J-A31032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER D. DOWNS AND                     IN THE SUPERIOR COURT OF
KIMBERLY R. DOWNS AND                              PENNSYLVANIA
TRANSCONTINENTAL GAS PIPELINE
COMPANY, LLC.,

                         Appellants

                    v.

WILLIAM F. FLYNN AND BABETTE A.
FLYNN,

                         Appellees                No. 359 MDA 2015




               Appeal from the Judgment Entered April 8, 2015
              in the Court of Common Pleas of Lycoming County
                        Civil Division at No.: 13-00519


CHRISTOPHER D. DOWNS AND                     IN THE SUPERIOR COURT OF
KIMBERLY R. DOWNS AND                              PENNSYLVANIA
TRANSCONTINENTAL GAS PIPELINE
COMPANY, LLC.,

                         Appellees

                    v.

WILLIAM F. FLYNN AND BABETTE A.
FLYNN,

                         Appellants               No. 403 MDA 2015


               Appeal from the Judgment Entered April 8, 2015
              in the Court of Common Pleas of Lycoming County
                        Civil Division at No.: 13-00519
J-A31032-15


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JANUARY 08, 2016

        Appellants,    Christopher     D.      Downs,   Kimberly   R.   Downs,   and

Transcontinental Gas Pipeline Co. (Transco) appeal from the judgment

entered in favor of Appellees, William F. Flynn and Babette A. Flynn, on April

8, 2015 following a non-jury trial in this matter. Appellants claim that the

trial court erred in finding that it could not reform the subject deeds and in

issuing an injunction against the parties. Appellees filed a cross-appeal in

which they claim that the trial court erred in not awarding damages for

trespass. We affirm in part and vacate in part.

        We take the facts and procedural history of this case from the trial

court’s February 10, 2015 opinion, the notes of testimony of the October 27,

2014 non-jury trial, and our independent review of the record.             This is a

dispute between neighbors Appellants and Appellees, concerning land sold to

each by Transco.         Appellants contend that a mistake occurred in the

description of the common boundary line of the add-on lots purchased by

each party and seek reformation of the deeds to correct the alleged mistake

by moving the common boundary line between their add-on lots to the east

by thirty feet so that it meets the boundary line between their original

properties.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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      Appellees contend that no mistake occurred in drafting the deeds, and

seek damages in trespass for Appellants’ entrance onto the thirty-foot

section of land in question.

      At the conclusion of a non-jury trial on October 27, 2014, the trial

court found:

            The key question here is does a unilateral mistake of this
      nature justify the reformation of a deed. Now, let’s take it a part
      [sic] a little bit, okay.    The original owner of the land is
      [Transco]. They didn’t make any mistake. They didn’t really do
      anything wrong.

            What they did was that they had a response to a legitimate
      inquiry by one of [the parties’] neighbors, Mr. Mayer, who went
      to them and said [“]hey can you peel off this piece of land so I
      can buy a garage[?”] or whatever it was that he wanted. And
      they said [“]sure; but, you know what, we’ll do it if you can get
      your neighbors to buy the whole lot.[”] They never prescribed
      any methodology that I heard of for division.

            Okay. So Mr. Mayer goes and talks to a whole bunch of
      neighbors. And I don’t think that he set any particular standards
      for the subdivision. He just asked what they wanted. And lo
      and behold they have Larson [Design Group] draw up a
      subdivision.

             Now, this is where the mistake, if any, comes in. Did
      Larson make a mistake when they did the subdivision? The
      answer to that question is I’m not sure. They certainly made—
      they certainly—Mr. Weaver[, a professional land surveyor who
      worked for Larson Design Group and surveyed the land in
      question,] certainly said yes, if I had known the line [between
      Appellants’ and Appellees’ original properties] was over I would
      have run the line [between the add-on lots] from that southwest
      corner. It would have made sense. I guess one can interpret
      that as a mistake in where he put the line without any kind of
      direction from really either Mr. Mayer or from Transco.

           Now, everybody takes a look at [the subdivision plan].
      And the real mistake is [Appellants’]. They look at it, and they
      never discover that the line is [thirty-]feet west of where they

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J-A31032-15


     would have liked the line. They never picked that up. In the
     meantime, everybody goes forward with their transaction; and
     [Appellees] buy the parcel as it is subdivided.

                                  *    *    *

           And so now [Appellants] say, [“]well, you know what, [the
     common boundary line between the add-on lots] is in the wrong
     place; I want my thirty feet back.[”] . . .

                                  *    *    *

            And I accept the testimony of [Appellees] that, Mr. Downs,
     you threw your dog waste onto their property and that Mrs.
     Downs probably used the F word to Mrs. Flynn.                And I
     understand that you may have issues with the way they keep
     their property or with the way that they have their lifestyle. . . .

