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[U] Smith v. Dayieb

Superior Court of Pennsylvania

February 25, 2014

KIM SMITH
v.
GEORGE M. DAYIEB, JR., PATRICK M. TOLAN T/D/B/A ARBOR TREE SPECIALISTS AND ARBOR TREE SPECIALISTS, INC. APPEAL OF: GEORGE M. DAYIEB, JR.

NON-PRECEDENTIAL DECISION

Appeal from the Order December 10, 2012 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 02-024743

BEFORE: PANELLA, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM

PANELLA, J.

Appellant, George M. Dayieb, Jr., appeals from the order entered on December 10, 2012, which dismissed Dayieb's complaint asserting a breach of a real estate sales agreement against Appellee, Kim Smith. After careful review, we reverse and direct the Prothonotary of Allegheny County to enter judgment in favor of Dayieb on his claim for specific performance.

This is the third time this case has been before this Court on appeal. In the first appeal, we set forth the factual background of the case as follows:

[Smith] lives on a farm located along Maple Spring Drive, Bethel Park, and that farm consists of approximately ten acres of land.
On September 18, 2002, [Smith] executed an agreement of sale with [Dayieb] and agreed to allow him to purchase four acres of her land for $50, 000.
The purpose of the agreement was to divide [Smith's] property into two parcels and was contingent upon subdivision approval by the municipality as [Dayieb] planned to develop the four acres that he was to purchase under the agreement. In the agreement, the seller is listed as living at Maple Spring Drive, Bethel Park, and the property to be sold is described as "Irishtown Road. To the agreed upon amount, 4 acres." It is further described as "part of Lot and Block Number 888-A-120 and DBV 9715, page 409." As noted, [Smith] owns approximately ten acres along Maple Spring Drive at that lot and block and in that deed description.
Attached to the agreement was a graphic outline executed by both parties and labeled "agreed upon configuration of subdivision." This schematic diagram specifically outlined the property to be kept by [Smith] from the ten-acre larger parcel was outlined with precise footage along each line. [Dayieb] tendered [Smith] $10, 000 in hand money and started to clear the acreage he was planning to develop.
[Smith] repudiated her agreement, claiming that [Dayieb] began to cut trees and clear acreage on a portion of the land that she believed she had retained under the agreement. She instituted this action against [Dayieb] and the company responsible for cutting some of the trees on the land. Her complaint contained claims for conversion of timber, trespass, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and rescission. [Dayieb] then instituted a separate action for breach of contract, specific performance of the agreement of sale, and unjust enrichment. He averred that [Smith] decided to repudiate the contract because she received an appraisal that indicated the four acres were worth $80, 000. On April 21, 2003, the trial court entered an order consolidating the two actions and ruling that the allegations in [Dayieb's] action were to be treated as counterclaims in [Smith's] action.
[Smith] moved for summary judgment on [Dayieb's] counterclaim for specific performance of the agreement of sale. She averred that the land to be conveyed by her was not sufficiently described in the agreement so as to satisfy the Statute of Frauds, 33 P.S. § 1. In a pretrial order, the trial court granted that motion on the basis that the agreement of sale was not sufficient to meet the requirements of the Statute of Frauds because the land was not sufficiently described in that document.
[Smith] settled with the tree company. After a pretrial conciliation, all of the claims that [Smith] had filed against [Dayieb] were resolved. The unjust enrichment claim filed by [Dayieb] became the sole pending matter that proceeded to a nonjury trial. [Dayieb] averred that he had improved the land. The trial court rejected [Dayieb's] position, but did award him the hand money that he had tendered under the agreement of sale.

Smith v. Dayieb, 919 WDA 2008, at *1-4 (Pa.Super. 2009) (unpublished memorandum) ("Smith I").

Dayieb then filed an appeal to this Court, raising only the trial court's grant of summary judgment on his claim for specific performance as an issue. This Court reversed, concluding that the agreement of sale sufficiently described the parcel of land to be sold to satisfy the statute of frauds. See id., at *6-8.

