Helicopters v. City of Columbus

• Decision Date: 18 July 2012
• Docket Number: Case No. 2:10–cv–1110.
• Citation: 879 F.Supp.2d 775
• Parties: Versatile HELICOPTERS, Plaintiff, v. CITY OF COLUMBUS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

879 F.Supp.2d 775

Versatile HELICOPTERS, Plaintiff,

v.CITY OF COLUMBUS, et al., Defendants.

Case No. 2:10–cv–1110.

United States District Court,

S.D. Ohio,

Eastern Division.

July 18, 2012.

Douglas James Suter, Hahn Loeser, Columbus, OH, for Plaintiff.

Brandon Lee Abshier, Wiles, Boyle, Burkholder & Bringardner Co., LPA, Glenn Brooks Redick, Jay Bernard Eggspuehler, Columbus, OH, for Defendants.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court for consideration of the following filings:

(1) a motion for summary judgment (ECF No. 60) filed by Defendant the City of Columbus (“Columbus”) ¹; a memorandum in opposition (ECF No. 63) filed by Plaintiff, Versatile Helicopters, Inc. (“Versatile”); and a reply memorandum (ECF No. 65) filed by Columbus and the Police; and

(2) a motion for summary judgment (ECF No. 62) filed by Defendant Helicopter Minit–Men, Inc. (“Minit–Men”), a memorandum in opposition (ECF No. 64) filed by Versatile, and a reply memorandum (ECF No. 66) filed by Minit–Men.

For the reasons that follow, this Court drops the Police from this litigation, GRANTS IN PART and DENIES IN PART the motion for summary judgment (ECF No. 60) filed by Columbus, and GRANTS the motion for summary judgment (ECF No. 62) filed by Minit–Men.

I. Background

Columbus previously entered into a contract with Minit–Men that called for Minit–Men to inspect, service, and maintain helicopters belonging to the Police. One helicopter in the police department fleet was a McDonnell Douglas Model 369E, Series 5000–E Helicopter, with the aircraft serial number 0540E and bearing United States identification number N553CR. In April 2008, Columbus offered this helicopter for sale.

Versatile learned through a broker that the helicopter was for sale and that Minit–Men was responsible for performing a 100–hour annual inspection on the helicopter before its delivery to a buyer. Minit–Men purportedly performed the inspection, but soon after Versatile subsequently took delivery of the helicopter, Versatile allegedly discovered that the helicopter had structural cracks, time-expired components, loose driving coupling components, and other significant deficiencies.

Versatile filed the instant action against Columbus, the Police, and Minit–Men. In its First Amended Complaint, Versatile asserts the following claims for relief against the remaining parties: breach of contract against Columbus in Count I, breach of express and implied warranties in violation of Ohio's Uniform Commercial Code statutes against Columbus in Count II, and negligent or intentional misrepresentation against Minit–Men and Columbus in Count III. ² (ECF No. 29 ¶¶ 43–61.) Defendants have filed motions for summary judgment on all of these claims. (ECF Nos. 60, 62.) The parties have completed briefing on the motions, which are ripe for disposition.

II. Discussion

A. Standard Involved

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party, which must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234 (6th Cir.2003). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Consequently, the central issue is “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234–35 (quoting Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505).

B. Columbus (ECF No. 60)

This is an odd case. The oddity arises not only from the manner in which the parties have litigated the action generally, but also from the peculiar way they have briefed the issues specifically.

The irregularities the Court recognizes primarily manifest themselves in regard to the first two claims in the amended complaint. As noted, Count I is a breach of contract claim in which Versatile asserts that because the helicopter was not in the condition it was represented to be, Columbus breached the sales contract. Count II is a Uniform Commercial Code claim under Ohio statutes in which Versatile, as the buyer, asserts that Columbus, as the seller, violated numerous express and implied warranties recognized by state law. Columbus seeks summary judgment on both claims.

