Pescia v. Auburn Ford-Lincoln Mercury Inc.

• Decision Date: 29 July 1999
• Docket Number: No. Civ.A. 96-C-1811-E.,Civ.A. 96-C-1811-E.
• Citation: 68 F.Supp.2d 1269
• Parties: Felicitea v. PESCIA, Plaintiff, v. AUBURN FORD-LINCOLN MERCURY INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

68 F.Supp.2d 1269

Felicitea v. PESCIA, Plaintiff, v. AUBURN FORD-LINCOLN MERCURY INC., et al., Defendants.

No. Civ.A. 96-C-1811-E.

United States District Court, M.D. Alabama, Eastern Division.

July 29, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John A. Tinney, Roanoke, AL, for Felicitea V. Pescia, plaintiff.

Jeffrey E. Friedman, Christopher J. Zulanas, Friedman, Leak & Bloom, PC, Birmingham, AL, for Auburn Ford-Lincoln-Mercury, Inc., defendant.

William L. Howell, William L. Howell, P.A., Mobile, AL, Brenda Drendel Hetrick, Honeycutt, Hetrick & Carter, LLP, Mobile, AL, for Ford Motor Credit Company, defendant.

MEMORANDUM OPINION AND ORDER

CARROLL, United States Magistrate Judge.

I. INTRODUCTION AND PROCEDURAL HISTORY

On November 13, 1996, the plaintiff, Felicitea Pescia, filed this action in the Circuit Court of Lee County, Alabama, against Auburn Ford Lincoln Mercury (hereinafter "Auburn Ford") and Ford Motor Credit Company (hereinafter "FMCC"). The case was then removed to this court. Following a period of discovery, on February 27, 1998, the plaintiff filed an amended complaint which retained Auburn Ford and FMCC as defendants and added a third defendant, A.J. Ferguson. The amended complaint raises the following 12 claims.¹

(1) Statutory Fraud (Auburn Ford and FMCC);

(2) Suppression of Material Facts (Auburn Ford and FMCC);

(3) Outrageous Conduct (Auburn Ford and FMCC);

(4) Fraud (FMCC);

(5) Negligence (Auburn Ford);

(6) Suppression (FMCC);

(7) Negligence (FMCC);

(8) Negligent Supervision (FMCC);

(9) Negligence (Auburn Ford);

(10) Civil Conspiracy (Auburn Ford, FMCC and A.J. Ferguson);

(11) Civil Conspiracy (Auburn Ford and FMCC);

(12) Negligent Supervision (A.J.Ferguson).

This cause currently is pending before the court on motions for summary judgment filed by each defendant. For the reasons which follow the court concludes that the motions filed by Auburn Ford and FMCC are due to be granted in part and denied in part; and that the motion filed by A.J. Ferguson is due to be granted.

II. FACTS²

The plaintiff, Felicitea Pescia, went to Auburn Ford on August 14, 1996 to purchase a used Ford Taurus. Ms. Pescia wanted to purchase a low mileage used car so that there would be some time left on the factory warranty. When she entered the Auburn Ford lot, Ms. Pescia was approached by a salesman named Kyle and Ms. Pescia told him what she wanted. Kyle found a car that fit the description of what she was looking for. After a test drive, Ms. Pescia decided she wanted to purchase the automobile she had driven. She told Kyle that she had $1700 to pay down. Kyle then told her to meet with Vandy Wilson, the Auburn Ford business manager, to discuss the financial details of the purchase. Wilson asked Pescia how much she had to put down on the automobile and, according to Pescia, she told him what she had told Kyle — she had $1700 to put down. Wilson asked her to step outside while he looked for a company that would finance the transaction. Wilson then called Pescia back to his office and told her that he had several financing options at a 23% to 26% interest rate, resulting in payments of over $600.00. Pescia told Wilson that she absolutely could not afford such payments. Wilson then told her he would talk to FMCC, Ford's credit company. Again, he asked Ms. Pescia to step outside. Wilson then called Ms. Pescia back into his office and told her that FMCC agreed to finance her purchase at an interest rate of 18.25% and that the payments would be $411.58 per month. Ms. Pescia recalls that she commented that the rate was a little high and Wilson told her that the rate was the lowest he could get because of her past history of a bankruptcy. Wilson then returned to his computer and generated some forms which Ms. Pescia signed. She provided the down payment in cash. When she gave Wilson the cash Pescia asked for a receipt. According to Pescia, Wilson told her that the sales contract was sufficient.