Upon remand, the trial court held a non-jury trial on Dayieb's claim for specific performance, and via an order dated December 31, 2009, found in favor of Smith. The trial court "concluded that the sales agreement and attached diagram were not sufficient to establish the land to be conveyed." Smith v. Dayieb, 803 WDA 2010, at *11 (Pa.Super. 2011) ("Smith II"). Furthermore, the trial court concluded that the sales agreement included the grant of an easement to Smith that was too vague to permit the remedy of specific performance. See id., at *12. Finally, the trial court held, sua sponte, that Smith's current mortgagor was an indispensable party that had not been joined in the case.

On appeal from the December 31, 2009, order, this Court held that the Smith I panel had determined that the sales agreement was sufficiently specific in describing the land to be conveyed: "In Dayieb's previous appeal, this Court plainly addressed the issue of whether the documents in question satisfied the statute of frauds and unequivocally concluded that the property to be conveyed by Smith to Dayieb was adequately described …." Id., at *11. Furthermore, the Smith II panel reviewed evidence at trial and independently concluded that the sales agreement "provided sufficient detail concerning the description of the land to be exchanged." Id., at *12. As such, the Smith II panel was "compelled to reverse … the conclusion that Dayieb is not entitled to specific performance." Id.

Similarly, the Smith II panel ruled that the trial court had erred in holding that the language granting Smith an easement was too vague to permit the grant of specific performance: "[W]e do not agree that the language destroys the viability of the sales agreement as a contract for the sale of land." Id., at *13.[1] Finally, the Smith II panel concluded that the trial court erred in finding that Smith's mortgagor was an indispensable party to the action. See id., at *16. As a result, the Smith II panel reversed the judgment and "remanded for appropriate actions in furtherance of specific performance." Id., at 17.

Upon the second remand, a pre-trial conference was held on March 31, 2012. After the conference, each party submitted pre-trial motions. In her omnibus motion, Smith averred that the Smith II panel had not addressed Dayieb's claim for breach of contract; that the scope of the easement at issue was subject to a material dispute of fact, and; that the Smith II panel had not foreclosed upon equitable defenses to Dayieb's claim for specific performance. No dispositive motions were set forward by Smith.

Dayieb filed two separate motions. First, Dayieb moved for the recusal of the trial judge. Second, Dayieb argued that the Smith II panel had directed the entry of a judgment of specific performance in his favor; the only issues for trial were the establishment of the boundaries of the land conveyed and the scope of the easement in favor of Smith.

The trial court heard arguments on these motions on May 2, 2012. On July 31, 2012, the trial court entered an order: 1. Denying Dayieb's motion for recusal; 2. Reiterating its prior finding that Dayieb's conduct deprived him of the benefit of equitable relief in this matter; 3. Declared that granting specific performance to Dayieb would be a manifest injustice to Smith, and therefore declined to grant such a remedy to Dayieb; 4. Reiterated its conclusion that the easement language was too vague to permit specific performance as a remedy, and; 5. Awarded Dayieb a refund, without interest, of his $10, 000 payment to Smith. Dayieb filed a motion for reconsideration on the issue of recusal, which the trial court denied via order dated September 7, 2012. Dayieb subsequently praeciped to place the case on the trial list, but on December 10, 2012, the trial court entered an order dismissing the case with prejudice. Dayieb appealed from the December 10th order.

As an initial matter, we must determine whether Dayieb's appeal is from a final order. This Court only has jurisdiction over appeals from final orders. See 42 Pa.Cons.Stat.Ann. § 742. A final order is an order that "disposes of all claims and of all parties[.]" Pa.R.A.P., Rule 341(b)(1), 42 Pa.Cons.Stat.Ann. To perfect an appeal from a final order, an appellant must file an appeal "within 30 days after the entry of the" final order. Pa.R.A.P, Rule 903(a), 42 Pa.Cons.Stat.Ann.

