cv 2 0 '1 5 - 0 â¢j 0 4 3 3
COPY
Gary A. Gotto, No. 007401 Alison E. Chase, No. 028987 KELLER ROHRBACK L.L.P. 3101 North Central Avenue, Suite 1400 Phoerux,Juizona 85012-2643 602-248-0088 [email protected] [email protected] Attorneys for Theodore Schuman
SEP :,3 2015 MICHAEL K. JEANES, CLERK B. OLSON DEPUTY CLERK
IN SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA
Theodore T. Schuman,
cv
Plaintiff,
2 0 '1 5 -_0 •j 0 4 3 3 No. _______________
vs.
Complaint Butch Bockmier and Jane Doe Bockmier, husband and wife; Park Place Motors, Ltd., a Washington corporation, Defendants.
For his Complaint against Defendants, Butch Bockmier, Jane Doe Bockmier, and Park Place Motors, Ltd., Plaintiff Theodore T. Schuman ("Plaintiff') alleges as follows:
I. INTRODUCTION 1.
The crux of this action is simple: Defendants Butch Bockmier ("Bockmier")
and Park Place Motors, Ltd. ("Park Place") (collectively, "Defendants") sold Plaintiff a car that was not what they claimed it was. The statements that Defendants made about the car were not puffery. Rather, Defendants made specific representations about the type of engine in the car (among other things), and that engine simply wasn't there.
On the basis of Defendants'
misrepresentations, Plaintiff purchased the car at issue - a 1967 Ford Mustang Custom Fastback -at the 2015 Barrett-Jackson Scottsdale auto auction, and for a very substantial sum of money.
2.
After discovering that the car didn't have the engine that Defendants claimed
it had, Plaintiff sought to resolve this straightforward case of misrepresentation outside of court. Defendants, however, refused to make Plaintiff whole even though Defendants have never
denied what they did. Even worse, Defendants knew - or certainly should have known - that they were misrepresenting the car they sold to Plaintiff. Defendant Park Place claims to be "The West Coast's premier luxury, collector, and exotic car dealership." Defendant Park Place boasts that it has "[o]ver two decades of experience and a sterling reputation," and crows on its website about its "over 22 years in the special interest automobile business." Defendant Bockmier is the co-founder and Chief Operating Officer of Park Place. He likewise boasts of his knowledge of "collector and special interest vehicles" and extensive participation in collector car auctions, including the Barrett-Jackson auctions. 3.
Despite their claims of extensive knowledge and experience in the auto
industry, and specifically the collector car industry, Defendants misrepresented the vehicle at issue here in critical respects.
And, when called to account for these misrepresentations,
Defendants responded with dissembling excuses. This sort of behavior can't be tolerated and no seller can be allowed to treat consumers in this way.
H. PARTIES 4.
Plaintiff Theodore T. Schuman, a married man, is an Arizona resident residing
in Scottsdale, Arizona. 5.
Defendant Park Place is an auto dealership located in Bellevue, Washington,
with its principal place of business located at 13710 NE 20th Street, Bellevue, Washington 98005.
Upon information and belief, Park Place was founded in 1987 and is a Washington
corporation.
2
6.
Defendant Bockmier is, upon information and belief, a Washington resident
and the co-founder of Park Place. Park Place's website states, among other things, that: "Butch co-founded Park Place LTD in 1987, and what started as a small wholesale dealer, Butch has helped make into one of the premier full service special interest dealerships on the West Coast." Upon information and belief, Jane Doe Bockmier is the spouse of Bockmier.
All acts of
Bockmier complained of herein were performed for the benefit of the marital community, and Jane Doe Bockmier is named herein for purposes of binding the marital community.
7.
Non-party Barrett-Jackson is an auction company operating in Scottsdale,
Arizona, at 7400 East Monte Cristo Avenue. Barrett-Jackson is well-known for its collector car auctions, and bills itself as "The World's Greatest Collector Car Auctions." III. JURISDICTION AND VENUE
8.
This is an action for monetary and equitable relief under Arizona state law.
This Court has subject matter jurisdiction over this action pursuant to Ariz. Const. Art. 6 § 14 and A.R.S. §§ 12-123, 12-1801, and 12-1831. 9.
