Cunningham v. H.A.S., Inc., Civ.A. 98-C-954-N.

Decision Date13 October 1999
Docket NumberNo. Civ.A. 98-C-954-N.,Civ.A. 98-C-954-N.
Citation74 F.Supp.2d 1157
PartiesJennifer Joann CUNNINGHAM, Plaintiff, v. H.A.S., INC., et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Joseph (Jay) Brady Lewis, Terry R. Smyly, Law Offices of Jay Lewis, Montgomery, AL, George L. Beck, Jr., Beck & Byrne, P.C., Montgomery, AL, W. Terry Travis, for Plaintiff.

Paul M. James, Jr., Rushton, Stakely, Johnston & Garrett, Montgomery, AL Eric Allison Bowen, Montgomery, AL, Clement C. Torbert, Jr., Maynard, Cooper & Gale, P.C., Montgomery, AL, Jarred O. Taylor, II, J. Alan Truitt, Maynard, Cooper & Gale, P.C., Birmingham, AL, Steadman Shealy, Jr., Cobb & Shealy, P.A., Dothan, AL, for Defendants.


CARROLL, Chief United States Magistrate Judge.


This is a federal Truth in Lending Act ("TILA") case with pendent state law claims for wanton misrepresentation and concealment against defendants H.A.S. Inc., d/b/a/ Budget Car Sales ("Budget"), and Ron Smalls and Bob Letourneau, who were employees of Budget, in connection with the sale and financing of a used car.1 The plaintiff, Jennifer Joann Cunningham, originally filed this action in the Circuit Court of Montgomery County, Alabama, and served Budget on July 14, 1995. On July 28, 1998, Cunningham amended her state court complaint to add a federal TILA claim. The case was then removed to this court on August 26, 1998. The case is currently pending on a motion for summary judgment filed by the defendants on February 2, 1999. Cunningham has filed two responses to the motion, one on February 19, 1999 and one on August 23, 1999. For the reasons which follow, the court concludes that the motion is due to be granted in part and denied in part.


Cunningham was 36 years old at the time of the purchase which led to this lawsuit. She was single and had an 11 year old child. She was a high school graduate with some trade schooling. She had served three years in the United States Army and had been honorably discharged after reaching the rank of specialist four.

On the morning of Tuesday, November 1, 1994, Cunningham went to Budget at approximately 9:00 A.M.3 She was accompanied by a friend named Eddie Jackson. Cunningham met a salesman named Ron Jaworski who asked her what kind of car she was interested in, what price range she was looking for, and what monthly payments she could afford. Cunningham told Jaworski that she was looking for an automatic, possibly a four-door, with payments of no more than $275.00. She took a test drive in a Nissan Sentra with Jaworski and Jackson. When they got back, Jaworski started the paperwork process.

Jaworski presented Cunningham with an "okay deal" sheet which she signed. Pursuant to the "okay deal" sheet, Budget agreed to sell the Nissan Sentra to Cunningham and Cunningham agreed to buy the Nissan Sentra for $14,344.00 plus $298.00 for a Goldseal paint protectant package and $199.00 for dealer preparation. Budget agreed to provide her with $1,200.00 for her trade-in. This "okay deal" was further memorialized by Budget in another document titled "Budget Car Sales." This document totaled the agreed sale price of the car, the Goldseal paint protectant package, and the dealer preparation for a total purchase price of the car before tax, title, and documentary fees of $14,841.00. At Jaworski's request, Cunningham completed a credit application, after which Jaworski took the papers to the finance office.

Cunningham then met with the secondary finance manager, Ron Smalls. Smalls handled the financing for people with credit problems. Smalls was involved in Cunningham's purchase because the finance manager, Bob Letourneau, had run a credit report on Cunningham which indicated past credit problems. Smalls presented Cunningham with another credit application which she signed. This second credit application showed a purchase price, including tax, title, and registration fees, of $15,532.00, a down payment of $400.00, a net trade-in of $1,200.00, an unpaid balance of $13,752.00, and a loan term of 66 months. Following her conversations with Smalls, Cunningham was under the impression that her payments would be no higher than $326.00 per month. The first meeting with Smalls, which began at about 10:30 A.M., lasted approximately 15 minutes. During the meeting, Cunningham signed a series of other documents, including a cross country motor club enrollment certificate. When Smalls was finished with Cunningham, he took the paperwork to Bob Letourneau. Smalls asked Cunningham to wait in the lobby.

