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* Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT WAGNER

v.
DAVID F. GOULD III, ESQUIRE GOULD LAW ASSOCIATES, PC, ET. AL., Appellant : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1585 EDA 2018

Appeal from the Order Entered, May 9, 2018, in the Court of Common Pleas of Bucks County, Civil Division at No(s): 2013

- 02880.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J. MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 19, 2019 David F. Gould III, Esquire (“Gould”) and Gould Law Associates, PC, et al. appeal from the judgment entered against him in the amount of $500,000 following a bench trial in this breach of contract action for legal m alpractice

. 1 Upon review, we affirm. Rober t Wagner was a client of Gould’s for many years. Wagner owned

a residential, investment property in Upper Black Eddy, Pennsylvania, which

was on the market for sale. In 2009, Gould approached Wagner about sell ing

_________________ __________ ______ ____ _______ 1 We note that all arguments raised on appeal pertain to both Gould and Gould Law Associates, PC. However, for simplicity, we only refer to Gould in his individual capacity; the argument is the same as to both him and his law firm.J

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the p roperty to one of Gould’s other clients, Roy Stanley. In exchange for this, Gould wanted a 3% commission for locating a buyer

. P rior to the sale , Gould required Wagner and Stanley to sign a C onflict of I nterest W aiver , identify ing and waiving any conflicts Gould had representing Wagner and Stanley jointly in the transaction . Wagner and Stanley signed the Conflict of Interest Waiver on November 10, 2009. Gould then draft ed the Agreement of Sale for the property , which Wagner and Stanley then executed on December 21, 2009. Stanley, however, was unable to close timely per the Agreement of Sale.
W agner and Stanley agreed to ex t end the closing date under certain terms and conditions to be set forth in an Addendum to the Agreement of Sale

. 2 Again , the parties all agreed that Gould w ould draft the Addendum

. Notably, Wagner agree d to extend the closing date was conditioned upon Stanley providing security for the transaction in the event the deal fell through. In particular , Wagner wanted compensat ion for removing the property from the market and for any potential damage to the property or household items and furnishings ( perso n a lty ) during the extended delay

. T his security was imperative to Wagner , and Gould knew it

. Stanley suggested th at they us e Compa n y Owned Life Insurance (“ COLI ”) policies , which he

_________________ __________ ______ ____ _______ 2 Stanley was to purchase the property for $1,500,000. Additionally, Stanley and his family was moving into the property upon the execution of the Addendum.J

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owned , as collateral for the Addendum to extend the closing date ; Wagner agreed

. Life insurance policies totaling f ive m illion dollar s ($5,000,000) face value which Alpine Holdings Trust held, secured the Addendum

. In relevant part, it provided: SECURITY Buyer shall provide security for the Purchase Liability and the Personalty Liability through a collateral assignment to Seller of Five Million dollars ($5,000,000) face value of that ass ignment of certain life insurance death benefits held by the Alpine Holdings Trust simultaneously with the signing of this Addendum. Seller shall have the right to execute or act against the security so provided if Buyer fails to close on the Agreement as extended or to pay the Personalty Liability when due. Gould assured Wagner that Stanley’s collateral was adequate. Wagner and Stanley executed the Addendum on July 1, 2010

. The policies were immediately transferred to Wagner pursuant to assignme n ts , Gould also drafted

. Unbeknownst to W a gner, Gould had a financial interest in the collateral. Gould created Baron Enterprises, Inc. (“Baron” ) in 2009 to sell COLI policies.
He and Stanley, along with another individual, were shareholders of the corporati on ; Gould was the president. If Baron sold a policy, Baron receive d
a commission

. On May 3, 2010, p rior to the drafting of the A ddendum, Baron sold COLI Policies to Nazareth Ford , a nother former client of Gould’s . Nazareth Ford, then assigned and trans ferred 75% of the legal rights, title, and interest back to Baron, and thus effectively , Gould and Stanley.J

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Gould then created a company called Alpine Holdings Trust. Gould, acting as Baron’s president , transferred 49% of the COLI policies from Baron to Alpine. A s trustee for Alpine, Gould then transferred al l of Alpine’s interest in the COLI policies to Wagner. All of t his was all undertake n in an attempt to satisfy the collateral requireme nt under the Addendum. On July 1, 2011, the closing date as extended by the Addendum, Stanley again was unable to purchase the property

