Waterbucket v. NHSCA ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WATERBUCKET MEDIA, LLC, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATIONAL HIGH SCHOOL COACHES
ASSOCIATION, INC., (NHSCA)
Appellant No. 1673 EDA 2014
Appeal from the Order entered April 30, 2014,
in the Court of Common Pleas of Northampton County,
Civil Division, at No(s): C48-CV2011-11686
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 09, 2015
National High School Coaches Association, Inc., (“Appellant”), appeals
from the trial court’s denial of Appellant’s post-trial motion seeking judgment
notwithstanding the verdict (“JNOV”), or alternatively, a new trial following
the entry of judgment in favor of Waterbucket Media, LLC, (“WBM”), and
against Appellant, following a jury trial verdict in favor of WBM. We affirm.
The trial court detailed the factual procedural history of this case as
follows:
[WBM] commenced the instant action by filing a Complaint
on December 7, 2011. In its Complaint, [WBM] asserted a
breach of contract claim against [Appellant] for the amount of
$180,768.13. On January 6, 2012, [Appellant] filed an Answer
with New Matter and Counterclaim. [Appellant’s] Counterclaim
purportedly contained a breach of contract claim against [WBM].
On January 19, 2012, [WBM] filed a Reply to [Appellant’s] New
Matter and an Answer to its Counterclaim.
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A jury trial was held from November 18, 2013, through
November 20, 2013. On November 20, 2013, upon oral motion
of [WBM], the Court entered a compulsory nonsuit with respect
to [Appellant’s] breach of contract Counterclaim. (N.T.,
11/20/2013, at 51:7-64:21.) Also, on November 20, 2013, the
jury entered a verdict in favor of [WBM] and against [Appellant]
and awarded [WBM] damages in the amount of $77,500.00. (Id.
at 197:6-18.)
On November 29, 2013, [Appellant] filed [a post-trial
motion]. In its Motion, [Appellant] alleges that (1) the Court
erred in entering the compulsory nonsuit on [Appellant’s]
Counterclaim; (2) the jury awarded damages to [WBM] based on
a misinterpretation of the parties contract; and (3) [WBM]
lacked standing to bring an action against [Appellant].
[Appellant’s] Motion requests that the Court order a new trial,
or, in the alternative, "rule that [WBM] ... is not entitled to
commissions for unpaid sponsorships or that [WBM] ... is not
entitled to post [] May 2011 payments at all." (Mot. at 5-6).
The evidence presented at trial established the following.
[WBM] was formed in January 2009 by James Jennings
(“Jennings"), who is the sole member of the limited liability
company. (N.T., 11/18/2013, at 608-16, 61:22-62:8.) [WBM]
is a sports marketing firm that provides public relations and
sponsorships to its clients. (Id. at 61:22-62:1.) [Appellant] is a
nonprofit association that, inter alia, runs national sporting
events for high school athletes and provides education to high
school sports coaches. (N.T., 11/19/2013, at 25:9-19.)
In 2009, [WBM] and [Appellant] entered into a one-year
agreement in which [Appellant] contracted with [WBM] to
provide public relations and to obtain sponsorships. (N.T.,
11/18/2013, at 66:10-67:3.) When that agreement expired,
[WBM] and [Appellant] entered into a new written agreement.
[WBM’s] Ex. 1.) The new agreement, which was drafted by
Robert Ferraro (“Ferraro"), [Appellant’s] executive director, and
commenced its effective term on June 1, 2010, was titled
"[Appellant/WBM] Media Working Agreement" ("Working
Agreement"). (N.T., 11/18/2013, at 67:14-68:14; [WBM’s] Ex.
1.) Ferraro signed the Working Agreement on behalf of
[Appellant]. (N.T., 11/18/202, at 68:5-11.) While the copy of
the Working Agreement introduced into evidence was unsigned
by Jennings, Jennings did sign the agreement on behalf of
[WBM]. (Id. at 69:2-21.)
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The Working Agreement was effective for two years.
