J-S51044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAYEEJAH OAKLEY,                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS RICHARD CLARK,

                            Appellant                No. 3000 EDA 2015


               Appeal from the Judgment Entered August 26, 2015
              in the Court of Common Pleas of Philadelphia County
                         Civil Division at No.: 140100583


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 12, 2016

        Appellant, Thomas Richard Clark, appeals from the trial court’s August

26, 2015 order entering judgment in favor of Appellee, Kayeejah Oakley,

and denying his motion for post-trial relief.1 Specifically, he claims that the

court should have granted post-trial relief because it erred in granting

Appellee’s motion in limine. We affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant purports to appeal from the August 26, 2015 order denying his
post-trial motion. “An appeal from the denial of post-trial motions is
interlocutory and not a final appealable order.” Sagamore Estates Prop.
Owners Ass'n v. Sklar, 81 A.3d 981, 983 n.3 (Pa. Super. 2013) (citation
omitted). However, the prothonotary also entered judgment on August 26,
2015. “The entry of judgment sufficiently perfects our jurisdiction, and we
may proceed to consider the appeal on its merits.” Id. We have corrected
the caption to reflect that Appellant is appealing from the judgment entered.
J-S51044-16



        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s December 15, 2015

opinion.     On January 9, 2014, Appellee filed a breach of contract action

against Appellant alleging that he breached an oral contract between the

parties when he refused to deliver title to a Porsche Panamera after Appellee

made all required payments to him.

        Prior to trial, the court considered two motions in limine filed by

Appellee. The first, filed May 13, 2015, sought to preclude introduction of

evidence from unrelated criminal proceedings involving the parties.        The

second, filed May 15, 2015, sought to preclude evidence in the form of text

messages, which he contended were produced after the discovery deadline

had passed. Appellant filed an answer to the first motion, but failed to file

an answer to the second motion, in contradiction of the court’s pretrial

order, which required a response to motions within ten days of service. 2

(See Order, 5/04/15).          On June 11, 2015, the court denied Appellee’s


____________________________________________


2
    The relevant portion of the pretrial order provides:

        (4) Motions in Limine shall be filed and served upon all
        opposing counsel not later than fifteen (15) days before jury
        selection for trial. . . . Respondent(s) shall file and serve an
        answer within ten (10) days thereafter. If Motions in Limine
        have been resolved or are uncontested, the trial judge should be
        notified immediately.

(Order, 5/04/15).




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motion to preclude evidence of criminal proceedings.        (See N.T. Hearing,

6/11/15, at 11; Order, 6/11/15). With respect to Appellee’s motion in limine

seeking to preclude the text message evidence, it found that counsel had

nearly one month to answer, and yet failed to file a response or opposition

to the motion. Therefore, it granted the motion and precluded evidence of

the text messages. (See N.T. Hearing, 6/11/15, at 11-13; Order, 6/11/15).

Appellant filed a motion for reconsideration, which the court denied.

      The case proceeded to a jury trial on June 12, 2015. At trial, Appellee

testified that in July 2012, he was in the market for a new car. (See N.T.

Trial, 6/12/15, at 46).   However, because his credit score was so low, he

was unable to obtain financing for a loan.      (See id. at 47).   At the time,

Appellant and Appellee were close friends. (See id. at 45).

      Appellee testified that when he found out that he was unable to

purchase the car in his own name, he asked Appellant, “let me just put it in

your name and then put the rest of the loan in your name, and let me pay it

off, and then once it’s paid off, you give me the title and I will put the car in

my name.” (Id. at 49). Appellee intended to pay sixty-thousand dollars as

a down payment for the car. (See id. at 50). Thereafter, he agreed to pay

off the car as quickly as possible by giving Appellant “lump sum payments

every chance that [he] got[,]” and to make the payments either directly, in

person to Appellant, or by depositing the payments into Appellant’s bank

account. (Id.; see id. at 169-70). Appellee claims that pursuant to their

agreement he was responsible for paying off the car before Appellant

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purchased a new car, which he anticipated would happen in one or two

years. (See id. at 49-50, 134).

      On July 5, 2012, Appellant and Appellee went to the Main Line Porsche

dealership and purchased the vehicle.          Appellee paid the agreed to

$60,000.00 down payment. (See id. at 53). Appellant obtained financing

for the $35,000.00 balance due on the car through Gateway Lending, the

dealership’s finance company.     (See id. at 54-55).   The loan had a sixty-

month term at a twelve and one-half percent interest rate, which resulted in

monthly minimum payments of $764.57. (See id. at 56-57).

      In his trial testimony, Appellant testified that he and Appellee agreed

that if Appellee gave him “[h]alf the money down on the car, collateral for

the remaining balance of the car and [payment of the balance] in six

months[,]” Appellant would sign for the loan. (N.T. Trial, 6/15/15, at 46).

