Francis , J. v. LCP North Third, LLC ( 2023 )

J-A21009-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES M. FRANCIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LCP NORTH THIRD, LLC :
:
Appellant : No. 665 EDA 2022
Appeal from the Order Entered January 31, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 180702329
JAMES M. FRANCIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LCP NORTH THIRD, LLC :
:
Appellant : No. 666 EDA 2022
Appeal from the Judgment Entered January 31, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 180702329
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2023
LCP North Third, LLC (LCP) appeals from the judgment,1 entered in the
Court of Common Pleas of Philadelphia County, following a non-jury trial. On
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1 LCP filed notices of appeal from both the January 31, 2022 order granting
attorneys’ fees to Francis (665 EDA 2022) and the judgment entered on
February 1, 2022 (666 EDA 2022). Where judgment is entered in the
underlying litigation before the trial court rules on a motion for counsel fees,
(Footnote Continued Next Page)
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appeal, LCP challenges the trial court’s denial of its post-trial motion for
judgment notwithstanding the verdict (JNOV) and a new trial, and the award
of attorneys’ fees to Appellee James M. Francis. After review, we affirm.
The gravamen of this complaint involves the Second Omnibus
Amendment2 of a Settlement Agreement (Second Amendment) between LCP
and Francis. LCP, managed by Alan Leavitt, is a corporation that administers
partnerships and purchases loans. Pursuant to the Second Amendment, LCP
extended an option to Francis for the purchase of property located at 115-17
North Third Street, Philadelphia, Pennsylvania 19106 (Property). The issue
on appeal involves whether LCP stalled in completing construction at the
Property with the intention of defeating Francis’ ability to exercise his purchase
option? For context, Francis, through an entity titled One North Third (ONT),3
purchased the Property in 2004. N.T. Trial, 9/20/21, at 32. Following ONT’s
default on two construction loans, LCP purchased loan documents related to
the Property and the Property was listed for judicial sale. Id. at 38, 43-45;
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the order on counsel fees is appealable when entered without the need for
entry of judgment on it. See Carmen Enterprises, Inc. v. Murpenter, LLC,
185 A.3d 380, 389 (Pa. Super. 2018), citing Miller Elec. Co. v. DeWeese,
918 A.2d 114, 114 (Pa. 2007). Here, however, the court ruled on Francis’
attorneys’ fee request prior to the entry of judgment. The attorneys’ fee
award was therefore included in the judgment and, as such, the appeal at
docket number 665 EDA 2022 is duplicative and is hereby quashed.
2 A First Amendment had previously been executed involving construction
funds, but it is not germane to this case.
3 At all relevant times, Francis was the owner and manager of ONT.
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id., 9/21/21, at 78. Thereafter, Francis, on behalf of ONT, and LCP entered
into a Settlement Agreement,4 pursuant to which Francis would complete work
at the Property, Francis would make monthly rent payments to LCP, Francis
had an option to purchase the Property which could be executed any time
after Property was transferred to another party at sheriff’s sale5 and prior to
February 17, 2019, and LCP would purchase the Property at sheriff’s sale—
which it later did.6 Id., 9/20/21, at 47; id., 9/22/21, at 153.
The following two events prompted discussions regarding an
amendment to the Settlement Agreement. First, on April 21, 2017, the
Department of License and Inspection (L&I) of the City of Philadelphia issued
a stop-work order on the Property because, inter alia, the sprinkler and fire
suppression systems were not certified. Id., 9/20/21, at 54.7 Francis testified
that following a dispute between him and Benjamin Magness, the plumber and
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4 Exhibit P-2 (Settlement Agreement).
5Francis, through ONT, owned the Property when the Settlement Agreement
was executed.
