Custodio, E. v. Mabrantes, LLC

• Court: Superior Court of Pennsylvania
• Decided: February 6, 2025
• Docket: 1639 EDA 2024
• Status: Unpublished

Opinion

J-S43044-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

EVELYN CUSTODIO : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MABRANTES, LLC, AND MIGUEL : ABRANTES : : Appellants : No. 1639 EDA 2024

Appeal from the Judgment Entered May 15, 2024 In the Court of Common Pleas of Monroe County Civil Division at No(s): 002094-CV-2022

BEFORE: BOWES, J., STABILE, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 06, 2025

In this dispute over a residential-property transaction, Mabrantes, LLC

and Miguel Abrantes (“Sellers”), appeal from the judgment entered in favor of

Evelyn Custodio (“Buyer”). Because Sellers neglected to challenge the legal

sufficiency of Buyer’s evidence at trial, we affirm.

In June of 2020, law enforcement responded to a complaint at 117

Stroud Lane in Middle Smithfield Township. See Trial Court Opinion, 3/15/24,

at 3. The officer found 99 cats living in the home with their urine and feces

saturating the flooring, subflooring, drywall, and studs. He removed the cats,

but the owner did not clean the house. A year later, on August 5, 2021, the

owner conveyed the home to Sellers “in awful condition, smell[ing] of cat urine

with animal waste throughout the house . . . .” Id.

Sellers, licensed contractors since 2005, removed the feces, flooring,

some subflooring, and some drywall. However, they did not remove all of the J-S43044-24

urine-saturated subflooring and studs. Instead, Sellers exposed the house’s

bones to the air, allowed the moisture to dry, and placed various masking

products over the bones to conceal the smell. Sellers then concealed the urine

stains by installing new flooring and drywall.

Shortly thereafter, in the fall of 2021, Buyer toured the home. Sellers

gave her an incomplete and partially falsified Real Estate Seller’s Disclosure

Form. Buyer contracted to purchase the home for $290,000. She had the

home inspected. When the inspector arrived, “it was cool and sunny, and the

doors and windows were open.” Id. at 2. The inspector did not smell cat

urine.

On December 21, 2021, the parties closed. Buyer simultaneously

mortgaged the property to a third party for $275,500.

Buyer moved into the home the following spring. As the temperatures

warmed, she began smelling the cat urine. She investigated the odor, and,

based upon what Buyer learned, she sued Sellers for fraud and other statutory

violations.

The matter proceeded to a non-jury trial. At the close of Buyer’s case-

in-chief, Sellers did not move for a compulsory nonsuit. See N.T., 2/26/24,

at 85. Similarly, after all the evidence was submitted, Sellers failed to move

for a directed verdict. See id. at 123. In fact, the parties did not even make

closing arguments to the trial court.

Three weeks later, the court issued its decision, ruling that Sellers had

committed fraud and violated the Real Estate Seller Disclosure Law

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(“RESDL”).1 Using its equitable powers, the court rescinded the contract;

awarded Buyer restitution damages2 of $344,818.33; and ordered Buyer to

return her title to the property to Sellers.

Sellers moved for post-trial relief. They contended that the trial court

erroneously “found that fraud and violations of the RESDL were established

by testimony and evidence at a clear and convincing level,” so that Sellers

were “entitled to a verdict in their favor.” Sellers’ Post-Trial Motions at 1, 3.

After receiving briefs, the trial court entered an order dismissing the issue of

whether legally sufficient evidence proved fraud and violations of the RESDLA

as waived. The court entered judgment in favor of Buyer, and Sellers timely

appealed.

Sellers raise one issue: “Did the trial court err in finding that fraud and

violations of the RESDL were established by testimony and evidence at a clear

and convincing level?” Sellers’ Brief at 5.

From reading the argument section of their brief, it is clear that Sellers

contend Buyer presented legally insufficient evidence to support her causes of

action. According to Sellers, “The evidence presented simply failed to rise to

the legal standard required. There was no expert testimony at all and simply

unsubstantiated conjecture by the various witnesses.” Sellers’ Brief at 18.

