Opinion
J-A21029-13 No. 3208 EDA 2012
12-04-2013
GUMBO BROTHERS, LLC v. QUEEN'S WALK, L.P., MONTROSE INVESTMENTS, LLC, RICHARD KOWIT, MICHAEL GARNICK AND MICHAEL McCANN v. MICHAEL COLAIZZO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order of October 10, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 060601645
BEFORE: SHOGAN, J., WECHT, J., and COLVILLE, J. MEMORANDUM BY WECHT, J.:
Retired Senior Judge assigned to the Superior Court.
Michael Colaizzo ("Appellant") appeals from the October 10, 2012 order entered by the Court of Common Pleas of Philadelphia County. That order granted a motion for summary judgment filed by Richard Kowit and Michael Garnick (collectively, "Appellees") and, consequently, entered judgment for Appellees. We conclude that Appellant has waived his claims for failure timely to comply with Pa.R.A.P. 1925(b). Therefore, we affirm.
The factual and procedural history of this case is lengthy and convoluted. The case concerns a disputed sale of real estate (hereinafter, "the Property") owned by Appellant. Ultimately, this dispute resulted in the filing of two lawsuits. Appellees filed the first lawsuit against Appellant in October 2005. This appeal concerns a second lawsuit, which Gumbo Brothers, LLC, as the putative purchaser of the Property, filed against Appellees in June 2006. Appellees joined Appellant as an additional defendant. We discuss both lawsuits below.
In September 2003, Appellant entered into an oral agreement to allow Appellees to construct townhouses on the Property (hereinafter, "Townhouse Agreement"). The parties executed an agreement of sale in November 2003, in which Appellant agreed to convey the Property to Appellees' limited partnership, Queen's Walk, LP ("Queen's Walk"), for the purpose of constructing townhouses. Appellant and Appellees took steps towards completing the townhouse project between December 2003 and March 2005. In April 2005, Appellees began attempting to sell the Property in its entirety due to concerns about profitability. On October 7, 2005, Garnick signed an agreement of sale for the sale of the entire Property to Gumbo Brothers. Appellant refused to convey the Property to Queen's Walk due to Appellees' abandonment of the townhouse project. On June 15, 2006, Gumbo Brothers brought this action against Queen's Walk, Appellees, and other defendants not connected with the controversy sub judice for breach of contract under the agreement of sale (hereinafter, "Queen's Walk Case"). The defendants in the Queen's Walk Lawsuit (hereinafter, "Queen's Walk Defendants") joined Appellant as an additional defendant to the Queen's Walk Case. Appellant asserted various counterclaims against the Queen's Walk Defendants, including an allegation that Appellees owed Appellant attorney's fees pursuant to the terms of the agreement of sale. On April 10, 2008, the trial court sustained the preliminary objections to Appellant's counterclaims filed by the Queen's Walk Defendants and dismissed Appellant's counterclaims. On May 1, 2008, the trial court denied Appellant's motion for reconsideration.
While the Queen's Walk Case was proceeding, Appellant and Appellees also were engaged in the first lawsuit mentioned above. Specifically, Appellees filed separate claims against Appellant seeking specific performance under their original sale agreement and alleging that Appellant had breached the terms of the contract and breached his fiduciary duties to Queen's Walk ("Townhouse Case"). See Findings of Fact and Conclusions of Law, 10/22/2008, at 6. On October 22, 2008, the trial court in the Townhouse Case found that Appellees and Queen's Walk both had breached the Townhouse Agreement and were not entitled to specific performance. Id. at 6-8. The trial court in the Townhouse Case also found that Appellant was not in breach of his legal duties. Id. at 7-8, 10. However, the trial court declined to award any damages to Appellant in the Townhouse Case, including attorney's fees. Id. at 7-11. Ultimately, the trial court in the Townhouse Case concluded that "neither party is the prevailing party." Order, 10/22/2008, at 1.
Following the conclusion of the Townhouse Case, Appellant filed a motion for summary judgment in the Queen's Walk Case. Before the court had ruled upon Appellant's motion for summary judgment, Gumbo Brothers and the Queen's Walk Defendants agreed to settle the case. Following the settlement, Appellant requested that the trial court rule upon that part of his motion for summary judgment that pertained to attorney's fees. On January 27, 2009, the trial court denied Appellant's motion for attorney's fees in the Queen's Walk Case on the basis of the ruling in the Townhouse Case. See Order, 1/27/2009, at 1. Appellant appealed. In a memorandum dated August 18, 2010, this Court reversed the trial court's orders granting the Queen's Walk Defendants' preliminary objections and reversed the order denying Appellant's motion for reconsideration. Gumbo v. Queen's Walk, 11 A.3d 1030 (Pa. Super. 2010) (table). On remand, the trial court permitted the Queen's Walk Defendants to file a motion for summary judgment on or about August 1, 2012. Appellant filed a response on September 18, 2012. On October 10, 2012, the trial court granted Appellees' motion for summary judgment. This timely appeal followed.
On January 4, 2013, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. Appellant filed his statement on February 22, 2013. The trial court issued its Rule 1925(a) opinion on February 25, 2013. In its Rule 1925(a) opinion, the trial court asserted that Appellant waived his claims for failure timely to comply with its January 4 order. "Before we reach the merits of Appellant's claims, we must decide whether they are preserved for our review under Pa.R.A.P. 1925(b)." Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa. Super. 2011).
This Court has held that "[w]henever a trial court orders an appellant to file a concise statement of matters complained of on appeal pursuant to Rule 1925(b), the appellant must comply in a timely manner." Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super. 2007) (emphasis in original) (citing Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)). In Castillo, our Supreme Court concluded that an untimely filing of a concise statement resulted in waiver of all issues on appeal and mandates dismissal of the appeal.Feingold, 15 A.3d at 940 (emphasis in original, internal citations modified). Applying this precedent to the instant circumstances, we conclude that Appellant has waived his claims for failing timely to file his Rule 1925(b) statement.
Instantly, the trial court's January 4, 2013 order properly directed Appellant to file "a concise Statement of [Errors] Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)." See Order, 1/4/2013, at 1. The trial court provided Appellant with "twenty-one (21) days from the date of entry of this Order" to file the Rule 1925(b) statement, and the order clearly stated that "[a]ny issue not properly included in such Statement timely filed and served shall be deemed waived." Appellant did not file his Rule 1925(b) statement until forty-nine days after the trial court entered its order. Therefore, Appellant's Rule 1925(b) statement was submitted twenty-eight days late. Appellant's filing patently was untimely. See Feingold, 15 A.3d at 941 (finding waiver where appellant's Rule 1925(b) statement was filed three days late); Commonwealth v. Smith, 854 A.2d 597, 600 (Pa. Super. 2004) (finding waiver where appellant's Rule 1925(b) statement was filed fourteen days late).
Consequently, Appellant has waived his claims. Accordingly, we do not address those claims on the merits.
Order affirmed. Judgment Entered. _______________
Joseph D. Seletyn, Esq.
Prothonotary