Karden Constr. Servs., Inc. v. D'Amico

• Decision Date: 13 September 2019
• Docket Number: No. 286 MDA 2018,286 MDA 2018
• Parties: KARDEN CONSTRUCTION SERVICES, INC., Appellant v. Brian D'AMICO
• Court: Pennsylvania Superior Court

219 A.3d 619

KARDEN CONSTRUCTION SERVICES, INC., Appellant

v.Brian D'AMICO

No. 286 MDA 2018

Superior Court of Pennsylvania.

Argued January 9, 2019

Filed September 13, 2019

Osmer S. Deming, Reading, for appellant.

Deborah A. Sottosanti, Reading, for appellee.

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY NICHOLS, J.:

Appellant Karden Construction Services, Inc. appeals from the judgment entered in favor of Appellee Brian D'Amico following a new trial on damages from Appellant's claim of unjust enrichment. Appellant argues that the trial court erred in finding that Appellant failed to prove damages. We affirm.

This Court previously summarized the background of this appeal as follows:

On June 2, 2009, [Appellant] filed a complaint against Appellee, alleging breach of contract and, alternatively, unjust enrichment. [Appellant] alleged that, on January 4, 2007, [Appellee] entered into an oral agreement with [Appellant] for the provision of professional services to assist with litigation and construction management. Specifically, [Appellant] alleged that [Appellee] engaged [Appellant] as an expert to assist [Appellee] in a lawsuit [Appellee] had filed against a contractor and a home inspector in connection with the construction of [Appellee]'s new home. [Appellant] further alleged that it rendered approximately one hundred thirteen (113) hours of professional services to [Appellee] from January 4, 2007 until December 8, 2008, valued at $21,338.70 when combined with out-of-pocket expenses.

[Appellant] alleged that [Appellee] failed to pay [Appellant] for the professional services and, as a result, breached the oral agreement. Alternatively, [Appellant] alleged that [Appellee] unjustly enriched himself by retaining the benefits of the services provided to him.

This matter proceeded to a non-jury trial, at which both parties presented testimony. The trial court summarized the evidence as follows:

Dennis Link has been the president and sole employee of [Appellant] since 1999. [Appellant] is a corporation that provides construction representation, including consulting, and project management representation throughout the construction of buildings, and expert reports and testimony for arbitrations and court hearings. [Mr. Link] works for owners, contractors, and counsel. His projects include commercial, industrial, institutional, governmental, and residential construction.

[Appellant] was originally hired by [Appellee's] former law firm for its lawsuit against a contractor. Mr. Link testified that he first met [Appellee] in January 2007 at [Appellee's] home. Osmer Deming, Esquire, gave the necessary contact information to both parties. [Appellee] needed [Appellant's] services for a new home which he was building. The meeting took several hours, and afterwards Mr. Link went to the job site. Mr. Link testified that during the meeting he had discussed his costs as an expert witness. He had said that the expenses would probably be $15,000.00 or possibly $20,000.00.

Mr. Link further testified that his contracts are typically verbal because the clients can hire or fire him at any time. In the instant case, he did a site assessment to determine what was done and if [the construction] was in conformance with codes. He gave the information to [Appellee's] former attorneys to prepare a complaint against [Appellee's] contractor and home inspector and to execute a certificate of merit. Mr. Link also stated that he communicated regularly with [Appellee] via e-mails and telephone conversations. Mr. Link claimed that his work for [Appellee] evolved into a considerable amount of construction management. [Appellee] also asked him about designs.

By letter dated July 25, 2008 ..., [Appellant] attached a [$3,000.00] retainer invoice with the fee schedule discussed between the parties in January 2007. Mr. Link testified that he had sent this letter because he had been informed by [Appellee's] law firm that [Appellee] had not been paying it for its services to [Appellee]. There is no place on the letter for [Appellee] to sign and return it to [Appellant]. The first page of the letter states: "Note: A retainer is required on every engagement. The retainer is applied to the final billing and any balance is returned at the conclusion of the engagement." [Appellant] did not receive any payments from [Appellee] after the letter had been sent to him.

In January 2009 or February 2009, at the conclusion of its services, [Appellant] sent its first invoice to [Appellee]. Mr. Link testified that he usually does not receive any payment until there is a negotiated settlement or a trial verdict. He normally expects to be paid from the settlement. He does not usually bill clients unless they request bills because he does not want them to be forced to accept an undesirable settlement in order to pay [Appellant's] bill. [Appellee's] case is still pending. Mr. Link does not think [Appellee] terminated his services officially, but, at some point, [Appellee] stopped asking [Appellant] to work for him.

