J-S61031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TOMORROW NEVER KNOWS, LLC, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
STUART COHEN,
Appellee No. 950 EDA 2017
Appeal from the Judgment Entered May 19, 2017
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 0331 June Term, 2015
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 28, 2017
Appellant, Tomorrow Never Knows, LLC, appeals from the judgment
entered by the trial court in favor of Appellee, Stuart Cohen, in this confession
of judgment action.1 We affirm.
We take the following pertinent facts and procedural history from the
trial court’s April 13, 2017 opinion, and our independent review of the certified
record. On June 2, 2015, Appellant filed a complaint in confession of judgment
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant purports to appeal from the November 23, 2016 order announcing
the decision of the trial court. However, entry of final judgment was required
to make this matter properly appealable. See Pa.R.A.P. 301(a)(1). On May
19, 2017, Appellant complied with this Court’s order that it praecipe for
judgment; therefore, we will treat the notice of appeal as timely filed on that
date. See Pa.R.A.P. 905(a)(5).
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against Appellee; judgment was entered the same day. On July 23, 2015,
Appellee filed a petition to open, which the court granted on September 30,
2015, after a hearing. The case proceeded to a bench trial on November 8,
2016. At trial, the following facts were presented.
Scott Becker is the sole member and manager of Appellant, and has
been a friend of Appellee for approximately twenty-five years. (See N.T. Trial,
11/08/16, at 21-23, 118). Appellee worked as a real estate agent, and for a
number of years, as a real estate investor. (See id. at 117). As an agent, he
assisted Mr. Becker with the purchase of approximately 180 investment
properties. Mr. Becker practiced real estate investment for seventeen years
before “[he] decided to sell out and [] use[] the . . . proceeds . . . for hard
money lending.”2 (Id. at 22).
Between June 11, 2009 and October 18, 2012, Appellant made nine
loans to Appellee, totaling $825,000.00. (See Joint Stipulation of Facts,
11/08/16, at unnumbered pages 1-2). The loans were secured by mortgages
on eight properties. When Appellee could no longer service the loans, he
authorized Appellant to collect the rent on the properties occupied by tenants.
(See N.T. Trial, at 28).
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2 Mr. Becker described “hard money lending” as “[b]asically lend[ing] money
to individuals or companies to do real estate projects. Typically, like a year
loan, interest only.” (N.T. Trial, at 21).
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In August of 2013, Appellee telephoned Mr. Becker to attempt to discern
a way to decrease his loan payments, including the idea of deeds in lieu of
foreclosure. (See id. at 121). On August 30, 2013, Mr. Becker sent Appellee
an email titled, “Deficiency.” (See id. at 26; Trial Exhibit P-19, Email from
Appellant to Appellee, August 30, 2013). The letter attached to the email
stated that Appellee was planning on providing deeds in lieu of foreclosure,
that Mr. Becker did not know the properties’ value, and that upon sale of the
properties, a deficiency on the amount due to Appellant may still exist and it
was not waiving its right to collect any such deficiency. (See Trial Exhibit P-
19, at attached letter). Appellee acknowledged receipt of the email and
attachment the same day. (See N.T. Trial, at 123). Mr. Becker instructed
Appellant’s attorney, Richard Gallucci, Esquire, to prepare deeds in lieu of
foreclosure and directed that they were not to waive Appellant’s right to
pursue deficiency judgments. (See id. at 38-39, 84-85). David Giles,
Esquire, an attorney in the same law firm as Mr. Gallucci, prepared the deeds.
(See id. at 84).
Approximately two months later, on November 11, 2013, Appellant sold
six of the properties to Larase Management, LLC, a buyer that Mr. Becker
found for the transaction. (See id. at 34-35). Larase Management paid a
total of $550,000.00. (See id. at 34). After the sale, Appellee received a
credit against the amounts he owed to Appellant, secured by the Larase
properties. (See id. at 34-35). When Larase Management defaulted on the
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loans, it executed deeds in lieu of foreclosure and conveyed the properties to
Appellant. (See id. at 37-38).