. Sometime thereafter, Wagner tried to collect on the collateral, but could not

. Prior to the scheduled closing , a new owner of Nazareth Ford performed a full

- cash surrender and closeout of t h e CO L I policies rendering the collateral under the Addendum worthless. Wagner filed suit against Gould, as well as Stanley, asserting breach of contract claims. Specifically, with respect to Gould, Wagner alleged that Gould breached his contract for legal services and committed malpractice. Following a non

- jury trial, the court found in favor of Wagner and entered a decision against Gould in the amount of $500,000 on November 26, 2017. 3 Gould filed a mot ion for post

- trial relief asking for judgment notwithstanding the verdict, which the trial court denied on January 5, 2018. Judgment was entered on May 8, 2018. Gould filed a notice of appeal on May 23, 2018

. Gould and the trial court complied with Pa.R .A.P. 1925(b)

. We begin our analysis with a review of Gould’s 1925(b) statement. T he trial court found that Gould failed to provide a concise statement of matters

_________________ __________ ______ ____ _______ 3 The trial court also found against Stanley in the amount of $63,600. Stanley did not appeal.J

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complained of on appeal as required under Pa.R.A.P. 1925. According to the trial court , the statement was anything but concise and lacked guidance which enabled the court to properly address the errors Gould believe d the cour t committed. Trial Court Opinion, 8/2/18, at 3. We agree. The trial court observed:
A concise statement of matte rs complained of on appeal must be

“ concise and coherent ” . A statement that is too vag u e is functionally equivalent to no concise statement at all. Further, a state ment of errors compl a ined of on appeal must, in accordance with Pa.R.A.P. 1925(b), be “ sufficiently concise and coherent ” to permit the trial court to identify the issues raise d on appeal. Further, “ [w]hen a court has to guess what issues an app e llant is appealing, that is not enough for meaningful review.”
Id. at 3

- 4. T he trial court end eavored to identify the issues raise d by Gould. However, to the extent that the trial court was unable to do so, as we discuss later in this decision, we find Gould waived those issues

. On appeal, Gould raises the following issues:
1. Whether the trial co urt erred in not giving effect to the parties’ contract. 2. Whether the trial court’s decision is offensive to the Rules of Professional Conduct

. 3. Whether the trial court erred in rendering a verdict for Wagner in the absence of substantiation of his cl aim and in contradiction to the evidence. 4. Whether the trial court erred in its award to Wagner where he had not shown actual loss a n d the award was impermissibly speculative.J

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See Gould’s Brief at 5

- 6. 4 Initially, we note that all Gould’s issues on appe al involve questions of law. Thus, our standard of review is de novo , and our scope of review is plenary. Reott v. Asia Trend Inc. , 55 A.3d 1088, 1093 (Pa. 2012). In his complaint, Wagner alleged that Gould committed legal

ma lpractice based upon breach of contract

. A plaintiff pursu ing a legal malpractice claim under a breach of contract theory, must prove: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. See Core States Bank, N.A. v. Cutillo , 723 A.2d 1053, 1058 (Pa. Super. 1999). For a claim of breach of contract for legal services, an attorney may be liable for failing to adhere the terms of the contract or for failing to follow a client’s specific instruction. See Bailey v. Tucker , 621 A.2d 108 (Pa. 1993) ; Gorski v. Smith , 812 A.2d 683, 694 (Pa. S uper. 2002). Additionally, “ every contract for legal services contains, as an implied term of the contract, a promise by the attorney to render legal services in

accor dance with the profession at large.” Gorski , 812 A.2d at 694

. “ Hence, a breach of contract claim may properly be premised on an attorney’s failure

_________________ __________ ______ ____ _______ 4 Additionally, during the pendency of this matter, Gould filed preliminary objections, a motion for judgment on the pleadings, and a motion for summary judgment, all of which the trial court denied. In his brief, Gould suggests that the trial court erred in denying these. Gould’s Brief at 3. However, as observed by Wagner, Gould did not preserve any issues related thereto other than the parol e evidence issue.J

