McKean, S. v. Yackanin, K. (memorandum)

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J-A13025-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 STEVE MCKEAN D/B/A MCKEAN CUSTOM HOMES IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. KATHY YACKANIN Appellant No. 2733 EDA 2013 Appeal from the Judgment Entered August 30, 2013 In the Court of Common Pleas of Pike County Civil Division at No(s): No. 1885-2008-CIVIL BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.* MEMORANDUM BY MUNDY, J.: FILED JUNE 19, 2014 Appellant, Kathy Yackanin, appeals from the August 30, 2013 judgment of $40,279.80 entered in favor of Appellee, Steven McKean d/b/a McKean Custom Homes (McKean), in this breach of contract action. After careful review, we affirm. The trial court has set forth the relevant facts and procedural history as follows. This matter arises from disputes involving construction of a residential home which [], Steven McKean d/b/a McKean Custom Homes, agreed to construct for [Appellant], for the contract price of $429,625.00. The parties originally entered [into] a construction agreement dated February 7, 2002, ____________________________________________ * Former Justice specially assigned to the Superior Court. J-A13025-14 which was later signed by [Appellant] on March 7, 2002. Between July 2003 and October 2006, the parties entered various change orders of construction, which delayed the project and added to the overall cost. Disputes arose between [McKean] and [Appellant] near the end of construction as to allegedly unfinished or un-workmanlike items of construction. [McKean] first filed an action for breach of contract and unjust enrichment against [Appellant] [o]n October [6,] 2008. The [c]omplaint was reinstated in 2009 and [McKean] filed an [a]mended failure to attach the original agreement. [McKean] filed the [a]mended complaint on July 15, 2009, alleging that [Appellant] failed to pay $40,979.80, the agreed-upon cost of additional work [McKean] had performed on the house. [Appellant] responded [on October 13, 2009,] with an [a]nswer and [n]ew by the statute of limitations. Additionally, [Appellant] brought a [c]ounterclaim alleging [McKean] failed to complete various items of construction and other items were not constructed in a workmanlike manner. [The parties proceeded to a non-jury trial,] held on March 9, 2012 and March 15, 2013. After presented, and other evidence, th[e trial c]ourt issued an [o]rder on June 28, 2013 (Affirmed by [a]mended [o]rder on July 17th 2013) in favor of [McKean] and against [Appellant] in the amount of [m]atter and [c]ounterclaim. Trial Court Opinion, 12/2/13, at 1-2. On July 24, 2013, Appellant filed timely a post-trial motion. The trial court denied said motion on July 31, 2013. Thereafter, on August 30, 2013, -2- J-A13025-14 McKean filed a praecipe for entry of judgment, which was entered the same day. On September 30, 2013, Appellant filed a timely notice of appeal.1 On appeal, Appellant raises the following issues for our review. 1. Did the [trial c]ourt err or abuse its discretion in finding that the identity of the contracting party was immaterial where [Appellee] identified the contracting party as McKean Custom Homes, a partnership, and where [Appellee] was Steven McKean d/b/a Custom Homes? 2. Did the [trial c]ourt err or [] abuse its discretion in determining that the statute of limitations did not start to run until October of 2006? 2 Ap determining that Steven McKean d/b/a McKean Custom Homes was the party that entered the initial Id. at 13. and all subsequent agreements with Speci assignment to or authorization for Steven McKean to sue on behalf of the ____________________________________________ 1 We note that the 30th day from August 30, 2013, fell on Sunday. However, weekends are excluded from our computation of time. See 1 Pa.C.S.A. § 1908 (providing that when the last day of a calculated period of time falls on a Saturday or Sunday, such day shall be omitted from the computation). was timely. Appellant and the trial court have complied with Pa.R.A.P. 1925. 2 We note that Appellant sets forth her arguments in reverse order in her brief. However, for ease of our discussion we have elected to address them in the order stated in her questions presented. -3- J-A13025-14 Id. witnesses testified distinctly to the existence of the partnership, and the Id. Id. at 11. Appellant argues the trial Therefore, cou Id. th See Brief at 11-14. Pennsylvania Rule of Appellate Procedure 2119(a) requires that the argument section of an appellate br citation of This Court will not consider an argument where an appellant fails to cite to any legal authority or otherwise develop the issue. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 constitutes waiver of the claim denied, 69 A.3d 603 (Pa. 2013). appeal Nevertheless, as we can discern the -4- J-A13025-14 Appellant points to Pennsylvania Rule of Civil Procedure 2127 noting that sai Rule 2127. Liquidators Actions by Partnerships and (a) A partnership having a right of action shall prosecute such right in the names of the then partners trading in the firm name, in the following Pa.R.C.P. 2127(a). Custom Homes is a partnership made up of Steven and Rory McK 12. [Appellant] alleges that the proper party is a partnership and seeks to overturn the [trial cou judgment based on a technicality, that the pleadings violated Pa.R.C.P. 2127. However, review of the 2002 contract reveals that the contract was signed by [Appellant] and Stephen McKean, listed as Contractor, McKean Custom Homes. After hearing all of the evidence in this matter, the [trial court] found that Stephen McKean d/b/a McKean Custom Homes was indeed the party that entered the initial and all subsequent agreements with [Appellant]. Trial Court Opinion, 12/2/13, at 3. A review of the record by the record. See trial court and McKean both argue, the time for Appellant to challenge -5- J-A13025-14 /b/a McKean Custom Homes has passed. In its Rule 1925(a) opinion, the trial court [McKean] has been identified since the initiation of proceedings in 2008 as Steven McKean d/b/a McKean Custom Homes. [Appellant] possessed copies of the pleadings and the contracts executed between