* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G ). This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The Court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 21 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

CDM AUTO WHOLESALE, INC.,

Plaintiff-Appellant,

v. CINDY L. JENSEN; ALBUQUERQUE LINCOLN MERCURY, INC.,

Defendants-Appellees. No. 01-2181 (D.C. No. CIV-00-166 DJS/RLP)

(D. N.M.)

ORDER AND JUDGMENT *

Before HENRY , ANDERSON , and LUCERO , Circuit Judges.

CDM Auto Wholesale, Inc. (“CDM”), sued Albuquerque Lincoln Mercury, Inc. (“ALM”) alleging violations of the Federal Odo meter Act, 49 U.S.C. §§ 32701–32711. The district court granted summary judgment in favor of ALM, finding that CDM failed to present evidence that AL M acted with intent to1 Jensen was named as a defendant, but because she wa s never served the

complaint against her was dismissed for lack of prosecution. See Fed. R. Civ. P. 4(m). -2- defraud. We review the district court’s grant of s ummary judgment de novo, applying the same legal standards under Fed. R. Civ . P. 56(c) as did the district court, and examining the factual record in the ligh t most favorable to the party opposing summary judgment. See Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1259 (10th Cir. 1998). Because CDM did not p resent sufficient evidence to defeat ALM’s motion for summary judgment, we affirm

. Cindy Jensen, 1 an employee of ALM, traded in her used 1992 Ford E xplorer to ALM on August 7, 1998. At that time, the vehicl e had an odometer reading of 13,801 miles. Jensen certified to ALM, on an odome ter disclosure statement and a power of attorney to disclose mileage and assign title, that the odometer reading of 13,801 miles reflected the vehicle’s actual mile s. ALM then immediately sold the vehicle to CDM. CDM resold the vehicle and, ev entually, a subsequent purchaser discovered that the odometer had turned o ver. It was then determined that at the time Jensen traded the car to ALM—and at the time ALM sold it to CDM—the vehicle actually had 113,801 miles on it. CDM then brought this civil action against ALM, seeking damages. “The Odometer Act requires any person transferring ownership of a motor vehicle to give the transferee an accurate, written disclosure of the odometer-3-

reading or, if the transferor knows the odometer re ading is not correct, a statement that the actual mileage is unknown.” Suiter v. Mitchell Motor Coach Sales, Inc. , 151 F.3d 1275, 1277–78 (10th Cir. 1998) (citing 4 9 U.S.C. § 32705(a)). “If the transferor, with intent to de fraud, fails to comply with these requirements, the transferor is subject to suit by the transferee and may be liable for treble damages or $1500, whichever is greater.” Id. at 1278 (citing 49 U.S.C. § 32710). Intent to defraud may be established thr ough proof of a violation of the statute made with the specific intent to deceive ora reckless disregard for a vehicle’s actual mileage. Haynes v. Manning , 917 F.2d 450, 452–53 (10th Cir. 1990). Liability under the Odometer Act could be b ased on a showing of reckless disregard because such a showing could lead to an i nference of fraudulent intent: [I]f a person lacks knowledge that an odometer disc losure statement is false only because he displays a reckless disreg ard for the truth, a fact finder can reasonably infer that the violation was committed with an intent to defraud a purchaser. The inference of an intent to defraud is no less compelling when a person lacks a ctual knowledge of a false odometer statement only by clos[ing] his eyes to the truth. Id. at 453 (quotation omitted). In the present case, CDM did not present any eviden ce suggesting that ALM “closed its eyes to the truth.” ALM presented evidence that it made a thorough and detailed inspection of the car when Jensen traded it in, checking for hidden defects, excessive wear and tear, and any other signs of high mileage. ALM determined that the car was in very good, clean condition with little wear on-4-

its upholstery and dashboard; its engine had all or iginal, factory-installed parts in good condition; the oil and transmission fluids gav e no indication of engine trouble or need for further investigation; the clut ch and brakes and other mechanical parts showed no evidence of problems ass ociated with a car with higher mileage; the car showed no evidence of havin g been repainted or having been in an accident; and it showed no hail damage o r windshield pitting. Although the car had unusually low mileage for a ca r of its age, ALM presented testimony from its used car manager that he saw eig ht to ten used cars a month with similarly low mileage relative to the vehicles ’ age. Further, Jensen, a trusted employee, had previously worked for other car deale rships and ALM’s used car manager assumed the Explorer had been a dealership demonstration car. CDM has presented no evidence of any complicity between ALM and Jensen, and the evidence in the record on appeal is silent as to wh ether Jensen herself knew the car’s actual mileage was in excess of 13,801. Thus, ALM presented evidence that it did not merely rely on Jensen’s assertion regarding the vehicle’s mileage, but tookindependent, affirmative steps to verify the accuracy of the odometer reading. See Suiter , 151 F.3d at 1284. ALM presented evidence that neither the circumstanc es of the trade-in from Jensen nor its inspection of the vehicle gave it any reason to suspect that the vehicle’s odometer reading was incorrect. See id.-5-

CDM presented no contradictory evidence in response . A party opposing summary judgment cannot rest upon its pleadings, bu t “must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Jenkins v. Wood , 81 F.3d 988, 990 (10th Cir. 1996). On this basis, the district court properly concluded that ALM had met its burden of demonstrating it was entitled to judgment as a matter of law and that CDM failed to meet its burden. On appeal, CDM argues that ALM should be held stric tly liable because the power of attorney signed by Jensen included ALM’s s igned statement that the mileage on the odometer disclosure statement was gr eater than the mileage previously stated on the certificate of title. Thi s argument is factually and legally without merit. ALM presented evidence that the mil eage listed on the odometer disclosure statement—13,801 miles—was, in fact, gre ater than that previously listed on the certificate of title provided by Jens en to ALM. Jensen’s certificate of title, dated as of the date she acquired and tit led the vehicle, showed the vehicle had 7,811 miles; thus, ALM’s certification on the power of attorney was not false. Further, the Odometer Act is not a stri ct liability statute. Under 49 U.S.C. § 32710, a transferor is only liable if i t violates the Act’s requirements with the intent to defraud, and there is no such ev idence here.-6-

CDM also argues that the question of whether one ac ted with a particular state of mind—presently, whether ALM acted with int ent to deceive—is inherently a question of fact which may not be reso lved through summary judgment. To the contrary, summary judgment is war ranted even when state of mind is at issue, when the party opposing the motio n fails to make the requisite showing to defeat the motion for summary judgment. Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 256 (1986). Such is the case here. We agree with the district court that CDM failed to provide any evidence from which a reasonable juror could infer that ALM displayed a reckless disregard for the truth or acted with actual intent to deceive when it transferred the ve hicle. Accordingly, the judgment is AFFIRMED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge