J-S03013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANN MARIE LEMMI,                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

KEVIN GEORGE LEMMI,

                            Appellee                   No. 709 WDA 2016


                     Appeal from the Order of April 13, 2016
              In the Court of Common Pleas of Washington County
                        Civil Division at No(s): 92-2677


BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                 FILED JUNE 1, 2017

       Appellant, Ann Marie Lemmi, appeals from the order entered on April

13, 2016,1 denying her petition to enforce an agreement incorporated into

the parties’ divorce decree. Upon careful consideration, we affirm.

       The trial court briefly summarized the facts of this case as follows:

         [Appellant] and Kevin George Lemmi (Husband) were
         married in [1981]. Their son, James, was born January 18,
         1982. During the marriage, [Husband] acquired a tract of
         land in Hanover Township. On April 30, 1992, [Appellant]
         filed a complaint in divorce[.] On May 25, 1994, the parties
         entered into a “stipulation,” paragraph 2 of which provides:
         “Husband does hereby agree to convey to the parties’ son,
         Jimmy, at age eighteen ten acres from [H]usband’s farm
         property located in Hanover Township, Washington,
____________________________________________


1
   The order is dated April 16, 2016. However, the record reflects that the
order and accompanying opinion were time-stamped and entered on April
13, 2016. We have changed the caption accordingly.



* Retired Senior Judge assigned to the Superior Court.
J-S03013-17


         County.” On May 27, 1994, the parties were divorced by
         decree of the Washington County Court of Common Pleas.
         The decree contained the following language: “It is further
         ordered that: the ‘stipulation’ dated May 25, 1994, by and
         between the said parties be incorporated herein.” [The
         decree was signed by Judge] O’Dell Seneca[.]

         James “Jimmy” Lemmi [(Son)] turned eighteen (18) on
         January 18, 2000. To date, [Husband] has conveyed none
         of his Hanover Township land to [S]on.          There were
         demands that he do so, oral and written, but none of record
         until June 29, 2015, when [Appellant] filed a petition to ask
         the [trial] court to enforce the agreement.

Trial Court Opinion, 4/13/2016, at 1-2 (superfluous capitalization omitted).

       On July 15, 2015, counsel for Husband entered his appearance and

filed an answer and new matter to the petition to enforce the marital

settlement agreement. Appellant filed a response to Husband’s answer and

new matter on July 27, 2015.              The trial court scheduled a hearing for

October 6, 2015. Upon consent of both parties, the hearing was rescheduled

twice. On January 20, 2016, the trial court entered an order, agreed to by

the parties that they were to prepare and file a stipulated set of facts by

February 16, 2016, legal memoranda by March 10, 2016, and reply briefs by

March 20, 2016. By order entered on April 13, 2016, the trial court denied

Appellant relief, based upon the stipulated facts, finding the four-year

statute of limitations for contracts barred Appellant’s petition to enforce the

agreement. This timely appeal resulted.2
____________________________________________


2
   As previously noted, the trial court order and opinion is dated April 16,
2016; however, the order was time-stamped and docketed on April 13,
2016. The docket reflects that notice of the order’s entry was sent to the
(Footnote Continued Next Page)


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      On appeal, Appellant raises the following issues for our review:

         I.     Even without tolling, based on pure arithmetic of the
                relevant dates with the application of disputed facts
                viewed most favorable to Appellant/Son because no
                evidentiary hearing was held, does the statute of
                limitations bar Son’s claims on the deed and mineral
                rights leases?

         II.    Is equitable tolling present in this case because
                Husband owed fiduciary duties to Son that included
                full disclosure, and Son, through [Appellant], brought
                the petition to enforce within four years of his
                discovery of the violation of those duties?

         III.   Under Crispo, Miller, and K.A.R.,3 are Husband’s
                duties to Son continuing in nature?

                       _______________________
(Footnote Continued)

parties on April 14, 2016. Pursuant to Pa.R.A.P. 903(a), a notice of appeal
“shall be filed within 30 days after the entry of the order from which the
appeal is taken.” Pa.R.A.P. 903(a).         “Generally, the time for appeal
commences following the entry of a final order.” Reeves v. Middletown
Athletic Ass'n, 866 A.2d 1115, 1120 (Pa. Super. 2004) (citation omitted;
emphasis in original). “For this purpose, an order is ‘entered’ when it has
been docketed and notice of the docketing has been given to the parties.”
Id. Here, while the trial court assigned the date, April 16, 2016, to the
order challenged on appeal, the trial court opinion is time-stamped, and the
docket reflects a filing date of April 13, 2016. The time-stamped trial court
opinion and the docket further confirm that the parties were given notice of
the entry of the order on April 14, 2016. Hence, Appellant had 30 days from
April 14, 2016, to file a timely appeal. Because the 30 th day fell on a
Saturday, Appellant had two additional days to file her notice of appeal or
until Monday, May 16, 2016. See 1 Pa.C.S.A. § 1908. Appellant filed her
notice of appeal timely on May 16, 2016. The trial court issued an order
pursuant to Pa.R.A.P. 1925(b), directing Appellant to file a concise statement
of errors and Appellant complied timely. The trial court relied on its earlier
opinion, dated April 16, 2016, to support its decision to deny Appellant relief.
3
  Crispo v. Crispo, 909 A.2d 308 (Pa. Super. 2006), Miller v. Miller, 983
A.2d 736 (Pa. Super. 2009), and K.A.R. v. T.G.L., 107 A.3d 770 (Pa. Super.
2014), respectively.