The Defendants in this action have caused acts to occur within the State,
traveled to Scottsdale, Arizona to conduct business in this state, and completed acts underlying this lawsuit within this state. By virtue of their conduct, they have submitted to the jurisdiction of Arizona, and this Court has personal jurisdiction over them pursuant to Ariz. R. Civ. P. 4.2(a). 10.
addition, Defendants have consented to personal jurisdiction in this court.
Pursuant to the terms of Barrett-Jackson's standard bidding agreements, parties to sales completed at the auction at issue contractually consented to submit to the jurisdiction of this court. 11.
Venue is properly laid in Maricopa County pursuant to A.R.S. §§ 12-401(1)
3
and 401(5).
IV. FACTUAL ALLEGATIONS 12.
As noted above, Barrett-Jackson runs series of well-known collector car
auctions. This action concerns a 1967 Ford Mustang Custom Fastback (the "Mustang") purchased by Plaintiff at the 2015 Scottsdale Barrett-Jackson auction occurring in January (the "Auction"). 13.
Defendants consigned the Mustang to the Auction. Defendants authored and
were responsible for the content of the representations made to the Plaintiff (and other potential purchasers) regarding the Mustang. 14.
Defendants described the car at issue, Lot 820 (VIN 7R02Sl24751), as
follows: This '67 is the product of a professional, no-expense-spared rotisserie restoration that was completed less than 850 miles ago. Under the hood is a highperformance 427 side oiler, featuring a massive Holley HP carburetor, powdercoated Dove aluminum heads, Eagle forged crank and H-beam connecting rods, Comp Cams roller cam, Jesel roller rocker arms, polished aluminum valve covers and a Griffin aluminum radiator. A custom exhaust system with ceramic coated Hokker Super Comp headers, stainless X-pipe and MagnaFlow mufflers provide a ground-shaking soundtrack. The engine is backed by a Tremec TKO 5-speed with a Ram II clutch assembly, billet steel flywheel and a custom driveshaft driving a 4.11 Detroit Locker rear end. To handle all the extra power, the suspension has been channeled 2" up front and 1" in the rear and upgraded for the extra performance. 13" Wilwood brakes at all four comers provide ample stopping power behind 18" front and 20" rear SSR wheels with BFGoodrich GForce T/A tires. 15.
This description was authored by Defendants for the purpose of selling the
16.
Plaintiff submitted Barrett Jackson's standard-form "Bidder Registration
Mustang.
Packet" and submitted that packet, along with a fee, to participate as a bidder in the 2015 Scottsdale auction. Plaintiff's bidder number was 2040. 4
17.
Plaintiff bid upon the Mustang at the Auction and was the winning bidder,
bidding $102,000.00. A true and correct copy of the Bill of Sale- Invoice is attached hereto as Exhibit A. That BiB of Sale - Invoice reflects as follows: a.
In addition to the purchase price of$102,000.00, Plaintiffwas also
required to pay a 10.00% premium of $10,200.00, 6.30% sales tax of $7,068.60, and 1.65% city tax of$1,851.30, for a total of$121,119.90. b.
The "seller" of the vehicle is identified as Butch Bockmier, Park
Place Motors Ltd, 13710 NE 20th St., Bellevue WA 98005-2028. 18.
The Mustang was not, however, as Defendants had represented it to be. Soon
after completion of the sale, the Mustang began to exhibit serious mechanical difficulties. 19.
In the course of having the Mustang - for which Plaintiff had recently paid in
excess of $100,000 - repaired, Plaintiff began to discover Defendants' misrepresentations. In fact, Plaintiff barely drove the car in the short time he owned it, due to the fact that the car was constantly breaking down and in the shop for substantial periods of time. 20.
Among other things, and most importantly, in the course of having the
Mustang repaired, Plaintiff discovered that the Mustang's engine was simply not a "side-oiler" as Defendants had claimed and advertised. 21.
The difference between a "side-oiler" and a "top-oiler" is important and
substantiaL Among other things, the "side-oiler" engine design is far more rare and expensive, and increased the racing endurance and ruggedness of the engine. The "side-oiler" engine is period-correct engine for the Mustang. The "side-oiler" engine is an iconic Ford engine, one of the most famous Ford racing engines ever developed.
This misrepresentation - that the
Mustang's engine was a "side-oiler" when in fact it was of the less-desireable "top-oiler" variety
5
- was material. 22.