Smith and the trial court argue that the July 31, 2012, order constitutes the final order in this matter, as it disposed of all claims and all parties. The procedural posture of the trial court's July 31st order is unclear from the record before us. No dispositive motions were currently before the trial court when it issued the order. The trial court characterized the posture of the order as being pursuant to a review of the testimony in the first trial in this litigation. See Trial Court Opinion, 2/22/2013, at 4. As such, we conclude that the July 31st order is best characterized as a non-jury verdict with accompanying conclusions of law.[2]

The final order giving rise to a right to appeal in civil matters that have proceeded to trial is recognized as the judgment entered subsequent to the resolution of post-trial motions. See Fanning v. Davne, 795 A.2d 388, 391 (Pa.Super. 2002), appeal denied, 573 Pa. 697, 825 A.2d 1261 (2003). Our review of the certified record indicates no such subsequent judgment has been entered in the trial court. Accordingly, there technically is no final, appealable order in this matter. However, when it appears, as here, that the order appealed from was intended to be the final pronouncement on the dispute in the trial court, we may ignore the procedural defect and address the appeal on the merits. See id. at 391-392. Thus, we will accept that the December 10, 2012, order entered by the trial court was intended to be the final pronouncement on the dispute by the trial court and proceed to address the merits of this appeal.

The crux of Dayieb's issues on appeal is that the trial court has repeatedly failed to follow the decisions of this Court upon remand. Smith and the trial court contend that the latest order denied specific performance to Dayieb on grounds not covered by this Court's order in Smith II. After a careful review of the Smith II memorandum, we are constrained to disagree with Smith and the trial court.

In Smith II, this Court reversed the trial court for the second time in this matter. The memorandum explicitly dealt with three issues. First, the Court held that the trial court had erred in concluding that the description of the property to be conveyed was insufficient under the Statute of Frauds. Second, the Court held that the trial court had erred in concluding that the language granting Smith an easement to the rear of the property was insufficiently specific to allow for specific performance. Third, the Court held that the trial court had erred in concluding that Smith's mortgagor was an indispensable party to the litigation. The Court then ended the opinion in the following manner:

In light of our disposition of the first three issues in this case, we need not reach the merits of Dayieb's two remaining issues, i.e., whether the trial court demonstrated prejudice and bias against Dayieb, and whether the trial court erred in determining that Dayieb's expert witness reversed his opinion.
Judgment reversed. Case remanded for appropriate actions in furtherance of specific performance. Jurisdiction relinquished.

Smith II, at *17.

This final passage makes clear that this Court considered the issue of whether Dayieb was entitled to specific performance settled. The final two issues could not be moot if there was still any chance that Smith could successfully defend against the claim for specific performance. Furthermore, the order line of the memorandum does not remand for further proceedings; it remanded for "appropriate actions in furtherance of specific performance." (emphasis supplied). Accordingly, we conclude that the issue of whether Dayieb is entitled to specific performance has been decided contrary to the trial court's July 31, 2012, and December 10, 2012, orders. We therefore must reverse.

It is furthermore clear that the trial court disagrees with this Court's prior pronouncements in this case. It has made its disagreements explicit through the transcripts and its opinions. See N.T., 5/2/2012, at 16 ("[W]hile we like to believe that our appellate courts are infallible, they are not."); N.T., 8/30/2012, at 4 ("I don't know how the Superior Court can believe that these matters of dispute are details that can be worked out at the closing."); Trial Court Opinion, 7/31/2012, at *16-18 ("I also respectfully suggest that the basis for the remand is in error … I know of no legal basis on which I could re-write the rear access language when these parties themselves could not resolve the dispute."); Trial Court Opinion, 12/12/2012, at 10-12 (concluding that the lead memorandum in Smith II was clearly erroneous). As a result, we conclude that the trial court will not follow this Court's directions upon a remand. We therefore will not waste the parties' or the court system's time and resources further by remanding this case to the trial court. Instead, we hereby direct the Prothonotary of Allegheny County to enter judgment in favor of Dayieb on his claim for specific performance. See 42 Pa.Cons.Stat.Ann. § 542; Cipa v. Metropolitan Life Ins. Co., 38 A.2d 518, 520-521 (Pa.Super. 1944).

Order reversed. Prothonotary of Allegheny County directed to enter judgment in favor of Dayieb on Dayieb's claim for specific performance. Jurisdiction relinquished.

Judgment Entered.


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