Wilson, S. v. Levine, T. ( 2019 )

J-A26011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHARON C. WILSON, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TERRI LEVINE, THE COACHING
INSTITUTE AND COMPREHENSIVE
COACHING U, INC.,
Appellants No. 1896 WDA 2017
Appeal from the Judgment Entered January 23, 2018
In the Court of Common Pleas of Butler County
Civil Division at No(s): A.D. No. 2006-10892
BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 30, 2019
Appellants, Terri Levine, the Coaching Institute (“CI”), and
Comprehensive Coaching U, Inc. (“CCU”), appeal from the judgment entered
in favor of Appellee, Sharon C. Wilson, in the amount of $94,866.77. We
affirm.
The trial court summarized the factual background and procedural
history of this case as follows:
This case arises out of [Wilson’s] Complaint filed on or about
December 4, 2006, alleging monetary damages as a result of a
failed life coaching business venture between Wilson and Levine,
though it is noted that the parties to said business venture were
contested throughout the underlying proceedings up until, and
including at[,] the time of trial.
Wilson and Levine began their work together in or about 1999, on
an unrelated business venture, when they launched Explode Your
Business and Income. At that time, the women agreed to an equal
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fifty percent (50%) split of net income, with each being
responsible for fifty (50%) of the expenses. Eventually, Explode
Your Business and Income reached a natural end. Throughout
this time, both Wilson and Levine maintained their separate online
life coaching businesses.
Wilson and Levine entered into the business venture that is the
subject of the underlying litigation, in or around December[] 2004,
when they began operations to launch [CI] where they would use
each of their independently developed approaches to teach their
clients how to become successful life coaches. At that time,
Wilson and Levine agreed to a fifty percent (50%) monthly split
of the net income derived from CI. Payments in this regard were
made from Levine’s wholly owned corporation, [CCU], to Wilson’s
wholly owned limited liability corporation, Coaching From Spirit,
LLC [(“CFS”)]. Yearly, Wilson received a 1099.
The parties operated in this manner through September[] 2005,
when Levine notified Wilson that she would be adjusting the
parties[’] profit splitting structure such that Wilson would receive
thirty percent (30%) of the monthly net income generated from
CI, and Levine would receive seventy percent (70%) of the
monthly net income generated from CI.
In conveying this change in compensation to Wilson, Levine made
it clear that if Wilson did not accept the adjustment in
compensation, Levine would terminate Wilson’s services.
Although Wilson disagreed with the adjustment, and tried a
number of times to change Levine’s mind on the subject, even
suggesting that the agreement between the parties be
memorialized in writing, Wilson accepted Levine’s terms moving
forward. The business operated at a thirty-seventy (30-70)
monthly split of net income from October 1, 2005[] through June
14, 2006.
It was in June[] 2006, that Levine sent an electronic
communication to the CI staff indicating that Wilson was
terminated such that she was no longer a part of CI, and as a
result, should not be permitted access to any of the materials or
clients associated with CI.
As a result, [Wilson] commenced this action on or about June 16,
2006, by filing a Praecipe for Writ of Summons. Subsequently,
[Wilson’s] Complaint was amended three times, resulting in this
matter proceeding under [Wilson’s] Third Amended [C]omplaint,
filed on or about May 11, 2009.
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The remaining pre-trial procedural history from 2009 to the
present is voluminous, and generally inessential to the issues
raised by Appellants in this appeal, other than to note that upon
this [c]ourt’s consideration and denial of Appellants’ Motion for
Summary Judgment, this matter proceeded to a [j]ury [t]rial from
July 17, 2017[] through July 21, 2017, resulting in a [v]erdict in
favor of [Wilson] in the amount of Eighty Two Thousand Two
Hundred and Fifty-Eight Dollar and Sixty-Six Cents ($82,258.66).
