Richie, M. v. Prentiss, G.

J-S56018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE RICHIE N/K/A MICHELLE : IN THE SUPERIOR COURT OF
ALLEN : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1447 EDA 2020
GERALD PRENTISS :
Appeal from the Order Entered July 8, 2020,
in the Court of Common Pleas of Northampton County,
Civil Division at No(s): No. C-48-CV-2018-05633.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J. *
MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 16, 2021
In this case, Michelle Richie, n/k/a Michelle Allen,1 appeals from an order
granting summary judgment to Mr. Prentiss in a dispute over fire-insurance
money for a destroyed rent-to-own property. However, Ms. Allen does not
challenge the trial court’s basis for awarding summary judgment; instead, she
raises an issue that does not warrant reversal. We therefore affirm.
In the summer of 2015, Ms. Allen and Mr. Allen got engaged. Mr. Allen
“wanted to get a house [and] had a good relationship with [Mr. Prentiss].”
Deposition of Ms. Allen, 10/8/19, at 7. However, Mr. Allen could not obtain a
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*
Retired Senior Judge assigned to the Superior Court.
1
She is actually n/k/a Michelle Rodriguez, but the parties refer to her as “Ms.
Allen” in their briefs. We continue this practice for simplicity’s sake.
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mortgage from a lending institution. Mr. Prentiss agreed to purchase a home
on behalf of the Allens and to hold title “as the mortgage attendee.” Id.
On September 1, 2015, the Allens and Mr. Prentiss jointly selected a
home in Wind Gap, Pennsylvania that Mr. Prentiss bought for $80,000. See
Ex. A of Complaint at 2. On the same day, he mortgaged the land and entered
a rent-to-own lease for the property with the Allens. See Ex. B of Complaint
at 1. Ms. Allen viewed this rent-to-own lease as their “mortgage.” Deposition
of Ms. Allen, 10/8/19, at 11. Mr. Prentiss desired tax deductions for two years,
so the parties delayed the opening of the purchase option until September 1,
2017. They left the purchase option open until September 1, 2035.
The Allens agreed to pay Mr. Prentiss $752.80 per month. Based on an
amortization chart accompanying the lease, the $752.80 went to principal and
interest on the mortgage, based upon a $90,000 sales price. See Ex. C of
Complaint. The Allens also paid Mr. Prentiss $325 per month for property
taxes and property insurance, which were in his name. See Deposition of Ms.
Allen, 10/8/19, at 19.
The contract required the Allens to exercise the purchase option in
writing, and it required Mr. Prentiss to hold their monthly payments in trust
pending their execution of the option. If the Allens exercised the option, 100%
of their prior payments would go toward the $90,000 purchase price. On the
other hand, if the option went unexercised, then Mr. Prentiss could retain their
prior payments as rent.
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The Allens married in October of 2015, but their relationship soured.
They soon separated and eventually divorced. On July 18, 2016, Ms. Allen
sent Mr. Prentiss the following e-mail:
Tony [is] taking over [the] house I’m moving
out. He take care 680 [sic]. It [is] just not
working here. I [will] be out in 2 weeks.
Please take all repairs and mortgage payments
up with him. Thank you. Sorry for
inconvenience. No need [to] call me [I’m]
changing my number.
Ex. B of Mr. Prentiss’s Motion for Summary Judgment.
Two days later, on July 20, 2015, the house burned down, and the Allens
vacated the property. They stopped all payments to Mr. Prentiss. Two weeks
after the fire, Mr. Allen disclaimed his rights or interest in the property. See
Ex. C of Mr. Prentiss’s Motion for Summary Judgment. Mr. Prentiss collected
$215,022.40 in insurance money. He then sold the land for $9,165.
Three years after the fire and nine-and-a-half months after the option
to purchase was to open, Ms. Allen sued Mr. Prentiss. She sought the fire-
insurance money and the $9,165 from the sale of the vacant land. Ms. Allen
asserted two counts in her complaint: unjust enrichment and constructive
trust.
The pleadings closed, and the parties engaged in discovery. In early
2020, they filed cross-motions for summary judgment. After oral argument,
the trial court entered an Opinion and Order granting summary judgment to
Mr. Prentiss. In reaching its decision, the court reviewed the elements of Ms.
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Allen’s two causes of action and determined she had failed to adduce sufficient
evidence to establish the elements of either count.
The court began with unjust enrichment, which is a request that equity
imply a contract, even though no contract exists at law. See Mitchell v.
Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999).2 The trial court ruled Mr.
