McCoolidge v. Oyvetsky

• Decision Date: 04 March 2016
• Docket Number: No. S–14–1135,S–14–1135
• Citation: 292 Neb. 955,874 N.W.2d 892
• Parties: James McCoolidge, Appellant, v. Daniel Oyvetsky et al., Appellees.
• Court: Nebraska Supreme Court

292 Neb. 955

874 N.W.2d 892

James McCoolidge, Appellant,

v.Daniel Oyvetsky et al., Appellees.

No. S–14–1135

Supreme Court of Nebraska.

Filed March 4, 2016.

Thomas M. White, C. Thomas White, and Amy S. Jorgensen, of White & Jorgensen, Omaha, for appellant.

Terry J. Grennan, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Travelers Casualty and Surety Company of America.

Heavican, C.J., Wright, Connolly, Miller–Lerman, Cassel, and Stacy, JJ.

Connolly, J.

SUMMARY

James McCoolidge bought a used automobile over the Internet and had trouble registering the certificate of title in Nebraska. He sued the man with whom he directly dealt, a dealership in Tennessee, and an insurer that had issued a surety bond to the dealership. The trial court concluded that although the sellers initially breached the warranty of title, McCoolidge had not proved the damages he suffered from the delay in obtaining good title. McCoolidge appeals, arguing that even if he could register a certificate of title, other problems remained. We conclude that McCoolidge did not prove his damages and therefore affirm the court's judgment for the defendants.

BACKGROUND

MCCOOLIDGE'S EMPLOYMENT

Before multiple sclerosis forced him to retire, McCoolidge worked as an automobile mechanic and salesperson. He was a "part owner" of Cars on Keystone, a used car dealership, and held a sales license in that capacity.

Thomas Monteith, an accountant, testified that he was the "owner" of Cars on Keystone, which was the trade name of Classic Auto Rental Service, LLC. Monteith explained that McCoolidge had a "profit interest" in the dealership, meaning that "if it makes money, he gets a percentage, if it loses, I get the loss since I am funding the company." The articles of organization for Classic Auto Rental Service identify two members: McCoolidge and Monteith Brothers, Inc.

Monteith did not take an active role in Cars on Keystone. He said that McCoolidge took "care of anything" and that the "only thing I see is the bank statement." No one else was involved in the business. Cars on Keystone was defunct by the time of trial.

PURCHASE OF THE AUTOMOBILE

Because of the progressive nature of multiple sclerosis, McCoolidge wanted a vehicle that could accommodate a person in a wheelchair. He found a vehicle "sitting at a salvage yard" with a "motorized ramp and other accessories necessary to convert a Honda Element into a handicapped-accessible vehicle." He had the opportunity to remove the equipment at no cost. Having found the equipment, McCoolidge searched for a suitable vehicle in which to install it.

In March 2011, McCoolidge saw a 2008 Honda Element with structural damage (Element) advertised in an online auction. He contacted the seller, who identified himself as Daniel Oyvetsky. According to McCoolidge, Oyvetsky said that he was selling the Element for Car and Truck Center L.L.C., a licensed dealer in Nashville, Tennessee. McCoolidge verified Oyvetsky's representation by calling Car and Truck Center and speaking with Alexander Davidoff.

When the auction closed without a buyer, Oyvetsky reached out to McCoolidge. McCoolidge agreed to buy the Element for $7,500 and transferred the purchase price to a PayPal account associated with Oyvetsky or Car and Truck Center.

McCoolidge instructed Oyvetsky and Car and Truck Center to assign the title to Cars on Keystone. McCoolidge explained that he wanted the title assigned to the dealership because it would give him more time to register the certificate of title in Nebraska and because he wanted to use the dealership's facilities to repair the Element. He expected that Cars on Keystone would transfer title to him once the repairs were finished.

About a week after the purchase, McCoolidge received the Element followed by a certificate of title. McCoolidge, however, had trouble registering the certificate. He spoke to Oyvetsky, who was unable or unwilling to solve the problem. McCoolidge said he also spoke with Davidoff, who "didn't want anything to do with it."

In July 2011, McCoolidge filed a complaint against Car and Truck Center with the Tennessee Motor Vehicle Commission. He told the commission that Car and Truck Center had not provided him with a valid certificate of title. McCoolidge acknowledged that he received a certificate of title which "my DMV said ... might be ok," but he was "not comfortable with might."

In an affidavit, Davidoff stated that he bought the Element from "W. McInnis" in September 2010 and asked Oyvetsky to advertise the vehicle. Davidoff said he shipped the Element to McCoolidge, but a problem arose because it "was title[d] to [a] Lease Company and not McInnis." Davidoff stated that McCoolidge had "pulled back 4000.⁰⁰ of the 7500.⁰⁰ paid" and that Davidoff would not send the correct certificate of title to McCoolidge until he returned the money.

