Johnstone, D. v. Johnstone, R. ( 2017 )

J-A19004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONNA JOHNSTONE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT JOHNSTONE,
Appellee No. 3513 EDA 2016
Appeal from the Order Entered October 11, 2016
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2011-009184
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 26, 2017
Donna Johnstone (Appellant) appeals from the October 11, 2016 order
granting Robert Johnstone’s (Appellee) motion for supplemental award of
attorney fees and costs and entering judgment in Appellee’s favor in the sum
of $59,564.10. After review, we affirm.
The parties were married in 1994 and were divorced in December of
2009. Their divorce decree incorporated an initial property settlement
agreement (PSA) and a supplemental PSA. In 2011, Appellant filed suit
against Appellee alleging breach of contract and fraud in the inducement,
based on her allegations that Appellee had failed to disclose assets.
Appellee counterclaimed and requested an award of attorney fees, based on
a breach of a confidentiality agreement and a non-disclosure agreement that
the parties had entered. In January of 2014, the trial court granted the
J-A19004-17
motion for summary judgment in Appellee’s favor. After a hearing was held,
the court awarded attorney fees to Appellee. Appellant’s appeal to this
Court and the refusal by the Supreme Court to hear the case resulted in an
affirmance of the trial court’s decision. See Johnstone v. Johnstone, 134
A.3d 493 (Pa. Super. 2015) (unpublished memorandum) (Johnstone I),
appeal denied, 145 A.3d 727 (Pa. 2016).
On September 27, 2016, Appellee filed the supplemental motion for
attorney fees that is now at issue before this Court. Essentially, Appellee’s
supplemental motion requested reimbursement for the sums expended since
the original, October 2014 award. Following the submission of Appellant’s
timely filed answer, the trial court awarded the requested supplemental
attorney fees and costs to Appellee.
Appellant filed the instant appeal, raising one issue for our review:
Where a litigant is seeking an award of counsel fees from
another party to litigation, is there a constitutional right to due
process including an opportunity for a hearing?
Appellant’s brief at 4.1
____________________________________________
1 During the pendency of this appeal, Mark R. Ashton, Esq., the attorney for
Appellant, filed a motion to withdraw as counsel. In light of this Court’s
decision in this matter, we conclude that Attorney Ashton’s request is moot
and is in essence granted. Additionally, Thomas P. Gannon, Esq., co-counsel
for Appellant, filed a motion to dismiss the appeal and reverse judgment.
That motion appears to assert that several open motions were pending
before the trial court at the time it entered final judgment. We deny that
motion, concluding Appellant has waived any issue regarding such open
motions before the trial court by failing to raise that issue in this appeal.
See Appellant’s Pa.R.A.P. 1925(b) Statement of Errors Complained of on
(Footnote Continued Next Page)
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As noted in Johnstone I, an award of attorney fees and costs are
reviewed for an abuse of discretion. See Busse v. Busse, 921 A.2d 1248,
1258 (Pa. Super. 2007). We have reviewed the extensive certified record,
the briefs of the parties, the applicable law, and the thorough opinion
authored by the Honorable Charles B. Burr, II, of the Court of Common Pleas
of Delaware County, dated March 10, 2017. We conclude that Judge Burr’s
well-reasoned opinion accurately disposes of the issue presented by
Appellant and we discern no abuse of discretion. Accordingly, we adopt
Judge Burr’s opinion as our own for purposes of appellate review and affirm
the order from which this appeal arose.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2017
(Footnote Continued) _______________________
Appeal (stating only that “[t]he [c]ourt erred in making an award of
attorneys’ fees where the award was contested without a hearing on the
matter and where the reasonableness of a counsel fee application is a
judicial responsibility[]”). See also Balicki v. Balicki, 4 A.3d 654, 661 (Pa.
Super. 2010) (stating, issue waived for failure to raise it in Pa.R.A.P.
1925(b) statement).
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Circulated 10/02/2017 09:47 AM