Richmond & Hevenor v. Mirarchi, E. ( 2016 )

J-A15035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHMOND & HEVENOR, ATTORNEYS AT IN THE SUPERIOR COURT OF
LAW PENNSYLVANIA
Appellants
v.
ERCOLE MIRACHI
Appellee No. 2102 EDA 2015
Appeal from the Order Dated June 5, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2013 No. 00520
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 05, 2016
Appellant Richmond & Hevenor, Attorneys at Law (“R&H”), appeals
from an order entered in the Philadelphia County Court of Common Pleas
denying its post-trial motions and entering judgment in favor of Appellee
Ercole Mirarchi following a bench trial. We affirm.
On May 8, 2008, a commercial building owned by Mirarchi was
destroyed by a fire. Opinion, filed 10/23/2015, at 1 (“1925(a) Opinion”).
Mirarchi hired R&H to represent him in a bad faith action Mirarchi filed
against his insurance carrier, Seneca Insurance. Id. Mirarchi claimed that
after the fire damage, the building suffered additional damage. He claims
the additional damages and resulting expenses were caused by the
insurance company’s failure to reimburse him until more than a year after
the fire. Id.
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On November 1, 2009, Mirarchi entered into a Retainer Fee Agreement
with R&H. 1925(a) Opinion at 1. Mirarchi made an initial payment of
$4,000.00 for the retainer. Id. The agreement provided that R&H would bill
Mirarchi $240.00 per hour and $2,500.00 per day. Id. at 2. The Retainer
Fee Agreement was mailed to Mirarchi, but not signed by either party. Id.
Mirarchi made payments to R&H, totaling $65,000.00 from October 29, 2009
to March 22, 2011. Id.
In March 2011, the parties discussed converting Mirarchi to a
contingency-based agreement, due to the increasing legal and expert fees.
1925(a) Opinion at 2. The first mention of a contingency-based agreement
was on March 24, 2011, when Bill Hevenor sent Kenneth Richmond an email
stating:
He was not eager to change over to a contingent fee, but
now has a full explication of the Jurenko decision and the
State Farm case decided a year after Hollick restricting
punitive in Pennsylvania. 33% is not in the cards because
he needs 2.5 million to be made whole for his lost business
plan. So we’ll see what he decides.
Id. (quoting Exhibit P-8).
On March 26, 2011, Mirarchi emailed his concerns about the
Contingency Fee Agreement. 1925(a) Opinion at 3. On May 13, 2011,
Mirarchi sent an email to Richmond stating that they needed to work out the
details of the Contingency Fee Agreement. Id. On May 18, 2011, Mirarchi
wrote:
Per our conversations on Monday 5/16/2011, this email is
to confirm that I am agreeing to sign the Contingent Fee
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Agreement with your firm, providing that all monies paid
for my Consultation and Action with Seneca Insurance
since inception to current date be credited back to my
reserve. As you are aware from an earlier email, the
amounts to be credited are listed below.
Id. (quoting Exh. D-1).
Richmond directed Mirarchi to read the third paragraph of the
Contingent Fee Agreement, which provided:
This agreement converts our legal representation from a
fee for services rendered billed against a retainer
arrangement effective April 1, 2011. All past fees paid for
legal services will be credited dollar for dollar against the
contingent fee recovered by [R&H] in the referenced legal
proceeding.
1925(a) Opinion at 3 n.7 (quoting Ex. P-3). Mirarchi then wrote that he
“was still going with the contingent fee. Use whatever is left in retainer for
the financial expert.”1 Id. R&H mailed the Contingent Fee Agreement to
Mirarchi. Id. Following this, R&H no longer billed Mirarchi. Id. Further,
Mirarchi received no emails from R&H stating it was withdrawing money
from his account. Id.
On October 18, 2011, Richmond advised Mirarchi that R&H no longer
wished to represent him and that Mirarchi should obtain independent legal
representation. 1925(a) Opinion at 4.
