Opinion
J-A26041-17 No. 2111 MDA 2016
01-11-2018
RAY M. KREIDER Appellant v. DAVID CORREIA; OAK TREE REAL ESTATE, LLC; MONUMENT STREET FUNDING, LLC; AND FIRST AMERICAN TITLE INSURANCE COMPANY
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 14, 2016
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-09-07984 BEFORE: BOWES, J., OLSON, J., and RANSOM, J. MEMORANDUM BY RANSOM, J.:
Appellant, Ray M. Kreider, appeals from the trial court's orders entered April 1, 2016, July 25, 2016, and December 14, 2016, granting summary judgment in favor of Appellees, David Correia; Oak Tree Real Estate, LLC ("Oak Tree"); Monument Street Funding, LLC ("Monument"); and First American Title Insurance Company ("First American"). After careful review, we affirm and grant Appellees' motion to dismiss Appellant's breach of fiduciary duty/negligence claims for waiver.
We adopt the following statement of facts and procedural history from the trial court opinion, which in turn is supported by the record. See Trial Court Opinion (TCO), 3/15/17, at 2-9. In March 1977, Paul and Barbara Staab acquired a parcel of land ("the Property") located in Columbia, Pennsylvania, from Maurice Fitez and Evelyn Beecher Fitez. In August 1986, the Staabs acquired an adjacent .22-acre parcel of land ("the parcel") from Evelyn Beecher Fitez. Subsequent to acquiring both parcels, the Staabs took out a home equity loan on the Property only. They eventually defaulted on that mortgage, which was later assigned to Monument, which then commenced a mortgage foreclosure action. Following the successful foreclosure of the Property, Monument purchased it at sheriff's sale and obtained a sheriff's deed. It then placed the Property on the market to be sold.
Appellant approached Mr. Correia, an agent in the employ of Oak Tree, about purchasing the Property. Mr. Correia incorrectly informed Appellant that a two-car garage and surrounding land were part of the Property, though in reality, they were attached to the Parcel. An MLS listing also incorrectly stated that the Property consisted of .68 acres and included a two-car garage. In June 2007, Appellant entered a written contract with Mr. Correia to purchase the Property from Monument for $52,000.00. At that time, he did not review the deed.
Several months later, the Staabs sold the Parcel to Joseph Ritchey. In September 2007, Mr. Ritchey informed Appellant that the garage was part of his property. Appellant went to the courthouse and reviewed the title record for the first time and subsequently gave possession of the garage to Mr. Ritchey. In August 2008, for the first time, Appellant had a survey of the Property conducted. Appellant discovered that the Parcel contained a twenty-two-foot overlap with the Property in addition to the problems with the garage.
In April 2009, Appellant received a cease and desist order from a zoning board officer, as the foreclosure had created two separate parcels and a resulting impermissible decrease in lot size. He appealed to the zoning board and simultaneously filed an action to quiet title against Mr. Ritchey and a writ of summons against Mr. Correia and Oak Tree. While Appellant was unsuccessful before the zoning board, the Court of Common Pleas of Lancaster County reversed the board's ruling.
Monument was joined as a defendant two years later by writ of summons, and First American was joined as a defendant with the filing of the complaint.
Meanwhile, the lawsuits against Appellees proceeded. First American and Monument filed answers with new matters. Monument asserted a cross-claim against Mr. Correia and Oak Tree, asserting that if the claims in the complaint were found to be true, Mr. Correia and Oak Tree were solely liable. Mr. Correia and Oak Tree filed an answer to the cross-claim and their own cross-claim against Monument. Two years then passed, the suits languished, and were eventually dismissed due to lack of activity on the docket. After the actions were reinstated, the parties began filing motions seeking summary judgment.
Monument filed a motion for summary judgment against Appellant and a cross-motion against Mr. Correia and Oak Tree. Mr. Correia and Oak Tree responded, as did Appellant. Monument filed a reply. First American filed a motion for summary judgment and Appellant filed a reply. Prior to the resolution of the motions, the parties unsuccessfully attempted mediation. Following the conclusion of mediation, the court entered summary judgment in favor of First American. The court entered summary judgment in favor of Monument and against Appellant, and denied Monument's cross-motion against Mr. Correia and Oak Tree.
Mr. Correia and Oak Tree then filed a motion for summary judgment against Appellant. When Appellant did not respond, the court entered summary judgment in favor of Mr. Correia and Oak Tree. However, Appellant filed an untimely answer to the motion, essentially requesting reconsideration of the order and averring that he had miscalculated the number of days to file a response. The court granted his request but ultimately granted summary judgment in favor of Mr. Correia and Oak Tree.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court issued a responsive opinion.
On appeal, Appellant presents the following questions for our review, which we have reworded for clarity:
1. Did the lower court commit an error of law and/or abuse its discretion when it granted Monument Street Funding, LLC's motion for summary judgment and dismissed the breach of contract claims based upon the merger doctrine and the express language of the deed, and dismissed Appellant's tort claims as barred by the statute of limitations?
2. Did the lower court commit an error of law and/or abuse its discretion when it granted David Correia's and Oak Tree Real Estate, LLC's motion for summary judgment and dismissed Appellant's breach of contract claims based upon the express language of the agreement of sale and failing to apply the parol evidence rule, and dismissed Appellant's breach of fiduciary duty claim?See Appellant's Brief at 9-10 (unnecessary capitalization omitted).
3. Did the lower court commit an error of law and/or abuse its discretion when it granted First American Title Insurance Company's motion for summary judgment and dismissed Appellant's breach of contract claim based upon the express language of the agreement of sale.
Our scope and standard of review of an order granting summary judgment are well-settled.
[S]ummary judgment is properly granted where there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. Summary judgment may be granted only where the right is clear and free from doubt. The moving party has the burden of proving that there is no genuine issue of material fact. The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion.First Wisconsin Trust Co. v. Strausser , 653 A.2d 688, 691 (Pa. Super. 1995) (internal citations and quotations omitted).
After thorough review of the record, the briefs of the parties, the applicable law, and the well-researched opinion of the Honorable Jeffrey D. Wright, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. See TCO at 9-23 (finding: (1) Appellant's breach of contract claim against Monument is barred by merger doctrine and the express language of the deed; Appellant's tort claims against Monument are barred by the statute of limitations as at the latest, the statute began to run in August 2008; (2) summary judgment was properly granted in favor of Mr. Correia and Oak Tree as to the breach of contract claim based on the express language of the sales agreement and because of the merger doctrine; (3) summary judgment was properly granted as to the breach of fiduciary duty claim pursuant to the Real Estate Licensing and Registration Act (RELRA), since certain language in the deed could not be said to be the cause of Appellant's harm; and (4) summary judgment was properly granted in favor of First American because it was a party to the title insurance policy, and even if it was not, the policy expressly excludes defects that a survey would have shown). Accordingly, we affirm on the basis of the trial court's opinion.
In Appellant's reply brief, he argued that the breach of fiduciary duty claim against Mr. Correia was not a private cause of action pursuant to RELRA, but instead, premised upon a traditional breach of fiduciary duty/negligence. In response Mr. Correia and Oak Tree filed a motion to dismiss this issue for waiver, as in the lower court, the only claim preserved in Appellant's Pa.R.A.P. 1925(b) statement was that the court did not apply 63 P.S. § 455.606, the section of RELRA relating to relationships between brokers and consumers of real estate services. As Appellant preserved only this issue in his 1925(b), and the court addressed only this issue, we find Appellant's common law claims waived for failure to preserve them in the lower court. See Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal). Accordingly, we grant Appellees' motion. --------
Application to dismiss granted. Order affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/11/2018
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