([WBM’s] Ex. 1 at 1.) Pursuant to its terms, [Appellant] was
required to pay [WBM] a monthly fee of $2,500.00 for public
relations work. (Id. at 4.) Further, [Appellant] was required to
pay [WBM] twenty percent of the net value of cash sponsorships
and ten percent of the value or any "costs savings" obtained by
[WBM] for [Appellant]. (Id.) The pertinent language contained
in the Working Agreement is as follows:
2. Advertising, Promotions, and Sales Commissions.
[WBM] shall be entitled to a commission in the amount of
Twenty Percent (20%) of the net value of cash
sponsorships (monetary sponsorship) and/or revenues
accrued to [Appellant] regardless of timeframe from any
advertising, sponsorship, or signage revenue and/or media
deal for [Appellant.]
a. Net Revenue Defined. Net revenue will be defined
as "out of pocket" expenses to [Appellant] associated
with servicing the sponsorship relationship to be
taken away from the gross revenues associated with
the sponsorship. The remaining cash sponsorship
will be the "net revenue" that [WBM] will be
commissioned on. These costs will not include
'regular operating expenses' associated with putting
on an event or any happening.
…
3. Sponshorship that provides a “cost savings” to
[Appellant]. [WBM] shall be entitled to a commission
in the amount of Ten Percent (10%) of the value of any
cost savings to [Appellant]; unless otherwise agreed to
a different percentage by both parties. Items that have
existed as a budget “line item” for both [Appellant]
and/or pertaining to costs to conduct [Appellant’s]
events will fall under this commission/compensation
plan.
a. Commission payment due within 60 days of contract
execution.
Id. The Working Agreement contained a merger clause
stating that "This Agreement contains the entire
agreement of the Parties as to the subject matter hereof.
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This Agreement may be change[d] only in writing and duly
executed by each of the Parties.” (Id. at 2.)
At trial, [WBM] presented evidence that [Appellant] had
not paid all of the requisite commissions and public relations fees
due under the Working Agreement. (N.T., 11/18/2013, at
59:13-119:14.) In closing argument, [WBM’s] counsel
contended that [Appellant] owed $134,850.00 to [WBM]. (N.T.,
11/20/13, at 127:2-5.) As noted above, the jury found in favor
of [WBM] on its breach of contract claim and awarded damages
in the amount of $77,500.00.
Trial Court Opinion, 4/30/14, at 1-5 (footnote omitted). On April 30, 2014,
the trial court denied Appellant’s post-trial motions. Appellant filed a timely
notice of appeal. Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant poses the following queries for our review:
1. Whether the trial court incorrectly decided that the Working
Agreement was ambiguous as to when commission payments
were due, as both parties agree that payments were only due
from net revenue?
2. Whether [WBM] is a proper party, as it did not sign the
Working Agreement; received no consideration attending the
Working Agreement; and was in violation of every critical tenet
of law separating owners/managers of corporate structures from
the corporate entity itself?
3. Whether the agreement underlying [Appellant’s] counterclaim
was sufficiently definite, and subject to sufficient consideration
to form an actionable contract?
Appellant’s Brief at 2.
We recognize:
A JNOV can be entered upon two bases: (1) where the
movant is entitled to judgment as a matter of law; and/or, (2)
the evidence was such that no two reasonable minds could
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disagree that the verdict should have been rendered for the
movant. When reviewing a trial court’s denial of a motion for
JNOV we must consider all of the evidence admitted to decide if
there was sufficient competent evidence to sustain the verdict.
In so doing, we must also view this evidence in the light most
favorable to the verdict winner, giving the victorious party the
benefit of every reasonable inference arising from the evidence
and rejecting all unfavorable testimony and inference.
Concerning any questions of law, our scope of review is plenary.
Concerning questions of credibility and weight accorded the
evidence at trial, we will not substitute our judgment for that of
the finder of fact. If any basis exists upon which the jury could
have properly made its award, then we must affirm the trial
court’s denial of the motion for JNOV. A JNOV should be entered
only in a clear case.
Am. Future Sys. v. Better Bus. Bureau, 872 A.2d 1202, 1215 (Pa. Super.
2005) (citation omitted), aff’d by 923 A.2d 389 (Pa. 2007). Further, we will
reverse a trial court’s denial of a JNOV only where the trial court abused its
discretion or committed an error of law that controlled the outcome of the
case. Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa.
Super. 2002).
Likewise, we are mindful that:
The decision of whether to grant a new trial is within the
sound discretion of the trial court. We will not disturb the trial
court’s decision unless the court palpably abused its discretion or
committed an error of law. [] [A] new trial is warranted where
the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice. However, a new trial should not be granted
because of a mere conflict in testimony or because the trial
judge, on the same facts, would have arrived at a different
conclusion.
Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002) (quoting Mano
v. Madden, 738 A.2d 493, 495 (Pa. Super. 1999) (en banc)).
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Before we examine the merits of Appellant’s issues, we must first
determine whether they have been preserved for review. Upon review of
both record and Appellant’s brief, we find that Appellant’s first and third
issues are waived for lack of development.
In summarizing its first issue, Appellant contends that “[t]he trial court
erred in its legal interpretation of the Compensation portion of the Working
Agreement[.]” Appellant’s Brief at 8. In support of this argument, Appellant
cites to the Working Agreement and Jennings’ trial testimony, and argues
about how we should construe the Working Agreement. See generally
Appellant’s Brief at 11-14. However, despite recognizing that the
construction of contractual language is a question of law, (id. at 11)
(emphasis supplied), Appellant fails to cite a single case in support of its
argument, analysis, and proposed interpretation of the Working Agreement.
See id. at 11-14. Appellant’s argument fails for lack of development with
appropriate jurisprudence. See Betz v. Erie Ins. Exchange, 957 A.2d
1244, 1261 (Pa. Super. 2008) (internal citations omitted) (deeming an
argument waived where appellant “cites no authority to support … its
argument”); see also Bombar v. West American Ins. Co., 932 A.2d 78,
91 (Pa. Super. 2007) (determining appellant “has not developed … argument
for appellate review” where appellant only cited to pleadings).
We further find waiver in Appellant’s treatment of this issue during the
trial. Instantly, Appellant argues that the trial court “determined that the
Working Agreement was ambiguous with respect to ‘revenues accrued’ and
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the ‘net revenue’ definition that precedes commission payment.” Appellant’s
Brief at 6. Appellant indicates that “WBM argued that ‘accrual’ means
booking the account upon sponsorship contract signing[.] [Appellant]
argued that commissions were to be paid ‘only after receipt of sponsorship
money, less the ‘out of pocket’ money referred to [in Working Agreement].”
Id. However, Appellant’s counsel conceded to the trial court that “there
might be an ambiguity” regarding accrual under the contract given the
parties’ differing interpretations of the Working Agreement. N.T., 11/19/13,
at 3. Further, Appellant did not object when the trial court specifically asked
counsel, “[d]oes anyone have any objection” to the trial court’s instruction
that “the term accrued and how that’s to be paid, are ambiguous and [the
jury is] to use all of the facts, including how the parties operate under the
agreement” to interpret those terms. Id. 169. Appellant also failed to
object when the trial court reiterated: “Just so we’re all clear, does anybody
have an objection to me charging [the jury] that paragraph two of the
agreement is ambiguous and the jury has to determine how [WBM] was to
be paid?” Id. at 171. Moreover, during a discussion of the proposed jury
instructions, the trial court specifically read the jury instruction regarding
ambiguity, which concluded with the statement that “because [Appellant]
prepared the written agreement, any ambiguous language in the written
agreement must be interpreted against [Appellant] and in favor of [WBM] if
[WBM’s] interpretation is reasonable.” N.T., 11/20/13, at 95. When asked
whether he had any objection to the ambiguity charge, Appellant’s counsel
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replied that “I don’t like the last part[.]” Id. Appellant did not object to the
portion of the jury instruction where the trial court expressed “I have
decided that ambiguity as to this provision exists and an issue of fact that
you must decide [is] present.” Id. at 94. Appellant’s repeated failure to
object to the trial court’s determination concerning ambiguity effects waiver.
Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1124-1125 (Pa. 2000)
(“It is axiomatic that, in order to preserve an issue for review, litigants must
make timely and specific objections during trial[.]”)
Waiver notwithstanding, Appellant’s first issue lacks merit because
having decided the contract was ambiguous, the trial court did not err or
abuse its discretion in having the jury interpret the contract to determine
when revenues accrued and what defined net revenue. See N.T., 11/19/13,
at 161-173; see also Community College of Beaver County v.
Community College of Beaver County, Society of the Faculty
(PSEA/NEA), 375 A.2d 1267, 1274 (Pa. 1977) (internal citations omitted)
(“It has been long accepted in contract law that an ambiguous written
instrument presents a question of fact for resolution by the finder-of-
fact[.]”).
Appellant further maintains that “[t]here is insufficient evidence to
support the jury award of damages which derive from unpaid sponsorships.”