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to fulfill his or her contractual duty to provide the agreed upon legal services
in a manner consistent with the profession at large.” Id. The trial court found that Wa g ner and Go uld had two contracts : 1) the C onflict of I nterest W aiver , and 2) a verbal/ implied contract for the provision of legal services in the negotiatin g , drafting, and execut i n g the Agreement of Sale and the Addendum , as well as for preparing the assignments to secure the collateral for the transaction. Memorandum , 11/26/17, at 9. The trial
court further found that Gould breached both of the agreements with Wagner , and that , as a result, Wagner sustained damages

. Id. at 8

- 11. On appeal, Gould’s arguments focus on the trial court’s f inding that there was a second
contract , the verbal/ implied contract , between Gould and Wagner , and that Wagner sustained damages from his failure to adhere to the contract

. 5 In his first issue, Gould argues that the trial court failed to give effect to the terms and conditions of the agreement between Gould and Wagner set forth in the written Conflict of Interest Waiver

. According to Gould, this agreement, and only this agreement, comprehensively set forth the terms and conditions under which Gould agreed to provide services to Wagner and

_________________ __________ ______ ____ _______ 5 Gould does not challenge on appeal the trial court’s conclusion that the Conflict of Interest Waiver did not fully disclose his conflicts or that he was in breach for failing to do so . Additionally, Gould does not argue that he did not breach the agreements. We therefore do not address this element of a breach of contract cla im below.J

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Stanley in relation to the sale of property

. Under this agreement, Gould was only to ascertain jointly and document evenly the parties’ transaction. Gould’s Brief at 24, 32. Despite this, the trial court impermissibly allowed parol evidence into the record, upon which, the trial court improp erly concluded that there was a verbal /implied contract between Wagne r and Gould to represent him individually. Id. at 28. Consequently, the trial court erred. We disagree. Under the parole evidence rule, neither oral testimony nor prior written agreements or other writings are admissible to explain or vary the terms of a written contract that is unambiguous and held to express the embodiment of all negotiations and agreements prior to its execution. Lenzi v. Hahnemann University

, 664 A.2d 1375, 1379 (Pa. Super. 1995). The issue of whether a writing constitutes an inte grated contract is a question of law. A contract is integrated if it represents a final and complete expression of the parties' agreement. Where a contract purports to be a complete legal obligation without any doubt as to its object or extent, it is pre sumed to reflect the whole legal right of the parties.
Id. (citations omitted). Accordingly, we must e x amine the Conflict of Interest Waiver and determine if it represents the entire contract between Wagner and Gould. It is plainly evident from the face of the Conflict of Interest Waiver, contrary to Gould’s contention, that it was not an agreement for legal services. Instead, it only served to identify the conflicts Gould had in representing both Wagner and Stanl e y, and to have Wagner and Stanley acknowledge them.J

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The reference line indicate d that it wa s regard ing the “Disclosure of Confli c ts in Arranging and Preparing Agreement of Sale” of the subject property. Altho ugh the letter briefly mention ed that Wa g n er and Stanley
want ed Gould to draft the necessary documents and close on the property, and to do so, Gould state d that “it is my ethical duty to outline all of the confli c ts of interest that would affect that representation and a d vise you to have separate legal review o f the matter.” He then direct ed the parties “to sign the letter to indicate your waiver of an d consent to the conflicts”. It d id not outline any of the typical terms and conditions set forth in an agreement for legal services , in particular , the scope of Gould’s services

. Furthermore, much of Gould’s liability found by the trial court in this
matter turn ed significantly on what transpired after the execution of the Conflict of Interest Wa i ver. In particular, the drafting of the Addendum and the securing of the collateral for the Addendum did not arise until after the execution of the Conflict of Interest Waiver. Thus, the parties could not have contemplated the provision of these services or account for Gould’s conflicts relating to the collater al and parties ’ interest therein

. 6 Consequently, the Conflict of Interest Waiver was not an integrated writing as Gould contends.

