Ackerman Buick v. General Motors Corp.

• Decision Date: 13 November 2001
• Docket Number: No. ED 79477.,ED 79477.
• Citation: 66 S.W.3d 51
• Parties: ACKERMAN BUICK, INC., Appellant, v. GENERAL MOTORS CORPORATION, Respondent.
• Court: Missouri Court of Appeals

66 S.W.3d 51

ACKERMAN BUICK, INC., Appellant, v. GENERAL MOTORS CORPORATION, Respondent.

No. ED 79477.

Missouri Court of Appeals, Eastern District, Division Five.

November 13, 2001.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 10, 2002.

Charles A. Seigel, H. Kent Munson, The Stolar Partnership, St. Louis, MO, Attorneys for Appellant.

David M. Harris, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, Jeffrey J. Jones, Jones, Day, Reavis & Pogue, Columbus, OH, Attorneys for Respondent.

PAUL J. SIMON, Judge.

Ackerman Buick, Inc. (plaintiff) appeals the judgment of the St. Louis County Circuit Court, entered in favor of General Motors Corporation (defendant) on its motion for summary judgment.

On appeal, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment on its breach of contract claim because: (1) the alleged oral agreement met the requisite elements of a contract in that it was entered into between competent parties, was of proper subject matter, was supported by consideration, and contained mutuality of agreement; (2) the application to become a Pontiac dealer signed by Jerry Ackerman (Ackerman), the president and owner of plaintiff, did not preclude plaintiff's claim because the parole evidence rule did not apply to the application as it was not a fully integrated contract, was no more than a formality, and could not affect the preexisting agreement; (3) the preexisting dealership agreement did not bar plaintiff's claim because parties to a contract cannot preclude themselves from entering into subsequent oral agreements; and (4) the statute of frauds did not bar plaintiff's claim because the standard dealership agreement which plaintiff was to receive would expire by its terms upon the death or incapacity of Ackerman thereby removing the agreement from the statute of frauds, and the standard dealership agreement by its terms, could be terminated upon 60 days' written notice, thereby removing it from the statute of frauds. Plaintiff further argues that the trial court erred in granting defendant's motion for summary judgment on plaintiff's Motor Vehicle Franchise Practices Act (MVFPA) claim on the same grounds as the claim for breach of contract because the MVFPA claim is not dependent upon an enforceable contract between plaintiff and defendant. We affirm.

When considering an appeal from an entry of summary judgment, we review the record in the light most favorable to the non-movant. Hubbard v. Lincoln Cty. R-III School Dist., 23 S.W.3d 762, 763 (Mo.App. E.D.2000). Our review is essentially de novo. Id. "The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." Id. "The propriety of summary judgment is purely an issue of law." Id.

The movant's burden on its motion for summary judgment is to show a right to judgment flowing from facts about which there is no genuine dispute. Id. The movant may establish its right to summary judgment by showing: (1) facts that negate any one of the non-movant's elements facts; (2) that the non-movant has not been able to produce and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the non-movant's elements; or (3) that there is no genuine dispute as to the existence of facts necessary to support the movant's properly pleaded affirmative defense. Id.

The non-movant must show by affidavit, depositions, answers to interrogatories, or admissions on file, that one or more material facts shown by the movant to be beyond any genuine dispute is, in fact, genuinely disputed. Id. at 763, 764. A "genuine issue" is a real, non-frivolous dispute, that exists ". . . .where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. at 764. A "genuine issue" is a dispute that is real and not merely argumentative, imaginary or frivolous. Id.

We will sustain the trial court's granting of summary judgment if it is sustainable on any theory as a matter of law. Preston v. Preston, 823 S.W.2d 48, 49 (Mo.App. E.D.1991).

The record in the light most favorable to plaintiff, the non-movant, reveals that Ackerman has been the president and sole owner of plaintiff since 1964. Defendant is a manufacturer of various vehicle lines including Buick, Pontiac, Oldsmobile, and GMC Truck. At the time of the purported oral contract, plaintiff, as a corporation, had a five-year Buick Dealer Sales and Service Agreement with defendant providing in pertinent part:

If Dealer wants to make any change in location(s) or Premises, or in the uses previously approved for those Premises, Dealer will give Division written notice of the proposed change, together with the reasons for the proposal, for Division's evaluation and final decision in light of dealer network planning considerations. No change in location or in the use of Premises, including addition of any other vehicle lines, will be made without Division's prior written authorization.

