J. A32032/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


OBERMAYER REBMANN MAXWELL &                 :     IN THE SUPERIOR COURT OF
HIPPEL LLP,                                 :
                                            :           PENNSYLVANIA
                                            :
                    v.                      :
                                            :
                                            :
MICHAEL COLAIZZO                            :
                                            :
                          Appellant         :     No. 682 EDA 2014


               Appeal from the Judgment Dated January 15, 2014
              In the Court of Common Pleas of Philadelphia County
                 Civil Division No(s).: June Term 2012 No. 0389

BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 16, 2014

        Appellant, Michael Colaizzo, appeals from the judgment entered in the

Philadelphia Court of Common Pleas in favor of Appellee, Obermayer

Rebmann Maxwell & Hippel, LLP, following a jury trial. He suggests the trial

court erred by not instructing the jury on duty of good faith and fair dealing

in fulfilling a contract and by granting Appellee’s motion in limine to preclude

evidence purporting to establish Appellee’s failure to mitigate damages. We

find both issues waived and affirm.

        We adopt the facts and procedural history set forth by the trial court.

See Trial Ct. Op., 6/27/14, at 1-4. After the adverse jury verdict, Appellant



*
    Former Justice specially assigned to the Superior Court.
J. A32032/14


timely moved for a new trial raising the two grounds set forth above. The

trial court denied same, and Appellant timely appealed and timely filed a

court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issues:

         Whether the trial court erred when it did not charge the
         jury on the duty of good faith and fair dealing, which is
         implied in every contract, and which was applicable to this
         matter and which instruction was requested by [Appellant]
         and was not given.

         Whether the trial court erred when it precluded evidence
         from trial that would have demonstrated [Appellee’s]
         failure to mitigate its damages.

Appellant’s Brief at 5.

      We summarize Appellant’s arguments for both issues.              Because

Appellee engaged in unreasonable billing, Appellant maintains that Appellee

failed to comply with an alleged duty of good faith and fair dealing. He thus

suggests the court erred by not charging the jury on the duty of good faith

and fair dealing. He hypothesizes that the jury thus lacked the framework to

comprehend his arguments that Appellee “excessively billed for or performed

unnecessary” legal work. Id. at 14.     Lastly, Appellant claims that Appellee

failed to mitigate its damages. He reasons that Appellee represented him in

two other breach of contract cases that he won. Appellant alleges that the

contracts at issue had a fee-shifting provision and thus Appellee was

obligated to move to collect the fees under that provision. In other words,

Appellant asserts that Appellee was required to offset the fees owed in the



                                     -2-
J. A32032/14


instant case with fees owed in those two other cases.        Appellee counters,

inter alia, that Appellant waived the charging issue by failing to object on the

record. We hold Appellant is due no relief.

      We address whether Appellant waived his first issue.         Pennsylvania

Rule of Civil Procedure 226 provides as follows:

            (a) Points upon which the trial judge is requested to
         charge the jury shall be so framed that each may be
         completely answered by a simple affirmation or negation.
         Attorneys shall hand copies of requested points for charge
         to the trial judge and to the opposing attorneys before the
         closing addresses to the jury are begun. A requested point
         for charge that was presented to the trial judge becomes
         part of the record when the point is read into the record,
         or filed in the office of the prothonotary prior to filing a
         motion for post-trial relief regarding the requested point
         for charge.

            Note: An appellate court will not review an objection to
         a ruling of a trial court regarding a point for charge unless
         the point for charge was (1) presented to the court and (2)
         made a part of the record by either reading the point into
         the record or filing it in the office of the prothonotary prior
         to filing a motion for post-trial relief.

Pa.R.C.P. 226(a) & note (emphasis added).          Rule 227(b) governs when

exceptions must be taken to the jury charge:

            (b) Unless specially allowed by the court, all exceptions
         to the charge to the jury shall be taken before the jury
         retires. On request of any party all such exceptions and
         arguments thereon shall be made out of hearing of the
         jury.

Pa.R.C.P. 227(b). Finally, we note we can affirm the trial court on any basis.

Donnelly v. Bauer, 720 A.2d 447, 454 (Pa. 1998).




                                      -3-
J. A32032/14


     Instantly, we agree with Appellee that Appellant waived the issue.

Appellant did not make the disputed point of charge part of the record by

either reading it into the record or filing it with the prothonotary prior to

moving for post-trial relief.     See Pa.R.C.P. 226(a).      Furthermore, no

exception was taken on the record prior to the jury retiring. See Pa.R.C.P.

