Strait, K. v. Schilling, C.

J-S66017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHERINE M. STRAIT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CRAIG SCHILLING, :
:
Appellant : No. 263 MDA 2014
Appeal from the Order Entered January 31, 2014,
In the Court of Common Pleas of Cumberland County,
Domestic Relations Division, at No. 00669 S 2002 and
PACSES No. 639104710.
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 17, 2014
Appellant, Craig Schilling (“Schilling”), appeals pro se from the order
entered on January 31, 2014, in the Cumberland County Court of Common
Pleas that granted the petition to enforce an award of attorney’s fees filed by
the appellee, Katherine M. Strait (“Strait”).1 We affirm.
The relevant facts and procedural history of this matter were set forth
by the trial court in its opinion as follows:
The Pennsylvania Superior Court correctly referred to this
matter as a “long and tortured case” in a memorandum opinion
filed January 3, 2007.2 Since 2007, this case has only become
longer and more tortured as the parties continue to litigate over
child support. In fact, Strait and Schilling have been engaged in
continuous litigation over support for their one child since 2002.
1
Katherine M. Strait was formerly known as Katherine M. Johnson and
Katherine M. Wetzel.
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2
See In Re: Opinion Pursuant to Rule 1925, p. 1,
filed July 20, 2007; [Johnson v. Schilling, 1452
MDA 2005, 919 A.2d 982 (unpublished
memorandum) (Pa. Super. filed January 03, 2007)].
For the relevant facts to this appeal, we must go back to
2007. Specifically, the Pennsylvania Superior Court in [a]
memorandum opinion dated January 3, 2007, (No. 1452 MDA
2005) granted [Strait’s] Petition for Counsel Fees and remanded
the case back to the lower court for a determination of the
amount of legal fees owed by [Schilling]. Accordingly, a hearing
was held before the Honorable Kevin A. Hess, to determine the
amount of attorney’s fees [Schilling] owed to [Strait] for the
period of July 27, 2005, until January 2007.3 During that time
frame in June 2005, [Schilling] appealed the denial of his
exceptions in the support case to the Superior Court.4 In July
2005, [Schilling] petitioned this Court for a retroactive
modification of the support order, which he also appealed to the
Superior Court after it was denied. It was for this second appeal
that [Strait] was entitled to attorney’s fees.5 On April 16, 2007,
President Judge Hess ordered that [Schilling] pay $4,000 in
attorney’s fees to [Strait].6 [Schilling] then appealed that Order
to the Superior Court.
3
See Order of Court, filed Jan. 17, 2007; see also
Notes of Testimony, in Re: Transcript of Proceedings,
March 27, 2007, 2, filed Jun 15, 2007 (hereinafter
N.T. 2007 at ).
4
N.T. 2007 at 3[.]
5
N.T. 2007 at 3[.]
6
Order of Court, In Re: Attorney’s Fees, filed April
16, 2007[.]
Around the same time that this Court was determining the
attorney’s fees, [Strait] filed a Petition for Modification of an
Existing Support Order on April 5, 2007. Following a hearing
before the Support Master, it was determined [Schilling] earned
less than [Strait] and could not have a support obligation
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entered against him. The previous support order was vacated
and neither party owed future support to the other.7 [Schilling],
however, was still responsible for arrears. [Strait] filed
exceptions on September 18, 2007, and Schilling filed exceptions
on October 8, 2007.
7
See Interim Order of Court and Support Master’s
Report and Recommendation, filed Aug. 28, 2007[.]
At this time, the parties attempted to come to an
agreement regarding the exceptions and the 2007 Attorney’s
Fees Order, which was on appeal to the Superior Court.8 [Strait]
admitted that after the death of her son in 2007, she considered
waiving the 2007 Attorney’s Fees Order after [Schilling]
approached her about settling the whole matter.9 In fact, [Strait]
had her attorney, Bradley L. Griffie, Esquire, prepare a formal
document to dispose of all pending legal matters, including the
2007 Attorney’s Fees Order. While [Strait] did sign the
document,10 [Schilling] refused to sign.11 [Schilling] informed
[Strait] that he was going to prepare a document himself for the
parties to sign in order to waive the 2007 Attorney’s Fees Order
and dispose of the other outstanding legal matters. However,
[Schilling] never prepared any such document.12 After
negotiations ended, [Strait] felt that neither party was going to
do anything about the 2007 Attorney’s Fees Order, but that it
was there if she ever needed to pursue it.13
8
Notes of Testimony In Re: Hearing on Attorney’s
Fees, II, Dec. 18, 2013 (hereinafter N.T. 2013 at
__)[.]
9
N.T. 2013 at 12-13[.]
