Lodise, T. v. Aspen Mill, LLC ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS LODISE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASPEN MILL, LLC, HORIZON :
CONSTRUCTION BUILDERS AND :
REMODELERS, HORIZON : No. 3685 EDA 2017
CONSTRUCTION LLC, ASPEN MILL :
LLC, AND JAMES CASE :
:
:
APPEAL OF: ASPEN MILL LLC, :
HORIZON CONSTRUCTION :
BUILDERS AND :
REMODELERS, AND HORIZON :
CONSTRUCTION LLC
Appeal from the Judgment Entered October 16, 2017
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2012-24791
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 04, 2018
Aspen Mill LLC, et al. (“Aspen Mill”) appeals from the judgment, entered
in the Court of Common Pleas of Montgomery County, following the trial
court’s granting of Thomas Lodise’s motion to mold the verdict and enter
judgment. After careful review, we affirm.
On March 5, 2010, Lodise entered into an agreement with Aspen Mill to
purchase the residence at 229 Milton Avenue, Horsham Township,
Pennsylvania (“the Residence”) for $385,000.00. Prior to finalizing the sale
of the Residence, Aspen Mill assured Lodise that it would furnish a warranty
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(“Warranty”) on the Residence. During the closing of the escrow on the
Residence, an agent of Aspen Mill presented Lodise with documents that both
parties had signed. As Lodise was leaving, he received a written, limited
warranty; Aspen Mill signed the limited warranty but never demanded Lodise
sign it, which he did not. The limited warranty provides, in relevant part, as
follows:
7. REPAIRS – Upon receipt of your written report of a defect, if
the defective item is covered by this limited warranty we will repair
or replace it at no charge to you within sixty days (60). . . . In the
event the Seller does not replace or repair the defective item
within (60) days of the written notification to Seller, Buyer or
Buyer’s sub-contractors chosen by Buyer shall have the option to
repair or replace the defective item and Seller shall reimburse
Buyer for the cost of said work.
Written Warranty, 3/5/10, at 2 (emphasis added).
On March 13, 2010, Lodise notified Aspen Mill, via email, of leaking
basement windows and three doors that did not shut properly. These defects
were just the first of many. Between 2010 and 2012, Lodise sent additional
emails to Aspen Mill complaining of cracks in the basement floor and wall,
water intrusion in the basement, sloping floors, other doors that would not
shut properly, floor deflection, and other issues. Aspen Mill repeatedly
indicated that it would repair the defects enumerated in Lodise’s
correspondences, but rarely did. Between 2010 and 2012, Aspen Mill only
repaired cracks in the Residence’s drywall. Aspen Mill concedes that it never
attempted to repair structural defects in the Residence (e.g., basement
cracks, water intrusion, etc.).
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On September 14, 2012, Lodise filed a complaint, in which he alleged
two counts of breach of contract, unjust enrichment, negligence, fraud,
violation of the Unfair Trade Practices and Consumer Protection Law
(“UTPCPL1”), and rescission. On July 18, 2017, Aspen Mill authored a letter
to Lodise offering to repurchase the Residence at the original purchase price
of $385,000.00. Aspen Mill, in the letter, stated that the offer to repurchase
was not contingent upon settlement of the Lodise’s lawsuit and that it did not
intend to offer the letter into evidence at trial. Prior to trial, Lodise filed a
motion in limine to preclude the purchase offer letter from evidence, which
the trial court granted.
On August 8, 2017, a three-day jury trial commenced. On appeal, three
claims remained outstanding: breach of express warranty, breach of implied
warranty, and violation of the UTPCPL. At trial, Lodise referred to the current
value of the home in his opening statement. Aspen Mill objected to the
language of the opening in light of the trial court’s decision not to allow Aspen
Mill to introduce its purchase offer into evidence; the trial court again ruled in
Lodise’s favor, barring the purchase offer letter from evidence.
At the end of trial, the jury returned a verdict against Aspen Mill for
$100,000.00, of which the jury found $30,000.00 attributable to a violation of
the UTPCPL. On September 11, 2017, both Lodise and Aspen Mill filed post-
trial motions. On October 16, 2017, the trial court denied Aspen Mill’s post-
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1 73 P.S. §§ 201-1, et seq.
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trial motion and granted, in part, Lodise’s motion. Accordingly, the trial court
entered an order molding the verdict, doubling the damages attributable to
the UTPCPL claim,2 awarding attorney and expert fees, for a total verdict of
$273,258.50.
On November 8, 2017, Aspen Mill filed a timely notice of appeal. Both
Aspen Mill and the trial court have complied with Pa.R.A.P. 1925. On appeal,
Aspen Mill raises the following issues for our review:
1. Was it error for the [t]rial [c]ourt to deny JNOV on [Lodise’s]
UTPCPL claim for “failing to comply with the terms of any
written guarantee or warranty . . .,” 73 P.S. § 201-2(xiv),
where the pertinent language of the written warranty did not
require [Aspen Mill] to repair [Lodise’s] property themselves,
but merely to reimburse [Lodise] after he completed such
work, and [Lodise] never pursu[ed] such work?