227(b). Accordingly, Appellant’s point of charge issue is not preserved for

review by this Court and we affirm the trial court on this issue, albeit on

other grounds. See Pa.R.C.P. 226(a); Donnelly, 720 A.2d at 454.

     Before addressing Appellant’s second issue, we state the applicable

standard of review:

          With respect to a request for a new trial, our standard
        and scope of review follows:

               To review the two-step process of the trial court
               for granting or denying a new trial, the appellate
               court must also undertake a dual-pronged
               analysis. A review of a denial of a new trial
               requires the same analysis as a review of a
               grant. First, the appellate court must examine
               the decision of the trial court that a mistake
               occurred.

                                  *    *    *

               The appropriate standard of review also controls
               this initial layer of analysis. If the mistake
               involved a discretionary act, the appellate court
               will review for an abuse of discretion. If the
               mistake concerned an error of law, the court will
               scrutinize for legal error.

               If the appellate court agrees with the
               determination of the trial court that a mistake
               occurred, it proceeds to the second level of


                                      -4-
J. A32032/14


               analysis.     The appellate court must then
               determine whether the trial court abused its
               discretion in ruling on the request for a new
               trial.   Discretion must be exercised on the
               foundation of reason. An abuse of discretion
               exists when the trial court has rendered a
               judgment that is manifestly unreasonable,
               arbitrary, or capricious, has failed to apply the
               law, or was motivated by partiality, prejudice,
               bias, or ill will. A finding by an appellate court
               that it would have reached a different result
               than the trial court does not constitute a finding
               of an abuse of discretion. Where the record
               adequately supports the trial court’s reasons
               and factual basis, the court did not abuse its
               discretion.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 891-92 (Pa. Super. 2011)

(citation omitted), appeal granted in part, 47 A.3d 1174 (Pa. 2012).

              The argument portion of an appellate brief must include
          a pertinent discussion of the particular point raised along
          with discussion and citation of pertinent authorities. This
          Court will not consider the merits of an argument which
          fails to cite relevant case or statutory authority. Failure to
          cite relevant legal authority constitutes waiver of the claim
          on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (quotation

marks and citations omitted), appeal denied, 69 A.3d 603 (Pa. 2013).

     With respect to Appellant’s second issue, we note that he failed to cite

any legal authority in support of his argument. See Appellant’s Brief at 17-

20. Accordingly, we find it waived. See In re Estate of Whitley, 50 A.3d

at 209.   Having discerned no abuse of discretion, see Braun, 24 A.3d at

891-92, we affirm the judgment below, albeit on other grounds.             See

Donnelly, 720 A.2d at 454.


                                      -5-
J. A32032/14


     Judgment affirmed.

     Judge Panella joins the memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2014




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                           IN THE COURT OF COMMON PLEAS
                       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                            TRIAL DIVISION — CIVIL SECTION



OBERMAYER REBMANN MAXWELL :
& HIPPELL,LLP.,
                                                                                       JUNE TERM,2012 NO.03895
          VS.

MICHAEL V. COLAIZZO                                                                    682 EDA 2014




                                     PA. R.C.P. 1925(a) OPINION


                               I.       PROCEDURAL/FACTUAL HISTORY


        Plaintiff filed a Cornplaint on September 29, 2012. The Complaint included claims of
                                                                                                                   the
Breach of Contract, Unjust Enrichment, QuanturnlVleruit and Action on Account against

Defendant for fees, $375,251.14, without late charges or interest, Owed to the Plaintiff in
                                                                                                             involving the
connection with the Plaintiffs representation of the Defendant in two legal actions

attempted sale/development of property owned by the Defendant.

                                                                                                                  Plaintiff-
        The Defendant had been acquainted with Jerry Kline, one of the rnembers of the
                                                                                                         contractors in
firm, through their work together on a local Board that represented builders and
                                                                                Defendant                             with
Philadelphia. Defendant approached Mr. Kline for the Plaintiff to represent the
                                                                                                      "Queen's Walk"1,
problems he was encountering in the development of property known as the


                                                                  LLC d/b/a Queen's Walk, L.P. v. Michael
1The two underlying actions are docketed at Montrose investments,
                                                   Queens  Walk, LP v. Michael Colaizzo;0606-01645
Colaizzo; 0510-03407 and Gumbo Brothers,LLC v.
                                      Oben-114er Rebmann A./as-well & bbppel Up Vs Co-OPrLD




                                      1111111111111111
                                                                                    Circulated 12/02/2014 04:24 PM




      bh was an 18 unit development worth approximately $500,000 in 1999.(N.T. 09/24/13, pp.

