Opinion
2153 EDA 2021 2266 EDA 2021 J-A17021-22
09-19-2022
ATTIKIS J. DAVIS AND KELLIE RAE DAVIS v. MICHAEL PANARELLA AND CHRISTINE A. PANARELLA Appellants ATTIKIS J. DAVIS AND KELLIE RAE DAVIS Appellant v. MICHAEL PANARELLA AND CHRISTINE A. PANARELLA
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered October 8, 2021 In the Court of Common Pleas of Monroe County Civil Division at No(s): 003649-CV-2019
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
NICHOLS, J.
In these cross-appeals, Michael Panarella and Christine A. Panarella (the Panarellas) and Attikis J. Davis and Kellie Rae Davis (the Davises) appeal from the judgment entered in favor of the Davises and against the Panarellas. In the appeal at 2153 EDA 2021, the Panarellas challenge the trial court's calculation of damages and counsel fees, and in the cross-appeal at 2266 EDA 2021, the Davises contend that the trial court erred in failing to award punitive damages against the Panarellas. After review, we affirm.
This Court consolidated these cross-appeals sua sponte, and designated the Panarellas as Appellants/Cross-Appellees and the Davises as Appellees/Cross-Appellants. Order, 12/21/21; Order, 1/31/22.
The trial court summarized the procedural history and made the following findings of fact:
This matter came before the [c]ourt for a non-jury trial held on April 30, 2021. [The Davises] alleged that [the Panarellas] sold them real property without disclosing an encroachment of a portion of the driveway and landscaping on a neighboring lot. [The Davises] also alleged the neighboring lot, owned by the [Panarellas] was to be sold to [the Davises] under a separate agreement. [The Davises] filed a complaint alleging adverse possession, violation of the Real Estate Seller Disclosure Law (RESDL), fraud, nuisance, trespass, replevin, specific performance and breach of contract. The parties have now submitted briefs, having waived the time period for a decision.
FINDINGS OF FACT
1. [The Panarellas] were the owners of Lots 14 and 15 located at 229 Evergreen Court, Saylorsburg, Monroe County, Pennsylvania.
2. Lot 14 was a vacant lot and Lot 15 was improved with a house thereon, including a driveway and other outdoor improvements.
3. [The Panarellas] had listed the properties for sale at least three different times prior to June of 2017.
4. [The Panarellas] had tried in the past to sell both of the properties together and at least one time listed and marketed them for sale together, consisting of a total of 3.64 acres.
5. Some time prior to June 2017, [the Panarellas] received a referral to James Galligan, a Keller Williams real estate agent located in Stroudsburg, PA, from Robert Pistone, a Keller Williams real estate agent located in Las Vegas, NV, where the [the Panarellas] had recently moved. Mr. Galligan and Mr. Pistone were both affiliated with Keller Williams and Mr. Pistone had received Mr. Galligan's information as an agent in the Poconos where these lots are located.
6. While in Las Vegas for a seminar in May 2017, Mr. Galligan met with Mr. Pistone and Mrs. Panarella to discuss a potential marketing plan for [the Panarellas'] property.
7. Mr. Pistone recalled that there was a discussion at that meeting of [the Panarellas] wanting to sell both lots together.
8. Sometime thereafter, Mr. Galligan met Mr. Panarella at the house on Lot 15 to discuss a listing agreement. Mr. Galligan advised that the market might not be conducive to the price the [the Panarellas] wanted for both properties, and that [the Panarellas] could list Lot 15 for sale and try to offer Lot 14 to a prospective buyer of Lot 15 when they made an offer, or wait and sell it separately in the future.
9. Based upon that conversation, Mr. Galligan prepared a listing agreement in early June 2017 for the improved Lot 15 only and the [the Panarellas] signed that agreement.
10. Mr. Galligan proceeded to list the property on the Multiple Listing Service (MLS), and marketed it specifically as Lot 15, consisting of an improved 1.94 acre lot.
11. [The Panarellas] filled out and signed a Sellers Property Disclosure Statement (Disclosure Statement) on or about June 5, 2017.
12. The Disclosure Statement at paragraph 18(B), specifically asking whether [the Panarellas] were aware of any encroachments, boundary line disputes, or any shared common areas/driveways, was answered "No" by [the Panarellas].
13. At the time they filled out the Disclosure Statement, [the Panarellas] knew that a portion of their driveway, landscaping,
retaining wall, and mailbox area encroached onto Lot 14 from Lot 15.
