Brad Rhodes v. Amoco Oil Company ( 1998 )

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Brad Rhodes (Rhodes or plaintiff) brings this appeal from the district court’s final order • granting summary judgment to defendant Amoco Oil Company (Amoco or defendant). Rhodes v. Amoco Oil Co., 955 F.Supp. 1288 (D.Kan.1997). Jurisdiction- in the district court was asserted under the Petroleum Marketing Practices Act (the PMPA), 15 U.S.C. §§ 2801-2841. Our jurisdiction arises under 28 U.S.C. § 1291.

I

The facts are set out in the district court’s opinion. A brief overview will suffice to provide the background for our discussion of the issues raised on appeal. Rhodes operated a service station in Derby, Kansas, just outside Wichita, as lessee and franchisee of Amoco. In 1993, Amoco decided to sell all of its retail stations in the Wichita area. Amoco retained a certified appraiser, David Hopkins, to appraise all of its properties in the Wichita area, including that leased by plaintiff. Hopkins initially appraised the property leased by Rhodes at $180,477. Based on that appraisal, Amoco offered to sell the property to plaintiff for $180,000.

Plaintiff declined that offer and hired his own appraiser, Roger Turner, who like Hopkins was independent, experienced, and a certified appraiser. Turner appraised the property at $77,500.¹ Plaintiff then made a counteroffer of $77,000 to purchase the station. Thereafter, the parties continued to negotiate, with Amoco several times extending Rhodes’s lease so that the negotiations could continue. These dealings are described in the district court’s opinion, 955 F.Supp. at 1289-90, and need not concern us now. For our purposes, we should focus only on Amoeo’s final offer. Amoco eventually asked Hopkins to update his appraisal of the property, and Hopkins’ second appraisal concluded that the fair market value of the property was $132,000. Amoco then offered the property to Rhodes at that price on February 24, 1995. Rhodes made a final counteroffer of $90,000, which Amoco rejected.

Rhodes then commenced this action on April 28, 1995. His complaint alleges that the action arises under the PMPA, 15 U.S.C. §§ 2801-2806, and that there was a violation of the act due to lack of compliance with the requirements of 15 U.S.C. § 2802(b) as to proper notification of grounds for nonrenewal; that Amoco had not made, during the required 90-day period after notification of nonrenewal, a bona fide offer to sell, transfer or assign to plaintiff Amoco’s interest in the Leased Marketing Premises; that Amoco’s revised offer to sell for $132,000 in its February 24, 1995, offer to Mr. Rhodes was an admission, like earlier admissions, that the earlier offers were not bona fide offers and that Amoeo’s admissions establish that Amoco violated the PMPA by failing to make a bona fide offer within the 90-day period after giving notice of nonrenewal. App. 7-9. Plaintiff prayed, inter alia, for preliminary and permanent injunctive relief, declaratory relief, and damages under the PMPA provisions. Id. at 10-11.

Holding that Amoco’s February 1995 offer of $132,000 satisfied Amoco’s statutory duty to make a “bona fide” offer to sell the property to its franchisee, Rhodes, the district court granted a motion by Amoco for summary judgment. On review of summary judgments, we “examine the record to determine if any genuine issue of material fact was in dispute” and if not, whether the substantive law was correctly applied; and when applying this standard of review, “we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Applied Genetics v. First Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir.1990). Under this standard, we conclude that on this record the summary judgment must be reversed.

II

Congress has seen fit to regulate the relationships between franchisors such as Amoco and their franchisees through the PMPA. The PMPA affords protection to franchisees because “Congress found that [franchisors] had been using their power over franchisees to further their own self-interest.” Slatky v. Amoco Oil Co., 830 F.2d 476, 482 (3d Cir.1987) (en banc). In remedying the disparity in bargaining power of the parties, “Congress protected the franchisee’s interests by curbing those of the [franchisor]. Senate Report at 18, U.S.Code Cong. Ad. News 1978, at 876.” Id.

