# In the United States Court of Federal Claims

No. 15-756C (E-Filed: December 10, 2018)

NOT FOR PUBLICATION

LARRY H. MILLER

CHEVROLET OF MURRAY, DBA for Larry H. Miller Corporation,

Plaintiff,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Contract; Parol Evidence; Disputed Material Facts and Legal Issues Inadequately Presented; Summary Judgment Not Available Where Liability Is Uncertain.

Aida Neimarlija, Salt Lake City, UT, fo r plaintiff. Richard D. Burbridge and Andrew J. Dymek, Salt Lake City, UT, of counsel.

Joshua A. Mandlebaum, Tria l Attorney, with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, Allison KiddMiller, Assistant Director, United States Department of Justice Civil Division, Washington, DC, for defendant. Thomas Japhet, Office of General Counsel, United States Department of Agri culture, Golden, CO, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

Before the court are the parties’ cr oss-motions for summary judgment and their reply briefs. 1 After lengthy stays of proceedings in this matter to permit

1 The briefs before the court are pl aintiff’s motion for summary judgment, ECF No. 27, defendant’s cross-motion for summary judgment, ECF No. 44, plaintiff’s response/reply, ECF No. 45, and defendant’s re ply, ECF No. 48.2 related criminal investigations to reach th eir conclusion, the parties request that the court rule on their previously-briefed mo tions, see ECF No. 65 at 1, which do not

reflect the facts unearthed in those criminal proceedings. It is not efficient to rule

on outdated motions which do not ar gue from a complete and necessary

foundation of material fact. 2 Oral argument was requested only if “helpful” to the court. Id. at 2. Oral argument was not needed; the parties’ cross-motions are

denied.

I. Background

The primary question before the c ourt is whether the United States Department of Agriculture (USDA), entere d into a contract with Larry H. Miller Chevrolet of Murray, DBA fo r Larry H. Miller Corporation (plaintiff), to purchase ten pick-up trucks. Both the contr acting officer (CO) for USDA and the intermediary for plaintiff, Striker Electri c, have been convicted and sentenced based on crimes that are directly relate d to the acquisition of these trucks by USDA. See ECF No. 60 at 3. Thus, that transaction cannot be understood unless

the criminal behavior of the CO and Strike r Electric is addressed. In the briefs currently before the court, th e criminal behavior of the CO is not addressed at all, and the nature of the criminal activity of Striker Electric is only partially

addressed. The court cannot determine whether a contract was formed where the facts stated by the parties ignore many of th e facts and issues that are essential to their dispute.

II. Analysis

The party moving for summa ry judgment will prevail “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the United States Court of Federal Claims (RCFC). Here, the pa rties admit that th e only possible issue that can be decided on their summary judgment motions is the government’s liability for breach of contract. ECF No. 65 at 1. To determine whether the government is liable for breach of contr act, the court must first determine whether

a contract was formed betw een USDA and plaintiff.

This case turns largely on the question of whet her USDA and plaintiff possessed a “mutual intent to contract.” E.g., Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). Two disputes prevent the court from reaching any conclusions in this regard. First, defendant cont ends that the court

2 Any efficiencies realized by the pa rties in their relianc e on previously-filed briefs is outweighed by the inadequacy of briefs which do not present an accurate factual background accompanied by relevant legal analysis.3 should consider paro l evidence in its quest to discover intent to contract, whereas plaintiff insists that the court ignore parol evidence and instead focus on the documents presented to the USDA by Stri ker Electric and signed by the CO. None of the parties’ extensive argument s regarding parol evidence are at all informed by the CO’s co nviction for accepting a grat uity from Striker Electric. 3

As both parties note, however, parol evidence serves a purpose when

contract documents are created in circumstances where fraudulent or sham transactions are suspected. 4 When wrongful conduct of one of the parties is alleged, courts have been willing to look beyond the text of the document executed by both parties. See, e.g ., Union Bank v. Swenson, 7 07 P.2d 663, 666 (Utah 1985) (“Parol evidence is admissible to prove that a party was induced into a contract by fraud.”) (citation omitted). The contract do cuments relied upon by plaintiff were signed in circumstances that included behavior of a crimin al nature. The parties’ arguments regarding parol evidence cannot be divorced from that factual background, and the admissibility of parol evidence cannot be decided as if such facts did not exist. In other words, the court cannot rule on the relevance of parol evidence here, in circ umstances tainted by criminal behavior, until all of the facts pertinent to the admissibility question have been adequate ly briefed by the parties.

The second dispute that prevents the court from reaching the contract formation issue is the question of the CO’s subjective intent to contract at the time he signed the contract forms proffered by Striker Electric. What the CO knew, what the CO assumed, what the CO intended, what th e CO gained from putting his signature on the documents are all ques tions that the parties extensively and exhaustively debated in the briefs before the court. Nowhere, however, do these

3 The parol evidence dispute is centra l to the liability qu estion before the court, and was extensively argued by th e parties. See ECF No. 27 at 20-24 (arguing that only objective evidence found in the language of the contract documents, not parol evidence of subjective intent, is relevant to this dispute); ECF No. 44 at 35-36, 45, 50, 53 (relying on parol evidence to conclude that the

CO had no intent to enter into a contract with plaintiff); ECF No. 45 at 7-8, 16-20 & n.5 (arguing that no extraordinary circum stances in this transaction merit the consideration of parol evidence); ECF No. 48 at 12-13 (arguing that parol evidence should be considered by the court in this case).

4 See ECF No. 44 at 35-36 (citing auth orities for the use of parol evidence where invalidating circumstances may exist); ECF No. 45 at 16-18 (citing authorities for the proposition that extr aordinary circumstances such as fraud permit recourse to parol evidence); ECF No . 48 at 12-13 (citing authorities for the proposition that the circumstances of contract execution may permit the introduction of parol evidence).4 outdated briefs acknowledge the CO’s crim inal conviction for accepting a gratuity from Striker Electric. Thus, these briefs inaccurately and incompletely analyze the

CO’s actions.

The parties now know a great deal mo re about the CO’s activities at the time of alleged contract formation, but th eir briefs do not refl ect this knowledge. 5

The conclusions drawn as to the CO’s s ubjective intent, and the legal conclusions drawn as to the significance of the CO ’s signatures on the forms presented by Striker Electric, are necessarily incomple te. The parties also do not adequately address the question of whether criminal ac tions by an officer of the United States can bind the United States in contract, se e ECF No. 44 at 55-66 (citing cases), and whether that question is relevant to the facts of this case.

III. Conclusion

In sum, the briefing before the cour t does not adequately address a number of disputed material facts and issues of law, and does not permit a determination of liability in this matter. Accordingly,

(1) Plaintiff’s motion for summa ry judgment, ECF No. 27, is DENIED ;

(2) Defendant’s cross-motion for su mmary judgment, ECF No. 44, is

DENIED ; and,

(3) The parties shall FILE a joint status report proposing further proceedings in this matter on or before December 19, 2018

.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH Judge

5 The court does not believe further di scovery is required. Moving forward, the parties must found their arguments re garding contract formation upon the facts they have disclosed to the court, and mu st tailor their legal analyses accordingly.