September 24, 2013
PLUM PROPERTY ASSOCIATES, INC., Appellant
MINERAL TRADING COMPANY, LLC, JAMES R. CLARKE, JONATHAN LASKO, AND MELISSA HENNIS, Appellees
YODER & FREY AUCTIONEERS, INC., Appellee PLUM PROPERTY ASSOCIATES, INC., Appellant
MINERAL TRADING COMPANY, LLC, JAMES R. CLARKE, JONATHAN LASKO, AND MELISSA HENNIS, Appellees
YODER & FREY AUCTIONEERS, INC., Appellee
Appeal from the Order Entered February 24, 2012 In the Court of Common Pleas of Beaver County Civil Division at No(s): 32323 of 2011
Appeal from the Order Entered June 20, 2012 In the Court of Common Pleas of Beaver County Civil Division at No(s): 32323 of 2011
BEFORE: BOWES, DONOHUE, and MUNDY, JJ.
Plum Property Associates, Inc. ("Plum") filed the present appeals after the trial court determined that Yoder & Frey Auctioneers, Inc. ("Yoder") was not liable to it in this garnishment action as Yoder never was in possession of property owned by Plum's judgment debtor, and after the court awarded Yoder attorneys' fees. We affirm.
This action concerns money owed to Plum by Mineral Trading Company LLC. ("Mineral"). On September 12, 2011, Plum instituted the present action by filing an exemplification of record of debt owed to Plum by Mineral in the amount of $85, 736.67. This sum represented an award entered in a proceeding initiated in Allegheny County at GD-10-1816. Plum simultaneously filed a praecipe for writ of execution and served that writ along with interrogatories in aid of execution on Yoder. Plum sought the proceeds of the sale of industrial machinery at an auction that Yoder was going to conduct on September 22, 2011. Yoder was an auctioneer of heavy equipment in the United States with its headquarters located in Holland, Ohio. Plum took the position that the machinery to be auctioned on September 22, 2011, was owned by Mineral and subject to execution to satisfy Plum's judgment. Yoder ascertained that the machinery in question was owned by Bill Miller Equipment Sales, Inc. ("BME").
On October 5, 2011, without previous notice, Plum obtained entry of default judgment by the Beaver County Prothonotary against Yoder due to Yoder's failure to answer the interrogatories in aid of execution. Plum also failed to notify Yoder that Plum had praeciped for entry of default judgment. Yoder did not become aware of the default judgment until after Plum served it with a motion requesting that a hearing be scheduled for the assessment of damages on the default judgment. Yoder promptly filed a motion to strike or open the default judgment.
After Yoder filed its motion to open or strike the default judgment, the parties engaged in discovery. The matter proceeded to a nonjury trial on January 27, 2012, in which Yoder presented witnesses and documentary proof that the equipment that it auctioned was owned by BME rather than Mineral.
On February 24, 2012, the trial court issued a memorandum and order. It granted Yoder's motion to strike the default judgment, and it also determined that the September 22, 2011 auction involved property owned by BME. A copy of the February 24, 2012 order was entered on the docket on February 28, 2012, and the prothonotary sent notice of its entry that same day. Plum thereafter filed a timely motion for post-trial relief.
On March 15, 2012, before resolving Pum's pending post-trial motion, the trial court entered an order dismissing the garnishment action and entering judgment against Plum. On March 23, 2012, Yoder filed a motion for attorneys' fees to which Plum did not file a response. On May 25, 2012, the trial court entered an order denying Plum's motion for post-trial relief and again directing the prothonotary to enter judgment in favor of Yoder in this garnishment proceeding. On June 21, 2012, Plum filed a timely appeal at 1001 WDA 2012 from the May 25, 2012 order denying its post-trial motion and awarding judgment to Yoder. On June 18, 2012, the trial court granted Yoder's unopposed motion for attorneys' fees, and Plum thereafter filed a timely notice of appeal from that order at 1112 WDA 2012. The appeals were consolidated for purposes of disposition.
Plum presents these issues challenging the propriety of the determination that the auctioned items did not belong to its judgment debtor, Mineral:
1. Whether the lower court determined the November 12 Agreement extended the 80% purchase credit to purchase the equipment subject to the lease/purchase agreement between Mineral Trading Company, LLC ("MTC") and Bill Miller Equipment Co. ("BME") to June 30, 2011 based on the pledge of the three Komatsu trucks by MTC.
2. Whether the lower court addressed the lack of consideration for MTC's pledge of the three Komatsu trucks in the November 12  Agreement.
