Mickman, E. v. White & Williams

M
J-S48004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ELAINE MICKMAN                         :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 WHITE AND WILLIAMS, LLP                :     No. 3083 EDA 2019


            Appeal from the Order Entered September 24, 2019,
           in the Court of Common Pleas of Philadelphia County,
                  Civil Division at No(s): No. 180801787.


BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.:                         Filed: March 5, 2021

     Elaine Mickman appeals from the order granting summary judgment in

favor of her attorneys, White and Williams, LLP, (“W&W”) in this legal

malpractice action. Upon review, we affirm.

     This case arose from other litigation summarized as follows. In 2003,

Mickman’s ex-husband filed for divorce and equitable distribution in the

Court of Common Pleas of Montgomery County, Pennsylvania. The divorce

action was very contentious.   The couple owned several corporations, and

Mickman wanted to ensure that the corporate assets were properly divided.

     On December 1, 2007, Mickman hired W&W to represent her in

connection with separate litigation she wanted to file against her estranged

husband Richard Mickman, American International Processing, Inc. [AIP] and

other individuals and corporate defendants. As part of their representation,
J-S48004-20



W&W agreed to “prepare and serve requests for information from corporations

in which [Mickman] was a shareholder” to gather information that she could

also use in her divorce action.

        In early 2009, W&W filed suit in the Court of Chancery in the state of

Delaware against AIP and others. Over the course of the next two years, the

parties engaged in discovery, which included several disputed motions.

        On June 29, 2011, the Pennsylvania trial court issued an amended

divorce decree, which incorporated equitable distribution and support orders.

As part of the equitable distribution, the court awarded 30% of AIP and a

related company, LFF, LLC, to Mickman, and 70% of those assets to her ex-

husband. The court noted that its award took into account all of Mickman’s

earnings from AIP. Significantly, the court also directed Mickman to terminate

all proceedings against AIP, LLC and any related businesses and various John

Does in the State of Delaware. Mickman appealed the equitable distribution

order to this Court. The Delaware case was stayed pending that appeal.

        On October 18, 2012, this Court affirmed the distribution order. Shortly

thereafter, W&W informed opposing counsel in the Delaware case that it

intended to move forward and pursue claims that were not encompassed by

the equitable distribution order. During a conference on March 14, 2014, the

Delaware court directed Mickman to file an amended complaint by April 2,

2014.

        On March 28, 2014, a few days before the amended complaint was due,

W&W filed a motion to withdraw as Mickman’s counsel in the Delaware case,

                                      -2-
J-S48004-20



based on Mickman’s failure to pay legal fees and expenses. W&W also

requested additional time for Mickman to file her amended complaint (since

they had not yet done so), and requested the court to stay any further

proceedings so Mickman could retain new counsel.           Mickman and the

defendants opposed the motion. The court took the matter under advisement.

      A few months later, on June 5, 2014, AIP filed a motion to dismiss the

Delaware case.

      On August 20, 2014, the Delaware Court granted W&W’s motion to

withdraw. The court granted Mickman additional time to obtain new counsel

and file an amended complaint. Mickman, pro se, filed an amended complaint,

but it was never answered.

      On January 15, 2015, the trial court in the divorce action held Mickman

in contempt for her failure to terminate the Delaware case. It again directed

Mickman to terminate the Delaware case by February 11, 2015. Mickman did

not comply. The next day, the defendants again moved to dismiss that case.

      On June 25, 2015, the Delaware Court granted the defendants’ motion

to dismiss Mickman’s case with prejudice, based upon, inter alia, the

Pennsylvania court’s directive to Mickman. Mickman did not appeal that order.