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1 See 68 Pa.C.S.A. §§ 7302-7315.

2 The damage award included a refund of the purchase price, inspection costs,

appraisal fees, closing costs, mortgage interest, property taxes, insurance payments, utilities, winterization costs, and HOA fees.

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The remainder of Sellers’ brief is a litany of the evidence that Sellers believe

Buyer needed to produce to establish her prima facia case for fraud. See id.

at 18-20. Hence, Sellers seek judgment as a matter of law.

As mentioned, the trial court, upon consideration of Sellers’ motion for

post-trial relief, dismissed this issue as waived. The trial court opined, “any

arguments of [Sellers] that go to the sufficiency of evidence presented by

[Buyer] were waived as [Sellers] did not request a nonsuit or directed verdict

at trial. See Haan v. Wells, 103 A.3d 60 (Pa. Super. 2014).” Trial Court

Opinion, 8/20/24, at 2. “We deny any sufficiency-of-evidence claims out of

hand for that reason.” Id.

On appeal, Sellers offer no rebuttal to the trial court’s finding of waiver.

For her part, Buyer reiterates that Sellers’ attempt to challenge the sufficiency

of the evidence and obtain judgment as a matter of law is waived. See Buyers’

Brief at 10. We agree with the trial court and Buyer.

“The issue of waiver presents a question of law, and, as such, our

standard of review is de novo, and our scope of review is plenary.” In re

Estate of Anderson, 317 A.3d 997, 1003 (Pa. Super. 2024).

When a party moves for post-trial relief, the trial court may only grant

such relief if the “grounds therefor . . . were raised in pre-trial proceedings or

by motion . . . at trial.” Pa.R.C.P. 227.1(b)(1). To preserve the issue of

whether the defendant is entitled to judgment as a matter of law for post-trial

relief, the defendant must move for a compulsory nonsuit at the close of the

plaintiff’s case-in-chief or for a directed verdict at the close of all the evidence.

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For example, regarding a nonsuit, under Rule of Civil Procedure 230.1,

“In an action involving more than one defendant . . . [a] nonsuit may be

entered in favor of . . . (2) any of the defendants who have moved for

nonsuit . . . .” Pa.R.C.P. 230.1(c)(2) (emphasis added). Similarly, regarding

directed verdicts, Rule 226 provides that, “At the close of all evidence, the

trial court may direct a verdict upon the oral or written motion of any

party.” Pa.R.C.P. 226(b) (emphasis added).

As we explained in Haan, supra, “A motion for compulsory nonsuit

allows a defendant to test the sufficiency of a plaintiff’s evidence.” Haan, 103

A.3d at 67. “A sufficiency of the evidence claim may also be raised through a

motion for a directed verdict.” Id. Thus, this Court adheres to the principle

that a sufficiency challenge “must first be raised before the trial court by a

motion for a directed verdict” to preserve it for post-trial relief and, ultimately,

appellate review. Id.

Therefore, the Haans, “in order to preserve a challenge to the sufficiency

of the evidence . . . were required in th[e] non-jury trial to move either for a

nonsuit or a directed verdict.” Id. at 68. They did not make either motion at

trial. Hence, the Haans’s issues “purporting to challenge the sufficiency of the

evidence offered [by the appellees were] waived.” Id.

The same result applies here. Like the Haans, Sellers did not move for

a nonsuit or a directed verdict at the non-jury trial. Thus, Sellers neglected

to challenge the legal sufficiency of Buyer’s evidence during the trial, and they

are barred from subsequently raising a sufficiency-of-the-evidence issue for

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the first time in post-trial motions. See Pa.R.C.P. 227.1(b)(1). The trial court

correctly dismissed the issue attacking the sufficiency of Buyer’s evidence as

waived.

Sellers’ appellate issue dismissed as waived.

Judgment affirmed.

Date: 2/6/2025

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