He testified that after he and Appellee purchased the car, Appellee gave him

a Rolex watch, which was worth at least twenty-five thousand dollars, as

collateral.   (See id. at 50).   He and Appellee had a falling out in October

2012, after which they agreed that Appellant would give Appellee back the

watch, Appellee would “cash it out,” meaning that he would sell the watch,

and use the money to pay off the loan. (Id. at 54; see id. at 52-54).

      Appellant testified that from June through December 2012, Appellee

made cash deposits of varying amounts into his bank account for the car

loan, and in January 2013, Appellee gave him $9,000.00 in cash as

payment.      (See N.T. Trial, 6/12/15, at 195-96).     Appellee’s deposits all

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exceeded the minimum loan payment.            (See id. at 200).      Appellant

conceded that in November 2013, Appellee paid him $9,080.00, which he

confirmed was the final amount due on the loan.         (See id. at 206-07).

However, Appellant did not pay off the loan from Gateway Lending, because

he perceived the agreement between the parties to have required the loan

to be paid off in six months, by December 2012. (See id. at 170, 208).

      Appellant had the car repossessed from Appellee in November 2013.

(See N.T. Trial, 6/15/15, at 58). He later sold the car for fifty-one thousand

dollars. (See id. at 93). Appellant agreed that Appellee paid approximately

ninety-five thousand dollars on the car; however, he explained that he did

not give him any money back after he sold the car because Appellee had

breached their contract. (See id. at 91). Appellant did not make an oral or

written motion for a directed verdict at the close of evidence.

      On June 15, 2015, the jury arrived at a unanimous verdict finding that

a contract existed between the parties, Appellee satisfied his obligations

under the contract, and Appellant breached his obligations.       (See id. at

170). The jury awarded Appellee damages of $60,000.00. (See id. at 171).

      On June 25, 2015, Appellant filed a motion for post-trial relief, in

which he sought a new trial or alternatively, entry of judgment in his favor.

He argued that the trial court erred in granting Appellee’s motion in limine.

In his brief, Appellant also attempted to obtain a directed verdict pursuant to

Pennsylvania Rule of Civil Procedure 226.     See Pa.R.C.P. 226(b) (“At the

close of all the evidence, the trial judge may direct a verdict upon the oral

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or written motion of any party.”) (emphasis added). On August 26, 2015,

the trial court denied Appellant’s motion and entered judgment in favor of

Appellee.

       This timely appeal followed. Pursuant to the trial court’s order,

Appellant filed his timely statement of errors complained of on appeal on

December 24, 2015. See Pa.R.A.P. 1925(b). The court entered its opinion

on December 15, 2015. See Pa.R.A.P. 1925(a).

       Appellant raises two questions on appeal:

       1. Whether the trial court’s August 26, 2015, order was an
       abuse of discretion and error of law when it denied [Appellant’s]
       [p]ost-trial motion seeking a new trial due to the trial court’s
       granting of [Appellee’s] [m]otion in [l]imine which precluded the
       entry at trial of various text messages exchanged between the
       parties which were germane to the underlying transaction at
       issue[?]

       2. Whether the trial court’s August 26, 2015, order was an
       abuse of discretion and error of law when it denied Appellant’s
       [p]ost-trial motion seeking entry of judgment pursuant to
       Pa.R.C.P. 227.1(a)(2) because had the various text messages
       been admitted at trial, the jury would have likely returned a
       verdict in favor of Appellee [sic] [?]

(Appellant’s Brief, at 4).3

____________________________________________


3
  We note that Appellant attempts to raise an additional issue in his brief
challenging the denial of an alleged motion for a directed verdict. (See
Appellant’s Brief, at 13).   However, this issue was not raised in his
statement of questions presented, nor can it be inferred therefrom. See
Pa.R.A.P. 2116(a). Appellant also failed to raise it in his statement of errors
complained of on appeal.      Accordingly, it is waived.         See Pa.R.A.P.
1925(b)(4)(vii).

(Footnote Continued Next Page)


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      Our standard of review concerning denial of a post-trial motion is well-

settled.

             [O]ur standard of review when faced with an appeal from
      the trial court’s denial of a motion for a new trial is whether the
      trial court clearly and palpably committed an error of law that
      controlled the outcome of the case or constituted an abuse of
      discretion. In examining the evidence in the light most favorable
      to the verdict winner, to reverse the trial court, we must
      conclude that the verdict would change if another trial were
      granted. Further, if the basis of the request for a new trial is the
      trial court’s rulings on evidence, then such rulings must be
      shown to have been not only erroneous but also harmful to the
      complaining parties. Evidentiary rulings which did not affect the
      verdict will not provide a basis for disturbing the jury’s
      judgment. . . .

            Moreover, the admission or exclusion of evidence is within
      the sound discretion of the trial court. In reviewing a challenge
      to the admissibility of evidence, we will only reverse a ruling by
      the trial court upon a showing that it abused its discretion or
      committed an error of law.

