The Granger Firm - Important Recent Cases

Purely Psychological Stigmas (including those resulting from Murder/Suicide) Not Required to be Disclosed to Buyers of Real Property In Pennsylvania Under Seller Disclosure Law

Milliken v. Jacono, 103 A.2d 806 (Pa. 2014)

Pennsylvania's Seller Disclosure Law has long required most sellers of residential 1-4 family homes to disclose to their buyer "material defects" with the property. "Material defects" is defined by law as follows:

A problem with a residential real property or any portion of it that would have a significant adverse impact on the value of the property or that involves an unreasonable risk to people on the property. The fact that a structural element, system or subsystem is near, at or beyond the end of the normal useful life of such a structural element, system or subsystem is not by itself a material defect.

The Pennsylvania Association of Realtors ("PAR") has a form disclosure statement that is commonly used in residential real estate transactions (and is in fact more encompassing than what is required under the disclosure law).

Pennsylvania common law also requires the disclosure of dangerous and latent (hidden) defects on a property to a buyer. In Milliken v. Jacono, the Pennsylvania Supreme Court had to decide for the first time whether purely psychological stigmas, such as those that may result from a murder/suicide taking place inside a home, have to be disclosed. The Supreme Court ruled that such stigmas are not "material defects" that require disclosure. The facts of the Jacono case are instructive.

In 2006, a murder/suicide took place at the property. The Jaconos purchased the property at an estate auction and at what appeared to be a discounted price. They renovated the property and listed it for sale a year later. As to the issue of whether to disclose the prior murder/suicide at the property, the Jaconos and their real estate agent contacted the Pennsylvania Real Estate Commission and were told disclosure was not required. The Millikens, who were from out of state and unaware of the history of the property, purchased the property. After discovering the murder/suicide, the Millikens filed suit against the Jaconos and the real estate agents, alleging breach of Pennsylvania's Seller Disclosure Law, negligent misrepresentation, fraud and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law.

In deciding the matter the Supreme Court noted that there were endless varieties of traumatizing events that could occur on a property and that it was not ready to accept the contention that a potential impact of a psychological stigma constituted a material defect. It stated that it would be impossible to quantify the psychological impact of all the different types of occurrences that might cause a stigma; for example, a poisoning verses gunshot, or murder verses home invasion, a recent event versus one that occurred long ago. Regardless of the disturbing nature of these events, the court observed that none of them constitute a "material defect" with the structure of the property itself, which is what the disclosure requirements are intended to convey. This reasoning goes back to the definition of a material defect (see above), being a "problem" with the property. Clearly the Court associated that definition with the physical conditions of the property, and not psychological ones. The Court put the matter this way:

Regardless of the potential impact a psychological stigma may have on the value of property, we are not ready to accept that such constitutes a material defect. …One cannot quantify the psychological impact of different genres of murder, or suicide—does a bloodless death by poisoning or overdose create a less significant "defect" than a bloody one from a stabbing or shooting? How would one treat other violent crimes such as rape, assault, home invasion, or child abuse? What if the killings were elsewhere, but the sadistic serial killer lived there? ….It is safe to assume all of the above are events a majority of the population would find disturbing, and a certain percentage of the population may not want to live in a house where any such event has occurred. However, this does not make the events defects in the structure itself. The occurrence of a tragic event inside a house does not affect the quality of the real estate, which is what seller disclosure duties are intended to address. We are not prepared to set a standard under which the visceral impact an event has on the populace serves to gauge whether its occurrence constitutes a material defect in property. Such a standard would be impossible to apply with consistency and would place an unmanageable burden on sellers, resulting in disclosures of tangential issues that threaten to bury the pertinent information that disclosures are intended to convey.

The result of the Jacono decision is to remind buyers that investigation is required of any house (and the neighborhood it is in) that a buyer is considering purchasing. Tools available for buyers to perform such investigation include internet searches, databases for sex offenders, questioning the seller and requiring written representations in the Agreement of Sale. In fact, the Supreme Court took time to note that the issues in Jacono were not latent and could all have been discovered by the buyer.