Plaintiff relied on Defendants' representations in deciding to purchase the
Mustang and relied, specifically, on Defendants' representation that the Mustang's engine was a "side-oiler." And, as to Plaintiff, Defendants are indisputably the sellers of record appearing on the bills of sale and are indisputably the sellers of record in all legally-relevant respects. 23.
Plaintiff could not, and was not allowed to, investigate and/or inspect the
Mustang and/or its engine prior to bidding on and purchasing the vehicle at the Auction. The Mustang was kept behind a rope and with its hood closed. In any event, to even discover that the engine was not a "side-oiler" would have required a detailed inspection, even
if Plaintiff were
allowed access to the car, which he was not. 24.
Defendants, in contrast to Plaintiff, had both the opportunity and the
responsibility to ensure the truth of its representations regarding the Mustang, including the representation that its engine was a "side-oiler." Defendants knew, or could have known, that the Mustang's engine was not a "side-oiler." 25.
Upon information and belief, Defendants sold the car to at least two separate
purchasers and cannot credibly claim to lack familiarity with the Mustang or a lack of opportunity to inspect the vehicle and verify the truth of their representations. 26.
Defendants' failure to verify the accuracy of their representations was, in the
least, grossly negligent. In addition, upon information and belief, Defendants were in fact aware that the Mustang's engine was not a "side-oiler" and knowingly misrepresented the vehicle in seeking to find a buyer for it. 27.
Park Place's website claims that:
Since our founding in 1987, Park Place LTD has been enthusiastically involved in the collector car community. We pride ourselves on our decades-old 6
relationships with some of the world's most prestigious auction companies, to the point where David and Butch, still retain Bidder Numbers 38 and 39 at BarrettJackson.
From Scottsdale to West Palm Beach, Palm Springs to Monterey, if you are at a collector car auction, keep an eye peeled for your friends at Park Place LTD. 28.
With respect to Defendant Bockmier, Park Place's website claims:
With a passion for collector and special interest vehicles, and especially vintage Corvettes, Butch ensures we always have some of the most interesting and diverse inventories of collectable cars on the West Coast. He also spearheads Park Place's participation in many of the major collector car and highline auctions, including all ofBarrett-Jackson's events. 29.
After discovering that the Mustang was not as represented, Plaintiff sought to
resolve the issue without the need for intervention of the court. Plaintiff brought Defendants' misrepresentations to the attention of Barrett-Jackson; Barrett-Jackson personnel thereafter sought to assist to negotiate and mediate a resolution between Plaintiff and Defendants. 30.
Plaintiff provided extensive records and documentation to the Defendants and
Barrett-Jackson, including photographs, receipts, and contact information for mechanics who Plaintiff had paid to work on the car. 31.
Defendants, however, would not agree to make Plaintiff whole, and attempts
to reach a resolution failed. 32.
Upon information and belief, Defendants never even made contact with the
mechanics who had worked on the car for Plaintiff.
V. CLAIMS Count One: 33.
Negligent Misrepresentation
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
7
forth herein. 34.
Defendants negligently gathered, compiled, and communicated information in
the sale of the Mustang to Plaintiff and to induce Plaintiffs purchase of the Mustang. 35.
These statements were made with the intent that Plaintiff rely upon them.
36.
Plaintiff justifiably relied upon Defendants' misrepresentations in connection
with the purchase of the Mustang because, inter alia, Plaintiff was not allowed or permitted to investigate and/or inspect the Mustang prior to purchasing it at auction. 37.
Plaintiff was damaged by the negligence of Defendants in an amount to be
proven at trial.
Count Two: Fraud and Fraudulent Misrepresentation 38.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 39.
To prevail on a fraud claim under Arizona law, a plaintiff must establish (1) a
representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) the speaker's intent that the information should be acted upon by the hearer and in a manner reasonably contemplated, (6) the hearer's ignorance of the information's falsity, (7) the hearer's reliance on its truth, (8) the hearer's right to rely thereon, and (9) the hearer's consequent and proximate injury. See Green v. Lisa Frank, Inc., 221 Ariz. 138, 156, 211 P .3d 16, 34 (Ariz. Ct. App. 2009). 40.
Defendants made material misrepresentations of fact in connection with the
sale of the Mustang described herein. Among other things, Defendants represented that the Mustang had a side-oiler engine, which it did not. 41.
