Oliver v. Ball

• Decision Date: 19 February 2016
• Docket Number: No. 1602 WDA 2014,1602 WDA 2014
• Citation: 2016 PA Super 45,136 A.3d 162
• Parties: Jerome P. OLIVER, Appellant v. Larry M. BALL, Danny R. Ball, Larry J. Ball and Mary H. Ball v. Joyce Harmon and Al Harmon, Individually and as Authorized Agents for Howard Hanna Company, t/d/b/a Howard Hanna Company t/d/b/a Howard Hanna Real Estate Services, Appellees.
• Court: Pennsylvania Superior Court

136 A.3d 162

2016 PA Super 45

Jerome P. OLIVER, Appellant

v.Larry M. BALL, Danny R. Ball, Larry J. Ball and Mary H. Ball

v.Joyce Harmon and Al Harmon, Individually and as Authorized Agents for Howard Hanna Company, t/d/b/a Howard Hanna Company t/d/b/a Howard Hanna Real Estate Services, Appellees.

No. 1602 WDA 2014

Superior Court of Pennsylvania.

Argued Sept. 18, 2015.

Filed Feb. 19, 2016.

Sara J. Seidle–Patton, Clarion, Ira L. Podheiser, Pittsburgh, for appellant.

Ronald W. Coyer, Amy E. Molloy, Slippery Rock, for Ball, appellees.

BEFORE: BOWES, OLSON, and STABILE, JJ.

OPINION BY STABILE

, J.:

Appellant Jerome P. Oliver appeals from the September 26, 2014 judgment entered in the Court of Common Pleas of Butler County (“trial court”), following the denial of his post-trial motion to remove a compulsory nonsuit that the trial court granted at the close of his case-in-chief in this breach of contract action. Upon review, we reverse.

The facts and procedural history underlying this case are undisputed.¹ Appellant entered into a sale of real estate contract with Appellees Larry M. Ball, Danny R. Ball, Larry J. Ball and Mary H. Ball (“Balls”) for the purchase of two tracts of land in Cranberry Township, Butler County, containing approximately 71.5 acres (“the Property”). Balls failed to convey the Property. Appellant filed suit against Balls for breach of contract, seeking specific performance and/or monetary damages. Balls eventually joined as additional defendants the parties' dual real estate agents Joyce Harmon and Al Harmon, individually and as authorized agents for Howard Hanna Company, t/d/b/a Howard Hanna Company t/d/b/a Howard Hanna Real Estate Services (“Hanna defendants”). Balls asserted that the Hanna defendants were liable to them for contribution and/or indemnification.

Appellant's claim for specific performance was severed from his claim for damages and proceeded to a non-jury trial. Following testimony on the liability phase, the trial court concluded that a valid and binding contract for the sale of the Property existed between the parties, which Balls breached. The case next proceeded to the damage phase, at which Appellant testified in support of specific performance. In particular, describing the Property, Appellant testified that “[i]t was wood[ed] property with some open fields, some old farm land, with a, like a wet weather stream running through it. It was hilly. Wasn't terribly hilly but it was sloping like all other property in Butler County.” N.T. Trial, 6/17/14, at 341. Appellant testified that he planned to purchase the Property for investment purposes. Id. at 342. Specifically, he testified that “[m]y plans were to hold it for a long-term investment. At that time I was still in the timber business and there was some timber on [the Property] that I thought could be harvested.” Id. He also testified:

[a]s a real estate investor [the Property] had a lot of things I look for. It was big so it possibly could be subdivided in the future for, you know, further development. Of course, it had all the mineral rights coming with it so that was something that I hoped to put into my business in the future.

Id. at 342–43. Appellant testified that the location of the Property was important to him because it “is only maybe five miles as the crow flies from my home so that is important, to try to keep my investments within a reasonable distance from my home and where I work.” Id. at 343. Explaining why the Property was important to him, Appellant testified:

It's basically the sum of the parts of this property are much more valuable than the whole. So, again, what I have learned through 26 years of business and what I have been able to do and have learned to do is to take a whole property like this that has valuable parts, subdivide those parts, if you will, and have it become very strong investment.

Id. at 347. On cross-examination, Appellant acknowledged that he owns investment properties located as far away as Westmoreland and Crawford Counties. Id. at 348–49.

Following Appellant's testimony, Balls moved for nonsuit, arguing that Appellant failed to establish that he lacked an adequate remedy at law. The trial court agreed, granting Balls' motion for nonsuit and denying Appellant's request for specific performance. Appellant thereafter withdrew his claim for monetary damages against Balls. As a result, Balls' claims for indemnification and contribution against the Hanna defendants became moot.