      More than three years later, on August 20, 2018, Mickman, pro se,

initiated this lawsuit against W&W; she asserted four causes of action in three

counts in her complaint.     In Count One “Breach of Contract and Fiduciary

Duty,” Mickman alleged:




                                     -3-
J-S48004-20


      [W&W] Breached the Contract . . . to [Mickman] by failing to file
      an Answer/Objection to a June 5, 2014 Motion to Dismiss filed by
      opposing counsel while [W&W] was [Mickman’s] attorney of
      record until they were granted to withdraw August 20, 2014 . . . .
      breached their contractual duty to provide legal service in a
      manner consistent with the profession at large, and their Breach
      of Contract and Fiduciary Duty sabotaged and prejudiced [her]
      case.

Complaint, ¶ 4.

      In Count Two, “Quantum Meruit-Unjust Enrichment,” Mickman alleged

in part:

      [W&W] was unjustly enriched by knowingly accepting and
      benefiting from [Mickman’s] payments without providing [her]
      any tangible legal services of value.

Complaint ¶ 7.    Mickman sought return of legal fees in the amount of

$112,700.

      In Count Three, “Fraudulent and Deceptive Practices,” (Fraud) Mickman

alleged:

      [W&W] deceived [her] and fraudulently represented that they
      “would see [her] legal matter through because the case was
      meritorious.” The amount of legal fees billed by [W&W] was
      excessive to substantiate that they took an unfair advantage and
      perpetrated a fraud against them.

Complaint ¶ 8.    Mickman additionally claimed that W&W had a conflict of

interest in representing the debt collection company against her.

      Following the completion of discovery, W&W filed a motion for summary

judgment. W&W claimed that: 1) the fraud and breach of fiduciary duty claims

were barred by the statute of limitations; 2) the quantum meruit/unjust

enrichment claims did not apply because there was a written contract between

                                    -4-
J-S48004-20



Mickman and W&W; and 3) Mickman could not prove that she would have

recovered a judgment in the Delaware case if it were not for W&W’s alleged

breaches.

      The trial court granted W&W’s motion. Mickman filed this timely appeal.

Both the trial court and Mickman complied with Pennsylvania Rule of Appellate

Procedure 1925.

      Mickman raises the following single issue for our review:

      1. Whether the [t]rial [c]ourt erred when it rested its decision to
         grant a motion for summary judgment by relying on facts that
         were material and in dispute to determine that [Mickman’s]
         claims should be dismissed.

Mickman’s Brief at 3 (footnote omitted).

      Initially, we observe that Mickman has failed to comply with the

Pennsylvania Rules of Appellate Procedure. Her statement of errors

complained of on appeal and her statement of questions involved are not

sufficiently specific, and therefore violate appellate Rules 1925(b) and 2116,

respectively.   Rule 1925(b) requires an appellant, inter alia, to “concisely

identify each ruling or error that the appellant intends to challenge with

sufficient detail to identify all pertinent issues” for the trial court judge.

Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). We have emphasized:

      Rule 1925 is a crucial component of the appellate process because
      it allows the trial court to identify and focus on those issues the
      parties plan to raise on appeal. This Court has further explained
      that a Concise Statement which is too vague to allow the court to
      identify the issues raised on appeal is the functional equivalent to
      no Concise Statement at all.


                                     -5-
J-S48004-20



Tucker v. R.M. Tours, 

939 A.2d 343

, 346 (citations and quotation marks

omitted). This Court also has held that “failure to comply with the minimal

requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the

issues raised.” U.S. Bank, N.A. v. Hua, 

193 A.3d 994

, 997 (Pa. Super. 2018)

(emphasis in original, citation omitted); see also Greater Erie Indus. Dev.

Corp., 

88 A.3d 222

, 224 (stating that this Court does not have discretion to

ignore the internal deficiencies of Rule 1925(b) statements).

      Similarly, Rule 2116, provides that “the statement of the questions

involved must state concisely the issues to be resolved, expressed in the

terms and circumstances of the case but without unnecessary detail.”