Defendants' misrepresentation with respect to the Mustang's engine were
8
material: side-oiler engines are more rare, expensive, and desirable than top-oiler engines. 42.
Upon information and belief, Defendants were aware that the information was
false and/or ignorant of its truth. Among other things, Defendants hold themselves out as having extensive experience in the collective and specialty car business, over twenty years, and as experts in the field who would presumably know that their representations were false. 43.
These misrepresentations were made with the intent to induce the reliance of
potential purchasers, including Plaintiff. 44.
Plaintiff justifiably relied on Defendants' representations regarding the
Mustang and Plaintiff had a right to rely on the representation.
45.
Plaintiff was damaged by Defendants' deceit in an amount to be proven at
trial.
Count Three: Violation of the Arizona Consumer Fraud Act 46.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 47.
The Arizona Consumer Fraud Act ("Acf') prohibits a variety of deceptive and
fraudulent practices in connection with the sale or advertisement of merchandise. The Act specifically provides: The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice. A.R.S. § 44-1522(A).
48.
The elements for establishing a private cause of action for damages under the
Act are: ( 1) a deception, deceptive act, false pretense, fraud, false promise, misrepresentation or
9
concealment, (2) of a material fact, (3) made in connection to the sale or advertisement of merchandise, (4) upon which a consumer relies, and (5) is consequently and proximately injured.
See Correa v. Pecos Valley Dev. Corp., 126 Ariz. 601, 605, 617 P.2d 767, 771 (Ariz. Ct. App. 1980). 49.
Defendants made material, fraudulent, and deceptive representations to
Plaintiff regarding the Mustang. Defendants represented to Plaintiff that the Mustang had a sideoiler engine. In reliance on this representation, Plaintiff purchased the Mustang and was injured by the purchase because he paid more than it was worth. Count Four: Breach of Contract 50.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 51.
Under Arizona law, a breach of contract claim contains three elements: (1) the
existence of a contract, (2) its breach, and (3) resulting damages. See Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, 83 P .3d 1103, 1111 (Ariz. Ct. App. 2004). 52.
Defendants had a contract with Plaintiff to sell the car described in its
advertising materials. described.
Defendants breached this contract by failing to deliver the vehicle
Plaintiff incurred substantial damages including by overpaying for the vehicle
delivered. Count Five: Promissory Estoppel 53.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 54.
A cause of action for promissory estoppel under Arizona law requires the
plaintiff to prove (1) a promise, (2) which the promisor reasonably foresee would cause the promisee to rely, (3) upon which the promisee actually relies to his or her detriment. Contempo
10
Constr. Co. v. Mountain States Tel. & Tel. Co., 153 Ariz. 279, 282, 736 P.2d 13, 16 (Ariz. Ct. App. 1987). A promissory estoppel claim is not the same as a contract claim. Promissory estoppel provides an equitable remedy and is not a theory of contract liability. Double AA
Builders, Ltd. v. Grand State Constr., L.L.C., 210 Ariz. 503, 511, 114 P.3d 835, 843 (Ariz. Ct. App. 2005). 55.
Defendants made material, fraudulent and deceptive representations to
Plaintiff regarding the Mustang, as described above. VI. PRAYER In view of the foregoing, Plaintiff prays for judgment against Defendants as follows: A. Rescission; B. Compensatory damages in an amount as shall be established at trial; C. Punitive damages; D. Attorney fees and expenses; E. Taxable costs; G. Interest on the sum of these amounts from the date of entry of judgment until paid in full; H. Declaratory relief; and,
I. Any other relief the Court deems just. VII. JURY TRIAL DEMAND Plaintiffs hereby demand a trial by jury on all issues so triable.
11
DATED September 3, 2015.
KELLU:.:CKL.L.P. By:
Gary A. Gotto
7
~-
Alison E. Chase 3101 North Central Avenue, Suite 1400 Phoenix, Arizona 85012 Attorneys for Theodore T. Schuman
12
Exhibit A
FOR OFFICE USE ONLY Release of Crov111: Buy~r :,~c~nO'..vledges l:lndrepresent:s to Sl:lrr'ett•..iacl(spn At:u;:tion Cq ~!.C t~t the Lot ~s«rib.e(!