Before leaving Auburn Ford on August 14th, Pescia and Wilson signed an "Alabama Retail Installment Contract" which showed that Pescia had made a cash down payment in the amount of $1719.93. The form also showed that Pescia was financing $16,000 at a rate of 18.25% interest for sixty months in installments of $411.58. Pescia and Wilson also signed an application for title showing FMCC as the lienholder and an agreement to provide insurance to FMCC. In addition, Pescia and Wilson signed an Auburn Ford Buyer's Order which showed a "cash deposit submitted with order" of $1719.83 and an unpaid cash balance due on delivery of $16,000.00. There is absolutely no language anywhere in the contract that Wilson and Pescia signed that would indicate that the contract was somehow conditional on receiving financing. Indeed, in the words of the contract, "By signing this contract, you choose to buy the vehicle on credit under the agreements on the front and back of this contract." After signing the necessary papers, Wilson gave Pescia a copy of the sales contract and some insurance papers. He shook Pescia's hand and told her that she now owned the car. Pescia then drove her Ford Taurus home.

Auburn Ford assigned a retail installment contract on the Ford Taurus which Ms. Pescia purchased to FMCC. The contract which was assigned, however, was not the contract Ms. Pescia signed on August 14, 1996. The contract assigned to FMCC by Auburn Ford showed a down payment of $1019.83 which was $700 less than the down payment on the contract which Pescia signed on August 14. The contract also showed an amount financed of $16,700 which was $700 more than the amount financed on the contract signed by Pescia on August 14. The assigned contract called for an interest rate of 16.25% which was 2% less than the interest rate Pescia agreed to on August 14. Consequently, Pescia's monthly payments under the assigned contract were $411.09 which is $0.49 less per month than the monthly payment she had agreed to on August 14. FMCC agreed to purchase the contract from Auburn Ford on August 19, 1996.

In attempting to find financing for Ms. Pescia, the dealership sent several proposals to FMCC.³ On August 14, 1996, FMCC conditionally approved a proposal which called for a sales price of $16,719.00 with no money down and payments of $440.00 per month for 60 months. On August 19 1996, Auburn Ford submitted a contract to FMCC for assignment which contained terms different from the contract terms which FMCC had agreed to purchase. FMCC agreed to accept the assignment and paid Auburn Ford for the contract.

On August 27, 1996, Mike Bradshaw, an employee of FMCC, called Pescia to verify the terms of her contract. Bradshaw went over the contract line by line comparing the contract which he had to the copy of the contract which the plaintiff had. During the conversation, as reflected on Bradshaw's verification form, Pescia told him that she made a down payment of $1719.83 and the amount financed on her contract was $16,000 not $16,700.⁴ In an affidavit which she has filed, Ms. Pescia represents that Bradshaw told her he would look into her situation and get back with her. Pescia has testified that she sent all of her papers to Bradshaw, at his request and to an address he furnished her.

Eventually, the discrepancy that Pescia pointed out came to the attention of Marie Reeves, Bradshaw's supervisor. On September 18, 1996, Reeves faxed a copy of the retail commodity verification form completed by Bradshaw to Jerry Floyd, an FMCC employee who was supervising the operation of Auburn Ford. Floyd was at Auburn Ford protecting FMCC assets because of problems with the dealership. Sometime after September 18, 1996, while Floyd was still at Auburn Ford, he talked with Vandy Wilson about the variations between the contract in Pescia's possession and the contract assigned by Auburn Ford to FMCC. Floyd asked Wilson about the variation in the amount of the down payment and Wilson showed him a receipt for $1,020 from Ms. Pescia. Floyd also asked about the interest rate and was told by Wilson that there was second contract because he had decided to give her a lower interest rate on the second contract than he had given her on the first contract. Wilson also said that he did not have a copy of the first contract but that Pescia had signed both contracts including the contract which FMCC had. Floyd faxed Reeves the documents which he received from Wilson and reported his findings. Reeves spoke with Damon Ferguson and Pervis Hester of Auburn Ford and reminded the dealership of its responsibility to repurchase the contract if the contract proved to be unenforceable.

III. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

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 nonmovant's evidence itself is insufficient to establish an essential element 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 his claims, and on which he 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...