On June 27, 2014, Appellant filed a post-trial motion, seeking the removal of the nonsuit. Appellant argued that he was entitled to specific performance because the Property was unique and, therefore, his remedy at law inadequate. The trial court disagreed, denying Appellant's post-trial motion on September 19, 2014. In so doing, the court observed:

[Appellant] did not offer evidence that the quality, quantity, or type of timber on the [P]roperty is unique or unavailable elsewhere. [Appellant] did not offer evidence that gas rights are not attainable elsewhere in the [c]ounty. [Appellant] did not offer evidence that damages for the loss of these assets were unquantifiable, such that he does not have an adequate remedy at law. [Appellant] did not offer evidence that he would suffer a significant difference in purchase price for the purchase of similar property in Butler County or that the difference in purchase price is not quantifiable. [Appellant] did not offer evidence that the value of this specific ... [P]roperty was unique to him. [Appellant] did not offer evidence that the [P]roperty's terrain was especially important to him, or that its location, other than being in Butler County and somewhat close to his home, was important to him. In sum, [Appellant] did not offer any evidence that this [P]roperty had any unique characteristics, of import to him, that cannot be found or purchased elsewhere, even within Butler County. Further, [Appellant] did not present any evidence to establish that the value of the [P]roperty was not quantifiable in money damages.

Trial Court Opinion, 9/22/14, at 9. On September 26, 2014, Balls filed a praecipe for entry of judgment in their favor. Appellant timely appealed to this Court. The trial court directed Appellant to file a Pa.R.A.P.1925(b)

statement of errors complained of on appeal. Appellant complied, raising a single assertion of error, namely:

The [t]rial [c]ourt abused its discretion by entering a nonsuit on [Appellant's] claim for specific performance of an agreement for the sale of real estate after finding that a valid and enforceable contract for sale of land existed between [Appellant] and [Balls].

Rule 1925(b)

Statement. In response, the trial court issued a Pa.R.A.P.1925(a) opinion, which largely incorporated its opinion denying Appellant's post-trial motion.

On appeal,² Appellant repeats the argument that the trial court abused its discretion in granting Balls' motion for nonsuit and denying his claim for specific performance.³

We are mindful that our standard of review following the denial of a motion to remove a compulsory nonsuit is as follows: “This Court will reverse an order denying a motion to remove a nonsuit only if the trial court abused its discretion or made an error of law.” Brinich v. Jencka, 757 A.2d 388, 402 (Pa.Super.2000)

(citation omitted), appeal denied, 565 Pa. 634, 771 A.2d 1276 (2001). “Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason.” Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super.2000) (internal citations omitted). The grant of a nonsuit is proper where, having viewed all evidence in the plaintiff's favor, the court determines that the plaintiff has not established the necessary elements of his cause of action. Brinich, supra; see Pa.R.C.P. No. 230.1.

With respect to specific performance, our Supreme Court explained in Payne v. Clark, 409 Pa. 557, 187 A.2d 769 (1963)

:

From the moment an agreement of sale of real estate is executed and delivered it vests in the grantee [ (purchaser) ] what is known as an equitable title to the real estate. Thereupon the vendor [ (seller) ] is considered as a trustee of the real estate for the purchaser and the latter becomes a trustee of the balance of the purchase money for the seller. Hence, if the terms of the agreement are violated by the [seller], [the purchaser] may go into a court of equity seeking to enforce the contract and to compel specific performance.

Payne, 187 A.2d at 770–71

(internal citations omitted). In other words, a request for specific performance is an appeal to the court's equitable powers. See

Lackner v. Glosser, 892 A.2d 21, 31 (Pa.Super.2006). Specific performance generally is described as the surrender of a thing in itself, because that thing is unique and thus incapable—by its nature—of duplication. See

Cimina v. Bronich, 517 Pa. 378, 537 A.2d 1355, 1357 (1988). “A decree of specific performance is not a matter of right, but of grace.” Barnes v. McKellar, 434 Pa.Super. 597, 644 A.2d 770, 776 (1994) (citation omitted), appeal denied, 539 Pa. 663, 652 A.2d 834 (1994). Such a decree will be granted only if a plaintiff clearly is entitled to such relief, there is no adequate remedy at law, and the trial court believes that justice requires such a decree. Id. “Inequity or hardship may be a valid defense in an action for specific performance and such decree refused if in the exercise of a sound discretion it is determined that, under the facts, specific performance would be contrary to equity or justice.” Payne, 187 A.2d at 771. Mere inadequacy of price, however, will not defeat specific performance, unless grossly disproportionate. Id.

Courts in this Commonwealth consistently have determined that specific performance is an...