparation and filing of the stipulated judgment memorializing the verdict. Appellant, however, subsequently refused to sign the proposed stipulated judgment. As a result, Appellees filed a motion on September 21, 2018, to enter "judgment per the agreed-upon settlement" and to mark the case settled, discontinued, and ended. Attorney Giansante filed a memorandum in support of Appellees' motion, whereas Appellant did not respond or oppose the motion. On October 22, 2018, the court granted Appellees' motion as unopposed, entered judgment on the stipulated verdict, declared the respective rights of the parties to the action, and brought to a conclusion all causes of action. Notwithstanding that final judgment, on November 13, 2018, Appellant filed this appeal.
Initially, Appellant agreed on the record to the stipulated verdict. But when Appellees sought to reduce the stipulated verdict to judgment, Appellant refused to sign the stipulation. After Appellees filed a motion to enforce the stipulated or agreed-upon verdict, Appellant failed to object or oppose it. Neither the record nor the language of the order expressed Appellant's intent to appeal. To the contrary, the conduct of the parties and the court as well as the language of the court's order make clear the stipulated verdict and judgment contemplated no further review. Thus, Appellant's position fails the Laird rule and, under Pennsylvania law, he arguably is not an aggrieved party with standing to appeal that judgment. See Pa.R.A.P. 501; Laird , supra ; Brown , supra.
Additionally, Appellant arguably waived his right to appeal from the stipulated verdict/judgment because Appellant failed to put on the record any reservations about the verdict or his intent to appeal the judgment entered on the agreed-upon verdict. See Pa.R.A.P. 302(a); Strunk , supra. Appellant had the opportunity to object explicitly to the creation, content, and entry of the stipulated verdict; but he failed to do so. Appellant directs our attention to his statement on the record ( see N.T. Hearing, 11/14/17, at 3-4; R.R. at R. 129-30), but that statement is insufficient to show his agreement was qualified, his intent was to challenge the court's prior order of August 4, 2006, in an appeal, or his wish to preserve his appellate rights in any other respect. Thus, Appellant cannot now justifiably assert that he had agreed to the stipulated verdict as an "administrative gesture," solely for the purposes of a later appeal. See id.
Furthermore, Appellant failed to raise any challenge in his Rule 1925(b) statement to the parties' voluntary resolution of the case or to the court's October 22, 2018 order entering judgment per the agreed-upon verdict and concluding all causes of action. Instead, Appellant confines his dispute to the court's interpretation of the fee agreement. Appellant has therefore possibly waived any challenge related to the parties' stipulated verdict and the judgment entered on it. See Pa.R.A.P. 1925(b)(4)(vii); Majorsky , supra.
In Appellant's issues combined, he challenges the court's interpretation of the parties' 1996 fee agreement. According to Appellant, the fee agreement provided for Appellant and Attorney Giansante to recover both the one-third contingent fee based on the $40,800.00 monetary reward plus an hourly fee of $135.00/hour for every hour spent on the case between 2001 and 2004. Appellant maintains the attorneys were entitled to the hourly fees because their legal work done in preparation for trial, between 2001 and 2004, laid the foundation for Appellees to negotiate the non-monetary aspects of the settlement including sharing the costs of remediation. Appellant contends the trial court misinterpreted the fee agreement to allow only the one-third contingent fee of the $40,800.00 monetary reward, and a $135.00 hourly fee based on a limited number of hours spent working on mediation and the first day of trial. In doing so, Appellant avers the court failed to consider specific language contained in the verified complaint, as well as testimony regarding mediation discussions between Appellant and Mr. Flint, that showed the attorneys and Appellees sought both monetary and non-monetary relief from the beginning of the case. Alternatively, Appellant claims he has the right to quantum meruit.
Finally, assuming without deciding Appellant qualifies as an aggrieved party and properly preserved his issues per Rules 302 and 1925(b), we would affirm based on the trial court opinions. ( See Trial Court Opinion, filed August 7, 2006, at 17-29) (finding: 1996 fee agreement made clear Appellees owed Appellant and Attorney Giansante one-third of net recovery from damages action; if Appellant and Attorney Giansante failed to obtain monetary recovery, Appellees would not owe them any fees for services rendered in attempting to recover damages associated with property's contamination and its remediation, or for any other recovery sought in damages action; fee agreement plainly restricts hourly fees to time spent securing non-monetary relief; sole non-monetary relief obtained in this case was recovery from asbestos-litigation defendants some limited contributions to costs incurred going forward in completing environmental assessment; hourly legal fees attributable to other services provided by Appellant and Attorney Giansante are not compensable under paragraph 6 of fee agreement; Appellees paid their attorneys required contingent fee based upon settlement recovery of $40,800 as mandated by fee agreement; Appellant and Attorney Giansante are entitled to be paid for their legal services in securing asbestos-litigation defendants' indemnity payments in accordance with paragraph 6 of fee agreement). ( See also Supplemental Trial Court Opinion, filed January 10, 2019, at 2-5) (finding: on 11/14/17, parties agreed to settlement in form of stipulated judgment for $6,750.00, to be paid by Appellees to Appellant and Attorney Giansante; settlement was placed on record before court, and parties agreed to prepare and file stipulated judgment memorializing agreed-upon settlement; court subsequently entered judgment in sum of $6,750.00, based on settlement agreement of parties and ordered discontinuance of action as to all parties; notably, Appellant's Rule 1925(b) statement does not challenge trial court's entry of latter order). Accordingly, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/2/19
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