While she was waiting to see Letourneau, Cunningham met with an independent insurance agent and purchased liability, comprehensive, and collision coverage on the Nissan Sentra. The insurance application completed by the agent for said coverage initially listed Barnett Bank as the lender. The insurance application was signed by Cunningham at 11:30 A.M. She specifically rejected uninsured motorist coverage. While Cunningham continued to wait to see Letourneau, Jaworski returned and told Cunningham that Budget had additional warranties and insurance that she could purchase. Cunningham told him that she did not want anything other than what she had already purchased. Letourneau then came out and took Cunningham and Jackson into his office and started asking Cunningham about a Ford. Cunningham told Letourneau that she was trading a Honda, not a Ford. Letourneau also asked Cunningham about credit cards which she did not have. He then told Cunningham that he thought he had lost the deal.

By this time, it was approximately 2:30 P.M. and Jackson had to go to work. Letourneau told Cunningham to take Jackson to work, and he would see what he could do. Cunningham drove Jackson to work in the Nissan Sentra because Budget retained the keys to the car that she had driven to the lot. Cunningham returned to Budget alone.

Upon her return, Cunningham again met with Smalls. At this point, Smalls discussed a series of different monthly payments. The first was over $600.00, another was over $500.00, and the last one was $416.00. Smalls told her that the payments would have to be $416.00 because the bank could not offer her a 66 month loan. Smalls never discussed the purchase of credit life insurance, accident and health insurance, or an extended warranty coverage with Cunningham even though these amounts were included in the $416.00 monthly payment. This second meeting with Smalls lasted less than 10 minutes. After Cunningham saw Smalls this second time, she went into Letourneau's office to sign the closing documents. According to Cunningham, Letourneau was standing up with a stack of documents and just told her "sign here, here, and here." Also, according to Cunningham, Letourneau covered up the World Omni Installment contract which contained the full disclosures about what she was paying for so that she never saw the disclosures. At the point in time that she signed the documents, Cunningham had been on the Budget lot for over eight hours. According to Cunningham, the only document that Letourneau discussed with her was the Budget Retail Sales Contract which showed a total cash delivery price of $15,318.61.

When Cunningham finished signing the closing documents, Letourneau gave her a copy of the Budget Retail Sales Contract and the World Omni Installment Contract in an envelope and she left with the Nissan Sentra. The next day, Cunningham returned to Budget and talked to Smalls about the amount of the payments. Smalls told her that it was too late to work anything out because the bank already had the paperwork.


Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." This standard can be met by the movant, in a case in which the ultimate burden of persuasion at trial rests on the nonmovant, either by submitting affirmative evidence negating an essential element of the nonmovant's claim, or by demonstrating that the non-movant's evidence itself is insufficient to establish an essential element of his or her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The burden then shifts to the nonmovant to make a showing sufficient to establish the existence of an essential element to her claims, and on which she bears the burden of proof at trial. Id. To satisfy this burden, the nonmovant cannot rest on the pleadings, but must, by affidavit or other means, set forth specific facts showing that there is a genuine issue for trial. Fed. R.Civ.P. 56(e).

The court's function in deciding a motion for summary judgment is to determine whether there exist genuine, material issues of fact to be tried; and if not, whether the movant is entitled to judgment as a matter of law. See Dominick v. Dixie Nat'l Life Ins. Co., 809 F.2d 1559 (11th Cir.1987). It is substantive law that identifies those facts which are material on motions for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also DeLong Equipment Co. v. Washington Mills Abrasive Co., 887 F.2d 1499 (11th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1813, 108 L.Ed.2d 943 (1990).

When the court considers a motion for summary judgment, it must refrain from deciding any material factual issues. All the evidence and the inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The movant bears "the exacting burden of demonstrating that there is no dispute as to any material fact in the case." Warrior...

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