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1
At some point, Allan Windt was retained as an expert. The trial court
states this was after conversion to a contingent fee agreement. R&H
maintains Windt was retained earlier. Additional experts also were retained.
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In October, 2013, Mirarchi’s case against Seneca Insurance was
dismissed on summary judgment. Opinion, 10/23/2015, at 4. The United
States Court of Appeals for the Third Circuit affirmed. Id.
R&H filed an action in assumpsit against Mirarchi based upon an
account stated. Mirarchi filed an Answer and New Matter, and R&H filed a
reply.
Following a bench trial, the trial court entered a verdict in favor of
Mirarchi and against R&H. Among other things, the trial court found the
parties had entered the Contingent Fee Agreement as of May 18, 2011.
Opinion, 10/23/2015, at 4. The trial court calculated the number of hours
billed to Mirarchi prior to May 18, 2011, concluding R&H billed 190.4 hours,
at $240.00 per hour, for Mirarchi’s case prior to May 18, 2011. Mirarchi,
therefore, owed $45,696.00 in attorneys fees. Id.
The trial court then concluded that the amount deposited into
Mirarchi’s retainer account, $65,000.00, minus the expert fees that had a
corresponding check number, which totaled $18,807.60, was sufficient to
cover the $45,696.00 in fees owed. Opinion, 10/23/2015, at 5.
R&H filed post-trial motions, which the trial court denied in an order
dated June 5, 2015 and filed on June 9, 2015. In the order, the trial court
also entered judgment in favor of Mirarchi. On July 2, 2015, R&H filed a
notice of appeal. Both R&H and the trial court complied with Pennsylvania
Rule of Appellate Procedure 1925.
Appellants raise the following claims on appeal:
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1. Whether the trial court erred in finding that there was
an enforceable contingent fee agreement between the
parties despite the admission of [Mirarchi] that he had not
signed a contingent fee agreement nor had he paid experts
as required by the contingent fee agreement?
2. Whether the trial court erred in reforming the proposed
contingent fee agreement so as to require [R&H] to pay
the expert fees despite the plain language of the
contingent fee agreement?
3. Whether the trial court erred in reforming paragraph
three of the proposed contingent fee agreement so as to
credit pre-agreement fees to [Mirarchi’s] account despite
unambiguous language in the agreement that legal fees
paid would be credited only in the event of a contingent
fee recovery?
4. Whether the trial court erred as a matter of law, in
finding that the legal requirement of proof for an action on
an [a]ccount [s]tated had not been satisfied because
[Mirarchi] had communicated an unspecified issue with an
invoice to his attorney that was never communicated to
[R&H]?
5. Whether the trial court erred as a matter of law in not
estopping [Mirarchi] from any dispute for an invoice where
it was accepted by [Mirarchi] as accurate evidence that his
attorney intended to submit to a federal court?
Appellants’ Brief at 5-6.
This Court applies the following standard of review to verdicts
following a bench trial:
Our appellate role in cases arising from non-jury trial
verdicts is to determine whether the findings of the trial
court are supported by competent evidence and whether
the trial court committed error in any application of the
law. The findings of fact of the trial judge must be given
the same weight and effect on appeal as the verdict of a
jury. We consider the evidence in a light most favorable to
the verdict winner. We will reverse the trial court only if its
findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of
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law. However, [where] the issue . . . concerns a question
of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating
from a non-jury trial are not binding on an appellate court
because it is the appellate court’s duty to determine if the
trial court correctly applied the law to the facts of the case.
Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664-
65 (Pa.Super.2014) (quoting Wyatt, Inc. v. Citizens Bank of Pa., 976
A.2d 557, 564 (Pa.Super.2009)).
Further, this Court applies the following when interpreting a contract:
The interpretation of any contract is a question of law and
this Court’s scope of review is plenary. Moreover, we need
not defer to the conclusions of the trial court and are free
to draw our own inferences. In interpreting a contract, the
ultimate goal is to ascertain and give effect to the intent of
the parties as reasonably manifested by the language of
their written agreement. When construing agreements
involving clear and unambiguous terms, this Court need
only examine the writing itself to give effect to the parties’
understanding. This Court must construe the contract only
as written and may not modify the plain meaning under
the guise of interpretation.