14. At the time they filled out the Disclosure Statement, and through August 2018, [the Panarellas] did not inform their real estate agent, Mr. Galligan, of the property encroachment from Lot 15 onto Lot 14.
15. If Mr. Galligan had been made aware of the encroachments he would have required that it be disclosed to potential buyers, and required that the lots be listed and sold together.
16. [The Davises] eventually became interested in the improved Lot 15 and were shown the property through their real estate agent, Jessica Keller.
17. Ms. Keller knew of no listing agreement that included Lot 14 being offered for sale with Lot 15, nor was it listed for sale together with Lot 15 in the MLS.
18. Ms. Keller subsequently learned of [the Panarellas'] ownership of Lot 14 through her own research and not because Lot 14 was listed in the MLS or presented as a package deal with Lot 15.
19. [The Davises] initially were only interested in purchasing the improved Lot 15 that was listed for sale in the MLS.
20. [The Davises] made an offer to purchase Lot 15 and [the Panarellas] issued a counteroffer at a higher price that also included Lot 14 in the sale.
21. [The Davises] were reluctant to purchase the vacant Lot 14 with Lot 15, but ultimately agreed to do so in order to meet the [the Panarellas'] demand in order to purchase Lot 15. The sale price for Lot 15 was $ 389,000 with closing on or before August 21, 2017. A separate installment agreement of sale was signed for vacant Lot 14 at a sale price of $25,000, with $500 down, $200 per month from September 21, 2017, and the balance due on or before August 21, 2018.
22. At no time prior to closing on Lot 15 on August 21, 2017 did [the Panarellas] advise either the [the Davises], [the Davises'] real estate agent, or [the Panarellas'] real estate agent, Mr. Galligan, that a portion of the driveway, landscaping, retaining wall and mailbox encroached from Lot 15 onto Lot 14.
23. [The Davises] would not have purchased the properties if they had known of the encroachments prior to closing.
24. Prior to the closing on Lot 15, [the Davises] had a home inspection performed.
25. As a result of the home inspection, a verbal agreement was reached, as memorialized in emails between the real estate agents. [The Panarellas] agreed to remediate the radon levels, have the septic system pumped, and have the well "shocked" due to coliform.
26. A written addendum to the contract for the repairs was prepared and signed by the [the Davises], but the [the Panarellas] never signed it.
27. On Friday, August 18, 2017, just days prior to the closing on Lot 15, [the Davises] found out from their real estate agent that the [the Panarellas] had called [the Davises'] mortgage company, inquiring whether or not the agreed upon repairs had to be performed in order to obtain a "clear to close" from the lender.
28. Upon learning that [the Davises] already had a "clear to close" from the lender, the [the Panarellas] informed their real estate agent that they would not be completing the agreed upon repairs, and the [the Davises] were forced to purchase the property "as is" or forego the entire transaction.
29. [The Davises] elected to proceed with the purchase and the parties closed on the sale of Lot 15 on Monday, August 21, 2017, at which time the [the Panarellas] paid the cost to pump the septic system, Mr. Galligan paid to shock the well, and [the Davises] were left with the radon mitigation cost.
30. After closing on Lot 15, [the Davises] paid $857 for additional plumbing work related to the well, $1100 for a radon mitigation system, and $75 to spray for carpenter bees for a total of $2032.
31. [The Davises] proceeded to move into the residence on Lot 15, made payments on Lot 14, and erected a shed on Lot 14 along the property line.
32. [The Davises] made ten (10) monthly payments of $200 through July 2018 for the vacant Lot 14, having missed the June payment.
33. [The Davises] also paid the 2018 property tax bill for Lot 14 at the request of the [the Panarellas].
34. On or about August 2, 2018, [the Davises] began leaving phone call messages and sending texts to [the Panarellas] requesting a six (6) month extension to close on Lot 14, and offering to double the monthly payment to $400 until closing.
35. [The Davises] paid $400 to [the Panarellas] on August 16, 2018, and left another message with [the Panarellas] repeating the request for an extension. At the time, they did not realize that one prior $200 payment had been missed, but this payment brought them current on the monthly payments under the installment agreement.
36. [The Panarellas] accepted all of the payments made by the [the Davises] totaling $2,400, together with the initial deposit of $500, for a total of $2,900, without declaring [the Davises] in default.
37. [The Panarellas] did not respond to the [the Davises'] requests to extend the closing date for Lot 14, and when the [the Davises] failed to close on or before August 21, 2018, as required in the installment agreement, [the Panarellas] notified [the Davises] they were in default and the agreement was terminated.