No Implied Warranties to Subsequent Home Purchasers

You just purchased a home. It's not new, but new enough; built in the last five years. You were interested in a new home, but you didn't want to deal with the hassle and time it took to build. You were lucky (or so you thought) that the home you bought was built only a few years ago. Unfortunately, as it usually happens, a year after closing you discover water leaking in through your windows and walls. A subsequent inspection confirms that the exterior stucco siding was not installed properly. Further investigation reveals your windows were not installed correctly either. Water has been slowly leaking into the wall cavities for the last several years, causing mold and wood decay. You contact the sellers and they tell you they never had a problem and you cannot find any evidence otherwise. A review of your home inspection report also indicates no evidence or water infiltration.

Remediation costs may approach six figures and the remediation may take some time to accomplish. It will be an inconvenience. What can you do? Who will pay? While there are many possible answers to these questions (which require knowing a lot more about the sale and the condition of the house), the Pennsylvania Supreme Court recently make it clear that asserting a claim against the original builder is not likely one of the better answers.

In Conway v. Cutler Group. Inc., the Supreme Court was faced with a common factual scenario, A builder, the Cutler Group, Inc. sold a new home to a buyer who lived in the home for three years and then sold the home to the Conways. Two years after that sale, the Conways discovered water infiltration around the windows that was caused by alleged construction defects. The Conways sued Cutler for breach of the implied warranty of habitability. Cutler objected to the complaint on the basis that there was no privity of contract between it and the Conways and therefore the implied warranty of habitability did not extend to the Conways. In essence, Cutler argued that since it did not sell the home to the Conways, the Conways could not assert any breach of warranty claims against Cutler. The trial court agreed and dismissed the complaint. The Conways appealed to the Superior Court who reversed the trial court and found that the implied warranty of habitability was based on public policy considerations and existed independently of any contract with the builder.

In reaching its decision in Conway, the Superior Court explicitly relied on its prior decision in Spivack v. Berks Ridge Corp. In the Spivack case, the buyer entered an agreement to purchase a condominium from a real estate developer. The condominium was then constructed by a separate builder entity. After closing, the buyer brought suit against the builder claiming breach of the implied warranty of habitability. The trial court dismissed the claim, but the Superior Court reversed, stating that privity of contract was not required in such a situation.

In Pennsylvania, warranties are either express (oral or written) or implied by law. Generally homebuilders provide an express written warranty. For newly constructed homes, the law also implies a warranty of habitability and reasonable workmanship- that the home is fit for habitation and has been so constructed. This is because as between the builder and the buyer, the builder is in a much better position to make sure the home is suitably built for habitation in accordance with community standards. The Superior Court in Conway held that this requirement should exist independent of whether the homeowner was the original purchaser of the home. Thus, while a second owner of the home might not have a claim under the original warranty (which are usually limited in time and are not intended to be assigned to a subsequent buyer), the Superior Court in Conway held that the implied warranties would survive a sale of the property.

Cutler appealed the Superior Court's decision to the Pennsylvania Supreme Court, who reversed the Superior Court. The Pennsylvania Supreme Court in Conway distinguished the Spivack case by noting in that case, the developer was the first owner of the home constructed by the builder, never took possession of the home and that the builder knew (or should have known) that the developer would not be the first user. As such, the Supreme Court found that the circumstances in the Spivack case were much narrower than in the Conway case, and therefore stated that the Superior Court's reliance on that case was misplaced.

Since there was no prior decision on point in Pennsylvania, the Supreme Court reviewed similar decisions from around the country. Ultimately, it decided that "the question of whether and/or under what circumstances to extend an implied warranty of habitability to subsequent purchasers of a newly constructed residence is a matter of public policy properly left to the General Assembly". While the Supreme Court noted that many of the arguments for extending the implied warranty of habitability were cogent and compelling, it stated that such arguments were predominantly based on public policy considerations that should be reserved to the legislature. As a result, the Court held that claims based on implied warranties require privity (i.e. a contractual relationship) between the owner and the builder.

Unless the Pennsylvania legislature acts otherwise, the Supreme Courts' decision in Conway essentially prevents any claims by a subsequent purchaser against the builder for breach of the implied warranty of habitability under most circumstances. With this in mind, purchasers must be diligent in performing home inspections, making sure that their seller has provided all the information required by the Seller Disclosure Law. For homes with stucco siding, consideration should be given to conducting a specific stucco inspection with moisture analysis.

