Bill Call Ford, Inc. v. Ford Motor Co.

• Decision Date: 18 August 1993
• Docket Number: No. 5:91 CV 242.,5:91 CV 242.
• Citation: 830 F. Supp. 1034
• Parties: BILL CALL FORD, INC., et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

830 F. Supp. 1034

BILL CALL FORD, INC., et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant.

No. 5:91 CV 242.

United States District Court, N.D. Ohio, E.D.

August 18, 1993.

Timothy A. Shimko, Sr., Shimko & Associates, Cleveland, OH, Edward C. Baran, Jr., Baran, Piper, Tarkowsky & Fitzgerald, Mansfield, OH, John P. Calandra, Jr., Baran, Piper, Tarkowsky & Fitzgerald, Thomas G. Lobe, John F. King, Hofelich & King, Cleveland, OH, for plaintiffs.

James B. Niehaus, Daniel W. Hammer, Sr., Michael E. Smith, Thompson, Hine & Flory, Cleveland, OH, for defendant.

ORDER ADDRESSING COUNT EIGHT

SAM H. BELL, District Judge.

PREFACE

The parties have moved for summary judgment on all counts of the complaint. The court has addressed each motion by separate opinion. They are, in essence, a trilogy. Because some orders, for the sake of efficiency, reference others made in this matter, the court suggests that a reader peruse them in the order they were prepared. The order of drafting is this: (1) opinion addressing count eight, 830 F.Supp. 1034, (2) opinion addressing count six, 830 F.Supp. 1043, (3) opinion addressing counts one, two, three, four, five and seven, 830 F.Supp. 1053.

I. Introduction

The above captioned matter was commenced with the filing of a complaint in diversity on the fifth of February, 1991. An amended complaint was filed on December 27, 1991. We begin with a summary of plaintiffs' claims.

In their amended complaint, the plaintiffs allege that they were franchised by defendant Ford commencing in 1980 and operated as such at a location in Mansfield, Ohio until mid-1990. (Amended Complaint at ¶ 4) In February of 1989, the plaintiffs purportedly entered into a contract with James Graham, already a Ford dealer in Zanesville, Ohio, for the sale of their franchise to Graham. (Id. at ¶ 5) Plaintiffs allege that they provided Ford with all necessary documentation and requested that defendant approve James Graham as a prospective purchaser. Plaintiffs, in count one, claim that Ford, by failing to approve Graham as the successor franchisee, breached a sales and service agreement entered into by the parties, damaging plaintiffs in the sum of two million dollars. For this same act, plaintiffs in count two allege that the defendant "breached the requirements of good faith and fair dealing in performance of its duties with Plaintiff, its franchisee, as required by the laws of the State of Michigan and the laws of the State of Ohio." (Amended Complaint at ¶ 11) In count three, plaintiffs claim that Ford "tortiously, maliciously and intentionally interfered with the contractual arrangements between Plaintiff and Graham." (Id. at ¶ 13) In their fourth count, plaintiff alleges that the defendant's actions were "wilful, wanton and malicious and are such that they to as (sic) entitle the Plaintiff to treble damages." (Id. at ¶ 15) In count five, plaintiffs aver that the "acts and omissions of the Defendant, in tort and in breach of contract and violation of statutes is such as to entitle the Plaintiff double damages, treble damages, punitive damages and/or attorneys fees in a sum to be determined at trial." (Id. at ¶ 17) In count six, plaintiffs seek treble damages for the defendant's failure to adequately compensate plaintiffs for warranty service performed by them on behalf of Ford. (Id. at ¶¶ 19-20) In count seven, plaintiffs contend that Ford's failure to timely approve the sale of the franchise to Graham violated Section 4517.56 of the Ohio Revised Code and other provisions of Chapter 4517 of the Code. (Id. at ¶ 22)

In their eighth and final count, plaintiffs aver that Ford's approval of the transfer of the franchise conditioned upon Graham's acceptance of additional terms that were not a part of plaintiff's franchise agreement violated Section 4517.56(F) of the Ohio Revised Code. (Amended Complaint at ¶ 24) Plaintiff claims that "under the facts and circumstances of this violation of the statutes, the Plaintiff is entitled to double the amount of actual damages from the Defendant." (Id. at ¶ 25).

Currently before the court are two motions relative to count eight of the complaint. The first is plaintiffs' motion for partial summary judgment, Docket # 42. The defendant has not responded to this motion. The second motion is the defendant's motion for summary judgment on as to count eight of the complaint, Docket # 106, to which plaintiffs have responded, Docket # 76.¹ These motions are the subject of this opinion.

II. Standard of Review

In reviewing a motion for summary judgment, a court must consider the pleadings, related documents, evidence, and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). Rule 56 provides, in relevant part, as follows:

(c) ...

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

. . . . .

(e) ...

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Three Supreme Court cases have provided guidance as to the nature of the respective burdens allocated under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate burden lies with the non-moving party to show the existence of a genuine issue of material fact. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts ... In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.' Fed.Rule Civ.Proc. 56(e)." Matsushita, 475 U.S. at 586-587, 106 S.Ct. at 1356 (emphasis supplied). "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court in Anderson held that "the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff had had a full opportunity to conduct discovery." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514.

On the other hand, the moving party's burden under Rule 56 is lighter.

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c) ... suggests the absence of such a requirement.

Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis supplied).

The Sixth Circuit Court of Appeals, in Street v. J.C. Bradford and Co., 886 F.2d 1472 (6th Cir.1989) recently reviewed court decisions and commentary regarding the impact of Anderson, Celotex, and Matsushita on summary judgment practice. The court concluded that a "new era" in summary judgment practice has opened in the court system as a result of these opinions.

Scholars and courts are in agreement that a "new era" in summary judgments dawned by virtue of the Court's opinions in these cases ... On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact and tended to emasculate summary judgment as an effective procedural device.

Street, supra, at 1476.

The court enunciated the following "new era" principles, among others: as on federal directed verdict motions, the "scintilla" rule applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion; the respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment"; the trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. Id. at 1479-1480 (footnotes and citations omitted).

With these standards in mind, the court shall examine the parties' cross-motions.

III. Law and Analysis

Although the parties have offered differing translations of the facts relevant to count eight, it seems clear that the facts material to that count are not in dispute. As such, this court is called upon to rule as a matter of law. Such a determination is, of course, dependent upon an analysis of the indisputable facts underlying plaintiffs' eighth claim. What follows is a brief summary of those...