Opinion
Civil Action 00-D-1353-E
May 14, 2001
MEMORANDUM, JUDGMENT. DECLARATION AND ORDER
Before the court are cross summary judgment motions by Plaintiff Ford Motor Credit Company ("FMCC") and Defendant Felicita V. Pescia ("Pescia"). FMCC's Motion For Summary Judgment was filed January 11, 2001, and Pescia's Motion For Summary Judgment was filed February 15, 2001. Pescia issued a Response on February 15, 2001. FMCC filed a Reply on February 20, 2001, and at that same time issued a Response to Pescia's Motion For Summary Judgment. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Pescia's Motion For Summary Judgment is due to be denied and FMCC's Motion For Summary Judgment is due to be granted.
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). The Parties do not contest personal jurisdiction or venue.
II. SUMKARY JUDGMENT STANDARD
On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). As the Supreme Court has explained the summary judgment standard:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails 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. In such a situation, there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing FED. R. CIV. P. 56(c)).
The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989)
The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323 (citing FED. R. CIV. P. 56(c)). The mechanics of satisfying the initial burden vary, however, depending upon which party, the movant or the nonmovant, bears the burden of proof at trial. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (detailing the nature of the parties' responsibilities when preparing or defending against a motion for summary judgment).
Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his or] her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citing FED. R. Civ. P. 56(e)). In meeting this burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That party must demonstrate that there is a "genuine issue for trial." FED. R. CIV. P. 56(e); see also Matsushita, 475 U.S. at 587; Anderson, 477 U.S. at 249. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587.
In ruling on FMCC's Motion For Summary Judgment, the court has carefully examined all submissions by the Parties and has construed them in the light most favorable to Pescia, the nonmoving party. See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
In August of 1996, Pescia went to Auburn Ford-Lincoln Mercury ("Dealership") to purchase a Ford Taurus and signed an "Alabama Retail Installment Contract," which showed that Pescia had made a down payment of $1719.93 and that Pescia was financing $16,000 at a rate of 18.25% for 60 months. (Compl. ¶¶ 3, 7; FMCC's Ex. 4.) Pescia left the Dealership with her Ford Taurus. The Dealership assigned a retail installment contract on the Ford Taurus that Pescia purchased to FMCC. (Compl. ¶ 4.) The contract, which was assigned, however, was not the contract that Pescia signed. ( Id.) The contract assigned to FMCC showed a down payment of only $1019.83. (FMCC'S Ex. 4.) Therefore, the assigned contract reflected a down payment that was $700 less than the down payment shown on the contract that Pescia actually signed on August 14, 1996. (Id.) The contract also showed an amount financed of $16,700 rather than $16,000. (Id.) Thus, the amount financed on the contract assigned to FMCC was $700 more than the amount finance on the contract that Pescia signed on August 14. Yet another discrepancy between the two contracts was the interest rate. The assigned contract called for an interest rate of 16.25%, which was 2% less than the interest rate to which Pescia agreed on August 14, resulting in monthly payments of $411.09. (Id. Compl. ¶ 7; Pescia's Test. at 72-73.) FMCC purchased the contract from the Dealership and Pescia began making her monthly payments. (Pescia's Test. at 47-48; Hester Aff. at 2.) Since that fateful day when Pescia drove away from the Dealership in her Taurus, the Parties have been embroiled in litigation.
On November 13, 1996, Pescia filed an action against the Dealership and FMCC raising numerous claims. This court entered summary judgment in favor of FMCC on every claim asserted against FMCC with the exception of Pescia's suppression claim. See Pescia v. Auburn Ford-Lincoln Mercury. Inc., 68 F. Supp.2d 1269, 1287 (M.D. Ala. 1999). The matter was then tried to a jury. The jury returned a verdict in favor of Pescia, finding that FMCC ratified the Dealership's fraudulent suppression. (Pescia's Ex. A.)
