Gonzalez, J. v. Sam Midtown Group

J-A28021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSE GONZALEZ I/T/A PHILADELPHIA 4 IN THE SUPERIOR COURT OF
CONSTRUCTION AND PHILADELPHIA 4 PENNSYLVANIA
CONSTRUCTION
v.
SAM’S MIDTOWN GROUP, INC.
Appellant No. 103 EDA 2015
Appeal from the Judgment Entered November 19, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): March Term, 2011, No. 1703
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY PANELLA, J. FILED JANUARY 12, 2016
Appellant, Sam’s Midtown Group, Inc. (“the Company”), appeals from
the judgment after a jury verdict found it liable to Appellees, Jose Gonzalez
and Philadelphia 4 Construction (“Contractor”),1 on their claims for breach of
contract. The Company argues that Contractor was not entitled to relief as it
substantially breached the construction agreement prior to the Company’s
breach, that the trial court erred in not sanctioning Contractor for discovery
____________________________________________
1
At the time of the contract, Appellee Gonzalez traded under the
unregistered fictitious name of Philadelphia 4 Construction. After filing the
Complaint that initiated this matter, Gonzalez registered the fictitious name.
There is no indication in the record that Philadelphia 4 Construction is a
limited liability business organization.
J-A28021-15
violations, and that the evidence at trial did not support the amount of
damages awarded by the jury. After careful review, we affirm.
The factual predicate of this litigation is largely undisputed. The
Company, desiring to renovate a Philadelphia property in order to operate a
restaurant there, hired a project manager to oversee the renovations. The
project manager recommended the carpentry services of Contractor, and the
Company entered into a written agreement with Contractor. Under the
written agreement, Contractor was to submit invoices to the project
manager for approval and payment. The written agreement required a
detailed breakdown of material and subcontractor costs incurred by the
Contractor. Furthermore, Contractor was required to obtain a two million
dollar comprehensive insurance policy that covered, inter alia, property
damages due to collapse.
Contractor did not strictly comply with the requirements for detailed
breakdowns of costs with all of his invoices. Nor did Contractor have a two
million dollar comprehensive insurance policy at the time he started working
on the project.
Contractor proceeded to perform the renovations listed in the written
agreement to the property beginning in August 2008. Shortly thereafter, a
structural wall at the site collapsed, causing the collapse of floors and other
walls. The damage was repaired, and construction continued. Contractor’s
-2-
J-A28021-15
invoices were submitted to the project manager and were paid through
February 2009.
Starting in March 2009, difficulties arose with the project. The project
manager quit and left the site, claiming that it had not been paid. The
parties agree that Contractor completed the tasks listed in the original,
written agreement. However, at this point the parties disagree about what
happened.
Contractor presented evidence that he reached an oral agreement with
the Company to finish the renovations after the project manager walked off
the site. The Company presented evidence that it repeatedly asked
Contractor to fix instances of poor workmanship on tasks that it had already
completed. Contractor claims that it walked off the site after the Company
failed to abide the oral agreement and pay him for finishing the job. The
Company claims that Contractor would not address its requests to fix the
problems with the Contractor’s previous work and instead just walked away
from the job.
Several years later, Contractor instituted this litigation by filing a
complaint against the Company for breach of contract, violation of the
Contractor and Subcontractor Payment Act2, and unjust enrichment. After
lengthy discovery, a jury trial was held resulting in a verdict that the
____________________________________________
2
73 P.S. §§ 501-516.
-3-
J-A28021-15
Company had breached its contract with Contractor and was liable for
$175,000 in damages. The Company filed post-trial motions, which the trial
court denied, and this timely appeal followed.
On appeal, the Company raises three broad issues, which include
related sub-issues. In its first issue, the Company argues that the trial court
erred in its handling of the Company’s defense premised upon its allegation
that Contractor materially breached the agreement first. In its first sub-
argument, the Company contends that it was entitled to judgment in spite of
the verdict (“JNOV”). We review a decision denying JNOV by the following
standard.
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 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.
Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d
996, 999 (Pa. Super. 2008) (citation omitted).
-4-
J-A28021-15
Here, the Company contends that it is undisputed that Contractor
failed to adhere by the terms of the contract from the very beginning,
including poor workmanship, a failure to obtain sufficient insurance, and a
failure to properly document costs on his invoices. Generally, a party who
has materially breached a contract may not “complain if the other party
refuses to perform his obligations under the contract.” Ott v. Buehler
Lumber Co., 541 A.2d 1143, 1145 (Pa. Super. 1988) (citation omitted).
“[A] material breach of a contract, which is vital to the existence of the
contract, relieves the non-breaching party from any continuing duty of
performance under the contract.” Umbelina v. Adams, 34 A.3d 151, 159
(Pa. Super. 2011) (citation omitted) (emphasis in original). Thus, the
Company argues, it was entitled to judgment as a matter of law.
In contrast, Contractor provided evidence that the initial, written
agreement was completed, and that he was fully paid for his work pursuant
to the written agreement. See N.T., Trial, 5/5/14, 134-138. Contractor
testified that his claims in this matter arose from separate, oral agreements
he made with the Company. See id., at 138-142. No evidence was
presented to the jury that these oral agreements contained similar
conditions as the written agreement. Viewing this evidence in a light most
favorable to Contractor, as the verdict winner, we cannot conclude that the
Company had established a prior breach of the oral agreement as a matter
-5-
J-A28021-15
of law. Thus, we conclude that the Company is due no relief on this claim on
appeal.
In a related sub-issue, the Company argues that the trial court erred
in failing to instruct the jury on the law regarding its defense of prior breach.
