Slice & Hook Enterprises v. McGonigal, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SLICE & HOOK ENTERPRISES, INC. AND IN THE SUPERIOR COURT OF
PUTTS AND DIVOTS, L.P., PENNSYLVANIA
Appellants
v.
DEBORAH MCGONIGAL,
Appellee No. 3494 EDA 2013
Appeal from the Order Entered November 13, 2013
In the Court of Common Pleas of Bucks County
Domestic Relations at No(s): 11-04043
PUTTS & DIVOTS, L.P. AND SLICE & IN THE SUPERIOR COURT OF
HOOK ENTERPRISES, INC., D/B/A PENNSYLVANIA
FAIRWAYS
Appellees
v.
DEBORAH MCGONIGAL,
Appellant No. 20 EDA 2014
Appeal from the Order Entered November 13, 2013
In the Court of Common Pleas of Bucks County
Domestic Relations at No(s): 2011-04043-34
BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 23, 2015
In these consolidated appeals, Appellants, Slice & Hook Enterprises,
Inc. (Slice & Hook) and Putts & Divots, L.P. (Putts & Divots), appeal from an
order entered on November 13, 2013 that granted a new trial as to all
*Retired Justice specially assigned to the Superior Court.
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claims and that denied Appellants’ motion for judgment notwithstanding the
verdict (JNOV) as to the unjust enrichment claim filed by Appellee/Cross-
Appellant, Deborah McGonigal (McGonigal). In addition, McGonigal
cross-appeals from the trial court’s November 13, 2013 order to the extent
that order denied her request for JNOV as to Appellants’ prescriptive
easement claim. After careful review, we affirm.1
Putts & Divots is the fee simple owner of real property located in
Warrington Township, Bucks County, Pennsylvania, known as the Fairways
Golf Course. Slice & Hook operates the Fairways Golf Course and Country
Club, a public golf course, pursuant to a lease agreement with Putts &
Divots.
The Fairways Golf Course was constructed in the late 1960s.
Originally, it consisted of seven separate parcels, known as Parcels A-1
through A-7. On May 30, 1985, the owner of the Fairways Golf Course
conveyed it to Perch Hankin. Around that same time, Perch Hankin
subdivided a .92-acre parcel out of Parcel A-5 and created a new parcel
known as Parcel D. Parcel D included the area upon which the men’s and
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1
On August 28, 2014, Appellants moved to quash McGonigal’s cross-appeal
on grounds that her brief to this Court violated several appellate rules.
Specifically, Appellants assert that McGonigal: 1) filed and served her brief
in an untimely manner (Pa.R.A.P. 2188); 2) failed to comply with word limits
(Pa.R.A.P. 2135); 3) impermissibly included argument within her statement
of the case (Pa.R.A.P. 2117); and, 4) failed to properly develop issues raised
on appeal (Pa.R.a.P. 2119). As these alleged violations have not hampered
our review of McGonigal’s claims, we deny Appellants’ motion to quash.
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women’s tee boxes for the fifth hole of the Fairways Golf Course were
located.
By deed dated June 28, 1985, Perch Hankin conveyed Parcel D to a
builder, Sal Paone, Inc. (Paone). Although there was no written easement
agreement, the Fairways Golf Course continued to use the rear of Parcel D
for the fifth hole tee boxes. Paone improved Parcel D by constructing a
single family home on the property. Thereafter, on August 29, 1989, Paone
conveyed the improved property to Joseph Sink and Carolyn M. Sink (Sinks).
The Fairways Golf Course continued to use the rear of Parcel D for the fifth
hole tee boxes during the Sinks’ ownership of the property.
In May 1990, Perch Hankin sold the Fairways Golf Course property to
his son, Mark Hankin. Again, the Fairways Golf Course continued to use the
rear of Parcel D for tee boxes. A few years later, in 1993, Mark Hankin sold
the golf course to Putts & Divots. Thereafter, Putts & Divots continued to
use the rear of Parcel D for the fifth hole tee boxes.
