United States District Court, W.D. Missouri, St. Joseph Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff KCI Auto Auction's Motion
for Summary Judgment, Doc. 105. For the following reasons,
the motion is granted.
KCI Auto Auction, Inc. is a wholesale motor vehicle auction
located in Kansas City, Missouri. In January 2014, Defendants
Barry Ristick, Angelo Jefferson, and Tom Ephrem visited KCI
on behalf of the used car business, Defendant Lucky 7 Used
Cars, LLC, seeking to gain access to KCI's weekly
auctions. These Defendants were told that in order to
participate in the auctions, KCI would require proof that
they are licensed vehicle salespersons and/or a licensed
vehicle dealer, and that their used vehicle dealership was
registered with AuctionACCESS. KCI also told these Defendants
that they must obtain a dealer card and salesperson badges,
and agree to all of KCI's auction policies and terms of
April 2014, these Defendants completed a registration
application with KCI, in the name of “Lucky 7 Used
Cars.” The application included a dealership
authorization form that listed Defendant Alonzo Anderson as
the dealership's owner, and listed Angelo Jefferson,
Jason Ephrem, Barry Ristick, and Tom Ephrem, as the
dealership's representatives. These Defendants also
provided KCI with the Used Vehicle Dealer number that they
would be operating under, which was issued by the State of
Kansas, and showed that they had registered their dealership
with AuctionACCESS. These Defendants also provided an
“Auction Guarantee, ” signed and executed by
Anderson, which represented that he was the owner of Lucky 7
Used Cars, and that in consideration of KCI allowing Lucky 7
Used Cars to participate at the auctions, he personally
guaranteed full payment of any debts. Upon receiving the
Defendants' registration application, KCI permitted them
to participate in the auctions.
2014, Tom Ephrem and Barry Ristick approached KCI, on behalf
of Anderson and Lucky 7 Used Cars, and established a
“floor plan” account (the “Lucky 7
Account”). According to the agreement, which was not
reduced to writing, KCI would allow the Defendants to
purchase vehicles without full payment at the time of sale,
and instead required only that they pay the amounts due
within sixty days. If the vehicles were not paid for at the
time of sale, however, KCI would assess a service charge. The
Defendants were also permitted to take immediate possession
of the vehicles, but KCI retained the original titles, and
the Defendants agreed not to sell or transfer the vehicles
until full payment was made and the titles were transferred.
the next three years, the Defendants purchased 293 used
vehicles on the Lucky 7 Account, for which the sales price
and buyers fees totaled $1, 156, 205.62. Although there is an
individual sale contract for each purchase, all of the
Defendants' purchases were made according to the floor
plan, and the Defendants often made payments on the Lucky 7
Account that were generic, and did not reference any specific
transaction. Beginning in 2015, the Lucky 7 account became
delinquent. However, over the course of 2015 and 2016, Barry
Ristick and Tom Ephrem regularly called and personally
visited KCI, and always made promises, assurances, and
representations that they would get the account paid in full
soon. In reliance on these representations, KCI continued to
allow the Defendants to participate at the auctions. In early
2017, KCI finally prohibited the Defendants from attending
any more auctions, and demanded payment of the outstanding
balance on the Lucky 7 Account.
2017, with the Lucky 7 Account balance at $248, 880.38, KCI
brought suit against Alonzo Anderson, Danny Ephrem, David
Ephrem, Jason Ephrem, J.J. Ephrem, Tom Ephrem, Angelo
Jefferson, and Barry Ristick, as well as Lucky 7 Used Cars,
L.L.C., Lucky 7 Discount Auto Sales LLC, and Quality Used
Cars, LLC. In December, 2017, the parties notified the Court
that KCI had reached a settlement with Defendants Tom Ephrem,
David Ephrem, Danny Ephrem, Barry Ristick, Angelo Jefferson,
and Quality Used Cars, LLC (the “Settling
Defendants”). Doc. 89. In January, 2018, pursuant to
the settlement agreement, the Court entered a consent
judgment against the Settling Defendants. Doc. 97. One week
later, the Court entered a default judgment against Lucky 7
Used Cars, L.L.C. and Lucky 7 Discount Auto Sales LLC, Doc.
