Thierry, C. v. Yamulla, A. ( 2022 )

J-A24031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINE M. THIERRY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANN YAMULLA : No. 523 EDA 2021
Appeal from the Order Entered February 23, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. 2018-07329
CHRISTINE M. THIERRY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANN YAMULLA :
:
Appellant : No. 628 EDA 2021
Appeal from the Order Entered February 5, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. 2018-07329
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 14, 2022
Christine M. Thierry (Thierry) appeals from the final order in the Court
of Common Pleas of Bucks County in this partition action involving the real
property located at 3879 Charter Club Drive, Doylestown, Pennsylvania
(Charter Club Property) owned by herself and Ann Yamulla (Yamulla) as joint
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* Retired Senior Judge assigned to the Superior Court.
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tenants with right of survivorship. Thierry argues that she was entitled to 50
percent of the Charter Club Property’s net value instead of the 50 percent of
its increase in value that she was awarded. Yamulla has cross-appealed,
arguing that Thierry was not entitled to any money because the Charter Club
Property was a conditional gift, and she was entitled to its return on condition
broken. We affirm.
We take the following factual background and procedural history from
the trial court’s May 5, 2021 opinion, the parties’ September 14, 2020
stipulations/findings of fact (Stipulations/FOF), the Master’s Report and
Recommendation (Master’s Report) and our independent review of the
certified record.
I.
A.
The parties met on July 6, 2015, at a social event and began dating
shortly thereafter. (See N.T. Master’s Hearing, 10/06/20, at 13; N.T. Master’s
Hearing, 10/14/20, at 172). At the time, Yamulla was married to her now ex-
husband. (Stipulations/FOF, at Paragraph 5). Thierry had two children that
would be the heirs to her estate and Yamulla had four children who would
inherit her estate. (See Master’s Report, at 1); (Stipulations/FOF, at
Paragraphs 2, 3).
Thierry and Yamulla maintained the intense on-again, off-again
relationship from 2015-2018. (See N.T. Master’s Hearing, 10/14/20, at 175);
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(Master’s Report and Recommendation, 2/05/21 (Master’s Report), at 3);
(Stipulations/FOF, at Paragraph 31).1 They discussed their relationship, which
included cohabitation, sexual activity, sexually explicit texting and explicit
photographs. (See Stipulations/FOF, at Paragraphs 7-8). The parties
exchanged thousands of text messages over the length of their relationship.
(See Stipulations/FOF, at Paragraph 8).
Thierry and Yamulla purchased real property at 4768 Essex Drive,
Plumsteadville, Pennsylvania (Essex Drive Property) on June 30, 2016, as joint
tenants with right of survivorship. (See N.T. Master’s Hearing, 10/14/20, at
180-81); (Master’s Report, at 5); (Stipulations/FOF, at Paragraph 13). Prior
to October 4, 2017, the parties resided at the Essex Drive Property off and on,
sometimes doing so together. (See Master’s Report, at 6; Stipulations/FOF,
at Paragraph 14). The parties both contributed to the acquisition and costs to
maintain the Essex Drive Property. (See Master’s Report, at 6). Thierry and
Yamulla shared equally in the proceeds when the Essex Drive Property was
liquidated. (See id.).
In December 2016, Thierry proposed marriage to Yamulla with an
engagement ring and posted their engagement on Facebook. Yamulla was
still married to her now ex-husband. (See Stipulations/FOF, at Paragraphs 9-
12).
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1 The Master’s Report is unpaginated. All page numbers have been provided.
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B.
On September 7, 2017, Yamulla purchased the Charter Club Property
that is the subject of this litigation. (See Master’s Report, at 4). She paid the
$596,984.97 total acquisition cost in cash and titled the property in her own
name. (See Stipulations/FOF, at Paragraphs 17-19). Necessarily, there are
no claims of mortgage, liens or encumbrances that affect the Charter Club
Property. (See Master’s Report, at 4). Thierry did not contribute any funds
to purchase and/or maintain the Charter Club Property. (See
Stipulations/FOF, at Paragraphs 22-25).
