United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
allegations in this matter arise out of the sale of seven
used cars from one used car dealer to another. Plaintiff
Summit Auto Sales, the purchaser, claims that Defendant
Yankee Ford Sales, the seller, failed to inform Summit prior
to the sale that the seven cars had been driven as taxis,
making them less valuable and unmarketable in the country in
which Summit intended to resell them.
brings claims of breach of contract, fraud, suppression,
fraudulent deceit, and violations of Maine's Used Car
Information Act (“UCIA”) and Maine's Unfair
Trade Practices Act (“UTPA”). Summit moves for
summary judgment only as to Count V of its Complaint, which
alleges that Yankee Ford violated the Maine UCIA. (Doc. 37).
Yankee Ford moves for summary judgment on all of
Plaintiff's claims. (Doc. 39). The court finds that
Summit's Motion is due to be GRANTED and
that Yankee Ford's Motion is due to be GRANTED IN
PART and DENIED IN PART.
STANDARD OF REVIEW
judgment allows a trial court to decide cases when no genuine
issues of material fact are present and the moving party is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a). When a district court reviews a motion for
summary judgment it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2)
whether the moving party is entitled to judgment as a matter
of law. Id.
reviewing the evidence submitted, the court must view all
evidence and factual inferences drawn from it in the light
most favorable to the non-moving party. See Augusta Iron
& Steel Works, Inc. v. Emp'rs Ins. of Wausau,
835 F.2d 855, 856 (11th Cir. 1988) (citation omitted).
However, the non-moving party “need not be given the
benefit of every inference but only of every reasonable
inference.” Graham v. State Farm Mut. Ins.
Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (citation
filing of cross motions for summary judgment does not affect
the applicable Rule 56 standard. See, e.g.,
United States v. Oakley, 744 F.2d 1553, at 1555-56
(11th Cir. 1984) (quoting Bricklayers Int'l Union,
Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023
(5th Cir. 1975)).When parties file cross motions for summary
judgment, “each side must still establish the lack of
genuine issues of material fact and that it is entitled to
judgment as a matter of law.” Busby v. JRHBW
Realty, Inc., 642 F.Supp.2d 1283, 1288 (N.D. Ala. 2009)
(citations omitted). “The fact that both parties
simultaneously are arguing that there is no genuine issue of
fact . . . does not establish that a trial is unnecessary
thereby empowering the court to enter judgment as it sees
fit.” Id. at 1289 (quoting 10A Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2720, at 327-28 (3d ed. 1998)).
STATEMENT OF FACTS
case focuses on the purchase by Plaintiff Summit Auto Sales,
Inc., an Alabama used car wholesaler, of seven used Mercury
Marquis vehicles from Defendant Yankee Ford Sales, a
Portland, Maine Ford dealership in October 2013.
Badier, who has worked in the used car wholesaling industry
since at least 1991, owns Summit. Summit buys used vehicles
and resells them, primarily to four clients in Saudi Arabia,
Jordan, and the United Arab Emirates. His experience within
the industry involves exporting used vehicles to the Middle
East. Summit purchases approximately 150 vehicles during a
“good month, ” with its purchases totaling around
1, 800 vehicles a year. (Doc. 37-1 at deposition 94:10-11).
relevant times, Summit enlisted the services of five to
twelve independent contractors who purchased vehicles for it.
The contractors negotiated deals over the phone and received
authority from Mr. Badier to make the final call regarding a
vehicle's price. Jay Nyrabeah, one of Summit's
contractors, negotiated the 2013 transaction with Yankee Ford
that is the subject of this lawsuit. Mr. Nyrabeah testified
that Summit instructed him to purchase specific makes,
models, and years of vehicles and that Summit did not provide
any written protocol for determining the prior use of
vehicles he purchased. Those specific makes, models, and
years of cars were tailored to include vehicles in high
demand in Saudi Arabia, Jordan, and the United Arab Emirates,
including Mercury Marquises and vehicles manufactured in 2008
2010 Summit-Yankee Ford Transaction
2010, Mr. Nyrabeah negotiated Summit's purchase of five
vehicles-four Mercury Marquises and one Ford Crown
Victoria-from Yankee Ford for a total cost of $46, 500.00.
Mr. Nyrabeah located those five vehicles online at either
cars.com or autotrader.com. He then called Yankee Ford and
offered to purchase them. Negotiations took place verbally
and the first documents Mr. Nyrabeah received from Yankee
Ford were the bill of sale and the title letter, which
guaranteed that Yankee Ford would provide the cars'
titles within ten days of the conclusion of the transaction.
Nyrabeah could not recall whether he discussed the five
vehicles' prior use or whether those vehicles were former
taxis with Yankee Ford during negotiations, but stated that
“[t]hey looked fine to me. I didn't think they were
taxis.” (Doc. 37-45 at deposition 114:8-9). The
transaction concluded smoothly and caused Summit to trust
Yankee Ford. Summit successfully resold and delivered those
five cars to its client in Saudi Arabia, the same client to
whom it would later attempt to sell the seven Mercury
Marquises at issue in this suit.