  69-73, 76-77).


          Defendant owned the subject property and sought to develop the land'into either

  condominiums or town homes. In 2003, he went to Michael Garnick and Richard Kowit for

  financing. There was a sales agreement for the property and the limited liability partnership of

  Queens Walk was formed. Garnick and Kowit were responsible for financing the project,

 including obtaining the requisite permits, contractors, etc. Defendant was to receive 20% of

 monies received from the units once developed.(N.T. 09/24/13, pp. 125-126, 126-131). Without

 his consent, Defendant's partners attempted to sell the property to Gumbo Brothers. Defendant

 refused to agree to the sale. Thereafter, litigation was instituted as referenced in footnote one of

 the opinion.


        As a result, Defendant sought Plaintiffs representation. A letter of engagement/fee

 agreement was signed on May 5, 2005. The re: clause states "Sale of Real Estate to Richard

Kowit, Michael Garnick and Queen's Walk, L.P. The first paragraph states that"We are

pleased that you have requested this firm to represent you respecting the sale of 912-920 South
5th Street and 509-29 Montrose Street to Messrs. Kowit and Garnick."
                                                                          The letter further states

that"We will include with each bill a detailed statement of the time spent and the services

rendered by each attorney and/or paralegal who rendered services during the prior month".


       The Defendant agreed that the Plaintiff would be paid on an hourly fee as opposed to a
                                                                               ,     •
contingency fee basis; specifically agreeing to the hourly rate of$325 for any work performed by

Mr. Kline and $350 an hour for Parry Warner's work performed. (N.T. 09/24/13, pp. 25-28, 29-




                                                 2
                                                                                             Circulated 12/02/2014 04:24 PM




,   84; 69-73, 76-77, 132-134). Both underlying actions were somewhat involved and lengthy

with numerous pre and post-trial motions filed, briefed and argued. For example, in the Montrose

action a nine day jury trial tried over the course of several months resulted; and in the Gumbo

action an appeal was taken regarding Defendant's cross-elahn.(N.T. 09/24/13, pp. 283-88, 89-

91, 93-100, 115-120,134-149, 165-168).


         Defendant was billed per the agreement from May of 2005 through approximately March
                                                                                                       Plaintiff was
of 2009. Defendant stopped making payments in June of 2007. In October of 2011,
                                                                                                              for the
permitted to withdraw as counsel in the Gumbo action; non-payment offees was the basis
                                                                                      services
withdrawal.(N.T. 09/24/13, pp. 109-112). Defendant had paid $271,000 to Plaintiff for

rendered. The outstanding balance owed was $375,251.14. Id. at 38-39, 158.


         Defendant received Plaintiffs bills. After he stopped paying, he continued to receive
                                                                                                          he still
statements and advised the Plaintiff that he was having trouble paying the bills but that
                                                                                                       09/24/13, pp.
required the Plaintiffs representation in the litigation related to the property. (N.T.

41-47, 193-194).

                                                                                         be
        Defendant contends that he was advised by Warren Pany that his legal bills would
                                                                          the quality of the
capped at $150,000.(N.T. 09/24/13, pp. 91-92). Defendant never challenged
                                                                                          the cost of the
work performed by Plaintiff, and other than voicing his concerns regarding
                                                                                               at the firm. There
litigations to Mr. Parry2, never challenged the service or charges to anyone else
                                                                                    agreement.(N.T.
is no documentary evidence regarding any oral modification to the fee

09/24/13, pp. 105-108, 190-191, 195-200).



                                                                      underlying litigation. (1\1.T.   09/24/13,pp.
 Warren Parry died from complications of ALS during the course of the
161-164, 195).
                                                         3
                                                                                               Circulated 12/02/2014 04:24 PM




            Toward the end of the Plaintiffs representation, Defendant requested Plaintiff to

    represent him in another legal rnatter. Plaintiff refused as a result of the unpaid bills in the

    Queen's Walk litigation.(N.T. 09/24/13, pp. 109-112).


            Defendant sought a non-suit at the conclusion of the Plaintiffs case. Plaintiff moved for a

    directed verdict once the Plaintiff rested. Both motions were denied by the Court.(N.T.