6 Exhibit D-6 (Deed to Property); see also N.T. Trial, 9/21/21, at 144.
7 The stop-work order also cited the need to obtain a permit for installation of
heating and air-conditioning systems. Additionally, the building permit was
revoked because it was either issued in error or a condition of the permit had
been violated. Further, the plumbing permit was revoked because it was
issued on the basis of false statements or misrepresentations of fact. The
zoning and/or use registration permit was also revoked because it was issued
in error. Finally, an inspection at the Property showed that the certified plans
did not comply with the Philadelphia Building Construction and Occupancy
Code. See Exhibit P-8 (Notice of Violations from City of Philadelphia).
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sprinkler system contractor, Magness refused to return to the project to certify
his work. Id. at 51, 91. Second, Francis had defaulted on monthly rent
payments to LCP. On November 30, 2017, LCP notified Francis that he owed
$20,500.00 in rent to LCP and, thus, was in default under the Settlement
Agreement. Id., 9/22/21, at 155; see Exhibit D-30 (e-mail notification of
default to Francis).
Following these events, LCP and Francis discussed an amendment to the
Settlement Agreement, pursuant to which LCP would manage construction at
the Property. Francis testified that “[LCP] said that [its] people knew []
Magness” and “since [LCP’s] people are familiar with [] Magness, [LCP and I]
came to an arrangement that [LCP] would finish the project[.]” Id. at 85.
Francis and LCP also discussed the need for LCP to obtain a certificate of
occupancy (CO). N.T. Trial, 9/20/21, at 97. Francis testified that LCP “balked”
at the need to obtain a CO and Francis conceded that he was prepared to
purchase the Property when it was “substantially complete.” Id.
The parties executed the Second Amendment on February 14, 2018.
Exhibit P-46. Pursuant to the Second Amendment, LCP would complete
construction of the Property, Francis would provide LCP with contact
information for the contractors and consultants working on the Property,8 and
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8 Francis testified that he provided LCP with all information requested on
February 2, 2017, but that LCP did not use these contractors. N.T. Trial,
9/21/21, at 162; id. 9/23/21, at 45 (Leavitt testifying “[Francis] gave us a list
of contractors he had dealt with, but [due to] the conditions in the building,
the work was C minus at best.”).
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Francis had either 90 days from the date LCP received the CO for the Property,
or, until June 30, 2018, whichever occurred first, to either exercise or assign
his option. Id., 9/20/21, 132; see also Exhibit P-3 (Second Amendment).
Leavitt testified that LCP did not bind itself to substantially complete the
property. N.T. Trial, 9/23/21, at 35 (Leavitt testifying, “We said we would
diligently work, but we knew there was a stop[-]work order there. We knew
the first order of business was getting it removed.”); id. at 34 (Leavitt
testifying, “We expected that we would be able to get the project back on
track, at least get the sprinkler [] guys, fire suppression guys back in based
on our relationship.”); id. at 34-35 (Leavitt testifying, “[Y]ou can’t say you’ll
get a CO unless you know what was in the walls. We were not there. We
made it very clear we weren’t going to commit to it.”).
Leavitt also testified regarding construction at the Property. The
property needed a new roof, which could not be completed until there were
appropriate weather conditions. Id. at 44-45; id., 9/21/21, at 173 (Leavitt
testifying, “We had a foot of water in the building leaking from the roof and
the building department would only let one contractor in at a time, so it had
to be the roofer first.”). Leavitt also testified, “The only work we did was work
that was permitted by the building department, L&I [], and it was almost all
related to the sprinkler.” Id. at 156.
On June 29, 2018, Francis exercised his option and scheduled closing
for July 26, 2018. Id., 9/22/21, at 171. LCP sent Francis an updated option
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price calculation,9 which indicated that as of July 10, 2018, the total amount
of money Leavitt spent on construction, including pending liabilities, was
$86,520.0010 Id., 9/20/21, at 185-86. On July 20, 2018, Francis received a
City of Philadelphia certification showing that the stop-work violations had not
been removed. Id. at 182; see Exhibit P-66. LCP attended the scheduled
closing and Francis did not. N.T. Trial, 9/23/21, at 54.