(N.T. Trial, 10/27/15, 195-98).

     Following the non-jury trial, the trial court issued an order entering

judgment in favor of Appellees as to the claims raised by Appellants and

entering judgment in favor of Appellees on their cross-claim for trespass

where,

     the court [did] not any award damages, however, on its own
     motion provides the following equitable relief:

           All parties are hereby directed to refrain from conduct
     intended to annoy the other or otherwise interfere with the
     other’s quiet enjoyment of their property. It is the intent of the
     court that this provision be enforceable through the contempt
     powers of the Court of Common Pleas together with any other
     remedies at law, equity, or through the criminal process.

(Order, 11/20/14).




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      Both parties filed motions for post-trial relief, which the trial court

denied in an opinion and order entered February 10, 2015. (See Trial Court

Opinion, 2/10/15). In that opinion, the trial court reasoned that:

      . . . The surveyor, Mr. Weaver, testified however, that he was
      contacted by and contracted with a Mr. Mayer, one of the
      parties’ neighbors, who initiated the transactions when he
      inquired with [Transco] whether he could buy one acre of ground
      behind his lot. Thus the court cannot find that Larson acted as
      an agent for all parties to the deeds.       In any event, the
      testimony of [Appellees] makes it clear they were not misled by
      the mistake, they knew the boundary line of the add-on lots did
      not follow the original boundary line between their property and
      that of [Appellants], and thus there was no mutual mistake.

                                   *     *    *

      . . . [Appellants] have failed to prove it was [Appellees’]
      intention to have the boundary line of the add-on lot follow the
      boundary line of the original lots. Nothing was stated at the
      neighbors’ meeting wherein the carving up of the land was
      discussed, [(see N.T. Hearing, 10/27/14, at 25-26).] . . . There
      is no evidence, let alone “clear and satisfactory proof”, that
      [Appellees] shared [Appellants’] intent to have the boundary line
      of the add-on lot extend from the original boundary line. . . .

(Id. at 1-2) (footnote omitted).

      Finally, with respect to the sua sponte injunction, the trial court

reasoned that “[i]nasmuch as the directive merely restates [the parties’]

legal obligations as neighboring landowners, the court fails to see why the

relief is inappropriate.” (Id. at 3).

      On February 25, 2015, Appellants filed their timely notice of appeal.

On March 3, 2015, Appellees filed their timely notice of appeal. Pursuant to

the trial court’s order, Appellees filed a timely concise statement of errors

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J-A31032-15



complained of on appeal on March 13, 2015.        See Pa.R.A.P. 1925(b). On

March 17, 2015, Appellants filed a timely concise statement of errors

complained of on appeal. See id. On March 30, 2015, the court filed an

opinion in which it relied on its opinion and order denying the motions for

post-trial relief. See Pa.R.A.P. 1925(a).

       Appellants raise three questions for our review:

       1. Whether the trial court erred in finding that it could not
       reform deeds based on a unilateral mistake?

       2. Whether the trial court erred in determining that a mutual
       mistake did not occur?

       3. Whether the trial court erred in issuing, sua sponte, an
       injunction[?]

(Appellants’ Brief, at 4) (most capitalization omitted).

       Appellees raise one question for our review:

       [1.] Is a property owner who is subjected to acts of repeated
       physical trespass upon his property, intentional throwing of rocks
       onto his property, repeated disposal of dog feces and other
       waste onto his property, and verbal abuse, entitled to recover an
       award of damages from the transgressor?

(Appellees’ Brief, at 21) (most capitalization omitted).

       In their first issue, Appellants claim that the trial court erred in not

reforming the deeds because of a unilateral mistake.1        (See Appellants’

Brief, at 15-18). We disagree.
____________________________________________


1
  We note that Appellants’ first issue both challenges the trial court’s
conclusion at trial that it could not reform deeds based upon a unilateral
(Footnote Continued Next Page)


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J-A31032-15



      “When reviewing an equitable decree, our standard of review is

limited. We will reverse only where the trial court was palpably erroneous,

misapplied the law or committed a manifest abuse of discretion.                    Where

there are any apparently reasonable grounds for the trial court’s decision,

we must affirm it.”        Nebesho v. Brown, 846 A.2d 721, 725 (Pa. Super.

2004) (internal quotation marks and citation omitted).

      A court in equity may reform a deed based on a unilateral mistake “if

the party against whom reformation is sought has such knowledge of the

mistake as to justify an inference of fraud or bad faith.” Regions Mortg.,

Inc. v. Muthler,          889    A.2d    39,     41   (Pa.   2005)   (citation   omitted).