Stephans, 100 A.3d at 665 (quoting Humberston v. Chevron U.S.A.,
Inc., 75 A.3d 504, 509–10 (Pa.Super.2013)).
Moreover:
Contracts are enforceable when the parties reach a mutual
agreement, exchange consideration, and have set forth the
terms of their bargain with sufficient clarity. Greene v.
Oliver Realty, Inc., []526 A.2d 1192 ([Pa.Super.]1987).
An agreement is sufficiently definite if it indicates that the
parties intended to make a contract and if there is an
appropriate basis upon which a court can fashion a
remedy. Id. Moreover, when the language of a contract
is clear and unequivocal, courts interpret its meaning by its
content alone, within the four corners of the document.
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Id. (citing Mears, Inc. v. National Basic Sensors, []
486 A.2d 1335, 1338 ([Pa.Super.]1984)).
Stephans, 100 A.3d at 665.
R&H first argues the trial court erred when it found the Contingent Fee
Agreement enforceable even though the agreement was not signed and
Mirarchi had not paid the expert fees. It argues that the expert fees drove
the proposed contingent-fee agreement. Appellant’s Brief at 13. R&H cites
Mirarchi’s email stating that he agreed to the Contingent Fee Agreement
“providing that all monies paid for my [c]onsultation and [a]ction with
Seneca Insurance since inception to the current date be credited back to
[r]eserve.” Id. Mirarchi was instructed to re-read paragraph three, which
states that “[a]ll past fees paid for legal services will be credited dollar for
dollar against the contingent fee recovered by [R&H] in the referenced legal
matter.” Id. at 13-14. R&H argues that it was error to find that the
$65,000.00 in the retainer account met Mirarchi’s obligation to pay all past
fees for legal services. Id. at 14.
The trial court found:
[R&H’s] first claim is that this [c]ourt erroneously found as
a matter of law that [R&H] and [Mirarchi] could enter into
an unsigned Contingent Fee Agreement, which is expressly
forbidden by Pennsylvania Rule of Professional Conduct
1.5(c). [R&H] further claim[s] that, if there was a
Contingent Fee Agreement, [the c]ourt erroneously
determined that [Mirarchi] had a meeting of the minds
with respect to his payment of the expert fees, and fulfilled
his obligation in paying those expert fees. As [the c]ourt
found, through the evidence admitted at trial, that there
was a meeting of the minds with respect to converting the
[Mirarchi’s] contract into a Contingent Fee Agreement, and
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that all material obligations of the agreement were
satisfied, this claim fails.
The Contingent Fee Agreement, which was submitted into
evidence, complied with the requirements of Rule 1.5(c) in
laying out the terms of the agreement in writing. It
provided that the original Retainer Agreement entered into
between the parties would be converted to a Contingent
Fee Agreement. The Contingent Fee Agreement stated
that the fee collected by [R&H] - 30% of the amount
awarded - would be calculated against the full judgment
entered in the matter of Ercole Mirarchi v. Seneca
Specialty Insurance Company if the claim were
successful. The agreement also provided that, because
attorney’s fees might also be awarded, attorney time
records would be maintained for all past and future
services rendered through the conclusion of the matter.
With respect to fees, the agreement stated:
Hereafter, the direct costs of filing, subpoenas,
depositions, transcripts, copy production, telex,
travel, delivery, stationary will not be separately
billed and will, henceforth, be absorbed by Richmond
& Hevenor within the contingent fee. Expert witness
fees will be borne by Ercole Mirarchi, but, if and
when a punitive damage award is made, a claim for
their recovery will be submitted together with the
request for attorney fees.
Exhibit P -3.