Subsequently, [Wilson] filed a Post-Trial Motion to Mold Verdict to
Include Pre-Verdict Interest, and Appellants filed a Motion for
Post-Trial Relief, requesting that this [c]ourt [s]et aside the [j]ury
[v]erdict in favor o[f] [Wilson]. Having heard argument on said
[m]otions on November 28, 2017, this [c]ourt granted [Wilson’s]
Post-Trial Motion to Mold Verdict to Include Pre-Verdict Interest,
and denied Appellants’ Motion for Post-Trial Relief.[1]
Appellants subsequently filed a Notice of Appeal on or about
December 22, 2017, with respect to the [o]rder of [c]ourt under
date of November 28, 2017, denying Appellants’ Motion for Post-
Trial Relief.
Upon receipt of said Notice of Appeal, on or about December 27,
2017, in accordance with Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure, this [c]ourt entered an [o]rder of [c]ourt
wherein … Appellants were directed to file of record and serve
upon the undersigned trial judge a [Rule 1925(b)] Concise
Statement of the Matters Complained of on Appeal no later than
twenty-one (21) days from the date of the [o]rder of [c]ourt.
On or about January 12, 2018, … Appellants … filed their Concise
Statement of Matters [C]omplain[ed] of on Appeal, pursuant to …
Rule 1925(b).
Trial Court Opinion (“TCO”), 1/29/2018, at 1-4 (unnecessary emphasis
omitted).
Subsequently, because Appellants had appealed from the trial court’s
order denying their post-trial motions, this Court issued an order on January
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1After the trial court molded the verdict to include pre-verdict interest,
Wilson’s award amounted to a total of $94,866.77.
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16, 2018, directing Appellants to praecipe the trial court’s prothonotary to
enter judgment on the trial court’s decision. See Zitney v. Appalachian
Timber Products, Inc., 72 A.3d 281, 285 (Pa. Super. 2013) (“An appeal
from an order denying post-trial motions is interlocutory. An appeal to this
Court can only lie from judgments entered subsequent to the trial court’s
disposition of post-verdict motions, not from the order denying post-trial
motions.”) (citations omitted). Appellants complied with our instruction, and
judgment was entered on January 23, 2018. We therefore consider this
appeal as taken from the January 23, 2018 entry of judgment. See id.(“[T]here are some instances wherein a party has failed to enter judgment
and our appellate courts may regard as done that which ought to have been
done.”) (internal quotation marks and citations omitted).
Presently, Appellants raise the following issues for our review:
A. Was it an error of law for the jury to render a verdict for
[Wilson] and against [CCU] under a theory of unjust enrichment,
where Wilson provided services pursuant to an express
contractual agreement (the “Agreement”) and received all
compensation to which she was entitled under that Agreement?
B. Was it an error of law for the jury to render a verdict in favor
of Wilson and against CCU without making a finding regarding the
parties to the Agreement, as an unjust enrichment claim would be
precluded by (i) a finding that Wilson was in privity with CCU,
and/or (ii) a finding that Wilson’s company, [CFS], … provided
Wilson’s services instead of Wilson directly?
C. Assuming that the parties to the Agreement were Wilson and
[Levine], was it an error of law for the jury to render a verdict in
favor of Wilson and against CCU for unjust enrichment in the
absence of evidence that CCU misled Wilson into providing
services by promising compensation in excess of the
compensation that Levine was willing to provide?
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D. Is Wilson estopped as a matter of law from seeking to recover
fifty percent (50%) of the net income from [CI’s] program for the
period October 1, 2005 through June 14, 2006, where, inter alia,
(i) Wilson expressly stated that she would accept 30 percent of
net revenues and did so without protest for eight months, and (ii)
CCU detrimentally and reasonably relied on Wilson’s agreement to
accept thirty percent (30%) of CI’s net income by continuing to
engage Wilson’s services, and CCU expressly communicated to
Wilson that it would have terminated her services absent such
agreement?
E. Did Wilson, as a matter of law, waive any right to recover fifty
percent (50%) of CI’s net income after October 1, 2005[,] by,
inter alia, expressly communicating to Levine that she was willing
to provide services to CI for thirty percent (30%) of net income,
acknowledging that agreement multiple times in writing, and
performing in accordance with those terms from October 1, 2005
through June 14, 2006[,] without protest?