On December 2, 2014, at Mr. Becker’s request, Appellee executed
deed[s] in lieu of foreclosure to Appellant for the two remaining properties
(the Arlington Properties) he had mortgaged. (See id. at 38-39). Neither Mr.
Becker nor Appellee had any prior experience with deeds in lieu of foreclosure
before the Larase and Arlington transactions. (See id. at 61, 120). The deeds
contained language that specifically stated their execution would not be
deemed to satisfy any portion of the debt secured by the mortgages on the
properties. (See id. at 38-39). However, Appellee testified that, based on
his discussions with Mr. Becker, he understood that Appellant would not file
for a deficiency judgment, in exchange for him signing the deeds in lieu of
foreclosure. (See id. at 125). He stated, “I would have never signed the
documents if, in fact, [Mr. Becker] didn’t tell me that it was done or I didn’t
have verification from [him]. Otherwise, why would I have done it? I would
have just kept collecting the rents.” (Id. at 125-26). Conversely, Mr. Becker
testified that there was no such agreement. (See id. at 42, 69). The trial
court found that Mr. Becker’s testimony on this point was not credible. (See
Trial Court Opinion, 4/13/17, at 4).
In December 2014, Mr. Becker asked Appellee to sign estoppel affidavits
the title insurance company required before it would issue title insurance to
Appellant for the subject properties. (See N.T. Trial, at 39-40, 87-88).
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Attorney Giles reviewed the affidavits prepared by Attorney Gallucci. He
advised Mr. Becker to talk with Appellee and agree to a fair market value credit
Appellee would receive for each property, and set forth such amounts in the
affidavits. Mr. Becker declined to do so. The trial court observed:
While Mr. Becker testified he did not know what [Appellee’s]
reaction would have been if he would have had a frank discussion
with him as his lawyer suggested, Mr. Becker’s testimony on this
point was not credible. Despite his lawyer’s advice, Mr. Becker
did not have a frank discussion with [Appellee] because he knew
it was contrary to [Appellee]’s understanding of their agreement
and [Appellee] would stop cooperating in the process of getting
the properties back to [Appellant] with insurable title.
(Trial Ct. Op., at 6) (record citations omitted).
On December 19, 2014, Appellee met with Mr. Gallucci to execute the
estoppel affidavits. (See N.T. Trial, at 90). Paragraph 5 of the affidavits
provided that he would be given a credit against the notes and mortgages
secured by the properties being conveyed by the deeds in lieu of foreclosure,
but also that they would not be satisfied in full by the delivery of the deeds.
(See Exhibit P-13, Estoppel Affidavit, at unnumbered page 2 ¶ 5). Appellee
testified that, upon reviewing paragraph 5, he paused and asked Mr. Gallucci,
whether he signed the affidavits, would that mean he “was done . . . it was
over[,]” to which Mr. Gallucci responded “[he]’d be done.” (N.T. Trial, at 125;
see id. at 131).
On November 23, 2016, the trial court entered an order that set forth
its findings of fact and conclusions of law, vacated the confession of judgment
filed on June 2, 2015, and found in favor of Appellee and against Appellant.
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The [c]ourt determined the burden was on [Appellee] to establish
he and Mr. Becker had agreed to not proceed on the deficiency
judgment(s) even though Mr. Becker had reserved the right to do
so. The [c]ourt concluded [Appellee] had met that burden
because the [c]ourt found his testimony more credible than Mr.
Becker’s regarding waiving any deficiency judgment in exchange
for providing deeds in lieu of foreclosure. Mr. Becker’s denial of
the fact that [Appellee] would not have transferred the properties
as he did if Mr. Becker was going to proceed for a deficiency
judgment anyway was not credible.