10
N.T. 2013 at 11-12[.]
11
N.T. 2013 at 12[.]
12
N.T. 2013 at 12[.]
13
N.T. 2013 at 12.
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[Schilling] maintains that it was [Strait] who first
approached him about resolving their legal issues, including the
2007 Attorney’s Fees Order for attorney’s fees.14 He introduced
several emails between the parties showing their willingness and
attempts to dispose of both the support exceptions and the
appeal of the 2007 Attorney’s Fees Order. [Schilling] testified
that an oral agreement was reached between the parties, which
included vacating the 2007 Attorney’s Fees Order.15
14
N.T. 2013 at 23[.]
15
N.T. 2013 at 30-31[.]
In consideration of these ongoing negotiations, [Strait]
requested additional time to file briefs on her exceptions. On
November 1, 2007, another extension for the parties to file
briefs on their exceptions was granted. The parties were given
until the end of November 2007 to file briefs. On November 16,
2007, an order was entered pursuant to an agreement of the
parties. The arrears in the amount of $2443.92 were remitted,
the exceptions filed by each party were withdrawn, and the
support obligation remained suspended.16 After granting
[Schilling’s] two requests for continuances to file briefs, the
Superior Court dismissed [Schilling’s] appeal regarding the
attorney’s fees on December 14, 2007. The appeal was
dismissed for the failure to file a brief.17
16
Order, filed Nov. 16, 2007.
17
Order, filed Dec. 17, 2007[.]
Everything between the Parties remained relatively calm
until July 2, 2012, when [Strait] filed a new Complaint for child
support. After the initial conference, [Schilling] was found to owe
child support to [Strait].18 Due to the complexity of the case,
[Strait] was permitted discovery in order to prepare for the de
novo hearing. [Schilling] initially failed to comply with these
discovery requests, requiring [Strait] to file a Motion to Compel
and a Motion for Sanctions.19 After a hearing in front of the
Support Master, [Schilling] was assessed a support obligation in
the amount of $509.00 per month, plus $51.00 per month on
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arrears.20 Both parties filed exceptions, which are still pending.
Strait then filed this Petition to Enforce Award of Attorney’s Fees
on September 27, 2013, requesting this Court enforce the 2007
Attorney’s Fees Order requiring [Schilling] to pay $4,000 of
attorney’s fees. A hearing on the matter was held on December
18, 2013.
18
See Interim Order, filed Aug. 28, 2012. While this
new round of litigation does not directly deal with the
2007 attorney’s fees order, it serves as background
for [Strait’s] filing of the Petition to Enforce Award of
Attorney’s Fees.
19
See Straits Motion to Compel, filed Dec. 13, 2012
and Motion for Sanctions, filed Feb. 20, 2013[.]
20
Support Master’s Report and Recommendation,
filed Sept. 4, 2013[.]
Trial Court Opinion, 5/5/14, at 1-5. On January 31, 2014, the trial court
entered an order granting Strait’s petition to enforce the award of attorney’s
fees. Order, 1/31/14. The order directed Schilling to pay Strait $4,000.00
pursuant to the April 16, 2007 order, and further directed Schilling to pay
Strait $350.00 for attorney’s fees associated with filing the underlying
petition to enforce the April 16, 2007 order. Id. Schilling filed a timely
appeal on February 10, 2014.
On appeal, Schilling presents the following issues for this Court’s
consideration:
1) The Petition to Enforce Award of Attorney’s Fees and the
Praecipe To Enter Judgment On Support Order Entered April 17,
2007 was filed after the time limit set by the Statute of
Limitation set in 42 Pa. Consolidated Statutes, Chapter 55 of 4
years.
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2) There was a verbal agreement between the parties disposing
of the claim for attorney’s fees, from the Order of Court dated
April 16, 2007, by [Strait] against [Schilling].
3) The granting of an additional award of $350.00 in attorney’s
fee[s] is unfounded.
Schilling’s Brief at 3. We will address the issues in the order in which they
were presented.
In his first issue, Schilling argues that the court erred in awarding
attorney’s fees because the petition to enforce the award of attorney’s fees
was filed beyond a claimed statute of limitations. The applicability of a
statute of limitations is a question of law, thus, our scope of review is
plenary and our standard of review is de novo. See Ash v. Continental
Ins. Co., 932 A.2d 877, 879-880 (Pa. 2007) (discussing the scope and
standard of review of the applicable statute of limitations in bad faith
actions).
Schilling asserts that the statute of limitations set forth in 42 Pa.C.S. §
5525(a)(5) renders Strait’s petition to enforce the 2007 order untimely.
