Opinion
J-S61033-16 No. 229 WDA 2016
08-31-2016
SANDRA E. AMBELIOTIS v. NICHOLAS M. AMBELIOTIS, APPEAL OF: BUNDE, GILLOTTI, MULROY & SCHULTZ, P.C.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order January 22, 2016 in the Court of Common Pleas of Allegheny County, Family Court Division, No(s): FD 13-003823-008 BEFORE: PANELLA, LAZARUS and MUSMANNO JJ. MEMORANDUM BY MUSMANNO, J.:
Bunde, Gillotti, Mulroy & Shultz, P.C. ("BGMS") appeals from the Order granting Sandra E. Ambeliotis's ("Ambeliotis") Petition to Establish Payment Plan on Charging Lien. We affirm.
BGMS purports to appeal from the denial of its Motion for Reconsideration. It is well-settled that "an appeal will not lie from the denial of a motion for reconsideration." Karschner v. Karschner , 703 A.2d 61, 62 (Pa. Super. 1997). However, BGMS's appeal was filed within 30 days of the January 22, 2016 Order granting Ambeliotis's Petition. Thus, we will address the appeal.
In March 2013, Ambeliotis retained Hilary Bendik ("Bendik"), an attorney for BGMS, to represent her during divorce proceedings. Ambeliotis paid an initial retainer of $3,500 and signed an engagement agreement with BGMS, which included BGMS's right to assert a charging lien for any unpaid fees against any fund Ambeliotis received as a result of the firm's work. Ambeliotis initially made regular payments for BGMS's services. Once the regular payments stopped, Ambeliotis assured BGMS she would pay the fees. As a result, BGMS continued to represent her. At the time of the equitable distribution trial in February 2015, Ambeliotis owed approximately $60,000 in fees.
Following the equitable distribution trial, the Master released her Report and Recommendation on May 18, 2015. According to the Master's Report, the marital estate would be divided 55/45 in Ambeliotis's favor. However, due to limited liquid assets available for distribution, the Master recommended Ambeliotis receive her equitable distribution award through 84 monthly payments of $1,858.89. Additionally, Ambeliotis was to receive $1,200 per month for 24 months, as rehabilitative alimony payments. Thereafter, Ambeliotis and her ex-husband filed Exceptions.
In June 2015, Bendik left BGMS, and Ambeliotis transferred her case with Bendik. Bendik argued Ambeliotis's case on Exceptions, including an argument for the equitable distribution to be allowed in one lump sum. On November 15, 2015, after the Exceptions case was heard, the trial court ordered the equitable distribution award to be paid through 84 monthly payments of $2,283.15.
The trial court retained the 55/45 split in Ambeliotis's favor. See Order, 11/15/15, at 1 (unnumbered); see also Trial Court Opinion, 4/6/16, at 2 n.1. The updated monthly distribution was higher due to some omitted assets. See Trial Court Opinion, 4/6/16, at 2 n.1.
While the Exceptions were still pending, BGMS filed a Petition to Establish a Charging Lien. BGMS was seeking to recover Ambeliotis's unpaid balance for the services provided while Bendik was working at BGMS. In the October 21, 2015 Order, the trial court issued a charging lien against Ambeliotis in the amount of $63,601.45. Any funds from an equitable distribution award were to be placed in escrow "pending further agreement of the parties or Order of Court." Order, 10/21/15, at 2.
On January 22, 2016, Ambeliotis filed a Petition to Establish Payment Plan on Charging Lien. Ambeliotis notified the trial court that she and BGMS were unable to come to an agreement on how the charging lien should be paid. On the same day, the trial court issued an Order for Ambeliotis to make monthly payments of $1,200 to satisfy the charging lien. The trial court directed Ambeliotis's ex-husband to pay $1,200 of the monthly equitable distribution award to BGMS, leaving Ambeliotis with $1,083.15 per month from the award.
It appears the trial court incorrectly stated that Ambeliotis would only receive $1,038.15 after the payment to BGMS.
Thereafter, BGMS filed a Motion to Reconsider, which the trial court denied. BGMS filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.
On appeal, BGMS presents five questions for our review:
1. Did the trial court commit an error of law and abuse its discretion in modifying the terms of an Order of Court entered on October 21, 2015[,] for which no motion for reconsideration or appeal had been filed?
2. Did the trial court commit an error of law and abuse its discretion in acting outside of its authority and interfering with contractual obligations entered into by BGMS and their prior client?
3. Did the trial court commit an error of law and abuse its discretion in deferring payments that were due BGMS consistent with an attorney charging lien?Brief for Appellant at 4 (issues renumbered for ease of disposition).
4. Did the trial court commit an error of law and abuse its discretion in failing to follow established Pennsylvania law relating to attorney charging liens?
5. Did the trial court commit an error of law, act outside of its authority and abuse its discretion in entering an Order of Court essentially modifying the terms of a fee agreement between BGMS and their former client?
Initially, courts must consider five factors before issuing a charging lien:
(1) [] there is a fund in court or otherwise applicable for distribution on equitable principles, (2) [] the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid, (3) [] it was agreed that counsel look to the fund rather than the client for his compensation, (4) [] the lien claimed is limited to costs, fees or other disbursements incurred in the litigation by which the fund was raised and (5) [] there are equitable considerations which necessitate the recognition and application of the charging lien.Shenango Sys. Solutions , Inc. v. Micros-Systems , Inc., 887 A.2d 772, 774 (Pa. Super. 2005) (quoting Recht v. Urban Redevelopment Auth., 168 A.2d 134, 138-39 (Pa. 1961)).