F. Was CCU entitled to judgment notwithstanding the verdict on
Wilson’s unjust enrichment claim, where the evidence
unequivocally established, inter alia, (i) that Levine took full
managerial control of CI after October 1, 2005, while Wilson
focused primarily on sales and fulfillment, and (ii) Levine
developed successful marketing initiatives and reduced CI’s
operating expenses, such that Wilson’s average monthly
compensation increased by more than $3,700 during the period
October 1, 2005 through June 14, 2006 in exchange for a reduced
level of services?
G. Whether the [t]rial [c]ourt erred in:
1. Denying [Appellants’] Motion for Summary Judgment,
supported by their Brief in Support of Motion for Summary
Judgment and Reply in Further Support of [Appellants’]
Motion for Summary Judgment;
2. Denying [Appellants’] Motion in Limine to Preclude
Damages Claim for Fifty-Percent of Net Income;
3. Denying [Appellant’s] Motion in Limine to Preclude All
Claims by Sharon C. Wilson in Her Individual Capacity and
Against Terri Levine in Her Individual Capacity;
4. Rejecting [Appellants’] Proposed Jury Verdict Slip;
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5. Modifying [Appellants’] Proposed Points for Charge;
6. Overruling [Appellants’] objections to [Wilson’s] Proposed
Jury Instructions, including without limitation [Wilson’s]
proposed Jury Instructions Nos. 18, 22[,] and 23;
7. Denying [Appellants’] Motion for Directed Verdict; and
8. Denying [Appellants’] Motion for Post-Trial Relief?
Appellants’ Brief at 7-11.
At the outset, we observe that Appellants raise seven issues, including
one with eight subparts, in their statement of questions involved.2 Appellants,
however, do not divide their brief into corresponding parts.3 Consequently,
we admonish Appellants for their lack of compliance with Pa.R.A.P. 2119(a)
(“The argument shall be divided into as many parts as there are questions to
be argued; and shall have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.”). See
also Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 99 n.9 (Pa. Super.
2016) (determining that the appellant failed to comply with Rule 2119(a)
where the appellant’s brief did not “present and develop eight arguments in
support of the eight questions raised”).
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2 We remind Appellants that “[t]he effectiveness of appellate advocacy may
suffer when counsel raises numerous issues, to the point where a presumption
arises that there is no merit to any of them.” See Commonwealth v.
Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (citations omitted).
3 Namely, Appellants do not present an argument section for their last
question and its various subparts, set forth supra.
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Because Appellants advance seven discernible issues with
accompanying analysis in their argument section, we limit our review to those
claims.4, 5 In their first issue, Appellants contend that “Wilson’s unjust
enrichment claim must fail as a matter of law because she has received all of
the compensation to which she was contractually entitled.” Appellant’s Brief
at 41 (unnecessary capitalization and emphasis omitted). They argue:
Wilson testified repeatedly and unequivocally that she provided
services to CI pursuant to an express oral agreement, first entered
into in 1999, to collaborate with Levine on marketing programs
and split the net revenues equally (the “Agreement”). Wilson
contended that the Agreement was a partnership, which could not
be modified without her consent, while Levine asserted that
Wilson was an independent contractor, and that the Agreement
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4 We deem all other issues raised in Appellants’ statement of questions
involved — including any subparts of questions — waived to the extent they
do not overlap with the seven main arguments presented and developed by
Appellants in their argument section. See PHH Mortg. Corp v. Powell, 100
A.3d 611, 615 (Pa. Super. 2014) (“Because the ‘Argument’ section of the
Powells’ appellate brief sufficiently identifies two issues and provides legal
argument in support of them, however, we will address these two issues
herein. The other nine issues set forth in the ‘Statement of Questions
Involved’ are waived, as the above-referenced failures to comply with our
appellate rules preclude our ability to conduct meaningful appellate review of
these issues.”).