Among the numerous claims raised by Pescia in her 1996 lawsuit, the following claims were made against FMCC: statutory fraud, suppression of material facts, outrageous conduct, fraud, suppression, negligence, negligent supervision, and civil conspiracy. See Pescia v. Auburn Ford-Lincoln Mercury. Inc., 68 F. Supp.2d 1269, 1273 (M.D. Ala. 1999)
That matter was tried before the Honorable John Carroll United States Magistrate Judge. The case is still pending on post-judgment motions of FMCC. See Felicita V. Pescia v. Auburn Ford, et al., 96-C01811-E.
Soon after the jury verdict in the previous action, Pescia ceased making her monthly payments. (Hester Aff. at 3; Hester's 1/26/01 Dep. at 17.) As a result, FMCC filed its Complaint For Declaratory Judgment in this present action. ("Complaint"). Pescia filed an Answer to the Complaint and filed counterclaims for outrage, malicious prosecution, and return of all monies paid by Pescia to FMCC. (Answer to Compl. at 3-6.) FMCC stipulates that the contract that it purchased is a forgery and desires that the rights and interests in the vehicle be determined. (Compl. ¶¶ 4, 8; Hester's 01/26/01 Dep. at 103.)
IV. DISCUSSION
FMCC has moved for summary judgment on its declaratory judgment action and on Pescia's counterclaims. For the reasons discussed below, the court finds that FMCC is entitled to summary judgment on its declaratory judgment action and that Pescia's counterclaims cannot survive summary judgment.
A. Declaratory Judgment Action
FMCC requested the court to declare:
(a) the nature, extent, and priority of the respective claims and interests of FMCC and Pescia in and to the vehicle in question; (b) that FMCC has a valid and enforceable interest, or legal or equitable lien in and to the vehicle; (c) the amount due by Pescia to FMCC and the manner in which that sum is payable; and, (d) the respective rights of immediate possession of the parties to the vehicle.
(Compl. ¶ 8.)
The contract held by FMCC was not signed by Pescia. In fact, FMCC stipulates to this fact. (Compl. ¶ 4; Hester's 01/26/01 Dep. at 103.) Despite this admittance, the court finds that no rational jury could find that Pescia did not intend to purchase the vehicle in question and did not intend to pay FMCC for that vehicle in 60 payments of $411.09. As discussed below, Pescia's own testimony proves just those facts. (Pescia's Test. at 72-72; Pescia's Dep. at 183-84.)
Notwithstanding the fact that shortly after purchasing the Taurus from the Dealership Pescia discovered that FMCC purchased a contract that she did not sign, Pesica began making monthly payments to FMCC and continued making her monthly payments to FMCC through June 4, 2000. (Hester Aff. at 2; Pescia's Dep. at 155-57, 183; Pescia's Test. at 47-48; Hester's 01/26/01 Dep. at 17.) Pescia even made a payment after the jury returned its verdict. (Hester Aff. at 2.) In total, Pescia made 45 payments to FMCC for the Ford Taurus that she purchased from the Dealership in August of 1996. Pescia did not make any of those payments under protest. (Hester's 01/26/01 Dep. at 126-127; Pescia's Dep. at 124-25.) However, after making one payment subsequent to the jury verdict in her favor, Pescia ceased making payments to FMCC. (Hester Aff. at 2.) Pescia stopped making monthly payments to FMCC even though she kept the vehicle in her possession and did not tender it back to FMCC. (Id. at 3.) Furthermore, when Pescia instituted the prior legal action against FMCC and the Dealership she sued for money damages and did not make a claim for rescission based on the forged contract that FMCC held. (Pescia's Test. at 72.) Pescia obviously wanted to keep the vehicle. FMCC argues that Pescia's conduct manifested an intent to be bound to make the payments, and that she thereby affirmed her agreement with FMCC to make 60 monthly payments of $411.09 for the Ford Taurus. (Hester's 01/26/01 Dep. at 30-32, 66; Reply at 6.)