3. Whether the lower court considered that the auction proceeds relating to the three Komatsu trucks constituted property of [Mineral] subject to Plum Property's garnishment.
4. Whether the lower court erred in holding that [Mineral] had [not] fully paid for the leased equipment that was sold at auction by Yoder & Frey in which case Yoder & Frey was holding property of [Mineral] subject to Plum Property's garnishment.
5. Whether the purchase price credits exceeded the balance alleged owed by BME in which [Mineral] fully owned the equipment and the Yoder & Frey proceeds from the auction of said equipment resulted in Yoder & Frey holding property of [Mineral] subject to Plum Property's garnishment.
6. Whether the lower court considered that [Mineral disputed the alleged amount owed BME.
Appellant's brief at 3.
Regarding the order awarding attorneys' fees against it, Plum raises the following challenges:
1. Whether the lower court failed to consider the applicability of 42 Pa.C.S.A. § 2503 to this case in general and whether the lower court failed to consider Yoder & Frey being an innocent stakeholder entitled to the award of fees.
2. Whether the lower court erred in denying Plum Property due process of law in awarding Yoder & Frey attorney's fees.
3. Whether the lower court erred in failing to follow both the Pennsylvania and local rules in issuing a rule to show cause order requiring an answer, discovery and a hearing.
4. Whether the lower court made a determination that Plum Property's conduct was arbitrary, obdurate and vexatious.
Id. at 3-4.
Plum's first set of allegations concerns the trial court's finding that BME owned the auctioned machinery. Plum seeks reversal of that determination and asks us to rule that the items belonged to Mineral. Plum thus seeks judgment notwithstanding the verdict. Before reaching the merits of Plum's request for judgment n.o.v., we must resolve Yoder's position that this appeal is untimely. The following procedural facts are pertinent to resolution of that preliminary issue. The January 27, 2012 proceeding concerned the receipt of evidence to allow adjudication of the critical factual issue presented in the garnishment action, i.e., whether Plum could garnish the proceeds of Yoder's auction because its judgment debtor, Mineral, owned the items sold by Yoder. Yoder presented witnesses and other evidence regarding that question. Following that nonjury proceeding, on February 24, 2012, the trial court issued a memorandum and order and determined that the September 22, 2011 auction involved property owned by BME. A copy of the order was entered on the docket on February 28, 2012, and the prothonotary sent notice of its entry that same day.
Plum thereafter filed a timely motion for post-trial relief. Under the pertinent case authority, Plum was required to present a motion for post-trial relief to preserve any challenge to the validity of the court's verdict on the question of ownership. Motorists Mutual Insurance Co. v. Pinkerton, 830 A.2d 958 (Pa. 2003) (post-trial motion required if there is an adjudication of the parties' rights following a trial in an action); Chalkey v. Roush, 805 A.2d 491 (Pa. 2002); Pa.R.Civ.P. 227.1(c)(1). On March 15, 2012, the court purported to dismiss the garnishment action and enter judgment against Plum. Yoder maintains that the appeal at 1001 WDA 2012 had to be filed within thirty days of that action. However, as of March 15, 2012, the post-trial motion filed by Plum was yet to be resolved. Therefore, the March 15, 2012 order was premature. Thereafter, on May 25, 2012, the trial court entered a second order in which it denied Plum's motion for post-trial relief and again directed the prothonotary to enter judgment in favor of Yoder. In light of these facts, the June 21, 2012 appeal filed at 1001 WDA 2012 was timely filed as to the May 25, 2012 order denying Plum's post-trial motion and providing that judgment should be entered in favor of Yoder. Pinkerton, supra. Hence, we consider the merits of Plum's challenges to the trial court's resolution of the question of the auctioned property belonged to Mineral or BME.
When examining the propriety of a trial court's decision to deny judgment n.o.v.,
we must determine whether there is sufficient competent evidence to sustain the verdict. We will review all of the evidence in the light most favorable to the verdict-winner and will give that party the benefit of every reasonable inference arising from that evidence while rejecting all unfavorable testimony and inferences. Judgment n.o.v. may be entered where: (1) the moving party is entitled to judgment as a matter of law and/or (2) the evidence is such that no two reasonable minds could disagree that the verdict should have been rendered for the moving party. Our scope of review is plenary concerning any questions of law.
Renna v. Schadt, 64 A.3d 658, 669 (Pa.Super. 2013) (quoting Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa.Super. 2004)).