(Trial Ct. Op., at 6) (record citations omitted); (see also id. at 5) (finding
Appellee “testified credibly that he would never have signed the deeds in lieu
of foreclosure/estoppel affidavits in the absence of his conversations with Mr.
Becker and Mr. Gallucci’s reassurances he would be done with the entire
process.”) (record citation omitted). Further, the court found Mr. Gallucci’s
testimony that he mentioned the foreclosure, but said nothing about the
deficiency judgment, to be credible. (See id. at 5).
On February 13, 2017, the trial court denied Appellant’s post-trial
motions. Appellant timely appealed. On April 5, 2017, Appellant filed a timely
statement of errors complained of on appeal, pursuant to the trial court’s
order. See Pa.R.A.P. 1925(b). The court filed an opinion on April 13, 2017.
See Pa.R.A.P. 1925(a).
Appellant raises two questions for our review.
1. Whether the trial court’s decision following trial and the trial
court’s subsequent denial of [Appellant’s] motion for post-trial
relief were against the weight of the evidence and errors of law?
2. Whether the trial court erred in finding that [Appellant]’s
attorney has sufficient authority to agree to release [Appellee] for
liability for a deficiency judgment[?]
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(Appellant’s Brief, at 2) (unnecessary capitalization omitted).
In its first issue, Appellant maintains that the trial court’s finding that it
agreed to waive the deficiency was against the weight of the evidence. (See
id. at 9, 11-13). This issue is waived and would lack merit.
As a preliminary matter, we observe that Appellant failed to provide any
legal citation, or discussion thereof, in support of his weight of the evidence
challenge, in violation of Pennsylvania Rules of Appellate Procedure 2119(a),
(b). (See id.); Pa.R.A.P. 2119(a), (b) (requiring an appellant to provide
pertinent citation to legal authority and discussion thereof). In fact, it does
not cite a single cogent authority in support of its first issue. Additionally, it
fails to provide the standard of review for a weight of the evidence claim.
(See Appellant’s Brief, at 2, 9, 11-13); Pa.R.A.P. 2111(a)(3). Therefore,
Appellant’s first claim is waived. See Rettger v. UPMC Shadyside, 991 A.2d
915, 932 (Pa. Super. 2010), appeal denied, 15 A.3d 491 (Pa. 2011) (finding
issue waived for appellant’s failure to provide standard of review or cite any
law in support of issue); Pa.R.A.P. 2101.
Moreover, even had Appellant properly argued this issue, it would not
merit relief. Our standard of review for a challenge to a trial court’s finding
regarding weight of the evidence is well-settled.
Appellate review of a weight claim is a review of the trial
court’s exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence. Because
the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
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consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
The 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 new trial only when the [] 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. When
a fact finder’s verdict is so opposed to the demonstrative facts that
looking at the verdict, the mind stands baffled, the intellect
searches in vain for cause and effect, and reason rebels against
the bizarre and erratic conclusion, it can be said that the verdict
is shocking.
Brown v. Trinidad, 111 A.3d 765, 770 (Pa. Super. 2015) (citations and
internal quotation marks omitted).
Instantly, the trial court found:
[O]n the question of whether there was an agreement to waive
any deficiency, the [c]ourt found [Appellee’s] testimony was
credible and Mr. Becker’s testimony was not credible. Factoring
into this determination included that Mr. Becker blatantly
disregarded his attorney’s advice to come to an agreement with
[Appellee] as to fair market value he would be credited with for
each property and set forth such amounts in the affidavits, which
would have established any deficiency. The [c]ourt firmly believes
Mr. Becker chose not to have such discussions with [Appellee],
because it would have tipped [him] off that [Appellant] was indeed
going to pursue a deficiency judgment in spite of their
conversations to the contrary.
The [c]ourt does not dispute that [Appellee] signed legal
documents that would allow for [Appellant] to pursue a deficiency
judgment, and understands [Appellant’s] counsel’s conviction that
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great weight should be placed on these documents. The [c]ourt,
however, was also understanding that, while inadvisable, a
layman under financial pressure such as [Appellee] would rely on
his conversations and twenty-five[-]year friendship with Mr.