"Under the doctrine of ratification, `a party, by his actions and acceptance of the benefits of a contract and by operating under that contract may ratify and confirm it.'" Kachler v. Taylor, 849 F. Supp. 1503, 1520 (M.D. Ala. 1994) (citing Wilson v. Southern Med. Ass'n, 547 So.2d 510, 514 (Ala. 1989) (quoting Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 305 (Ala. 1986))); see also BLACK's LAW DICTIONARY 1268-1269 (7th ed. 1999) (defining ratification as "[a] person's binding adoption of an act already completed but either not done in a way that originally produced a legal obligation or done by a third party having at the time no authority to act as the person's agent"). A person may affirm and ratify a contract to which her actual signature is not affixed. See Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 305 (Ala. 1986) (citing Rush v. Atomic Elec. Co., 384 So.2d 1067 (Ala. 1980)).
Even though Pescia contended that the contract purchased by FMCC was forged, she voluntarily made her monthly payments. (Pescia's Dep. at 124-25; Pescia's Test. at 48.) Pescia's counsel unpersuasively attempts to undermine the voluntary payments by asserting that Pescia only made the payments because she needed the car and did not want it repossessed while the trial was ongoing. (Pescia's Resp. at 7.) However, Pescia did not mention that these were the reasons for making the payments in either her earlier deposition or trial testimony. (Pescia's Dep. at 47-48, 72, 183-84.) Quite the contrary, when questioned during the trial, Pescia stated that she wanted the vehicle and that she was bound by the contract. (Pescia's Test. at 72-73.) The following exchange clearly evidences Pescia's intent to make her payments to FMCC:
Pescia's Brief in Support of her Motion For Summary Judgment and in Opposition to FMCC's Motion For Summary Judgment failed to cite to the record in a manner required by the Uniform Scheduling Order in this case. Although the court could have refused to consider the materials presented, the court exercised its discretion and considered Pescia's evidentiary submissions in support of her Motion For Summary Judgment and Opposition to FMCC's Motion For Summary Judgment. Cf. Twin City Fire Ins. Co. v. Colonial Life Acc. Co., 2000 WL 1785309, at *1 (M.D. Ala. 2000) (refusing to consider materials presented on the basis that the requirements of the Uniform Scheduling Order were not met).
Although some question might be raised as to which contract Pescia felt that she was bound because she did state that she wanted the car for the amount that she financed in the contract that she signed, $16,000, she clearly and unequivocally stated that she intended to make the payments of $411.09, which she knew were based on an amount financed of $16,700. (Pescia's Dep. at 183-84; Pescia's Test. at 47, 73.) Furthermore, Pescia's payments under the forged contract are actually less than the payments would have been under the contract that she signed because the interest rate on the unsigned contract is two percent less than the interest rate on the signed contract. (Pescia's Test. at 48.)
Q: Do you intend to pay Ford Credit sixty payments of four eleven o nine?
A: I intend to make the payments Mr. Bradshaw told me to make. Q: Which was four eleven o nine?
A: Four eleven o nine.
(Pescia's Dep. at 183-84.)
Additionally, Pescia had the opportunity to rescind the contract in her earlier lawsuit, but chose not to do so. She sought money damages only. This evidences Pescia's desire to retain the vehicle. See Hillcrest Ctr., Inc. v. Rone, 711 So.2d 901, 906-907 (Ala. 1997) (finding that an action for monetary damages is not inconsistent with an action for rescission).
Pescia made monthly payments and testified in both her deposition and at trial that she intended to make 60 payments of $411.09 to FMCC. By her own testimony, Pescia ratified the contract that FMCC holds. See Kachler, 849 F. Supp. at 1520. The court finds that based on her testimony and the fact that she made 45 payments to FMCC, including one after the jury verdict, and that she continues to possess and use the vehicle in question with no indication that she plans to return it to FMCC, no genuine issue of material fact exists as to whether Pescia has an obligation to FMCC for the remainder of the monthly payments.
