Karden Construction Svcs., Inc. v. D'Amico, B.

J-A02037-19

2019 PA Super 279

KARDEN CONSTRUCTION SERVICES, : IN THE SUPERIOR COURT OF

INC. : PENNSYLVANIA

:

Appellant :

:

:

v. :

:

: No. 286 MDA 2018

BRIAN D'AMICO :

Appeal from the Judgment Entered April 4, 2018

In the Court of Common Pleas of Berks County Civil Division at No(s):

09-6787

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY NICHOLS, J.: FILED SEPTEMBER 13, 2019

Appellant Karden Construction Services, Inc. appeals from the judgment

entered in favor of Appellee Brian D’Amico following a new trial on damages

from Appellant’s claim of unjust enrichment. Appellant argues that the trial

court erred in finding that Appellant failed to prove damages. We affirm.

This Court previously summarized the background of this appeal as

follows:

On June 2, 2009, [Appellant] filed a complaint against Appellee,

alleging breach of contract and, alternatively, unjust enrichment.

[Appellant] alleged that, on January 4, 2007, [Appellee] entered

into an oral agreement with [Appellant] for the provision of

professional services to assist with litigation and construction

management. Specifically, [Appellant] alleged that [Appellee]

engaged [Appellant] as an expert to assist [Appellee] in a lawsuit

[Appellee] had filed against a contractor and a home inspector in

connection with the construction of [Appellee]’s new home.

[Appellant] further alleged that it rendered approximately one

hundred thirteen (113) hours of professional services to

[Appellee] from January 4, 2007 until December 8, 2008, valued

at $21,338.70 when combined with out-of-pocket expenses.

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[Appellant] alleged that [Appellee] failed to pay [Appellant] for the

professional services and, as a result, breached the oral

agreement. Alternatively, [Appellant] alleged that [Appellee]

unjustly enriched himself by retaining the benefits of the services

provided to him.

This matter proceeded to a non-jury trial, at which both parties

presented testimony. The trial court summarized the evidence as

follows:

Dennis Link has been the president and sole employee of

[Appellant] since 1999. [Appellant] is a corporation that

provides construction representation, including consulting,

and project management representation throughout the

construction of buildings, and expert reports and testimony

for arbitrations and court hearings. [Mr. Link] works for

owners, contractors, and counsel. His projects include

commercial, industrial, institutional, governmental, and

residential construction.

[Appellant] was originally hired by [Appellee’s] former law

firm for its lawsuit against a contractor. Mr. Link testified

that he first met [Appellee] in January 2007 at [Appellee’s]

home. Osmer Deming, Esquire, gave the necessary contact

information to both parties. [Appellee] needed [Appellant’s]

services for a new home which he was building. The

meeting took several hours, and afterwards Mr. Link went

to the job site. Mr. Link testified that during the meeting he

had discussed his costs as an expert witness. He had said

that the expenses would probably be $15,000.00 or possibly

$20,000.00.

Mr. Link further testified that his contracts are typically

verbal because the clients can hire or fire him at any time.

In the instant case, he did a site assessment to determine

what was done and if [the construction] was in conformance

with codes. He gave the information to [Appellee’s] former

attorneys to prepare a complaint against [Appellee’s]

contractor and home inspector and to execute a certificate

of merit. Mr. Link also stated that he communicated

regularly with [Appellee] via e-mails and telephone

conversations. Mr. Link claimed that his work for [Appellee]

evolved into a considerable amount of construction

management. [Appellee] also asked him about designs.

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By letter dated July 25, 2008 . . ., [Appellant] attached a

[$3,000.00] retainer invoice with the fee schedule discussed

between the parties in January 2007. Mr. Link testified that

he had sent this letter because he had been informed by

[Appellee’s] law firm that [Appellee] had not been paying it

for its services to [Appellee]. There is no place on the letter

for [Appellee] to sign and return it to [Appellant]. The first

page of the letter states: “Note: A retainer is required on

every engagement. The retainer is applied to the final

billing and any balance is returned at the conclusion of the

engagement.” [Appellant] did not receive any payments

from [Appellee] after the letter had been sent to him.

In January 2009 or February 2009, at the conclusion of its

services, [Appellant] sent its first invoice to [Appellee]. Mr.