The agreement also expressly provided:

No agreement between Division and Dealer which relates to matters covered herein, and no change in, addition to (except the filling in of blank lines) or erasure of any printed portion of this Agreement, will be binding unless permitted under the terms of this Agreement or related documents, or approved in a written agreement executed as set forth in Division's Dealer Sales and Service Agreement.

In the early 1990s, plaintiff informed defendant that it desired to obtain additional vehicle lines. Plaintiff and defendant learned that Grant Davis (Davis), a St. Louis Pontiac, Oldsmobile and GMC Truck dealer, wished to sell one or more of his three vehicle lines. Plaintiff commenced negotiations with Davis at the encouragement of defendant. After being informed by Edward Roggenkamp (Roggenkamp), General Motors Executive Director of Dealer Development, that Davis was dealing with Morton Mallory (Mallory), a local dealer, with respect to the sale of the Davis GMC Truck line, plaintiff became interested in the remaining Davis Pontiac and Oldsmobile lines.

On January 20, 1994, Davis came to a verbal agreement with Mallory to sell Mallory the GMC Truck line and on February 3, 1994, signed a contract to that effect.

Plaintiff offered Davis $1.5 million for the Oldsmobile and Pontiac franchises, inventory of special tools, and other assets. On February 17, 1994, Davis' attorney sent a draft "buy/sell" agreement to plaintiff. Ackerman did not sign it because he disagreed with several of its provisions, especially a requirement that plaintiff give a $100,000 nonrefundable deposit to Davis. Thereafter, negotiations became strained and the parties failed to reach a final agreement.

In early March 1994, representatives of defendant met with representatives of plaintiff and informed them that defendant was in favor of plaintiff's having the Davis franchise.

On March 17, 1994, Roggenkamp and defendant's General Director of Dealer Network Development, Bruce Edwards (Edwards), met with Ackerman and plaintiff's General Sales Manager Gary Jacobs (Jacobs) to discuss transferring the Davis Pontiac franchise to plaintiff. Jacobs asked defendant's representatives why Pontiac representatives were not present at the meeting. Roggenkamp responded that "Pontiac was already in the fold, they didn't even need to be part of the meeting." Ackerman informed the representatives about the Davis negotiations and that Davis "wasn't coming off the price." He added that he would "consider" an offer from Davis if he lowered the price. Roggenkamp responded: "Jerry, hands off as of this moment. I'm going to go over to Grant Davis this afternoon." The representatives told Ackerman that they would "handle everything" and "Get [the Pontiac franchise] bought." Roggenkamp told Ackerman to cease negotiations with Davis and further that defendant would deliver the Pontiac franchise and provide $185,000 in funding for improvements.

Plaintiff ceased communication with Davis, understanding that defendant would negotiate a price between Davis and plaintiff.

On March 23, 1994, Davis received a letter from the GMC Truck zone manager informing him that defendant would not approve the deal between Davis and Mallory.

At about that time, Edwards contacted Jacobs and informed him: "It looks like we have this worked out. I would like to come by tomorrow afternoon and see [Ackerman]." The next day, Edwards went to plaintiff. He told Jacobs that he ". . . .had it worked out with Davis." According to Jacobs, Edwards stated at the brief meeting that followed:

I have met with [Davis], it's a done deal. It's going to cost you [$700,000] just like we said and if you are willing to go that we can put this deal together. And [Ackerman] said well, you know, that's really a little more than I wanted to go but if that's what it's going to take let's get it done. And [Edwards] said, okay, I'm heading back to Detroit and we will get the ball rolling.

The $700,000 was for the right to operate a Pontiac franchise ("Blue Sky"). It was Ackerman's understanding that this right would be pursuant to a "standard five-year Pontiac agreement." If plaintiff wanted or needed any other assets, it could negotiate for them separately.

Subsequently plaintiff "prepared to operate a Pontiac franchise" and arranged financing while at the same time being assured by defendant that the transaction was a "go deal."

Meanwhile, Davis' attorney prepared a complaint regarding defendant's refusal to approve his deal with Mallory. In early May, Davis came to an agreement with defendant in which defendant would allow Davis to sell the GMC Truck line to Mallory. As part of the agreement, defendant was to purchase the Pontiac and Oldsmobile lines from Davis. The deal was to close in...