In attempting to demonstrate a genuine issue of material fact, Pescia argues that she made payments to FMCC for two reasons. Those reasons are that she needed a car and did not want it to be repossessed and that "the jury did not make it determination that her signature had been forged until the Court entered its judgment on May 26, 2000." (Pescia's Resp. at 7.) However, the pleadings are not evidence, and so the court has no idea if this is true. See Bowden v. Wal-Mart Stores. Inc., 124 F. Supp.2d 1228, 1236 (M.D. Ala. 2000) (stating that pleadings are not evidence). Furthermore, Pescia made the payments voluntarily and not under protest. (Hester's 01/26/01 Dep. at 126-127; Pescia's Dep. at 124-25.) Therefore, these blanket statements do not create a genuine issue of material fact.
As explained previously, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citing FED.R.CIV.P. 56(e)).
Pescia also harps on the fact that she should not be held to a contract that she did not sign. The court finds that if she did not want to bear the obligation of the contract, she could have requested its rescission. Also, while she does not want to bear any further obligation under the contract, she continues to possess and use the vehicle. If she is going to reap the benefit of the contract, then she must also bear the obligation. See Grillet v. Sears, Roebuck Co., 927 F.2d 217, 220 (5th Cir. 1991). Pescia testified that she intended to make 60 payments of $411.09 to FMCC because she wanted the car. (Pescia's Dep. at 183-184.) This verbal affirmance coupled with her continued use of the vehicle proves that Pescia ratified the agreement with FMCC. See RESTATEMENT (SECOND) OF CONTRACTS § 380 (1981). As such, Pescia's Motion For Summary Judgment on FMCC's declaratory judgment action is due to be denied and FMCC's Motion For Summary Judgment is due to be granted. Pursuant to its request for declaratory judgment, the court finds that FMCC has a valid perfected lien on the vehicle in question, which is superior to, and has priority over any claim or interest of Pescia. The amount of the lien is fixed at $6,166.35. The amount of the lien is immediately due and payable, and if not paid within 30 days FMCC is entitled to immediate possession of the vehicle.
Pescia even goes so far as to counterclaim for the return of any and all sums previously paid by her to FMCC.
The court determined the balance due by multiplying Pescia's monthly payment of $411.09 by the remaining fifteen payments owed on the vehicle.
B. Peacia's Counterclaims
1. Damages in the amount off all sums paid to FMCC
Under Pescia's first counterclaim, she argues that FMCC has wrongfully "collected and retained monthly payments from her which it was not entitled to collect or retain." (Pescia's Resp. at 8.) She seeks damages in an amount of all sums paid by her to FMCC. Rather than refusing the benefits of or tendering back the benefits already received, Pescia counterclaimed for the return of all money paid by her to FMCC. Because the court found above that Pescia voluntarily made those payments and that she ratified the agreement with FMCC, FMCC is entitled to summary judgment on Pescia's counterclaim for money had and received.
In granting FMCC's Motion For Summary Judgment on Pescia's counterclaim for money received, it is axiomatic that Pescia's Motion For Summary Judgment as to her first counterclaim is due to be denied.
2. Outrageous conduct
Pescia claims that the following constitute outrageous conduct on the part of FMCC: that FMCC collected money from her when it knew that it should not have, that it continually made her believe that she had to pay FMCC to retain possession of the vehicle, and that it sought a declaration of the rights and liabilities of the Parties to the vehicle. (Answer to Compl. at Counterclaim Two.)
The tort of outrage is founded on conduct that is "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala. 1980). To establish the tort of outrage, a plaintiff must establish the following three elements: "(1) the actor intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; and (3) the distress was severe." Moore v. Spiller Associated Furniture, Inc., 598 So.2d 835 (Ala. 1992) (quoting Perkins v. Dean, 570 So.2d 1217, 1219 (Ala. 1990)).