Pa.R.A.P. 2116(a) (emphasis added).        The rules further provide that non-

compliance may result in quashal. Pa.R.A.P. 2101; see Wilkins v. Marsico,

903 A.2d 1281

, 1285 (Pa. Super. 2006) (holding that significant deviations

from the rules governing appellate briefs are sufficient grounds to suppress

an appellant's brief and quash the appeal).

      Here, Mickman’s 1925(b) statement of errors and the statement of

issues in her appellate brief only allege that the trial court erred in granting

summary judgment generally; Mickman did not identify which claims she

believes should have survived or which disputed facts she believes the trial

court ignored when granting the motion for summary judgment. The purpose

of the 1925(b) statement is to sufficiently identify issues for the trial court, so

it can address them in its opinion to this Court. Mickman’s general statement




                                       -6-
J-S48004-20



that “the trial court erred in granting summary judgment” fails to meet the

purpose of this rule.

       Additionally, Rule 2119 provides that, “the brief must support the claims

with pertinent discussion, with references to the record and with citations to

legal authorities.” In her brief, Mickman only cursorily discussed her breach

of contract and fraud claims. She made no argument regarding her unjust

enrichment or breach of fiduciary duty claims. It is well settled that the failure

to present argument in a brief constitutes waiver of the claim on appeal. See,

e.g., Commonwealth v. Sneddon, 

738 A.2d 1026

, 1028–1029 (Pa. Super.

1999). “When issues are not properly raised and developed in briefs, when

the briefs are wholly inadequate to present specific issues for review, a court

will not consider the merits thereof.” Commonwealth v. Drew, 

510 A.2d 1244

, 1245 (Pa. Super. 1986).

       Because Mickman failed to comply with the appellate rules set forth

above, we are compelled to find that she waived her sole appellate issue. 1

____________________________________________


1 We acknowledge that Mickman represented herself at the outset of her
appeal and has no legal training. However,

       “a pro se litigant . . . is not entitled to any particular advantage
       because he lacks legal training. . . . [A]ny layperson choosing to
       represent himself in a legal proceeding must, to some reasonable
       extent, assume the risk that his lack of expertise and legal training
       will prove his undoing.”

Satiro v. Maninno, 

237 A.3d 1145

, 1151 (Pa. Super. 2020) (quoting
Commonwealth v. Rivera, 

685 A.2d 1011

(Pa. Super. 1996). We also
acknowledge that current counsel endeavored to amend Mickman’s concise



                                           -7-
J-S48004-20



       Were we to consider the merits of Mickman’s appeal, we nonetheless

would affirm the trial court’s entry of summary judgment.

       Regarding her breach of contract claim set forth in Count One of her

complaint, Mickman claimed she did not need expert testimony because

W&W’s failure to represent her was obvious.

Id. at 13.

Under Pennsylvania

law, “an individual who has taken part in an attorney-client relationship may

sue his attorney for malpractice under either a trespass [tort] or assumpsit

[contract] theory, each of which requires the proof of different elements.”

Fiorentino v. Rapoport, 

693 A.2d 208

, 212 (Pa. Super. 1997). Regardless

of the nature of Mickman’s action,2 we agree with the trial court that she

needed expert testimony to establish both the elements of her claim, and that

W&W’s conduct fell short of what was expected of them as her attorneys. See

Gorski v. Smith, 

812 A.2d 683

, 697 (Pa. Super. 2002); Storm v. Golden,

538 A.2d 61

, 64 (Pa. Super. 1988) (holding that by its very nature, the specific

standard of care attributed to legal practitioners necessitates an explanation

by an expert witness when a jury sits as the fact finder). The only exception

is “where the matter under investigation is so simple, and the lack of skill or

want of care is so obvious, as to be within the range of the ordinary experience
____________________________________________


statement, but this Court denied that request without prejudice to make that
request with the trial court. Neither counsel nor Mickman made any additional
request with the trial court.
2 If it were a negligence claim, we note that Mickman would have had to file
a certificate of merit under Rule 1042.3. Where no certificate of merit is filed,
the trial court may dismiss the claim. Zokaites Contracting Inc. v Trant
Corp., 

968 A.2d 1282

, 1287 (Pa. Super. 2009).