_________________ __________ ______ ____ _______ 6 We further note that the parole evidence rule only precludes the use of contemporaneous or prior oral declarations to alter the import of a contract. See Yocca v. Pittsburgh Steelers Sports, Inc. , 854 A.2d 425, 436

- 37 (Pa. 2004); LeDonne v. Kessler , 389 A.2d 1123 ; 1126 ( Pa. Super. 1978). Sim i larly, post - agreement conduct is always relevant in interpreting a writing. See Pennsylvania Engineering Corp. v. McGraw – Edison Co. ,J

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We therefore conclude that the trial court did not violate the parol e evidence rule by a dmitting evidence surrounding Gould’ s agreement to provide legal services and assist with securing the collateral required under the Addendum. In his second issue, Gould argues that the trial court’s conclusion is contrary to the Rules of Professional Conduct. However, we find that Go uld has waived this issue. First, Go uld failed to preserve his second issue for our
review. G ould did not claim specifically in his post

- trial motion that the trial court’s conclusions offend the Rules of Professional Conduct . Failure to raise
an issue in post

- trial motions or exceptions result in a waiver of that issue for purposes of appellate review. Taylor v. Celotex Corp. , 574 A.2d 1084 , 1093 ( Pa. Super. 1990); Pa.R.Civ.P. 227.1(b). Second , although Gould discussed his efforts to comply with the Rules of Professional Conduct by requiring Wagner and Stanley to execute the Conflict of Interest Waiver, Gould d id not develop this as a separate argument in his brief. Where an appellant fails to develop his argument, he waives it. Commonwealth v. Kane , 10 A.3d 327, 331

- 32 (Pa. Super. 2010), appeal denied , 29 A.3d 796 (Pa. 2011); Pa.R.A.P. 2116. Thus, Gould waived this
issue , and , therefore, we do not address it.

_________________ __________ ______ ____ _______ 459 A.2d 329 ( Pa. 1983). T he introduction of emails, the parties’ discussions and conduct following the execution of the Conflict of Interest Waiver, particularly relating to the collateral, does not fall under the parole evidence rule.J

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In his third issue, Gould claims that the trial court violated the principles of contra ct law and erred in concluding th a t the evidence of record demonstrated that there was an implied contract between Wagner and Gould. Gould’s Brief at 29, 38. Again, Gould argues that the trial court erred by ignoring the contract between the parties, i. e., the Conflict of Interest Wai v er, and finding an implied contract between Wagner and Gould under which Gould owed a duty to Wagner

. Further , under the terms of the Conflict of Interest
W aiver , Gould could not be subject to any liability (no breach) for a contract

based malpractice claim because that agreement expressed he was representing Wagner and Stanley jointly

. See id. at 39. Additionally, Gould argues that the e vidence did not establish the elements of a contract

- ba s ed , malpractice claim. Gould’s Brief at 39. In particular, Gould argues that there was no basis in the record to support the trial court’s finding of either an implied attorney/client contract or a finding of damages

. Id. a t 32 , 39

. As explained above, the Conflict of Inter est Waiver did not preclude the trial court from finding an implied contract . We therefore only consider his remaining argument as to whether the evidence supported the trial court’s conclusion that an implied contract between Wagner and Gould existed. 7 A contract implied

- in

- fact has the same legal effect as any other
contract. Cameron v. Eynon , 3 A.2d 42 3, 424 ( Pa. 1939). It differs from an

_________________ __________ ______ ____ _______ 7 Because Gould raised the issue of damages separately, w e discuss the damages issue in detail below under the fourth issue

.J

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express contract only in the manner of its formation. An express contract is formed by either written or verbal communication. Id. On the other hand, a contract implied

- in

- fact arises “ where the parties agree upon the obligations to be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding ci rcumstances. ” Id.
T he trial court found that sufficient evidence was presented to support a finding that Gould i mpl i ed ly agreed to provide legal services to Wagner. Memorandum, 11/26/17, at 9. We agree. After the first scheduled closing on the property fell through, Wagner and Stanley agreed to extend the closing date under certain conditions

. Gould facilitated the parties’ negotiations. Of particular import to Wagner was the requirement that Stanley provide collatera l to secure the transaction. Wagner and Stanley agreed to use the COLI policies as collateral. Wagner communicated the agreed upon terms to Gould. In particular, Wagner specifically instructed that the house and personalty be cross collateralized. Goul d proceeded to draft the Addendum per Wagner’s direction , including this critical provision. After receiving the draft Addendum, Wagner emailed Gould about this particular provision , amongst other things , for clarification and a better understanding about the type and amount of collateral provided. Gould further advised Wagner that “[t]he security locks in [Stanley] and provides additional security to you.” Upon receiving assurance from Gould that he was covered , Wagner signed the Addendum. Gould later confirmed again forJ

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Wagner that the collateral was currently worth ten cents on the dollar for a total of $500,000, the full amount of collateral agreed upon