5 We also note that the trial court’s Pa.R.A.P. 1925(a) opinion does not
specifically address each of the numerous issues raised in Appellants’ Rule
1925(b) statement. Nevertheless, we are able to glean from the trial court’s
opinion its reasons for denying Appellants relief. See Cordes v. Associates
of Internal Medicine, 87 A.3d 829, 833 n.1 (Pa. Super. 2014) (“[W]e have
what we need to review the merits of [the a]ppellant’s issues.”);
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (proceeding
to the merits of the appellant’s claims where this Court was adequately
apprised of the trial court’s reasoning in relation to the issues raised on appeal,
despite the lack of a Rule 1925(a) opinion).
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could be modified or terminated at will. The jury found that the
Agreement was not a partnership, and that Levine did not breach
the Agreement by modifying Wilson's compensation.[6] Moreover,
Wilson testified that CCU fully complied with the modified
agreement by paying CFS 50 percent of net revenues from CI
through September 2005 and 30 percent of net revenues from CI
from October 2005 through May 2006.
Since Wilson received all of the compensation to which she was
entitled pursuant to the Agreement, it was error for the jury to
award Wilson additional compensation under a quasi-contractual
theory of unjust enrichment.
Appellants’ Brief at 41-42 (internal citations omitted). Thus, Appellants
maintain that “[t]he express Agreement governing Wilson’s services to CI
defines the compensation to which she is entitled, and she cannot circumvent
that Agreement by implying a different contract with CCU.” Id. at 42.
We apply the following standard of review:
[T]he standard of review for an order granting or denying [JNOV]
is whether there was sufficient competent evidence to sustain the
verdict. We must view the evidence in the light most favorable to
the verdict winner and give him or her the benefit of every
reasonable inference arising therefrom while rejecting all
unfavorable testimony and inferences. Furthermore, [JNOV]
should be entered only in a clear case, where the evidence is such
that no reasonable minds could disagree that the moving party is
entitled to relief. Review of the denial of [JNOV] has two parts,
one factual and one legal:
Concerning any questions of law, our scope of review is
plenary. Concerning questions of credibility and weight
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6 We consider this assertion somewhat misleading. Despite Appellants’
contention, the jury did not find that Levine did not breach any agreement by
modifying Wilson’s compensation. As the jury found that there was no
partnership agreement to begin with, it never reached the question of breach.
See Wilson’s Brief at 3 (“The jury did not find that there was a partnership
agreement. The jury certainly did not go further to find that Levine did not
breach the partnership agreement by modifying Wilson’s compensation.”)
(emphasis in original).
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accorded evidence at trial, we will not substitute our
judgment for that of the finder of fact.
Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa. Super.
2008) (citation omitted).
We further observe that “[t]he doctrine of unjust enrichment is clearly
inapplicable when the relationship between the parties is founded on a written
agreement or express contract.” Roman Mosaic & Tile Co., Inc. v.
Vollrath, 313 A.2d 305, 307 (Pa. Super. 1973) (citations and internal
quotation mark omitted).7 Instead,
[a] claim for unjust enrichment arises from a quasi-contract. A
quasi-contract imposes a duty, not as a result of any agreement,
whether express or implied, but in spite of the absence of an
agreement, when one party receives unjust enrichment at the
expense of another.
The elements of unjust enrichment are benefits conferred on
defendant by plaintiff, appreciation of such benefits by defendant,
and acceptance and retention of such benefits under such
circumstances that it would be inequitable for defendant to retain
the benefit without payment of value. Whether the doctrine
applies depends on the unique factual circumstances of each case.
In determining if the doctrine applies, we focus not on the
intention of the parties, but rather on whether the defendant has
been unjustly enriched.
To sustain a claim of unjust enrichment, a claimant must show
that the party against whom recovery is sought either wrongfully
secured or passively received a benefit that it would be
unconscionable for her to retain. The application of the doctrine
depends on the particular factual circumstances of the case at
issue. In determining if the doctrine applies, our focus is not on
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7 We note that, “claims [for] breach of contract may be pleaded alternatively
with a claim of unjust enrichment, although recovery may not be had for both
unjust enrichment and the other claims.” Lugo v. Farmers Pride, Inc., 967
A.2d 963, 970 (Pa. Super. 2009) (citations omitted); see also Wilson’s Brief
at 2.