2. Did the [t]rial [c]ourt abuse its discretion and commit an error
of law when it granted [Lodise’s] motion in limine precluding
admission of a letter by [Aspen Mill’s] counsel offering to re-
purchase [Lodise’s] home for the full original purchase price
with no condition that [Lodise] discontinue any part of [his]
legal action?
3. Did the [t]rial [c]ourt abuse its discretion in awarding to
[Lodise] approximately 93% of the attorney’s fees and expert
witness costs he incurred pursuing this action, where such
expenditures arose out of seven distinct (albeit, factually
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2 In determining whether to double or treble damages under the UTPCPL,
“[c]entrally, courts of original jurisdiction should focus on the presence of
intentional or reckless, wrongful conduct, as to which an award of [double or
treble] damages would be consistent with, and in furtherance of, the remedial
purposes of the UTPCPL.” Schwartz v. Rockey, 932 A.2d 885, 898 (Pa.
Super. 2007). The decision to double or treble damages is within the
discretion of the trial court. Id. Here, the trial court determined that Aspen
Mill’s wanton disregard of its obligation to repair the Residence merited
doubling the UTPCPL portion of Lodise’s damages award.
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related) causes of action, only one of which, the UTPCPL
[claim], allowed for an award of attorney’s fees?
Brief of Appellant, at 5-6.
Aspen Mill first argues that the Warranty did not require it to repair the
Residence, but merely to reimburse Lodise after he completed such repairs.
This claim is meritless.
In interpreting the language of a contract, we attempt to ascertain
the intent of the parties and give it effect. When the words of an
agreement are clear and unambiguous, the intent of the parties is
to be ascertained from the language used in the agreement, which
will be given its commonly accepted and plain meaning.
Additionally, in determining the intent of the contracting parties,
all provisions in the agreement will be construed together and
given effect. Thus, we will not interpret a provision of a contract
in a manner which results in another portion being annulled.
LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A2d 639, 647-48 (Pa.
Super. 2009) (citations omitted).
Here, the language in the Warranty explicitly states, “Upon receipt of
your written report of a defect . . . we will repair or replace it at no charge to
you.” Warranty, 3/5/10, at 10. Alternatively, the “[b]uyer shall have the
option to repair or replace the defective item and Seller shall reimburse Buyer
for the cost of said work.” Id. (emphasis added). We find this language clear
and unambiguous. The Warranty clearly provided that Aspen Mill was required
to undertake repairs; it did not. Lodise merely had the option to seek
reimbursement for repairs undertaken to remedy defects in the Residence;
said option was not, as Aspen Mill avers, a requirement. Therefore, Aspen Mill
breached the Warranty.
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Second, Aspen Mill claims that the trial court erred in granting Lodise’s
motion in limine precluding admission of Aspen Mill’s July 17, 2017 purchase
offer letter.
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa.
Super. 2014). “It gives the trial judge the opportunity to weigh potentially
prejudicial and harmful evidence before the trial occurs, thus preventing the
evidence from ever reaching the jury.” Id. “A trial court’s decision to grant
or deny a motion in limine ‘is subject to an evidentiary abuse of discretion
standard of review.’” Id. (quoting Commonwealth v. Reese, 31 A.3d 708,
715 (Pa. Super. 2011) (en banc)).
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court’s decision absent a clear abuse of discretion. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires manifest
unreasonableness, or partiality, prejudice, bias or ill-will, or such
lack of support so as to be clearly erroneous.
Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,
11 (Pa. Super. 2013) (quotations and citations omitted).
Here, the trial court precluded the July 17, 2017 purchase offer letter
from evidence pursuant to Pa.R.E. 402 and 403,3 which provide, in relevant
parts, as follows:
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3Aspen Mill avers that the trial court prohibited the admission of the purchase
offer letter pursuant to Pa.R.E. 408. Pa.R.E. 408 (“Evidence of the following
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Rule 402. General Admissibility of Relevant Evidence
All relevant evidence is admissible, except as otherwise provided
by law. Evidence that is not relevant is not admissible.
...
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion,
Waste of Time or Other Reasons
The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.
Pa.R.E. 402 and 403. Aspen Mill’s offer to purchase the property from Lodise
for $385,000.00 (i.e., the original purchase price) does not establish the value
of the property to a disinterested third party. Furthermore, Aspen Mills
informed Lodise in its purchase offer letter that said offer was not contingent
upon settlement, and that it would not attempt to admit the purchase offer
letter as evidence at trial. Therefore, by Aspen Mill’s own tacit admission, the
purchase offer letter is irrelevant for establishing the value of the Residence.
Moreover, evidence of Aspen Mill’s purchase offer would have confused the
issues in this case. Aspen Mill’s purchase offer is not dispositive of whether it
breached the Warranty or violated the UTPCPL. Lodise’s initial hesitancy and
ultimate rejection of Aspen Mill’s purchase offer convolutes other relevant
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is not admissible – on behalf of any party – either to prove or disprove the
validity or amount of a disputed claim[:] (1) furnishing, promising, or offering
. . . a valuable consideration in compromising or attempting to compromise
the claim[.]”). They are mistaken. The trial court did not consider rule 408
in determining that it must exclude the July 17, 2017 purchase offer letter
from evidence.