On October 4, 2017, Yamulla hired an attorney to execute a deed
transferring title to the Charter Club Property to Thierry and Yamulla as joint
tenants with right of survivorship. The parties disputed the purpose of the
gift, with Yamulla testifying it was on condition of marriage or continued
relationship, and Thierry maintaining that there was no condition and that
Yamulla did so to demonstrate her commitment to the relationship after
cheating again. (See N.T. Master’s Hearing, 10/06/20, at 21-22, 29-31);
(N.T. Master’s Hearing, 10/14/20, at 204-10); (Master’s Report, at 4);
(Stipulations/FOF, at Paragraph 21). Yamulla paid all costs associated with
the Charter Club Property’s title transfer, including recording fees and the
$5,003.12 transfer tax. (See Stipulations/FOF, at Paragraph 20); (N.T.
Master’s Hearing, 10/06/20, at 57). Thierry did not contribute anything
toward (1) the purchase of the Charter Club Property; (2) the costs of
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acquisition of the Charter Club Property; (3) the payment of any costs
associated with the Charter Club Property; or (4) the maintenance and upkeep
of the Charter Club Property. (See Master’s Report, at 5; Stipulations/FOF,
at Paragraphs 22-25). Yamulla has made other expenditures on the Charter
Club Property. (See Master’s Report, at 5).
Thierry moved possessions into the Charter Club Property, but due to
the tumultuous nature of the parties’ relationship, she has never resided
there. (See N.T. Master’s Hearing, 10/06/20, at 59); (Master’s Report, at 5).
Yamulla did not allow Thierry, who had to break a window to get in, free access
to the Charter Club Property, changing the locks and codes several times.
(See N.T. Master’s Hearing, 10/06/20, at 159-60); (Master’s Report, at 5);
(Stipulations/FOF, at Paragraph 30). There is no mention of Yamulla giving
Thierry a key to the Charter Club Property in the record.
Yamulla has been licensed to practice law for approximately 25 years,
with experience and training in both real estate and contract law. (See
Stipulations/FOF, at Paragraphs 32-33). She specifically requested that the
deed to the Charter Club Property be titled as joint tenants with right to
survivorship and did not request any conditions for title transfer be specified
in the deed. (See id. at Paragraphs 34-35). The deed is the only document
that identifies the parties’ legal interests in the Charter Club Property. (See
Master’s Report, at 4, Stipulations, at Paragraph 36).
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C.
In approximately November 2018, the parties separated for the last
time and Thierry filed a complaint in equity seeking partition of the Charter
Club Property on December 12, 2018. In her February 12, 2019 answer and
new matter, Yamulla averred that the transfer of title was made as a qualified
or conditional gift.
On April 18, 2019, pursuant to Pennsylvania Rule of Civil Procedure
1557,2 the trial court issued a stipulated order (Stipulated Order) that directed
that the Charter Club Property be partitioned. It also found that (1) Thierry
and Yamulla possessed a 100 percent interest in the Charter Club Property as
joint tenants with right of survivorship; (2) the Charter Club Property was
incapable of division without prejudice; (3) the Charter Club Property was
incapable of proportionate division; and (4) the parties stipulated to the
appointment of a Master. (See Stipulated Order).
On May 22, 2019, Daniel M. Kean, Esq. was appointed as the Master in
this matter. He held an initial pre-trial conference with the parties’ counsel
on June 4, 2019, during which counsel agreed that the parties would complete
discovery and the Master could obtain an appraisal of the Charter Club
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2Rule 1557 states, in pertinent part, that, “if the court determines that there
shall be partition because of a default or admission … the court shall enter an
order directing partition which shall set forth the names of all the co-tenants
and the nature and extent of their interests in the property.” Pa.R.C.P. 1557.
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Property. The Charter Club Property was appraised by agreement of the
parties at $600,000.00, an increase of $20,000.000. (See Master’s Report,
at 5 n.3). On September 14, 2020, counsel for the parties submitted the
Stipulations/FOF and Evidentiary Stipulations to the Master.
