Opinion
Civil Action NO. 01-3754
March 30, 2003
ORDER AND REASONS
Defendants RTRT Inc. and Ryder Truck Rental, Inc., (collectively "Ryder"), request that the Court grant its Motion for Summary Judgment or Alternatively, for Partial Summary Judgment, (Rec. Doc. 18). For the following reasons, the Court GRANTS the motion, in part, and DENIES the motion, in part.
Facts and Background
This lawsuit arises out of an agreement, the Ryder Used Vehicle Distributor Agreement, ("the Agreement"), executed on or about October 30, 1998, between Ryder Truck Rental, Inc. and international Industries. Pursuant to the Agreement Ryder Truck Rental, Inc. appointed International Industries (Australia) as its authorized distributor for used vehicles, parts, and equipment in Australia. The plaintiffs allege in their Petition for Damages filed in the 24th Judicial District for the Parish of Jefferson, on October 13, 2001, that the defendants repeatedly breached the Agreement by failing to provide "road ready" vehicles that were in good condition, and for failing to sell them to International Industries at the negotiated prices. Additionally, the plaintiffs allege that the defendants failed to reimburse them for extensive repairs that the vehicles required before the plaintiffs could sell them. The plaintiffs also allege numerous other breaches of the Agreement by the defendants such as wrongful termination of the Agreement and failure to deliver certain vehicles. On February 18, 2003, the defendants filed the instant Motion for Summary Judgment or Alternatively, for Partial Summary Judgment.
Standard of Review on a Motion for Summar Judgment
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celorex Corp v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the burden shifts to the non-movant "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." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
Issues for Summary Judgment
Ryder argues that it is entitled to judgment as a matter of law dismissing the Plaintiffs' Petition for Damages because no genuine issue of fact exists because:
1. No plaintiff has standing to assert a claim against Ryder for breach of contract or warranty under the Ryder Used Vehicle Distributor Agreement, ("the Agreement") because none of the plaintiffs are in privity of contract with Ryder.
2. Plaintiffs have no claim for repair costs they allegedly incurred on any vehicles purchased from Ryder because the Agreement imposed no obligation upon Ryder to reimburse Plaintiffs for repair costs.
3. Ryder reimbursed the plaintiffs for the purchase price of Vehicle No. 453709, and thus, the plaintiffs have not right to recover any damages for that vehicle.
4. The plaintiffs cannot recover their attorneys fees in this breach of contract/warranty action under applicable law because neither the agreement nor any statute affords them the right to recover attorneys fees.
5. Any damages Plaintiffs may be able to seek are offset by the $58,000.00 that the plaintiffs owe Ryder for three vehicles purchased from Ryder for which they failed to pay Ryder.
The Court will consider each of the above contentions, in turn. However, before addressing each of Ryders' arguments, the Court notes that Florida law will apply, as Ryder has urged, because it is the law the agreement designates as the parties' choice of law, and because the plaintiffs have not contested its application in their opposition to Ryder's Motion for Summary Judgment.
1. Standing of Plaintiffs
Ryder challenges the Plaintiffs, Michael Liker, Bonnie Liker and International Industries' standing to sue because they are allegedly not in privity of contract with Ryder, as required under Florida law. T.W.M. v. American Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995). Ryder argues that since only Ryder and International Industries (Australia) are named parties to the contract, the Court should dismiss the Plaintiffs' claims.
After reviewing the briefs and gleaning additional information from a telephone status conference between the parties which was conducted on March 28, 2003, the Court finds that Ryder's Motion should be granted with respect to Michael Liker and Bonnie Liker. These parties were not in privity to the Agreement. The plaintiffs have not brought forth any evidence to create a genuine issue of fact on this point. Mr. Liker's affidavit confirms this. Mr. Liker's affidavit states that "[p]rior to December 10, 1999, affiant conducted such business in his own name or in the name of an unincorporated sole proprietorship, International Industries. On or about December 10, 1999, Affiant organized and formed International Industries, L.L.C. as a limited liability company, contributing to same all assets, liabilities, and receivables formerly held and operating under the sole proprietorship of similar name." See Affidavit of Michael Liker, p. 1-2, ¶ 2. According to this affidavit, any rights that Michael Liker, his wife, or the former sole proprietorship had in this contract have been transferred to the L.L.C., International Industries. Therefore, the only proper party to the contract would be International Industries, L.L.C., not Michael or Bonnie Liker.
Although there is no issue of fact to dispute that Michael and Bonnie Liker are not proper plaintiffs to sue for breach of contract, the plaintiffs have created an issue of fact as to whether International Industries, L.L.C. is in privity of contract with Ryder. There exists an issue of fact as to the understanding between the parties pertaining to what entity International Industries (Australia) represented. As it appears on the face of the agreement, only International Industries (Australia) is a named party. However, the Affidavit of Michael Liker creates an issue of fact as to whether International Industries (Louisiana) was in reality the business that was a party to the Agreement. In the affidavit Michael Liker states that Mr. Bogdan, the Ryder Representative indicated that,
he understood and agreed that International Industries would have to grown and have an existing volume of sales using domestic and established Central American markets for the wholesale of the Ryder commercial trucks, before actually establishing a location in Australia. It was also discussed and acknowledged by Mr. Bogdan, on behalf of Ryder, that International Industries, L.L.C. would be and was a Louisiana company. . . .See Affidavit of Michael Liker, p. 2, ¶ 4. The affidavit has created an issue of fact as to whether International Industries, L.L.C. was a party to the contract. Additionally, because Mr. Liker established International Industries L.L.C. after the Agreement was executed, there is a question of fact as to the relationship between International Industries (Australia) and International Industries, L.L.C. There is also a question of fact as to whether International Industries (Australia) exists. Finally, since the copy of the Agreement that Ryder provided to the Court is not signed by the plaintiffs, the absence of the signature creates an issue of fact as to which entity, other than Ryder, was a party to the Agreement.