    09/24/13, pp. 183-187, 209).


            The Quantum Merit and Accounts Stated claims were dismissed by the Court. Following

    the Court's charge and the parties Closing Arguments, the jury retired to deliberate. The jury

    found that there was a valid contract between the parties, the Defendant had breached the

    contract by failing to pay legal fees and costs and that the Plaintiff suffered darnages as a result

    of the breach. The jury awarded the Plaintiff $350,000 in damages3.(N.T. 09/26/13, 45-47).


           On October 3, 2013, Defendant filed a Motion for Post-Trial relief seeking both

 Judgment Notwithstanding the Verdict and a New Trial. Oral argument was heard and on

 January 10, 2014, this Court denied both of Defendant's Post-trial requests.


           Plaintiff filed a Praecipe to enter Judgment on the verdict on January 15, 2014. A Notice

of Appeal was filed on February 11, 2014. This Court directed the filing of a 1925(b) Statement

of Errors Complained of on Appeal on February 25, 2014.4 Defendant filed a Statement on

March 17, 2014.




3 Following the announcement of the verdict, the jury was polled. Seven of the eight jurors agreed with the verdict.
(.T.09/26/1 3, pp. 46-47)

4The Court vacated the 2/25/14 Order since the caption contained a typographical en-or not properly identifying the
Defendant. Thereafter, the Court re-issued the 1925(b)directive in an Order dated March 10, 2014.

                                                          4
                                                                                                 Circulated 12/02/2014 04:24 PM




                                               II.       DISCUSSION


           Defendant contends that the Trial Court committed reversible error when it failed to grant

 either his request for Judgment Notwithstanding the Verdict or a Request for a New Trial.

 Regarding the Motion for a NOV,Defendant alleges that prejudicial error of law and/or an

 abuse of discretion occurred since Plaintiff had failed to demonstrate that its billing practices

 were fair and reasonable, that it entered into the agreement with Defendant in good faith and that

 the services were the subject of the billing statements were actually performed as described in

 the firm's billing statements. Defendant further asserts that the jury's verdict goes against the

 weight ofevidence presented at trial and that said verdict was contrary to applicable law.


          For essentially identical reasons, Defendant alleges that the Court committed prejudicial

 error of law and/or abused its discretion in denying his request for a New Trial. Again, he raises

the lack of evidence and failure to instruct on Plaintiffs purported duty of good faith and fair

dealing with relation to the billing.5


          With regard to a request for a JNOV,the following is instructive:


         "In reviewing a trial court's decision whether or not to grant judgment in favor
         of one of the parties, we must "consider the evidence, together with all
         favorable inferences drawn therefrorn, in a light rnost favorable to the verdict
         winner," Walker v. Grand Central Sanitation, Inc., 430 Pa.Super. 236, 634
         A.2d 237, 240 (Pa.Super.1993). "Our standard of review when considering
         !notions for a directed verdict and judgment notwithstanding the verdict are
         identical," Brown v. Philadelphia College of Osteopathic Medicine, 2000 PA
         Super 262, 760 A.2d 863, 868 (Pa.Super.2000). We will reverse a trial court's


5 Defendant alleged that the trial court erred in permitting irrelevant testimony regarding the potential value ofthe
Queens Walk project. The Court has reviewed the record several times and has found no reference to such alleged
testimony.

                                                           5
                                                                                  Circulated 12/02/2014 04:24 PM




          grant or denial of a judgment notwithstanding the verdict only when we find
          an abuse of discretion or an error of law that controlled the outcome of the
         case. Mitchell v. Moore, 1999 PA Super 77, 729 A.2d 1200, 1203
         (Pa.Super.1999). Further, "the standard of review for an appellate court is the
         same as that for a trial court." Ferry v. Fisher, 709 A.2d 399, 402
         (Pa.Super.1998).

         There are two bases upon which a judgment N.O.V. can be entered: one, the
         rnovant is entitled to judgment as a matter of law and/or two, the evidence is
         such that no two reasonable minds could disagree that the outcome should
         have been rendered in favor of the movant. With the first, the court reviews
         the record and concludes that even with all factual inferences decided adverse
         to the movant the law nonetheless requires a verdict in his favor, whereas with
         the second the court reviews the evidentiary record and concludes that the
         evidence was such that a verdict for the movant was beyond peradventure.