2013 Summit-Yankee Ford Transaction
October 2013, Mr. Nyrabeah contacted Yankee Ford about
purchasing one or more Mercury Marquises. He spoke to Marty
Darling, with whom he had dealt during the previous
transaction with Yankee Ford. On or about October 23, 2013,
the parties reached an agreement for Summit to purchase seven
Marquises from Yankee Ford for $69, 800.00 total. As with the
previous transaction, the parties negotiated the sale via
telephone and a written agreement, in the form of a bill of
Nyrabeah noted the sale was rushed: “[t]he reason these
specific cars was done in a rush is because once I called on
them and spoke to Marty, he told me there are multiple . . .
dealerships trying to buy these cars, so there was massive
rush to get this deal done.” (Doc. 37-45 at deposition
60:10-16). He stated that Mr. Darling told him,
“I'm having a lot of people interested, I'm
going to take the highest bidder.” (Id. at
deposition 61: 12-14). Mr. Darling confirmed that he told Mr.
Nyrabeah (1) that other people were looking at the cars; (2)
that he had been receiving phone calls regarding the cars
from other shippers; and (3) that he would sell the cars to
the highest bidder.
Darling testified that he faxed Mr. Nyrabeah the
vehicles' titles prior to closing the sale. Both Mr.
Badier and Mr. Nyrabeah testified that, though they were
unsure when Summit received the titles for this transaction,
normally Summit did not receive titles until after its
payments cleared. Mr. Badier explained that no dealer
releases titles until after a buyer's payment clears. The
titles for the vehicles reflected that their previous owner
was East Bemis Corporation, d/b/a Elite Taxi. Marty Darling
and Robert Esposito of Yankee Ford testified that a
title's purpose is to demonstrate ownership, and Mr.
Darling admitted that a vehicle's title is not used to
prove prior use.
Nyrabeah testified that he specifically remembered asking Mr.
Darling during negotiations whether the vehicles had any
problems and how they had previously been used. Mr. Nyrabeah
maintained that in response, Mr. Darling told him that the
vehicles had no issues or problems. Mr. Nyrabeah further
stated that he could not remember specifically inquiring
whether the vehicles had been used as taxis, but believed he
asked where the vehicles were from, and that Mr. Darling told
him in reply that they had no problems. Mr. Nyrabeah also
testified that Yankee Ford did not disclose anything to him
that would have revealed the vehicles' prior use as
taxis; that it is customary in the trade to disclose prior
use; and that the vehicles' prior use as taxis should
have been, but was not, reflected in their pricing, as
“[t]axis are worth, in my opinion, probably less than
fifty percent of the normal price car.” (Doc. 37-45 at
Darling testified that he did not believe Mr. Nyrabeah
specifically asked about the vehicles' prior use as taxis
but that he told Mr. Nyrabeah that the cars had been taxis,
explaining that the holes in the vehicles' roof were from
the taxi lights. According to Mr. Darling, Mr. Nyrabeah did
ask about the vehicles' condition, and in response Mr.
Darling told him they had previously been cabs. Mr. Darling
also stated that Mr. Nyrabeah did not ask whether the
vehicles had any problems.
Darling testified that, prior to the purchase, he sent
photographs of the vehicles to Mr. Nyrabeah via his cell
phone and that those photographs showed the holes in the
roofs of the vehicles left from the taxi light assemblies,
which Mr. Nyrabeah requested he have repaired. However, Mr.
Darling also testified that, based on service records and
repair orders, Yankee Ford removed some of the vehicles'
taxi equipment prior to the negotiations between it and
Summit. Those service records and repair orders do not
conclusively demonstrate that all the taxi
equipment-related repairs for all seven vehicles were made
prior to Yankee Ford's negotiations with Summit. Mr.
Darling testified that, prior to the sale's completion,
he sent photographs to Summit showing that requested repair
work-both taxi equipment-related repairs and separate body
work-had been completed.
Nyrabeah testified that he requested detailed photos prior to
the sale but that he did not receive any pictures until after
the sale was finalized. Two weeks after the sale, Yankee Ford
provided pictures of the vehicles to Summit via email. The
pictures do not indicate the vehicles' prior use as
Nyrabeah ran CARFAX reports on at least six of the seven
vehicles, pulling three on October 21, 2013, before the sale
was finalized, and three on October 24, 2013, after the sale
was finalized. CARFAX reports usually include vehicles'
prior use. Mr. Nyrabeah testified that he relies upon CARFAX
reports to confirm dealers' statements about vehicles
and, in this case, “to check if there was any problems
with the cars, if there was anything that he didn't tell
me.” (Doc. 37-45 at deposition 130:14-16). All of the
cars for which Mr. Nyrabeah pulled CARFAX reports on October
21, 2013 had a prior use designation of
“Commercial” in their reports. On some reports,
CARFAX specifically designates a prior use of
“Taxi.” None of the six CARFAX reports included
prior use designation as a taxi.
paid Yankee Ford for the vehicles via seven separate checks
dated October 29, 2013. Yankee Ford sent Summit the
vehicles' titles via mail after the sale was completed.
