Opinion
J-A22027-17 No. 898 EDA 2017
11-13-2017
TRIANGLE HOME INVEST, LLC AND HOWARD M. DUNETZ v. KAHEEL COMPANY, LLC, HERBERT J. TOY A/K/A HERBERT JOHN TOY A/K/A HERBERT JOHN TOY, III, JABRIER COMPANY, LLC AND TERREY MANAGEMENT, CO., INC. APPEAL OF: KAHEEL COMPANY, LLC AND HERBERT J. TOY A/K/A HERBERT JOHN TOY A/K/A HERBERT JOHN TOY, III
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered March 28, 2017
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2012-C-1107 BEFORE: BOWES, J., LAZARUS, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Kaheel Company, LLC, et al. ("Kaheel Company") appeals from the judgment, entered in the Court of Common Pleas of Lehigh County, in favor of Triangle Home Invest, LLC ("Triangle Home") on Count Two-Unjust Enrichment, Count Three-Intentional and Fraudulent Misrepresentation, and Count Six-Conversion, in the amount of $289,000.00. After careful review, we affirm on the basis of the well-reasoned opinion of the Honorable Michele A. Varricchio. See Trial Court Opinion, 12/22/16, at 1-42.
The trial court found in favor of Kaheel Company on Count One-Breach of Contract and Count Five-Negligence and dismissed Count Four-Fraud as duplicative.
In her Pa.R.A.P. 1925(b) opinion, Judge Varricchio set forth the relevant factual and procedural background of this incredibly complicated and unusual case, which we adopt for the purpose of this appeal.
Triangle Home raises the following issues on appeal:
1. [Triangle Home] failed to prove by clear and convincing evidence that [Kaheel Company] made representations of existing facts which were untrue and upon which [Triangle Home] justifiably relied.Brief of Appellant, at 4.
2. [Triangle Home] failed to prove by a fair preponderance of the evidence that Kaheel was undercapitalized; that it failed to adhere to corporate formalities; that it and Toy substantially intermingled corporate and personal affairs; or that the corporate form was used to perpetuate fraud.
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 and quotations omitted).
Instantly, the trial court rendered a verdict in favor of Triangle Home on the counts of unjust enrichment, intentional and fraudulent misrepresentation, and conversion. The elements of unjust enrichment are
benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. The most significant element of the doctrine is whether the enrichment of the defendant is unjust; the doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff.Northeast Fence & Iron Works , Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664, 670 (Pa. Super. 2007) (citation omitted). Here, the trial court found Kaheel Company had (1) been enriched by $237,500.00 by retaining funds tendered to it by Triangle Home and failing to make interest payments and complying with the terms of acknowledgement agreed upon by the two parties, and (2) appreciated the benefit of being able to pay for its operating and business expenses with the investment from Triangle. The trial court correctly determined it would be inequitable for Kaheel Company to accept and retain benefits from Triangle Home's investment without reciprocal payment of value. Northeast Fence and Ironworks , Inc., supra.
Triangle Home sustained further losses in the amount of $52,500.00 from the non-payment of quarterly interest payments. Thus, the trial court entered a verdict in the amount of $289,000.00 in favor of Triangle and against Kaheel Company and Herbert Toy.
Next, the trial court found Kaheel Company liable for intentional misrepresentation. In Bortz v. Noon , 729 A.2d 555 (Pa. 1999), our Supreme Court held that the elements of intentional misrepresentation are:
(1) A representation;Bortz , 729 A.2d at 560. Kaheel Company purported to have silent partners who had contributed between $650,000.00 and $750,000.00, which the trial court found was untrue. Accordingly, the trial court correctly determined this constituted a material misrepresentation that induced Triangle Home to invest $250,000.00 in Kaheel Company's real estate venture.
(2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on it;
(5) justifiable reliance on the misrepresentation; and,
(6) the resulting injury was proximately caused by the reliance.
Lastly,
[c]onversion is a tort by which the defendant deprives the plaintiff of his right to a chattel or interferes with the plaintiff's use or possession of a chattel without the plaintiff's consent and without
lawful justification. A plaintiff has a cause of action in conversion if he or she had actual or constructive possession of a chattel at the time of the alleged conversion. Money may be the subject of conversion. However, the failure to pay a debt is not conversion.Pittsburgh Construction Co. v. Griffith , 834 A.2d 572, 581-82 (Pa. Super. 2003) (quotations and citations omitted). The trial court correctly determined that an agent of Kaheel Company took as a personal draw $16,457.65 from an account in which Triangle had an ownership interest. The trial court found this constituted a conversion of Triangle's investment funds. Pittsburgh Construction Co., supra. We agree.
The total verdict owed to Triangle Home is $289,000.00, of which Terrey Management Co, Inc. is jointly and severally liable for $16,457.65. --------
After reviewing the parties' briefs, the record, and the relevant case law, we conclude that Judge Varricchio's well-reasoned opinion thoroughly and properly disposes of the questions Kaheel Company raises on appeal. Accordingly, we affirm on the basis of Judge Varricchio's opinion. We direct the parties to attach a copy of the opinion in the event of further proceedings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/2017
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