                                           -8-
J-S48004-20



and comprehension of even nonprofessional persons.”        Chandler v. Cook,

265 A.2d 794

, 796 (Pa. 1970). Given the complexity of the Delaware case

where W&W represented Mickman, the issues were not as simple as “an

attorney who fails to file a response to a motion to dismiss which causes you

to lose your case breached his contract to you,” as Mickman claims.

       In addition, Mickman needed expert testimony to prove any damages

she would have recovered but for W&W’s alleged breach of duty.             See

Wachovia Bank v. Ferretti, 

935 A.2d 565

, 571 (Pa. Super. 2007). Nominal

damages, speculative harm, or the threat of future harm not yet realized is

not sufficient.

Id. The nature of

a shareholder action and any losses arising

therefrom are matters not within the ordinary knowledge of a layperson.

       Additionally, summary judgment was proper on Mickman’s breach of

fiduciary duty claim; this claim was also set forth in Count One of her

complaint and was based upon the same allegations as her breach of contract

claim. Even assuming the action was not barred by the statute of limitations,3

Mickman failed to produce any evidence to support her claim that the 2015

dismissal of the Delaware case was caused by W&W’s failure to file a response

to the motion to dismiss, especially when W&W was granted permission to




____________________________________________


3 This claim is governed by a two-year statute of limitations which either began
to run on August 20, 2014, when W&W sought to withdraw from her case, or
at the latest, on June 25, 2015, when the Delaware court dismissed her case.
Because Mickman only filed this action in August 2018, she was well past the
two-year deadline.

                                           -9-
J-S48004-20



withdraw from the case in 2014. See Trial Court Opinion, 9/24/19, at 5-6.

Without this evidence, Mickman cannot establish she is entitled to relief.

      Summary judgment was also proper on Mickman’s unjust enrichment

claim set forth in Count Two of her complaint. Our Supreme Court has held

that “the quasi-contractual doctrine of unjust enrichment is inapplicable when

the relationship between parties is founded on a written agreement or express

contract.” Schott v. Westinghouse Elec. Corp., 

249 A.2d 443

, 448 (Pa.

1969). Here, it is undisputed that Mickman had a written agreement for legal

services with W&W. Therefore, this alternative claim fails as a matter of law.

      And finally, summary judgment was proper on Mickman’s fraud claim

set forth in Count Three of her complaint. Mickman argues that W&W engaged

in fraudulent billing in 2014 when it billed her for services during the pendency

of the motion to dismiss in the Delaware case. The statute of limitations for

a cause of action or proceeding to recover damages for injury or property

based on deceit or fraud is two years. 42 Pa.C.S.A. § 5524(7). In an action

based upon a fraud, the statute of limitations will run from the date of the

fraudulent act complained of. Turtzo v. Boyer, 

88 A.2d 884

, 885 (Pa. 1952).

Clearly, any alleged fraud arising from services for which W&W billed Mickman

in 2014, before it sought to withdraw from her lawsuit, is barred by the two-




                                     - 10 -
J-S48004-20



year statute of limitations. Therefore, the trial court properly concluded that

Mickman’s claim regarding W&W’s billing in 2014 was time barred.4

       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/21




____________________________________________


4 As to Mickman’s argument that W&W engaged in fraud in 2018 when they
sought to recover their outstanding fees, it does not appear from the record
that Mickman raised this claim before the trial court. Consequently, this claim
is waived. Moreover, we note that W&W filed a separate lawsuit against
Mickman to collect outstanding fees she owed to W&W. That collection action
was ultimately resolved by this Court. If Mickman had any issues relating to
the validity of W&W’s legal fees, she should have addressed them in that
matter.

                                          - 11 -

Add comment

By

Recent Posts

Recent Comments