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[U] Lewis v. Kim

Superior Court of Pennsylvania

February 26, 2014

LUA KIM, Appellant


Appeal from the Order entered April 11, 2013, in the Court of Common Pleas of Bucks County, Civil Division, at No(s): 12531-2010




Lua Kim ("Appellant"), appeals from the trial court's verdict in favor of Craig Lewis ("Lewis"), following a non-jury trial regarding the partition of a residence which had been owned by Appellant and Lewis as tenants in common. We affirm.

The trial court set forth the factual history and posture of this case as follows:

Craig Lewis ("Lewis") and [Appellant], ([Appellant] with Lewis collectively "the Parties") met and began dating in 2007 and were engaged in 2008. When the Parties met, Lewis owned property in his name alone in Philadelphia, Pennsylvania ("Philadelphia property") and [Appellant] owned property in her name alone in Jenkintown, Pennsylvania ("Jenkintown property"). On November 3, 2009, the Parties purchased property located at 506 Blackburn Court, Chalfont, Pennsylvania 18914 (the "Property") as tenants in common. When the Property was purchased, the Parties were engaged to be married with a wedding scheduled for September 2010. The purchase price for the Property was Six Hundred Thousand and 00/100 Dollars ($600, 000).
Lewis paid the initial Twenty One Thousand and 00/100 Dollars ($21, 000) down payment for the Property. [Appellant] did not contribute any monies toward the Property down payment. In order to fund the purchase of the Property, Lewis listed his Philadelphia property for sale and [Appellant] also sold her Jenkintown property. At the time the Parties had closing on the Property, Lewis' Philadelphia property had not been sold. Lewis transferred the Philadelphia property title to his father, David Lewis, in exchange for Three Hundred Twenty Five Thousand and 00/100 Dollars ($325, 000). This $325, 000 payment from David Lewis to Craig Lewis was made by a check payable to Craig Lewis individually. When the Philadelphia property sold, David Lewis received Two Hundred Twenty Five Thousand and 00/100 Dollars ($225, 000) from the sale.
After the sale, David Lewis considered the remaining One Hundred Thousand and 00/100 Dollars ($100, 000) not repaid from the Philadelphia property sale as a gift to Craig Lewis. David Lewis' intent to give the $100, 000 as a gift to Craig Lewis is evidenced in a gift letter dated September 17, 2009 which reads, "I, David A. Lewis, do hereby certify the following: I will make a gift of $100, 000 to my son, Craig Lewis, in time to close the mortgage transaction on the purchase of this home." The gift letter was signed by Craig Lewis, [Appellant], and David Lewis. The loaned and gifted funds, totaling $325, 000, from David Lewis to Craig Lewis, were placed in Craig Lewis' individual bank account, which was only in his name (held with Citizen's Bank). [Appellant's] name was never on the bank account.
At the time of settlement on the Property, Lewis withdrew Three Hundred Sixteen Thousand Five Hundred Twenty Six Dollars and 00/100 ($316, 526.00) from his individual bank account. Three Hundred One Thousand Five Hundred Twenty Six and 00/100 Dollars ($301, 526.00) was used towards the Property purchase and the remaining Fifteen Thousand and 00/100 Dollars ($15, 000.00) was used towards purchase of furniture included in the Property sale. [Appellant] did not contribute any monies toward this bank account withdrawal that paid for the Property purchase and the furniture included in the sale. The remaining Three Hundred Thousand and 00/100 Dollars ($300, 000.00) of the purchase price for the Property was funded through a mortgage that is in the names of both Lewis and [Appellant].
The Parties moved into the property in November 2009 with mortgage payments beginning in January 2010. [Appellant] resided in the Property for four months, until March 16, 2010, when the relationship between the Parties ended. During her tenure in the Property, [Appellant] made four payments of One Thousand Three Hundred and 00/100 Dollars ($1, 300.00) each to Lewis towards her share of living expenses, which totaled Five Thousand Two Hundred and 00/100 Dollars ($5, 200.00). When the relationship ended on March 16, 2010, [Appellant] vacated the Property and has not attempted to live in or move back to the Property. After [Appellant] vacated the Property, Lewis provided [Appellant] with a check for Two Thousand Five Hundred and 00/100 Dollars ($2, 500.00) reimbursing [Appellant] for a computer and three garage door openers with Four Hundred Fifty and 00/100 Dollars ($450.00) representing the equity that accumulated on the Property from the date of purchase through the date [Appellant] vacated the Property. [Appellant] cashed the $2, 500.00 check, and neither objected to the calculation nor the payment of her share of the equity in the Property.
Since [Appellant] vacated the Property in March 2010, Lewis has been in sole, exclusive possession of the Property. Since March 2010, Lewis has not denied [Appellant] access to the Property, and the locks on the Property have not been changed. Since [Appellant] vacated the Property, she has not made any payments towards the Property, including mortgage payments, taxes and insurance payments.
Lewis has paid both his and [Appellant's] share of the taxes for the Property, totaling Eight Thousand Four Hundred and 00/100 Dollars ($8, 400.00) with a Three Thousand One Hundred Seventy and 31/100 Dollar ($3, 170.31) refund. The monthly mortgage payment inclusive of taxes and insurance is Two Thousand Three Hundred Seventy Six and 12/100 Dollars ($2, 376.12) per month. Lewis has paid Eighty Three Thousand Nine Hundred Fifty Seven and 86/100 Dollars ($83, 957.86) toward the mortgage for the Property from April 2010 through February 2013. Lewis, in addition, expends One Thousand Thirty and 00/100 Dollars ($1, 030.00) per month towards the utilities for the Property. [Appellant] has not expended any funds towards the utilities on the Property while she lived there or after the Parties ended their relationship.
The current value of the Property is Five Hundred Thirty Three Thousand and 00/100 Dollars ($533, 000.00), as stipulated by the Parties during trial. The fair market rental value of the Property is Three Thousand and 00/100 Dollars ($3, 000.00) a month. The mortgage balance on the Property as of October 2, 2012 is Two Hundred Eighty Six Thousand Five Hundred Eighty and 14/100 Dollars ($286, 580.14).
A non-jury trial took place on January 22, 2013. At the conclusion of the trial, we entered our verdict in favor of Appellee, Lewis. Specifically, our April 9, 2013 Order stated:
1. Lewis is directed to take such steps as are necessary to remove [Appellant's] name from any and all financial documents and to relieve [Appellant] from any and all legal obligations related to the Property at 506 Blackburn Court, Chalfont, Pennsylvania 18914 within 180 days of the date of the Order.
2. [Appellant] shall sign a Deed of general warranty removing her name as owner of the Property within 180 days of the date of the Order.
3. Payment of all transfer taxes associated with the transfer of the Deed, if any, shall be the sole responsibility and obligation of Craig Lewis.
The Court also denied all of [Appellant's] claims for contribution and denied all other claims for relief by the Parties. On April 23, 2013, [Appellant] filed Post-trial Motions which were denied on May 17, 2013. Thereafter, judgment was entered. [Appellant] [appealed the trial court's] Order of May 17[, 2013.]