McGonigal purchased and moved into the home on Parcel D in August
2005. Putts & Divots continued its use of the property. McGonigal began to
complain about golf balls striking her house in the Spring of 2006. She took
no immediate action, however, because Joseph Lightkep, one of the partners
in Putts & Divots, told her that the golf course had a written right to use
Parcel D for the tee boxes. Nevertheless, in November 2010, McGonigal
erected a temporary fence across the tee boxes that precluded golfers or
anyone else from accessing the tee boxes or cart paths on the property.
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In response, Appellants, on May 5, 2011, filed a declaratory judgment
complaint in the Court of Common Pleas of Bucks County and moved for a
preliminary injunction to remove the fence. Appellants’ complaint and
motion for preliminary injunction asserted prescriptive easement rights to
use the tee boxes. On June 8, 2011, the trial court issued a preliminary
injunction (amended as of June 13, 2011) directing McGonigal to remove the
fence. McGonigal complied with the court’s order and Appellants resumed
their use of the tee boxes. McGonigal appealed the order granting
Appellants’ request for injunctive relief and this Court ultimately affirmed in
an unpublished memorandum issued on October 1, 2012. Putts & Divots
v. McGonigal, 62 A.3d 446 (Pa. Super. 2012) (unpublished memorandum).
On June 27, 2011, McGonogal filed an answer, new matter, and
counterclaims in response to Appellants’ complaint. McGonigal requested a
jury trial (to the extent available) and alleged the following counterclaims
against Appellants: 1) trespass; 2) conversion; 3) unjust enrichment; 4)
waste; 5) nuisance; 6) ejectment; 7) quiet title; 8) declaratory relief; 9)
violation of easement (in the alternative); and, 10) fraudulent
misrepresentation.
A jury trial commenced on October 15, 2012 and concluded on
October 24, 2012. The jury returned a verdict in favor of Putts & Divots on
its claim seeking a declaration that it established a prescriptive easement to
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use the rear of Parcel D for the tee boxes.2 The jury found in favor of
McGonigal on her counterclaims of trespass and unjust enrichment,
awarding $5,000.00 in damages on the trespass claim and $100,000.00 on
the counterclaim for unjust enrichment. The jury rejected the remainder of
McGonigal’s claims that fell within its providence to decide, including
violation of easement, nuisance, and fraudulent misrepresentation.3
Both sides filed post-trial motions after the jury returned its verdict.
Appellants filed a post-trial motion seeking entry of a JNOV as to McGonigal’s
unjust enrichment claim. McGonigal raised numerous post-trial claims,
including, among other things, a motion for JNOV on Appellants’ prescriptive
easement claim. In the alternative, McGonigal requested a new trial on all
claims against all parties (except her unjust enrichment and trespass
counterclaims) based upon various errors that allegedly occurred at trial.
On November 13, 2013, the trial court granted a new trial on all claims
against all parties and denied all other post-trial motions. In denying
Appellants’ motion for JNOV on McGonigal’s unjust enrichment claim, the
trial court identified a fundamental conflict in the jury’s award of both a
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2
Under a stipulation reached by the parties, Putts & Divots, as the owner of
the dominant tenement, was the appropriate plaintiff on that cause of
action.
3
McGonigal withdrew her claims for declaratory judgment, waste, quiet title,
and conversion. Additionally, the parties agreed that the trial court would
decide McGonigal’s ejectment counterclaim, if necessary.
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prescriptive easement (in favor of Appellants) and a recovery for unjust
enrichment (in favor of McGonigal). Moreover, in support of its decision to
order a new trial on all claims, the court cited the inconsistency of the jury’s
verdict together with its opinion that confusion over the complex claims in
the case contributed to the factfinder’s determinations.
Both Appellants and McGonigal timely appealed from the trial court’s
November 13, 2013 order.4 After the parties filed concise statements of
errors complained of on appeal, the trial court issued its Pa.R.A.P. 1925(b)
opinion on February 3, 2014.