In July 2018, Francis sued LCP for breach of contract. On September
20, 2021, the case proceeded to a non-jury trial before the Honorable Leon
Tucker. The trial court found that LCP breached its duty of good faith and fair
dealing and awarded Francis $966,126.00 in damages. By separate order,
the trial court awarded Francis $229,482.56 in attorneys’ fees and costs.
LCP’s post-trial requests for JNOV and a new trial were denied. This timely
appeal followed. Both the trial court and LCP have complied with Pa.R.A.P.
1925. LCP raises the following issues for review:
1. Whether the trial court erred in failing to grant LCP’s request
for JNOV where Francis failed to prove: (i) an express or
implied contractual duty that required LCP to complete
construction within a certain timeframe; (ii) that LCP breached
any contractual duty in the face of undisputed evidence
establishing that delays were caused by a “stop[-] work” order
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9Pursuant to the Second Amendment, the purchase price of the option was
$4,311,835.00 plus construction expenses. Id., 10/20/21, at 133.
10 The updated option price indicated that $23,810.00 was paid to “Roofer”
and $150.00 was paid for “Use Registration Change” to L&I. The remaining
$62,560.00 was for pending liabilities to be paid within 30 days and included
“HVAC – Roof (Completed),” “Sprinkler & Unit Plumbing,” “Sprinkler –
Electrician,” and “Fire Alarm.” See Exhibit P-64 and P-65.
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and/or weather and not by LCP’s conduct; (iii) that Francis, as
[the] purported non-breaching party, fulfilled his obligations
under the contract by establishing that he was ready, willing[,]
and able to “close” on the Property; and (iv) damages, in light
of the undisputed valuation evidence and evidence regarding
the staggering substantial construction costs that remained.
2. Whether the trial court erred in awarding attorneys’ fees where
[Francis] failed to prove all elements of his breach of contract
claim, and thus, cannot properly be considered a “prevailing
party” under the [parties] agreement?
3. Whether [Francis] erred in entering judgment in the amount of
the verdict and attorneys’ fee award after the attorneys’ fee
award had been separately entered by a different [o]rder and
judgment on the award should not have been entered twice on
the same award?
Appellant’s Brief, at 18.
LCP first alleges that Francis failed to prove breach of contract and, thus,
LCP is entitled to JNOV, or in the alternative, a new trial. When reviewing a
motion for JNOV the evidence must be viewed in the light most favorable to
the verdict winner, who must be given the benefit of every reasonable
inference of fact. Fanning v. Davne, 795 A.2d 388, 392 (Pa. Super. 2002)
(quotation omitted). Any conflict in the evidence must be resolved in the
verdict winner’s favor. Id. JVOV may be entered: (1) where the moving
party is entitled to judgment as a matter of law, or (2) where the evidence
was such that no two reasonable minds could disagree that the outcome
should have been in favor of the moving party. Id. at 393.
On appeal of a trial court's denial of a motion for JNOV, our Court will
reverse the trial court only upon a finding of an abuse of discretion or error of
law that controlled the outcome of the case. Eichman v. McKeon, 824 A.2d
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305, 311 (Pa. Super. 2003) (citation omitted). Additionally, where credibility
and the weight to be accorded the evidence are at issue, the court will not
substitute its judgment for that of the fact-finder. Id. at 311-12 (citation
omitted).
The standard of review of a trial court’s grant or denial of a motion for
a new trial, is, generally, whether the trial court clearly and palpably abused
its discretion or committed an error of law which controlled the outcome of
the case. Stevenson v. General Motors Corp., 521 A.2d 413, 422 (Pa.
1987). To reverse the trial court, this Court must consider all the evidence in
the light most favorable to the non-moving party and conclude that the verdict
would be different if another trial were granted. Robertson v. Atlantic
Richfield Petroleum Products Co., 537 A.2d 814 (Pa. Super. 1987).