Gary A. Gotto, No. 007401 Alison E. Chase, No. 028987 KELLER ROHRBACK L.L.P. 3101 North Central Avenue, Suite 1400 Phoerux,Juizona 85012-2643 602-248-0088 [email protected] [email protected] Attorneys for Theodore Schuman
SEP :,3 2015 MICHAEL K. JEANES, CLERK B. OLSON DEPUTY CLERK
IN SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA
Theodore T. Schuman,
cv
Plaintiff,
2 0 '1 5 -_0 •j 0 4 3 3 No. _______________
vs.
Complaint Butch Bockmier and Jane Doe Bockmier, husband and wife; Park Place Motors, Ltd., a Washington corporation, Defendants.
For his Complaint against Defendants, Butch Bockmier, Jane Doe Bockmier, and Park Place Motors, Ltd., Plaintiff Theodore T. Schuman ("Plaintiff') alleges as follows:
I. INTRODUCTION 1.
The crux of this action is simple: Defendants Butch Bockmier ("Bockmier")
and Park Place Motors, Ltd. ("Park Place") (collectively, "Defendants") sold Plaintiff a car that was not what they claimed it was. The statements that Defendants made about the car were not puffery. Rather, Defendants made specific representations about the type of engine in the car (among other things), and that engine simply wasn't there.
On the basis of Defendants'
misrepresentations, Plaintiff purchased the car at issue - a 1967 Ford Mustang Custom Fastback -at the 2015 Barrett-Jackson Scottsdale auto auction, and for a very substantial sum of money.
2.
After discovering that the car didn't have the engine that Defendants claimed
it had, Plaintiff sought to resolve this straightforward case of misrepresentation outside of court. Defendants, however, refused to make Plaintiff whole even though Defendants have never
denied what they did. Even worse, Defendants knew - or certainly should have known - that they were misrepresenting the car they sold to Plaintiff. Defendant Park Place claims to be "The West Coast's premier luxury, collector, and exotic car dealership." Defendant Park Place boasts that it has "[o]ver two decades of experience and a sterling reputation," and crows on its website about its "over 22 years in the special interest automobile business." Defendant Bockmier is the co-founder and Chief Operating Officer of Park Place. He likewise boasts of his knowledge of "collector and special interest vehicles" and extensive participation in collector car auctions, including the Barrett-Jackson auctions. 3.
Despite their claims of extensive knowledge and experience in the auto
industry, and specifically the collector car industry, Defendants misrepresented the vehicle at issue here in critical respects.
And, when called to account for these misrepresentations,
Defendants responded with dissembling excuses. This sort of behavior can't be tolerated and no seller can be allowed to treat consumers in this way.
H. PARTIES 4.
Plaintiff Theodore T. Schuman, a married man, is an Arizona resident residing
in Scottsdale, Arizona. 5.
Defendant Park Place is an auto dealership located in Bellevue, Washington,
with its principal place of business located at 13710 NE 20th Street, Bellevue, Washington 98005.
Upon information and belief, Park Place was founded in 1987 and is a Washington
corporation.
2
6.
Defendant Bockmier is, upon information and belief, a Washington resident
and the co-founder of Park Place. Park Place's website states, among other things, that: "Butch co-founded Park Place LTD in 1987, and what started as a small wholesale dealer, Butch has helped make into one of the premier full service special interest dealerships on the West Coast." Upon information and belief, Jane Doe Bockmier is the spouse of Bockmier.
All acts of
Bockmier complained of herein were performed for the benefit of the marital community, and Jane Doe Bockmier is named herein for purposes of binding the marital community.
7.
Non-party Barrett-Jackson is an auction company operating in Scottsdale,
Arizona, at 7400 East Monte Cristo Avenue. Barrett-Jackson is well-known for its collector car auctions, and bills itself as "The World's Greatest Collector Car Auctions." III. JURISDICTION AND VENUE
8.
This is an action for monetary and equitable relief under Arizona state law.
This Court has subject matter jurisdiction over this action pursuant to Ariz. Const. Art. 6 § 14 and A.R.S. §§ 12-123, 12-1801, and 12-1831. 9.
