Kelly, C. v. Vennare, R. Appeal of: Jeselnik, A. ( 2016 )

J-A32010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CARLTON G. KELLY AND MARGARET M. IN THE SUPERIOR COURT OF
KELLY, HIS WIFE, INDIVIDUALLY AND PENNSYLVANIA
ON BEHALF OF PARADISE HILLS, L.L.C.,
AND PARADISE HILLS, L.L.C., A
PENNSYLVANIA LIMITED LIABILITY
COMPANY,
v.
ROBERT VENNARE AND PAMELA M.
VENNARE, HIS WIFE, AND HORSE N’
SOUL, INC., A PENNSYLVANIA
CORPORATION,
APPEAL OF: ANTHONY F. JESELNIK,
Appellant No. 2069 WDA 2014
Appeal from the Order December 9, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. No. 08-011997
BEFORE: SHOGAN, OTT, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 16, 2016
This is an appeal from an order denying the request for an attorney’s
charging lien filed by Appellant, Anthony F. Jeselnik, after he was discharged
and the underlying litigation settled. Appellant argues, inter alia, that the
trial court erred in requiring that he prove an express fee agreement with his
prior clients, rather than he just prove an agreement that he would look to
the fund created by the litigation for payment of his legal fee, in seeking a
charging lien. Precedent establishes that an attorney cannot recovery on a
contractual basis when discharged by a client. Angino & Rovner v. Lessin,
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___ A.3d ___, ___, 2016 PA Super 2 (Pa. Super. filed January 5, 2016). An
attorney’s only recovery is in equity. Accordingly, we hold that a discharged
attorney is not barred from seeking a charging lien simply because the
discharged attorney has failed to prove an express fee agreement, assuming
that he has proven that an attorney-client relationship existed and that there
was an agreement that the attorney look to the fund for payment. In this
case, the record demonstrates that an attorney-client relationship existed
and that the parties had agreed that Appellant would look to the fund
created by the litigation for payment. Accordingly, we vacate and remand
for further proceedings.
We summarize the facts and procedural history of this case as follows.
Appellant sought the lien against the fund created for the benefit of Carlton
and Margaret Kelly (“the Kellys”). The fund resulted from the settlement of
litigation between the Kellys, who Appellant represented over a seven-year
period, and Robert and Pamela Vennare (“the Vennares”).1 Appellant
alleged he represented the Kellys, who were close personal friends, from
May of 2006 until they discharged him in February of 2014. Deposition of
Appellant, 9/17/14, at 14, 18. The Kellys hired new counsel, settled their
case seven months later on August 21, 2014, and received an immediate
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1
The Vennares’ counsel, Richard P. Joseph, also sought a charging lien to
guarantee payment for legal services he provided to the Vennares. He has
withdrawn the appeal he filed in the instant case.
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payment of $296,263.47 from the escrow account, with additional monthly
gas royalties from Range Resources, Inc. Appellant asserted that his legal
fee was $381,120.00 for his work in excess of 2,000 hours on the case.
The trial court further described the underlying litigation as follows:
The legal services for which Mr. Jeselnik and Mr. Joseph
seek compensation were provided following the creation of a
partnership (Paradise Hills, L.L.C.) to purchase a horse farm.
Paradise Hills was organized by Mr. and Ms. Kelly and Mr.
and Ms. Vennare. The Kellys and the Vennares executed an
Operating Agreement, effective August 23, 2006, that governed
the affairs of Paradise Hills. Under the Operating Agreement,
Paradise Hills was authorized to issue 200 units. All 200 units
were issued as follows: 49 units to Mr. Vennare; 49 units to Ms.
Vennare; 51 units to Mr. Kelly; and 51 units to Ms. Kelly.
While the Kellys, apparently as a result of their 51% share,
served as the managers of Paradise Hills, the Operating
Agreement provided that the managers may act only upon a
75% or 100% vote. For example, Section 8.01(a) provides that
no amendments may be made that would reduce the ownership
interest of any member or that would reduce the member’s
rights to allocation and distributions without the consent of each
member adversely affected thereby. In other words, the Kellys,
as 51% owners, could not make important decisions; these
decisions required at least a 75% vote.
Paradise Hills purchased a farm located in Washington
County, Pennsylvania. The property contains significant gas and
oil reserves which are subject to a “Consent to Utilize” between
Paradise Hills and Range Resources. Shortly after the purchase
of the farm, Paradise Hills entered into a lease with Horse ‘N
Soul, Inc., a nonprofit corporation operated by the Vennares to
provide equine-assisted therapy to children with emotional and
developmental disorders.