LCP first argues that Francis did not prove breach of contract. “To
successfully maintain a cause of action for breach of contract the plaintiff must
establish: (1) the existence of a contract, including its essential terms, (2) a
breach of a duty imposed by the contract, and (3) resultant damages.” Hart
v. Arnold, 884 A.2d 316, 332 (Pa. Super. 2005).
Additionally, Pennsylvania courts impose a requirement of good faith in
performance under a contract, termed the “doctrine of necessary implication.”
Somers v. Somers, 613 A.2d 1211, 1214 (Pa. Super. 1992).
In the absence of an express provision, the law will imply an
agreement by the parties to a contract to do and perform those
things that according to reason and justice they should do in order
to carry out the purpose for which the contract was made and to
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refrain from doing anything that would destroy or injure the other
party’s right to receive the fruits of the contract.
D.B. Van Campen Corp. V. Building and Constr. Trades Council, 195
A.2d 134, 136-37 (Pa. Super. 1963). “The duty of ‘good faith’ has been
defined as ‘honesty in fact in the conduct or transaction concerned.’” Somers,
supra at 1213. (Pa. Super. 1992).
The obligation to act in good faith in the performance of
contractual duties varies somewhat with the context, and a
complete catalogue of types of bad faith is impossible, but it is
possible to recognize certain strains of bad faith which include:
evasion of the spirit of the bargain, lack of diligence and slacking
off, willful rendering of imperfect performance, abuse of power to
specify terms, and interference with or failure to cooperate in the
other party’s performance.
Id. (citations omitted).
LCP’s first two sub-claims allege that there was no duty to complete
construction at the property and, thus, LCP did not breach any duty.
Specifically, LCP contends that the contract language in Section 6 of the
Second Amendment, wherein Francis and LCP acknowledge that LCP “desires
to complete the construction of the Property as promptly as possible,” is
merely precatory. Thus, LCP claims that this language does not create any
duty on LCP to advance construction by a certain date, to obtain a CO, to
spend a certain amount of money on construction, or to grant Francis’ option
extension requests. Appellant’s Brief, at 25-29. Further, LCP alleges that any
delays were caused by the stop-work order, rather than LCP’s conduct. These
claims are unavailing.
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Although we agree with LCP that it was not expressly required to
complete the individual prior-mentioned tasks, the record confirms the trial
court’s holding that LCP’s actual behavior demonstrated it had no intention to
complete construction of the Property as promptly as possible despite the
mandate to do so in Section 6, and, thus, LCP breached its duty of good faith.
Trial Court Opinion, 12/3/21, at 4-5.
While Francis conceded he “was prepared to take the building when it
was substantially complete [],” N.T. Trial, 9/20/21, at 97, this does not obviate
LCP’s obligation to move forward with construction in good faith. The parties
disagreed regarding LCP’s need to obtain a CO prior to Francis’ execution of
his option. However, Francis testified that the exclusion of the CO requirement
was because the parties could not control when L&I would perform
inspections. See N.T. Trial, 9/20/21, at 97 (Francis testifying “I wanted them
to have a certificate of occupancy. [LCP] balked at that, and one of the
reasons was the amount of time it might take the City to [perform] their
inspection.”). Additionally, LCP advised Francis in an e-mail, dated January
24, 2018, see Exhibit P-29, that LCP was going to “work diligently to obtain a
[CO]” and that Francis would have enough time to obtain financing. See also
N.T. Trial, 9/20/21, at 98 (Francis testifying e-mail reinforced “[LCP] was
going to get everything done.”).