The Defendants in this action have caused acts to occur within the State,
traveled to Scottsdale, Arizona to conduct business in this state, and completed acts underlying this lawsuit within this state. By virtue of their conduct, they have submitted to the jurisdiction of Arizona, and this Court has personal jurisdiction over them pursuant to Ariz. R. Civ. P. 4.2(a). 10.
addition, Defendants have consented to personal jurisdiction in this court.
Pursuant to the terms of Barrett-Jackson's standard bidding agreements, parties to sales completed at the auction at issue contractually consented to submit to the jurisdiction of this court. 11.
Venue is properly laid in Maricopa County pursuant to A.R.S. §§ 12-401(1)
3
and 401(5).
IV. FACTUAL ALLEGATIONS 12.
As noted above, Barrett-Jackson runs series of well-known collector car
auctions. This action concerns a 1967 Ford Mustang Custom Fastback (the "Mustang") purchased by Plaintiff at the 2015 Scottsdale Barrett-Jackson auction occurring in January (the "Auction"). 13.
Defendants consigned the Mustang to the Auction. Defendants authored and
were responsible for the content of the representations made to the Plaintiff (and other potential purchasers) regarding the Mustang. 14.
Defendants described the car at issue, Lot 820 (VIN 7R02Sl24751), as
follows: This '67 is the product of a professional, no-expense-spared rotisserie restoration that was completed less than 850 miles ago. Under the hood is a highperformance 427 side oiler, featuring a massive Holley HP carburetor, powdercoated Dove aluminum heads, Eagle forged crank and H-beam connecting rods, Comp Cams roller cam, Jesel roller rocker arms, polished aluminum valve covers and a Griffin aluminum radiator. A custom exhaust system with ceramic coated Hokker Super Comp headers, stainless X-pipe and MagnaFlow mufflers provide a ground-shaking soundtrack. The engine is backed by a Tremec TKO 5-speed with a Ram II clutch assembly, billet steel flywheel and a custom driveshaft driving a 4.11 Detroit Locker rear end. To handle all the extra power, the suspension has been channeled 2" up front and 1" in the rear and upgraded for the extra performance. 13" Wilwood brakes at all four comers provide ample stopping power behind 18" front and 20" rear SSR wheels with BFGoodrich GForce T/A tires. 15.
This description was authored by Defendants for the purpose of selling the
16.
Plaintiff submitted Barrett Jackson's standard-form "Bidder Registration
Mustang.
Packet" and submitted that packet, along with a fee, to participate as a bidder in the 2015 Scottsdale auction. Plaintiff's bidder number was 2040. 4
17.
Plaintiff bid upon the Mustang at the Auction and was the winning bidder,
bidding $102,000.00. A true and correct copy of the Bill of Sale- Invoice is attached hereto as Exhibit A. That BiB of Sale - Invoice reflects as follows: a.
In addition to the purchase price of$102,000.00, Plaintiffwas also
required to pay a 10.00% premium of $10,200.00, 6.30% sales tax of $7,068.60, and 1.65% city tax of$1,851.30, for a total of$121,119.90. b.
The "seller" of the vehicle is identified as Butch Bockmier, Park
Place Motors Ltd, 13710 NE 20th St., Bellevue WA 98005-2028. 18.
The Mustang was not, however, as Defendants had represented it to be. Soon
after completion of the sale, the Mustang began to exhibit serious mechanical difficulties. 19.
In the course of having the Mustang - for which Plaintiff had recently paid in
excess of $100,000 - repaired, Plaintiff began to discover Defendants' misrepresentations. In fact, Plaintiff barely drove the car in the short time he owned it, due to the fact that the car was constantly breaking down and in the shop for substantial periods of time. 20.
Among other things, and most importantly, in the course of having the
Mustang repaired, Plaintiff discovered that the Mustang's engine was simply not a "side-oiler" as Defendants had claimed and advertised. 21.
The difference between a "side-oiler" and a "top-oiler" is important and
substantiaL Among other things, the "side-oiler" engine design is far more rare and expensive, and increased the racing endurance and ruggedness of the engine. The "side-oiler" engine is period-correct engine for the Mustang. The "side-oiler" engine is an iconic Ford engine, one of the most famous Ford racing engines ever developed.
This misrepresentation - that the
Mustang's engine was a "side-oiler" when in fact it was of the less-desireable "top-oiler" variety
5
- was material. 22.