Formal Agreement of Sale Not Required to Enforce Land Sale

Trowbridge v. McCaigue, 2010 PA Super 50, 992 A.2d 199 (Pa.Super. 2010)

In this case, the Pennsylvania Superior Court held that a document was sufficient to create a binding agreement of sale despite the fact that it specifically stated that an agreement of sale would be entered into. The document at issue contained only a brief description of the land, the purchase price, a provision as to who would pay which closing costs, that the property was being purchased in "AS-IS" condition and that the property was subject to certain covenants regarding property taxes. As indicated, the document also stated that if the offer was accepted by the owner, the buyer and owner would then enter into an agreement of sale. The parties all signed the document and the initial down payment of $1,000.00 was paid. However, prior to the execution of an actual agreement of sale form, the owner entered into a sales agreement with another buyer that contained financial terms more favorable to the owner. The original buyer brought suit, arguing that it had an enforceable agreement of sale with the owner. The owner argued that the document it signed was not enforceable because the parties agreed they would sign a formal agreement of sale and that had not happened when the new buyer submitted its offer.

The Superior Court first found that the law in Pennsylvania does not require a formal agreement of sale. Instead, the Court found that a writing signed by the seller that includes an adequate description of the property and the purchase price was sufficient to satisfy the Statute of Frauds. Since the document at issue met these terms, the Statute of Frauds was complied with. The Superior Court also found that the trial court was incorrect when it held that the provision in the document that required a formal agreement of sale be signed meant that there was no binding agreement of sale until that formal agreement was signed.

The Superior Court stated it as follows:

In contrast, the Agreement here does not indicate an intention to agree upon any essential terms in the future. In fact, contrary to the trial court's assertion, the Agreement does not imply that there was anything left to agree upon in the future. Rather, the only future occurrence contemplated by the Agreement is the execution of a sales agreement.

As such, the Superior Court found the trial court erred when it dismissed the case brought by the first buyer and remanded the case back to the trial court for further proceedings. The lesson to be learned from the case is that in Pennsylvania, any document signed by the owner that sets forth a description of what land is being purchased and the purchase price can be sufficient for the court to find a binding contract.

Return of Deposit When Buyer Elects Not to Proceed with Commercial Agreement of Sale

Wawa, Inc. v. Insnetvest Corp., PICS Case No. 10-3086 (C.P. Philadelphia Aug. 11, 2010)

Wawa, Inc. agreed to purchase from Defendants three contiguous parcels of real estate for $4,000,000.00 and deposited $150,000.00 toward the purchase price to be held in escrow. In accordance with the Agreement, Wawa filed an application for Conditional Use Approval with the township of Lower Providence Board of Supervisors. According the paragraph 7(a) of the Agreement, Wawa would apply for use on the property for activities relating to a food market and fuel dispensing facility. While the Conditional Use Application asked for a higher square footage than the contract stipulated, it was approved by the Township, contingent on Wawa meeting several conditions. Wawa decided that meeting the conditions was not "cost effective" and elected to not purchase the property.

The Agreement of Sale between Wawa and the defendants allowed Wawa to rescind the transaction if it did not obtain conditional use approval. However, nowhere in the agreement did it provide for the disposition of escrowed funds if Wawa exercised its right to rescind because of unacceptable costs. Although one part of the agreement stated that the deposit must be returned if the Conditional Use application was not granted, it was silent as to the disposition of the deposit where the buyer refused to complete settlement because the cost to satisfy the conditions for the conditional use were too high.

The trial court ruled that Wawa should receive the $150,000.00 deposit. The Court found that the principle purpose of a clause allowing a party to rescind an Agreement of Sale when a condition is not met would be served by returning the deposit to that party. The Court looked to a similar case in California, where the California Court of Appeals ruled that a return of the deposit was necessary because rescission is a remedy which disaffirms the contract and terminates further liability of the parties to each other. In accordance with the California decision, the Court found that when the buyer of commercial real estate properly cancels a transaction, and there is no specific clause in the agreement covering the return of the deposit, the buyer is entitled to the return of that deposit.