The Master’s Hearing was held on October 6 and 14, 2020. On February
5, 2021, the Master issued his Report3 in which he found, in pertinent part,
that: (1) The Charter Club Property is not capable of proportionate division
pursuant to Rule 1561; (2) Yamulla was not entitled to recovery for acquisition
costs; (3) Due to insufficient credible evidence, Yamulla’s claim that the title
transfer of the Charter Club Property was a conditional gift fails; (4) Yamulla
is not entitled to an award for expenditures made on the Charter Club Property
because they did not enhance its value and were not necessary to preserve
and protect its integrity; (5) A partition action is an action in equity; (6) Equity
dictates that title to the Charter Club Property be awarded to Yamulla; (7)
Equity dictates that Thierry is entitled to an equitable 50 percent share in the
increase in value of the Charter Club Property of $10,000.00; and (8) In light
of the equitable awards made, Yamulla shall pay costs of the partition
proceedings.
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3 The Stipulated Order, Stipulations/FOF and Stipulated Evidence were
attached to the Report as Exhibits A, B and C, respectively.
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Both Thierry and Yamulla filed exceptions to the Master’s Report. On
February 23, 2021, the court issued its final order and decree (Final Order)
approving the Master’s Report and Recommendation.4 The Final Order and
Decree: (1) conveyed the Property to Yamulla by the recording of a deed; (2)
directed the parties to cooperate to ensure said deed was properly recorded;
(3) ordered Yamulla to pay Thierry $10,000.00 at the time of the recording of
said deed; and (4) instructed Yamulla to pay all costs incurred by the Master.
Thierry and Yamulla both timely appealed.5 They and the court have
complied with Rule 1925. See Pa.R.A.P. 1925.
II.
Thierry argues that the trial court erred in using equitable principles to
override her legal right to 50 percent of the Charter Club Property’s net value
as a joint tenant with right of survivorship6 pursuant to the terms of the deed.
(See Thierry’s Brief, at 6). Her argument is simple; she maintains that
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4 It did not rule on the exceptions.
5 “In an appeal from a trial court sitting in equity, the standard of review is
rigorous. A chancellor’s findings of fact will not be disturbed absent an abuse
of discretion, a capricious disbelief of the evidence, or a lack of evidentiary
support on the record for the findings.” Lilly v. Markvan, 763 A.2d 370, 372
(Pa. 2000) (citation omitted). “A chancellor's conclusions of law are subject
to stricter scrutiny. Unless the rules of law relied on are palpably wrong or
clearly inapplicable, however, a grant of injunctive relief will not be reversed
on appeal.” Id. (citation omitted).
6 The parties also stipulated that they were joint tenants with the right of
survivorship.
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because she and Yamulla held title to the Charter Club Property as joint
tenants with right of survivorship, she was entitled to a 50 percent interest in
the Charter Club Property at the time of partition even though she contributed
nothing towards its purchase, making it an error to apply equitable principles
to award a 50 percent of the increase in value of the Charter Club Property
and not 50 percent of the value of the property.
A.
Contrary to Thierry’s argument, equitable principles do apply in a
partition action to determine the relevant interest the parties have in the
proceeds from the property.
In Kapcsos v. Benshoff, 194 A.3d 139 (Pa. Super. 2018), we observed
that “Pennsylvania Rules of Civil Procedure 1551[–]1574 split a partition
action into two, distinct, chronological parts. Rules 1551[–]1557 govern Part
1, and Rules 1558[–]1574 govern Part 2. Each part, by rule, must produce
its own, distinct, appealable order.” Id. at 142. In the first part, the court
enters an order pursuant to Rule 1557 that “directs partition of the parties’
legal interests into severalty.” See id. at 142; see also Pa.R.C.P. 1557.
“[T]he entry and recording of [the Rule 1557] order directing partition
… terminate[s] a joint tenancy.” Kapcsos, supra at 142 (emphasis
added).
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“Following that, Part 2 is purely an equitable proceeding where the
trial judge or master balances the equities to decide what form the partitioning
will take.” Id. at 142-43 (emphasis added); see also Pa.R.C.P. 1570.
A Rule 1570 order may (1) divide the partitioned property among
the parties, (2) force one or more of the parties to sell their
interest in the land to one or more of the parties, or (3) sell the
land to the general public and distribute the proceeds among the
parties.
Kapcsos, supra at 142.