100, and KCI voluntarily dismissed Defendants Jason Ephrem
and J.J. Ephrem from the suit. Docs. 102, 103. Thus, there is
only one defendant remaining, Alonzo Anderson, who proceeds
seeks summary judgment against Anderson on nine claims:
Breach of Contract, Action on Account, Account Stated,
Fraudulent Misrepresentation, Fraudulent Conveyance, Unjust
Enrichment and Quantum Meruit, Conversion, Negligence Per Se,
and Alter Ego/Piercing the Corporate Veil. The purpose of
summary judgment is to “pierce the pleadings and assess
the proof in order to see whether there is a genuine need for
trial.” Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). To obtain summary
judgment, the movant must show that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). If the movant satisfies this burden, then the
non-moving party “must set forth specific facts
sufficient to raise a genuine issue for trial and cannot rest
on allegations in the pleadings.” Ryan v. Capital
Contractors, Inc., 679 F.3d 772, 776 (8th Cir. 2012)
(quoting Nw. Airlines, Inc. v. Astraea Aviation Servs.,
Inc., 111 F.3d 1386, 1393 (8th Cir.1997)).
deciding whether to grant summary judgment, the Court must
view all facts in a light most favorable to the nonmoving
party, and give that party the benefit of all reasonable
inferences drawn from the facts. Robinson v.
Monaghan, 864 F.2d 622, 624 (8th Cir. 1989). Both
parties, however, must support their assertions “by
citing to particular parts of materials in the record . . .
or showing that the materials cited do not establish the
absence or presence of a genuine dispute.” Fed.R.Civ.P.
56(c)(1). Anderson does not address KCI's section of
uncontroverted facts, nor does his response provide its own.
Moreover, despite relying on new facts, Anderson supports
only some of his assertions by swearing to them in a single,
also represented to the Court that it submitted to Anderson a
written request to admit, which he failed to answer. When a
party serves a written request to admit, every matter
included in that request “is admitted unless, within 30
days after being served, the party to whom the request is
directed serves on the requesting party a written answer or
objection addressed to the matter and signed by the party or
its attorney.” Fed.R.Civ.P. 36(a)(3). “A matter
admitted under this rule is conclusively established unless
the court, on motion, permits the admission to be withdrawn
or amended.” Fed.R.Civ.P. 36(b). Anderson does not
dispute KCI's contentions with regard to the request to
admit, and has not moved for the Court to withdraw or amend
the admissions. Accordingly, the Court must treat the
admissions as conclusively established. See Doc.
106-2 (KCI's Request for Admissions).
Count I: Breach of Contract
obtain summary judgment on its breach of contract claim, KCI
must show that there is no genuine dispute as to the material
facts that establish “(1) the existence of a valid
contract; (2) [Anderson's] obligation under the contract;
(3) a breach by [Anderson] of that obligation; and (4)
resulting damages.” Clayborne v. Enter. Leasing Co.
of St. Louis, LLC, 524 S.W.3d 101, 106 (Mo.Ct.App. 2017)
(citing C-H Building Associates, LLC v. Duffey, 309
S.W.3d 897, 899 (Mo.Ct.App. 2010).
maintains that it has a valid contract with Anderson,
imposing mutual obligations on the parties, as a result of
the Lucky 7 Account “floor plan” and
Anderson's personal guarantee. In support, KCI provides
the affidavit of Tom Ephrem, Danny Ephrem, David Ephrem,
Barry Ristick, and Angelo Jefferson, Doc. 106-1, and the
request for admissions that Anderson failed to respond to.
Doc. 106-2. According to both the affidavit and the
unanswered request for admissions, Barry Ristick and Tom
Ephrem approached KCI and set up the Lucky 7 Account floor
plan agreement on behalf of Anderson. Doc. 106-1, p. 4; Doc.
106-2, p. 15. Under the agreement, the Defendants would
purchase vehicles on Anderson's behalf, and charge them
to the Lucky 7 Account. The Defendants would then be allowed
to take immediate possession of the vehicles, and Anderson
would be permitted up to 60 days to pay the full sale price.
Doc.106-1, p. 8; Doc. 106-2, p. 15. If the Defendants did not
pay for the vehicles at the time of sale, KCI would assess a
service charge based on the amount of time between the sale
and payment. Doc. 106-1, p. 4. According to both the
affidavit and the unanswered request for admissions, Barry
Ristick and Tom Ephrem were acting on behalf of and as agents
for Anderson when they agreed that he would be responsible
and obligated on the Lucky 7 Account. Doc. 106-1, p. 4.
addition to the orally agreed to Lucky 7 Account floor plan,
KCI also bases its breach of contract claim on a document
entitled “KCI Kansas City Auction Guarantee” (the
“Auction Guarantee”). Doc. 106-2, p. 62.
According to the Auction Guarantee, which is signed by
Anderson and was delivered to KCI with the registration forms
in April 2014, in consideration of KCI allowing the
Defendants to participate at the auctions, Anderson
personally guaranteed full payment of any debts of Lucky 7
Used Cars to KCI. Doc. 106-4, p. 46.
first argues that the Auction Guarantee and 293 sales
contracts are forged. Doc. 111-1, p. 2. This is the first
time that Anderson has raised any issues of forgery or
falsified documents, however, and indeed on several prior
occasions he has affirmed the Guarantee's authenticity.
In his answer to the First Amended Complaint, Anderson states
that “[a]ll documents that Defendant faxed or sent to
KCI (Plaintiff) are true and correct.” Doc. 81, p. 2.