Appellants’ brief raises the following questions for our consideration:
Did the [t]rial [c]ourt abuse its discretion when it ordered a new
trial of all claims on the grounds that the verdicts on Putts &
Divots’ [p]rescriptive [e]asement claim and McGonigal’s [u]njust
[e]nrichment counterclaim were inherently inconsistent and/or
because the jury was confused, where Putts & Divots used the
property in the absence of any vested easements rights for ten
months after McGonigal purchase[d] it?
Did the [t]rial [c]ourt abuse its discretion when it denied
Appellants’ [p]ost-[t]rial [m]otion for JNOV as to McGonigal’s
[u]njust [e]nrichment counterclaim where McGonigal did not
introduce any evidence, let alone sufficient value of the
competent evidence to sustain a verdict, as to the reasonable
benefit she alleges was conferred upon Appellants?
Did the [t]rial [c]ourt abuse its discretion when it denied
Appellants’ [p]ost-[t]rial [m]otion for JNOV where McGonigal’s
counterclaim for [u]njust [e]nrichment is barred by the
applicable four-year statute of limitations?
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4
This Court subsequently consolidated the appeals.
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Appellants’ Brief at 5.5
McGonigal’s brief raises the following cross-appeal claim:
Whether the [trial c]ourt committed an abuse of discretion when
it denied McGonigal’s [m]otion for JNOV on [Putts & Divots’]
claim for prescriptive easement?
McGonigal’s Brief at 7.
Appellants’ first claim challenges the trial court’s November 13, 2013
order to the extent it granted a new trial. Our Supreme Court has
elaborated at some length on the standard and scope of review that applies
when a litigant challenges an order granting a new trial.
Trial courts have broad discretion to grant or deny a new trial.
The grant of a new trial is an effective instrumentality for
seeking and achieving justice in those instances where the
original trial, because of taint, unfairness or error, produces
something other than a just and fair result, which, after all, is
the primary goal of all legal proceedings. Although all new trial
orders are subject to appellate review, it is well-established law
that, absent a clear abuse of discretion by the trial court,
appellate courts must not interfere with the trial court's authority
to grant or deny a new trial.
[W]hen analyzing a decision by a trial court to grant or deny a
new trial, the proper standard of review, ultimately, is whether
the trial court abused its discretion.
Each review of a challenge to a new trial order must begin with
an analysis of the underlying conduct or omission by the trial
court that formed the basis for the motion. There is a two-step
process that a trial court must follow when responding to a
request for new trial. First, the trial court must decide whether
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5
We have reordered Appellants’ claims to facilitate a more logical discussion
of the issues.
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one or more mistakes occurred at trial. These mistakes might
involve factual, legal, or discretionary matters. Second, if the
trial court concludes that a mistake (or mistakes) occurred, it
must determine whether the mistake was a sufficient basis for
granting a new trial. The harmless error doctrine underlies
every decision to grant or deny a new trial. A new trial is not
warranted merely because some irregularity occurred during the
trial or another trial judge would have ruled differently; the
moving party must demonstrate to the trial court that he or she
has suffered prejudice from the mistake.
To review the two-step process of the trial court for granting or
denying a new trial, the appellate court must also undertake a
dual-pronged analysis. A review of a denial of a new trial
requires the same analysis as a review of a grant. First, the
appellate court must examine the decision of the trial court that
a mistake occurred.
At this first stage, the appellate court must apply the correct
scope of review, based on the rationale given by the trial court.
There are two possible scopes of review to apply when appellate
courts are determining the propriety of an order granting or
denying a new trial. There is a narrow scope of review: where
the trial court articulates a single mistake (or a finite set of
mistakes), the appellate court's review is limited in scope to the
stated reason, and the appellate court must review that reason
under the appropriate standard.
[Conversely,] [i]f the trial court leaves open the possibility that
reasons additional to those specifically mentioned might warrant
a new trial, or orders a new trial ‘in the interests of justice,’ the
appellate court applies a broad scope of review, examining the
entire record for any reason sufficient to justify a new trial.
