J-A07001-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREW J. RIOS, AS TRUSTEE OF THE                    IN THE SUPERIOR COURT OF
ANDREW J. RIOS 2012 TRUST AND                              PENNSYLVANIA
DERIVATIVELY ON BEHALF OF EAGLE
DESIGN, INC.,

                           Appellants

                      v.

JOSEPH RIOS, TJR ENTERPRISES, INC.,
A PENNSYLVANIA CORPORATION, AND
CAMTAR CORPORATION, A
PENNSYLVANIA CORPORATION,

                           Appellees                        No. 470 WDA 2015


                      Appeal from the Order March 6, 2015
               In the Court of Common Pleas of Allegheny County
                       Civil Division at No(s): GD 14-17216


BEFORE: BOWES, MUNDY AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                                     FILED JUNE 08, 2016

      Andrew J. Rios, as Trustee of the Andrew J. Rios 2012 Trust and

derivatively    on   behalf   of   Eagle   Design,   Inc.    (“Eagle”)   (collectively

“Plaintiffs”), appeals from the March 9, 2015 order enforcing a settlement

agreement reached in a contentious dispute with his brother, Joseph Rios,

and   corporations     over    which    Joseph   asserted      control   (collectively

“Defendants”). We affirm.

      The facts, as gleaned from the record, consist of the following.

Andrew was the President, CEO and Director of Eagle, a corporation formed
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in 1998 and engaged in construction and building maintenance and cleaning

services, with annual revenues of approximately $800,000. He owned 100%

of all voting stock and 3,000 shares of nonvoting stock in the corporation.

His brother Joseph was the CEO of TJR Enterprises, Inc. (“TJR”), which was

engaged in similar business activities.     Eagle and TJR would occasionally

share employees and equipment and the offices were located in a building

owned by Joseph.        Starting in 2014, Eagle’s business records were

maintained on TJR’s computer system.

      According to Andrew, Joseph sought legal counsel from an estate

planning attorney in an effort to minimize tax liability due to the profitability

of Eagle. Andrew, as Grantor, subsequently established a Family trust and

gifted 6,900 shares of Eagle non-voting stock to that trust. Theresa Dunkle,

the brothers’ sister, was its trustee.        Andrew and Joseph’s parents

established the Andrew J. Rios 2012 trust, with Andrew as trustee and owner

of a beneficial interest.   Andrew sold thirty percent of Eagle’s non-voting

stock and a 100 percent interest in its voting stock to that trust.

      The relationship between Andrew, Joseph and Theresa began to

deteriorate in 2014.    On September 23, 2014, Andrew filed the instant

action in the Court of Common Pleas of Allegheny County seeking a

preliminary injunction and access to Eagle’s business accounting records and

assets. He pled therein that Joseph installed a comptroller at Eagle who was

loyal to Joseph, thereby gaining control of all the financial records,

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equipment and personnel of Eagle.     Andrew maintained that he had been

locked out of the Eagle offices since July 2014, and that Joseph refused him

access to Eagle business records.    He averred that Joseph was exerting

control over Eagle employees and diverting Eagle’s business opportunities to

TJR. He sought an injunction directing Joseph and the corporate defendants

to turn over all accounting files, corporate records, and corporate assets of

Eagle.

     On October 7, 2014, the case was assigned to the commerce and

litigation center with the consent of the parties.   The court immediately

scheduled a hearing on Andrew’s motion for a preliminary injunction for

December 2, 2014, and ordered the parties to preserve all electronic data

stored on corporate systems relating to Eagle and the two trusts.

     Joseph filed an answer denying that Eagle’s assets were used by TJR

to compete, and maintained further that TJR hired a couple of Eagle

employees only because Eagle had no ongoing construction work for them to

perform. He pled that he and Andrew made a mutual decision to wind down

operations at Eagle. Answer at ¶28. He denied that Andrew was locked out

or denied access to any of the financial information necessary to operate

Eagle. Id. at ¶33. Joseph filed a counterclaim requesting an accounting of

funds Andrew had withdrawn from Eagle and dissolution of that entity, or in

the alternative, appointment of a receiver to dissolve Eagle. On November




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12, 2014, Joseph sought emergency injunctive relief to stop Andrew from

dissipating the Eagle assets and engaging in self-dealing.

      The parties agreed to mediate their dispute and subsequently reached

a tentative settlement that was reduced to writing in the form of a Material

Settlement Term Sheet on December 8, 2014.          They resolved additional

outstanding issues on January 14, 2015, and the Term Sheet was signed by

the parties on that date. The Term Sheet provided inter alia that Andrew

would sell his interest in Eagle. The closing for the sale was scheduled for

January 23, 2015, but Andrew did not attend, ostensibly because his counsel

was unavailable. Thereafter, Joseph filed a motion to enforce the settlement

agreement.    The trial court held a hearing on February 18, 2015, granted

the motion, and the closing was rescheduled for February 26, 2015. On that

date, Andrew objected that the Final Settlement and Mutual Release did not

comport with the agreed-upon terms of the Material Settlement Term Sheet

regarding liability for the Family Trust’s 2015 taxes and the deduction of

amounts at closing for Andrew’s expenditures of Eagle’s money after January

7, 2015.   Hence, Andrew refused to sign the Final Settlement and Mutual

Release.