2. Plaintiffs' Claim for Repair Costs
The Court finds that there are questions of fact pertaining to whether the plaintiffs were entitled to repair costs. Ryder argues that the unambiguous terms of the Agreement preclude the plaintiffs from recovering any repair costs. Ryder directs the Court's attention to the Agreement which states that the "Distributor shall inspect the condition of each Vehicle before taking delivery. Acceptance of a Vehicle shall be deemed approval of the Vehicle's condition by the Distributor." Additionally, Ryder contends that the Agreement limits Ryder's liability because it states that "Nothing herein contained shall impose any liability on the Company [Ryder] for any expenditure made or incurred by the Distributor in preparation for performance or in performance of the Distributor's obligations under the agreement." However, there exists genuine issue of material facts as to these assumptions. First, there is an issue of fact as to whether the plaintiffs inspected the vehicles. See Affidavit of Michael Liker, p. 3-4. Secondly, there is an issue of fact as to whether Ryder may have agreed to perform repairs, notwithstanding the terms of the Agreement. See Plaintiffs' Exhibit H. Contrary to Ryder's argument that evidence of such an agreement is inadmissible under the parol evidence rule, extrinsic evidence of a subsequent agreement does not violate the parole evidence rule. "[T]he parol evidence rule. . . . [s]ection 672.202, Florida Statutes (1987) (UCC § 2-202), precludes the admission into evidence of any prior agreement or of a contemporaneous oral agreement to `a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein.'" Frank Grffin Volkswagen, Inc. v. Smith, 610 So.2d 597, 607 (Fla.App. 1 Dist. 1992). The parole evidence rule does not preclude the admission of evidence of subsequent agreements, only prior or contemporaneous agreements. Therefore, the plaintiffs' exhibits which suggest that Ryder agreed to perform repairs, creates an issue of fact.
Finally, Ryder's argument that they effectively disclaimed all warranties in its Bills of Sale, and effectively informed the plaintiffs that each vehicle was sold "as is" and "with all faults" does not eliminate questions of fact concerning whether or not the plaintiffs were entitled to repairs. Ryder has not established that the plaintiffs received a Bill of Sale with each purchase. See Affidavit of Michael Liker, ("Affiant understood clearly and conducted all business with Ryder on the basis that no bills of sale or titles were ever issued to International Industries, L.L.C. unless Ryder had confirmed receipt of payment. . . . in regard to many of the wholesale transactions, no bills of sale were ever provided or executed. . . ."), p. 5-6. Since there is a genuine issue of fact as to whether the Bills of Sale were issued with the vehicle purchases, the Court cannot grant Ryder's motion as to the issue of repair costs.
3. Reimbursement for Vehicle No. 453709
The Court finds that there are questions of fact pertaining to whether Ryder reimbursed the plaintiffs for Vehicle No. 453709. Although, Ryder asserts that the plaintiffs did not refute that Ryder reimbursed them fully for the cost of Vehicle No. 453709, the plaintiffs have brought forth a genuine issue of fact as to the nature of the $56,000.00 and what this figure represents. The business records Ryder has submitted to the Court do not conclusively establish that Ryder reimbursed the Plaintiffs and therefore this Court cannot decide the question as a matter of law.
4. Attorneys Fees
The Court finds that the plaintiffs have not rebutted nor have they brought forth any evidence to suggest that there is an issue of fact which would entitle them to attorneys fees. The Agreement does not mention attorneys fees nor have the plaintiffs cited to a Florida statute to support an award of attorneys fees in a breach of contract case. Hubbel v. AETNA Casualty and Surety Co., 758 So.2d 94, 102 (Fla. 2000) ("As a general rule, in the absence of a statute, court rule, or private contract to the contrary, attorney fees are not recoverable by the prevailing party in either a contract or tort action.") On this point, Ryder is entitled to summary judgment that the plaintiffs are not entitled to recover attorneys fees.
5. Offset
The Court finds that there are substantial questions of fact pertaining to whether Ryder is entitled to offset. Ryder submits business records which they argue show that the plaintiffs have not paid for vehicle nos. 742181, 742182, and 742183. Again, these business records do not establish, as a matter of law that Ryder is entitled to an offset of $58,000.00. Questions of fact exist as to the purchase price of these vehicles and whether the plaintiffs were paid for them. Accordingly,
IT IS ORDERED that Ryder's Motion for Summary Judgment or Alternatively, for Partial Summary Judgment, (Rec. Doc. 18), is GRANTED, to the extent that Michael and Bonnie Liker are no longer parties, and to the extent that the plaintiffs are not entitled to attorneys fees. The Motion for Summary Judgment is DENIED because there are issues of fact as to the existence of International Industries (Australia), repair costs, reimbursement of certain vehicles, and offset.
ORDER AND REASONS
Defendants RTRT Inc. and Ryder Truck Rental, Inc., (collectively "Ryder"), request that the Court grant its Motion to Strike Portions of the Affidavit of Michael Liker, (Rec. Doc. 24). The Court DENIES the motion as moot because the affidavit is sufficient to create genuine issues of fact notwithstanding the argumentative statements.