Leviere, D. v. Preston Ford, Inc.

J-S44014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEL LEVIERE, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

PRESTON FORD, INC.,

Appellant No. 196 WDA 2014

Appeal from the Order Entered December 30, 2013 In the Court of Common Pleas of Mercer County Civil Division at No(s): 2011-1091

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J. MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 06, 2014 fees. We affirm.

The trial court summarized the facts and procedural history of this case as follows:

This is a used car case. Plaintiff Del LeViere alleged that Defendant Preston Ford, Inc.[,] sold him a used car that had been in an undisclosed frame- Complaint in Civil Action contained three counts fraud, violation of the federal Magnuson-Moss [Warranty] Act

[and Consumer Protection] [L]aw [(UTPCPL)]. The Complaint was filed on March 30, 2011 (there had been some pre- Complaint negotiations), and the case settled about 2½ years

Preston Ford agreed to buy back the car from Mr. LeViere by paying off the remainder of his car loan and paying directly to him the difference between the remaining amount of the car loan

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and the purchase price. The settlement did not address the

Petition for Counsel Fees and Costs (which included 18 exhibits) and a Counsel Fees and Costs. [LeViere] claimed $50,359.15 in fees and costs. On December 11, 2013, [Preston Ford] filed

Costs, followed by a on December 19, 2013. This Court held a hearing on the Petition [on] December 19, 2013. [LeViere] then filed [a] Reply in Support of Petition for Fees and Costs on December 27, 2013, and this Court granted [his] petition in its entirety on December 31, 2013, granting [LeViere] the full $50,359.15 in fees and costs. [Preston Ford] then filed a Motion for Reconsideration on January 6, 2014, which this Court denied on January 30, 2014.

Trial Court Opinion (TCO), 3/27/14, at 1-2.

Preston Ford filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, it raises two issues for our review:

1. Whether the trial court erred in finding that [LeViere] was the prevailing party pursuant only to the Court Order of September 10, 2013[,] which only rescinded the contract between the parties[?]

2. Whether the trial court erred in awarding [LeViere] his

reasonableness and necessity for said fees? attorneys' fees is well-settled. Whether to award attorneys' fees and costs incurred in bringing an action [is] within the discretion of the trial court, and we will not reverse a trial court's decision on the matter in the absence of an

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Regis Ins. Co. v. Wood, 852 A.2d 347, 349-350 (Pa. Super. 2004) (citing First Pennsylvania v. National Union, 580 A.2d 799 (Pa. Super. 1990)).

-arguments. First, Preston Ford argues that LeViere is also not enti determination been made that he suffered damages[,] as a result of any act Preston

i.e., his fraud action, the MMWA, or the UTPCPL, and

Id.

Initially, we conclude that Preston Ford waived its latter two claims. In its Rule 1925(b) statement, Preston Ford stated two issues that mirror those presented in his Statement of the Questions section of his appellate brief, quoted supra. See Pa.R.A.P. 1925(b) Statement, 2/13/14. Neither of these damages under the UTPCPL, or its assertion that LeViere failed to prove

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under which theory of liability the settlement occurred. Consequently, we deem these specific arguments are waived.1 See Pa.R.A.P. 1925(b)(4)(vii)

nce with under the MMWA. ____________________________________________ 1 1925(b) statement complies with the requirements of Pa.R.A.P. 1925(b)(3).

Statement timely filed an Order, 2/2/14. Thus, waiver is appropriate in this case. See Greater Erie Indus. Development Corp. v. Presque Isle Downs, 88 A.3d 222, 225 ssues on appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial

We also point out that in its Rule 1925(a) opinion, the trial court did

of liability the settlement occurred, the court noted that that argument was Statement of Errors Complained of on Appeal claim, despite its absence from the Rule 1925(b) statement, does not compel this Court to do the same. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). In any event, we also conclude that this argument is waived because Preston Ford fails to cite any legal authority to support it in his brief to this Court. See -12; Korn v. Epstein, 727 A.2

Gallagher v. Sheridan that are not appropriately developed are waived

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states:

2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.

