Opinion
J-S50022-18 No. 22 WDA 2018
02-06-2019
NIAGARA VILLAGE LIMITED PARTNERSHIP v. HDSCO8, LLC AND VALERIE S. GILREATH Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered November 30, 2017
In the Court of Common Pleas of Erie County
Civil Division at No(s): No. 11532-2016 BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J. MEMORANDUM BY OTT, J.:
HDSCO8, LLC and Valerie S. Gilreath (hereinafter "Tenant") appeal from the judgment entered November 30, 2017, in the Erie County Court of Common Pleas in favor of Niagara Village Limited Partnership (hereinafter "Landlord"). The trial court entered judgment in the amount of $38,809.01, following a jury verdict for Landlord in this action to recover damages for breach of a commercial lease. On appeal, Tenant contends the trial court erred or abused its discretion in: (1) precluding Tenant from arguing it was constructively evicted from the premises; (2) precluding Tenant from arguing the lease was never signed by Landlord; (3) permitting hearsay evidence in support of Landlord's purported damages; and (4) awarding counsel fees to Landlord. For the reasons below, we affirm.
We have gleaned the following facts from the record. On July 12, 2011, Landlord entered into a commercial lease with Tenant for a medical office in Erie, Pennsylvania. The lease was for a term from August 1, 2011, until December 31, 2016. In February of 2014, Tenant informed Landlord that it intended to move to Arizona. Under the terms of the Lease, the Tenant was not permitted to sublet the office "without Landlord's prior written consent, which consent shall be in Landlord's sole judgment[.]" Complaint, 6/7/2016, Exhibit A, Facility Lease, 7/12/2011, at ¶ 16. Although Tenant produced two potential sub-tenants, neither were accepted by Landlord. In June of 2014, Tenant abandoned the premises, moved out of state, and neglected to pay any further rent.
The Lease lists the tenant as HDSC08. Valerie Gilreath, the doctor operating the office, signed a separate Guaranty of Lease.
On June 7, 2016, Landlord filed a complaint against Tenant seeking damages as a result of Tenant's breach of the lease. After both parties filed preliminary objections and later withdrew them, Tenant filed an answer to the complaint on September 22, 2016. The case proceeded to an arbitration hearing on January 12, 2017. That same day, the arbitrators entered an award in favor of Landlord and against Tenant in the amount of $42,291.70. Tenant filed a timely appeal to the Erie County Court of Common Pleas.
The damages sought included, inter alia, unpaid rent, improvements required for a new tenant, and a leasing commission.
Following a trial, on September 15, 2017, a jury found for Landlord, and awarded damages in the amount of $30,684.57, against Tenant. Both Landlord and Tenant filed timely post-trial motions. Tenant challenged the trial court's exclusion of certain defenses and its admission of hearsay evidence of damages. Landlord sought an additur and attorneys' fees. On November 29, 2017, the trial court conducted a hearing on the motions for post-trial relief, and, thereafter, entered an order: (1) denying Tenant's post-trial motions and Landlord's request for an additur, and (2) granting Landlord's request for attorneys' fees in the amount of $8,124.44. The court also entered judgment for Landlord in the amount of $38,809.01. This timely appeal followed.
On January 3, 2018, the trial court ordered Tenant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Tenant complied with the court's directive and filed a concise statement on January 24, 2018.
On February 27, 2018, the trial court filed an opinion, noting that although Tenant had requested the trial transcript, it "failed to make any payment or deposit for the transcription of any of the court proceedings in this case pursuant to Pa.R.A.P. 1911(a), Rule of Judicial Administration 4007(D), and Erie County Rule of Judicial Administration 4007(B)." Trial Court Opinion, 2/26/2018, at 5. Therefore, the court concluded Tenant had waived most of its claims on appeal. See id. at 6. Nevertheless, the court was able to address two of Tenant's issues which did not require review of the transcript. See Id. at 6-10 (addressing claims that (1) the lease was unenforceable because the copy attached to the complaint was not signed by Landlord, and (2) the award of attorneys' fees was improper). Sometime after the court authored the opinion, Tenant submitted payment for the trial transcripts, and they were included in the certified record that was provided to this Court on appeal. Therefore, on November 9, 2018, we remanded the case to the trial court, so that it could issue a supplemental opinion, addressing the claims it found waived based upon the lack of a transcript. The court then filed a supplemental opinion on December 27, 2018.
Tenant raises the following claims on appeal:
1) the trial court erred in precluding Tenant from presenting evidence that it was justified in breaking the lease based upon Landlord's constructive eviction;See Tenant's Brief at 18, 23-24, 26-27.
2) the trial court erred in precluding Tenant from arguing the lease was not legally binding because it was not signed by Landlord;
3) the trial court erred in permitting Landlord to prove damages by impermissible hearsay;
4) the court erred in awarding Landlord attorneys' fees; and
5) the trial court abused its discretion by failing to enter judgment for Tenant.
We note Tenant lists two additional claims in the statement of questions involved section of its brief: (1) the court erred in finding that "over $22,500" of "'build-out' sums" included in the verdict was reasonable and necessary; and (2) the amount of unpaid rent was "factually incorrect." Tenant's Brief at 8. However, neither of these claims are addressed in the argument portion of Tenant's brief. Accordingly, they are waived on appeal. See Kessler v. Pub. Documents Pen Register & Wire Taps , 180 A.3d 406, 410 (Pa. Super. 2018). --------
It is well-settled that "we review challenges to the trial court's evidentiary rulings for an abuse of discretion." MB Fin. Bank v. Rao , ___ A.3d ___, ___, 2018 PA Super 353, *3 (Pa. Super. Dec. 24, 2018). Our review of a court's decision to permit attorneys' fees is also limited to whether the court abused its discretion. See Krishnan v. Cutler Grp., Inc., 171 A.3d 856, 871 (Pa. Super. 2017).
Upon our review of the record, the parties' briefs, and the relevant statutory and case law, we conclude the trial court thoroughly addressed and properly disposed of Tenant's first four issues on appeal in its original and supplemental opinions. See Trial Court Opinion, 2/26/2018, at 6-10; Supplemental Opinion, 12/27/2018, at 2-7 (finding (1) Tenant waived claim that it was justified in breaking the lease or constructively evicted from the premises when it failed to plead either defense in new matter pursuant to Pa.R.C.P. 1030(a); (2) Tenant waived argument that the lease was never signed by Landlord when (a) it failed to raise statute of frauds claim in new matter, and (b) admitted it entered into a lease with Landlord in its answer; (3) evidence of a demand email, accompanied by receipts of damages, was properly admitted as a business record to prove Landlord's damages, when the manager of the property, who created the document, testified; and (4) award of attorneys' fees was both provided for in the lease, and reasonable based upon testimony provided at the post-trial hearing). Accordingly, we rest on the court's well-reasoned bases.
With regard to Tenant's fifth claim, we find it is simply a restatement of its first two issues. Indeed, Tenant asserts, without citation to the record or any authority, that the court was "incorrect" in refusing to grant a compulsory nonsuit, directed verdict, or binding instructions in its favor based upon the fact it was constructively evicted from the office and/or the lease was never signed by the Landlord. Tenant's Brief at 27-28. As we have already determined these claims are meritless, Tenant's fifth issue similarly fails.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/6/2019
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