Additionally, KCI included the Auction Guarantee in its
request for admissions, and requested that Anderson admit its
authenticity. Doc. 106-2, pp. 11-12. Anderson did not
respond, much less raise any claim of forgery at that time,
and pursuant to Federal Rule of Civil Procedure 36(a)(3)
admitted the document's authenticity. Although he
supports his argument with an affidavit, it does not create a
disputed issue of fact because his admission is conclusive.
See Quasius v. Schwan Food Company, 596 F.3d 947
(8th Cir. 2010).
also argues that Tom Ephrem and Angelo Jefferson had no
authority to enter into any agreements on his behalf.
However, he does not include this contention in his
affidavit, and offers no evidence to support it, let alone
any that overcomes KCI's affidavits. Tom Ephrem and Barry
Ristick have both sworn under oath that they were acting as
Anderson's agents when they set up the Lucky 7 Account
floor plan, and when they entered into the purchase
agreements on the account. Doc. 106-1, pp. 4-6. Additionally,
Anderson failed to deny that Tom Ephrem and Barry Ristick
were his agents and had his authority to enter into the Lucky
7 Account floor plan with KCI when he was served with
KCI's request for admissions. Doc. 106-2, p. 14.
Anderson's completely unsupported argument that there was
no authority to enter into the agreements on his behalf does
nothing to refute KCI's evidence.
Anderson argues that the Mo. Rev. Stat. § 432.047
required the Lucky 7 Account floor plan agreement to be in
writing. However, Section 432.047 states that “[a]
debtor party may not maintain an action upon or a
defense . . . .” Mo. Rev. Stat. § 432.047(2)
(emphasis added). It also states that “[n]othing
contained in this section shall affect the enforceability by
a creditor of any . . . agreement . . . evidencing or
creating an obligation for the payment of money or other
financial accommodation, lien, or security interest.”
Mo. Rev. Stat. § 432.047(4). Here, KCI is the creditor,
not the debtor, and thus it is unclear that the statute
applies. See BancorpSouth Bank v. Paramont Properties,
L.L.C., 349 S.W.3d 363, 368 (Mo.Ct.App. 2011)
(“The Missouri Credit Agreement Statute acts as a
statute of frauds to protect banks from losing their right to
enforce a loan according to the terms of the written loan
documents, if they informally attempt to accommodate
debtors.”). Even if the statute does apply, however,
Anderson is unable to overcome the “Kansas City Auction
Guarantee, ” which is in writing, signed by Anderson,
and personally guarantees all of Lucky 7 Used Cars'
debts. Doc. 106-2, p. 62.
final two elements of KCI's breach of contract claim are
undisputed. At the time this lawsuit was filed, the Lucky 7
Account balance was $248, 880.38, which Anderson refused to
pay. In addition to the outstanding balance, KCI also
suffered damages in the form of attorney's fees and costs
spent attempting to collect. Anderson has failed to overcome
KCI's showing that there is no genuine dispute of
material facts, and establish that he is liable. Therefore,
summary judgment must be entered against Anderson on Count I,
breach of contract, in the amount of $443, 957.85.
Count II: Action on Account
also seeks summary judgment on its claim for action on
account, which is based on the Lucky 7 Account floor plan
agreement. To prevail, KCI must show that there is no genuine
dispute as to the material facts establishing that “1)
[Anderson] requested plaintiff to furnish merchandise or
services, 2) [KCI] accepted [Anderson's] offer by
furnishing such merchandise or services, and 3) the charges
were reasonable.” Helmtec Industries, Inc. v.
Motorcycle Stuff, Inc., 857 S.W.2d 334, 335 (Mo.Ct.App.
KCI relies on the same evidence that supported its breach of
contract claim: the affidavit of Tom Ephrem, Danny Ephrem,
David Ephrem, Barry Ristick, and Angelo Jefferson, and the
unanswered requests for admission. Docs. 106-1, 106-2.
According to the affidavit and unanswered requests for
admission, the Defendants approached and solicited KCI, as
Anderson's agents, and requested that KCI agree to
establish the Lucky 7 Account floor plan for Anderson. KCI
accepted the request, and furnished 293 vehicles to Anderson.
The affidavit and requests for admissions also conclusively
establish that the charges on the Lucky 7 Account were
“reasonable, true and accurate.” Doc. 106-1, p.
does not dispute that KCI furnished the vehicles to Anderson,
or that the charges were reasonable. His only argument
relevant to KCI's action on account is the same as was
discussed above, that his agents did not have any authority
to enter into the agreements on his behalf. However, for the
same reasons as discussed, Anderson's arguments are
insufficient. Therefore, summary judgment must be entered in
KCI's favor on Count II, action on account, in the amount
of $443, 957.85.
Count IV: ...