38. In [the Panarellas'] notification of default and termination, they indicated the property would be placed back on the market and that if [the Davises] still wanted to purchase Lot 14, the purchase price would now be $45,000. In a later phone call with [the Davises], the [the Panarellas] explained the increase in purchase price was due to the likely cost the [the Davises] would incur to remove the encroachments on Lot 14 if they did not purchase said lot.
39. Shortly thereafter, [the Panarellas] advised [the Davises] they would be erecting a fence along the property line of Lot 14 and Lot 15, and then did so about 20 days later. The fence effectively "fenced in" the [the Davises'] shed onto Lot 14. Although [the Davises] were able to remove contents of the shed before the fence was installed, they were unable to move the shed and a ramp to access the shed prior to the fence being installed.
40. On or about August 30, 2018, following a phone call with [the Panarellas], Mr. Galligan learned for the first time that a portion of the driveway, landscaping, retaining wall, and mailbox
encroached onto Lot 14 from Lot 15. Mr. Galligan immediately advised his broker and [the Davises'] real estate agent.
41. Due to this new information, the [the Davises] engaged Frank Smith, Jr. to survey the lot line along Lots 14 and 15.
42. The survey revealed property boundary encroachments onto Lot 14 of the paved driveway, several paver areas, a ramp [the Davises] constructed to their shed on Lot 14, a small retaining wall, additional landscaping and the mailbox.
43. [The Davises] spent $972 erecting the ramp to their shed that the survey reveals is over the boundary line.
44. The driveway, pavers, retaining wall, landscaping and mailbox were all installed by or at the direction of the [the Panarellas].
45. [The Panarellas] obtained a cost estimate from Sugar Hollow to remove the areas of encroachment in the amount of $18,500.
46. [The Davises] were in the process of obtaining a permit to move the shed when [the Panarellas] erected the fence with no trespassing signs.
47. [The Davises] have had no access to their shed for nearly two (2) years and have been unable to move it due to the erection of the fence and no trespassing signs.
48. [The Panarellas] have demanded that [the Davises] remove the mailbox that [the Panarellas] had installed over the lot line onto Lot 14.
49. [The Panarellas] installed or directed installation of the driveway and other encroachments onto Lot 14 themselves, while owning both Lots 14 and 15. This was done at the time of or after building the house on Lot 15, which was completed in 2002.
50. [The Davises] have incurred attorney's fees in this matter of $12,153 up to time of trial.Trial Ct. Mem. and Order, 8/27/21, at 1-9 (some formatting altered).
At the conclusion of trial, the trial court concluded and awarded damages as follows:
1. The claim for Quiet Title/Adverse Possession is DENIED.
2. The claim under the Real Estate Sellers Disclosure Law (RESDL) is GRANTED and [the Davises] are awarded $2,900 in payments made for Lot 14, $972 for the ramp constructed to the shed and $18,500 as the cost to remove and repair the encroaching areas, all incurred as a result of the reliance on the Sellers' Disclosure Statement.
3. The claim for fraud is GRANTED. [The Davises] are awarded the same damages as set forth under the claim for violation of the RESDL, without needing to be assessed separately at this time since they were already awarded in paragraph 2 herein.
4. The claim for Nuisance is DENIED.
5. The claim for Trespass is DENIED.
6. The claim for Replevin is GRANTED. Plaintiffs shall have ninety (90) days from the date this matter is deemed final to enter [the Panarellas'] Lot 14 and retrieve their shed and ramp in the easiest manner available. [The Panarellas] shall cooperate in that regard.
7. The claim for Specific Performance is DENIED.
8. The claims for breach of contract are DENIED.
9. The claim for punitive damages is DENIED.
10. The claim for attorney's fees is GRANTED. [The Davises are] awarded $12,434.69 in attorney's fees.
The total amount of monetary damages awarded to [the Davises] and against [the Panarellas] is $34,806.69.Id. at 26-27.
On September 1, 2021, the parties submitted a joint motion asking for an extension of time in which to file post-trial motions. The trial court granted the motion and directed that post-trial motions shall be filed on or before September 14, 2021. Order, 9/1/21.
The Panarellas filed their post-trial motion on September 7, 2021, and the Davises filed their post-trial motions on September 14, 2021. The trial court denied both parties' post-trial motions and judgment was entered on October 8, 2021. The Panarellas filed their appeal on October 13, 2021, and the Davises cross-appealed on October 25, 2021. The Davises, Panarellas, and the trial court complied with Pa.R.A.P. 1925.