Even under a narrow scope of review, the appellate court might
still need to examine the entire record to determine if there is
support for any of the reasons provided by the trial court.
The appropriate standard of review also controls this initial layer
of analysis. If the mistake involved a discretionary act, the
appellate court will review for an abuse of discretion. If the
mistake concerned an error of law, the court will scrutinize for
legal error. If there were no mistakes at trial, the appellate
court must reverse a decision by the trial court to grant a new
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trial because the trial court cannot order a new trial where no
error of law or abuse of discretion occurred.
If the appellate court agrees with the determination of the trial
court that a mistake occurred, it proceeds to the second level of
analysis. The appellate court must then determine whether the
trial court abused its discretion in ruling on the request for a new
trial. Discretion must be exercised on the foundation of reason.
An abuse of discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will. A finding by an appellate
court that it would have reached a different result than the trial
court does not constitute a finding of an abuse of discretion.
Where the record adequately supports the trial court's reasons
and factual basis, the court did not abuse its discretion.
When determining whether the trial court abused its discretion,
the appellate court must confine itself to the scope of review, as
set forth in our preceding discussion. If the trial court has
provided specific reasons for its ruling on a request for a new
trial, and it is clear that the decision of the trial court is based
exclusively on those reasons, applying a narrow scope of review,
the appellate court may reverse the trial court's decision only if it
finds no basis on the record to support any of those reasons. As
a practical matter, a trial court's reference to a finite set of
reasons is generally treated as conclusive proof that it would not
have ordered a new trial on any other basis. Alternatively,
where the trial court leaves open the possibility that there were
reasons to grant or deny a new trial other than those it expressly
offered, or the trial court justifies its decision on the “interests of
justice,” an appellate court must apply a broad scope of review
and affirm if it can glean any valid reason from the record.
Harman, ex rel. Harman v. Borah, 756 A.2d 1116-1124 (Pa. 2000)
(internal citations and certain internal quotations omitted).
In this case, the trial court identified a single rationale for its decision
to order a new trial. Specifically, the trial court “found that there was such a
clear error of law that [the result was tainted]. There was a clear and basic
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and fundamental conflict in the award of both a prescriptive easement and
unjust enrichment that a new trial had to be granted. Those two awards
could not legitimately co-exist under the undisputed aspects of the trial.”
Trial Court Opinion, 2/3/14, at 12. Because the trial court expressed only
one reason for ordering a new trial, we confine the scope of our review to
the designated basis for the court’s ruling.
Appellants do not dispute that the predominant and competing legal
themes in this case (Putts & Divots’ prescriptive easement and McGonigal’s
claim for unjust enrichment) are, in large part, doctrinally incompatible. Put
differently, Appellants nowhere challenge the underlying premise of the trial
court’s conclusion, i.e. that the holder of a prescriptive easement cannot be
held liable under a theory of unjust enrichment after the easement vested.
Instead, Appellants argue that the trial court abused its discretion in
granting a new trial because the jury’s verdict conceivably can be reconciled
with the evidence introduced at trial:
Here, the trial court correctly noted that “it was just and
equitable for Putts & Divots to benefit from the hostile use of the
tee box so long as it had the prescriptive right to do so. . . .”
[Trial Court Opinion, 2/3/14, at 13]. In other words, there was
nothing unlawful or unjust about Putts & Divots’ use of Parcel D
after it had established its prescriptive easement rights to use
the property. The fatal flaw of the trial court’s finding that the
jury made a mistake was its failure to consider that, as a matter
of law, it takes 21 years for such rights to vest, and unless and
until such rights have vested, there is nothing to preclude a
determination or finding that use of another’s property is unjust
or inequitable.