Link testified that he usually does not receive any payment

until there is a negotiated settlement or a trial verdict. He

normally expects to be paid from the settlement. He does

not usually bill clients unless they request bills because he

does not want them to be forced to accept an undesirable

settlement in order to pay [Appellant’s] bill. [Appellee’s]

case is still pending. Mr. Link does not think [Appellee]

terminated his services officially, but, at some point,

[Appellee] stopped asking [Appellant] to work for him.

[Attorney Deming] is [Appellee’s] present attorney for his

construction litigation. He had been an associate at the law

firm which initiated [Appellee’s] lawsuit. He started his own

practice, and [Appellee] is now his client. Attorney Deming

testified that there had been no agreement by his former

law firm to pay [Appellant] for his work for [Appellee]. He

did not remember getting any bill from [Appellant].

[Appellee] testified that his attorneys at the law firm, Kevin

Moore, Esquire, and Eden Bucher, Esquire, facilitated the

meeting between him and Mr. Link. He did not know

anything about Mr. Link before the meeting. When he had

received the invoice, he had not believed that he had owed

[Appellant] any money because he had not entered into a

written or verbal contract with [Appellant]. It was his

understanding that Mr. Moore and Ms. Bucher were paying

[Appellant].

[Appellee] further testified that no meeting between Mr.

Link and him had ever occurred at his residence. He first

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met Mr. Link at the law firm. There had been no discussion

regarding [Appellee’s] payment or a request for a retainer

at that meeting. Following the first meeting, it had been

[Appellee’s] understanding that Mr. Link would offer support

as an expert witness for the purpose of the litigation against

[Appellee’s] contractor and the inspector. Mr. Moore, Ms.

Bucher, and Mr. Deming instructed [Appellee] to work with

[Mr. Link] so he could help in the litigation concerning the

house construction.

Upon receipt of the letter of February 5, 2009, [Appellee]

sent an e-mail to [Appellant] stating that it was his

understanding that [Appellant] was being paid by the law

firm and, at the current time, [Appellee] did not wish to hire

[Appellant] personally. Mr. Moore and Ms. Bucher had told

[Appellee] that [Appellant] had been on retainer. Mr. Link

had met with the two attorneys and had talked to them by

telephone about three or four times prior to [Appellee’s] first

meeting with Mr. Link. The litigation against the contractor

and home inspector is still pending.

Karden Const. Servs., Inc. v. D’Amico, 1351 MDA 2015 at 1-2 (Pa. Super.

filed May 25, 2016) (unpublished mem.) (citation omitted).

Following a non-jury trial, the trial court found in favor of Appellee on

all counts and denied Appellant’s post-trial motions for judgment

notwithstanding the verdict. Id. at 4. On appeal, a prior panel of this Court

affirmed in part, reversed in part, and remanded this matter. Id. at 10.

Of relevance to this appeal, the prior panel concluded that Appellee was

unjustly enriched by Appellant’s construction services. Id. at 9-10. As to the

provision of construction services, the prior panel focused on Mr. Link’s

testimony that Appellant provided Appellee with the following construction

services:

Frequently, [Appellee] would ask me questions about designs that

were done, whether they were appropriate or not, whether there

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was alternatives to it. Early—when—because it’s problems with

the builder. We discussed going out and getting additional

estimates so that we had support for damages that were going to

go into the—into the legal process. And so a lot of activity

associated with construction management was involved.

Id. at 9 (record citation omitted). Additionally, the prior panel emphasized

Mr. Link’s testimony that once Appellee filed a complaint, he continued to

communicate with Appellee “both from the standpoint—a local standpoint,

dispute resolution standpoint, and also standpoint of construction

management.” Id. at 10 (record citation omitted).

The prior panel concluded that Appellant was entitled to judgment

notwithstanding the verdict on its claim for unjust enrichment for Appellant’s

“expertise in managing the construction of [Appellee]’s dwelling.” 1 Id. at 10.

The panel remanded for a determination of the reasonable value of the

construction management services, as opposed to the litigation services,

Appellant provided to Appellee. Id. at 10. Specifically, the panel concluded:

Given the uncontradicted evidence, [Appellee] clearly

appreciated, accepted and retained the benefit of [Appellant]’s

expertise in managing the construction of [Appellee]’s dwelling.

Differently put, [Appellee] unjustly enriched himself from the

provision of construction management services. As a result, we

remand this matter to the trial court to determine the reasonable

value of [Appellant]’s construction management services.