      On March 2, 2015, Andrew filed an application for declaratory relief

and Joseph countered with a second motion to enforce the settlement

agreement.    Andrew asked the court to rule that, according to the Term

Sheet, he was not responsible for 2015 taxes attributable to his status as a

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grantor of the Family Trust and that Joseph was not entitled to deduct

$21,270.94      from    cash    due    Andrew    at   closing   for   business-related

expenditures Andrew made from Eagle post-January 7, 2015.                     Andrew

argued that paragraph 27 of the Term Sheet was “nothing more than a

penalty masquerading as liquidated damages clause” and unenforceable as a

matter of public policy.

        By order entered March 9, 2015, the court ruled on Andrew’s

application and Joseph’s motion.          The court found Andrew responsible for

payment of the 2015 taxes attributable to his status as grantor of the Family

Trust until closing per the Term Sheet.               Furthermore, the Term sheet

authorized the defendants to deduct $21,270.94 from the amount due

Andrew at closing, which was the amount of the payments made by Andrew

from Eagle funds after January 7, 2015.               Finally, the court ordered the

parties to sign the final Settlement Agreement and Mutual Release within ten

days.

        On March 12, 2015, Andrew sought emergency reconsideration of the

order, and one day later, he filed a notice of appeal and an application for

stay pending appeal.1          Andrew was ordered to file a Pa.R.A.P. 1925(b)

concise statement of issues complained of on appeal, and he complied. The

____________________________________________


1
  The certified record contains no indication that the trial court ruled on
either the motion for reconsideration or the application for stay.



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trial court issued its Pa.R.A.P. 1925(a) opinion. Andrew presents two issues

for our review:

           [I.] Whether it was error for a trial court to grant a motion
     to enforce a settlement agreement without conducting an
     evidentiary hearing.

           [II.] Whether the Court’s [sic] erred when it failed to
     consider paragraph 27 of the term sheet to be a penalty clause
     unenforceable under state law because it imposed a penalty
     without a determination of the damages, if any, to be suffered
     by Defendants.

Appellants’ brief at 5-6.    In reviewing a trial court order enforcing a

settlement agreement,

     our scope of review is plenary as to questions of law, and we are
     free to draw our own inferences and reach our own conclusions
     from the facts as found by the court. However, we are only
     bound by the trial court's findings of fact which are supported by
     competent evidence. The prevailing party is entitled to have the
     evidence viewed in the light most favorable to its position. Thus,
     we will only overturn the trial court's decision when the factual
     findings of the court are against the weight of the evidence or its
     legal conclusions are erroneous.

Salsman v. Brown, 51 A.3d 892, 893-894 (Pa.Super. 2012).

     The following principles inform our review. Settlement agreements are

contracts   governed   by   the   general   rules   of   contract   interpretation.

Thompson v. T.J. Whipple Constr. Co., 985 A.2d 221 (Pa.Super. 2009);

Friia v. Friia, 780 A.2d 664 (Pa.Super. 2001). As with contracts generally,

the intent of the parties is paramount, and “the court will adopt an

interpretation which under the circumstances ascribes the most reasonable,

probable, and natural conduct of the parties, bearing in mind the objects

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manifestly to be accomplished.” Friia, supra at 668 (quoting Charles D.

Stein Revocable Trust v. Gen. Felt Indus., Inc., 749 A.2d 978, 980

(Pa.Super. 2000)). Where the language of the agreement is unambiguous,

the plain meaning of the words is determinative of the parties' intent. Id.

"A contract is deemed ambiguous if it is reasonably susceptible of different

constructions and capable of being understood in more than one sense.

Therefore, a contract will be deemed unambiguous if reasonable persons

could not differ as to the contract's interpretation." Purdy v. Purdy, 715

A.2d 473, 475 (Pa.Super. 1998) (citation and quotation marks omitted).

      Andrew alleges first that the trial court erred in granting the motion to

enforce the settlement without an evidentiary hearing. Defendants point out

that this alleged error is waived as it was not identified in Plaintiffs’ Rule

1925(b) concise statement.       See Pa.R.A.P. 1925(b)(4)(vii).       Plaintiffs

counter that the trial court’s failure to hold an evidentiary hearing was

“implicitly if not openly a part of the concise statement of errors complained

of on appeal.” Appellants’ brief at 8. We disagree. Even though we deem

every error identified in the statement as including “every subsidiary issue

contained therein,” the concise statement does not contain any reference to

the trial court’s failure to conduct an evidentiary hearing.         Pa.R.A.P.

1925(b)(4)(v). This issue is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“issues




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not included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”).2

       Andrew’s second issue is a challenge to the trial court’s construction of

¶27 of the Term Sheet. He complains that the payments he made using the

corporate credit card after January 7, 2015, were for business-related

purposes and that the sum of $21,270.94 should not have been deducted

from the sale price of the stock pursuant to that provision.