Trial Court Opinion, 7/18/13, at 2-5. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Whether the trial court abused its discretion and/or committed an error of law in determining that Pa. R. Civ. P. 1570(a)(5) permitted a "credit" for funds used to purchase real property to be employed in determining the parties' property interests in a partition action by broadly interpreting the phrase "or other amounts paid" in Pa. R. Civ. P. 1570(a)(5) to include the initial purchase price paid for the property as a basis for disregarding the clear and unambiguous language of the Deed reflecting the conveyance of the Property in question to Craig Lewis and [Appellant] as Tenants in Common, each as to an undivided interest, as required under this Court's decision in Moore v. Miller, 910 A.2d 704 (Pa.Super. 2006)?
2. Whether the trial court erred in failing to credit [Appellant] one-half of the fair market monthly rental value of the Property of $3, 000.00 per month, i.e., $1, 500.00, from March 16, 2010, when she was first excluded from the use and enjoyment of the Property, up to the date of the trial court's decision, as mandated by 68 P.S. § 101 and Sciotto v. Sciotto, 446 Pa. 414, 288 A.2d 822 (1972)?

Appellant's Brief at 5.

In reviewing this appeal, we are mindful of the following principles:

Partition of real property is governed by the Rules of Civil Procedure. See Pa.R.C.P. 1551–75[, ] [which is] a question concerning interpretation of these Rules, and thus is a question of law. Therefore, our standard of review is de novo. LaRue v. McGuire, 885 A.2d 549, 553 (Pa.Super. 2005). Further, "[p]artition is a possessory action; its purpose and effect being to give to each of a number of joint owners the possession [to which] he is entitled ... of his share in severalty. It is an adversary action and its proceedings are compulsory. The rule is that the right to partition is an incident of a tenancy in common, and an absolute right." Lombardo v. DeMarco, 350 Pa.Super. 490, 504 A.2d 1256, 1260 (1985) (quotation and citations omitted).

Bernstein v. v. Sherman, 902 A.2d 1276, 1278 (Pa.Super. 2006).

Further, since Appellant challenges the trial court's verdict following a non-jury trial, we recognize:

Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, [where] the issue…concerns a question of law, our scope of review is plenary.
The trial court's conclusions of law on appeal originating from a non-jury trial are not binding on an appellate court because it is the appellate court's duty to determine if the trial court correctly applied the law to the facts of the case.