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issues. Therefore, the trial court did not abuse its discretion in barring the
July 17, 2017 purchase offer from evidence.
Lastly, Aspen Mill argues that the trial court abused its discretion in
awarding Lodise approximately 92 percent of attorney fees and expert witness
costs he incurred pursuing his action. We disagree.
Under the UTPCPL, “[t]he court may award to the plaintiff, in addition
to other relief provided . . . costs and reasonable attorney fees.” 73 P.S. §
201-9.2. The trial court has discretion in awarding attorney’s fees, and an
appellate court will not disturb such an award unless the trial court abuses
that discretion. Skurnowicz v. Lucci, 798 A.2d 788, 796 (Pa. Super. 2002).
In exercising its discretion, the trial court must consider:
(1) The time and labor required, the novelty and difficulty of the
questions involved and the skill requisite properly to conduct the
case; (2) [t]he customary charges of the members of the bar for
similar services; (3) [t]he amount involved in the controversy and
the benefits resulting to the client or clients from the services, and
(4) [t]he contingency or certainty of the compensation.
Id., citing McCauslin v. Reliance Fin. Co., 751 A.2d 683, 685-86 (Pa. Super.
2000).
While the trial court may award attorney fees for violations of the
UTPCPL under section 201-9.2, they are not available for common law breach
of contract or implied warranty violations. Rather, the trial court, in awarding
attorney fees under the UTPCPL, must link the fee award to the amount of
damages the plaintiff sustained under the UTPCPL, and eliminate from the
award of attorney fees the efforts of counsel to recover on non-UTPCPL
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theories. Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1031 (Pa. Super.
2005). Accordingly, the court should make an effort to “apportion the time
spent by counsel on the distinct causes of action.” Croft v. P & W Foreign
Car Services, 557 A.2d 18, 20 (Pa. Super. 1989).
Here, the trial court awarded Lodise $119,370.75 of his total attorney
fees expenditure of $129,277.00 (i.e., approximately 92 percent of attorney
fees) and $23,887.75 in expert witness fees. Lodise pursued various non-
UTPCPL causes of action; however, the underlying facts of each of those
causes of action mirror those of his UTPCPL claim. Aspen Mill concedes that
Lodise’s UTPCPL claims relate factually to his other causes of action. Brief of
Appellant, at 6. Accordingly, the trial court only subtracted attorney fees that
that counsel exclusively billed on non-UTPCL theories. The trial court
summarized its reasons for deducting only $9,906.25 in attorney fees as
follows:
[A] fair estimate is that four hours of [counsel’s] times was spent
on drafting pleadings, eight hours of [counsel’s] time was spent
on pleadings . . . twelve hours of [counsel’s] time was spent on
researching and drafting proposed points for charge . . . and a
half-day of trial and related preparation for [counsel] (roughly
7.25 hours each)4 . . . were spent on pursuing purely non-UTPCPL
claims.
Memorandum Order, 10/16/17, at 8.
Aspen Mill argues that, pursuant to Bavarian Motors, Inc., Lodise was
entitled only to an attorney fees award commensurate with the percentage of
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4 Two attorneys represented Lodise at trial.
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UTPCPL damages as compared to the entire verdict. Aspen Mill premises this
calculation on dicta in Bavarian Motors Inc., which states, “It would not be
unreasonable for the [trial court] judge . . . to apply [the percentage of UTPCPL
damages of the verdict] to the plaintiff’s request for attorney fees.”5
Bavarian Motors, Inc., 882 A.2d at 1032 n.12 (emphasis added).
However, this Court, in Bavarian Motors Inc., did not mandate, as
Aspen Mill argues, that such a method is the only way to calculate an award
of attorney fees under the UTPCPL. This Court merely stated that such a
method “would not be unreasonable.”6 The trial court awarded Lodise
attorney fees where counsel’s efforts were in furtherance of his UTPCPL claim,
and subtracted attorney fees where such efforts were in exclusive furtherance
of non-UTPCPL theories. Therefore, we do not find the trial court abused its
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5Aspen Mill asserts that, of the total verdict, 30 percent is attributable to
UTPCPL damages. Brief of Appellant, at 68.
6 In his concurring opinion, the Honorable John Kelly opined that:
Because of the similarity of strategies between UTPCPL and non-
UTPCPL damages, however, it may be inherently difficult to
separate attorney fees based on a strict percentage because
research was undoubtedly performed by counsel in support of
multiple theories. Thus, I believe awarding UTPCPL attorney fees
based on a strict percentage would not accurately reflect the
amount of time spent actually pursuing UTPCPL-related theories.
Bavarian Motors, Inc., 882 A.2d at 1034. Judge Kelly’s concurrence belies
Aspen Mill’s assertion that this Court established a bright-line rule regarding
the calculation of attorney fees in UTPCPL cases.
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discretion in determining appropriate attorney fees under the UTPCPL.
Skurnowicz, supra.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/18
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