Although the Davises correctly appeal from the October 8, 2021 judgment, the record reflects that the Panarellas purport to appeal from the September 15, 2021 order denying post-trial motions. A trial court's decision in a non-jury trial does not become final for purposes of appeal until properly reduced to and entered as a formal judgment under Pa.R.Civ.P. 227.4. See Morgan v. Millstone Resources Ltd., 267 A.3d 1235, 1243 (Pa. Super. 2021); see also Mackall v. Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002) (explaining that an appeal does not properly lie from an order denying a post-trial motion, but rather from the judgment entered following disposition of post-trial motions). We have corrected the caption accordingly.
The Panarellas' Appeal
On appeal, the Panarellas present the following issues:
1. Whether the trial court erred when it found in favor of [the Davises] where there was no legally competent evidence which met the standard required to prove damages under the Real Estate Seller Disclosure Act[.]
2. Whether the trial court erred in speculating on the award of attorney fees.
3. Whether the trial court erred in awarding a return of down payment monies when the buyer defaults because they could not come up with the balloon payment.
4. Whether the trial court erred in finding that there was fraud, when the testimony clearly showed it was negligence, and not intentional.
The Panarellas' First Step Brief at 4 (formatting altered).
Our standard of review is as follows:
Upon appeal of a non-jury trial verdict, we consider the evidence in a light most favorable to the verdict winner and will reverse the trial court only if its findings of fact lack the support of competent evidence or its findings are premised on an error of law.
When this Court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. The court's findings are especially binding on appeal, where they are based upon the credibility of the witnesses, unless it appears that the court abused its discretion or that the court's findings lack evidentiary support or that the court capriciously disbelieved the evidence.
It is inappropriate for an appellate court to make factual determinations in the face of conflicting evidence.Phelps v. Caperoon, 190 A.3d 1230, 1243 (Pa. Super. 2018) (citation omitted and formatting altered).
At the outset, we note that although the Panarellas purport to raise four issues in their statement of questions presented, their brief contains only one lengthy argument section in violation of Pa.R.A.P. 2119(a) (stating "[t]he 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 . . . the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent."). Additionally, the Panarellas' brief consists of unsupported assertions of error and undeveloped claims combined into a single argument. See the Panarellas' First Step Brief at 8-15. Upon review, we conclude that this conglomeration of arguments and undeveloped allegations of error result in waiver. See Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006) (providing that arguments that fail to adhere to the Pennsylvania Rules of Appellate Procedure and arguments that are not developed are waived); see also Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018) (noting that it is not the duty of the reviewing court to develop an argument for an appellant or scour the record to find evidence to support an argument). In any event, were we to reach the Panarellas' issues, we would affirm on the basis of the trial court's opinion. See Trial Ct. Mem. and Order, 8/27/21, at 1-27.
The Davises' Cross-Appeal.
In their cross-appeal at 2266 EDA 2021, the Davises raise the following issues:
1. Did the trial court commit reversible error when it declined to award treble and/or punitive damages?
2. Did the trial court commit reversible error when it denied [the Davises'] count for nuisance?
3. Did the trial court commit reversible error when it denied [the Davises'] count for trespass?
4. Did the trial court commit reversible error when it denied [the Davises'] count for specific performance?
5. Did the trial court commit reversible error when it denied [the Davises'] count for breach of contract?
6. Did the trial court commit reversible error when it denied [the Davises'] count for quiet title/adverse possession?
The Davises' Second Step Brief at 1-2 (formatting altered).
Upon review, however, we conclude that the argument portion of the Davises' brief suffers from deficiencies similar to those found in the Panarellas' brief. Although the Davises identify issues and present multiple statements of the law, they fail to develop any legal argument or provide relevant support for their conclusory statements. See the Davises' Second Step Brief at 23-35. Rather, the Davises' arguments are undeveloped, and as such, we conclude that they have waived their issues on appeal. See Lackner, 892 A.2d at 29; see also Milby, 189 A.3d at 1079. In any event, were we to reach the merits of the Davises' claims of error, we would affirm on the basis of the trial court's opinion. See Trial Ct. Mem. and Order, 8/27/21, at 1-27.
Conclusion
After review, and for the reasons set forth above, we conclude that neither the Panarellas nor the Davises are entitled to appellate relief. Accordingly, we affirm the judgment following the trial court's opinion and order of August 27, 2021, which included its non-jury trial judgment determination in this matter.
Judgment affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.