       Paragraph 27 of the Term Sheet, which was signed by the parties on

January 15, 2015, provided:

            Effective as of January 7, 2015, Andrew J. Rios agrees not
       to make any further expenditures of [Eagle] funds from [Eagle]
       and/or make any charges on [Eagle] credit cards. If any
       payments are made by Andrew J. Rios they shall be
____________________________________________


2
      Andrew attributed the trial court’s allegedly erroneous conclusion that
he was obligated to pay the 2015 taxes on income generated by the Family
Trust until date of closing to its failure to hold an evidentiary hearing. See
Appellants’ brief at 22 (“By failing to have a trial, the court had no
understanding of the laws rules and regulations that would require plaintiff
to be obligated to pay the tax as noted herein”). We find no merit in this
contention.
       The trial court found the Term Sheet unambiguous regarding Andrew’s
obligation to pay 2015 taxes, and we concur. The 2014 tax obligation was
expressly assigned to Joseph in ¶1 of the Term Sheet. Paragraph 12
obligated the trustee of the Family Trust to take whatever steps were
necessary to cease being a grantor trust for federal tax purposes, effective
at closing.     That paragraph further provided, “Upon the Closing and
thereafter, Andrew J. Rios shall have no further obligations relating to the
Family Trust, including . . . the payment of taxes.” Term Sheet ¶12. Hence,
Andrew remained liable for 2015 taxes until the closing date. We agree with
the trial court that, “Any other interpretation would render these paragraphs
meaningless.” Trial Court Opinion, 5/22/15, at 39.



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      deducted from the sale price of the stock set forth in
      paragraph 9. Furthermore, Andrew J. Rios agrees that his last
      paycheck that he will receive from [Eagle] will be paid on
      January 14, 2015 for the week ending January 9, 2015. Andrew
      J. Rios will receive no further wages or benefits after January 9,
      2015 other than health insurance through February 28, 2015.

Material Settlement Term Sheet, 1/14/15, at ¶27 (emphasis added).

      The trial court found, as a matter of law, that Paragraph 27 of the

Term Sheet unambiguously embodied Andrew’s agreement not to expend

Eagle funds after January 7, 2015.        If he did so, the amount of any

payments would be deducted from the sale price of the stock payable to him

at closing. It was undisputed that Andrew made two expenditures totaling

$21,270.94 on January 14 and February 11, 2015.             Thus, the court

concluded, Joseph was entitled to deduct those amounts from the payment

due Andrew at closing.

      Andrew characterizes Paragraph 27 as a stipulated liquidated damages

clause intended as punishment for breach of contract as in Pantuso

Motors, Inc. v. CoreStates Bank, N.A., 798 A.2d 1277 (Pa. 2002) and

Holt’s Cigar Co. v. 222 Liberty Assoc., 591 A.2d 743 (Pa.Super. 1991).

He claims that it is an unenforceable penalty clause “because it was not

arrived at by a good faith effort to estimate in advance what the actual

damage that Defendants would suffer in the event of a breach[.]”

Appellants’ brief at 27.




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      We find no merit in this contention. Pantuso is factually inapposite as

it involved statutory authority for the trial court’s imposition of liquidated

damages against a bank that failed to mark as satisfied various obligations

its customer had repaid. The Pennsylvania Supreme Court upheld an award

that was calculated pursuant to the statute, even though it amounted to

one-half of the original debt.

      Holt’s Cigar, supra, involved an action for damages and injunctive

relief due to breach of a commercial lease.       The trial court imposed a

substantial award based on an agreed upon liquidated damages provision

that provided for a payment of $ 500.00 per day where tenant was unable to

conduct business due to defendant's construction activities.    The issue on

appeal was whether the liquidated damages provision was compensation or

a penalty. This Court held that

      The question [of whether stipulation is a penalty or a valid
      liquidated damages provision] . . . is to be determined by the
      intention of the parties, drawn from the words of the whole
      contract, examined in the light of its subject-matter and its
      surroundings; and in this examination we must consider the
      relation which the sum stipulated bears to the extent of the
      injury which may be caused by the several breaches provided
      against, the ease or difficulty of measuring a breach in damages,
      and such other matters as are legally or necessarily inherent in
      the transaction.

Id. at 747-48. We found, based on the trial testimony, that the fixed sum

bore no reasonable relation to anticipated or probable damages but was a




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penalty    to   discourage   delay.   Since    the   award   did   not   represent

compensation for damages sustained, we reversed and vacated it.

     The document in question is a negotiated settlement agreement.

Andrew agreed not to “make any further expenditures of [Eagle] funds from

[Eagle] and/or make any charges on [Eagle] credit cards” after January 7,

2015. He agreed further that the amount of any payments made after that

date would be deducted from the amount due him for his shares at closing.

The parties did not carve out any exception for expenditures benefitting the

corporation.      We agree     with the   trial court that    Paragraph 27      is

unambiguous.      Furthermore, we find that the provision was intended to

ensure that Eagle was fully compensated dollar-for-dollar for any corporate

funds expended by Andrew after the agreed-upon date, and was not a

penalty.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2016




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