Failure to Disclose Defects in House; Fraud; No Knowledge by both Sellers

Growall v. Maietta, 2007 Pa.Super 223, 931 A.2d 667 (Pa. Super 2007)

In October 2002, Patrick and Katherine Maietta agreed to sell property located at 1630 Rutherford Street, Pittsburgh, for $80,000.00, and executed an agreement to that effect. The closing occurred on December 2, 2002. After closing and moving into the property, the buyer discovered water leakage in the basement, which was not disclosed by either of the sellers prior to closing. The buyer filed suit against the sellers, claiming among other things that the sellers had violated the Real Estate Seller Disclosure Law and the Unfair Trade Practices and Consumer Protection Law. That law in Pennsylvania known as the Unfair Trade and Consumer Protection Law provides that a court may award treble damages if it finds fraudulent conduct by a seller in the sale of real property. The buyer alleged that the failure of the sellers to disclose the water condition was such fraudulent conduct.

At trial, Mr. Maietta testified that he and his wife purchased the house from his mother in 1996. The house was divided into three apartments, including one in the basement. In April 2002, the Maiettas decided to sell the house and contacted a local real estate broker who had been handling the rental of the apartments. The broker had the Maiettas fill out a seller disclosure statement, which both Pat Maietta and Kathy Maietta signed and dated April 18, 2002.

Paragraph 4(b) of the disclosure statement asked, "Are you aware of any water leakage, accumulation or dampness within the basement, garage or crawl space?" The question was marked "no." Paragraph 4(c) of the disclosure statement asked, "Do you know of any repairs or other attempts to control any water or dampness problem in the basement, garage or crawl space?" This was also marked "no." Paragraph 6(a) asked, "Are you aware of any past or present water leakage in the house or other structure?" This was also marked "no."

Sometime in June 2002 (after signing the seller disclosure statement), Mr. Maietta became aware that water came out from under the baseboard onto the floor when the first floor apartment's toilet was flushed. He called a plumber, who snaked the lines. Mr. Maietta testified that the problem appeared to be resolved, and he had no further complaints of water leakage in the basement apartment until he heard from Mr. Growall after closing.

The basement had an apartment that had been rented during the time the Maiettas owned the property. Ylber Kusari testified that he moved into the basement apartment in August 2002 and that the carpet was damp and there was a dehumidifier running. After several weeks, the carpet dried out and Mr. Maietta removed the dehumidifier. Thereafter, in October 2002, the sales agreement was signed and in December 2002, the closing occurred. Mr. Maietta testified at trial that he failed to advise the buyer about the water problem in the basement apartment until he got a call from the buyer almost a year after closing. Nonetheless, he contended that the June 2002 incident was the only time he experienced water leakage in the basement apartment.

On the other hand, Mrs. Maietta testified she was not aware of any water problem in the basement apartment prior to the sale of the property and that she did not become aware of the problem until the buyer sent a letter to the Maiettas requesting over $46,000 in damages. She further testified the house had belonged to her husband's family, and she was relatively uninvolved since her husband was the one who maintained the house and dealt with the tenants. She also stated that her husband never informed her about any water problem at the house. Mr. Maietta also testified Kathy Maietta was not involved in the routine maintenance of the property and that he never informed his wife about the June 2002 water leak. She did admit that she did not review every question on the seller disclosure form, instead relying on her husband to fill it out.

The Superior Court first noted that there were several sections of the Residential Seller Disclosure Law (RESDL) that were applicable in this case as follows:

Section 7301: "Any seller who intends to transfer any interest in real property shall disclose to the buyer any material defects with the property known to the seller by completing all applicable items in a property disclosure statement which satisfies the requirements of section 7304 (relating to disclosure form)." 68 Pa.C.S.A. 7301.

Section 7307: "If information disclosed in accordance with this chapter is subsequently rendered inaccurate prior to final settlement as a result of any act, occurrence or agreement subsequent to the delivery of the required disclosures, the seller shall notify the buyer of the inaccuracy." 68 Pa.C.S.A. § 7307.

Section 7308: "The seller is not obligated by this chapter to make any specific investigation or inquiry in an effort to complete the property disclosure statement. In completing the property disclosure statement, the seller shall not make any representations that the seller or the agent for the seller knows or has reason to know are false, deceptive or misleading and shall not fail to disclose a known material defect." 68 Pa.C.S.A. § 7308.

Section 7309(a)(1): "A seller shall not be liable for any error, inaccuracy or omission of any information delivered pursuant to this chapter if: (1) the seller had no knowledge of the error, inaccuracy or omission...." 68 Pa.C.S.A. 7309(a)(1).