. Additionally, Gould prepared the assignments to secure the collateralized COLI Policies , which was critical to Wagner

. From these circ u mstances , it i s evident that Wagner sought legal services from Gould, and Gould provided Wagner with those services. Thus, although there was no express written agreement between Wagner and Gould, based upon the ir actions, an implied contract clearly arose

. Moreover, when Gould provide d these services, he was required to provide them with competent representation of legal knowledge, skill , and thoroughnes s. This is a well

- established principle in our juris prudence, and Wagner proved Gould’s breach of his professional duty through competent, expert testimony. Gould argues, however , that he had no attorney

- client relationship with
Wa g ner . This likewise contradicts the evidence presented. Absent an express contract, an implied attorney/client relationship will be found if : 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney's professional competence; 3) the attorney expressly or impliedly agre ed to render such assistance; and 4) it is reasonable for the putative client to believe the attorney was representing him

. Atkinson v. Haug , 622 A.2d 983, 986 ( Pa. Super. 1993)

.J

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T he evidence recited above supports the existence of an attorney

- client

r elationship between Wagner and Gould with respect to securing the appropriate security for the Addendum . Wagner sought advice and assistance from Gould , who agreed to render those services when he actually performed the work . I t was reasonable for Wagner to believe that Gould was representing him. More o ver, Gould knew that Wag n er had to have the transaction secured by collateral. Writing this into the Addendum at Wagner’s request had legal implications. The preparation of the assignments to transfer the collateral to Wagner was within Gould’s professional competence , as there were legal ramifications in guaranteeing that Wagner had a right to the security if ne eded . Gould’s claim that this was only a business matter is therefore inaccurate.
B ecause the evidence of record , when viewed in the light most favorable to Wagner, was sufficient to establish an implied contract for legal services , the trial court correctly denied Gould judgment as a matter of law. In his last issue, Gould claims the trial court’s award of damages in the amount of $500,000 was arbitrary , excessive , and speculative

. Gould’s Brief
at 23. Specifically, he argues that Wagner failed to demonstrate how Gould’s alleged breach of his professional duty resulted in actual loss to Wag ner. Gould’s Brief at 23, 42. Again, w e disagree. A malpractice c laim requires p r oof of actual loss , rather than a breach of professional duty causing only nominal d amages, speculative harm , or the thre at of future h arm. Kituskie v. Corbman , 714 A. 2d 1027, 1030 (Pa.J

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1998)

. “Evidence which demonstrates th a t a plaintiff has suffered the loss of property rights under a contract will suffi c e to establish ‘ actual injury ’ or ‘ harm ’ in a legal malpractice action.” Curran v. Stradley, R onon, Stevens &
You ng , 21 A.2d 451, 455 (Pa. Super). “The test of whether dama ge s are remote or speculative has nothing to do with the difficulty in cal c ulat i n g the amount, but deals with the more basic question of whether there are identifiable damages. Thus, damages are speculative only if the uncertainty concerns the fact of damages rather than the amount.” Rizzo v. Haines , 555 A.2d 68 (Pa. 1989). Here, the trial court found that “there is no question that Wagner suffered actual loss of the COLI poli cies as collatera l for the Adde n d um.” Memorandum , 11/26/17, at 11. The parties agreed that the collateral under the Addendum was to be $500,000. Gould confirmed to Wagner that the value of the COLI policies that he obtained for Wagner was $500,000. Because the policies were ultimately worthless due to Gould’s failure to ensure that the transaction was properly secured , Wagner ’s actual loss was $500,000. Gould argues however that because the trial court found Stanley liable for damages only in the amount $ 63,600 , that his liability should , likewise, be limited to that amount

. Gould’s Brief at 43. The award of damages against Stanley was primarily based upon the failure to make payments as required under the Addendum. Here, however, the trial c ourt’s award was based upon Gould’s failure to ensure adequateJ

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security for Wagner’s agreement to extend the closing for the sale of the property. Gould was liable for the security promised (i.e. $500,000). Thus, there was sufficient evidence that Wagne r suffered actual loss of property totaling $500,000, and the trial court did not err in finding Gould liable to Wagner in the amount of $500,000. For the foregoing reasons, we conclude that the trial court did not err as a matter of law, and none of Go uld’s issues warrant s relief. Judgment affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/19/19