Disputes between the Kellys and the Vennares with respect
to Paradise Hills began soon after the parties entered into the
Operating Agreement. The disputes appear to be over the
Vennares’ dissatisfaction with the way the Kellys were operating
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Paradise Hills, and disagreements relating to capital
contributions.
[U]nder the Operating Agreement, the Kellys owned 51% and
the Vennares 49% of Paradise Hills. During this litigation, both
the Kellys and the Vennares contended that, because of certain
events occurring after the execution of the Operating
Agreement, they were entitled to a greater ownership interest.
On several occasions, [the trial court] ruled that the ownership
interests would continue to be governed by the terms of the
Operating Agreement providing for the Kellys to own 51% and
the Vennares to own 49% of Paradise Hills.
* * *
[The Settlement] Agreement, generally based on a 51%-49%
ownership, provided:
(1) $293,750 will be distributed to the Kellys
from the escrow account and Paradise Hills, at the
direction of the four owners, will transfer to the
Kellys 60% of the Paradise Hills oil and gas rights;
and
(2) the balance in the Escrow Account shall be
distributed to Paradise Hills and the Kellys will assign
and transfer to Paradise Hills the Kellys’ membership
interest in Paradise Hills so that the Vennares are
now 100% owners of Paradise Hills which now owns
40% of all oil and gas rights.
Trial Court Opinion, 12/9/14, at 2–4.
As noted, the Kellys discharged Appellant in February 2014, hired new
counsel, and soon thereafter, settled the litigation. On July 11, 2014,
Appellant filed a notice of charging lien and motion for rule to show cause
why it should not be granted. Appellant asserts that the litigation between
the Vennares and the Kellys was “lengthy, intense, and multifaceted.”
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Appellant’s Brief at 10. While acknowledging that the Kellys, at times
throughout the years, retained other counsel, he maintains that he:
alone—prepared and filed substantially all pleadings; researched
and wrote all briefs and legal arguments; with the exception of
the Receiver’s deposition taken by co-counsel, John P. Vetica,
Jr., conducted all depositions and other discovery;
communicated with Range Resources and other third parties;
and made the many [c]ourt appearances necessitated by
Vennares’ litigation strategy.
Appellant’s Brief at 10. Appellant contends that the Kellys asserted that
their serious financial problems prevented them from paying him as legal
services were rendered.2 In fact, Appellant asserts that the Kellys stipulated
in the trial court that “(1) they do not have money, or sources of money,
other than the money they will receive from settlement of the Kelly-Vennare
Litigation, to pay [Appellant’s] legal fee; and (2) a substantial portion of the
settlement moneys to be paid [to the] Kellys will be used to pay taxes,
[other attorneys’] legal fees and other obligations unrelated to [Appellant’s]
legal fee.” Appellant’s Brief at 9.
The trial court denied Appellant’s imposition of a charging lien on
December 9, 2014, and Appellant filed a notice of appeal on December 17,
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2
Margaret Kelly testified that they were having severe financial difficulties
in 2010–2012. Kelly Deposition, 10/13/14, at 45–46. The trial court stated
that those financial difficulties arose in 2008–2010. Trial Court Opinion,
12/9/14, at 8–9. Regardless of when the financial strain began, Appellant
also represented the Kellys in their defense of execution proceedings by a
small business lender and PNC Bank, in addition to the Paradise Hills
litigation. Kelly Deposition, 10/13/14, at 47.
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2014. The trial court did not order the filing of a Pa.R.A.P. 1925(b)
statement, and none was filed.
Appellant raises the following issues for our review:
1. Did the Trial Court disregard and misapply the Recht
requirement of an agreement that an attorney look to the
fund for compensation?
2. Did the Trial Court disregard quantum meruit principles,
and their application to an Attorney’s Charging Lien?
3. Did the Trial Court disregard uncontroverted evidence of
Kellys’ agreement to compensate Jeselnik from the fund?
4. Did the Trial Court disregard law and evidence in finding
that there was no fee agreement between the parties?
Appellant’s Brief at 7. Issues one, three, and four are inter-related, and we
address them together initially.
“The right of an attorney to a charging lien upon a fund in court or
otherwise applicable for distribution on equitable principles, which his
services primarily aided in producing and to which, by agreement with his
client, he is to look for compensation, has long been recognized . . . .”
