O'Kelly v. Dawson

62 A.3d 414, 2013 Pa. Super. 25, 2013 WL 600209, 2013 Pa. Super. LEXIS 71
CourtSuperior Court of Pennsylvania
DecidedFebruary 19, 2013
StatusPublished
Cited by20 cases

This text of 62 A.3d 414 (O'Kelly v. Dawson) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Kelly v. Dawson, 62 A.3d 414, 2013 Pa. Super. 25, 2013 WL 600209, 2013 Pa. Super. LEXIS 71 (Pa. Ct. App. 2013).

Opinions

OPINION BY WECHT, J.:

Michelle S. Dawson, Esquire [“Appellant”] appeals from the trial court’s judgment entered following a jury verdict that found her negligent in her representation of James O’Kelly [“Husband”] in a divorce proceeding. Appellant was ordered to pay damages to Husband in the amount of $100,863.64. Following careful review, we affirm.

Appellant began representing Husband in a divorce proceeding in 2001. Notes of Testimony [“N.T.”], 11/8-9/12, 50-51. In May 2002, Appellant and the lawyer for Husband’s former wife [“Wife”] began negotiating toward a spousal and child support agreement. Id. at 53-54. The parties tentatively agreed that Husband would pay alimony for three years at a rate of $1,750 per month for the first year, $1,550 per month for the second year, and $1,350 per month for the third year. Id. at 56-57. The parties also agreed to divide the marital property, with 55% attributed to Wife and 45% attributed to Husband. Id. at 54. Thereafter, Husband began making payments consistent with this agreement. Id. at 77.

Wife’s attorney memorialized this agreement in a May 3, 2002 letter. Id. at 54-55. However, the letter proposed also that: “This alimony shall be non-modifiable and shall not be affected by remarriage, cohabitation or the like.” Id. at 56-57. Appellant told Husband that this new term was contrary to law and that he should not accept it. Id. at 58-60. While the parties continued to have discussions, they never signed a finalized alimony agreement. The parties did sign a consent order governing spousal support. N.T. at 67-70; Order, 11/14/02 at 1-4. That order reflected the payments upon which the parties had agreed. N.T. at 69; Order, 11/14/02, at 1-4.

Having failed to sign a final alimony agreement, the parties presented their dispute to a divorce master. After several hearings, the master issued a June 13, 2004 report and recommendation awarding Wife alimony in the amount of $1,000 each month for ten years, or until Wife remarried or cohabitated, or until either party died. N.T. at 81.

In the view of Appellant and Husband, this recommendation deviated sharply from the terms of the agreement that Appellant had negotiated with Wife’s attorney. On Husband’s behalf, Appellant filed timely exceptions to the master’s recommendation. Appellant assured Husband [417]*417that the master’s recommendation was “all wrong, totally wrong, ... totally incorrect.” Id. at 82. Appellant testified: “I did not in this case think we had any chance of not winning that issue. We had already agreed to alimony. There was no question. I figured the master either forgot or whatever_” Id. at 240-41. Husband averred that he relied upon Appellant’s legal advice. See, e.g., id. at 69, 94.

On October 4, 2004, the parties argued the exceptions before the trial court. On March 29, 2005, the court dismissed the exceptions, and adopted the master’s recommendation. Husband decided not to appeal that decision. Id. at 85.

In 2007, Husband commenced a professional negligence action against Appellant. Husband alleged malpractice predicated mainly on Appellant’s failure to effectuate the tentative alimony agreement set forth in the May 2002 correspondence. See Amended Complaint in Civil Action, at ¶¶ 8-19. Appellant filed a motion for summary judgment, asserting that Husband’s claim was barred by the statute of limitations. The trial court denied the motion, stating that the equitable tolling and fraudulent concealment doctrines might be available in this case as defenses to the statute of limitations. Order, 10/23/09, at 1. The court ruled that decision as to whether the statute of limitations was tolled by either of these doctrines “requires a factual determination as to when [Husband] was able, in the exercise of reasonable diligence, to know of the injury and its cause.”1 Id., citing Fine v. Chec-cio, 582 Pa. 253, 870 A.2d 850 (2005).

On November 8 and 9, 2010, the case was tried to a jury.2 After deliberations, the jury found in favor of Husband and awarded him $100,363.64. The parties filed post-trial motions. In the post-trial motion relevant to this appeal, Appellant requested judgment notwithstanding the verdict [“JNOV”] on several grounds, including the two that she asserts on this appeal: (1) that Appellant’s claim was barred by the statute of limitations; and (2) that the verdict was against the weight of the evidence. The trial court denied Appellant’s motion. The trial court found that the statute of limitations was tolled by the equitable discovery doctrine until March 29, 2005, the date of the trial court order dismissing Appellant’s exceptions and adopting the master’s recommendation. As well, the court rejected Appellant’s weight of the evidence claim. Appellant appealed, and timely filed a statement of errors complained of on appeal pursuant to Pa.R.A.P.1925(b).

On appeal, Appellant raises two questions for our review:

1. Whether an attorney can be held negligent for failing to finalize an alimony agreement when the spouses never agreed to all of the essential terms[?]
2. Whether the statute of limitations barred the legal malpractice action[?]

Appellant’s Brief at 2.

Appellant’s first question implicates her belief that the jury should have credited Appellant’s testimony and that of her expert, John Patrick Smider, Esquire, over the testimony of Husband and Husband’s expert, Ronald T. Conway, Esquire. Such a claim amounts to a challenge to the weight of the evidence. Our standard of review is well-settled:

[418]*418In evaluating a claim that a verdict is against the weight of the evidence, Pennsylvania courts employ a shoeks-the-conscience litmus. The trial judge’s authority to award a new trial on weight-of-the-evidence grounds is narrowly circumscribed on account of the principle that credibility questions are exclusively for the fact finder. The matter is couched as discretionary in the trial court, with its role in the assessment being afforded primacy in view of its substantially closer vantage to the evidentiary presentation as compared to that of an appellate court. Relief is available in an appellate court only if it can be said that the trial court acted capriciously or palpably abused its discretion.

Hatwoodv. Hosp. of the Univ. of Pennsylvania, 55 A.8d 1229, 1238 (Pa.Super.2012).

Appellant argues that the parties did not come to an understanding as to all of the essential terms of the agreement, and that Appellant cannot be faulted for failing to finalize an agreement that the parties failed to reach. In particular, Appellant contends, the parties did not agree upon modifiability in the event of death. The agreement therefore could not be concluded. At trial, Appellant claimed that, in an April 2003 settlement agreement draft, she attempted to finalize the agreement as best she could. N.T. at 225-29. Appellant’s expert, Mr. Smider, testified that, if a material term remained in dispute, no agreement could be finalized. I.d. at 276-77.

The trial court reviewing the master’s recommendation did not refer to any lack of agreement as to modifiability after death. That court noted that the written exchanges between the parties did not specify a termination date for alimony payments.

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Cite This Page — Counsel Stack

Bluebook (online)
62 A.3d 414, 2013 Pa. Super. 25, 2013 WL 600209, 2013 Pa. Super. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/okelly-v-dawson-pasuperct-2013.