Plaintiff relied on Defendants' representations in deciding to purchase the
Mustang and relied, specifically, on Defendants' representation that the Mustang's engine was a "side-oiler." And, as to Plaintiff, Defendants are indisputably the sellers of record appearing on the bills of sale and are indisputably the sellers of record in all legally-relevant respects. 23.
Plaintiff could not, and was not allowed to, investigate and/or inspect the
Mustang and/or its engine prior to bidding on and purchasing the vehicle at the Auction. The Mustang was kept behind a rope and with its hood closed. In any event, to even discover that the engine was not a "side-oiler" would have required a detailed inspection, even
if Plaintiff were
allowed access to the car, which he was not. 24.
Defendants, in contrast to Plaintiff, had both the opportunity and the
responsibility to ensure the truth of its representations regarding the Mustang, including the representation that its engine was a "side-oiler." Defendants knew, or could have known, that the Mustang's engine was not a "side-oiler." 25.
Upon information and belief, Defendants sold the car to at least two separate
purchasers and cannot credibly claim to lack familiarity with the Mustang or a lack of opportunity to inspect the vehicle and verify the truth of their representations. 26.
Defendants' failure to verify the accuracy of their representations was, in the
least, grossly negligent. In addition, upon information and belief, Defendants were in fact aware that the Mustang's engine was not a "side-oiler" and knowingly misrepresented the vehicle in seeking to find a buyer for it. 27.
Park Place's website claims that:
Since our founding in 1987, Park Place LTD has been enthusiastically involved in the collector car community. We pride ourselves on our decades-old 6
relationships with some of the world's most prestigious auction companies, to the point where David and Butch, still retain Bidder Numbers 38 and 39 at BarrettJackson.
From Scottsdale to West Palm Beach, Palm Springs to Monterey, if you are at a collector car auction, keep an eye peeled for your friends at Park Place LTD. 28.
With respect to Defendant Bockmier, Park Place's website claims:
With a passion for collector and special interest vehicles, and especially vintage Corvettes, Butch ensures we always have some of the most interesting and diverse inventories of collectable cars on the West Coast. He also spearheads Park Place's participation in many of the major collector car and highline auctions, including all ofBarrett-Jackson's events. 29.
After discovering that the Mustang was not as represented, Plaintiff sought to
resolve the issue without the need for intervention of the court. Plaintiff brought Defendants' misrepresentations to the attention of Barrett-Jackson; Barrett-Jackson personnel thereafter sought to assist to negotiate and mediate a resolution between Plaintiff and Defendants. 30.
Plaintiff provided extensive records and documentation to the Defendants and
Barrett-Jackson, including photographs, receipts, and contact information for mechanics who Plaintiff had paid to work on the car. 31.
Defendants, however, would not agree to make Plaintiff whole, and attempts
to reach a resolution failed. 32.
Upon information and belief, Defendants never even made contact with the
mechanics who had worked on the car for Plaintiff.
V. CLAIMS Count One: 33.
Negligent Misrepresentation
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
7
forth herein. 34.
Defendants negligently gathered, compiled, and communicated information in
the sale of the Mustang to Plaintiff and to induce Plaintiffs purchase of the Mustang. 35.
These statements were made with the intent that Plaintiff rely upon them.
36.
Plaintiff justifiably relied upon Defendants' misrepresentations in connection
with the purchase of the Mustang because, inter alia, Plaintiff was not allowed or permitted to investigate and/or inspect the Mustang prior to purchasing it at auction. 37.
Plaintiff was damaged by the negligence of Defendants in an amount to be
proven at trial.
Count Two: Fraud and Fraudulent Misrepresentation 38.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 39.
To prevail on a fraud claim under Arizona law, a plaintiff must establish (1) a
representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) the speaker's intent that the information should be acted upon by the hearer and in a manner reasonably contemplated, (6) the hearer's ignorance of the information's falsity, (7) the hearer's reliance on its truth, (8) the hearer's right to rely thereon, and (9) the hearer's consequent and proximate injury. See Green v. Lisa Frank, Inc., 221 Ariz. 138, 156, 211 P .3d 16, 34 (Ariz. Ct. App. 2009). 40.
Defendants made material misrepresentations of fact in connection with the
sale of the Mustang described herein. Among other things, Defendants represented that the Mustang had a side-oiler engine, which it did not. 41.