Brandywine Sav. & Loan Ass’n v. Redevelopment Auth. of Chester
Cnty., 514 A.2d 673, 674 (Pa. Cmwlth. 1986) (quoting Harris’s Appeal,
186 A. 92, 94–95 (Pa. 1936))(emphasis in original).
As a matter of law, Pennsylvania courts recognize the right of a
lawyer to an attorney’s lien. Pennsylvania law recognizes two
kinds of attorneys’ liens: a charging lien and a retaining lien.
Charging liens are divided into two sub-categories: equitable
charging liens and legal charging liens. An equitable charging
lien gives a lawyer a right to be paid out of a fund in the control
or possession of the court, which fund resulted from the skill and
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labor of the lawyer. Such payment may be applied only to the
services provided in a particular case. A legal charging lien
applies to funds of a client in the lawyer’s possession which may
be applied to all outstanding debts of the client owed to the
lawyer. A retaining lien permits a lawyer to retain money,
papers or other property in the lawyer’s possession to secure
payment of costs and fees from the client.
Ethical Considerations in Attorneys’ Liens, PA Eth. Op. 2006-300 (PBA), 2006
WL 4590880, at 1 (footnotes omitted).
Appellant’s issues relate to the trial court’s exercise of its equitable
powers, and therefore, we will not disturb the trial court’s denial of
Appellant’s statement of claim absent a misapplication of the law or a clear
abuse of discretion by the trial court. Boatin v. Miller, 955 A.2d 424, 427
(Pa. Super. 2007); see also In re Estate of Cherwinski, 856 A.2d 165,
167 (Pa. Super. 2004). An abuse of discretion exists where the trial court’s
determination overrides or misapplies the law, its judgment is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will. Majczyk
v. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001). If a decision is based on
“findings which are without factual support in the record, however, the
reviewing court will not hesitate to reverse.” Lilly v. Markvan, 763 A.2d
370, 372 (Pa. 2000) (citing Bortz v. Noon, 729 A.2d 555, 559 (Pa. 1999)).
The trial court initially stated that the Kellys acknowledged and agreed
that Appellant would be compensated for his services and that payment
would come from the portion of the assets of Paradise Hills ultimately
awarded to the Kellys as a result of Appellant’s efforts in the litigation. Trial
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Court Opinion, 12/9/14, at 7. The trial court denied Appellant’s request,
however, because it concluded that there was never an express fee
agreement between Appellant and the Kellys.3 Id. at 13.
The trial court explained that when Appellant learned in 2006 that the
Kellys were considering the purchase of a horse farm with the Vennares, he
assisted the Kellys on a pro bono basis with regard to the formation of the
entity, which was Paradise Hills, that would purchase the horse farm. Trial
Court Opinion, 12/9/14, at 7. Thereafter, Paradise Hills was formed, the
Kellys and the Vennares executed an operating agreement, and Paradise
Hills purchased the horse farm. Id. The trial court stated that Appellant
and the Kellys recognized that the nature of Appellant’s representation
would no longer be pro bono, and in December 2006, Margaret Kelly
(“Margaret”), sent an email to Appellant stating that she wanted to
compensate him for his services. Id. at 8. The trial court maintained that
Appellant “failed to follow up with a proposed written fee agreement.” Id.The trial court referenced a number of emails in the record and
ultimately found that because there was never an express fee agreement
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3
The trial court appears to have based this conclusion on its review of
deposition transcripts and attached exhibits. See Trial Court Opinion,
12/9/14. Furthermore, it apparently considered only whether there was an
express written fee agreement. Id. at 13 n.4. (“Because the parties never
entered into an agreement, I need not decide whether a court will consider
the claim of an oral contingent fee agreement. See Rule 1.5 (c) of the Rules
of Professional Conduct.”).
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between the Kellys and Appellant, Appellant had not met the requirements
for the imposition of a charging lien. In the absence of any express fee
agreement, the trial court did not consider whether Appellant met the other
requirements for imposing a charging lien. Trial Court Opinion, 12/9/14, at
13.
Recht v. Urban Development Authority of Clairton, 168 A.2d 134(Pa. 1961), is the seminal case discussing the requirements of an attorney’s
charging lien, while McKelvy’s and Sterrett’s Appeals, 108 Pa. 615(1885), is the landmark decision on the subject. In Recht, our Supreme
Court summarized the five conditions which must be met before a charging
lien will be recognized and applied, as follows:
[B]efore a charging lien will be recognized and applied, it must
appear (1) that there is a fund in court or otherwise applicable
for distribution on equitable principles, (2) that the services of
the attorney operated substantially or primarily to secure the
fund out of which he seeks to be paid, (3) that it was agreed
that counsel look to the fund rather than the client for his
compensation, (4) that the lien claimed is limited to costs, fees
or other disbursements incurred in the litigation by which the
fund was raised, and (5) that there are equitable considerations
which necessitate the recognition and application of the charging
lien.