Accordingly, we affirm the trial court’s judgment to the extent it

held that no agreement existed between the parties and

[Appellee] did not benefit from the litigation support services. We,

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1 The prior panel distinguished Appellant’s provision of “litigation services”

noting that Appellant failed to establish Appellee benefitted from such services

and because “the lawsuit for which [Appellee’s] former law firm engaged the

expert service of [Appellant was] still pending.” Karden Const. Servs., Inc.,

1351 MDA 2015 at 9 & n.2.

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however, reverse the trial court’s judgment to the extent it held

that [Appellee] was not unjustly enriched from the provision of

construction management services and remand this matter for

determination of the reasonable value of such services.

Id. at 10. The prior panel further suggested that the parties and the trial

court would need to analyze Appellant’s Exhibit 2 (Exhibit P-2), which

“detail[ed] services performed by [Appellant] both in the context of litigation

support and construction management.” Id. at 10 n.3.

On remand, the trial court conducted a new trial limited to the issue of

damages.2 At the new trial, Mr. Link testified. Through Mr. Link, Appellant’s

counsel admitted into evidence Exhibit 4 (Exhibit P-4), which Mr. Link

prepared in anticipation of the new damages trial. Testifying about Exhibit P-

4, Mr. Link asserted that he spent a total of 113.27 hours on Appellee’s

project, of which 99.57 hours were for construction management services.

Mr. Link valued the construction management services at $17,343.30.

Appellee also testified at the new trial. Appellee asserted that Appellant

provided no construction management services and that he used none of

Appellant’s services when finishing the construction of his home.

At the conclusion of testimony, the parties requested an opportunity to

file proposed findings of fact and conclusions of law, which the trial court

granted. Appellant did not move for a directed verdict.

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2 The initial trial in this matter was heard by Judge Jeffrey K. Sprecher.

Judge

Sprecher recused himself after this Court remanded the case for further

proceedings. Judge James M. Lillis presided over the new trial following

remand.

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On January 9, 2018, the trial court issued its decision finding against

Appellant and awarding zero damages. Appellant filed post-trial motions on

January 17, 2018, seeking judgment notwithstanding the verdict, which the

trial court denied on February 6, 2018.

Appellant filed a notice of appeal on February 8, 2018, and complied

with the trial court’s order to file and serve a Pa.R.A.P. 1925(b) statement.

On March 29, 2018, Appellant filed a praecipe for judgment, and the

Prothonotary of the Court of Common Pleas entered judgment on April 4,

2018.3 The trial court filed a Rule 1925(a) opinion on May 17, 2018.

In its Rule 1925(a) opinion, the trial court concluded that Appellant

failed to demonstrate damages associated with its claim of unjust enrichment

for construction management services. Trial Ct. Op., 5/17/18, at 6. The trial

court reviewed the evidence presented at the first trial, which was

incorporated into the record in the second trial, as well as the evidence

presented in the second trial. See id. at 2-5. The trial court refused to afford

any weight to Mr. Link’s testimony, or Exhibit P-4, regarding the purposes of

his engagement with Appellee and the time spent on construction

management. See id. at 2 (concluding that “[u]nfortunately, [Appellant]

failed to provide any reliable evidence as to which services were provided for

construction purposes and which were performed primarily for purposes of

____________________________________________

3 Although Appellant filed its appeal before the entry of the judgment, a formal

judgment was entered on Appellant’s praecipe for entry of judgment.

Therefore, we will not quash this appeal. See Krishnan v. Cutler Grp., Inc.,

171 A.3d 856, 862 (Pa. Super. 2017).

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litigation”). Specifically, the trial court noted that Appellant’s assertion that

only 13.70 hours were for litigation services was belied by his prior testimony

that he initially was hired to provide litigation services. Id. at 3-5. The trial

court further noted that Appellee testified at the new trial that Appellant did

not provide any services related to finishing or improving his home. Id.

The trial court concluded that Appellant’s evidence at the new trial was

a self-serving attempt to recast the majority of the services he provided as

construction services. See id. at 5. Moreover, the trial court concluded that

Appellant failed to demonstrate that any of the construction services he

provided resulted in a benefit to Appellee.4 Id.

On appeal, Appellant presents the following questions:

1. Did the trial court err in returning a verdict in favor of . . .

Appellee as the credible evidence of record presented at trial,

specifically the testimony and the written exhibits submitted into

evidence by the Appellant was sufficient to establish that the

reasonable value of the construction management services

provided by [Appellant] to [Appellee] was in the amount of

$17,343.30 plus costs of $739.87?