If the court gives the property to one party, it then orders that party to
pay any other party her respective share. See id. at 143 (“In this scenario,
one party gets an order of conveyance granting undivided title to the whole
property (which is recorded), and the other party receives a cash buy-out,
known as “owelty.”) (citation omitted); see also Pa.R.C.P. 1562. The court
calculates owelty based on the equities of what each person invested in the
subject real property. “It takes those investments and then divides them by
each parties’ fractional interest in the property, as determined in Part 1.”
Kapcsos, supra at 143 (citation omitted).
B.
In this case, it is undisputed that the trial court entered the Stipulated
Order pursuant to Rule 1557 directing that the Charter Club Property be
partitioned. It also found that (1) Thierry and Yamulla possessed a 100
percent interest in the Charter Club Property as joint tenants with right of
survivorship; (2) the Charter Club Property was incapable of division without
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prejudice; (3) the Charter Club Property was incapable of proportionate
division; and (4) the parties stipulated to the appointment of a Master. (See
Stipulated Order). See id. at 142.
Based on the law of this Commonwealth, the Rule 1557 order terminated
the joint tenancy so that the parties could then proceed to part two of the
proceeding, which was purely equitable and in which the Master “balances the
equities to decide what form the partitioning will take” and calculates owelty
based on the equities of what each person invested in the subject real
property. Kapcsos, supra at 142-43; Pa.R.C.P. 1570.
As the trial court noted
Thierry contributed next to nothing towards the Property, nor
could she freely access the Property. Conversely, Ms. Yamulla, in
addition to having bought the Property, was the only one who
actually put any money towards it, from paying title transfer tax
to the homeowners insurance. Furthermore, Ms. Thierry failed to
present any evidence stating that she was entitled to more than
50% of the increase in value of property.
(Trial Ct. Op., at 11) (record citations omitted).
Accordingly, the trial court did not abuse its discretion when it adopted
the Master’s Report and Proposed Order that relied on equitable considerations
to not give each party 50 percent of the proceeds of the property.7 See Lilly,
supra at 372.
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7Neither are we legally persuaded by Thierry’s reliance on Masgai v. Masgai,
333 A.2d 861 (Pa. 1975), in support of her position that “title held by parties
as joint tenants with right of survivorship must be divided equally among
(Footnote Continued Next Page)
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III.
A.
In her appeal, Yamulla contends that the trial court erred in finding that
the transfer of the Charter Club Property was not a conditional gift, “which
would mandate consolidation of title in [her] without owelty” to Thierry.
(Yamulla’s Brief, at 4); (see id. at 2-3). She argues that “[t]he transfer of
title was made in furtherance of a relation, the gift was substantial and
therefore can be assumed to be conditional, the condition, even if inferred,
was the continuation of the relation, and it is Thierry who broke off the
relationship.” (Id. at 47). In effect, this is a challenge to the court’s order
directing Yamulla to pay Thierry $10,000.00 for the 50 percent increase in
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them” in a partition action. (Thierry’s Brief, at 8). In fact, Masgai did not
announce this. Masgai involved a “suit in equity brought … to obtain a
partition” of a property purportedly held by parties who were not legally
married as tenants by the entireties and the Court’s consideration of whether
the trial court properly found that appellee had created a trust when he
conveyed the property to himself and appellant and, therefore, she lacked
standing to seek partition. See Masgai, supra at 862-64. After recognizing
that unmarried individuals could not hold a property as tenants by the
entireties, the court concluded that appellee had not established that a trust
had been created, and instead found that appellee had made a gift to
appellant. It declined to consider exactly what type of title she enjoyed,
however, because she, “[as] a joint owner, had standing to maintain an action
for partition.” Id. at 863. Thierry takes Masgai’s language, “equity should
not act to convert an absolute ownership into an estate of lesser quantity,”
out of context. (Thierry’s Brief, at 8). The full sentence is “unless the evidence
of the existence of an oral trust is of the highest probative value, equity should
not act to convert an absolute ownership into an estate of lesser quantity.”
Masgai, supra at 865. Masgai is distinguishable from the circumstances in
this case and Thierry’s reliance on it is not legally persuasive.
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value of the property that occurred while the property was held by them as
joint tenants.
We have long held that a written agreement transferring property “is
prima facie evidence of ownership, [and] parol evidence of intention may be
permitted not to alter or vary the terms of the agreement, but to show that
the gift was a conditional gift.” Stanger v. Epler, 115 A.2d 197, 198 (Pa.