Furthermore, “the mistake under scrutiny, as well as the actual intent of the

parties, must be clearly proven.” Dudash v. Dudash, 460 A.2d 323, 327

(Pa. Super. 1983) (citation omitted).

      Here, the trial court found that a unilateral mistake occurred where

Appellants “look[ed] at [the subdivision plan drawn by Mr. Weaver], and

they never discover[ed] that the line is [thirty-]feet west of where they

would have liked the line.         They never picked that up.         In the meantime,

                       _______________________
(Footnote Continued)

mistake, (see Appellants’ Brief, at 15), and the trial court’s conclusion that
reformation of these deeds because of a unilateral mistake was not
appropriate, (see id., at 15-18). We agree that a court may reform a deed
based on a unilateral mistake. See Dudash, infra at 327. However, the
trial court corrected this error in its opinion and, as discussed below, we
agree with it that reformation based on a unilateral mistake is not
appropriate here. (See Trial Ct. Op., at 2).



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J-A31032-15



everybody goes forward with their transaction; and the [Appellees] buy the

parcel as it is subdivided.” (N.T. Trial, at 196). The trial court did not find,

nor does our independent review of the record reveal, that either the

property in the deed differed from the description of the add-on lot in the

subdivision plan or that Appellants ever told Appellees, Mr. Weaver, or

Transco that they intended their add-on lot be 130 feet wide rather than 100

feet wide. (See Trial Ct. Op., at 2).

      Therefore, Appellants have not clearly proven that Appellees’ purchase

of their add-on lot—which included the thirty-foot wide section in question—

was either the result of fraud or bad faith justifying reformation of the deed.

See Regions Mortg., Inc., supra at 41; Dudash, supra at 327.

Accordingly, we conclude that the trial court properly exercised its discretion

in not reforming the deeds based on a unilateral mistake. Appellants’ first

issue does not merit relief.

      In their second issue, Appellants claim that the trial court erred in not

reforming the deeds based upon a mutual mistake. (See Appellants’ Brief,

at 18-22). Specifically, they argue that they made a mistake in “failing to

recognize that the add-on lot at the rear of their property was [thirty] feet

narrower than it should have been” and although Appellees deny being

mistaken about what they were purchasing, that should not prevent a

finding of a mutual mistake. (Id. at 19; see id. at 18-19). We disagree.

      Preliminarily we note that Appellants claim that Mr. Weaver was acting

as an agent for all parties and, accordingly, the court should impute his error

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J-A31032-15



in placing the boundary line between the add-on lots thirty-feet to the west

to all parties and therefore should find that a mutual mistake occurred.

(See id. at 20-21).    Appellants correctly point out that, at trial, the court

referred to Mr. Weaver as “the agent of all of these folks[.]” (N.T. Trial, at

196). However, in its opinion, the court explained that

             [Appellants] argue first that the court should have found a
      mutual mistake by finding that Larson Design Group was an
      agent of all parties to the deeds and since Larson’s land surveyor
      made the mistake, such should be imputed to all parties. The
      surveyor, Mr. Weaver, testified however, that he was contacted
      by and contracted with a Mr. Mayer, one of the parties’
      neighbors, who initiated the transactions when he inquired with
      [Transco] whether he could buy one acre of ground behind his
      lot. Thus, the court cannot find that Larson acted as an agent
      for all parties to the deeds. . . .

(Trial Ct. Op., at 1-2) (footnote omitted).

      We agree with the trial court’s opinion that Mr. Weaver was not acting

as an agent to all parties to the deeds. See eToll, Inc. v. Elias/Savion

Advert., Inc., 811 A.2d 10, 21 (Pa. Super. 2002) (“Agency results only if

there is an agreement for the creation of a fiduciary relationship with control

by the beneficiary.”) (citation omitted). Here, Appellants have not met their

burden of establishing an agency relationship between Mr. Weaver and all

parties to the deeds. See id. Moreover, even if Mr. Weaver were acting as

an agent to all parties, reformation on the basis of a mutual mistake would

not be warranted because, as discussed below, Appellants failed to

demonstrate a shared intent between the parties.




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J-A31032-15



      We review a trial court’s equitable decree for an abuse of discretion.

See Nebesho, supra at 725. “Courts of equity have jurisdiction to reform

deeds and instruments where mutual mistake exists.          A mutual mistake

occurs when the written instrument fails to properly set forth the ‘true’

agreement among the parties.”      Daddona v. Thorpe, 749 A.2d 475, 487

(Pa. Super. 2000), appeal denied, 761 A.3d 550 (Pa. 2000) (citations

omitted); see also Krieger v. Rizzo, 161 A. 483, 484 (Pa. Super. 1932)

(“The right to reformation of a deed in equity, if mutual mistakes appear, is

unquestionable where the purpose is to correct the inaccurate description

given therein, and make it conform to the intention of the parties.”) (citation

omitted).