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         IV.   Does Appellant [] have standing to bring this petition
               on behalf of [] Son?

         V.    Because the stipulation was merged into the [divorce]
               decree (the language of [the] decree says
               ‘incorporated’ but lacks the phrase ‘not merged’), is
               the stipulation a court order to which the statute of
               limitations does not apply?

Appellant’s Brief at 3 (complete capitalization and suggested answers

omitted).

      First, we must address Husband’s motion to quash the appeal filed

with this Court on August 12, 2016.      Here, we have reviewed the parties’

various trial court filings, Appellant’s Rule 1925(b) statement, her appellate

brief, and the trial court’s opinion, and conclude that Appellant properly

presented and preserved two appellate issues, issues III and V as presented

above.    Because, as discussed at length below, Appellant preserved two

appellate issues, we deny Husband’s motion to quash.

         We begin our analysis by examining the certified record and looking

at the issues currently presented.    Our review confirms that Appellant did

not raise issues I, II, or IV before the trial court. This is a fatal impediment

to appellate review and we find them waived. Pursuant to Pa.R.A.P. 302(a),

“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal.” Moreover, once an issue has been decided by the

trial court, an appellant may not present a new legal theory on appeal. See

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (“for any

claim that was required to be preserved, this Court cannot review a legal



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theory in support of that claim unless that particular legal theory was

presented to the trial court”). Further, “[a]n appellant's failure to include an

issue in [her] Rule 1925(b) statement waives that issue for purposes of

appellate review.”    Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super.

2006).

      Upon review, issue I, wherein Appellant currently argues that Husband

misled Son and fraudulently concealed gas leases on the property, was not

presented to the trial court below and was not properly preserved. With

regard to issue II, Appellant argues that the 1994 stipulation “created a de

facto trust with fiduciary duties upon Husband owed to Son[.]” Appellant’s

Brief at 10.     Appellant did not argue before the trial court that the

agreement created a trust or that Husband breached fiduciary duties and

she cannot do so now.      In issue IV, Appellant argues she has standing to

bring this action on behalf of Son.      Appellant’s Brief at 13.   Appellant’s

standing has never been in question. Appellant has waived these claims.

      Finally, we note that Appellant previously argued that the parties’

agreement was subject to the 20-year statute of limitations because it was

under seal.    Appellant’s Brief in Support of Enforcing Stipulation, 3/14/2016,

at 5-7 (unpaginated).      Appellant did not include this issue in her Rule

1925(b) statement and, therefore, she waived it.       Moreover, an appellant

may abandon a claim on appeal by “fail[ing] to provide a single legal citation

in support of [an] argument, or to otherwise develop [an] issue in any

meaningful way.” Moranko v. Downs Racing LP, 118 A.3d 1111, 1117 n.

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3 (Pa. Super. 2015).            Currently, Appellant does not argue that the

agreement was under seal and, thus, she abandoned that claim on appeal.

       In issue III, Appellant maintains that Husband had continuing duties

under Crispo, Miller, and K.A.R..              Appellant’s Brief at 12-13.   In issue V,

Appellant argues that the parties’ stipulation merged into the divorce decree

and no statute of limitations applies to the enforcement of a court order.

These issues were presented to the trial court, raised in Appellant’s Rule

1925(b) statement, and are properly before this Court. Thus, we will confine

our appellate review to Appellant’s third and fifth issues.

       Regarding issue III, Appellant argues, “the statute of limitations does

not apply to the deed transfer under Crispo, Miller and K.A.R. due to

Husband’s continuing duties to Son….” See Appellant’s Brief at 13.4 We note

that aside from baldly citing Crispo, Miller and K.A.R., Appellant provides

scant legal analysis.          On this basis, we could find waiver.                See

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010), citing

Pa.R.A.P. 2119(b) (citations to authorities must articulate the principles for

which they are cited).           Even though Appellant’s brief on this issue is




____________________________________________


4
  Appellant also interjects a new argument related to mineral rights, which is
not properly before us. See Andrews v. Cross Atlantic Capital Partners,
Inc., 2017 WL 1057492, at *4 (Pa. Super. 2017) (an argument on appeal
that advances a different legal theory than that offered at trial and post-trial,
is waived on appeal).



