Hensley, C. v. Duvall, D.
Hensley, C. v. Duvall, D. No. 2911 EDA 2015
| Pa. Super. Ct. | Apr 13, 2017Background
- Buyers (Hensley & Greisiger) contracted Prudential Fox & Roach (agent Galanti) to locate property for a dog kennel; they would only buy if the existing barn could be used as the kennel.
- Parties agreed to purchase Sellers’ Barndt Road property; measurements suggested the barn was ~196 ft from the property line, under the township 200-ft setback for kennels.
- Prudential drafted an agreement contingency stating sale was "contingent on ... approval ... allowing Buyers to operate a kennel/doggie daycare from the property," rather than expressly "from the barn."
- Township zoning officer initially indicated the barn could qualify; after closing, township reversed and denied a barn permit due to setback, precluding kennel use of the barn.
- Buyers sued Prudential (negligence for failing to obtain survey and for drafting contingency) and Sellers (breach/fraud); Sotheby’s (Sellers’ agent) got summary judgment; Sellers were granted nonsuit at trial; jury found Prudential 75% negligent and awarded damages (~$275,000, molded to ~$206,250).
- Appeals: Buyers sought attorney fees under the Buyer Agency Contract and post-judgment interest; Prudential appealed evidentiary rulings and asserted entitlement to JNOV; Sellers appealed nonsuit and related rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorney fees under Buyer Agency Contract | Contract provides prevailing-party attorney fees; Buyers prevailed, so fees recoverable | Prudential: Buyers waived fee claim / action sounded in negligence not contract | Court: Contract unambiguous; Buyers prevailed → remand to calculate attorney fees (trial court had erred) |
| Post-judgment interest | Buyers: statutory post-judgment interest applies to verdict amount | Prudential: no response on appeal | Court: Buyers entitled to post-judgment interest; remanded for entry of interest |
| Nonsuit of Sellers based on contingency clause wording | Buyers: "property" in clause reasonably means the barn given negotiation context; parol evidence should be allowed | Sellers: Clause unambiguous—"from the property" means anywhere on property, not the barn; clause not triggered | Court: Clause unambiguous; "property" means the parcel; parol evidence excluded; nonsuit for Sellers affirmed |
| Prudential's liability, JNOV, and evidentiary rulings (survey, damages expert, comparative negligence) | Buyers: Prudential breached contractual duties (failed to survey; drafted imprecise contingency); lay jurors could find negligence; damages measured as noncommercial value | Prudential: No duty/causation; needed expert on agent standard of care; Hosey’s valuation improper; should have JNOV; trial court should have used contributory negligence | Court: Restatement §323 and contract created duty; jury verdict supported; expert on damages admissible (valued property as noncommercial to Buyers); expert on agent standard not required; JNOV denied; Prudential waived contributory-negligence challenge |
Key Cases Cited
- Genaeya Corp. v. Harco Nat. Ins. Co., 991 A.2d 342 (Pa. Super. 2010) (contract interpretation standard and parties’ intent embodied in writing)
- Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034 (Pa. Super. 2015) (clear-writing rule; extrinsic evidence only for ambiguous contracts)
- Zavatchen v. RHF Holdings, Inc., 907 A.2d 607 (Pa. Super. 2006) (prevailing-party determination lies within trial court discretion)
- McMullen v. Kutz, 985 A.2d 769 (Pa. 2009) (American Rule on attorney fees; exceptions for contract/express authorization)
- Feld v. Merriam, 485 A.2d 742 (Pa. 1984) (adopting Restatement §323 negligent performance of undertaking)
- Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014) (tort liability for negligent performance of contractual obligations)
- Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512 (Pa. Super. 2009) (post-trial motions framework; effect of proceeding to verdict on prior procedural motions)
- Cipriani v. Sun Pipe Line Co., 574 A.2d 706 (Pa. Super. 1990) (expert testimony not required when negligence is within common understanding)
- Brannan v. Lankenau Hosp., 417 A.2d 196 (Pa. 1980) (same principle regarding expert testimony)
- In re Brooks Bldg., 137 A.2d 273 (Pa. 1958) (definition of market value considers all reasonable uses of the property)
- Thomas Jefferson Univ. v. Wapner, 903 A.2d 565 (Pa. Super. 2006) (failure to press an instruction at trial waives appellate challenge)