Opinion
J. A10005/17 No. 2456 EDA 2016
06-08-2017
KOUZOUPIS JEWELRY, SA, Appellant v. GEORGE ZIKOS AND ZIKOS JEWELERS, INC., Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered August 3, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No.: 2011-00122 BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY DUBOW, J.:
Appellant, Kouzoupis Jewelry, SA, appeals from the August 3, 2016 Judgment entered in the Bucks County Court of Common Pleas after a bench trial. We affirm.
The relevant facts, as gleaned from the certified record and the trial court's Pa.R.A.P. 1925(a) Opinion, are as follows. From 1992 until 2008, Appellee George Zikos ("Mr. Zikos") owned and operated a retail jewelry store in Mykonos, Greece. Mr. Zikos purchased jewelry from several vendors in Greece, including Appellant beginning in 1992. Over the years, Appellant's salesman would bring jewelry to a Zikos shop, and Mr. Zikos would pick out items to purchase and sell in his store. After delivery of the jewelry, Appellant would send an invoice addressed to Mr. Zikos personally, and Mr. Zikos would provide postdated checks to pay the cost of the jewelry. Mr. Zikos allegedly provided several personal checks in exchange for the jewelry, but the bank dishonored some of the checks due to insufficient funds.
At the time of trial, Mr. Zikos resided in New Hope, Pennsylvania. Mr. Zikos owned and operated Zikos Jewelers, Inc., as a Pennsylvania Corporation with a principal place of business in New Hope, Pennsylvania.
Kouzoupis Jewelry, SA, is a Greek company with offices in Athens, Greece.
On January 5, 2011, Appellant filed a Complaint in the Bucks County Court of Common Pleas alleging nonpayment of checks and fraud across 27 different transactions with Appellees Mr. Zikos and Zikos Jewelers, Inc., between 2003 and 2008. Appellant sought €91,000 from Appellees for failing to pay for various items of delivered jewelry and to cover the dishonored checks allegedly given as payment for the jewelry.
Following a bench trial on January 12, 2016, the trial court concluded that Appellant lacked standing because Efrosini Kouzoupi, Appellant's Vice President, was the recipient and holder of the checks and had never assigned them to Appellant. Each of the dishonored checks was made payable to Efrosini Kouzoupi personally, rather than Appellant. Each of the dishonored checks was from Mr. Zikos's personal account to Efrosini Kouzoupi. As a result, the trial court entered a verdict in favor of Appellees.
After Appellant rested, the trial court granted Appellee Zikos Jewelers' demurrer to the evidence since Appellant's evidence showed that (1) Mr. Zikos personally signed and issued all of the dishonored checks in his own name rather than Zikos Jewelers, and (2) each of Appellant's invoices indicated Mr. Zikos personally as the customer rather than Zikos Jewelers. The trial court entered a verdict in favor of Zikos Jewelers. N.T. Trial, 1/12/16, at 69, 77-78.
Appellant filed a Post-Trial Motion on February 16, 2016. On August 3, 2016, the trial court entered Judgment by Praecipe.
The trial court stated that it never received Appellant's Post-Trial Motion, although it acknowledges the docket indicates its filing on February 16, 2016. As a result, the trial court never ruled upon Appellant's Post-Trial Motion within 120 days and Appellant thereafter sought entry of Judgment upon Praecipe pursuant to Pa.R.C.P. No. 227.4(1)(b) in order to appeal the Judgment.
On August 4, 2016, Appellant filed a timely Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the [t]rial [c]ourt committed reversible error in finding that the [A]ppellant did not have the standing necessary to sue the [A]ppellee on the payment promises represented by the ten (10) dishonored checks in the possession of the [A]ppellant's vice-president in consideration for the jewelry it had sold to the [A]ppellee on credit?Appellant's Brief at 2.
We review an order following a bench trial with the following principles in mind:
Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of law. The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Furthermore, our standard of review demands that we consider the evidence in a light most favorable to the verdict winner.Levitt v. Patrick , 976 A.2d 581, 588-89 (Pa. Super. 2009) (citation and quotation omitted).
"[A]ll actions shall be prosecuted by and in the name of the real party in interest...[.]" Pa.R.C.P. No. 2022. "To possess standing to litigate an action, a party must demonstrate a substantial interest in the subject matter of the litigation, and that interest must be direct and immediate as opposed to being a remote consequence." Pennsylvania School Boards Ass'n , Inc. v. Zogby , 802 A.2d 6, 15 (Pa. Cmwlth. 1999). See also Pa.R.C.P. No. 1028(a)(5).
A check is a negotiable instrument. 13 Pa.C.S. § 3104(f). The holder of a negotiable instrument is "the person in possession of a negotiable instrument that is payable either to the bearer or to an identified person that is the person in possession[.]" 13 Pa.C.S. § 1201(b)(21)(i). A negotiable instrument "is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument." 13 Pa.C.S. § 3203(a).
The trial court addressed Appellant's standing as follows:
Here, Ms. Efrosini Kouzoupi[], a person not a party to the suit, is the holder of the checks in dispute. Ms. Kouzoupi[] not only had physical possession of the checks, but the checks were also made out directly to her. [Appellant] is not the payee on any of the checks involved in this case. While checks are negotiable instruments and are therefore able to be assigned to someone other than the holder, the checks here were not transferred by Ms. Kouzoupi[], as she did not deliver them or otherwise assign them to [Appellant] for the purpose of giving the company the right to enforce the checks.Trial Court Opinion, dated 10/18/16, at 4 (citation omitted).
Therefore, Ms. Efrosini Kouzoupi[], not [Appellant], is the holder of the checks in issue because the checks were never actually assigned to the company, even if the proceeds of them [were] intended to be at some point. In fact[,] Ms. Kouzoupi[] testified that she attempted to deposit the checks into her personal account but they bounced or were not honored. At trial, Ms. Kouzoupi[] testified that her practice was to deposit checks received from jewelry purchasers into her personal account, which is what she attempted to do in this case. Her testimony made it clear that while she may have intended to give [Appellant] the proceeds she realized from the checks had they cleared, they never cleared and she never had any proceeds to give to [Appellant] and she never gave the checks to [Appellant]. Therefore, [Appellant] does not have a substantial, direct, or immediate interest in the subject matter of the litigation. Because of that, Ms. Kouzoupi[] is the only person who is empowered [to] resolve the dispute about the checks.
We agree with the trial court's analysis. Each check Mr. Zikos issued was made payable to Efrosini Kouzoupi personally. Mr. Zikos issued no checks made payable directly to Appellant. Ms. Kouzoupi, Appellant's Vice President, personally held all of the dishonored checks in question when she testified at trial by video. Appellant presented no evidence showing that Ms. Kouzoupi had assigned or transferred the checks to Appellant. As a result, Efrosini Kouzoupi was the "real party in interest" and Appellant lacked standing in this matter.
Efrosini Kouzoupi testified that, pursuant to standard business practices in Greece, such deals were executed personally by the company's representatives and that she would eventually transfer the money to Appellant from her personal account. N.T. Trial, 1/12/16, at 30-31. --------
The trial court's findings are supported by competent evidence and we discern no error in the trial court's application of law. We affirm on the basis of the trial court's October 18, 2016 Opinion.
The parties are instructed to attach a copy of the trial court's October 18, 2016 Opinion to all future filings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/8/2017
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