1955) (citations omitted; emphasis omitted).
The presumption is that the writing constituted an absolute gift.
Proof of an engagement, and that the gift was conditioned upon
marriage, must be established by evidence clear, precise and
indubitable. Such burden cannot be met solely by inference.
We have repeatedly said and we reiterate that we intend to uphold
the integrity of written instruments.
Id. at 199-200 (citation and quotation marks omitted); see also Restatement
of Restitution, § 58 (1937).8
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8 Pursuant to Section 58 of the Restatement of Law-Restitution:
A person who has conferred a benefit upon another, manifesting
that he does not expect compensation therefor, is not entitled to
restitution merely because his expectation that an existing
relation will continue or that a future relation will come into
existence is not realized, unless the conferring of the benefit is
conditioned thereon.
Comment:
a. The rule stated in this Section is applicable to … a man or
woman who makes gifts to a person with whom promises to marry
have been exchanged, even though subsequently there is a
wrongful termination of the relation by the donee. If, however,
(Footnote Continued Next Page)
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the relation has been fraudulently entered into by the donee for
the purpose of receiving gifts and subsequently terminating the
relation, or if the relation is simulated, or if there is other
fraudulent conduct because of which the gifts are made, then
restitution is granted. Likewise the gift may be conditional as
stated in Comments b and c.
b. Conditional gifts. The gift may be conditional upon the
continuance or creation of a relation, and if conditional the donor
is entitled to its return if the relation terminates or is not entered
into. The condition may be stated in specific words or it may be
inferred from the circumstances. Likewise, as in the case of
engagement and wedding gifts, justice may require the creation
of a condition although the donor had no such condition in mind.
c. Wedding and engagement gifts. Gifts made in the hope that a
marriage or contract of marriage will result are not recoverable,
in the absence of fraud. Gifts made in anticipation of marriage
are not ordinarily expressed to be conditional and, although there
is an engagement to marry, if the marriage fails to occur without
the fault of the donee, normally the gift cannot be recovered. If,
however, the donee obtained the gift fraudulently or if the gift was
made for a purpose which could be achieved only by the marriage,
a donor who is not himself at fault is entitled to restitution if the
marriage does not take place, even if the gift was of money. If
there is an engagement to marry and the donee, having received
the gift without fraud, later wrongfully breaks the promise of
marriage, the donor is entitled to restitution if the gift is an
engagement ring, a family heirloom or other similar thing
intimately connected with the marriage, but not if the gift is one
of money intended to be used by the donee before the marriage.
Reporter’s Notes
Comment c:
* * *
It is suggested that gifts of considerable size may be assumed to
be conditional, that other gifts not involving peculiar features,
such as heirlooms, and not for the primary purpose of being used
(Footnote Continued Next Page)
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In this case, the trial court explains:
Here, most of the evidence presented about the parties’
relationship was based on the parties’ perceptions of the title
transfer and their intentions toward each other. (See generally
Master’s Report Exhibit C, Master’s Hearing Exhibits). Because
these are credibility determinations, and because the Master was
able to observe the parties, this court gave significant
consideration to the Master’s Report, which concluded that not
enough credible information existed to find that the title transfer
constituted a conditional gift. (See id. at 5; Stipulations/FOF, at
Paragraphs 29-35). Furthermore, it is unclear as to: (1) whether
a condition existed for the titled transfer; (2) whether the [Charter
Club] Property was conditioned on marriage; or (3) whether the
[Charter Club] Property was conditioned on refraining from
“cheating” on [] Thierry.[a] (See N.T. Master’s Hearing, 10/06/20,
at 36-37, 70, 73, 119); (N.T. Master’s Hearing, 10/14/20, at 269-
70). Finally, the Deed itself did not contain any conditions, nor
did [] Yamulla, a trained attorney with twenty-five years of
experience, mention the existence of a condition to the lawyer
who transferred the [Charter Club] Property title. (See N.T.
Master’s Hearing, 10/14/20, at 204-06, 267-68);
(Stipulations/FOF, at Paragraphs 32-36). As such, this court
agreed with the Master’s conclusions that there was insufficient
credible evidence of a conditional gift).
a The record reflects that both women had very different
understandings as to what “cheating” consisted of: Ms.