In regard to Count I, Columbus argues that it is entitled to judgment because it was not a party to the sales contract and therefore cannot be held to have breached that contract. Rather, Columbus argues, the sales contract was between Versatile and Air Flite, Inc. (“Air Flite”), the broker that Columbus utilized to sell the helicopter. Because Versatile has not asserted a claim against Air Flite as the agent of Columbus, the city then explains, Versatile cannot proceed against Columbus as the principal for Air Flite's acts. In making these arguments, Columbus repeatedly relies upon Ohio case law related to agency and contractual claims.

Addressing the Uniform Commercial Code claim in Count II, Columbus then argues that because no contract between Columbus and Versatile existed, Columbus was not a seller within the meaning of the Ohio statutory scheme and there was no sale under Ohio's statutes. Columbus fails to cite any authority for its contentions.

In an attempt to evade summary judgment, Versatile counters in its memorandum in opposition that Columbus has not presented the Court with the full context of the sale that occurred. The Court will summarize some of the evidence upon which Versatile relies below, but the point is that Versatile argues that because the sales agreement lacks a merger clause and in light of Ohio law, the sale actually reaches beyond the four corners of the sales agreement and establishes that Columbus was the actual seller and that a sale between Columbus and Versatile took place.

Now is where the most prominent oddity in this case arises. As Columbus correctly points out in its reply memorandum, the Versatile–Air Flite sales agreement contains the following provision:

Governing Law: Laws of the State of Oklahoma shall govern this agreement and this Transaction and the parties further agree that venue for any matter relating to this agreement shall be in Pottawatomie County.

(ECF No. 60–5, at 2.) Relying on this provision, Columbus proceeds in its reply memorandum to assert that if the Court rejects its premise that no contract existed between Versatile and Columbus, then the above-cited contract provision controls. According to Columbus, this means that “the transaction is not governed by the laws of Ohio, but rather the laws of Oklahoma.” (ECF No. 65, at 3.) Columbus also contends that “[i]n light of the fact that Plaintiff's whole response to this Defendant's Motion is based upon ‘Ohio law and the Ohio Revised Code,’ Plaintiff has offered no meaningful, [ sic ] response to the Motion for Summary Judgment and the Court must grant the Motion as a matter of law, since there is, in reality, no response.” ( Id. at 2.)

Columbus' invocation of the foregoing contract clause necessitates making four points.

First, the Court notes as a threshold matter that, despite the forum selection clause quoted above, there is no question as to whether venue is proper. Columbus raised the issue of improper venue in its answer to the original complaint. (ECF No. 10 ¶ 25.) The parties' subsequent February 11, 2011 Rule 26(f) Report provided that “VENUE IF CONTESTED BY THE CITY OF COLUMBUS WILL BE CONTESTED WITHIN 30 DAYS BY MOTION.” (ECF No. 16, at 1.) The Magistrate Judge's March 10, 2011 Preliminary Pretrial Order then provided: “There are no contested issues involving personal jurisdiction, subject matter jurisdiction, or venue. Any motion addressing personal jurisdiction, subject matter jurisdiction, or venue, if any, must be filed on or before APRIL 8, 2011.” (ECF No. 21, at 2.) Columbus never challenged venue by motion. Instead, when Columbus filed its May 27, 2011 answer to the amended complaint, the city did not raise the venue issue. (ECF No. 32.) Columbus has thus elected to forfeit any possible venue challenge. See Estate of Popovich v. Sony Music Entm't, No. 1:11 CV 2052, 2012 WL 892531, at *2 (N.D.Ohio Mar. 14, 2012) (explaining when a party waives a forum selection clause).

Second, Columbus' contention that “the Court must grant the Motion [for summary judgment] as a matter of law, since there is, in reality, no response” is simply wrong. (ECF No. 65, at 2.) A failure to respond to a summary judgment motion does not invariably entitle the movant to obtaining success on that motion. That is not how summary judgment works. Rather, as Rule 56 makes clear, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (emphasis added). Columbus can obtain summary judgment only if the law says it should, not simply because Versatile has filed a memorandum in opposition that the city...