Rule 1.5(c) provides:
(c) A fee may be contingent on the outcome of the
matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by
paragraph (d) or other law. A contingent fee
agreement shall be in writing and shall state the
method by which the fee is to be determined,
including the percentage or percentages that shall
accrue to the lawyer in the event of settlement, trial
or appeal, litigation and other expenses to be
deducted from the recovery, and whether such
expenses are to be deducted before or after the
contingent fee is calculated. Upon conclusion of a
contingent fee matter, the lawyer shall provide the
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client with a written statement stating the outcome
of the matter and, if there is a recovery, showing the
remittance to the client and the method of its
determination.
Pa.R.P.C. 1.5(c).14
14
The reasoning behind requiring that contingent
fee agreements be in writing is that “writings avoid
misunderstandings regarding the fee and methods
by which it is determined.” Eckell v. Wilson, 597
A.2d 696, 701 (Pa.Super. 1991), citing Pa.R.P.R.
1.5, comment.
As the Contingent Fee Agreement that [R&H] and
[Mirarchi] entered into comports with the requirements of
Rule 1.5(c), which makes no mention of whether the
agreement must be signed, this claim fails. Exhibit P-3
was introduced into evidence by [R&H], and provided that
the Retainer Agreement would be converted to a
Contingent Fee Agreement, effective April 1, 2011.15 The
copy introduced into evidence was not signed, and neither
[R&H] nor [Mirarchi] could provide [the c]ourt with a
signed copy.16
15
However, [the c]ourt made a factual
determination that the parties did not actually reach
a meeting of the minds with respect to the
Contingent Fee Agreement until May 18, 2011, and
thus determined that the Contingent Fee Agreement
did not become effective until that date. Exhibit D-1.
16
Although it was never produced, there was
evidence that a signed copy of the Contingent Fee
Agreement existed. An email dated October 19,
2011 from [Mirarchi] to Kenneth Richmond notes:
After review, I realized we do have a second
signed contract which replaced our original. It was
signed in your [o]ffice [l]ibrary when we were
meeting to go over the Interogs [sic] and events.
A signed copy was requested [sic] by prospective
firms for their evaluation to accept my [laws]uit. I
will need you to please send me an electronic PDF
copy as soon as you possibly can so I can submit
it.
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Exhibit P -13.
Contrary to [R&H’s] claim that there was no evidence to
show there was a meeting of the minds, [the c]ourt found
that the Contingent Fee Agreement, which was sent by
[R&H] to [Mirarchi] and received by him, clearly outlined
the terms of the agreement, and that there were no
misunderstandings regarding the terms of the agreement.
Through the emails introduced into evidence, it was clear
to [the c]ourt that [Mirarchi] understood all the terms of
the Contingent Fee Agreement, including the provision that
[Mirarchi] was required to pay all expert fees.17 Exhibit D-
1, D-2. See Sun Company, Inc. v. Pennsylvania
Turnpike Commission, 798 A.2d 875, 878
(Pa.Cmwlth.Ct.1998) (“[A]ny ambiguous language in a
contract is construed against the drafter and in favor of the
other party if the latter’s interpretation is reasonable.”).
17
[The c]ourt did find it curious that the Retainer
Agreement, with which [R&H] had no dispute, was
also introduced into evidence by [R&H] unsigned.
Exhibit P-1.
After considering all of the evidence, [the c]ourt then
made a factual determination that the parties had a
meeting of the minds with respect to the Contingent Fee
Agreement. See City of Erie v. Fraternal Order of
Police, Lodge 7, 977 A.2d 3, 11 (Pa.Cmwlth.Ct. 2009)
(“[T]here must be a meeting of the minds on all terms of
the contract,” which “requires the concurrence of both
parties to the agreement[.]”). [The c]ourt further
determined, based on the evidence, that [Mirarchi] had
fulfilled his obligations under the contract in payment of
the expert fees - through the payments he made into his
retainer account. See footnote 11, supra.
Therefore, as [the c]ourt made a factual finding that there
was a meeting of the minds by the parties to enter into the
Contingent Fee Agreement, which Pa.R.P.C. 1.5(c) does
not require to be signed, and [Mirarchi] fulfilled his
obligations under the agreement, this claim fails.