Recht, 168 A.2d at 138–139; see also Shenango Systems Solutions,
Inc. v. Micros-Systems, Inc., 887 A.2d 772, 774 (Pa. Super 2005). The
imposition of a charging lien is based upon the interest of the courts “in
protecting attorneys, as its own officers,” and in assuring that a party “not
run away with the fruits [of a lawsuit] without satisfying the legal demands
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of the attorney by whose industry those fruits were obtained.” Johnson v.
Stein, 385 A.2d 514 (Pa. Super. 1978) (quoting Harris’s Appeal, 186 A. at
95).
Appellant admits there was not “an expressed written agreement”
signed by Appellant and the Kellys. Appellant’s Deposition, 9/17/14, at 19–
20; Appellant’s Brief at 11. Rather, he maintains that there was an
agreement “confirmed in e-mail communications.” Appellant’s Deposition,
9/17/14, at 20. He asserts that the trial court’s sole rationale for denying
the charging lien was the absence of an express fee agreement between
Appellant and the Kellys. Appellant contends that an express fee agreement
is not a requirement of Recht, and therefore, it is irrelevant to a proper
analysis of the Kellys’ agreement to compensate Appellant from the fund
created by the Paradise Hills litigation. Appellant maintains that the trial
court imposed a wholly irrelevant standard in analyzing only the existence or
absence of a signed express fee agreement, and it erred in failing to
evaluate all five conditions set forth in Recht. Appellant’s Brief at 18, 20,
22. We agree.
Appellant contends that the trial court’s factual analysis, relating only
to whether there was an express fee agreement, was irrelevant and
misplaced because there was no consideration of any fact relating to the
Kellys’ agreement that Appellant would “look to the fund” for his
compensation. Appellant’s Brief at 28. He suggests that the Kellys
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undeniably recognized their obligation to compensate him, and they agreed
to pay him from the litigation fund. In support, Appellant cites to emails and
testimony at Margaret Kelly’s deposition. Id. at 29–32.
The Kellys respond that the record is devoid of any evidence that they
agreed to pay Appellant from any particular source or fund. Rather, they
maintain there were discussions and “general expressions of a desire to pay
[Appellant] something.” The Kellys’ Brief at 18 (emphasis in original). They
aver that there was never an agreement as to how the fees would be paid or
the source of their payment.
The Kellys rely on Feingold v. Pucello, 654 A.2d 1093 (Pa. Super.
1995),4 claiming it stands for the proposition that “Pennsylvania courts will
no longer award fees in equity where there is no written fee agreement.”
The Kellys’ Brief at 30. In that case, the defendant was involved in a motor
vehicle accident on February 2, 1979. A mutual friend referred Attorney
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4
Feingold is a plurality opinion. A plurality opinion is not binding
precedent. Shinal v. Toms, 122 A.3d 1066, 1076 (Pa. Super. 2015). The
Feingold panel opinion was not joined by either of the other two judges
without reservation; both judges concurred in the result, and one of the two
also filed a concurring opinion suggesting that Mr. Feingold failed to make
out a claim in quasi-contract that would entitle him to relief. As we
reiterated in MacPherson v. Magee Memorial Hosp. for Convalescence,
2015 PA Super 248 (Pa. Super. Ct. Nov. 25, 2015), “[O]ur Supreme Court
has explained: ‘While the ultimate order of a plurality opinion; i.e. an
affirmance or reversal, is binding on the parties in that particular case, legal
conclusions and/or reasoning employed by a plurality certainly do
not constitute binding authority.’” Id. at *11 (emphasis in original)
(quoting Shinal, 122 A.3d at 1076) (citing In Interest of O.A., 717 A.2d
490, 495–96 n.4 (Pa. 1998)).
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Feingold to the defendant, and the attorney telephoned the defendant that
evening. The next day, Mr. Feingold arranged a doctor’s appointment for
the defendant, and the two men discussed Mr. Feingold’s legal
representation of the defendant via telephone. Fee arrangements were not
discussed. Over the course of the ensuing month, Mr. Feingold inspected
the accident site, took photographs, and obtained an admission of liability
from the other driver. A few weeks later, toward the end of February, Mr.
