February 21, 2014
BLUE BARN REALTY, LLC Appellant
WESTERN EXPRESS, INC. Appellee
Appeal from the Judgment Entered June 3, 2013 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2011-C-3298
BEFORE: BENDER, P. J., LAZARUS, J., and FITZGERALD, J. [*]
Blue Barn Realty, LLC ("Blue Barn") appeals from the judgment entered in its favor, against Western Express, Inc. (Western), in the amount of $109.73, by the Court of Common Pleas of Lehigh County on June 3, 2013. After careful review, we affirm.
The underlying facts of this case are as follows. On April 19, 2011, Blue Barn, the owner of a large property in Allentown, entered into a 13-month lease with Western, a freight hauler, beginning May 1, 2011. Western agreed to pay $8,000 per month plus utilities to lease a storage building, garages, a mobile office and thirty parking spaces for tractor-trailers. Western paid rent for May through August 2011.
In August 2011, Western moved its equipment from Blue Barn's property to a facility in Northampton County, and informed Blue Barn that it was terminating the lease.
On September 16, 2011, Blue Barn filed a complaint against Western, seeking, inter alia, nine months' rent ($72,000) plus the cost of repairs for damage to its property caused by Western.
A non-jury trial took place on December 27, 2012, before the Honorable J. Brian Johnson. On January 2, 2013, Judge Johnson issued an opinion containing findings of fact and conclusions of law. Judge Johnson found that Michael Kritsak, the president of Blue Barn, demanded that Western vacate the property. The court concluded that by leaving the property at Blue Barn's request, Western was no longer obligated to pay rent.
The court found that Western owed Blue Barn $2,307.13 for utilities and $5,800 for damage to the property. Because Blue Barn retained an $8,000 security deposit from Western, it ordered Western to pay Blue Barn $107.13.
On January 11, 2013, Blue Barn filed a motion for post-trial relief seeking judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. The trial court denied the motion by order dated May 14, 2013, and judgment was entered on June 3, 2013.
This timely appeal followed in which Blue Barn raises one issue for our review:
Given the requisite standard of proof necessary to qualify as "clear, precise and convincing evidence," did the disputed testimony of [Western's] witnesses, contradicted by [Western's] own correspondence and pleadings, fail as a matter of law to establish an oral modification of the written lease provision prohibiting oral modification?
Brief of Appellant, at 9.
We apply the following standard of review from an order denying a motion seeking JNOV.
In reviewing a trial court's decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. Our standard of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical. We will reverse a trial court's grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.
There are two bases upon which a judgment N.O.V. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa. Super. 2002) (citation omitted).
The lease between Blue Barn and Western provides for modification "only by a writing signed by the party against whom such modification is sought to be enforced." As this Court recognized in ADP, Inc. v. Morrow Motors, Inc., 969 A.2d 1244 (Pa. Super. 2009):
Although the [a]greement states that it cannot be altered except in writing, the law in this jurisdiction holds otherwise, to-wit:
[A] written contract may be orally modified, even when the contract expressly provides that modifications must be in writing. [. . .] Somerset Community Hospital v. Mitchell, 685 A.2d 141 (Pa. Super. 1996). As Somerset indicates, "an agreement that prohibits non-written modification may be modified by [a] subsequent oral agreement if the parties' conduct clearly shows the intent to waive the requirement that the amendments be made in writing." Finally, an oral modification of a written contract must be proved by clear, precise and convincing evidence.
Finn v. Finn, 737 A.2d 760, 764 (Pa. Super. 1999) (citations omitted). Accord Solazo v. Boyle, 76 A.2d 179, 180 (Pa. 1950) ("It is true that a written contract may be modified by parol.").
ADP, supra, at 1249-50.
At trial, Blue Barn's position was that Western breached the lease by vacating the premises and failing to pay any further rent. Western's position was that it was not in breach of the lease because it vacated Blue Barn's premises at the direction of the president of Blue Barn, Michael Kritsak. In support of its position, Western presented the testimony of two employees, William Vaughan and Erik Morrison.
The following exchange took place between counsel for Western and Vaughan:
Q: Now, did there come a point in mid-July when you had discussions with either Mr. or Mrs. Kritsak?
A: Yes, sir.
Q: Could you tell the Court when and what discussions you had with them?
A: I think, I believe it was July the 19th, I had a conversation with our tech a prior week before. He was having some issues. I came down and had a chat with Mike and he showed his displeasure[;] he was upset and did not want us on the property.
Q: And what exactly did Mike say to you and to the best, as best as you can recall, what were the exact discussions that Mike had with you at that, on the 19th?
A: That it would be fine with him if we found somewhere else to go.
Q: And did you ask Mike what he meant by that?
A: We were discussing – I don't know his exact words, but he did, he did stress his strong opinion that he did not want us on the property anymore, that we'd need to look elsewhere. It was kind of an abrupt and loud conversation, something we didn't want to get tied up in, so we just kind of walked away and let it fall.
N.T. Trial, 12/27/12, at 126.
The following exchange also took place between counsel for Western and Morrison:
Q: Did you come to the property to address any problems that were on-site?
A: I had come to the property to address several problems that were on-site.
Q: And what were the problems that you were there to address with the landlord?
A: That he was unhappy with the number of vehicles that we had on the yard and also the space that we were occupying on the yard as well.
Q: Did you have a meeting with him during in or about July 19th to 21st?
A: I did.
Q: And, do you recall, could you tell the Court the circumstances of the meeting and what transpired at that meeting?
A: When I first arrived, he had expressed his displeasure with where we were parked on the yard. And me, and Mr. Vaughan and the entire staff that worked at that facility had stayed until about, I guess 7:30 or 8:00 that evening and moved our vehicles to our assigned spaces.
I took some pictures that evening and sent them to Mr. Kritsak. And it was the following morning where he came to me and told me that, that he didn't care that we had moved our vehicles, that he was still unhappy with us and that he would be willing to separate the lease at that time with no penalty.
Id. at 167-68.
The following exchange took place between counsel for Western and Kritsak:
Q: Do you remember meeting on the site on or about July 19th or 20th of 2011?
A: Yeah. He was, he was there, yes.
Q: Which "he" was there?
A: On the site.
Q: Mr. Morrison or Mr. Vaughn?
A: One of them.
Q: Okay. Now do you remember talking to him about your dissatisfaction at that moment with them on the site?
Q: Do you remember telling them it was OK to leave?
A: No, I never say [sic] that.
Id. at 67.
Here, the trial court determined that Kritsak was not credible.
In a nonjury trial, the trial judge sits as the finder of fact. The weight to be assigned to the testimony of the witnesses is within the exclusive province of the fact-finder. The trial court, as sole assessor of credibility may believe all part or none of the evidence presented. Absent an abuse of discretion we will not disturb a trial court's findings of fact if they are supported by the record.
Lou Botti Const. v. Harbulak, 760 A.2d 896, 898 (Pa. Super. 2000) (citations omitted).
The trial court specifically found that Kritsak was not credible when he denied telling Western to leave the property. However, it specifically credited the testimony of Western's employees Vaughan and Morrison to the contrary.
Because the trial court did not credit Kritsak's testimony, the credible testimony of Vaughan and Morrison, which was uncontradicted by any credible testimony, constitutes clear, precise and convincing evidence of an oral modification of a written agreement. See ADP, supra.