1925(a) Opinion at 8-10.
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Viewing the evidence in the light most favorable to Mirarchi as verdict
winner, we find the trial court did not err. The parties discussed the
Contingency Fee Agreement. After being directed to the paragraph
discussing the payment of past fees, Mirarchi stated he still agreed to the
agreement. Following Mirarchi’s email agreeing to the terms of the
Contingency Fee Agreement, R&H stopped sending invoices for its legal
services. The court did not err in finding that the parties converted their
arrangement to the Contingent Fee Agreement as of May 18, 2011.
R&H’s next claim argues the trial court reformed the Contingent Fee
Agreement because the court required R&H to pay the expert fees. R&H
claims that the trial court erred in finding that the expert witness, Allan
Windt, was retained after conversion to a contingent-fee agreement.
Appellant’s Brief at 16. It maintains Windt was retained and paid prior to
May 18, 2011, and, therefore, the trial court erred in finding Mararchi had
$65,000.00 in the escrow account as of May 18, 2011. Id. R&H claims the
court erred in finding that Mirarchi complied with all terms of the
Contingency Fee Agreement, even though there were expert fees
outstanding at the end of the attorney-client relationship. Id. at 18.
The trial court found:
[R&H’s] second claim is that [the c]ourt factually found,
without any evidence, that [Mirarchi] had satisfied and
performed all of the unequivocal material terms of the
unsigned Contingent Fee Agreement, including payment of
expert fees.
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As fact-finder, it was [the c]ourt’s duty to make factual
determinations:
In a bench trial, the trial judge acts as fact-finder
and has the authority to make credibility
determinations and to resolve conflicts in evidence.
Ruthrau, Inc. v. Ravin, Inc., 914 A.2d 880
(Pa.Super.2006). Consequently, the trial judge’s
findings made after a bench trial must be given the
same weight and effect as a jury verdict and will not
be disturbed on appeal unless they are not supported
by competent evidence in the record. Levitt v.
Patrick, 976 A.2d 581 (Pa.Super.2009). . . .
Merrell v. Chartiers Valley School District, 51 A.3d
286, 293-94 (Pa.Cmwlth.Ct.2012).
Upon review of the evidence presented in this case, [the
c]ourt made a factual determination that there was a
meeting of the minds in switching from the Retainer
Agreement to the Contingent Fee Agreement, and that
[Mirarchi] had satisfied his obligations under the
Contingent Fee Agreement. [R&H] presented the written
Contingent Fee Agreement, which states: “Expert witness
fees will be borne by Ercole Mirarchi[.]” Exhibit P-3. The
emails between [R&H] and [Mirarchi] discussing the
conversion to a Contingent Fee Agreement supported the
notion that [R&H] had wished to convert the contract.
Exhibits P-8, P-9, P-10. The emails submitted by
[Mirarchi] showed that [R&H] and [Mirarchi] ultimately had
an understanding that there was a Contingent Fee
Agreement between the parties. Exhibits D-1, D-2. After a
determination that there was a Contingent Fee Agreement,
and after reviewing the evidence concerning the payments
that [Mirarchi] had made, [the c]ourt concluded that the
expert fees that [Mirarchi] was responsible for under the
Contingent Fee Agreement were all covered by the retainer
payments he had already made to [R&H]. See Footnotes
10 and 11, supra. This determination, again, was made
based upon the evidence introduced by [R&H] at trial in
the form of the “Time & Expenditure Data Sheets” of
Richmond & Hevenor Attorneys at Law. Exhibit P-2. In
review of Exhibit P-2, [the c]ourt found that [Mirarchi] was
responsible only for those payments to experts that had a
corresponding check number on the chart. Without a
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check number, this Court found that there was no evidence
to prove whether a payment was actually made to the
expert or not. Therefore, [the c]ourt only credited the
payments for expert fees detailed in footnote 11, supra.