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the intention of the parties, but rather the most critical element of
this equitable doctrine, which is whether the enrichment of the
defendant is unjust. The doctrine does not apply simply because
the defendant may have benefited as a result of the actions of the
plaintiff.
Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 916-17 (Pa. Super.
2017) (internal citations and quotation marks omitted).
No relief is due on this basis. The jury did not find that any express
contract existed between any of the parties and, consequently, Wilson could
not have received all of the compensation to which she was contractually
entitled. Indeed, at trial, Wilson argued before the jury, “if you find that there
wasn’t an agreement between these ladies individually then alternatively we
are asking that you find that [Wilson] unjustly enriched [CCU]….” N.T. Trial,
7/21/2017, at 68. The jury did so, and its verdict reflects that it found no
express contract present in this case. Specifically, the jury explicitly found
that no partnership agreement existed and, by way of its unjust enrichment
verdict, it implicitly rejected Appellants’ contention that Wilson agreed to serve
as an independent contractor whose compensation could be modified at
Levine’s will.8 We will not substitute our judgment for that of the finder of
fact. See Underwood, supra. Accordingly, we reject Appellants’ first claim.
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8 In Appellants’ reply brief, they contend that “[b]y rejecting Wilson’s claim
that the Agreement was a partnership, the jury necessarily found that the
Agreement was terminable at-will and denied Wilson any recovery for breach
of contract.” Appellants’ Reply Brief at 6-7. We disagree. If that were the
case, the jury would not have rendered an unjust enrichment verdict, finding
that it would be inequitable for CCU to retain the value of the benefit bestowed
on it by Wilson. Thus, it seems more likely that the jury determined that
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Second, Appellants claim that “Wilson could not assert an unjust
enrichment claim against CCU if she was in contractual privity with CCU.”
Appellants’ Brief at 43 (unnecessary capitalization and emphasis omitted).
They argue that, “[i]f Wilson contracted with CCU, the existence of that
contract bars Wilson from asserting a claim against CCU for unjust
enrichment.” Id. at 43-44 (footnote omitted). The jury, however, did not
find that Wilson was in contractual privity with CCU, as discussed supra. Once
again, we will not substitute our judgment for that of the factfinder. See
Underwood, supra. Consequently, we also reject this claim.
Third, Appellants state that “[i]f the agreement was between Wilson and
Levine, Wilson’s unjust enrichment claim must fail as a matter of law because
there is no evidence that CCU misled Wilson into providing services.”
Appellants’ Brief at 45 (unnecessary capitalization and emphasis omitted).
They insist that, “even if Wilson were entitled to pursue extra-contractual
compensation from CCU under a theory of unjust enrichment, Pennsylvania
law would require Wilson to prove that CCU misled her into providing services
in order to prevail on an unjust enrichment claim.” Id. at 46 (citations
omitted).
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“Wilson and Levine or Wilson and CCU [never] reached a meeting of the
minds. Again, Wilson believed she was an equal 50/50 partner in [CI] and
Levine believed she owned [CI] and that Wilson was an independent
contractor whose terms could be modified at any time by Levine without
consequence.” Wilson’s Brief at 5-6. In other words, no agreement was
reached. Further, we note that the verdict slip did not ask the jury to
determine explicitly if any express contract other than a partnership
agreement existed between any of the parties.
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The Pennsylvania law on which Appellants rely to support their argument
explains that:
The Restatement of Restitution sets forth various rules for the
determination of whether the retention of a particular enrichment
is unjust. Section 110 deals with the situation where a third
party benefits from a contract entered into between two
other parties. It provides that, in the absence of some
misleading by the third party, the mere failure of
performance by one of the contracting parties does not give
rise to a right of restitution against the third party. The
Restatement gives as an example of this principle the situation
where A purchases a ring from C, a jeweler, for his fiancée B and
then defaults in the payments. The Restatement states that C
cannot recover the ring or its value from B. (Footnote omitted)
Kemp v. Majestic Amusement Co., 234 A.2d 846, 848 (Pa. 1967)
(emphasis added). In order for this principle to apply, however, a contract
must have been entered into between two parties. Thus, in the case sub
judice, before evidence of CCU’s misleading actions (or lack thereof) becomes
relevant, a contract between Levine and Wilson is required. The jury, though,
did not make a finding that an express contract existed between Levine and
Wilson. We reiterate that this Court will not substitute our judgment for that
of the factfinder. See Underwood, supra. Accordingly, we conclude that
this argument has no merit.