The evidence produced at trial was as follows. Mineral had a coal strip mining operation located near Jewitt, Ohio. In connection with that business, in 2007 and 2008, Mineral leased numerous pieces of heavy equipment from BME, a large heavy equipment dealer, pursuant to rental purchase agreements. There were thirteen lease/purchase agreements entered between Mineral and BME starting on September 27, 2007 and ending on July 22, 2008. BME perfected its security interest in the rented equipment by filing the appropriate UCC documentation with the State of Ohio.
All of the lease/purchase agreements for the machinery contained the following pertinent provision: "A maximum of 80% of six (6) months rental payments may be subtracted from the purchase price, unless otherwise stated herein." Agreements, 9/27/07 to 7/22/08, at page 1. The agreements in question also provided in a clause entitled "construction": "This is a rental agreement only and nothing herein shall be construed as conveying to lessee any right, title or interest in or to any item of equipment leased hereunder, except as lessee only." Id. at § 7. Those documents further outlined that if Mineral failed to "make any rental payment when due, " then BME had the right to "take possession" of the machinery subject to the lease. Id. at § 6.
Mineral was chronically delinquent in remitting its rental payments to BME for ten pieces of heavy machinery. With respect to three Komatsu industrial trucks that it leased, Mineral made payments sufficient to satisfy the buyout provisions applicable to those items. BME did not transfer ownership of those trucks to Mineral due to Mineral's outstanding payment delinquencies on the other pieces of machinery. Additionally, rental on the trucks had not been timely paid, and the trucks were not properly maintained by Mineral, as required by the contracts in question.
As of November 2009, Mineral had not satisfied the previous six months of rental invoices sent to it by BME. In order to stay in business, Mineral approached BME and asked it to make some concessions about the past-due amount. Thereafter, BME and Mineral entered into an agreement dated November 12, 2009, which had the following terms. The payment of the six months of delinquent rent was deferred. Additionally, BME agreed to accept reduced rent that was otherwise due under the original lease/purchase contracts for a period of fifteen months. See Agreement, 11/12/09, at 1. In return for those concessions, Mineral pledged the three Komatsu trucks as security for its obligations. Further, Mineral assented to "buy the machines out no later than 6-30-11 per the original agreed upon price adjusted for rental paid credits per BME standard rental/purchase document." Id. at 2. Mineral paid BME a forbearance fee.
After the November 12, 2009 agreement was executed, Mineral's rental delinquency continued. On February 8, 2010, Mineral transferred all of its rights, title, and interest in the three Komatsu trucks to BME pursuant to a bill of sale. In early 2011, Mineral's continued inability to bring its rental obligations current triggered a decision by BME to sell the equipment that it owned. On May 17, 2011, Mineral entered an accord with BME in which it admitted that it owed BME over $325, 000 in delinquent rent and that it had failed to purchase the equipment subject to the lease/purchase agreements. It assented to aid BME's auction of the machinery in question. BME hired Yoder to conduct the auction, which was held on September 22, 2011, at Mineral's mining facility in Ohio. As of the date of the auction, BME was the record owner of the equipment under the filed UCC financing statements.
Based upon this evidence, the trial court concluded that BME owned the machinery auctioned on September 22, 2011, and Plum was not entitled to any proceeds from the sale to satisfy its judgment against Mineral.
Although Plum purports to raise six challenges to the trial court's verdict, it admits that there are only two issues to be resolved by this Court. Specifically, Plum states:
There is no dispute as to the validity of Plum Property's garnishment. This entire controversy revolves around two issues. First, whether the 80% rent credit towards the purchase price of the equipment only applied to the first six months as . . . found by the lower court or whether the 80% purchase credit was extended by the parties to June 30, 2011 as advocated by Plum Property.
The second issue surrounds the ownership of the three Komatsu trucks and ultimately who was entitled to the auction proceeds to these trucks. As demonstrated herein, the answer to both issues is that the 80% credit was extended to June 30, 2011 or [Mineral] was the owner of the three Komatsu trucks and ultimately entitled to the auction proceeds from these trucks.
Appellant's brief at 14.
Plum first argues that the November 12, 2009 contract operated to extend the credit of eighty percent of rental paid against the purchase price for the equipment from six months, as outlined in the initial agreements, to June 30, 2011. Plum also claims that, if eighty percent of the rental payments made by Mineral from the inception of the lease/purchase contracts until June 30, 2011, is credited against the purchase price, then Mineral had satisfied the buyout provisions of the rental agreements and owned the auctioned equipment.
We conclude that the November 12, 2009 accord contains language that precludes a finding that the rental credit was extended beyond the first six months of each lease/purchase contract. The pertinent language in the November 12, 2009 contract states that Mineral assented to "buy the machines out no later than 6-30-11 per the original agreed upon price adjusted for rental paid credits per BME standard rental/purchase document." Agreement, 11/12/09, at 2 (emphasis added). The thirteen lease/purchase contracts were standard BME documents.
