Beau Townsend Ford Lincoln Inc. v. Don Hinds Ford, Inc.
| Decision Date | 25 September 2017 |
| Docket Number | Case No. 3:15-cv-400 |
| Parties | Beau Townsend Ford Lincoln Inc., D/B/A Beau Townsend Ford, Plaintiff, v. Don Hinds Ford, Inc. D/B/A Don Hinds Ford, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
DECISION AND ENTRY GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT BY PLAINTIFF BEAU TOWNSEND FORD LINCOLN INC., ECF 45, AND GRANTING IN PART AND DENYING IN PART DEFENDANT DON HINDS FORD, INC.'S MOTION FOR SUMMARY JUDGMENT. ECF 38.
The instant case provides a reminder that on the internet, no one knows you're a dog.1 Quite possibly, no one figures out you're a Nigerian swindler. The swindler having made off with a princely sum, the Court must determine which party shall be paupered $736,225.40.
In September 2015, Plaintiff Beau Townsend Ford Lincoln d/b/a Beau Townsend Ford entered into a fleet deal with a commercial customer for seventy-five Ford Explorers. (Columbro Depo. at 70:6-23.) That deal, however, fell through, and Beau Townsend Ford's CommercialSales Manager, Jeff Columbro, sought new buyers for the Explorers. (Id. at 73:13- 1.) Beau Townsend Ford sold some of the Explorers to retail customers, but also tasked Columbro with attempting to sell them to other dealers. (Id.)
Columbro reached out to his contacts at other Ford dealers in the region. (Id.) One of the persons he contacted was John Colglazier, the Commercial Account Manager for Don Hinds Ford in Fishers, Indiana. (Colglazier Depo. at 6:2-3.) Columbro and Colglazier had met before and had worked together on dealer trades before, as had Beau Townsend Ford and Don Hinds Ford. (Id. at 14:9-20; Columbro Depo. at 217:15-25.) Past dealer trades between Beau Townsend Ford and Don Hinds Ford had been for one or two vehicles at a time, and had typically been paid through a check, delivered at the same time the vehicles were picked up. (Columbro Depo. at 217:15-25; Colglazier Depo. at 12:14-13:1.)
On September 25, 2015, Colglazier received an email from Jeff Columbro's email account, jcolumbro@btford.com, seeking to gauge Don Hinds Ford's interest in purchasing some of the Explorers. (Columbro Depo. at 116:12-21.) Colglazier responded that same day, inquiring about the price of the vehicles (Ex 3.) Columbro and Colglazier continued to exchange more information by email that day (nine emails in total), culminating in Don Hinds Ford's agreement to purchase twenty of the Explorers. (Id.) Columbro indicated that he would be sending copies of the invoices the next day. (Id.) He didn't.
Columbro handles the bulk of his practice through email, and he testified that he spends most of his day in front of his computer using Outlook, and that the bulk of the deals he works on are done over email. (Columbro Depo. at 41:4-17; 55:6-8.) Moreover, the fact that a deal like this would be done without a formal written contract was not unusual. (Id. at 48:13-21.)
Prior to September 28, 2015, Columbro received his correspondence from Colglazier from jcolglazier@donhindsford.com. On September 28, 2015, Columbro started receiving emails from the account "jcolglazier.donhindsford@gmail.com." Columbro Aff., ¶4. Previously, however, up until the time that Don Hinds Ford took delivery of the 20 Ford Explorers seven days later, all of the substance of the communications received by Jeff Columbro from John Colglazier was actually authored by John Colglazier. Columbro Aff., ¶5. The parties learned after-the-fact that Beau Townsend Ford's email system had been compromised. A filter had been set-up that removed all of Colglazier's emails from Columbro's inbox, forwarded them to a third party, who then sent them back to Columbro from the email account jcolglazier.donhindsford@gmail.com, which displayed the user name, John Colglazier>.
Colglazier followed-up with Columbro on September 29, 2015, asking for the promised invoices, and Columbro said that he would have them once the Explorers moved "from fleet to stock." Colglazier later emailed Columbro under the subject line "Explorer's" to state that Don Hinds Ford would be paying by check. (Ex. 4.) This was the first time that the method of payment had been mentioned by either of the parties. A short time later, however, Colglazier received an email purportedly from Columbro requesting payment by wire transfer:
Due to some tax related procedures we will prefer a wire transfer, let me know when you need wiring instructions?
ECF 44-1, PageID 1272, John Colglazier Dep., Ex. 32.
That same day, Colglazier received wiring instructions, purportedly from Columbro:
ECF 44-1, PageID 1276, John Colglazier Dep., Ex. 33. The attachment instructed Colglazier to send the Purchase Monies for the 20 Ford Explorers by wire transfer to a Bank of America account in Missouri City, Texas for the benefit of "K.B. KEY LOGISTICS L.L.C." ECF 44-1, PageID 1277, John Colglazier Dep., Ex. 34.