Appellant’s Brief at 14. However, this challenge discounts that in awarding
$77,500.00 to WBM, the jury may have been reaching a compromise
verdict. See Trial Court Opinion, 4/30/14, at 5 (“In closing argument,
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[WBM’s] counsel contended that [Appellant] owed $134,850.00 to [WBM].
[T]he jury found in favor of [WBM] on its breach of contract claim and
awarded damages in the amount of $77,500.00.”); see also N.T., 11/20/13,
at 182-183 (in responding to the jury’s request during deliberation to
“receive the list of owed amounts indicated on the foam board as written up
by [WBM’s counsel],” the trial court expressed “[w]hat [the jury is] trying to
do is compare the numbers that [WBM] had with [prior defense exhibits],
[to] come up with some kind of compromise[.]”.
We have explained:
Compromise verdicts are verdicts where the fact-finder is in
doubt as to the defendant’s liability vis á vis the plaintiff’s
actions in a given suit but, nevertheless, returns a verdict for the
plaintiff in a lesser amount than it would have if it was free from
doubt. Compromise verdicts are favored in the law. Although
more commonplace in negligence cases tried before juries, such
verdicts are equally appropriate in contract cases tried before
the bench.
Morin v. Brassington, 871 A.2d 844, 852-853 (Pa. Super. 2005). In
Morin, we declined to reweigh the evidence on appeal in a breach of oral
contract action, and affirmed the trial court’s verdict in plaintiff’s favor
despite incredible accusations made by both parties regarding the actual
existence of the agreement. Id. The Morin court ruled it “[would] not
invade the credibility-determining powers of the fact-finder merely because
the evidence was conflicting and the fact-finder could have decided the case
either way.” Id. at 852.
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Further, we recognize that “it is within the province of the jury to
assess the worth of the testimony, which it may then accept or reject. We
agree that the jury is free to believe all, some or none of the testimony
presented by a witness.” Neison v. Heimes, 653 A.2d 634, 636-37 (Pa.
1995) (internal citations omitted).
Instantly, the record does not reflect that the verdict defies common
sense and logic such that a new trial is warranted, nor does the record
viewed in the light most favorable to WBM as the prevailing party, entitle
Appellant to JNOV. Accordingly, Appellant’s first issue is unavailing.
We also find waiver with Appellant’s third issue. Appellant challenges
the trial court’s grant of a compulsory nonsuit in WBM’s favor, and against
Appellant, regarding Appellant’s counterclaim against WMB. See Appellant’s
Brief at 24. Appellant’s entire argument consists of a single paragraph
under the heading “[Appellant’s] Counterclaim.” Id. In this single
paragraph, Appellant baldly asserts that “[m]uch discussion of [Appellant’s]
counterclaim has taken place above, and will not be reiterated here.” Id.Appellant discounts that it is not our duty to comb Appellant’s brief to cobble
together and infer Appellant’s position and argument, and we decline
Appellant’s exhortation for us to do so. See Commonwealth v. Hakala,
900 A.2d 404, 407 (Pa. Super. 2006); see also Miller v. Miller, 744 A.2d
778, 788 (Pa. Super. 1999) (internal citation omitted) (appellant bears the
burden of establishing his entitlement to relief). Significantly, this single
paragraph does not contain any binding and applicable jurisprudence. Id.- 10 -
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Indeed, Appellant does not even cite any legal authority for our standard
and scope of review regarding a trial court’s order granting a compulsory
nonsuit. Id. Appellant’s failure to develop its third issue results in waiver.
See, e.g., Giant Food Stores, LLC v. THF Silver Spring Development,
L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (“Appellant’s issue on appeal is
waived because [Appellant] has failed to set forth in its appellate brief any
citation to legal authority pertaining to [Appellant’s] argument”).
Turning to Appellant’s second issue, Appellant contends that the “trial
court erred … in permitting WBM to be the plaintiff[.]” Appellant’s Brief at 8.
Appellant argues that [b]eginning in September, 2010, all checks were paid
to [Jennings], and WBM received nothing. [Jennings’] actions have two net
results: first, there is no consideration for WBM to be considered a party to
a contract, hence no cause of action on behalf of WBM exists; and second,
[Jennings’] pillaging of his company so violates the laws concerning
separation of the LLC as an entity from its owner that the LLC as an entity is
disregarded.” Id. at 15-16.
The trial court astutely observed:
"A real party in interest in any given contract or chose in
action is the person who can discharge the duties created and
control an action brought to enforce rights." Craig by Boosel v.