The Supreme Court of Alabama has summarized the exceedingly narrow scope of the tort as follows:
[T]he tort of outrage is a very limited cause of action that is available only in the most egregious circumstances. As a consequence, this court has held in a large majority of the outrage cases reviewed that no jury question was presented . . . . In fact, in the 12 years since Inmon was decided, all cases in which this court has found a jury question on an outrage claim have fallen within only three categories: 1) cases having to do with wrongful conduct in the context of family burials . . . 2) a case where insurance agents employed heavy handed, barbaric means in attempting to coerce the insured into settling an insurance claim . . . 3) a case involving egregious sexual harassment.Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041, 1044 (Ala. 1993).
Given the limited nature of a cause of action for outrage, the court finds that the record simply does not disclose facts so poignant as to be actionable, especially in light of the court's finding that FMCC is entitled to summary judgment on its declaratory judgment action. Because the court finds that Pescia has failed to carry her burden, summary judgment as to Pescia's claim of outrage is due to be entered in favor of FMCC.
3. Malicious prosecution
Pescia claims that FMCC's actions in filing this lawsuit are "unjustified and malicious." (Answer to Compl. at Counterclaim Three.) The elements of malicious prosecution are: (1) a civil action filed by the defendant against the plaintiff; (2) the civil action was instigated by the defendant maliciously; (3) the civil action was instigated without probable cause; (4) the civil action has been terminated in favor of the plaintiff; and (5) the plaintiff suffered damage as a proximate consequence. See Johnston v. Duke, 224 So.2d 906, 907 (Ala. 1969). Pescia alleges that the case at hand is the one in which FMCC instigated maliciously against her. As such, one of the elements of malicious prosecution is lacking. In her Motion For Summary Judgment, Pescia argued that "[w]hen Ford's claims against Pescia are resolved in her favor, this action will have been terminated in her favor." (Pescia's Resp. at 14.) Because the court has found in favor of FMCC, this civil action has not been terminated in favor of Pescia. Thus, FMCC's Motion For Summary Judgment on Pescia's malicious prosecution claim is due to be granted.
Pescia's third counterclaim specifies a claim for malicious prosecution. (Answer to Compl. at Counterclaim Three.) However, in her Response to FMCC's Motion For Summary Judgment, Pescia also argues the tort of abuse of process. (Pescia's Resp. at 12.) Assuming Pescia made a proper claim for abuse of process, this claim fails because she cannot establish all of the elements of such a claim. The elements of a cause of action for abuse of process under Alabama law are malice, the existence of an ulterior purpose, and the wrongful use of process. See Triple J. Cattle, Inc. v. Chambers, 621 So.2d 1221, 1223 (Ala. 1993) (citing Drill Parts Serv. Co. v. Joy Mfg. Co., 619 So.2d 1280 (Ala. 1993)). Alabama cases hold that for an abuse of process cause of action to be sustained a lawsuit must have been legally filed for a proper purpose, but that some process of the court must have been improperly used after the lawsuit was filed. Ramsey v. Leath, 706 F.2d 1166, 1170 (11th Cir. 1983) (citingAncora Corp. v. Stein, 445 F.2d 431, 433 (5th Cir. 1971)). In other words, an abuse of process claim in Alabama may not rest solely on allegations that the suit was originated out of some ulterior motive and with malice. See Ramsey, 706 F.2d at 1170. Because no special process was improperly issued in the case at bar, no basis for an abuse of process claim exists.
V. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that FMCC's Motion For Summary Judgment be and the same is hereby GRANTED and Pescia's Motion For Summary Judgment be and the same is hereby DENIED. Accordingly, it is CONSIDERED, ADJUDGED AND DECLARED that FMCC has a valid perfected lien on the vehicle, which is superior to, and has priority over any claim or interest of Pescia. The amount of the lien is fixed at $6,166.35, which is immediately due and payable. If not paid within 30 days, FMCC is entitled to immediate possession of the vehicle. Any other outstanding motions be and the same are hereby DENIED AS MOOT. A judgment in accordance with this MEMORANDUM OPINION AND ORDER will be entered separately.
The court retains jurisdiction for the purpose of entering such other or further orders as may be requested or appropriate under the law. The clerk of court is directed to close this case.