Blumer v. Ford Motor Co., 20 A.3d 1222, 1226 (Pa. Super. 2011), appeal

denied, 49 A.3d 441 (Pa. 2012) (citation omitted).

      Our standard of review when considering motions for a directed
      verdict and judgment notwithstanding the verdict are identical.
      We will reverse a trial court’s grant or denial of a judgment
      notwithstanding the verdict only when we find an abuse of
      discretion or an error of law that controlled the outcome of the

                       _______________________
(Footnote Continued)

      Moreover, after careful review of the certified record, we find that
Appellant failed to make an oral or written motion for a directed verdict at
the close of the evidence. See Pa.R.C.P. 226(b); Haan v. Wells, 103 A.3d
60, 68 (Pa. Super. 2014) (reasoning that failure to move for directed verdict
results in waiver of right to seek judgment n.o.v.); (see also N.T. Trial,
6/15/15, at 98-101). Accordingly, this issue is waived.



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       case. Further, the standard of review for an appellate court is
       the same as that for a trial court.

Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 258–59 (Pa. Super.

2015) (citations omitted). Furthermore, “post-trial relief may not be granted

unless the grounds therefor, (1) if then available, were raised in pre-trial

proceedings or by motion, objection, point for charge, request for findings of

fact or conclusions of law, offer of proof or other appropriate method at

trial[.]” Pa.R.C.P. 227.1(b).

       In both of Appellant’s issues, he argues that the trial court erred and

abused its discretion when it granted Appellee’s motion in limine because

Appellant failed to respond to the motion.4 (See Appellant’s Brief, at 7-12).

Although he alleges the trial court’s error prejudiced him at trial because it

resulted in the jury not viewing all of the evidence, he does not provide any

pertinent discussion concerning whether such error controlled the outcome

of the case. (See id. at 9-11). Accordingly, Appellant has failed to develop

any pertinent argument that invokes the applicable standard of review. See

Drake Mfg. Co., Inc., supra at 258–59; Blumer, supra at 1226.

Appellant’s issues are waived and would not merit relief.

____________________________________________


4
  Appellant failed to comply with our Rules of Appellate Procedure requiring
the argument section in his brief to be divided into as many parts as there
are questions to be argued, with pertinent discussion and citation of
authority concerning each point. See Pa.R.A.P. 2119(a). Accordingly, and
because his questions both concern the trial court’s abuse of discretion in
granting Appellee’s motion, we discuss Appellant’s issues together.




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      A trial court’s decision to grant or deny a motion in limine is
      subject to an evidentiary abuse of discretion standard of review.

             Questions concerning the admissibility of evidence lie
         within the sound discretion of the trial court, and we will
         not reverse the court’s decision absent a clear abuse of
         discretion.   An abuse of discretion may not be found
         merely because an appellate court might have reached a
         different   conclusion,    but     requires     a   manifest
         unreasonableness, or partiality, prejudice, bias, or ill-will,
         or such lack of support so as to be clearly erroneous.

            In addition, to constitute reversible error, an evidentiary
      ruling must not only be erroneous, but also harmful or
      prejudicial to the complaining party.

Parr v. Ford Motor Co., 109 A.3d 682, 690–91 (Pa. Super. 2014) (en

banc), appeal denied, 123 A.3d 331 (Pa. 2015), cert. denied, 136 S.Ct. 557

(2015) (citations and quotation marks omitted).

      Here, the trial court granted Appellee’s motion in limine after Appellant

did not file a response objecting to the motion within the ten days provided

by the court’s order. (See Order, 5/04/15). In fact, Appellant failed to file

any response to the motion within the nearly one-month period after the

motion was filed before the court heard argument, and “could provide no

reason for [his] failure to respond at the trial [c]ourt hearing on [m]otions in

[l]imine.” (Trial Court Opinion, 12/15/15, at 2). As such, the trial court’s

decision to grant Appellee’s unopposed motion in limine was not manifestly

unreasonable, or the product of partiality, prejudice, bias, or ill-will.   See

Parr, supra at 690–91.

      Furthermore, the record is clear that “[Appellant] offered ample

testimony in his own behalf, and evidence in his own behalf. The jury, as


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fact finder, did not believe him.” (Trial Ct. Op., at 4). Rather, “[s]ufficient

evidence was adduced at trial that [Appellant] had the Porsche on which

[Appellee] had put a down payment of $60,000.00 repossessed without

consent or knowledge of [Appellee], had converted money [Appellee] had

given [him] to pay off the car loan, and had sold [Appellee’s] car without

remunerating [him].” (Id. at 6).

      Therefore, we conclude that the trial court properly denied Appellant’s

motion for post-trial relief where Appellant has failed to demonstrate an

abuse of discretion or error of law, which controlled the outcome of the case.

See Drake Mfg. Co., Inc., supra at 258–59; Blumer, supra at 1226.

Appellant’s issues do not merit relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2016




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