Opinion
No. J-A06003-14 No. 1619 EDA 2013
03-18-2014
RODNEY FOGEL AND SANDRA FOGEL, HUSBAND AND WIFE, Appellants v. DAVID WILLIAMSON AND KATHLEEN WILLIAMSON, HUSBAND AND WIFE, Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered August 13, 2013
In the Court of Common Pleas of Northampton County
Civil Division at No(s): C0048CV2004-4552
BEFORE: BENDER, P.J.E., PANELLA, J., and LAZARUS, J. MEMORANDUM BY BENDER, P.J.E.
Rodney Fogel and Sandra Fogel (Buyers) appeal from the judgment entered on August 13, 2013, in their favor in the amount of $10,886.66, in an action for intentional and negligent misrepresentation by David Williamson and Kathleen Williamson (Sellers) in their Seller's Disclosure Statement. Buyers assert that they are entitled to a directed verdict in the amount of $37,156.66. After review, we affirm.
Although Buyers filed this appeal on May 30, 2012, after their exceptions were ruled upon but prior to the entry of judgment, Buyers' appeal was perfected when the judgment was entered on August 13, 2013. See Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514-15 (Pa. Super. 1995) (stating that appellate courts may "regard as done that which ought to have been done"). See also Levitt v. Patrick, 976 A.2d 581, 584 n.2 (Pa. Super. 2009) (stating that appeal properly lies from the entry of judgment, not from order denying post-trial motion).
Sellers have not submitted a brief to this Court.
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Buyers purchased the residence located in Northampton County in June of 2003 from Sellers. On October 3, 2005, Buyers filed this action, alleging both intentional and negligent misrepresentation by Sellers regarding the condition of the roof, water damage to the basement and the existence of a sump pump. On November 14, 2008, default judgment was entered against Sellers for failing to respond to Buyers' complaint. Sellers petitioned to strike the default judgment, which was granted. The matter then went to arbitration, after which Buyers were awarded $15,672.30. Buyers appealed the arbitration decision and a non-jury trial was held on October 22, 2012. The court initially found Sellers liable to Buyers for negligent misrepresentation in the amount of $10,886.66. However, following the filing of Buyers' exceptions to the decree nisi, the court concluded that Sellers intentionally misrepresented the state of the roof and, thus, granted the first exception. See Trial Court Order, 4/30/13. Buyers' other exception concerned the amount of damages awarded. Buyers claimed that the amount of damages was in excess of $37,156.66. In its order, the court explained its reasons for denying Buyers' exception concerning the amount of damages, stating:
This Court properly found [Sellers] liable to [Buyers] for the following damages: 1) in the amount of $5,866.66, which represented the cost of the remediation for the water damage and water drainage damage to the foundation of the residence; 2) $1,040 for the damage and repair of the flooring in the basement; 3) [$]180.00 for the repair of the downstairs wall; and $350.00 for the installation of the sump pump in the already present sump pump pit. [Sellers] were also found liable for damages in the amount of $2,500.00 for the repairs that were made to the residence roof and also $950.00 for the cost to repair the garage roof in 2004. In total, this Court found [Sellers] liable to [Buyers] for $10,866.66.
Likewise[,] this Court properly did not find that [Buyers] were entitled to the costs to repair the roof of the residence in 2011, approximately eight years after the purchase of the residence. Therefore, this Court properly found that [Buyers] were entitled to $10,866.66 in damages and accordingly, [Buyers'] second [e]xception is DENIED.
Id.
On appeal, Buyers set forth the following issue for our review:
Are [Buyers] entitled to a directed verdict in the amount of $37,156.66 because they presented credible and uncontroverted evidence that this sum was the appropriate amount of damages?Buyers' brief at 5.
When deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the non-moving party and must accept as true all evidence which supports that party's contention and reject all adverse testimony. Cooke v. Travelers Ins. Co., 350 Pa. Super. 467, 504 A.2d 935 (1986). A directed verdict can only be granted where the facts are clear and there is no room for doubt. Id. On review, we can reverse only if an abuse of discretion or error of law which controlled the outcome of the case occurred. Bucchianeri v. Equitable Gas Co., 341 Pa. Super. 319, 491 A.2d 835 (1985).Boyce v. Smith-Edwards-Dunlap Co., 580 A.2d 1382, 1386 (Pa. Super. 1990). Moreover, "[i]t is the duty of the trial court to control the amount of the verdict; it is in possession of all the facts as well as the atmosphere of the case, which will enable it to do more evenhanded justice between the parties than can an appellate court. ... Hence, a reversal on grounds of inadequacy of the verdict is appropriate only where the injustice of the verdict [stands] forth like a beacon." Signora v. Liberty Travel, Inc., 886 A.2d 284, 287 (Pa. Super. 2005) (quoting Davis v. Mullen, 773 A.2d 764, 766 (2001) (quotations and citations omitted)).
Buyers recognize that the "finder of fact is 'free to believe or disbelieve opinion evidence presented by an expert witness[,]'" and that the "verdict must bear 'a reasonable resemblance to proven damages.'" Buyers' brief at 10 (quoting Kiser v. Schulte, 648 A.2d 1 (Pa. 1994)). Buyers also contend that "a verdict may be set aside if it is clear the verdict bears no reasonable relationship to the loss suffered by the plaintiff based on the uncontroverted evidence presented. Id. (citing Carroll v. Avallone, 939 A.2d 872 (Pa. 2007)).
To support Buyers' argument that they are entitled to an additional amount of damages for the work performed in 2011, they rely on the testimony of Leon DeLeon, who was the excavation contractor that they hired to rectify the water damages at the residence. Mr. DeLeon testified as an expert, discussing the reasons for the problems Buyers were having and the work he performed to fix those problems. He explained that he performed some work in 2004 for which he was paid $5,866.33, but additional work was needed and that apparently Buyers were financially unable to pay for at that time. Therefore, in 2011, when Buyers could afford the additional required work, Mr. DeLeon was again hired to complete the remediation, which cost the Buyers an additional $29,790.00. Mr. DeLeon also indicated that between 2004 and 2011 Buyers continued to have water problems that were related to the original problems that existed at the time of Buyers' purchase of the residence. On cross-examination, Mr. DeLeon was asked whether the work done in 2011 had been required in 2004. He responded that it was, and that he probably had recommended that that work be done back in 2004.
Buyers further note that Sellers presented no expert testimony to rebut the necessity or the cost of the work performed by Mr. DeLeon. Buyers assert that Sellers merely challenged the fact that a period of eight years had passed between the initial work done in 2004 and the completion of the work in 2011. Buyers also point out that the court as the finder of fact must have found Mr. DeLeon credible, thus, having support for its determination that Sellers had intentionally misrepresented the condition of the residence in their Disclosure Statement.
Simply stated, Buyers are attacking the court's credibility determinations. It is evident that the court believed Mr. DeLeon's testimony to a significant extent. However, the court was not compelled to believe all of his testimony, specifically, when he speculated about the reasons for the delay and when he discussed the relationship between the damages ameliorated in 2004 and those that were in existence in 2011. Based upon the evidence that the court apparently believed, we conclude that the court properly exercised its discretion when it denied Buyers' request for a directed verdict with regard to the amount of damages. Thus, we affirm the denial of Buyers' request for a directed verdict.
Judgment affirmed. Judgment Entered. ______________________
Joseph D. Seletyn, Esq.
Prothonotary