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meagre, however, we conclude that issue III has been preserved and

sufficiently presented for our review.

      This Court has previously determined:

        The statute of limitations for contracts is four years. [T]he
        statute of limitations begins to run as soon as the right to
        institute and maintain a suit arises. However, [w]hen a
        contract is continuing, the statute of limitations will run
        either from the time the breach occurs or when the contract
        is terminated. The test of continuity, so as to take the case
        out of the operation of the statute of limitations, is to be
        determined by the answer to the question whether the
        services were performed under one continuous contract,
        whether express or implied, with no definite time fixed for
        payment, or were rendered under several separate
        contracts.

K.A.R., 107 A.3d at 775-776 (internal quotations and citations omitted).

      Here, the applicable provision of the stipulation created a one-time

obligation to convey property to Son at a specific time, rather than the type

of ongoing duty held to support the finding of a continuing contract in Miller

or Crispo. See Crispo, 909 A.2d at 313-314 (finding property settlement

agreement was a continuing contract where one party was required to make

the other’s credit card payments and to make installment payments on a

business interest and no start or end dates for payments were specified);

Miller, 983 A.2d at 742-743 (holding settlement agreement was a

continuing contract where husband was required to make mortgage and tax

payments on marital residence and agreement did not indicate specific

amounts owed or a deadline for payment). Based upon the foregoing, the

stipulation at issue in this case was not a continuing contract. See K.A.R.,

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107 A.3d at 778 (determining that there was no continuing contract because

the agreement at issue provided a specific date when the husband became

obligated to make the payment of a specific amount to wife).

      Moreover, even if the stipulation between Appellant and Husband were

considered to be a continuing contact, the statute of limitations still would

bar Appellant’s claim made in 2015. The latest date any party possibly was

required to pay anything under the stipulation was when Son reached 22

years of age. See Stipulation, 5/25/1994, at ¶ 5 (providing that Husband

list Son as sole beneficiary of any employer-provided insurance policy until

Son turns 18 or graduates college, “until a maximum age of twenty-two

years”).    Thus, the contract was terminated, at the latest, on Son’s 22nd

birthday in 2002. Accordingly, the four-year statute of limitations expired in

2006, long before Appellant sought to enforce the stipulation. Accord GAI

Consultants, Inc. v. Homestead Borough, 120 A.3d 417, 426 (Pa.

Cmwlth. 2015) (holding that the statute of limitations would not begin to run

on breach of continuing tax increment financing agreement until the

termination of the contractual relationship).      Accordingly, Appellant is not

entitled to relief on her third appellate claim.

      Next, the entire sum of Appellant’s fifth argument, as presented, is as

follows:

           The [s]tipulation is incorporated AND merged into the
           [d]ivorce [d]ecree.        The [s]tipulation is therefore
           enforceable as part of the [d]ecree.          No statute of
           limitations applies to a [c]ourt [o]rder, including a divorce

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        decree.  23 Pa.C.S.A. § 3105(a).       As a result, all of
        Husband’s time-bar defenses are inapplicable here.

Appellant’s Brief at 13-14 (record citation omitted).

      When interpreting a marital settlement agreement,

        the trial court is the sole determiner of facts and absent an
        abuse of discretion, we will not usurp the trial court's
        fact-finding function. On appeal from an order interpreting
        a marital settlement agreement, we must decide whether
        the trial court committed an error of law or abused its
        discretion.

        Judicial discretion requires action in conformity with law on
        facts and circumstances before the trial court after hearing
        and due consideration. Such discretion is not absolute, but
        must constitute the exercise of sound discretion. This is
        especially so where, as here, there is law to apply. On
        appeal, a trial court's decision will generally not be reversed
        unless there appears to have been an abuse of discretion or
        a fundamental error in applying correct principles of law. An
        abuse of discretion or failure to exercise sound discretion is
        not merely an error of judgment. But if, in reaching a
        conclusion, law is overridden or misapplied, or the judgment
        exercised is manifestly unreasonable or lacking in reason,
        discretion must be held to have been abused.

        Because contract interpretation is a question of law, this
        Court is not bound by the trial court's interpretation. Our
        standard of review over questions of law is de novo and to
        the extent necessary, the scope of our review is plenary as
        the appellate court may review the entire record in making
        its decision. However, we are bound by the trial court's
        credibility determinations.