[Attorney Deming] is [Appellee's] present attorney for his construction litigation. He had been an associate at the law firm which initiated [Appellee's] lawsuit. He started his own practice, and [Appellee] is now his client. Attorney Deming testified that there had been no agreement by his former law firm to pay [Appellant] for his work for [Appellee]. He did not remember getting any bill from [Appellant].

[Appellee] testified that his attorneys at the law firm, Kevin Moore, Esquire, and Eden Bucher, Esquire, facilitated the meeting between him and Mr. Link. He did not know anything about Mr. Link before the meeting. When he had received the invoice, he had not believed that he had owed [Appellant] any money because he had not entered into a written or verbal contract with [Appellant]. It was his understanding that Mr. Moore and Ms. Bucher were paying [Appellant].

[Appellee] further testified that no meeting between Mr. Link and him had ever occurred at his residence. He first met Mr. Link at the law firm. There had been no discussion regarding [Appellee's] payment or a request for a retainer at that meeting. Following the first meeting, it had been [Appellee's] understanding that Mr. Link would offer support as an expert witness for the purpose of the litigation against [Appellee's] contractor and the inspector. Mr. Moore, Ms. Bucher, and Mr. Deming instructed [Appellee] to work with [Mr. Link] so he could help in the litigation concerning the house construction.

Upon receipt of the letter of February 5, 2009, [Appellee] sent an e-mail to [Appellant] stating that it was his understanding that [Appellant] was being paid by the law firm and, at the current time, [Appellee] did not wish to hire [Appellant] personally. Mr. Moore and Ms. Bucher had told [Appellee] that [Appellant] had been on retainer. Mr. Link had met with the two attorneys and had talked to them by telephone about three or four times prior to [Appellee's] first meeting with Mr. Link. The litigation against the contractor and home inspector is still pending.

Karden Const. Servs., Inc. v. D'Amico , 1351 MDA 2015 at 1-2, 2016 WL 3034741 (Pa. Super. Filed May 25, 2016) (unpublished mem.) (citation omitted).

Following a non-jury trial, the trial court found in favor of Appellee on all counts and denied Appellant's post-trial motions for judgment notwithstanding the verdict. Id. at 4. On appeal, a prior panel of this Court affirmed in part, reversed in part, and remanded this matter. Id. at 10.

Of relevance to this appeal, the prior panel concluded that Appellee was unjustly enriched by Appellant's construction services. Id. at 9-10. As to the provision of construction services, the prior panel focused on Mr. Link's testimony that Appellant provided Appellee with the following construction services:

Frequently, [Appellee] would ask me questions about designs that were done, whether they were appropriate or not, whether there was alternatives to it. Early—when—because it's problems with the builder. We discussed going out and getting additional estimates so that we had support for damages that were going to go into the—into the legal process. And so a lot of activity associated with construction management was involved.

Id. at 9 (record citation omitted). Additionally, the prior panel emphasized Mr. Link's testimony that once Appellee filed a complaint, he continued to communicate with Appellee "both from the standpoint—a local standpoint, dispute resolution standpoint, and also standpoint of construction management." Id. at 10 (record citation omitted).

The prior panel concluded that Appellant was entitled to judgment notwithstanding the verdict on its claim for unjust enrichment for Appellant's "expertise in managing the construction of [Appellee]'s dwelling."¹ Id. at 10. The panel remanded for a determination of the reasonable value of the construction management services, as opposed to the litigation services, Appellant provided to Appellee. Id. at 10. Specifically, the panel concluded:

Given the uncontradicted evidence, [Appellee] clearly appreciated, accepted and retained the benefit of [Appellant]'s expertise in managing the construction of [Appellee]'s dwelling. Differently put, [Appellee] unjustly enriched himself from the provision of construction management services. As a result, we remand this matter to the trial court to determine the reasonable value of [Appellant]'s construction management services. Accordingly, we affirm the trial court's judgment to the extent it held that no agreement existed between the parties and [Appellee] did not benefit from the litigation support services. We, however, reverse the trial court's judgment to the extent it held that [Appellee] was not unjustly enriched from the provision of construction management services and remand this matter for determination of the reasonable value of such services.

Id. at 10. The prior panel further suggested that the parties and the...