Fourth, Appellants claim that “[i]t was error for the jury to render an
unjust enrichment verdict against CCU without making a finding regarding the
parties to the agreement.” Appellants’ Brief at 53 (unnecessary capitalization
and emphasis omitted). They argue:
The [v]erdict [s]lip devised by the trial court did not require a
finding regarding the parties to the Agreement by which Wilson
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provided services to CI. If the jury found in response to Question
1 that there was a partnership agreement, the jury was directed
to proceed to Question 5, which simply asked whether CCU was
unjustly enriched by Wilson.
Question 2 asked the jury to find whether the parties to the
Agreement were (i) Wilson and Levine, or (ii) CFS and CCU.
However, because the jury found in response to Question 1 that
there was no partnership agreement, it did not answer Question
2. Moreover, even if the jury answered Question 2 and found that
the parties were CFS and CCU, they would have been directed to
proceed to Question 5 despite the existence of a direct contractual
relationship with CCU governing Wilson’s services.
The absence of a finding regarding the parties to the Agreement
requires reversal. If CCU was a party to the Agreement to provide
Wilson’s services, any claim for compensation must be brought as
a claim for breach of contract. Since the jury found that the
Agreement was not breached, any such claim would fail.[9]
Finally, any finding that CFS was a party to the Agreement would
preclude a claim for compensation, since it was CFS — not Wilson
— who provided the services, and CFS is not a plaintiff.
Appellants’ Brief at 53-54.
We deem this claim waived. Our review of the record does not indicate
that Appellants objected to the trial court’s verdict slip on this basis.
Specifically, it does not appear to us that Appellants objected because the trial
court’s verdict slip did not ask the jury to render a finding regarding the parties
to any agreement by which Wilson provided services to CI. See N.T. Trial,
7/20/2017, at 133-34, 150-51. Moreover, Appellants do not pinpoint in their
brief where they objected to this particular aspect of the trial court’s verdict
slip either. Instead, Appellants identify that they generally objected to the
verdict slip’s being drafted in the alternative with respect to Wilson’s contract
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9We reiterate that the jury did not explicitly find that the Agreement was not
breached. See footnote 6, supra.
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and unjust enrichment claims, which is a separate issue from requiring the
jury to determine who the parties were to any agreement. See Appellants’
Brief at 36 (citing N.T. Trial, 7/20/2017, at 133-34); see also Appellants’
Supplemental Statement Regarding the Preservation of Issues for Appeal,
11/16/2018, at 1 (listing “the many places in the record where Appellants
objected to [Wilson’s] simultaneously pursuing the same compensation under
theories of breach of contract and unjust enrichment”).10 Thus, Appellants
have not preserved this issue for our review. See Stapas v. Giant Eagle,
Inc., -- A.3d --, 2018 WL 6070787, at *7 (Pa. filed Nov. 21, 2018) (“[P]ost-
trial relief cannot be granted if the basis for the post-trial motion related to a
verdict arose during the trial proceedings and the party seeking relief did not
raise a contemporaneous objection.”) (citations omitted).
Nevertheless, even if not waived, Wilson persuasively argues that “[t]he
jury did not have to find any agreement to render a verdict. It was able to
render a verdict despite finding that there was no agreement between any of
the parties.” Wilson’s Brief at 6; see also Gutteridge, supra (“[A] claim for
unjust enrichment arises from a quasi-contract. A quasi-contract imposes a
duty, not as a result of any agreement, whether express or implied, but in
spite of the absence of an agreement, when one party receives unjust
enrichment at the expense of another.”). Wilson claims that “[t]he jury simply
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10Likewise, Appellants did not object to the trial court’s verdict slip on the
basis that it did not ask if any express contract — aside from the partnership
agreement — existed in the matter.