Moreover, although LCP was not required to spend a specific amount of
money on construction, from the date the Second Amendment was executed,
February 14, 2018, until July 10, 2018, LCP spent only $86,520.00 on
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construction, including pending liabilities. N.T. Trial, 9/21/21, at 202. A
comparison of the May 16, 2018 and July 10, 2018 option price breakdown11
illustrates that during that two-month period LCP only moved forward with
construction on the roof and fire alarm. Additionally, fire alarm work did not
begin until June 8, 2018. Id., 9/23/21, at 92. Moreover, a property
certification from L&I, dated July 20, 2018, shows that none of the stop-work
violations had been removed. Id. at 182 (Francis testifying “[the July 20,
2018 City certification] had every violation that existed based on the stop[-
]work order.”); Exhibit D-21 (Initial Notice of Violation and Order); Exhibit P-
66 (July 20, 2018 License and Inspections Certification Statement).
The record demonstrates that delays were not only caused by the stop-
work order. LCP failed to schedule weekly phone calls with Thomas Donatucci
from Knickerbocker Properties12 until two months after the Second
Amendment was executed, see N.T. Trial, 9/21/21, at 175, even though
Leavitt and Donatucci had scheduled weekly phone calls regarding other
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11See Exhibit P-65 (as of July 10, 2018 total option price $4,398,355.34);
Exhibit P-55 (as of May 16, 2018 total option price $4,376,165.00).
12 Knickerbocker Properties was the general contractor at the Property.
Thomas Donatucci works at Knickerbocker Properties, along with his brother,
Robert Donatucci. Together they have a 4% interest in the Property but do
not have any voting power or decision-making authority. N.T. Trial, 9/23/21,
at 38-39.
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properties on which they were working.13 Further, testimony regarding the
fire alarm system indicates that LCP was sent the sprinkler and fire
suppression system proposal twice before it was approved, delaying the start
of work on the system until June 8, 2018. Id., 9/23/21, at 92. The proposal
was originally sent to LCP on March 7, 2018. Id., 9/21/21, at 170; see also
Exhibit P-86.
While Leavitt testified that LCP would have made a profit only if Francis
exercised his purchase option, LCP’s conduct prevented Francis from
exercising his purchase option. Id., 9/21/21, at 191 (Leavitt testifying, “I told
[Francis] three times the only way I could have broken even on the job was if
[Francis] exercised his option.”). For example, LCP filed use permit changes
in order to “maximize value” of the Property even though it knew L&I approval
of the changes would take time and that Francis had a limited window to
exercise his option.14 Id., 9/21/21, at 177.
Further, LCP failed to grant Francis’ two requests for extensions of the
option execution date. Id., 9/20/21, at 175-76; id., 9/21/21, at 179; see
Exhibit P-57 (Francis requesting extension of the option contract because LCP
“deliberately let the job languish to forestall [Temporary COs] being issued in
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13 Knickerbocker Properties and Leavitt are working together on other
projects, such as 248 Market St., Philadelphia, PA 19106, and have weekly
calls scheduled. N.T. Trial, 9/21/21, at 174; id., 9/23/21, at 38.
14 On April 24, 2018, Leavitt filed a use permit to change zoning of the Property
from 12 units to 15 units. After the changes were approved, Knickerbocker
Properties emailed LCP, “I think you made some money today.” N.T. Trial,
9/23/21, 183 (emphasis added); see Exhibit P-118.
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a timely manner”). Additionally, in an e-mail denying Francis’ request for an
extension, LCP stated:
LCP may pursue or not pursue the remaining construction work at
the [P]roperty as it sees fit in its sole discretion.
***
[W]hether or not the construction work at the [P]roperty is
completed, and when, if ever, it is completed, is irrelevant to
[Francis’] right to exercise his option under the [Second
Amendment.]
Exhibit P-145. Indeed, the record supports the trial court’s determination that
LCP’s actual behavior confirmed that LCP had no intent of moving work
forward at the Property to enable Francis to exercise his purchase option.
In light of the foregoing, the record confirms the trial court’s
determination that LCP breached its duty of good faith under the Second
Amendment.
LCP’s third sub-claim alleges that Francis breached his duties under the
contract. Specifically, LCP claims Francis was not ready, willing and able to
close on the Property because Francis did not receive funding commitments
in excess of the base price amount and Francis failed to attend the set closing
date. Appellant’s Brief, at 39. This claim is belied by the record.
