                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-6-2008

McAbee v. McAbee
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3064




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Recommended Citation
"McAbee v. McAbee" (2008). 2008 Decisions. Paper 1268.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1268


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                                                 NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 06-3064


                   PRESTON D. McABEE,

                                        Appellant.

                              v.

                    CAROLE J. McABEE




        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                   (D. C. No. 05-cv-02117)
           District Judge: Hon. Legrome D. Davis




           Submitted under Third Circuit LAR 34.1(a)
                      on January 18, 2008


Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges

                 (Opinion filed: May 6, 2008)




                        OPINION
ROTH, Circuit Judge:

       Preston McAbee appeals the dismissal of his suit against Carole J. McAbee. The two

jointly owned certain real property at the time of their divorce in 1992. They entered into an

agreement as to the disposal of the property in 1992 and modified that agreement in 1995.

Preston now claims that Carole breached the 1995 agreement. Because we agree with the

District Court that the ownership of the property is not in question and that the remaining

claims do not rise to the amount required for diversity jurisdiction, we will affirm.

I. BACKGROUND

       Because we write primarily for the benefit of the parties, we will only briefly revisit

the facts here. During their marriage, Preston and Carole jointly owned property at 708

Andover Court, West Chester, Pennsylvania.

       On June 4, 1992, Preston and Carole entered into a written agreement memorializing

the terms of their divorce settlement. The agreement permitted Carole to reside exclusively

in the property for up to three years, during which time she was required to put the house on

the market in order to sell it prior to the expiration of those three years. Pending the sale of

the home,Carole was required to pay the mortgage payments, including the homeowner’s

insurance and taxes and associated homeowner’s fees. In the event the house was not sold

at the end of the three year period, Preston was responsible for marketing the property for

sale. Preston was also required to pay Carole alimony pending the sale of the property and

immediately afterwards.



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       On August 14, 1995, Preston and Carole executed a written addendum to the 1992

agreement. The addendum modified the obligations imposed on the parties by the 1992

agreement. In exchange for receiving an executed deed from Preston transferring sole

ownership of the property to Carole, Carole agreed to pay Preston $16,000 to be primarily

responsible on the mortgage, and to indemnify and hold Preston harmless on any debt related

to the mortgage. The parties expressly agreed that this constituted full satisfaction of any

obligation to divide the real estate or to pay further alimony under the 1992 agreement. The

addendum made no reference to recording the executed deed.

       In August 1995 Carole paid the $16,000 to Preston pursuant to the addendum. Preston

executed a deed transferring ownership of the property to Carole, and delivered the executed

deed by mail to Carole’s counsel. Preston also signed a letter addressed to the mortgage

holder stating that Carole was assuming the mortgage and title of the property, and that

Preston waived any rights to money in escrow.

       The 1995 deed was never recorded. Despite delivery of the 1995 deed, Preston

continued to receive certain bills associated with the property, including electric bills, bills

for mortgage payment, and notice of a judgment against Preston for failure to pay

homeowners’ fees. Preston paid some of these bills and wrote two letters to Carole’s attorney

to resolve this situation, specifically demanding that his name be removed from all official

records establishing co-ownership of the property. Preston did not receive a response.

       Preston filed a complaint against Carole on May 4, 2005, seeking (1) specific



                                               3
performance of the 1992 agreement in the form of the sale of the premises; (2) transfer of

title to Carole to avoid the incurrence of condominium fees, liability, and other expenses; and

(3) equitable relief in the form of an order permitting Preston, his appraiser, and other agents

to access the premises. Carole filed a counterclaim seeking an Order requiring Preston to

execute a new deed transferring sole title of the property to Carole.1          On March 22,

2006,Carole filed a motion for summary judgment. After holding a hearing, the District

Court found that Preston was not entitled to specific performance on the 1992 agreement, and

that Preston’s other claims and Carole’s counterclaim must be dismissed for lack of subject

matter jurisdiction. Because ownership of the house was not at issue (as Pennsylvania law

provides that an executed and delivered deed suffices to transfer ownership), none of the

remaining claims reached the $75,000 amount in controversy requirement for diversity

jurisdiction.