15 U.S.C.A. § 2310(d)(2) (italicized emphasis added).

The MMWA does not define or provide any guidance on when a

Profit Wize Marketing v. Wiest, 812 A.2d 1270 judgment on the merits. See Profit Wize, reached a settlement agreement). In response, LeViere contends that

Profit Wize Profit Wize is a state court opinion applying o at 9. He maintains that because the MMWA is a federal statute, the meaning federal law, primarily the United States Supreme Cour Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001).

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We agree with LeViere. In Profit Wize, this Court examined whether

ployee against whom the employer had filed suit, where the parties had ultimately entered a settlement agreement. In the course of this assessment, we were tasked as contained in the non-See Profit Wize, 812 A.2d at 1275. Thus, unlike the present case, Profit Wize under the language of a state employment contract, not a federal statute. Accordingly, Profit Wize does not compel the application of Pennsylvania law in the instant case. Instead, we look to federal law to ascertain whether

See Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011) (stating

We begin our analysis by noting that the United States Supreme Court

d through a consent decree

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Buckhannon, 532 U.S. at 604 (citations omitted). Nevertheless, under many federal statutes, including

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Id. the plaintiff secures must directly benefit him at the time of the judgment or

Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citation omitted). materially alters the legal relationship between the parties by modifying the

Id. at 111-112.

Here, Preston Ford contends that the settlement agreement did not alter its legal relationship with LeViere in any way, let alone in a way that directly benefited LeViere. See explains:

In accordance with the settlement, Preston Ford bought

Preston Ford paid the outstanding lien and refunded the difference to LeViere. Preston Ford then retained the car. In other words, Preston Ford and LeViere rescinded the contract and no material altering of the legal relationship between the parties occurred to the benefit of LeViere. LeViere previously argued he received $10,000.00 over and above what he would have received had he traded the car in for another vehicle. LeViere ignores payments made by him on the loan for the vehicle in the amount of $10,967.40, calculated by car payment[s] of $304.65 a month for 36 months. LeViere additionally paid $1000.00 down on the vehicle bringing the total amount LeViere paid towards this vehicle to $11,967.40. Further, LeViere transferred a vehicle valued by him in the trade in [the] amount of $5,500.00. It should be noted that this amount would be higher as the car was bought by a dealer for

for $16,963.00[,] or a loss of $504.40.

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-10 (citation to record omitted). frame-damaged vehicle with over 70,000 miles that was worth much less

s Brief at 11. LeViere elaborates:

It is common knowledge to the ordinary layperson that a

purchased and driven off the car lot. Unless a car is a unique and highly prized collectible, a consumer will receive thousands less than what they paid if a car is traded in shortly after purchase[,] even if the car is in the same condition as purchased. Here, LeViere received the entire purchase price of $16,963.00 for the vehicle after three years and after being

than the full purchase price for this vehicle if he had tried to sell it in a retail setting.

Id. at 16. con agreement rescinded the contract between the parties, thus terminating their legal relationship. The agreement further provided LeViere with the full purchase price of a vehicle that he had driven for three years, and on which he had accumulated significant mileage. At the time the parties entered into a settlement agreement, the vehicle was clearly worth much less than the $16,963 Preston Ford paid LeViere to settle the litigation. Preston Ford essentially admits this fact by stating that it resold the vehicle for $6,300. See

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invested into the vehicle over the course of the three years he owned it, at the time of the settlement, Preston Ford agreed that LeViere was entitled to $16,963 for a vehicle valued by Preston Ford at $6,300. Thus, we conclude that LeViere received a benefit on the merits of his claims. See Buckhannon, 532 U.S. at 604; Farrar, 506 U.S. at 111. Accordingly, the process of law because the trial court failed to conduct an evidentiary acknowledges that a hearing was conducted on December 19, 2013, it maintains that the court only heard oral arguments from counsel for both parties, and did not provide Preston Ford with the opportunity to present evidence or cross-examine witnesses LeViere may have called. Preston Ford also maintains that because the court did not conduct an evidentiary hearing, the court had no evidentiary basis upon which to enter the order abused its discretion. Most notably, at the December 19, 2013 hearing, Preston Ford did not attempt failure to do so; thus, Preston Ford cannot now claim the court denied it due process. Moreover, LeViere attached abundant documentary evidence, i.e.,

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sufficient evidentiary basis upon which to enter the December 30, 2013 is meritless.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014

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