2. Did the trial court err in returning a verdict in favor of . . .

Appellee as the trial court’s finding that “[Appellant] failed to

sustain its burden of proof to establish the value attributable to

any construction management services provided by [Appellant] as

____________________________________________

4 We acknowledge that a party must move for a directed verdict in order to

preserve a claim that it was entitled to judgment notwithstanding the verdict

in a post-trial motion. However, this Court has declined to find waiver when

a party presents a request for judgment notwithstanding the verdict in a post-

trial motion, and the trial court denies the post-trial motion on its merits. See

Capital Care Corp. v. Hunt, 847 A.2d 75, 84 n.4 (Pa. Super. 2004). Here,

the trial court denied Appellant’s post-trial motion for judgment

notwithstanding the verdict and explained, in its Rule 1925(a) opinion, that it

did so on the merits. Therefore, we decline to find waiver. See id.

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may have benefitted or enriched [Appellee] to any appreciable or

measurable degree” ignored the language of the Opinion and

Order of the Superior Court of May 25, 2016, which specified that

. . . Appellee had in fact been unjustly enriched from . . .

Appellant’s provision of construction management services and

that the [trial c]ourt was to analyze the exhibit submitted into

evidence during the non-jury trial on June 30, 2015, to determine

the reasonable value of said construction management services

thus clearly confirming there was value to said services?

Appellant’s Brief at 9.

We summarize Appellant’s arguments together, although in a different

order than presented in its brief. Appellant contends that the trial court’s

determination was inconsistent with this Court’s prior remand order, which

held that Appellee was unjustly enriched by the provision of construction

services. Id. at 19-21. Appellant contends that the trial court ignored the

prior panel’s determination that Appellee was unjustly enriched by suggesting

that Appellant failed to establish that he conferred a specific benefit related to

construction management services for Appellee’s home. Id. at 20-21.

Appellant also claims that it provided credible and unrefuted evidence

that Appellee was unjustly enriched by receiving construction services.

Specifically, Appellant contends that it presented Exhibit P-4, which showed

“the breakdown between services provided for construction management and

services provided for litigation.” Id. at 13.

Appellant further contends that the trial court erred in affording Exhibit

P-4 no weight. Appellant criticizes the trial court for finding inconsistencies

between Mr. Link’s prior testimony and his testimony at the new trial. Id. at

15-18. Appellant contends that Mr. Link consistently testified that he

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expended substantial time on construction management, which was not

inconsistent with his testimony at the new trial or the substance of Exhibit P-

4. Moreover, Appellant asserts that Mr. Link’s evidence regarding the time

spent on various services Appellant provided stood unrebutted. Id. Appellant

concludes that it is entitled to a reversal of the trial court’s decision and the

entry of a judgment in its favor.5

Our review is governed by the following well-settled principles:

[a] judgment notwithstanding the verdict can be entered upon two

bases: (1) where the movant is entitled to judgment as a matter

of law; and/or, (2) the evidence was such that no two reasonable

minds could disagree that the verdict should have been rendered

for the movant. When reviewing a trial court’s denial of a motion

for judgment notwithstanding the verdict, we must consider all of

the evidence admitted to decide if there was sufficient competent

evidence to sustain the verdict. In so doing, we must also view

this evidence in the light most favorable to the verdict winner,

giving the victorious party the benefit of every reasonable

inference arising from the evidence and rejecting all unfavorable

testimony and inference. Concerning any questions of law, our

scope of review is plenary. Concerning questions of credibility and

weight accorded the evidence at trial, we will not substitute our

judgment for that of the finder of fact. If any basis exists upon

which the [trial] court could have properly made its award, then

we must affirm the trial court’s denial of the motion for judgment

notwithstanding the verdict. A judgment notwithstanding the

verdict should be entered only in a clear case.

Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 609 (Pa. Super. 2014)

(citation and internal alterations omitted).

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5We note that Appellant did not seek a new trial in its post-trial motion.

Additionally, Appellant does not argue that any of the specific construction

management services listed in Exhibit 4 provided a benefit to Appellee.

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Moreover,

[t]he factfinder is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses. The trial court

may award a judgment notwithstanding the verdict or a new trial

only when the jury’s verdict is so contrary to the evidence as to

shock one’s sense of justice. In determining whether this

standard has been met, appellate review is limited to whether the

trial judge’s discretion was properly exercised, and relief will only

be granted where the facts and inferences of record disclose a

palpable abuse of discretion.