The trial court determined: “[Francis] was unable to secure financing of
the Property in the then[-]current condition or, alternatively, was not able to
assign the option in accordance with the option agreement. [] Furthermore,
[LCP] refused to give [Francis] relevant documents to confirm the status of
the [Property].” Trial Court Opinion, supra at 8.
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Indeed, Francis had been negotiating with Marcus and Millichap (M&M)
regarding its purchase of the option. M&M’s proposed sale price or trade price,
for the Property was between $4,950,000.00 and $5,350,000.00; this
information was sent to LCP on April 30, 2018. N.T. Trial, 9/21/21, at 182-
84; Exhibit P-50. Leavitt acknowledged that M&M is “one of the largest real
estate brokers in the country” and that Francis “was not messing around.”
Id., 9/21/21, at 184. However, M&M and Francis did not move forward
because construction at the Property was not substantially complete, and
Francis was unable to provide M&M building progress information because LCP
did not provide this requested information to Francis. Id., 9/20/21, 167
(Francis testifying, “It’s just customary, if I speak to lenders, I need to give
them information[.] I need to see it also, and [LCP] refused to give that to
me.”); Exhibit P-53 (Francis’ request for documents from LCP). Due to LCP’s
conduct, Francis was unable to secure financing.
In light of the foregoing, the trial court’s determination that Francis’
inability to secure financing was due to LCP’s lack of good faith compliance
with the Second Amendment is supported by the record.
LCP’s fourth sub-claim alleges that Francis failed to prove damages.
Specifically, LCP argues William Connor, Francis’ damages expert, failed to
consider the valuation evidence and substantial remaining construction costs
on the Property. Appellant Brief, at 42. LCP is entitled to no relief.
The trial court adopted the expert damages proffered by Reaves Lukens,
Francis’ expert. The trial court reasoned that Luken’s property appraisal
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method was consistent with the appropriate term net rentable area,15 and was
consistent with M&M’s valuation, which was performed pre-litigation. Trial
Court Opinion, supra at 10. Additionally, the trial court found LCP’s expert’s
valuation analysis flawed due to his use of the lowest comparable properties
sold in the 19106 ZIP code. Lukens determined that the Property was valued
at $5,600,000.00. N.T. Trial, 9/22/21, at 116.
The trial court also adopted the analysis of William Connor, Francis’
expert, who determined that the remaining construction costs would be
$322,039.00. Id. Connor considered the cost to complete each individual
unit, the one office unit, and various building systems, including the HVAC and
fire alarm systems. N.T. Trial, 9/22/21, at 19, 27. Connor also considered
the cost to complete roofing work, the storefront, and intercom system. Id.
at 27-28.
Francis is entitled to the profits he would have received if the Second
Amendment was not breached. See Oelschlegel v. Mut. Real Estate Inv.
Trust, 633 A.2d 181, 184 (Pa. Super. 1993) (“The central principal of the law
regarding contractual damages is that the non-breaching party should be
placed in the position he or she would have been in absent the breach.”). The
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15 The useable square footage of a space is the total area unique to a tenant,
whereas the net rentable square footage includes the portion of the building’s
common spaces also available a tenant. The building’s gross square footage
is the total square footage of a building. See
https://aquilacommercial.com/learning-center/rentable-vs-usable-square-
footage-whats-difference/ (last accessed on 12/22/22). The rentable area is
the amount of space you can collect rent on or sell. Id.- 15 -
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appraised value of the property, as per Lukens, was $5,600,000.00 as of June
30, 2018. Id., 9/22/21, at 166. Pursuant to the Second Amendment, the
total option price ($4,633,874.00) was the base option price ($4,311,835.00)
plus construction expenses ($322,039.00). Id., 10/20/21, at 133; id.,9/22/21, at 31. Damages are calculated by subtracting the total option price
($4,633,874.00) from the appraised value of the Property ($5,600,000.00),
and, thus, the trial court did not abuse its discretion in ordering $966,126.00
in damages. Trial Court Opinion, supra at 11; Findings [and Order],
12/3/2021.