Feingold mailed the defendant a formal contingency fee agreement
consisting of a fifty–fifty split of the recovery after costs. The defendant
“balked at the high fee, and found other counsel,” and told Mr. Feingold to
keep any photographs, reports, and admissions. Feingold, 654 A.2d at
1094. Mr. Feingold never forwarded the file. One year later, Mr. Feingold
sued the defendant in quantum meruit. A board of arbitrators found in favor
of the defendant. Mr. Feingold appealed, and following a bench trial, the
trial court found “that while Feingold might have had a quantum meruit
claim if [the defendant] retained him and then fired him midway through the
case, here the parties never even entered into an attorney-client
relationship.” Id. Thus, the trial court found for the defendant, and Mr.
Feingold appealed to this Court.
On appeal, Mr. Feingold argued that the defendant orally agreed to the
representation; thus, despite the absence of a signed written fee agreement,
he asserted that he was entitled to be paid for the work he did. This Court
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noted therein that quantum meruit is an equitable remedy and determined
that Attorney Feingold had unclean hands for failing to secure a written fee
agreement, which is a violation of the Rules of Professional Responsibility,
and counsel proceeded at his own risk. In dicta, this Court opined that Mr.
Feingold’s claim would more properly lie against the defendant’s attorney,
“who testified that he still could have won the case without Feingold’s
preliminary work.” Feingold, 654 A.2d at 1095. Compare Meyer,
Darragh, Buckler, Bebenek, and Eck v. Law Firm of Malone
Middleman, 95 A.3d 893 (Pa. Super. 2014) (claim for quantum meruit
cannot be maintained by a former attorney against a subsequent attorney),
petition for allowance of appeal granted, 113 A.3d 277 (Pa. April 13, 2015).
This Court also labeled Mr. Feingold’s proposed fee as “breathtakingly high”
that struck the trial court as “unethical.” Feingold, 654 A.2d at 1094.
We believe Feingold is distinguishable from the instant case, as well
as not being binding precedent. It was clear in Feingold that the defendant
rejected outright any representation by Mr. Feingold; indeed, the Court
found that there was never an attorney-client relationship. Moreover,
therein, Mr. Feingold undertook it upon himself to investigate the
defendant’s claim for a period of three to four weeks, at which time the
defendant made it clear that he was not interested in Mr. Feingold’s
representation. Conversely, herein, the Kellys relied upon Appellant’s
representation for seven years, all the while assuring him that he would be
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paid. Further, regarding Feingold’s commentary on oral contingency
agreements, we note that “where the existence of a contract for a
[contingent fee] is established, and the testimony establishes that it is
reasonable, it will be upheld, even though verbal.” Silverstein v. Hornick,
153 A.2d 734, 737 (Pa. 1954); see also Novinger v. E.I. Du Pont de
Nemours & Co., 809 F.2d 212, 218 (3d Cir. 1987) (stating “although
Pennsylvania Civil Procedure Rule 202[5] requires that contingent fee
agreements be in writing, the absence of such a writing does not make oral
contingent fee agreements unenforceable.”).
In the case sub judice, we agree with Appellant that the certified
record is replete with promises by the Kellys that they would compensate
Appellant from the money they received upon the conclusion of the Paradise
Hills litigation. Consistent with the Kellys’ response, the record also reveals
repeated requests by the Kellys for a formal written fee agreement. At
Margaret’s deposition on October 13, 2014, Appellant produced multiple
emails between Appellant and Margaret that reflect on the issue. As far
back as December 4, 2006, Margaret sent Appellant an email apologizing
that “this [matter] has turned into what it has—but know that Carl and I
want to compensate you for your legal advi[c]e.” Kelly Deposition,
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5
Pa.R.C.P. 202 was rescinded on April 4, 1990, effective July 1, 1990. The
1990 explanatory comment stated that contingent fee agreements “are
regulated by several provisions of the new Rules of Professional Conduct.”
Id., cmt. See, e.g., Pa.R.P.C. 1.5(c) (contingent fee shall be in writing).
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10/13/14, at 10–11; Exh. 4. On February 18, 2009, an exchange of emails
between Appellant and Margaret contained Appellant’s assurance, “I agree
that we must talk about fees, bases, structure, timing, etc. We will do so,
without fail, in early March. . . . I have every confidence they will come, if
not from the V[ennares], from [Paradise Hills] assets upon liquidation or
division.” Kelly Deposition, 10/13/14, at 13; Exh. 4. Margaret replied, inter
alia, “You, of course, are the right person for representing us.” Id. A
February 27, 2009 email from Margaret to Appellant posits, “Also, we do
want to get fees squared away.” Id. at 16.