the parties, yet failed to object to on March 1[5], 2013. [Appellant] could have filed a preliminary objection pursuant to Pa.R.C.P. 1028(a)(5) for lack of capacity to sue, but instead allowed the litigation to proceed for approximately defenses and objections which are not presented See Pa.R.C.P. 1028; Pa.R.C.P. 1032. [Appellant] identity and should not be permitted to do so at this time. Trial Court Opinion, 12/2/13, at 3. We agree. See Erie Indem. Co. v. Coal Operators Cas. Co., 272 A.2d 465, 467 (Pa. 1971) he issue of incapacity to sue is waived unless it is specifically raised in the form of a preliminary objection or in the answer to the Accordingly, because Appellant never raised a challenge in her preliminary objections or answer, new matter and counter claim, Appellant Steven McKean d/b/a McKean Cust issue fails. -6- J-A13025-14 In her second issue, Appellant argues the trial court abused its discretion in determining that the statute of limitations did not start to run ange orders/extras alleged by [McKean] occurred on July 16, 2003, and the latest on December construction agre - redundant demand for payment occurred on or about December 14, 2004[, but the law]suit was not commenced until March 6, 2009, more than four (4) years beyond the most recent original invoice payment, and nearly six (6) years from [the] July 2003 change orders and the time the homeowner took Id. thing to happen on October 17, 2006 was an attempt by the contractor to provide credits for Id. at 8. Our review is guided by the following. statute of limitations has run on a claim is usually a question of law for the trial judge, but, at times, a factual determination by the jury may be Sch. Dist. of Borough of Aliquippa v. Md. Cas. Co., 587 A.2d 765, 768 (Pa. Super. 1991). [E]xcept in circumstances where another limitations period explicitly applies, an action upon a written contract, including a contract for the construction of real estate such as is at issue here, is subject to the four-year period of limitations explicitly provided -7- J-A13025-14 Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., 842 A.2d 334, 349 (Pa. 2004); see also 42 Pa.C.S.A. § the following actions and proceedings must be applicable. The parties, however, dispute the final date that triggered the statute of limitations to run. filed within the statute of limitations for the following reasons. The [trial c]ourt was presented with evidence in 2002, the parties continued to enter various agreements through October 2006 providing for changes or additions to construction project. Even if the statute of limitations period began to run construction in October 2006, [McKean] was well within the four year period when filing the Complaint in October 2008. Trial Court Opinion, 12/2/13, at 4. On the contrary, Appellant argues as follows. [Appellant] made a final payment in October 2003 upon occupying the dwelling and refused payment unless the contractor finished the house. Admittedly, he did not finish and [Appellant] made no further payments. The contractor provided no work on 2004, and there is no evidence to support any work on the claimed extras beyond that date. -8- J-A13025-14 of contract occurred in October of 2003, not in October of 2006. Id. plaintiff must establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) result Albert v. Erie Ins. Exch., 65 A.3d 923 (Pa. Super. 2013), citing McShea v. City of Phila., 995 A.2d 334, 340 (Pa. 2010) (citation omitted). conclusion that the breach of contract occurred in 2006, and therefore, Instantly, McKean attached to its complaint the original agreement entered into by the parties on February 7, 2002, and the subsequent invoices for payments, as well as an adjustment for credits to Appellant, ranging through October 2006. See 7/15/09, at Exhibits A-B. Said invoices are dated, July 16, 2003, December /08, Exhibit A. Further in its complaint, McKean noted that throughout construction of evidenced by the invoices. Id. at ¶¶ 5-6. A review of the trial testimony supports this contention. At trial Steven McKean testified that the original contract included a specification sheet with a price for each aspect of the construction of the -9- J-A13025-14 home. N.T., 3/9/12, at 13. Throughout the construction of the home, changes were made based on App then charged to Appellant in change orders as an additional cost beyond the 2002 contract price. Id. at 18. Steven McKean further testified that they ouse in October 2003, with the last work on the house being in April 2004. Id. at 30, 52.3 At trial, Rory McKean noted that at all times, he was willing to how to finish the projects that remained incomplete at the time they ceased working on the house, i.e., the fireplace tile and outdoor handrails. 3/15/13, at 25. N.T., In October 2006, Steven McKean stated that he and Appellant communicated that she wanted credits for work tha 3/9/12, at 33; N.T., 3/15/13, at 165. On October 17, 2006, Steven McKean mailed Appellant the invoice with the credits that were going to be given to Appellant for work that had not been completed. Id. at 34. McKean ____________________________________________ 3 We note, however, that Steven McKean also testified that they returned to sustained mice damage. N.T., 3/9/12, at 91. Further, Rory McKean, Steven ed on the house in 2005. N.T., 3/15/13, at 24. - 10 - J-A13025-14 received no further payment from Appellant, accordingly, the instant breach of contract action was subsequently initiated. The trial court, weighing the evidence in the record, concluded that constituted a breach of contract, and that Appellant owed McKean the outstanding balance of $40,279.80 as evidenced by the invoices. Trial Court Order, 7/17/13, at 3. Based on our own independent review of the testimony of record, and the final invoice filed on October 17, 2006, said date is the earliest possible date that could have triggered the four-year statute of limitations period to filed within the fourfails. waived or devoid of merit. Therefore, we affirm the tr 2013 judgment of $40,279.80 entered in favor of McKean. Judgment affirmed Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/19/2014 - 11 -

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