Viewing all evidence, in the light most favorable to Francis, LCP is not
entitled to a JNOV or a new trial because the trial court did not abuse its
discretion.
In its second issue, LCP claims that Francis is not entitled to attorneys’
fees because there was no breach of contract and no breach of an implied
duty imposed by the contract. Appellant’s Brief, at 44. This argument is
meritless. Francis is the prevailing party, and the parties included a fee-
shifting agreement in Section 17 of the Settlement Agreement,16 to which they
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16 The Second Amendment states:
17. Attorney’s Fees in the Event of Breach of this Agreement. If
an action, suit or legal proceeding is brought by any Party to
enforce of redress a breach of this Agreement, in addition to all
other relief awarded by a court of competent jurisdiction, the
substantially prevailing Party shall be entitled to an award of
(Footnote Continued Next Page)
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also stipulated in court. See N.T. Trial, 9/20/21, at 26. Mullen v. Kutz, 985
A.2d 769, 776-77 (Pa. Super. 2009) (parties may contract to provide for
breaching party to pay prevailing party’s attorneys’ fees arising from actions
contractual damages). See also Bert Co v. Turk, 257 A.3d 93, 117 (Pa.
Super. 2021) (fee-shifting agreements include attorneys’ fees arising from
actions for contractual damages).
In its third issue, LCP argues that under Samuel-Bassett v. Kia
Motors America, Inc., 34 A.3d 1 (Pa. 2011), the attorneys’ fees award is
considered ancillary and, thus, should not have been included in the judgment
that was entered after post-trial motions were decided. This argument is
meritless. In Kia Motors America, our Supreme Court determined that the
trial court retained jurisdiction to order attorneys’ fees reasoning that “a
petition for attorneys’ fees is an ancillary matter, which the trial court retains
authority to decide after an entry of judgment on the verdict.” Id. at 48. Kia
Motors America focuses on the trial court’s jurisdiction to order attorneys’
fees following the entry of judgment once an appeal is filed, id., but does not
stand for the proposition that attorneys’ fees cannot be reduced to judgment.
Finally, LCP claims that the Prothonotary exceeded the authority
permitted under the Pennsylvania Rules of Civil Procedure where it entered a
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reasonable counsel fees and costs incurred in connection with
such matter.
Section 17 of Second Amendment (entered as Exhibit P-46 at trial).
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judgment in excess of the verdict, and, thus, the judgment should be stricken
as void ab inito. LCP is entitled to no relief.
In H&H Mfg. Co. v. Tomei, No. 1982 EDA 2020 (Pa. Super. filed
November 21, 2021) (non-precedential decision) (Table),17 this Court
determined that there was no authority for the Prothonotary to enter an award
of attorney’s fees when the attorney’s fees award was not awarded by the
court, rather it was based on an affidavit of counsel. Id. at 18. Here, the
court entered an order on December 3, 2021, awarding $966,126.00 in
damages and finding that Francis was entitled to seek attorney’s fees and
costs as the prevailing party pursuant to the agreement in the Second
Amendment. Findings, 12/3/2021. On January 28, 2022, unlike in H&H Mfg.
Co, the court entered an order granting Francis $229,482.56 in attorney’s
fees. See Trial Court Order, 1/28/22. Subsequently on February 1, 2022,
Francis filed a praecipe to enter judgment which included the award of
attorneys’ fees previously determined by the court. Thus, the Prothonotary
did not exceed its authority.
Order and judgment affirmed.
____________________________________________
17 Pursuant to Pa.R.A.P. 126, unpublished non-precedential memorandum
decisions of the Superior Court filed after May 1, 2019 may be cited for their
persuasive value.
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J-A21009-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2023
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