Thierry understood “cheating” to be Ms. Yamulla sleeping
in the same house as Mr. Yamulla, and Ms. Yamulla
understood “cheating” as being romantically involved with
anyone other than Ms. Thierry. (See N.T. Master’s
Hearing, at 10/14/20, at 189-91; 230-33).
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after marriage by the parties, should be regarded as absolute and
should be incapable of recovery.
Restatement of Restitution § 58.
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(Trial Ct. Op., at 13) (record citation formatting and edits provided;
unnecessary capitalization omitted).
In this case, it is undisputed that the transfer of title was written by
legal counsel hired by Yamulla, an attorney herself and present at the time of
drafting, and that it did not contain any language that made the gift
conditional. This is prima facie evidence that the title transfer was an absolute
gift. See Stanger, supra at 199. Thierry and Yamulla offered conflicting
testimony about the reason Yamulla transferred the Charter Club Property
from herself alone to herself and Thierry as joint tenants with right of
survivorship. Yamulla testified that she transferred the title on the condition
that she and Thierry would get married or at least be in a relationship for the
rest of their lives. (See N.T. Master’s Hearing, 10/14/20, at 204-10). Thierry
testified that the parties were estranged at the time of the transfer and that
Yamulla had cheated again so Yamulla transferred the title to convince Thierry
of her commitment. (See N.T. Master’s Hearing, 10/06/20, at 21-22, 29-31).
When asked if Yamulla told her that changing the Charter Club Property’s title
“was contingent on getting married,” Thierry responded, “Absolutely not. …
There was no condition.” (Id. at 31).
Based on the foregoing, we discern no abuse of discretion by the Master
and subsequent reliance on his Report by the trial court. In resolving the
conflicting testimony, the Master was able to observe the demeanor of the
parties and weigh the evidence. We decline Yamulla’s invitation to re-weigh
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it. The record supports the finding that the evidence was insufficient to prove
a conditional gift where the writing’s language was absolute and the evidence
that the gift was conditional was not “clear, precise and indubitable.”
Stengler, supra at 200; see also Lilly, supra at 372. Hence, we conclude
Yamulla’s first claim does not merit relief.9
Moreover, we are not persuaded by Yamulla’s reliance on Nicholson v.
Johnston, 855 A.2d 97 (Pa. Super. 2004), and McGoldrick v. Murphy, 228
A.3d 272 (Pa. Super. 2020), in support of her position. The facts of those
cases are distinguishable. Both cases involved the undisputed underlying
facts that the couples lived together for approximately six years when they
got engaged and decided to buy a marital home. In each case, one partner
paid for the down payment on the home in furtherance of the transaction by
agreement of the parties. After the other parties terminated the engagement,
the properties were partitioned and the trial court found that the down
payment monies were conditional gifts, which this Court affirmed, finding no
abuse of discretion in the trial court’s decision. See McGoldrick, supra at
279; Nicholson, supra at 102.
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9We also note that the fact that Thierry terminated the relationship is not
material to our review because there is no evidence that she fraudulently
entered the relationship for the purpose of obtaining the gift. See
Restatement of Restitution § 58.
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In this case, the parties had a tumultuous approximate two-year
relationship at the time of the transfer of title. The parties disagreed about
the state of their relationship and the purpose of Yamulla’s gift. Therefore,
unlike in Nicholson and McGoldrick, the Master was tasked with weighing
this conflicting testimony and found there was insufficient evidence of a
conditional gift, and we must determine if the denial of a finding of a
conditional gift was an abuse of discretion and if this case is factually and
procedurally distinguishable.
Furthermore, we are not persuaded by Yamulla’s reliance on the
Reporter’s Note to the Restatement to suggest that she was entitled to a
presumption that because the transfer involved a gift of considerable size, it
was conditional. The language of the Note is suggestive, not required. See
Restatement-Restitution § 58, Reporter’s Note (“It is suggested that gifts of
considerable size may be assumed to be conditional[.]”). This argument is
not persuasive.10
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10 Nor are we persuaded by Yamulla’s argument that because Thierry testified
to the destruction and loss of certain text messages and photographs, she is
entitled to an inference that they would have evidenced an ongoing
relationship, and that, because the Master failed to address the inference in
his Report, this case must be remanded. (See Yamulla’s Brief, at 48-49). She
provides no law or pertinent discussion thereof in support of her claim that
the Master was required to specifically include such inference in his Report
and no evidence that he failed to consider it, particularly where Yamulla notes
that he was aware of her entitlement to it. (See id. at 49 n.49); see Pa.R.A.P.