      Here, the trial court found that “[Appellants] have failed to prove that

it was [Appellees’] intention to have the boundary line of the add-on lot

follow the boundary line of the original lots” and that “the testimony of

[Appellees] makes it clear they were not misled by the mistake, they knew

the boundary line of the add-on lots did not follow the original boundary line

between their property and that of [Appellants], and thus there was no

mutual mistake.” (Trial Ct. Op., at 2; see also N.T. Trial, at 66).   We agree

with the trial court’s conclusion that Appellants have failed to prove that

there was a shared intent between the parties that the boundary line of the

add-on lots follow the common boundary line of the original properties.

Therefore, we conclude that the trial court properly exercised its discretion in




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J-A31032-15



not reforming the deeds. See Daddona, supra at 487; Krieger, supra at

484. Appellants’ second issue does not merit relief.

      In Appellants’ third issue, they claim that the trial court erred in sua

sponte issuing an injunction against the parties.      (See Appellants’ Brief at

22-23). We are constrained to agree.

      “[W]hen reviewing the grant or denial of a final or permanent

injunction, an appellate court’s review is limited to determining whether the

trial court committed an error of law.” Buffalo Twp. v. Jones, 813 A.2d

659, 663-64 (Pa. 2002), cert. denied, 540 U.S. 821 (2003) (footnote

omitted).

      Although “courts in [e]quity may enjoin repeated and continuing

trespasses”, Rogoff v. Buncher Co., 151 A.2d 83, 86 (Pa. 1959) (citation

omitted), our Court has held that a trial court acts improperly in issuing an

injunction sua sponte where none had been sought by the plaintiff.          See

Edward M. v. O'Neill, 436 A.2d 628, 632 (Pa. Super. 1981). In Edward

M., this Court reasoned that although the trial court had the right to issue an

injunction the court did not have the authority to “ignore established

procedures” and erred in issuing an injunction where it “was not sought nor

was a hearing conducted prior to the sua sponte issuance of the injunctive

order.” Id.; see also Moore v. Mobil Oil Co., 480 A.2d 1012, 1018 (Pa.

Super. 1984) (finding that trial court erred in sua sponte ordering final

hearing on preliminary injunction).          Furthermore, prior to issuing a

permanent injunction involving freedom of expression, courts are required to

                                    - 11 -
J-A31032-15



conduct a final hearing pursuant to Pennsylvania Rule of Civil Procedure

1531(f). See Pa.R.C.P. 1531(f); Moore, supra at 1018.

      Here, our review of the record indicates that the trial court issued the

within injunction permanently enjoining the parties from “conduct intended

to annoy the other or otherwise interfere with the other’s quiet enjoyment of

their property[,]” without either party seeking such relief and without first

conducting a final hearing.      (Order, 11/20/14).      Therefore, we are

constrained to conclude that the trial court erred in issuing the permanent

injunction sua sponte and without a hearing. See Moore, supra at 1018;

Edward M., supra at 632. Accordingly, we vacate the injunction.

      Finally, in Appellees’ only issue on appeal, they claim that the trial

court erred in not awarding monetary damages to them after entering

judgment in their favor on their claim of trespass. (See Appellees’ Brief, at

25). This issue is waived and would not merit relief.

      Preliminarily, we note that Appellees failed to cite any legal authority

or develop any cogent argument that the trial court should have awarded

monetary damages. (See id.). A party’s failure to cite cases or other legal

authority on the issue on appeal results in the waiver of that issue under

Pennsylvania Rule of Appellate Procedure 2119. See Pa.R.A.P. 2119(a), (b);

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014). Therefore, Appellees’ issue is waived.

      Moreover, we would find no merit to Appellees’ issue.      An award of

damages by the trial court is evaluated under an abuse of discretion

                                    - 12 -
J-A31032-15



standard and will only be disturbed where it “appears that the amount

awarded resulted from partiality, caprice, prejudice, corruption or some

other improper influence.” Delahanty v. First Pennsylvania Bank, N.A.,

464 A.2d 1243, 1257 (Pa. Super. 1983) (citation omitted).              “In reviewing

the award of damages, the appellate courts should give deference to the

decisions of the trier of fact who is usually in a superior position to appraise

and weigh the evidence.” Id. (citations omitted).

      Here, the trial court explained in its opinion that “damages were not

awarded as proof thereof was too speculative[.]”           (Trial Ct. Op., at 3).

Therefore, we would conclude that the trial court did not abuse its discretion

in not awarding monetary damages.              See Delahanty, supra at 1257.

Accordingly, Appellees’ issue would not merit relief, even if not waived.

      Judgment    affirmed   in   part   and    vacated   in   part.     Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2016




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