Becker and sign documents with legalese that was contrary to
their agreement.
(Trial Ct. Op., at 11).
Based on the foregoing, and our independent review of the entire
record, which contains Appellee’s repeated insistence that he would not have
signed Mr. Becker’s documents if he knew Appellant’s intent was to seek
deficiency judgments, we cannot conclude that the “verdict is so opposed to
the demonstrative facts that looking at [it], the mind stands baffled, the
intellect searches in vain for cause and effect, and reason rebels against the
bizarre and erratic conclusion[.]” Brown, supra 770 (citation and internal
quotation marks omitted). Although Appellant would have us re-weigh the
evidence in its favor, our standard of review precludes us from doing so. See
id.3 Appellant’s first issue, even if not waived, would not merit relief.
In its second claim, Appellant maintains that “the trial court erred in
finding [its] counsel[, Mr. Gallucci,] had authority to release [Appellee] from
liability for a deficiency judgment.” (Appellant’s Brief, at 16) (unnecessary
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3 Appellant also raises, for the first time, arguments about the legal theories
of accord and satisfaction and novation. (See Appellant’s Brief, at 13-16).
These theories were not issues in the case, Appellant did not argue about
them, and the court did not mention, let alone make any finding on them.
Therefore, we will not consider them in this appeal. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”).
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capitalization and emphasis omitted). This claim has no merit because the
trial court did not find that Mr. Gallucci released Appellee from liability for the
deficiency judgment.
It is well-settled that our standard of review of a bench trial consists of:
a determination of whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in the application of law. Findings of the trial
judge in a non-jury case must be given the same weight and effect
on appeal as a verdict of a jury and will not be disturbed on appeal
absent error of law or abuse of discretion. When this Court
reviews the findings of the trial judge, the evidence is viewed in
the light most favorable to the victorious party below and all
evidence and proper inferences favorable to that party must be
taken as true and all unfavorable inferences rejected.
Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 914 (Pa. Super. 2017)
(citation omitted). Further, “this Court has stated that we will respect a trial
court’s findings with regard to the credibility and weight of the evidence unless
the appellant can show that the court’s determination was manifestly
erroneous, arbitrary and capricious or flagrantly contrary to the evidence.”
Id. (citation and internal quotation marks omitted).
Here, as to Mr. Gallucci, the trial court stated that
[its] findings of fact and conclusions of law did not infer or find he
had the authority to waive a deficiency judgment. Rather, the
findings of fact specifically stated the court believed it might be
true Mr. Gal[l]ucci said nothing to [Appellee] either way about a
deficiency judgment. The court, however, did find that Mr.
Gal[l]ucci confirmed he told [Appellee] the foreclosure would
stop and the fees would stop, and that [Appellee] testified credibly
he would never have signed the deeds in lieu of
foreclosure/estoppel affidavits but for his conversations with Mr.
Becker and Mr. Gal[l]ucci’s reassurances. Accordingly, there was
no finding or inference that Mr. Gallucci had the authority
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to waive a deficiency judgment and [Appellant’s] complaint
thereto is without merit.
(Trial Ct. Op., at 9-10) (record citations and some capitalization omitted;
emphases added).
Our independent review confirms the trial court’s statement. In fact,
the court expressly found that it believed Mr. Gallucci’s testimony that he only
mentioned the foreclosure action to Appellee. Although the court found
Appellee credibly testified that he based his decision to sign the documents on
conversations he had with Mr. Becker and Mr. Gallucci, there is no reasonable
way, in the totality of the court’s findings, it can be inferred that the court
found Mr. Gallucci had authority to waive Appellant’s right to pursue a
deficiency judgment. Therefore, the trial court did not abuse its discretion or
commit an error of law in rendering its verdict. See Gutteridge, supra at
914. Appellant’s second issue lacks merit.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
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