In BGMS's first claim, it contends that the trial court abused its discretion in modifying the terms of the October 21, 2015 Order. See Brief for Appellant at 10-11. BGMS claims that because the Order granting the Petition to Establish Payment Plan was filed three months after the Order granting the charging lien, the trial court acted outside of its jurisdiction under 42 Pa.C.S.A. § 5505. Id.
Section 5505 states that "[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed." 42 Pa.C.S.A. § 5505.
In its October 21, 2015 Order, the trial court stated that any funds Ambeliotis received through equitable distribution were to go into an escrow account "pending further agreement of the parties or Order of Court." Order, 10/21/15, at 1-2. The trial court noted that the January 22, 2016 Order granting of the payment plan "did not modify the October 21, 2015 Order at all; it was contemplated by it." Trial Court Opinion, 4/6/16, at 5.
Here, the trial court granted the charging lien against Ambeliotis while the Exceptions on the equitable distribution were still being decided. Due to the language of the original Order, and the fact that pertinent terms of the equitable distribution award were still being determined at the time the charging lien was issued, the October 21, 2015 Order was not a final order. See Pa.R.A.P. 341(b)(1) (noting that a final order disposes of all claims and parties); see also G.B. v. M.M.B., 670 A.2d 714, 717 (Pa. Super. 1996) (stating that an order is final if it resolves all pending issues and constitutes a complete disposition of the claims). Rather, the potential for further judicial action was contemplated, and the trial court acted within its jurisdiction once such action was necessitated. Thus, BGMS's first claim is without merit.
In its second claim, BGMS contends that the trial court went beyond its subject matter jurisdiction by interfering with the contractual obligations of the fee agreement between BGMS and Ambeliotis. See Brief for Appellant at 12-14. In its third claim, BGMS argues that the trial court abused its discretion by effectively deferring payments. Id. at 17-18.
"Whether a court has subject matter jurisdiction presents a question of law, making our standard of review de novo and the scope of our review plenary." Orman v. Mortgage I.T., 118 A.3d 403, 406 (Pa. Super. 2015).
In its Opinion, the trial court addressed BGMS's claims and determined they are without merit. See Trial Court Opinion, 4/6/16, at 6-8. Because the foundation of the Petition to Establish Charging Lien was the language of the fee agreement, it was within the trial court's jurisdiction, and necessary after failed payment negotiations, to examine the language of this fee agreement and determine a reasonable interpretation under which to enforce the charging lien. Further, notwithstanding the longer payment schedule, the decision to grant the established payment plan does not jeopardize BGMS's interest in full payment of the unpaid fees. Thus, we adopt the sound reasoning of the trial court for the purpose of this appeal. See Trial Court Opinion, 4/6/16, at 9-10.
In BGMS's fourth claim, it avers that the trial court abused its discretion by failing to follow Pennsylvania law relating to charging liens. See Brief for Appellant at 15-16. BGMS asserts that the charging lien must be satisfied before Ambeliotis is to receive any portion of the equitable distribution award. Id.
The trial court addressed BGMS's fourth claim and determined that it is without merit. See Trial Court Opinion, 4/6/16, at 8-9; see also 23 Pa.C.S.A. § 3323(f) (stating that the trial court may act with "full equity power and jurisdiction[,] and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause."); Shenango , 887 A.2d at 774 (stating that a trial court may account for equitable considerations regarding the issuance of the charging lien). We affirm with regard to this issue based on the trial court's sound rationale. See Trial Court Opinion, 4/6/16, at 8-9.
In its fifth claim, BGMS argues that the trial court acted outside its authority by modifying the fee agreement. See Brief for Appellant at 19-20.
The trial court addressed BGMS's claim and determined it is without merit, and we incorporate such rationale herein. See Trial Court Opinion, 4/6/16, at 9-10. The fee agreement's purpose of ensuring full compensation for services provided by BGMS was not modified. Thus, the trial court's analysis of the fee agreement was reasonable, and we adopt its sound reasoning for the purpose of this appeal. See Trial Court Opinion, 4/6/16, at 9-10.
Based on the foregoing, the trial court acted within its jurisdiction, and did not abuse its discretion. Thus, we affirm the Order granting the payment plan.
Additionally, Ambeliotis seeks enforcement of an arbitration clause in the fee agreement, and she requests an award of attorney's fees related to this appeal based on a frivolous appeal or vexatious conduct. See Brief for Appellee at 8-9; see also Pa.R.A.P. 2744; Fee Agreement, 3/5/13, at 3-4. However, Ambeliotis filed the Petition to Establish Payment Plan in the Court of Common Pleas, and did not seek the assistance of the Allegheny County Bar Association's Special Fee Dispute Committee when BGMS would not negotiate a reasonable payment plan. See Stanley-Laman Group v. Hyldahl , 939 A.2d 378, 382-83 (Pa. Super. 2007) (stating that "[a] party's acceptance of the regular channels of the judicial process can demonstrate its waiver of arbitration."); see also Smay v. E.R. Stuebner , Inc., 864 A.2d 1266, 1278 (Pa. Super. 2004) (stating that acceptance of the judicial process includes a party's failure to raise the arbitration issue promptly). Thus, Ambeliotis's arbitration claim is waived. Further, the appeal was not frivolous as it was reasonable for BGMS to appeal any decision through the judiciary. Accordingly, Ambeliotis is not entitled to attorney's fees.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/31/2016
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