In particular, the Company submitted the following proposed jury instruction
prior to trial.
In order for [Contractor] to recover on his breach of contract
cause of action, [Contractor] also must not have breached the
agreement.
When a party to a contract seeks to enforce the agreement or to
recover damages for breach of the agreement, that party must
prove that he has performed all of his own obligations under the
contract.
If you find that [Contractor] breached the agreement, you must
find for [the Company] on the breach of contract cause of action
even if you find that [the Company] breached the agreement.
However, the Company did not discuss this instruction during the charge
conference. Nor did the Company object after the trial court concluded its
jury instruction. Instead, when the trial court requested any objections after
the instruction, counsel for the Company responded “No, Your Honor. I
think you covered the points.” N.T., Trial, 5/7/14, at 92. The Company thus
waived any issues it had with the jury instructions given by the trial court.
See James v. Ferguson, 162 A.2d 690, 693 (Pa. 1960) (“Failure of trial
counsel to manifest any disagreement with the court’s instructions
precludes, in the absence of fundamental and prejudicial error, a subsequent
contention that it was erroneous.”); see also Murphy v. Taylor, 269 A.2d
-6-
J-A28021-15
486, 489 (Pa. 1970) (Failure to raise an objection until after jury returns a
verdict results in waiver of objection.)
Next, the Company contends that the trial court erred in failing to
grant JNOV due to numerous alleged discovery violations on the part of
Contractor. We will not disturb a trial court’s imposition of sanctions, or lack
thereof, due to a party’s failure to comply with a discovery order absent an
abuse of discretion. See Schweikert v. St. Luke’s Hosp. of Bethlehem,
Pennsylvania, 886 A.2d 265, 268 (Pa. Super. 2005) (citation omitted).
Nevertheless, the court’s discretion is not unfettered: because
“dismissal is the most severe sanction, it should be imposed only
in extreme circumstances, and a trial court is required to balance
the equities carefully and dismiss only where the violation of
the discovery rules is willful and the opposing party has been
prejudiced.” Consequently, where a discovery sanction either
terminates the action directly or would result in its termination
by operation of law, the court must consider multiple factors
balanced against the necessity of the sanction.
In determining whether dismissal is appropriate, this Court has
instructed that the following factors are to be considered:
(1) the nature and severity of the discovery violation;
(2) the defaulting party’s willfulness or bad faith;
(3) prejudice to the opposing party;
(4) the ability to cure the prejudice; and
(5) the importance of the precluded evidence in light of the
failure to comply.
Rohm and Haas Co. v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010) (internal
citations omitted). “We are mindful that each factor represents a necessary
consideration, not a necessary prerequisite.” Id. (citation omitted).
-7-
J-A28021-15
The Company argues that the trial court should have imposed the
most drastic sanction of dismissing Contractor’s cause of action. While we
are without the benefit of the trial court’s explicit reasoning on the issue, we
conclude that the trial court did not abuse its discretion by failing to dismiss
Contractor’s claims. The Company’s complaints center on two types of
discovery: the written records of costs incurred and hours worked by
Contractor, and proof of payment of an alleged fine. While the lack of
written records of costs and labor were relevant evidence and might have
helped discredit Contractor’s testimony, the Company exhaustively
questioned Contractor about the lack of such documents and how their
absence impacted on his credibility. See, e.g., N.T., Trial, 5/5/14, at 202-
208. While this solution was not optimal in the Company’s opinion, it
allowed the Company to challenge Contractor’s credibility with his failure to
produce these records. We therefore conclude that the trial court did not err
in refusing to dismiss Contractor’s case as a sanction.
The Company’s other claim regards Contractor’s failure to register his
fictitious name, Philadelphia 4 Construction, while the work was being done.
Contractor admits that he did not register his fictitious name until May 9,
2011, after he filed his initial complaint, but prior to the filing of an amended
complaint. The Company, citing 54 Pa.C.S.A. § 331, argues that Contractor
was precluded from bringing suit until he paid a civil fine for doing business
before registering. However, section 331 does not preclude Contractor’s suit
as there is no contention that the Company did not know of Contractor’s real
-8-
J-A28021-15
identity. See George Stash & Sons v. New Holland Credit Company,
LLC, 905 A.2d 541, 543 (Pa. Super. 2006). Therefore, the trial court did not
abuse its discretion in failing to dismiss Contractor’s case due to the alleged
discovery violation.
In a related sub-issue, the Company argues that the trial court erred
in failing to instruct the jury on spoliation. For the same reasons that we
found the Company’s previous jury instruction argument waived, we
conclude that this argument is waived. The Company did not raise this issue
after the instruction when the trial court asked for any additions or
corrections. Thus, the Company cannot now gain relief on appeal on this
issue.
In its final issue, the Company argues that the trial court erred in
failing to grant its motion for remittitur. However, the argument section of
the Company’s brief in support of this issue is completely devoid of legal
authority supporting the Company’s argument. See Appellant’s Brief, at 21-
23. “The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Eichman v. McKeon, 824 A.2d 305, 319 (Pa. Super.
2003). Furthermore, “[w]hen issues are not properly raised and developed
in briefs, when the briefs are wholly inadequate to present specific issues for
review[,] a Court will not consider the merits thereof.” Branch Banking
and Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006). We will
-9-
J-A28021-15
not act as counsel for the Company and research this issue for it. We
therefore find no basis upon which to grant the Company’s request.
As we conclude that none of the Company’s issues on appeal merit
relief, we affirm the judgment.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2016
- 10 -