Because [the c]ourt’s factual determinations were based
upon the evidence introduced at trial, this claim fails.
1925(a) Opinion at 10-11.
The trial court also found:
[R&H’s] fourteenth claim is that [the c]ourt [il]legally and
erroneously neglected the material, unconditional, specific
lawful requirement that [Mirarchi] cover expert fees which
was the basis, at all times from October 17, 2011, for the
termination of [R&H’s] representation. [R&H] further
claim[s] that [Mirarchi] never produced any evidence that
his obligation to pay the experts under the Contingent Fee
Agreement was fulfilled. As [R&H] failed to meet its burden
of proof in showing that [Mirarchi] did not pay all of the
expert fees, as required by the Contingent Fee Agreement,
this claim fails.
At trial, the only evidence of the fees owed to the experts,
and for which [Mirarchi] was responsible, was set forth in
Exhibit P-2, a “Time & Expenditure Data Sheet” created by
[R&H]. [The c]ourt recognized and accepted that, under
the Contingent Fee Agreement, [Mirarchi] was responsible
for expert fees associated with his case. However, [R&H]
failed to submit actual invoices from the experts, and also
failed to submit any checks or receipts from payments to
experts. Although the invoices and payments were
detailed on Exhibit P-2, [the c]ourt, as fact finder, found
that this alone did not prove that these invoices existed or
that the payments were actually made, as this was just a
document created by [R&H]. As [R&H] possessed the
burden of proof, it was not [Mirarchi’s] responsibility to
provide proof of payment of the expert fees.
Therefore, [the c]ourt exercised its discretion in
determining whether [R&H] had provided sufficient
evidence of the expert fees that were payable. As [the
c]ourt did not ignore this requirement in the Contingent
Fee Agreement, this claim fails.
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1925(a) Opinion at 16-17 (internal footnotes omitted).
Contrary to R&H’s contention, the trial court did not find that R&H
owed any expert fees. Rather, the trial court found that R&H proved it paid
expert fees only where it provided a check number associated with the
expenditure. Without the check number, or any other proof that the invoice
had been paid, the court properly found R&H failed to prove payment.
Because the amount paid to experts did not exceed the retainer amount, the
trial court found Mirarchi did not owe additional expert fees. This was not
error, and R&H’s second claim fails.
R&H’s third claim alleges the Contingent Fee Agreement provided that
past fees paid for legal services would be credited only if a contingent fee
was recovered. Appellant’s Brief at 20. R&H claims that when Mirarchi
failed to pay the experts, it was a breach of the contingent-fee agreement.
Id. Further, R&H claims that Mirarchi’s alleged failure to pay the expert fees
destroyed the possibility of recovery in the bad faith action, because
recovery was impossible without experts. Id. at 21.
The trial court concluded:
[R&H’s] sixth claim is that the proposed unsigned
Contingent Fee Agreement was an executory contract
requiring future compliance by [Mirarchi], and [the c]ourt
erroneously concluded that [Mirarchi] had fulfilled his
material obligations under the agreement. Because [R&H]
provided absolutely no evidence that the Contingent Fee
Agreement was intended to be an executory contract, this
claim fails.
There was absolutely nothing in the Contingent Fee
Agreement, nor in the evidence presented at trial, that
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provides proof that the Contingent Fee Agreement was
intended to be an executory contract. An executory
contract is a contract under which both parties have
unperformed conditions or obligations that would
constitute a material breach if not performed.
Restatement (Second) of Contracts § 225, cmt. A
condition is “an event, not certain to occur, which must
occur, unless its non-occurrence is excused, before
performance under a contract becomes due.” Id. § 224.
The only mention of [Mirarchi’s] obligations in the
Contingent Fee Agreement was the following: “Expert
witness fees will be borne by Ercole Mirarchi, but, if and
when a punitive damage award is made, a claim for their
recovery will be submitted together with the request for
attorney fees.” Exhibit P-3. The contract does not state
that there is no contract unless the expert fees are paid.