While the Paradise Hills litigation was proceeding, Appellant also
represented the Kellys regarding their creditors. Appellant negotiated with
the creditors and prepared a financial statement dated August 6, 2010. Trial
Court Opinion, 12/9/14, at 9; Kelly Deposition, 10/13/14, at 100; Exh. 4.
Attachment 1 to the financial statement states as follows:
In the litigation related to Paradise Hills, L.L.C., Paradise Hills
and Margaret and Carlton Kelly are being represented by
attorney, Tony Jeselnik (“Jeselnik”), on contingency basis. The
case is Kelly and Paradise Hills, L.L.C. v. Vennare and Horse’N
Soul, Inc., at G.D. No. 08-11997 . . . . Jeselnik will receive 40
percent of the value of Paradise Hills realized by Kellys.
Kelly Deposition, 10/13/14, at 101; Exh. 4. Margaret initially claimed
uncertainty whether she reviewed the statement before it was sent, id. at
101, but she admitted that she signed the financial statement. Id. at 102.
That document contained an “Offer in Compromise” which made a further
reference to Appellant’s fee, as follows: “In the event that the Paradise Hills
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litigation concludes successfully, i.e., the Paradise Hills property and gas
rights are determined to have value for the Kellys, any money representing
Kellys’ net interest in the value of Paradise Hills, subject to taxes and
Jeselnik’s percentage contingency, will be paid . . . .” Kelly Deposition,
10/13/14, at 105; Exh. 4. Margaret then admitted that she was “aware of
that information being provided to the bank when [she] signed the Offer of
Compromise.” Id. at 105–106.
In an email from Margaret to Appellant, also dated August 6, 2010,
Margaret stated the following: “Re: attorney fees. I would like to negotiate
your fees to 35% up to $400,000, then 25% up to $500,000 or perhaps
there is a percentage in perpetuity.” Kelly Deposition, 10/13/14, at 19; Exh.
GG. Margaret testified that the fees would be a percentage “of whatever
recovery there was of Paradise Hills.” Id. at 19. At Margaret’s deposition,
when Appellant asked, “[T]ell me please, what this 35 percent is of?”,
Margaret explained, “It would be net recovery. So, if we recovered
$500,000, I would deduct all the expenses that I incurred through the case
and investment in Paradise Hills, and any expenses.” Id. at 21. Margaret
testified that while the financial document indicated Appellant’s forty percent
fee, she denied ever agreeing, other than signing the document, to such a
fee. Id. at 103. Thus, she admitted seeing and signing the document
referencing the forty percent fee, but denied ever agreeing to that
percentage. Id.
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In an August 27, 2013 email, Margaret thanked Appellant for all of his
work and reminded him that “we need a formal agreement with respect to
your fee.” Kelly Deposition, 10/13/14, at Exh G. Appellant responded the
next day that he would send a proposed fee schedule “in the next couple of
days.” Id. at Exh H. Emails between the parties over the next couple of
months referred, inter alia, both to the Kellys’ acknowledgment that they
owed money to Appellant and their requests and frustration that a formal
written agreement was not forthcoming. Id. at Exh K, L, M. Appellant
presented an email from Margaret to Appellant dated December 1, 2013.
Kelly Deposition, 10/13/14, at 27; Exh. 4. Margaret acknowledged that the
Kellys’ and Appellant’s relationship was one of “attorney-client.” Id. at 28,
39. Margaret admitted that Appellant continued to represent the Kellys but
was not paid for his services. Id. at 47. Also in the December 1st email,
Margaret wrote to Appellant, “I realize that we owe you an amount of
money, to be determined by the outcome of this case. At this point,
Carl and I cannot possibly calculate the amount.” Id. (emphasis added). At
the deposition, Appellant inquired, “The outcome of the case to which you
refer here, is . . . the Paradise Hills litigation?” Margaret responded, “Yes.”
Id. at 48.
On December 4, 2013, Margaret sent Appellant an email stating, inter
alia, “[Y]ou have done a lot of work and we appreciate that. You will be
compensated.” Kelly Deposition, 10/13/14, at 64, 71; Exh. O. Margaret
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admitted that “we would pay you [Appellant] based on the recovery of
Paradise Hills.” Id. at 71. On December 9, 2013, Margaret wrote to
Appellant, stating, inter alia, “Again, we owe you a fee, to be determined by
the outcome of the case.” Id. at 72. Margaret admitted at her deposition
that the case reference “is the same Paradise Hills case that we’ve been
talking about.” Id. at 72.