Schilling’s Brief at 7, 10. We disagree based on our conclusion that Schilling
has confused distinct legal principles and procedural postures.
Four year limitation
(a) General rule.--Except as provided for in subsection (b), the
following actions and proceedings must be commenced within
four years:
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(5) An action upon a judgment or decree of any
court of the United States or of any state.
42 Pa.C.S. 5525(a)(5).
The certified record reveals that the April 16, 2007 order contained no
expiration date. The language in 42 Pa.C.S. § 5525(a)(5), which Schilling
argues is applicable, deals with an action on a judgment. Here, however,
Strait was not initiating an action with her petition; rather, she simply
sought to enforce a prior order. Moreover, there was no judgment entered
in any court that would render section 5525(a)(5) applicable in this matter. 2
Thus, Strait’s petition to enforce the order, which was filed on September
27, 2013, was not an action upon a judgment pursuant to section 5525.
Additionally, we note that in his brief, Schilling cites to United Nat.
Ins. Co. v. J.H. France Refractories Co., 612 A.2d 1371 (Pa. Super.
1992);3 Kapil v. Ass’n of Pennsylvania State College & University
Faculties, 470 A.2d 482 (Pa. 1983); Pocono Intern. Raceway, Inc. v.
Pocono Produce, Inc., 468 A.2d 468 (Pa. 1983); and Gustine Uniontown
2
We note that there appears to be some confusion with respect to the entry
of a judgment. Schilling and the trial court both assert that a judgment was
entered in 2012 on the 2007 order. N.T., 12/18/13, at 37. However, the
certified record does not reflect that a judgment was ever entered on the
2007 order. Nevertheless, even if a judgment had been entered in 2012,
Strait’s petition to enforce was filed on September 27, 2013, well within the
five year statute of limitations set forth in 42 Pa.C.S. § 5525.
3
Reversed after appeal in United Nat. Ins. Co. v. J.H. France
Refractories Co., 668 A.2d 120 (Pa. 1995).
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Associates, Ltd. v. Anthony Crane Rental, Inc., L.P., 842 A.2d 334 (Pa.
2004), in an attempt to provide support for his position. Schilling’s Brief at
11-12. A review of these cases reveals that Schilling is conflating the
concepts of initiating a legal action with the enforcement of a court order.
Each of the cases Schilling cites deals with the time at which a cause of
action accrues, i.e., the cases stand for the proposition that a cause of action
accrues at the time when the plaintiff could have first maintained the action
to a successful conclusion. None of these cases discusses the situation in
the case at bar, where a party files a petition to enforce a prior order of
court. We conclude that Schilling’s argument is meritless and that he is
entitled to no relief.
In his second issue, Schilling argues that there was a verbal
agreement between the parties that disposed of the claim for attorney’s
fees. Schilling’s Brief at 14. We conclude that there is no merit to this
issue.
The enforceability of a settlement agreement is determined by
principles of contract law. Storms ex rel. Storms v. O’Malley, 779 A.2d
548, 557 (Pa. Super. 2001). “Our standard of review requires us to
determine, based on all the evidence, whether the trial court properly
applied contract principles.” Weavertown Transport Leasing, Inc. v.
Moran, 834 A.2d 1169, 1171-1172 (Pa. Super. 2003). The trial court’s
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decision will not be disturbed absent an error of law or an abuse of
discretion. Id. at 1172 (citation omitted).
In order for a contract to exist, there must be a meeting of the minds,
whereby both parties mutually agree to the same thing, as evidenced by an
offer and its acceptance. Refuse Management Systems, Inc. v.
Consolidated Recycling and Transfer Systems, Inc., 671 A.2d 1140,
1146 (Pa. Super. 1996) (citations omitted). “In cases involving contracts
wholly or partially composed of oral communications, the precise content of
which are not of record, courts must look to the surrounding circumstances
and course of dealing between the parties in order to ascertain their intent.”
Id. (citations omitted). Upon review, we must look to the parties’ course of
conduct to determine whether a contract was formed. Id.Additionally, preliminary negotiations do not constitute a contract.
Storms, 779 A.2d at 557. However, if the parties orally agree to all of the
terms of an agreement and mutually expect the imminent drafting of a
written contract reflecting their previous understanding, the oral contract
may be enforceable. Id. (citation omitted). “If the parties agree upon
essential terms and intend them to be binding a contract is formed even
though they intend to adopt a formal document with additional terms at a
later date.” Id. (internal quotation marks and citation omitted). “The intent
of the parties is a question of fact which must be determined by the
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factfinder.” Id. (citation omitted). The reviewing court must defer to the
findings of the trier of the facts if they are supported by the evidence. Id.Here, Schilling argues that all of the elements of a valid oral contract
were satisfied and asserts that this Court’s decision in Kazanjian v. New
England Petroleum Corp., 480 A.2d 1153 (Pa. Super. 1984), supports his
claim. We disagree.