1924(a), (b); In re Estate of Schumacher, 133 A.3d 45, 51 (Pa. Super.
2016) (“This Court has repeatedly held that failure to develop an argument
(Footnote Continued Next Page)
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B.
If it is not a conditional gift, Yamulla contends that it was error for the
trial court not to award costs that she incurred against Thierry for acquisition,
transfer, repair, maintenance, preservation and upkeep of the Charter Club
Property.
Regarding acquisition costs, it is well-established that, “when title to real
property is established as joint tenants with right of survivorship, neither party
may receive reimbursement for acquisition costs in a subsequent action for
partition.” DeLoatch v. Murphy, 535 A.2d 146, 150-51 (Pa. Super. 1987).
Because it undisputed that Yamulla and Thierry had legal title to the Charter
Club Property as joint tenants with the right of survivorship, Yamulla is not
entitled to any acquisitions costs.
As to Yamulla’s claim that she is entitled to a credit for expenses she
incurred on the Charter Club Property, we observe that other than bald
assertions that the evidence supported such recovery as a matter of equity,
her brief contains no citation and discussion to support this claim. Neither
does the argument section include any references to the record of where she
____________________________________________
with citation to, and analysis of, relevant authority waives that issue on
review.”) (citation omitted). Therefore, this argument is waived. Moreover,
there is no allegation that should we remand for the Master to expressly
include such language, that it will affect the outcome of the proceeding in any
way. We do not find her argument in this regard persuasive.
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presented the evidence to support such costs. (See 49-51); see Pa.R.A.P.
2119(a)-(c); Schumacher, supra at 51. Therefore, it is waived.
Moreover, she would not be entitled to relief.
As a general rule, where a cotenant places improvements on the
common property, equity will take this fact into consideration on
partition and will in some way compensate him for such
improvements, provided they are made in good faith and are of a
necessary and substantial nature, materially enhancing the value
of the common property.
Bednar v. Bednar, 688 A.2d 1200, 1205 (Pa. Super. 1997), appeal denied,
698 A.2d 63 (Pa. 1997) (citations omitted).
As the trial court observed:
In this case, Ms. Yamulla failed to present sufficient and
again, credible, evidence that the expenditures she made on the
Property were necessary to preserve and protect the integrity of
the Property. First, most of Ms. Yamulla’s evidence of repairs were
scanned checks with a one or two-word description of what the
check was for (i.e. “repairs” or “deadbolts”). (See Master’s Report
Exhibit D-22-25). Nothing more substantiating was introduced
into the record.[b] Furthermore, Ms. Thierry consistently claimed
that Ms. Yamulla’s expenditures were overly expensive and
unnecessary,[c] going so far as to say that Ms. Yamulla referred to
these modifications as “decorating.” (N.T. Master’s Hearing,
10/06/20, at 39-40, 52-54). Again, in light of the insufficiency of
credible evidence, this court agreed with the Master’s conclusions
that Ms. Yamulla was not entitled to any credits.
[b]Various invoices were introduced which demonstrated
that Ms. Yamulla had undertaken various projects of
interior design, but nothing was introduced to demonstrate
that such projects were necessary.
Ms. Thierry and Ms. Yamulla are both in agreement that
[c]
the [Charter Club] Property was in good shape when Ms.
Yamulla purchased it. (See N.T. Master’s Hearing,
10/06/20, at 52-54, 179).
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(Trial Ct. Op., at 14) (unnecessary capitalization omitted; record citation
formatting provided; some record citations omitted).
Our independent review of the record confirms the trial court’s
characterization that the evidence did not establish that the improvements
were a “necessary and substantial nature, materially enhancing the value of
the [Charter Club Property].” Bednar, supra at 1205. This claim lacks merit.
For all the foregoing reasons, we affirm the order of the trial court. See
Lilly, supra at 372.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2022
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