On January 16, 2014, via email, Margaret advised, “Carl and I will
compensate you.” Kelly Deposition, 10/13/14, at 724; Exh. 4. On January
29, 2014, Margaret stated in an email, “You have put a hell of a lot of work
into this case and your briefs against Dick’s ridiculous claims have been very
well written.” Id. at 74–75. She added, “We still need to come to an
agreement as to your compensation. As I have said earlier, your proposal of
40% of everything, forever, and without deduction is unacceptable. Id.
Eventually, on February 2, 2014, Margaret instructed Appellant to
“withdraw your appearance in this case immediately . . . .” Kelly Deposition,
10/13/14, at 77; Exh. 4. In the same email, she assured Appellant, “We will
compensate you for your time as a percentage of what we receive up to a
maximum dollar amount.” Id.
We note the following exchange between Margaret and Appellant:
Appellant: Is it fair to characterize the [Paradise Hills] litigation
as intense and constant?
Margaret: Intense. . . .
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Appellant: You had described, Meg, receiving advice from Pam
Leyden, Donald Lund, John Vetica, and now Louise Vuono
Schrage. Were there any other attorneys besides those three
persons and me who have you advice [sic] in the course of this
litigation?
Margaret: No.
Appellant: You paid all those attorneys for their time and
consultation?
Margaret: Yes.
* * *
Appellant: Is it fair to say, given the docket entries and this
litigation, in retrospect, that I was the one that was doing the
bulk of the work, doing the actual litigation on your behalf and
Carl’s behalf?
Margaret: Yes.
Kelly Deposition, 10/13/14, at 130–131, 134.
The record undeniably reflects an attorney-client relationship between
Appellant and the Kellys. Without doubt, there was an agreement by the
Kellys to pay Appellant. In light of the myriad emails confirming it, in
combination with the financial documents the Kellys signed, the Kellys
obviously agreed to pay Appellant from the settlement of the Paradise Hills
litigation, even though the parties did not agree on the percentage.
Moreover, the evidentiary value of the financial statement documents
containing two references to Appellant’s forty percent fee cannot be
dismissed, even though we do not find that the parties agreed to the specific
fee. The trial court opined that there is not credible evidence to support a
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finding that the contents of the attachment were approved by the Kellys.
Trial Court Opinion, 12/9/14, at 12. The record does not support that
conclusion. Margaret Kelly signed the documents and admitted that the
documents stated Appellant’s potential recovery of forty percent. Kelly
Deposition, 10/13/14, at 105–106. While she thereafter sent Appellant the
August 6, 2010 email attempting to negotiate down the percentage, that
fact does not negate support for her prior approval of the document, as
evidenced by her signature on the financial attachment and her admission at
her deposition that she “apparently” was aware of the representation that
Appellant’s fee was forty percent when she signed the documents. Id. at
105. At the same time, the documents as evidence of the existence of an
agreed-upon fee percentage was called into question by Margaret’s follow-up
email suggesting a lower, graduated fee percentage.
In light of this record, particularly the length of time Appellant
represented the Kellys at their request and acquiescence, and the procedural
posture of this case, we are loathe to agree with the trial court’s conclusion
that the lack of a formal written fee agreement precludes Appellant’s
assertion of a charging lien and eventual recovery in quantum meruit.
Moreover, as noted supra, Feingold, cited by the Kellys, is inapposite,
where Attorney Feingold admitted there was no agreement by the client for
Feingold to even represent his interest, the attorney undertook responsibility
on his own to investigate the case over a mere three-week period without
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such attorney-client relationship, the client obtained other counsel upon
learning of Feingold’s requested fifty-percent contingent fee, Feingold never
forwarded the file, and Feingold sued in quantum meruit one year later.
Feingold, 654 A.2d 1093.
Appellant’s provision of legal services to the Kellys for seven years
without payment despite their repeated assurances that he would be paid
upon settlement, and from the settlement of the Paradise Hills litigation, is
profound evidence. The Kellys’ actions created and sustained a client
relationship with Appellant and manifested the Kellys’ intent to accept
Appellant’s services and to compensate him for those services from the
settlement fund. Their signature on the financial documents attested to an
agreement that Appellant would be compensated from the settlement fund.
The record thus demonstrates that Appellant and the Kellys agreed that
Appellant would look to the Paradise Hills settlement for his fee, and
Appellant’s continued representation over the seven-year period at the
Kellys’ request justified this claim. We recognize that at the same time, the
Kellys repeatedly requested Appellant to provide a formal written fee
agreement, which he shamefully failed to provide. However, this is an issue
for the court to consider when addressing the remaining Recht factors.