Brown v. Trinidad, 111 A.3d 765, 770 (Pa. Super. 2015) (citations and

quotation marks omitted).

The Pennsylvania Supreme Court has recently reiterated that a

judgment notwithstanding the verdict

should only be entered in a clear case with any doubts resolved in

favor of the verdict winner. An appellate court “stands on a

different plane” than a trial court, and it is the trial court that has

the benefit of an “on-the-scene evaluation of the evidence.” As

such, while the appellate court may disagree with a verdict, it may

not grant a motion for [judgment notwithstanding the verdict]

simply because it would have come to a different conclusion.

Indeed, the verdict must stand unless there is no legal basis for

it.

Menkowitz v. Peerless Publications, Inc., 211 A.3d 797, 804 (Pa. 2019).

The prior panel of this Court stated the law to be applied on remand as

follows:

[u]njust enrichment is an equitable doctrine, whose elements we

have described as “[(1)] benefits conferred on defendant by

plaintiff, [(2)] appreciation of such benefits by defendant, and

[(3)] acceptance and retention of such benefits under such

circumstances that it would be inequitable for defendant to retain

the benefit without payment of value.” Schenck v. K.E. David,

Ltd., 666 A.2d 327, 328 (Pa. Super. 1995) . . . . The critical inquiry

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in the application of this doctrine is whether a defendant has been

unjustly enriched. Id. “Where unjust enrichment is found, the law

implies a contract, referred to as either a quasi contract or a

contract implied in law, which requires that the defendant pay to

plaintiff the value of the benefit conferred.”

Karden Const. Servs., Inc., 1351 MDA 2015 at 7. In assessing damages

for unjust enrichment, however, “[e]nrichment is ‘measured by the value of

the benefit to the owner, not by the value of the invoice submitted by the

subcontractor.’” Ira G. Steffy & Son, Inc. v. Citizens Bank of

Pennsylvania, 7 A.3d 278, 283 (Pa. Super. 2010) (citations and footnote

omitted); see also D.A. Hill Co. v. Clevetrust Realty Inv'rs, 573 A.2d

1005, 1010 (Pa. 1990) (reiterating that damages for unjust enrichment

required consideration of “the value of the benefit conferred”).

Having reviewed the evidence in the light most favorable to the verdict

winner, we find that substantial evidence supported the trial court’s

determination that Mr. Link failed to demonstrate damages for construction

management services as was contemplated by the prior panel. See Karden

Const. Servs., Inc., 1351 MDA 2015 at 10 (discussing Appellee’s retention

of the benefits of Appellant’s expertise in managing the construction of

Appellee’s dwelling). The trial court noted that Mr. Link testified at the new

trial that he performed several construction management services. See Trial

Ct. Op. at 3; N.T., 8/8/17, at 10. However, there were discrepancies in Mr.

Link’s testimony. See Trial Ct. Op. at 3-5. As the trial court discussed, Mr.

Link previously conceded that he initially intended to perform litigation

services. See N.T., 6/30/15, at 9 (indicating that Mr. Link’s initial objective

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was to provide Appellee’s counsel with the kinds of information they needed

to prepare a complaint); see also N.T., 8/8/17, at 14 (noting that Mr. Link’s

litigation support included providing information relative to defects that he

learned about during construction management). Therefore, we discern no

basis to disturb the trial court’s determination. See Menkowitz, 211 A.3d at

804.

Furthermore, as to Appellant’s claim that it provided unrefuted

testimony as to damages for construction management services, our review

of the record reveals no basis for this Court to intrude on the trial court’s

credibility determinations. See Prieto Corp., 100 A.3d at 609. The trial court

was entitled to reject all, part, or none of the evidence presented, and the

record supported the trial court’s determination that Mr. Link’s testimony was

inconsistent. See Brown, 111 A.3d at 770. Therefore, the trial court did not

abuse its discretion when rejecting all of Appellant’s evidence at the new trial

based on a credibility determination. See id.

In sum, having reviewed the record in light of our standard of review,

we have no basis to conclude that Appellant was entitled to judgment as a

matter of law. See Menkowitz, 211 A.3d at 804; Prieto Corp., 100 A.3d at

609. Accordingly, no relief is due.

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Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2019

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