Prentiss was entitled to judgment as a matter of law on the unjust-enrichment
count, because a “cause of action for unjust enrichment may arise only when
there is no express contract between the parties.” Trial Court Opinion, 7/8/20,
at 5 (quoting Khawaja v. RE/MAX Central, 151 A.3d 626, 633 (Pa. Super.
2016)). “Here, an express contract existed between [the parties], namely the
lease. For this reason alone, [Mr. Prentiss] is entitled to summary
judgment.” Id. (footnote omitted) (emphasis added).
The trial court added that, even if the parties’ contract did not bar the
claim for unjust enrichment, the insurance money and land sale had not
unjustly enriched Mr. Prentiss. See id. at 5-7. Because the house burned
down prior to the purchase option opening, the trial court concluded the lease
became impossible to perform post inferno. Id. at 6 (citing Albert M.
Greenfield & Co., Inc. v. Kolea, 380 A.2d 758, 760 (Pa. 1977)). The court
opined, “there is no evidence that [Ms. Allen] provided any benefit to [Mr.
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2
The elements necessary to establish an unjust-enrichment claim are “(1)
benefits conferred on defendant by plaintiff; (2) appreciation of such benefits
by defendant; and (3) acceptance and retention of such benefits under such
circumstances that it would be inequitable for defendant to retain the benefit
without payment of value.” Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.
Super. 1999).
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Prentiss] after the destruction of the house and the cessation of the
landlord/tenant relationship.” Id. at 7.
Turning to Ms. Allen’s second count, constructive trust, the trial court
again concluded Mr. Prentiss was entitled to judgment as a matter of law.
Citing Altman v. Kyler, 221 A.3d 687, 711 (Pa. Cmwlth. 2019), the court
correctly said, “A constructive trust may be imposed where a person holds
funds subject to an equitable duty to convey them to another because he
would be unjustly enriched if permitted to retain them.” Trial Court Opinion,
7/8/20, at 7.3 “For the reasons outlined above, [Mr. Prentiss] was not unjustly
enriched.” Id. at 7-8. Thus, the trial court deemed that “there [was] no need
to impose a constructive trust on the insurance proceeds.” Id. at 8.
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3
“A constructive trust, it has often been said, is not really a trust at all but
rather an equitable remedy. Like all remedies in equity, it is flexible and
adaptable.” Buchanan v. Brentwood Fed. Sav. & Loan Ass'n, 320 A.2d
117, 126 (Pa. 1974). “The question whether a constructive trust is to be
imposed on the profits earned by the investment by the mortgage [lender]
can be resolved only by answering the more fundamental question whether
‘the conscience of equity’ would conclude that the mortgagees would be
unjustly enriched were they permitted to keep the funds.” Id. at 127. In
explaining the “unjustly enriched” portion of the test, the Supreme Court said
this is “a general assertion that the ends of public policy and substantial justice
demand that a constructive trust be impressed on the earnings. It is well
settled that a constructive trust will arise whenever justice or the need for fair
dealing warrants it.” Id. at 128.
“It is rare that the existence or absence of justification for imposing an
equitable remedy, especially a constructive trust, can be decided as a matter
of law.” Id. at 127. Because the mortgagers claimed and presented evidence
supporting various theories by which constructive trusts might arise (including
agency principles and confidential relationships), the Buchanan Court
reversed the grant of summary judgment to the lenders. However, Ms. Allen
made no such claims below, nor does she assert them on appeal.
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A timely notice of appeal followed, and Ms. Allen filed a Rule 1925(b)
Statement of Errors Complained of on Appeal, where she raised the following
three issues:
1. Does a purchase option in a lease survive a fire?
2. Was the Lease with Purchase Option actually an
agreement of sale as determined by the conduct of the
parties?
3. Does the judicial finding that one provision of a contract
cannot be carried out (impossible) void all provisions of
a contract?
Ms. Allen’s 1925(b) Statement at 2.
The trial court recognized that these issues were insufficient to challenge
its reasoning for granting summary judgment to Mr. Prentiss. The court found
Ms. Allen’s “allegations of error to be misplaced, as she [did] not challenge
the foundation of the court’s Opinion filed on July 8, 2020, namely that [she
could not] support a case of unjust enrichment when an express contract
existed between herself and [Mr. Prentiss].” Rule 1925(a) Opinion, 9/9/20,
at 3. “The [trial] court also found that [Ms. Allen] could not support her claim
for a constructive trust when there was no finding of unjust enrichment.” Id.
The court therefore underscored that Ms. Allen failed to establish the elements
of her alleged causes of action.
When deciding whether an appellant has sufficiently conformed her brief
and the arguments therein to the Pennsylvania Rules of Appellate Procedure,
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“our scope of review is plenary, and our standard of review is de novo.”