Defendants' misrepresentation with respect to the Mustang's engine were
8
material: side-oiler engines are more rare, expensive, and desirable than top-oiler engines. 42.
Upon information and belief, Defendants were aware that the information was
false and/or ignorant of its truth. Among other things, Defendants hold themselves out as having extensive experience in the collective and specialty car business, over twenty years, and as experts in the field who would presumably know that their representations were false. 43.
These misrepresentations were made with the intent to induce the reliance of
potential purchasers, including Plaintiff. 44.
Plaintiff justifiably relied on Defendants' representations regarding the
Mustang and Plaintiff had a right to rely on the representation.
45.
Plaintiff was damaged by Defendants' deceit in an amount to be proven at
trial.
Count Three: Violation of the Arizona Consumer Fraud Act 46.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 47.
The Arizona Consumer Fraud Act ("Acf') prohibits a variety of deceptive and
fraudulent practices in connection with the sale or advertisement of merchandise. The Act specifically provides: The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice. A.R.S. § 44-1522(A).
48.
The elements for establishing a private cause of action for damages under the
Act are: ( 1) a deception, deceptive act, false pretense, fraud, false promise, misrepresentation or
9
concealment, (2) of a material fact, (3) made in connection to the sale or advertisement of merchandise, (4) upon which a consumer relies, and (5) is consequently and proximately injured.
See Correa v. Pecos Valley Dev. Corp., 126 Ariz. 601, 605, 617 P.2d 767, 771 (Ariz. Ct. App. 1980). 49.
Defendants made material, fraudulent, and deceptive representations to
Plaintiff regarding the Mustang. Defendants represented to Plaintiff that the Mustang had a sideoiler engine. In reliance on this representation, Plaintiff purchased the Mustang and was injured by the purchase because he paid more than it was worth. Count Four: Breach of Contract 50.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 51.
Under Arizona law, a breach of contract claim contains three elements: (1) the
existence of a contract, (2) its breach, and (3) resulting damages. See Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, 83 P .3d 1103, 1111 (Ariz. Ct. App. 2004). 52.
Defendants had a contract with Plaintiff to sell the car described in its
advertising materials. described.
Defendants breached this contract by failing to deliver the vehicle
Plaintiff incurred substantial damages including by overpaying for the vehicle
delivered. Count Five: Promissory Estoppel 53.
Plaintiff incorporates and realleges the preceding paragraphs as if fully set
forth herein. 54.
A cause of action for promissory estoppel under Arizona law requires the
plaintiff to prove (1) a promise, (2) which the promisor reasonably foresee would cause the promisee to rely, (3) upon which the promisee actually relies to his or her detriment. Contempo
10
Constr. Co. v. Mountain States Tel. & Tel. Co., 153 Ariz. 279, 282, 736 P.2d 13, 16 (Ariz. Ct. App. 1987). A promissory estoppel claim is not the same as a contract claim. Promissory estoppel provides an equitable remedy and is not a theory of contract liability. Double AA
Builders, Ltd. v. Grand State Constr., L.L.C., 210 Ariz. 503, 511, 114 P.3d 835, 843 (Ariz. Ct. App. 2005). 55.
Defendants made material, fraudulent and deceptive representations to
Plaintiff regarding the Mustang, as described above. VI. PRAYER In view of the foregoing, Plaintiff prays for judgment against Defendants as follows: A. Rescission; B. Compensatory damages in an amount as shall be established at trial; C. Punitive damages; D. Attorney fees and expenses; E. Taxable costs; G. Interest on the sum of these amounts from the date of entry of judgment until paid in full; H. Declaratory relief; and,
I. Any other relief the Court deems just. VII. JURY TRIAL DEMAND Plaintiffs hereby demand a trial by jury on all issues so triable.
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DATED September 3, 2015.
KELLU:.:CKL.L.P. By:
Gary A. Gotto
7
~-
Alison E. Chase 3101 North Central Avenue, Suite 1400 Phoenix, Arizona 85012 Attorneys for Theodore T. Schuman
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Exhibit A
FOR OFFICE USE ONLY Release of Crov111: Buy~r :,~c~nO'..vledges l:lndrepresent:s to Sl:lrr'ett•..iacl(spn At:u;:tion Cq ~!.C t~t the Lot ~s«rib.e(!