Colglazier reasoned there was nothing unusual about a large-dollar deal for so many vehicles being paid by wire transfer and thought nothing of it. (Colglazier Depo. at 27:16-28:1.) The next day, Wednesday, September 30, 2015, Columbro forwarded the invoices for the remaining ten Explorers. Colglazier responded that Don Hinds Ford would send personnel to start picking up the Explorers on Monday, October 5, 2015.
On October 2, 2015, Colglazier sent an email to Columbro and copied Don Hinds Ford's Office Manager, Alicia Robinson. Colglazier's email asked if Robinson would be able to wire money to Beau Townsend Ford on October 5, and asked Columbro to review Colglazier's paperwork. (Ex. 8.) Columbro did not receive this email. Columbro Aff., ¶11. Nevertheless, a response email that same day confirmed that Colglazier's paperwork looked good and attached another copy of the wiring instructions:
They look good. I did send you wire instructions few days ago. I have attached it again here. Thanks John
Don Hinds Ford represents that the fact that the wiring instructions stated that Beau Townsend Ford was part of some other entity was not concerning because many dealerships use "d/b/a-s" or are part of larger organizations. (Colglazier Depo. at 33:20-25.) After receiving the instructions, Colglazier forwarded them to Robinson so she could arrange the payments.
Monday, October 5, 2015, Don Hinds Ford sent employees from its location in Fishers, Indiana, to Beau Townsend Ford's dealership in Vandalia, Ohio, to begin picking up the Explorers. Alicia Robinson took the steps necessary to complete the wire transfer, which would have to be done in three sequential transactions due to the daily transfer limits from Don Hinds Ford's bank. Thus, the transfers were to occur on October 5, 6, and 7, respectively. That same morning, an email asked Colglazier if Don Hinds Ford could start picking up units on Wednesday, rather than Monday, because Beau Townsend Ford needed additional time to complete some paperwork.
When Colglazier responded that Don Hinds Ford's folks were already on their way, a response requested a confirmation of the wire transfer. Colglazier emailed Alicia Robinson to ask her to send a confirmation to Columbro once the transfer was complete. (Ex. 14.) After Robinson sent the confirmation, a response informed that Don Hinds Ford's drivers arrived at 9:00 a.m. to pick up the first five Explorers. Colglazier then emailed Columbro to ask if Beau Townsend Ford received the wire transfer. (Ex. 15.) The email response: (Id.) Don Hinds Ford's employees picked up all of the Explorers on October 5, 6, and 7, 2015. (Columbro Depo. at 140:5-8; 150:19-151:4.)
On each of those days, Don Hinds Ford wired funds in accordance with the instructions it received, and on each of those days, Alicia Robinson forwarded a wire transfer confirmation to Columbro. On October 7, the day of the final transfer and the day the final Explorers were picked up by Don Hinds Ford, an email to Alicia Robinson confirmed the receipt of the final installment of the wired funds, (Ex. 17.)
For nearly a week thereafter, Don Hinds Ford believed that the story was over. It had been given the titles to the vehicles (in this case, the Manufacturer's Certificates of Origin), allowed to drive all of the Explorers back to Indiana, and it had wired over $730,000. (Columbro Depo. at 208:3-6; 209:5- 13.)
On October 13, 2015, Colglazier received the following email from Columbro: (Ex. 18) This email was followed up by a call from Columbro. (Colglazier Depo. at 54:1-13.) During that call, Columbro stated that Beau Townsend Ford had not received any payment from Don Hinds Ford. (Columbro Depo. at 87:11-88:12.) Colglazier responded that Don Hinds Ford had already sent payment according to the wiring instructions. (Id.) Columbro then told Colglazier that Columbro's email had been hacked and that Columbro had not sent any wiring instructions and was instead expecting a payment check. (Id.)
After that call, Beau Townsend Ford alerted law enforcement, as did Don Hinds Ford. (Columbro Depo. at 183:8-184:7; Colglazier Depo. at 65:1-19.) Don Hinds Ford also asked its IT consultants to investigate the source of the emails received by Don Hinds Ford. (Butler Depo. at 13:23-14:6.)
Similarly, Beau Townsend Ford's IT manager, John Wanamaker, also communicated with Beau Townsend Ford's email provider, FuseMail, and was advised that the wiring instruction emails had been sent from Columbro's account. Wanamaker also looked through Columbro's email account and discovered that certain email forwarding rules had been set up on Columbro's account. (Wanamaker Depo. at 89:25-91:19.)
On Saturday, October 17, 2015, Beau Townsend Ford's manager, Jamie Spencer, demanded that Don Hinds Ford return the...
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