         Also, during the discovery period Preston filed various motions to compel and for

sanctions. Several of these motions were granted, and Carole did not comply with Preston’s

discovery requests. The District Court imposed sanctions in the amount of the attorney’s fees

and costs of Preston, and dismissed the various motions to compel as moot.

II. DISCUSSION

         We review a district court's grant of summary judgment de novo. Gottshall v. Consol.




     1
     Carole alleged in her Counterclaim that she no longer had the deed to her in her
possession.

                                               4
Rail Corp., 56 F.3d 530, 533 (3d Cir.1995). Summary judgment is only appropriate if there

are no genuine issues of material fact and the movant is entitled to judgment as a matter of

law. Fed.R.Civ.P. 56(c). In reviewing the District Court's grant of summary judgment, we

view the facts in a light most favorable to the non-moving party. Gottshall, 56 F.3d at 533.

When determining whether the District Court had subject matter jurisdiction over a particular

case, we consider that question de novo. Shaffer v. GTE N., Inc., 284 F.3d 500, 502 (3d.

Cir.2002); In Re Phar-Mor, Inc., Sec. Litig., 172 F.3d 270, 273 (3d. Cir.1999).

       The first issue is whether Preston could prevail on his claim that he is entitled to

specific performance (in the form of the sale of the property) pursuant to the 1992 agreement.

He cannot. The 1995 addendum by its terms superseded the 1992 agreement in all matters

related to the property. In addition, Preston alleges no actions by Carole that would

constitute a breach of the addendum.

       The addendum required only that Carole pay Preston $16,000 within seventy-two

hours of receiving an executed deed and to indemnify and hold Preston harmless on any debt

related to the mortgage. It is clear that Preston signed, executed, and delivered the 1995 deed

and that Carole made the payment. It is also clear that, under Pennsylvania law, the delivery

of the 1995 deed transferred sole ownership of the property to Carole, making Carole legally

responsible for all debts associated with the property. See Upper Tulpehocken Twp. v. Berks

County Bd. of Assessment Appeals, 842 A.2d 1041, 1044 (Pa. Commw. Ct. 2004); Graham

v. Lyons, 546 A.2d 1129, 1130 (Pa. Super. Ct. 1988). Accordingly, Preston could not prevail



                                              5
even in the most favorable interpretation of the facts, and Carole was entitled to summary

judgment.

       The second issue is whether the District Court had subject matter jurisdiction over any

of the other claims in this case. To establish subject matter jurisdiction pursuant to diversity

of citizenship, no parties may share citizenship of the same state, and the amount in

controversy must exceed $75,000. 28 U.S.C. § 1332. A case may be dismissed for failure

to meet the jurisdictional amount requirement only if there is a legal certainty that the amount

will not be met. Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289

(1938). Preston and Carole have diversity of citizenship (Preston is a citizen of Georgia,

while Carole is a citizen of Pennsylvania), but none of their claims reach the jurisdictional

amount. Under Pennsylvania law, it is certain that the title of the property itself is not in

question. The remainder of the damages alleged by Preston are less than $25,000 in total.

As this is well short of the jurisdictional amount, dismissal for failure to establish subject

matter jurisdiction was appropriate.

       The final issue is whether the sanctions imposed against Carole for discovery

violations were proper. We review the imposition of sanctions for abuse of discretion.

Saldana v. Kmart Corp., 260 F.3d 228, 236 (3d Cir. 2001). The Federal Rules of Civil

Procedure provide that the court “must order the disobedient party ... to pay the reasonable

expenses, including attorney’s fees, caused by the failure, unless the failure was substantially

justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2).



                                               6
The imposition of other sanctions is left to the discretion of the District Court. Id. The

District Court required that Carole pay Preston’s expenses, declined to impose further

sanctions, and dismissed the outstanding motions to compel as moot. These actions were

well within the range of discretion accorded to the District Court and do not constitute an

abuse of discretion.

III. CONCLUSION

       For the foregoing reasons, we will affirm judgment of the District Court.




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