Wyatt, Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa.Super. 2009) citing Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa.Super. 2005) (citations omitted).

Appellant's first issue contends that the trial court violated the finding in Moore v. Miller, 910 A.2d 704 (Pa.Super. 2006), and erred in interpreting Pa.R.C.P. 1570(a)(5) as allowing Lewis to be credited for the monies he expended in acquiring the property. Appellant's Brief at 29-32. Moore and its progeny provide that the language of a deed, rather than the monies contributed in acquiring a property, determines the type of interest a party has in that property. Moore, supra, at 707-708 (internal citations omitted) ("[W]e disregard the testimony and findings as to who paid the purchase money as irrelevant, immaterial and inadmissible to contradict the language of the deed [which on its face conveyed title to the parties as tenants in common]".).

Instantly, Appellant and Lewis agree that they own the property as tenants in common, with each having one-half interest in the property. Accordingly, Appellant's reliance on Moore is misplaced, particularly when Moore does not specifically address partition under Pa.R.C.P. 1570(a)(5).

Pa. R.C.P. 1570(a)(5) provides:
Rule 1570. Decision and Order [in a Partition Action]
(a) The decision shall include findings of fact as follows:
(5) the credit which should be allowed or the charge which should be made, in favor of or against any party because of use and occupancy of the property, taxes, rents or other amounts paid, services rendered, liabilities incurred or benefits derived in connection therewith or therefrom[.]

Pa.R.C.P. 1570(a)(5).

Appellant exhorts us to disavow as a Pa.R.C.P. 1570(a)(5) credit the monetary contributions that Lewis made in acquiring the property. See Appellant's Brief at 21. We are not persuaded that this would be a just result since Lewis provided over $300, 000 to the down payment, jointly and severally obligated himself to a $300, 000 mortgage, and continued to pay over $80, 000 in mortgage, taxes, and homeowners insurance since March 2010, for a home that is now worth $67, 000 less than its purchase price. N.T., 1/22/13, at 43-52. The trial court cogently observed that partitions are equitable actions where the trial court is required to fashion a result that is just under the circumstances. See Trial Court Opinion, 6/21/13, at 1. We agree with the trial court that a plain reading of Pa.R.C.P. 1570(a)(5) allows a party in a partition action to be credited for financial contributions in acquiring the property as "other monies paid" in relation to the "use, occupancy, " and enjoyment of the property. Appellant would never have obtained, let alone used or occupied, the property, albeit temporarily, but for Lewis' significant monetary contributions toward the property's purchase price. Accordingly, we affirm the trial court's exercise of its equitable powers to decree a partition order that considered Lewis' monetary contributions to the purchase of the property. See Krosnar v. Schmidt, Krosnar, McNaughton, Garrett Co., 423 A.2d 370, 374 (Pa.Super. 1980) (a partition order will be affirmed if it is supported by competent evidence, and the trial court has not misapplied the law or manifestly abused its discretion).

Appellant's second issue contends that the trial court erred in denying Appellant a monthly credit of $1, 500, equal to half of the $3, 000 monthly rental value of the property, beginning in March 2010. See Appellant's Brief at 37. Again, we find Appellant's claim to be unavailing.

A review of the record in toto reflects that after Lewis ended the relationship, Appellant did not dispute Lewis' assessment that Lewis was the only one of them who could financially afford to maintain the home. Indeed, after Appellant vacated the property, she did not share the financial obligations related to the home with Lewis. N.T., 1/22/13, at 54. Lewis never changed the locks, and he did not bar Appellant from returning to the property to retrieve belongings. Id. at 108. Lewis specifically denied Appellant's counsel's suggestion that Lewis "put [Appellant] out" of the property, and explained:

I didn't put her out. Unfortunately, I wasn't able to leave [the property] because I would have been leaving behind $350, 000. So, I let her leave and [I] took over all the expenses of the property. She no longer had to pay a single dime for the property. I said I would take over all the expenses. So I didn't put her out. Unfortunately, I wasn't able to leave, otherwise I would have.

Id. at 112. Appellant herself cites Sciotto v. Sciotto, 288 A.2d 822, 824 (Pa. 1972), which clearly provides that "exclusive possession" entitling a tenant out of possession to recover rent from a tenant in possession "means that one tenant alone occupied the property and exercised the rights of an owner such as making repairs and changes to suit his convenience without consulting the others." (emphasis supplied). Our review of the record does not support a finding that Lewis had exclusive possession by "exercis[ing] rights… to suit his convenience." This review supports the trial court's finding that Appellant was not entitled to rental credit. Accordingly, we affirm the trial court's partition order. Lombardo v. DeMarco, 504 A.2d 1256 (Pa.Super. 1985) (affirming partition order supported by record).

Order affirmed.

Judgment Entered.

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