McMullen v. Kutz

DISSENTING OPINION BY

COLVILLE, J.:

¶ 1 In my view, the trial court erred in the manner in which it assessed Appellant’s counsel’s fees for reasonableness. I, therefore, dissent.

¶ 2 Pursuant to the clear and unambiguous terms of the parties’ settlement agreement, Appellee was required to pay to Appellant the “legal fees and costs incurred by [Appellant] in enforcing her rights under th[e] Agreement.” Separation and Property Settlement Agreement, 7/7/00, at ¶ 17. I have no quarrel with the Majority’s conclusion that Appellant’s counsel was required to charge Appellant a reasonable fee. See Majority Opinion, at 834 (“It may be assumed that implicit in this provision is the condition that the attorney’s fee must a reasonable fee.”) (quoting Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645, 650 (1981)).5

¶ 3 The test for assessing the reasonableness of an attorney’s fee has been stated as follows:

[T]he trial court must consider:

.... the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was “created” by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question.

Estate of Murray v. Love, 411 Pa.Super. 618, 602 A.2d 366, 370 (1992) (quoting In re Trust Estate of LaRocca, 431 Pa. 542, 246 A.2d 337, 339 (1968)) (emphasis added). Moreover,

[a]s in all cases where the reasonableness of an attorneys’ fee is questioned, our power of review is necessarily limited. We may only reverse the trial court if we find an abuse of discretion or an error of law, and we will not find that *837the trial court has abused its discretion unless the award is based on erroneous factual findings or irrelevant legal factors.

Estate of Murray, 602 A.2d at 370.

¶ 4 In its opinion, the trial court offered the following explanation as to why it considered $1,200 to be a reasonable fee for Appellant’s counsel to collect:

We did not, however, feel that it was reasonable for [Appellant] to incur almost $3,000 in legal fees to litigate this matter. We note that there was no attempt by her counsel to resolve these issues short of involving the courts. Counsel’s first contact with [Appellee] in connection with these matters was a letter which accompanied the “Petition to Enforce”. The letter demanded payment of all sums due plus counsel fees. However, there was no breakdown of what sums were due, or the counsel fees being claimed.
The issues involved in this case were simple and straightforward. Further, the record is devoid of any attempt by plaintiff, or her counsel, to resolve the issues or to keep fees reasonable. Under those circumstances, we felt that award of $1,200 for counsel fees (about 1.5 times the amount awarded for the underlying dispute) was reasonable.

Trial Court Opinion, 5/30/06, at 2 (emphasis in the original) (footnote omitted).

¶ 5 The trial court’s stated reasons for drastically decreasing counsel’s fees are insufficient. In assessing the reasonableness of Appellant’s counsel’s claimed fees, the court failed to consider a number of the factors listed above and considered legal factors wholly irrelevant to such an assessment.

¶ 6 In finding that $1,200 constituted a reasonable fee, the trial court put much stock in its observation that Appellant made no attempt to settle this matter short of taking Appellee to court. Whether Appellant attempted to settle this matter short of litigation simply is not a factor to be considered by a court in assessing the reasonableness of attorney’s fees. Furthermore, the parties’ agreement did not require that Appellant attempt to settle her dispute with Appellee before involving the courts. In fact, the agreement expressly allowed Appellant to sue Appel-lee for any breach of the agreement.6,7

¶ 7 For these reasons, I would vacate the trial court’s order awarding Appellant $1,200 in attorney’s fees, instruct the trial court to hold further proceedings in order for the court to obtain the information it would need to consider all of the factors relevant to determining whether counsel fees are reasonable, and instruct the trial court to consider to what extent Appellee is responsible for paying the legal fees and costs Appellant incurred in prosecuting this appeal in order to secure her eontrac-*838tual right to be reimbursed for these expenses.

. I, however, distance myself from the Majority's conclusion that "when a contract provides for the award of counsel fees, but does not specify that they must be reasonable, the trial court must nonetheless examine the fees for reasonableness.” Majority Opinion at 835. If a contract, such as the agreement in this case, does not require that a court examine the reasonableness of counsel fees, then, as I see it, the trial court may not examine the reasonableness of the claimed fees unless the aggrieved party raises a specific objection to the fees. Here, Appellee challenged the amount of attorney's fees in a post-hearing brief requested by the court.

. The settlement agreement provides, in pertinent part:

If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, and the party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement. Separation and Property Settlement Agreement, 7/7/00, at ¶ 17 (emphasis added).

. I also note that, to the extent that it could be argued that Appellant had some sort of amorphous duty to attempt to settle this matter without involving the courts, I fail to see how this duty would not apply equally to Appellee. The record is just as devoid of any attempt by Appellee, or his counsel, to resolve the issues or to keep fees reasonable as it is devoid of the same in regard to Appellant.