We proceed to consider Appellant’s second issue. Because the Kellys
discharged Appellant before the Paradise Hills litigation was settled,
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Appellant’s exclusive right to compensation is implied in the law and is
governed by quantum meruit principles.
“[U]nder Pennsylvania law, a client has the absolute right to
terminate an attorney-client relationship, regardless of any
contractual arrangement between the two parties.” Kenis v.
Perini Corp., 682 A.2d 845, 849 (Pa. Super. 1996); see
Pa.R.P.C. 1.16 cmt. 4 (“A client has a right to [terminate] a
lawyer at any time, with or without cause, subject to liability for
payment for the lawyer’s services.”). Upon a client’s termination
of an attorney-client relationship prior to the occurrence of the
contingency set forth in a fee agreement, the client is not
relieved of his or her obligation to compensate the attorney for
services rendered until the time of termination. In such
situations, the terminated attorney generally has a claim in
quantum meruit to recover his fees. See [Hiscott & Robinson
v. King], 626 A.2d [1235] at 1237 [(Pa. Super. 1993) (noting
the contingency contemplated in the agreement was not
satisfied). “Quantum meruit is an equitable remedy, which is
defined as ‘as much as deserved’ and measures compensation
under an implied contract to pay compensation as reasonable
value of services rendered.” Meyer, Darragh, Buckler,
Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman,
PC, 95 A.3d 893, 896 (Pa. Super. 2014) (citation omitted),
appeal granted, 113 A.3d 277 (Pa. 2015).
Angino & Rovner v. Lessin, ___ A.3d at ___, 2016 PA Super 2 at *4 (slip
op. at 10). “A client may terminate his relation with an attorney at any
time, notwithstanding a contract for fees, but if he does so, thus making
performance of the contract impossible, the attorney is not deprived of his
right to recover on a quantum meruit a proper amount for the services which
he has rendered.” Mager v. Bultena, 797 A.2d 948, 956 (Pa. Super. 2002)
(quoting Sundheim v. Beaver Cty. Bldg. & Loan Ass’n, 14 A.2d 349, 351
(1940)); accord Dorsett v. Hughes, 509 A.2d 369, 371 (Pa. Super. 1986).
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The equitable doctrine of quantum meruit involves a class of
obligations imposed by law, regardless of the intention or assent
of the parties for reasons dictated by justice and is based on the
concept that no one who benefits by the labor and materials of
another should be unjustly enriched thereby. To avoid such
unjust enrichment, the law implies a promise to pay a
reasonable amount for the labor and materials furnished, even
absent a specific contract therefor.
Bednar v. Marino, 646 A.2d 573, 578 (1994); see also Ragnar Benson,
Inc. v. Bethel Mart Associates, 454 A.2d 599, 603 (Pa. Super. 1982)
(“Quantum meruit is a remedy based in payment for services rendered and
prevention of unjust enrichment; the ‘contract’ is one ‘implied in law’ and not
an actual contract at all.”).
“It is well established that a ‘court of equity has jurisdiction and, in
furtherance of justice, will afford relief it the statutory or legal remedy is
inadequate, or it equitable relief is necessary [as here] to prevent
irreparable harm.” Vautar v. First National Bank of PA, ___ A.3d ___,
2016 PA Super 5 (Pa. Super. filed January 6, 2016) (en banc) (slip op. at
10). Clearly, Appellant cannot recover on a contractual basis in this case.
Angino & Rovner, ___ A.3d ___, 2016 PA Super 2. It follows that he
cannot rely upon an express fee agreement to establish the amount of the
charging lien, which is designed to protect his fee. Appellant’s claim is in
quantum meruit, which is the only basis upon which Appellant can recover.
Id. Therefore, we agree with Appellant that the trial court’s ruling herein
disregards Appellant’s implied-in-law fee claim. Appellant’s Brief at 25.
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Thus, we harken back to the Recht factors that the trial court was
compelled to consider. We have concluded that the lack of an express fee
agreement does not preclude the imposition of a charging lien where an
attorney is discharged. We agree with Appellant that having been
terminated and effectively rescinded by Kellys’ action, a fee agreement—
whether express or implied—is of no effect and thus not determinative of his
charging-lien claim. Appellant’s Brief at 15. Given that the record
establishes that the Kellys and Appellant entered into an attorney-client
relationship and agreed that Appellant would look to the fund for his
compensation, we thus remand to the trial court to consider the remaining
Recht factors.
The order of December 9, 2014, is vacated; case remanded for
proceedings consistent with this Memorandum. Jurisdiction is relinquished.
Judge Stabile Concurs in the Result.
Judge Ott files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
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