Kronstain v. Miller, 19 A.3d 1119, 1123 (Pa. Super. 2011).
Rule of Appellate Procedure 2111(a)(4) requires appellants to include in
their primary briefs a statement of questions for this Court to resolve. “The
statement of the questions involved must state concisely the issues to be
resolved . . . No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116.
On appeal, Ms. Allen raises one issue in her statement of questions
involved. She asks, “whether a written option to buy real estate expires upon
the destruction by fire of the building located on the real property?” Ms. Allen’s
Brief at 4. This issue does not address the causes of action Ms. Allen alleged
in her Complaint or their elements, much less identify evidence of record that
establishes those elements. See id. at 6-15. In fact, the words “unjust
enrichment” never appear in her brief and “constructive trust” appears only
once. See id. at 6-7 (stating “Mrs. Allen filed a complaint in Northampton
County, seeking to enforce4 the option to buy real property in Northampton
County and to establish a constructive trust on fire insurance proceeds which
the [Mr. Prentiss] received when the house on the subject property burned.”)
At this point in her argument, Ms. Allen should have laid out the elements of
a constructive trust and cited case law applying that equitable remedy. See
Note 3, supra.
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4
We note that Ms. Allen did not file an action for breach of contract or specific
performance in equity to enforce the provisions of the rent-to-own lease.
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Instead, her appellate argument gets sidetracked on whether the trial
court erroneously relied upon Greenfield, supra. The trial court cited
Greenfield for the proposition that the lease became impossible to perform
once the fire consumed the house. Ms. Allen claims Shaffer v. Flick, 520
A.2d 50 (Pa. Super. 1987), allows a tenant-optionee to invoke a purchase
option after an Act of God destroys a rent-to-own building. Shaffer held that
equitable title to rent-to-own property reverts to the date on which the
purchase option arose, even though the optionees invoked the option after a
tornado destroyed the rented structures. Ms. Allen therefore correctly
interprets Shaffer, but the rest of her argument goes up in smoke.
The trial court in Shaffer did not award damages based upon a theory
of unjust enrichment or impose a constructive trust. Instead, the plaintiffs in
Shaffer sought declaratory judgment. Thus, the procedural posture of that
case differs from Ms. Allen’s. If she had pleaded a cause of action for
declaratory judgment, Ms. Allen might well be entitled to judgment as a matter
of law under Shaffer. But the fact remains that she did not, and we may not
grant her relief based upon a cause of action that she did not include in her
Complaint. Where a plaintiff potentially makes out an equitable theory but
“did not allege such a theory in [the] complaint, we . . . will not consider such
a claim.” Mitchell, 729 A.2d at 1205 n.3; see also Gavasto v. 21st Century
Indem. Ins. Co., 1625 WDA 2019, 2021 WL 754026, at *8 n.9 (Pa. Super.
2021) (unpublished) (accord). Shaffer is inapplicable to Ms. Allen’s counts
for unjust enrichment and constructive trust.
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To mount this appeal – indeed, to overcome Mr. Prentiss’s motion for
summary judgment – Ms. Allen needed to focus on the elements of the causes
of action in her Complaint. As the trial court observed, Ms. Allen failed to
“challenge the foundation of the court’s Opinion filed on July 8, 2020, namely
that [she could not] support a case of unjust enrichment when an express
contract existed between herself and [Mr. Prentiss].” Rule 1925(a) Opinion,
9/9/20, at 3. “The [trial] court also found that [Ms. Allen] could not support
her claim for a constructive trust when there was no finding of unjust
enrichment.” Id. Ms. Allen should have confronted those conclusions of law
on appeal and needed to demonstrate why they were in error. Because she
did not raise those issues for appellate review, nor were they fairly suggested
by the single issue that Ms. Allen raised, we may not review them. See
Pa.R.A.P. 2116.
In short, Ms. Allen has not asked whether trial court erroneously applied
the equitable principles of unjust enrichment and constructive trust to the
evidence of record.5 And we may not raise those questions sua sponte.
Order affirmed.
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5
As Circuit Judge Hardiman recently reminded appellate attorneys, “an appeal
is not just the procedural next step in every lawsuit, and the decision to
challenge an order of the [lower] court is not a matter to be taken lightly.”
Conboy v. United States Small Bus. Admin., ___ F.3d ___, 2021 WL
1081089, at *1 (3d Cir. 2021) (quotations omitted). Those who lose in the
trial court must ask themselves not only whether they should file an appeal,
but if so, what are they appealing? Raising the proper issues is a critical
component of appellate practice.
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President Judge Emeritus Bender joins the Memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/21
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