The Superior Court first noted at the time the disclosure statement was completed in April 2002, the information therein was accurate. There was no allegation that the water problem had occurred prior to June 2002. As a result, the buyer's claim fell under Section 7307, which requires a seller to notify a buyer prior to closing if any information in the disclosure statement is subsequently rendered inaccurate. But the court had no trouble finding that there could be no recovery against Mrs. Maietta because there was no evidence she knew of the water problem.

The Court put the matter this way:

"There is no evidence to refute her testimony, and that of Pat Maietta, that Kathy Maietta did not know about the water leak until well after final settlement. As Judge O'Brien states, the verdict slip submitted to the jury asked whether each defendant knew or had reason to know of a material defect in the premises at time of sale; the jury found that Pat Maietta did, but Kathy Maietta did not"… The jury's determination that Kathy Maietta neither knew nor had reason to know of the water leak exonerated her under the RESDL."

The buyer had argued that Mrs. Maietta had a duty to know the condition of the property she was selling, and violated this duty by failing to investigate or, in the alternative, failing to disclose her lack of knowledge. The Superior Court rejected these arguments, finding that the RESDL specifically states that the seller is not obligated to make any specific investigation or inquiry in completing the property disclosure statement, and that a seller is not liable for any error, inaccuracy or omission of which he or she had no knowledge. The Superior Court also found that because the form was accurate at the time it was signed by Mrs. Maietta, it would not have mattered if she had done an investigations. As for the argument that Mrs. Maietta should have disclosed her lack of knowledge, because she had previously lived at the property, the Court found she had a basis for answering the questions of the disclosure form.

Insurance Company Appointment of Counsel Under Reservation of Rights is Proper

Eckman v. Erie Insurance Exchange (2011 Pa. Super 87)

In this case out of the Superior Court, decided in May 2011, the Eckmans were insured by defendant Erie Insurance Exchange. A defamation action was filed against the Mrs. Eckman and other defendants by a third party, Solid Waste Services, Inc. (the "Mascaro Litigation"). Mrs. Eckmans sent the claim to her insurance company, Erie, to defend the action. Erie agreed to defend the action insofar as it involved a covered personal injury claim and indicated it would appoint counsel of its choice to handle the defense (agreeing to pay for all defense costs of the appointed counsel incurred during the representation by that counsel) assuming coverage existed. However, because the insurance policy also contained exclusions for intentional acts and punitive or exemplary damages, the letter included a reservation of rights. A reservation of rights is a letter from the insurer to the insurer advising that all or some of the claims made may not be covered by the policy. Therefore, Erie advised the Eckmans of their right to retain an attorney at their own expense to represent their interests.

The Eckmans then retained their own personal counsel and notified Erie of the representation of that counsel. Thereafter, the Eckmans' personal counsel requested that Erie pay all of its costs and fees in representing the Eckmans. The basis for this was the allegation by the Eckmans that a conflict of interest existed with any counsel that might be appointed by Erie. Erie rejected the request to pay the Eckmans' personal counsel, and instead appointed another law firm unrelated to the Eckmans' personal counsel to represent Mrs. Eckman.

On November 12, 2009, The Eckmans filed a complaint for declaratory judgment and a motion for preliminary injunction against Erie, asking the trial court to order Erie to provide Mrs. Eckman with counsel of her choice at Erie’s expense to defend her in the Mascaro Litigation. The trial court ruled there was no basis for the injunction and denied it. The Eckmans then appealed to the Superior Court.

On appeal, the Eckmans conceded that there is no Pennsylvania case law to support a claim that an attorney hired by an insurer to represent an insured has a conflict of interest. Nonetheless, they argued that the Pennsylvania Rule of Professional Conduct 1.7, conflict of interest, supported their request. Rule 1.7 states in pertinent part that:

      [a] concurrent conflict of interest exists if:
      * * *
      (2) there is a significant risk that the representation of one or more clients will be materially limited
      by the lawyer's responsibilities to another client, a former client or a third person or by a personal
      interest of the lawyer.

The Superior Court rejected the argument, finding that the Eckmans presented no evidence of any breach of ethical obligations by Erie's appointed counsel and thus no concurrent conflict. Rather, the Court found that the Eckmans "merely postulate that 'any' attorney selected by Appellee [Erie] to represent insureds under a reservation of rights has a conflict, suggesting, without foundation, that any or all attorneys paid by an insurer would breach their ethical obligations to the insured/client, by methods not specified, to frame claims as excluded from coverage." The Court found that the argument that attorneys, because they are paid by a third party insurer, would breach their ethical duties was not supported by the law in Pennsylvania and that the trial court properly rejected the argument. The Court commented that the "numerous references in the Rules of Professional Conduct to circumstances in which a lawyer may represent a client and be paid by a third party (as, indeed, Appellants' own retained counsel requested in this case, belie Appellants' supposition that the Rules contemplate, let alone require, any such per se disqualification."

As such, the court rejected the request for a preliminary injunction.

Duration of Listing Agreement a Material Term that Cannot be Modified by Oral Agreement

Michael Salove Company v. Enrico Partners, L.P., 2011 PA Super 128 (Pa.Super 2011)

This matter dealt with the validity of an oral extension of a written brokerage agreement under the Pennsylvania Real Estate Broker Licensing and Registration Act ("RELRA"). The case involved a written exclusive listing agreement between a real estate brokerage firm, Michael Salove Company ("MSC"), and Enrico Partners, L.P. ("Enrico"), a landlord seeking a tenant for certain vacant space in the Shoppes of Villanova. The contract granted MSC a 120 day exclusive listing to secure a tenant for the vacant space. MSC did not produce an acceptable tenant to the Landlord within the 120 day time period. MSC contended that prior to the expiration of the contract, it entered into an oral agreement with Enrico to extend the agreement – which Enrico denied.

After the listing agreement expired, Enrico was contacted directly by another landlord, who wanted to relocate its tenant Summit Fitness to Enrico's vacant space. Subsequently, an employee of Summit Fitness viewed Enrico's site and saw MSC's sign, which was still there, and called MSC to arrange a tour of the property. Mr. Salove provided a tour to Summit Fitness's owner and made follow-up calls to determine Summit Fitness's level of interest in leasing the space. Mr. Salove also initiated a meeting with Enrico to discuss construction costs and the improvement allowance, which Salove attended with Enrico and Summit Fitness. However, once formal lease negotiations occurred, MSC was not a participant.

Upon execution of the lease between Summit Fitness and Enrico, MSC was not paid a brokerage commission. MSC subsequently filed a broker's lien claim pursuant to the Pennsylvania Commercial Real Estate Broker's Lien Act ("CREBLA") and sought unpaid brokerage commissions. In response to Enrico's petition to strike the broker's lien claim, MSC voluntarily moved to dismiss the claim, and the court entered an order striking the lien. The trial court then granted summary judgment in favor of Enrico on the claim for unpaid brokerage commissions, holding that RELRA 63 P.S. § 455.606a(b)(1) barred MSC's commissions claim based on an oral agreement to extend the written brokerage agreement. The court also denied Enrico's request for attorney's fees.

On appeal, the Superior Court of Pennsylvania affirmed the grant of summary judgment in favor of Enrico and reversed the denial of its request for attorney's fees. The court disagreed with MSC's contention that oral agreements are permitted to modify written agreements under RELRA, which requires only material terms of the contract to be in writing. Looking to the Act and the Pennsylvania Code, the court determined that the duration of the agreement is a material term required to be in writing. Under 49 Pa. Code § 35.331(a)(3), terms of the agreement's duration must be agreed to in writing, and 63 P.S. § 455.604(a) makes failure to do so a prohibited act, carrying with it the possibility of suspension or revocation of a broker's license. The Court thus found that the brokerage commission claim stemming from a purported oral extension of the written exclusive listing agreement was thus barred under RELRA. The court was careful to narrow its holding to oral modification of agreement terms required to be in writing under the Act, rather than a preclusion of all oral modifications of written exclusive listing agreements.

In granting the Landlord's request for attorney's fees, the court looked to the Commercial Brokers Lien Act (CREBLA) provision that places the burden of costs on the non-prevailing party (see 68 P.S. § 1058(h)). The court disagreed with MSC that the lack of an adjudication resulted in no prevailing party and determined that it makes no difference whether the lien was dismissed pursuant to the plaintiff's or defendant's motions. The fact that the lien was stricken, even based on MSC's agreement to do so, was enough to support the contention that MSC was the non-prevailing party for the purposes of CREBLA's recovery of costs provision and should bear the costs of proceedings.

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