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In this case, the clock for prescriptive easement started ticking
on or about June 28, 1985, the first day when the servient
tenement (Parcel D) and the dominant tenement [(the golf
course)] became owned by different entities (Sal Paone and
Perch Hankin, respectively). The overwhelming evidence at trial
was that, thereafter, the [golf course] continuously used and
maintained the tee boxes in the same location through to the
date of trial. As a result, there was more than ample evidence in
the record to support that Putts & Divots’ had established
prescriptive easement rights to continue to use the rear of Parcel
D for the tee boxes as of June 28, 2006, 21 years later. Until
that time, however, Putts & Divots did not, as a matter of law,
have any prescriptive easement rights. Thus, there is nothing
prohibiting a concurrent finding by the jury that any use of
Parcel D from August 1, 2005 – when [McGonigal] purchased
Parcel D and moved into her new residence – until June 28,
2006, was unjust, inequitable, or otherwise unlawful. Indeed,
given the facts of this case and the applicable law on which the
jury was charged, these finding are perfectly harmonious. To
conclude otherwise, would require a complete disregard for the
record and the applicable law.
Appellants’ Brief at 36-37 (footnotes, emphasis and record citations
omitted).
Appellants’ contention merits no relief from the order directing a new
trial. Applying Harman, we find first that the trial court committed legal
error in failing to properly instruct the jury, particularly as to the interplay
between the doctrines of prescriptive easement and unjust enrichment. We
agree with the trial court that this error caused confusion amongst the jurors
and tainted the verdict that they returned. Consequently, for the reasons
that follow, we discern no abuse of discretion in the trial court November 13,
2013 order.
It is well settled that an inadequate jury instruction may amount
to reversible error if it has a tendency to mislead the jury or if it
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omits material, which is basic and fundamental. Although a trial
court need not use the specific language requested by a party,
its words must sufficiently and fully convey the rules of law
applicable to the case.
Further, an error in a jury instruction is sufficient grounds for a
new trial, if the charge as a whole is inadequate or not clear or
has a tendency to mislead or confuse rather than clarify a
material issue.
Machado v. Kunkel, 804 A.2d 1238, 1244 (Pa. Super. 2002) (internal
citations and quotations omitted), appeal denied, 819 A.2d 547 (Pa. 2003).
Although the trial court instructed the jury as to the legal elements for
a prescriptive easement and a claim of unjust enrichment, the court
neglected to instruct the jury as to the interplay between these doctrines,
which constituted a basic and fundamental omission. To illustrate, the court
did not instruct the jury that McGonigal could only assert an unjust
enrichment claim prior to the date when Putts & Divots acquired its
prescriptive easement rights. Thus, the court never explained to the jury
that if Putts & Divots acquired a restrictive easement, the theory of unjust
enrichment was no longer available to McGonigal as an avenue of recovery.
By omitting such instructions, the trial court failed to fully inform the jury of
the rules applicable in this case.
Having determined that the trial court erred in formulating its
instructions to the jury, we now consider whether it abused its discretion in
ordering a new trial. Appellants argue that a new trial was inappropriate
since it is possible to reconcile the jury’s verdict with the applicable law and
the evidence introduced at trial. However, the jury completed a lengthy
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questionnaire setting forth its findings and nothing in that form enabled the
court or the parties to verify the period during which Putts & Divots acquired
its prescriptive rights or to identify the timespan when Appellants were
unjustly enriched through their use of Parcel D. Without such confirmatory
information, Appellants’ claim that the verdict can conceivably be reconciled
with the evidence introduced at trial is unsupported. Instead, we conclude
that the trial court’s determination that juror confusion led the factfinder to
reach a compromise verdict appears far more plausible given the complex
claims presented in this case. Under the applicable standard of review, we
must affirm where we find any basis in the record to support the trial court’s
new trial order. Thus, we conclude that Appellants’ first claim merits no
relief.
Our decision to affirm the trial court’s order granting a new trial as to
all claims obviates the need to consider the parties’ remaining claims, in
which Appellants assert that they were entitled to JNOV on McGonigal’s
unjust enrichment claim and McGonigal claims she was entitled to JNOV on
Putts & Divots’ prescriptive easement claim. Hence, we decline to address
these additional claims and remand this case for further proceedings.
Order affirmed. Motion to quash denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2015
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