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did not believe that Wilson and Levine or Wilson and CCU ever reached a
meeting of the minds. Again, Wilson believed she was an equal 50/50 partner
in [CI,] and Levine believed she owned [CI] and that Wilson was an
independent contractor whose terms could be modified at any time by Levine
without consequence.” Wilson’s Brief at 5-6. Accordingly, Appellants would
not have convinced us that a finding of the parties to any agreement was
required, as the jury seemingly determined that there was no express
agreement in the first place.
Fifth, Appellants advance that, “[a]s a matter of law, Wilson is estopped
from recovering 50% of the net revenues of CI after October 1, 2005.”
Appellants’ Brief at 54 (unnecessary emphasis and capitalization omitted).
Appellants claim that, “[i]f the Court determines that Wilson was permitted to
seek compensation for her services beyond that specified by the Agreement,
she was estopped from doing so as a matter of law because (i) Wilson misled
Levine into believing that she would accept 30 percent of CI’s net revenues
for her services, and (ii) Levine detrimentally relied upon Wilson’s statements
by continuing to engage her services, rather than terminating their
relationship, as Levine was entitled to do.” Id.
Our Supreme Court has stated:
Equitable estoppel is a doctrine that prevents one from doing an
act differently than the manner in which another was induced by
word or deed to expect. A doctrine sounding in equity, equitable
estoppel recognizes that an informal promise implied by one’s
words, deeds or representations which leads another to rely
justifiably thereon to his own injury or detriment may be enforced
in equity.
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Kreutzer v. Monterey County Herald Co., 747 A.2d 358, 361 (Pa. 2000)
(citation omitted).
We acknowledge that “[w]hether equitable estoppel exists in a given
case is a question of law for the court to decide. When reviewing questions
of law, the trial court’s conclusions of law are not binding on this [C]ourt,
whose duty is to determine whether there was a proper application of the law
to the facts by the trial court.” Stonehedge Square Ltd. Partnership v.
Movie Merchants, Inc., 685 A.2d 1019, 1023-24 (Pa. Super. 1996)
(citations and footnote omitted); see also Nesbitt v. Erie Coach Co., 204
A.2d 473, 477 (Pa. 1964) (“It is for the jury to say whether alleged remarks
were made, but it is for the court to decide whether they are susceptible of
the inferences attributed to them. That statements should give rise to an
estoppel they must be clear and reasonably certain in their intendment.”)
(citations and internal quotation marks omitted). Equitable estoppel may be
applied,
where the party asserting estoppel established by clear, precise
and unequivocal evidence (1) that the party against whom the
doctrine is sought to be asserted intentionally or negligently
misrepresented a material fact, knowing or with reason to know
that the other party would justifiably rely on the
misrepresentation, (2) that the other party acted to his or her
detriment by justifiably relying on the misrepresentation, and (3)
that there was no duty of inquiry on the party seeking to assert
estoppel. The doctrine is one of “fundamental fairness” and its
application will depend on the facts in each case.
Stonehedge, 685 A.2d at 1024 (citations omitted).
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We determine that equitable estoppel does not apply here. Appellants
claim that “Wilson’s words and conduct both induced Levine to believe that
Wilson would accept 30[%] of the net revenues of CI in exchange for her
services.” Appellants’ Brief at 57. However, as the trial court ascertained, “it
seems that Wilson made it very clear that she objected to the new terms of
payment. Likewise, it also appears to this [c]ourt that given Levine’s
ultimatum that Wilson either accept the payment adjustment at [30%] of
monthly net income, or Wilson would be shut out of CI, Wilson had no viable
other option than to ‘accept,’ the [30%] of monthly net income as her new
terms of payment.” TCO at 8. We agree.
Indeed, Appellants concede that, on the day Levine informed Wilson of
the new arrangement, Wilson “wrote two e-mails to Levine…, trying to
convince Levine to ‘maintain the agreement that we had since Explode’ and
continue to operate under a 50/50 split of net income from CI.” Appellants’
Brief at 23 (citations omitted). Appellants explain that, a few weeks later,
Wilson wrote another email to Levine, asking Levine “to ‘go back to the original
agreement,’ including a 50 percent split of net revenues from CI.” Id. at 27
(citations omitted). According to Appellants, around that time, Wilson also
“asked Levine whether she would ‘still be paid 50[%] after expenses for any
sales in September since you told me at the end of September about this
change from our original agreement.’” Id. at 29 (citations omitted).