Farren, 700 A.2d 543, 545 (Pa. Super. 1997); see also Pa.R.C.P.
No. 2002(a). Pursuant to the Limited Liability Company Law of
1994, "suit may be brought by or against a limited liability
company in its own name." 15 Pa.C.S.A. § 8991(a). However,
"[a] member of a company is not a proper party to an action or
proceeding by or against the company, except where the object
is to enforce the right of a member against or his liability to the
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company." Id. § 8991(b). [WBM] was a party, along with
[Appellant], to the Working Agreement. As [Appellant] itself
notes in its Brief, no evidence was presented at trial that [WBM]
assigned its rights pursuant to the Working Agreement to
Jennings personally. ([Appellant’s] Br. at 5.) No evidence was
introduced at trial that [WBM] assigned its rights under the
Working Agreement to any individual or entity. Accordingly, as
the only entity capable of enforcing its rights pursuant to the
Working Agreement, [WBM] was a real party in interest to this
action.
[Appellant] argues that Jennings’ acceptance of [WBM’s]
payments violated corporate formalities, such as the prohibition
on comingling corporate and personal funds, resulting in
[WBM’s] elimination as a real party in interest. The Court finds
this argument perplexing and believes that its implications would
logically lead to a conclusion that [Appellant] itself would be
unlikely to endorse. For example, if the Court were to find that
[WBM] had violated corporate formalities to such an extent so as
to erase the distinction between [WBM] and Jennings
individually, then payments to Jennings were payments to
[WBM] because Jennings would be [WBM] and vice-versa. While
[Appellant] claims that Jennings’ actions demolished the
corporate wall between himself personally and [WBM],
[Appellant’s] entire argument that [WBM] is not a real party in
interest is implicitly premised upon that wall standing strong.
For if [WBM] and Jennings were not distinct entities, how can the
former relinquish rights to the latter? And, of course,
[Appellant] acknowledges that there was no assignment from
[WBM] to Jennings, thereby begging the question of how [WBM]
supposedly gave up its right to payment under the Working
Agreement to Jennings.
***
Critically, and fatal to [Appellant’s] argument, [Appellant]
is not trying to pierce [WBM’s] corporate veil in order to assert
liability against Jennings. Rather, [Appellant] seeks to pierce the
corporate veil in order to eliminate [WBM’s] standing as a
plaintiff to assert liability against [Appellant]. The Court agrees
with the keen observation by [WBM] in its Post-Trial Brief that
[Appellant], "in utilizing these [veil-piercing] doctrines to
structure an argument that an entity should be prevented from
asserting liability against another due to the acts of art
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individual, . . . effectively turns these [pierce veiling] doctrines
on their heads." ([WBM’s] Br. at 6.)
[Appellant] was under no contractual obligation to make its
payments to Jennings personally. [Appellant] agreed, with full
knowledge and understanding, to change the payee.
Accordingly, there was no fraudulent or deceitful conduct by
Jennings or [WBM] such that justice would require the Court to
pierce the corporate veil. Further, [WBM] did not seek to
recover for itself any payments [Appellant] made to Jennings
personally. In other words, [WBM] did not pursue any double
recovery in this action.
The Court notes that, in the same breath that [Appellant]
argues that [WBM] does not have standing to enforce the
Working Agreement, [Appellant] also claims that [WBM] did not
assign its rights to Jennings. ([Appellant’s] Br. at 5.) The Court
can only infer, from this argument, that [Appellant] believes that
there exists no individual or entity capable of enforcing [WBM’s]s
rights pursuant to the Working Agreement. The Court rejects
this inference. For all of the above reasons, [WBM] had standing
to maintain its cause of action against [Appellant], and,
therefore, [Appellant’s] [standing] issue is without merit.
Trial Court Opinion, 4/30/14, at 13-17 (footnote omitted).
We agree with the trial court’s rationale, which is supported by our
review of the record and applicable jurisprudence, such that further
commentary would be redundant. Appellant recognizes “[t]he issue
presented by [Appellant] here differs from better known scenarios, such as
piercing the corporate veil. There are no case[s] directly on point for this
issue[.]” Appellant’s Brief at 17. Discerning no trial court error of law or
abuse of discretion, we affirm the trial court’s determination that WBM had
standing to sue, such that Appellant is not entitled to a new trial or a JNOV.
In sum, Appellant’s three issues are without merit, such that we affirm
the trial court. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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