At trial, Davidoff denied buying or selling the Element. Rather, he "sen[t] title to Car of Keystone in the favor and the request for ... Oyvetsky." Davidoff said he told the Tennessee Motor Vehicle Commission that "the previous owner of this Element came from a leasing company and did not transfer the vehicle to his name." He said that the "previous owner" was "Veritas Video." Davidoff said that the "owner" when McCoolidge bought the Element was Igor Tavakalov.

Tavakalov testified that he "bought [the Element], but never registered it on my name." He said the "previous owner" was "McGinnis and Veritas," with "McGinnis" being a natural person who owned a "production company" called Veritas.

CERTIFICATES OF TITLE

There are numerous certificates of the title issued by the State of Tennessee in the record, some of which appear to be copies of the same certificate. The dates on which McCoolidge received the various certificates are less than clear.

One of the certificates states that title is vested in "HONDA LEASE TRUST." On the reverse, Honda Lease Trust assigned title to "VERITAS F AND VIDEO, WILLIAM W MCINNES," who reassigned title to Car and Truck Center, which reassigned title to Cars on Keystone.

Other certificates state that title is vested in "VERITAS F AND VIDEO" and "WILLIAM W MCINNIS," with various permutations of assignments and reassignments on the reverse. For example, on the reverse of one certificate, "Veritas Film & Video" assigned title to Car and Truck Center, which reassigned title to Cars on Keystone. On the reverse of another, "William W. McInnes" assigned title to Cars on Keystone. On the reverse of yet another certificate, "Veritas F & Video" and "William W. McInnes" assigned title to Cars on Keystone.

McCoolidge testified that he never received "clear" or "usable" title. He believed he needed a certificate that "showed transfer from the lessor and Honda into Car and Truck, Inc. and then to Cars on Keystone." Later, he testified that the title should be "declared up from Veritas Video to Cars and Truck and then to Cars on Keystone." Later yet, McCoolidge testified that the problem, as he saw it, was that title was "still assigned" to Veritas Video, an entity with which McCoolidge had no relationship. But he had "no idea" whether Veritas Video was "one of the reasons for kind of the missing link in the chain of title." McCoolidge said he never received a bill of sale, although, when asked about "Cars on Keystone on a bill of sale or an actual purchase agreement," he said "[t]here was one tendered but then thrown away because there was no title...."

In his deposition, McCoolidge testified that he had received a certificate of title that he could have registered in Nebraska. Shown one of the certificates and asked if it was "good title," McCoolidge answered: "It's—according to Douglas County, with a valid vehicle inspection, which the [vehicle identification number] matches the title, it would transfer into the State of Nebraska as a valid Nebraska title." He had shown the certificate to the Nebraska Department of Motor Vehicles, and "[t]hey said it looks to be transferrable in its form." But McCoolidge said he would not register the title "until this is settled," because he had "no idea which way this is going to go." His attorney explained that he could "get a title issued," but that he preferred to "present it to the court and have the court tell us what should be done."

McCoolidge reviewed his deposition testimony during his cross-examination at trial. He said: "I've seen several titles in reference to this, and I don't remember which title. But if I was presented with a title that was transferable, it's possible. If it was transferable, I told you the truth. It would be transferable." But on redirect, McCoolidge said the Department of Motor Vehicles rejected the certificate of title that the attorney representing the insurer "was talking to [McCoolidge] about earlier that he said, as far as you know, you thought it was good."

DAMAGES

McCoolidge testified that he repaired the structural damage to the Element "almost immediately" because he "had everything lined up." He estimated he spent nearly $8,000 on repairs.

McCoolidge never drove the Element. He bought two other automobiles that he used for transportation after he bought the Element, paying a total of $5,000 or $6,000. He did not rent a vehicle.

McCoolidge did not remove the motorized ramp from the salvaged vehicle. He explained that he could have removed the equipment but "let it go" because he did not feel that he owned the Element. He thought the forgone equipment was worth "[t]housands."

McCoolidge stored the Element at Cars on Keystone until July 2012, when he moved it to the garage at his residence. McCoolidge never paid to store the Element but testified that Monteith sent him a bill for storage fees. He produced a May 2011 bill from "Classic Auto Rental & Repair Services"—which he said was Cars on Keystone's "parent company"—stating that the "Unit Price" for "Store inside facility" was $30 per day. He said that "Douglas County" charges $45 per day to store towed vehicles.

Monteith...