Subsequently, Appellants observe that “Wilson sent an e-mail to Levine asking
her for ‘a written agreement to our new agreement[,]’” but never provided a
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written response when Levine sent her an agreement representing that Wilson
would be an independent contractor and would receive 30% of the net
revenues from CI. See id. at 29-30. While Appellants emphasize Wilson’s
testimony that she “was going forward” with the new arrangement, in the
same line of questioning, Wilson testified: “I mentioned a number of times in
conversations that we had, and then [e]-mails prior, in October, and even in
January, trying to get [Levine] to go back to the original agreement [sic]. It
was obvious I was not happy about it. We communicated that I wasn’t, and
she just maintained her position.” See Appellants’ Brief at 57 (citing N.T.
Trial, 7/19/2017, at 10); see also N.T. Trial, 7/19/2017, at 9. Thus, there is
evidence that Wilson made objections to the new arrangement. Further,
based on the jury’s unjust enrichment verdict, the jury seemed to accept that
Wilson did not agree to the compensation change. As a result, the evidence
does not clearly, precisely, or unequivocally show that Wilson misrepresented
to Levine that she accepted the reduced compensation. Thus, equitable
estoppel does not apply.
In their sixth issue, Appellants insist that, for similar reasons, “[a]s a
matter of law, Wilson waived any right to receive 50% of the net revenues of
CI after October 1, 2005.” Appellants’ Brief at 61 (unnecessary capitalization
and emphasis omitted). They explain that “[w]aiver requires that the other
party knowingly gave up the right and acted clearly, unequivocally, and
decisively to relinquish it.” Id. (citations omitted). For the same reasons we
conclude that equitable estoppel does not apply, we determine that waiver
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also does not apply, as the evidence shows Wilson did not clearly,
unequivocally, and decisively relinquish any right she had to 50% of the net
revenues of CI after October 1, 2005.
Finally, in their seventh issue, Appellants claim that “CCU was not
unjustly enriched by Wilson’s services after October 1, 2005[,] where Wilson
provided fewer services and received greater compensation.” Appellants’ Brief
at 65 (unnecessary capitalization and emphasis omitted). They aver that “the
jury verdict in favor of Wilson for unjust enrichment is improper because it is
based on the exact same compensation that Wilson sought in her breach of
contract claim.” Id. Specifically, they argue that “Wilson’s unjust enrichment
claim is fundamentally a way to nullify modification of the Agreement and
should be reversed on that basis.” Id. In addition, they contend that “the
award is … logically flawed because it is based on two factual assumptions
contrary to the evidence: (i) that Wilson provided the same services after
October 1, 2005[,] as she provided before that date, and (ii) CCU paid less for
those services than it paid previously.” Id.
The trial court discerned that “it was well within the purview of the jury
to determine that Wilson did in fact do work worth fifty (50%) of net revenues
from CI” after the compensation reduction. TCO at 14. Indeed, our review of
the record shows that Wilson testified that, after the compensation reduction,
she did not cut back on her time. See N.T. Trial, 7/17/2017, at 172-73. While
Appellants contend that Wilson did not provide the same services after
October 1, 2005, the jury apparently found that Wilson did work worth half of
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CI’s net revenues. See also Wilson’s Brief at 9-10 (discussing Wilson’s
testimony versus Levine’s testimony and determining that “the jury believed
Wilson and did not believe Levine”). Further, Wilson points out that “[t]he
jury decided that the correct measure of damages was represented by the
difference between the 50% net monthly revenues and the 30% net monthly
revenues after October 1, 2005. That amount was $82,258.66. The jury
determined that was the amount that Wilson unjustly enriched CCU….” Id. at
10. Accordingly, we reject Appellants’ last argument, and affirm the January
23, 2018 judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2019
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