                            *        *            *

        Marital settlement agreements are private undertakings
        between two parties, each having responded to the give and
        take of negotiations and bargained consideration. A marital
        support agreement incorporated but not merged into the
        divorce decree survives the decree and is enforceable at law
        or equity. A settlement agreement between spouses is

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        governed by the law of contracts unless the        agreement
        provides otherwise. The terms of a marital         settlement
        agreement cannot be modified by a court in the     absence of
        a specific provision in the agreement providing    for judicial
        modification.

        Established Pennsylvania law states:

            When interpreting the language of a contract, the
            intention of the parties is a paramount consideration.
            In determining the intent of the parties to a written
            agreement, the court looks to what they have clearly
            expressed, for the law does not assume that the
            language was chosen carelessly. When interpreting
            agreements containing clear and unambiguous
            terms, we need only examine the writing itself to
            give effect to the parties' intent.

        In other words, the intent of the parties is generally the
        writing itself. In ascertaining the intent of the parties to a
        contract when unclear from the writing itself, the court
        considers the parties' outward and objective manifestations
        of assent, as opposed to their undisclosed and subjective
        intentions.

Stamerro v. Stamerro, 889 A.2d 1251, 1257–1258 (Pa. Super. 2005)

(internal citations, quotations, brackets and footnote omitted).

      Moreover, this Court previously determined:

        If a [marital] agreement survives as an enforceable
        contract, it is governed by the law of contracts. If a
        [marital] agreement merges into a divorce decree, however,
        the agreement takes on all of the attributes of support
        [o]rders for purposes of modification and enforcement. The
        key to analyzing questions of merger and modifiability is to
        ascertain whether or not a merger was intended by the
        parties. The starting point for determining the intent of the
        parties is the language and terms of the agreement itself. If
        the language is clear and unambiguous, this court need only
        examine the writing itself to give effect to the parties'
        understanding.



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Jones v. Jones, 651 A.2d 157, 158–159 (Pa. Super. 1994) (internal

citations, quotations, and original brackets omitted).

      In this case, the divorce decree states, “IT IS FURTHER ORDERED

THAT: the “STIPULATION” DATED MAY 24, 1994, by and between the parties

be incorporated herein.” Decree, 5/31/1994. We previously determined:

        [A]ny agreement which speaks of incorporation but rejects
        merger was intended by the parties not to be brought
        [before the trial court] for the enforcement of separation
        agreements. Only by an [o]rder which does not reject
        merger, or required court enforcement of the agreement,
        does it become part of the decree and have the effect of an
        [o]rder. By renouncing merger and failing to have language
        in the decree requiring enforcement as a court [o]rder, the
        contract survives.

McMahon v. McMahon, 612 A.2d 1360, 13638 (Pa. Super. 1992). In this

case, upon a plain reading review, the marital agreement was expressly

incorporated, but not expressly merged, into the divorce decree.      As the

trial court properly concluded:

        In this case, the parties agreed that [Husband] would take
        some action in the future. That promise was part of a
        contract which was separate and independent from the
        divorce decree and which must be enforced, if at all,
        according to the law of contracts.

Trial Court Opinion, 4/13/2016, at 3. We agree and discern no error of law

or abuse of discretion.

      Moreover, even if the agreement was ambiguous regarding merger,

the parties did not intend for the trial court to continue monitoring the

agreement.    As the trial court further noted, Husband “had to do a single



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thing at a single time, i.e., convey 10 acres to his son in the year 2000.” Id.

at 3-4. It was a simple contract between the parties, subject to the statute

of limitations and not subject to court modification.      Thus, the trial court

correctly determined the agreement did not merge with the divorce decree.

The agreement between the parties was a separate, stand-alone contract

and the trial court correctly applied the applicable four-year statute of

limitations and determined that Appellant’s claims were time-barred.

Accordingly, Appellant is not entitled to relief on her sole, preserved

appellate issue.

      Finally, on December 19, 2016, Appellant filed a motion to correct the

record pursuant to Pa.R.A.P. 1926(b)(1).        Appellant contends that because

“the lower court did not conduct [a] hearing[,] critical testimony of [Son] is

absent from the record now before this Court.” Motion to Correct Record,

12/19/2016, at ¶ 3. Attached to the motion to correct the record is an

affidavit from James Lemmi.       Rule 1926(b)(1) provides that “[i]f anything

material to a party is omitted from the record by error, breakdown in

processes of the court, or accident or is misstated therein, the omission or

misstatement may be corrected[.]”           Appellant does not aver that Son’s

testimony   was    omitted   by    error,     court   breakdown,   accident,   or

misstatement.      Instead, Appellant is attempting to submit additional

evidence to this Court that was not presented to the trial court.              We

conclude that Appellant cannot circumvent our procedural rules in this

manner and that Rule 1926 is inapplicable. Hence, we deny Appellant relief.

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     Order affirmed.      Motion to Quash denied.   Motion to Correct Record

denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2017




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