        "The general rule for a grant of a new trial on the basis that it is against the
        weight of the evidence allows the granting of a new trial only when the jury's
        verdict is contrary to the evidence as to shock one's sense ofjustice and a new
        trial is necessary to rectify this situation."

        Lanning v. W., 803 A.2d 753, 756,765 (Pa. Super. 2002).



        Before the Court was a breach of contract action. Instructive on the issues is Pittsburgh

Const. Co. v. Griffith. 834 A.2d 572(Pa. Super. 2003). In Griffith, plaintiff sued a homeowner

for breach of contract after homeowner blocked two payments for construction work done to

their home, claiming the work was substandard. The trial court found that the homeowners had

breached the contract and the homeowners filed post-trial rnotions seeking .INOV on the jury's

breach of contract award to plaintiff. It was noted that to support a breach of contract claim,

plaintiff must establish 1)existence ofa contract, including the essential terms, 2) breach of duty

imposed by the contract and 3)resultant damages.


                                                   6
                                                                                 Circulated 12/02/2014 04:24 PM




    at 580.


        This Court finds that the evidence presented at trial was sufficient to support the verdict.

 The evidence included the fact that Defendant entered into a contract for legal services, the May

2005 fee agreernentiletter ofengagement recited the terms ofthe billing arrangement between

the parties, Defendant was aware of the hourly fee to be charged by the two main firm

representatives working on the property development and resultant litigation, Plaintiff in fact

provided the legal services to Defendant, Defendant accepted the legal services, the services

were detailed on the billing staternents sent to Defendant on a regular basis and that Defendant

paid some, though not all, of the bills incurred.


       In the same vein of Defendant's contention that there was a requirement that the Plaintiff

establish that its billing practices were performed in good faith and with fair dealing, the

Defendant contends that the Court erred in not instructing the jury as to such a requirement.


       The purpose of a jury charge is to clarify the legal principles at issue. General
       Equip. Mfrs. v. Westfield Ins. Co., 430 Pa.Super. 526, 635 A.2d 173, 184
       (1993). A jury instruction will be upheld if it accurately reflects the law and is
       sufficient to guide the jury in its deliberations. Von der Heide v. Department
       of Transportation, 553 Pa. 120, 718 A.2d 286, 289 (1998). A trial judge is
       bound to charge the jury only on the law applicable to the factual parameters
       of a particular case and it rnay not instruct the jury on inapplicable legal
       issues. Schaefer v. Stewartstown Dev. Co., 436 Pa.Super. 354, 647 A.2d 945,
      947(1994)."

      Cruz v. N.E. Hosp., 801 A.2d 602,611 (Pa. Super. 2002).




                                                7
                                                                                   Circulated 12/02/2014 04:24 PM




         There is no such requirernent that in a breach of contract action a plaintiff must establi..

  that the fee agreed to be paid was "fair and reasonable" before a breach can be established.

  Moreover, Defendant has at no time offered any legal basis whether by statute, case law or

 otherwise that such a requirement was applicable to a contract action in general or this rnatter

 specifically. This is not a situation where the reasonableness of attorney's fees has to be

 established by the moving party, as for exarnple with bad faith claims pursuant to 42 Pa. C.S.A.

 8371. A review of this Court's charge reveals that the jury was properly instructed on the

 elements necessary for Plaintiff to establish a breach of contract.(N.T. 09/26/13, pp. 10-15).


        The jury heard Defendant's testimony that Mr. Pany had orally agreed to cap Plaintiffs

 legal fees at $150,000. They also learned that there was no written modification to the fee

agreement and that no one else in the firm was aware of any modification to the parties'

agreement. It was within the jury's province to believe sorne, all or none of the testimony

presented; they obviously did not credit Defendant's assertion that there had been an alteration or

modification to the agreement.


                                  III.   CONCLUSION

       The record fails to establish that no two reasonable minds could disagree that the
outcorne should have been rendered in favor of the Defendant or that a verdict for the Defendant
was mandated. Likewise, the jury's verdict in this instance was not so contrary to the evidence as
to shock one's sense ofjustice.




                                                 8
                                                                              Circulated 12/02/2014 04:24 PM




       Accordingly, there was no basis to either enter a Judgment Notwithstanding the Verdiel .
or a New Trial on Defendant's behalf. Therefore, this Court seeks to have its January 10, 2014
Order denying Defendant's request for such relief affirmed.




                                                   BY THE COURT:




                                                        EBSTER KEOGH,JUDGE




                                            9