"A cornerstone principle of contract interpretation provides that where the words of the document are clear and unambiguous, we must give effect to the language." Tindall v. Friedman, 970 A.2d 1159, 1165 (Pa.Super. 2009) (quotation marks omitted). In ascertaining the meaning of a contract and the intent of the parties, we look to the express language of the agreement and "need only examine the writing itself to give effect to the parties' intent." Melton v. Melton, 831 A.2d 646, 654 (Pa.Super. 2003).
Under the November 12, 2009 accord, Mineral was given the opportunity to buy the machines until June 30, 2011. The contract language also clearly and unambiguously states that the rental credit toward the purchase price remained subject to the terms of the original agreements. Those agreements allowed for an eighty percent rental credit against the purchase price for a period of only six months.
Plum's position is that the three Komuatsu trucks were pledged under the November 12, 2009 contract to permit an extension to June 30, 2011, of the eighty percent rental credit against the purchase price. This stance directly conflicts with the express and clear-cut language of the November 12, 2009 accord, and, since it was not supported by testimony from a representative of either party to the contract, we reject it.
Since the eighty percent rental credit against purchase price was not extended to June 30, 2011, the trial court correctly determined that Mineral's rental payments after the first six months of each rental agreement could not to be credited to any extent against the purchase prices of the various pieces of equipment. The trial court did not err in finding that Mineral had not purchased the subject personalty through the rental payments that it made to BME.
Plum also asserts that the pledge of the Komatsu trucks must have extended the rental credit until June 30, 2011, or the November 12, 2009 agreement argument fails for lack of consideration. Plum claims that BME's assent to defer, rather than relinquish, its right to rent does not constitute consideration for the pledge of the three trucks especially since Mineral paid a forbearance fee under the November accord. Appellant's brief at 18-19. In leveling this position, Plum completely ignores the fact that there was other consideration contained in the November 12, 2009 contract. Specifically, BME agreed to accept less rent than it was legally entitled to receive under the original 2007-2008 rental agreements for a period of fifteen months. Thus, the agreement was supported by adequate consideration.
Plum also claims that, if we reject its view that the eighty percent rental credit was extended to June 30, 2011, then Mineral's pledge of the Komatsu trucks must be voided as performed without consideration, and those trucks were thereby owned by Mineral when auctioned. Appellant's brief at 22. This viewpoint is also premised upon the faulty foundation that the November 12, 2009 agreement lacked consideration because BME's deferral of, as opposed to relinquishment of the right to, past-due rent cannot be considered valid consideration for the November 12, 2009 agreement. Once again, however, Plum overlooks the other aspects of the agreement constituting consideration paid by BME for the trucks in the form of receipt of less rent. We therefore reject Plum's challenges to the trial court's conclusion that BME owned all of the items auctioned by Yoder.
We now examine the issue of attorneys' fees. We find that Plum waived its present challenges to the award of attorneys' fees to Yoder. The record substantiates that Yoder's motion for attorneys' fees was filed on March 23, 2012, and that there was a notice of presentment affixed to the cover of the motion. The notice of presentment stated that the motion would be presented to the jurist who decided the matter on Wednesday, March 28, 2012, at 9:00 am. Yoder's counsel certified that he served a copy of the motion for attorneys' fees upon counsel for Plum by means of United States mail on March 22, 2012.
Plum never filed any type of responsive pleading to the motion. On appeal, Yoder states that Plum also failed to appear at the March 28, 2012 argument, and Plum does not contest that representation. Additionally, on appeal, Plum does not claim that it did not receive the copy of the motion that was mailed to it. After the order was entered awarding Yoder attorneys' fees, Plum did not file any type of motion for reconsideration or other challenge to the proceedings involving the award of attorneys' fees.
In light of the above facts, it is clear that Plum failed to preserve any challenges to the award of attorneys' fees by neglecting to: 1) file an answer to the motion; 2) to appear at the noticed argument; and 3) to present its current complaints to the award of attorneys' fees to the trial court at any point during the trial court proceedings. In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010) ("Our rules of appellate procedure mandate that 'issues not raised in the lower court are waived and cannot be raised for the first time on appeal.' Pa.R.A.P. 302(a). By requiring that an issue be considered waived if raised for the first time on appeal, our courts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue."). For these reasons, we affirm the order awarding attorneys' fees to Yoder in this garnishment action.