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NOT FOR PUBLICATION 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, for plaintiff. Richard D. Burbridge and 

Andrew J. Dymek, Salt Lake City, UT, of counsel. 

Joshua A. Mandlebaum, Trial 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 Agriculture, Golden, CO, of counsel. 

OPINION AND ORDER 

CAMPBELL-SMITH, Judge. 

Before the court are the parties’ cross-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 plaintiff’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 reply, ECF No. 48. 
 2 

related criminal investigations to reach their conclusion, the parties request that the 

court rule on their previously-briefed motions, 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on outdated motions which do not argue from a complete and necessary 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 court is whether the United States 

Department of Agriculture (USDA), entered into a contract with Larry H. Miller 

Chevrolet of Murray, DBA for Larry H. Miller Corporation (plaintiff), to purchase 

ten pick-up trucks. Both the contracting officer (CO) for USDA and the 

intermediary for plaintiff, Striker Electric, have been convicted and sentenced 

based on crimes that are directly related 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 Striker Electric is addressed. In the briefs 

currently before the court, the 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 the facts and issues that are essential to 

their dispute. 

II. Analysis 

The party moving for summary 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 parties admit that the 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 contract, the court must first determine whether 

a contract was formed between USDA and plaintiff. 

This case turns largely on the question of whether 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 contends that the court 

 

2

 Any efficiencies realized by the parties in their reliance 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 parol 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 Striker Electric and signed by the CO. 

None of the parties’ extensive arguments regarding parol evidence are at all 

informed by the CO’s conviction for accepting a gratuity 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, 707 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 documents relied upon by plaintiff were 

signed in circumstances that included behavior of a criminal 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 circumstances tainted by criminal behavior, until all of the facts 

pertinent to the admissibility question have been adequately 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 the CO gained from putting his 

signature on the documents are all questions that the parties extensively and 

exhaustively debated in the briefs before the court. Nowhere, however, do these 

 

3

 The parol evidence dispute is central to the liability question before the 

court, and was extensively argued by the 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 circumstances 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 authorities for the use of parol evidence 

where invalidating circumstances may exist); ECF No. 45 at 16-18 (citing 

authorities for the proposition that extraordinary 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 criminal 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 more about the CO’s activities at the 

time of alleged contract formation, but their briefs do not reflect this knowledge.5

 

The conclusions drawn as to the CO’s subjective intent, and the legal conclusions 

drawn as to the significance of the CO’s signatures on the forms presented by 

Striker Electric, are necessarily incomplete. The parties also do not adequately 

address the question of whether criminal actions by an officer of the United States 

can bind the United States in contract, see 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 court 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 summary judgment, ECF No. 27, is DENIED; 

(2) Defendant’s cross-motion for summary 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 discovery is required. Moving forward, 

the parties must found their arguments regarding contract formation upon the facts 

they have disclosed to the court, and must tailor their legal analyses accordingly.