Summit resold the seven vehicles to its client in Saudi
Arabia for a total of $109, 000.00 on October 30, 2013.
Summit arranged for the vehicles to be transported from the
Yankee Ford lot to a shipyard in Delaware to be exported to
Saudi Arabia. The cars cleared U.S. Customs around November
14, 2013. The vehicles were held at Saudi customs and were
denied entry because they were taxis. Summit's Saudi
Arabian client called Mr. Badier and “cussed [him] out
first, ” then sent a letter to Summit, dated December
10, 2013, explaining that the vehicles could not enter the
country because of their designation as taxis. (Doc. 37-1 at
deposition 35:9-10). Summit representatives initially
believed the designation was a mistake.
provided written notice of the issues with the vehicles to
Yankee Ford via letter dated December 19, 2014. Yankee Ford
received the letter on December 22, 2014. The subject line of
that letter reads, “Violation of Maine's Used Car
Information Act” and includes the VIN numbers for the
seven vehicles. The letter claims that Yankee Ford violated
Maine statutory law by failing to disclose the prior use of
the vehicles and requests that Yankee Ford “correct the
records, ” with its failure to do so subjecting Yankee
Ford to certain damages, including the price of the vehicles,
shipping costs, and profit loss. (Doc. 41-3 at 1).
Badier testified that before Summit sent that letter, Mr.
Nyrabeah called Yankee Ford “plenty” of times to
discuss the vehicles' prior usage issues and that he, Mr.
Badier, left messages that Yankee Ford's manager did not
return. (Doc. 37-1 at deposition 91:13). Mr. Nyrabeah also
testified that he called Yankee Ford multiple times to
attempt to have the taxi designation corrected. Mr. Darling
confirmed that he received a call from Summit
“substantially after the fact” about changing the
vehicles' titles, but did not recollect how many calls he
had received. (Doc. 37-12 at deposition 35:15).
7, 2015, Summit sold the seven Mercury Marquis vehicles to a
purchaser in Bahrain at a discounted value based on their
prior use as taxis; the total price received for the vehicles
was $47, 978.00.
Identifying and Valuing Former Taxis
Proto, Summit's appraisal expert, testified that a
commercial designation, while not conclusive as to taxi
usage, could possibly indicate that the vehicle was driven as
a taxi. He also testified that, as a sophisticated purchaser,
he would have inspected the vehicles personally before
purchasing them, given their commercial designation and 100,
000-plus mileages during two years of use. He stated that
typically, dealers supply to the buyer the history of
vehicles they sell; that he might not undertake further
investigation if he had a level of trust with a dealer; and
that he might not personally inspect vehicles if he had
previously purchased from their dealer.
Proto testified that vehicles previously used as taxis are
worth 43% less than similar make and model vehicles that have
not been driven as taxis. He also opined that had these seven
vehicles' prior taxi usage been disclosed properly, the
price negotiated for them would have been
Hassan, the owner of a used car dealership in Alabama,
communicated with Yankee Ford in 2012, seeking to purchase
three Marquises. Plaintiff offered Mr. Hassan's
affidavit, in which he attested: “It is well known that
vehicles with a prior use as taxis do not have a high resell
value. In many countries taxis are not allowed to be
imported. Because of this, I would not purchase vehicles with
a prior use as taxis.” (Doc. 7-2 at ¶ 6).
Alabsi, the wholesale vehicle buyer at Oxmoor Cars in
Birmingham, Alabama, communicated with Yankee Ford in late
2013 in his own bid to purchase the vehicles at issue in this
suit. He similarly testified in his affidavit: “Grand
Marquis have a greatly reduced value if they have a prior use
as taxis. It is expected and well known in the industry that
dealers will disclose any prior use of vehicles as taxis due
to the difference in value. . . . I do not purchase vehicles
with a prior use as taxis as they are not allowed in many
countries.” (Doc. 7-3 at ¶¶ 8,
the Maine UCIA, all dealers must provide a disclosure
statement, or “Buyer's Guide, ” for each used
vehicle they sell, negotiate the sale of, offer for sale, or
transfer.See Me. Rev. Stat. Ann. tit. 10,
§ 1475; 29-250 C.M.R. ch. 104, § 1(C)(2). That
statement must contain, among other information, the
principal use to which the motor vehicle was put by that
prior owner and the dealer's duty to disclose promptly,
upon the request of any person, the name and address of the
previous owner of the motor vehicle. See §
1475(2-A); 29-250 C.M.R. ch. 104, § 1(C)(2) (setting out
directions for filling out a ...