It merely assigns responsibility for the payment of expert
fees to [Mirarchi]. In any event, [the c]ourt found that the
expert fees that [Mirarchi] was responsible for were all
covered by his payments into the retainer account.
Therefore, if the Contingent Fee Agreement was in fact an
executory contract, [Mirarchi’s] obligations under the
contract were satisfied.
1925(a) Opinion at 12 (footnote omitted).2 This was not error and
Appellant’s third claim fails.
R&H’s fourth claim asserts that it sued on an account stated and that
Mirarchi accepted the accuracy of the account. Appellant’s Brief at 24. It
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2
R&H also maintains that there was no evidence to support the trial court’s
determination that Mirarchi had paid R&H approximately $46,000.00 in
attorneys’ fees for hours expended through May 18, 2011. Appellant’s Brief
at 21-22. The trial court found that, because Mirarchi’s answer pled an
offset, it properly found the amounts owed to R&H were offset by amounts
Mirarchi paid into the retainer account, which was in the Plaintiff’s exhibit.
1925(a) Opinion at 14-15; Plaintiff Trial Exh. P-2. This was not error.
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claims Mirarchi retained the account without objection, claiming Mirarchi
communicated his objection to his attorney, not R&H. Id. at 24-25.
The trial court found:
[R&H’s] final claim is that the evidence in the case
demonstrated unequivocally that [R&H] proved an
undisputed account stated which was acknowledged as
received and reviewed by [Mirarchi’s] agent/attorney who
requested forbearance while the underlying case
proceeded. As the evidence in this case in fact
demonstrated the opposite - that [Mirarchi] did take issue
with the invoice - this claim fails.
In an email dated July 3, 2012, from Andrew Swain [3] to
Kenneth Richmond, Mr. Swain stated:
I was working exclusively on the [summary
judgment] reply motion and brief and asked
[Mirarchi] as well to focus only [sic] that project,
which was due and filed Monday. I have the asked
[sic] the client to review your invoice to see if he
identified any issues with your bill. I just returned
from court and will be leaving early for the holiday.
As the [summary judgment] hearing in federal court
is late July, I would ask for you to file after the
judge’s decision if payment arrangements or plans
cannot be reached. I believe any filing now against
[Mirarchi] will jeopardize our settlement negotiations
with Seneca in the event [summary judgment] is
denied. As there is a 4[-]year claim for breach of
contract[,] I do believe you have time to file. Thank
you for your consideration.
Exhibit D-8.
In another email dated July 3, 2012, from [Mirarchi] to
Andrew Swain, [Mirarchi] states: “Andrew, I reviewed part
of his bill today and I do have issue with it.” Exhibit D-8.
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3
Mr. Swain was Mirarchi’s successor counsel in the matter against Seneca
Insurance.
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As [Mirarchi] clearly did take issue with the invoice, this
claim fails.
1925(a) Opinion at 19-20.
The trial court did not err. The trial court relied on two emails to find
Mirarchi disputed the account: one from Mirarchi’s attorney to R&H
requesting that R&H not file a lawsuit until after the court ruled on the
summary judgment motion and one from Mirarchi to his attorney.
R&H’s final issue asserts the trial court erred as a matter of law when
it found Mirarchi was not estopped from disputing the invoice. R&H claims
estoppel was proper because Mirarchi accepted the invoice as evidence to
submit to a federal court. Appellant’s Brief at 25-26.
The court found the doctrine of judicial estoppel did not apply because
there was no proof the invoice was admitted into evidence in Mirarchi’s
federal court proceeding. Opinion, 10/23/2015, at 19. This was not error.
See Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa.Super.2010)
(“judicial estoppel is properly applied only if the court concludes the
following: (1) that the appellant assumed an inconsistent position in an
earlier action; and (2) that the appellant’s contention was ‘successfully
maintained’ in that action.” In re Adoption of S.A.J., 838 A.2d 616, 620,
621 (Pa.2003)).
Judgment affirmed.
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J-A15035-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2016
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