In Kazanjian, the appellants, as the executors of the estate of the
decedent, Ibrahim Kazanjian, filed suit against the appellees seeking specific
performance of an alleged oral contract. The trial court concluded that there
was no legally binding agreement created by the oral agreement of the
parties’ counsel. On appeal, this Court reversed concluding that the
communications between the parties were more than mere negotiations, and
that the oral agreement was intended to be a binding contract. This Court
reasoned that the decedent, Kazanjian, authorized his attorney to negotiate
the terms of the settlement agreement, and Kazanjian agreed to those
terms. The attorney for the appellees was also given the authority to reach
a settlement, and the appellees agreed to each term of the agreement.
Therefore, there was mutual assent of the parties through their attorneys.
Kazanjian, 480 A.2d at 1159-1160.
In the case at bar, there is no evidence of mutual assent. While Strait
admits that she contemplated settlement, and even signed a contract her
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attorney prepared memorializing the proposed settlement, Schilling refused
to sign the settlement agreement.
In its opinion, the trial court discussed Kazanjian and explained why
the instant matter was distinguishable: “The oral agreement [in Kazanjian]
was upheld since it was clear on the record that the attorneys negotiated the
oral agreement on each and every term that was later formalized by the
writing and it was agreed upon by the parties.” Trial Court Opinion, 5/5/14,
at 8 (emphasis in original). The trial court further explained:
Here, there is no evidence suggesting that an agreement
was reached between [Strait] and [Schilling] concerning the
2007 Attorney’s Fees Order. It appears that an agreement was
reached regarding other legal matters, as an order was entered
remitting the arrears and dismissing both exceptions. There was
no such order vacating the 2007 Attorney’s Fees Order.
[Schilling] argues that he would not have dropped his appeal if
there had not been an agreement. However, there is no evidence
that [Schilling] dropped his appeal pursuant to any agreement.
Rather, [Schilling] failed to file a brief and his appeal was
dismissed. Most importantly, there is no order voiding or
vacating the 2007 Attorney’s Fees Order, indicating that no such
agreement to vacate the 2007 Attorney’s Fees Order was ever
reached.
[Strait] admitted that she considered vacating the 2007
Attorney’s Fees Order and that she did sign an agreement to
that effect, which was drawn up by her attorney. However, it
appears that [Strait’s] agreement to vacate the 2007 Attorney’s
Fees Order was conditioned on both parties signing the formal
agreement. After [Schilling] received the agreement, [Schilling]
refused to sign it because it included something he did not like.
Therefore, this situation is different from Kazanjian, because
here the parties did not agree to each and every term that was
formalized by the writing. Here, the parties were negotiating the
terms of settling their outstanding legal issues, [Strait]
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presented an offer in the form of the written agreement to
[Schilling], and [Schilling] did not accept the offer and refused to
sign the agreement. No oral agreement was reached between
the parties.
Trial Court Opinion, 5/5/14, at 8-9.
We agree with the trial court’s conclusion. There is no evidence that
the parties reached an agreement, oral or otherwise, on the issue of
attorney’s fees and settlement. We further agree with the trial court that
Schilling’s refusal to sign Strait’s written agreement is concrete evidence of
his refusal to assent to the terms of a settlement. Accordingly, Schilling is
entitled to no relief on this issue.
In his final issue on appeal, Schilling contends that the additional
award of $350.00 in attorney’s fees is unfounded. Upon review of Schilling’s
brief, however, we point out that he has failed to support this issue with any
argument or authority. Pennsylvania Rule of Appellate Procedure 2119
addresses the argument section of appellate briefs and provides, in part, as
follows:
Rule 2119. Argument
(a) General rule. The argument shall be divided into
as many parts as there are questions to be argued; and shall
have . . . such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a).
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
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pertinent authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa.
Super. 2002); Pa.R.A.P. 2119(b). “Appellate arguments which fail to adhere
to these rules may be considered waived, and arguments which are not
appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (citations omitted). This Court will not act as counsel and will
not develop arguments on behalf of an appellant. Irwin Union National
Bank and Trust Company v. Famous and Famous and ATL Ventures, 4
A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. Hardy, 918
A.2d 766, 771 (Pa. Super. 2007)).
Here, Schilling has provided no argument on this issue. Thus, we
conclude that the issue is waived.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the order entered on January 31, 2014,
granting Strait’s petition to enforce the prior award of attorney’s fees and
awarding Strait $350.00 in additional attorney’s fees.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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