The statute creates two basic mechanisms to protect the franchisees. First, the statute proscribes termination or nonrenewal of franchises except on specified grounds. 15 U.S.C. § 2802(b)(3); see generally Slatky, 830 F.2d at 478-79. This limitation generally prohibits “the arbitrary and discriminatory termination or nonrenewal of a franchise.” Sandlin v. Texaco Refining and Marketing, Inc., 900 F.2d 1479, 1480 (10th Cir.1990). This first facet of the PMPA’s protection of the franchisee concerns whether the franchisor made the “substantive decision [for termination or nonrenewal] in good faith and the normal course of business.... ” Sandlin, 900 F.2d at 1481. This first inquiry “tests the honest commercial judgment oí the franchisor,” id., and here courts look to the franchisor’s intent by a good faith test, “a subjective test,” id. at 1481 (quoting Svela v. Union Oil Co. of California, 807 F.2d 1494, 1501 (9th Cir.1987) (emphasis added)). This part of the PMPA does not concern us here; Rhodes has never contended that the initial decision not to renew his franchise agreement was made in bad faith or for other than permissible reasons.

We are concerned on this appeal only with the second protective mechanism afforded by the PMPA—that the franchisor make “a bona fide offer to sell, transfer or assign” its interest in the premises to the franchisee. 15 U.S.C. § 2802(b)(3)(D)(iii)(I).² In connection with this second protective mechanism requiring a bona fide offer, this court has pointed out that

[t]he bona fide offer provision therefore serves as a second, and distinct, layer of protection, assuring the franchisee an opportunity to continue to earn a livelihood from the property while permitting the distributor to end the franchise relationship.

Sandlin, 900 F.2d at 1481 (quoting Slatky, 830 F.2d at 484).

As we held in Sandlin, “we use an objective test to decide whether an offer is bona fide.” Sandlin, 900 F.2d at 1481 (emphasis added). It is important to keep in mind that this appeal does not concern a subjective question of good faith concerning the commercial decision on termination or nonrenewal. In fact, “[ejvidence of the first [the subjective nonrenewal decision] is not evidence of the second [the objective bona fide offer].... ” Id. (emphasis added).

Furthermore, we are concerned only with Amoco’s final February 1995 offer to sell the property to Rhodes for $132,000. In the district court, Rhodes took the position that Amoco’s initial offer was not bona fide, apparently because Amoco later made a lower offer, and that its final offer was outside the 90-day time period established by the PMPA. Rhodes, 955 F.Supp. at 1290. The district court rejected that argument, and on this appeal Rhodes does not question that holding. Thus, we focus only on whether Amoco’s final $132,000 offer was bona fide as that term has been construed under the PMPA.

In considering Congress’ intent in using the term “bona fide” in this context, we find helpful guidance in Slatky, an opinion which was found instructive by our earlier panel in Sandlin. In particular, we take heed of the Third Circuit’s insight that the use of this term, rather than a mandate that the franchisor offer the property to the franchisee at fair market value, reflects a legislative judgment that the latter standard would be overly strict. In Slatky, the court said:

We ... are guided by Congress’s decision not actually to use the term ‘fair market value’ but instead the term bona fide, which suggests some degree of deference. That choice indicates, we believe, a recognition that “the word ‘value’ almost always involves a conjecture, a guess, a prediction, a prophecy.” Amerada Hess Corp. v. Commissioner, 517 F.2d 75, 83 (3d Cir.1975) (quoting other eases). ‘TTjhere is no universally infallible index of fair market value.” Id. There may be a range of prices with reasonable claims to being fair market value. Were we to mandate that courts determine whether the distributor’s offer actually was at fair market value, distributors could rarely rest comfortably that their offer would eventually be determined by the court to be fair market value.

Slatky, 830 F.2d at 485. The Slatky court went on to hold that district courts should determine whether the franchisor’s offer “approached fair market value.” Id.

We agree with this reasoning. Thus, we do not fault the district court here for not trying to quantify precisely the fair market value of the subject property. There are countervailing considerations as well, however, and we also find helpful this insight from Slatky: “On the other hand, a standard of scrutiny that simply focused on whether the distributor believed its offer to represent fair market value would leave the franchisee open to injury through sloppiness or mere error.” Id. (emphasis added). Thus, we hold that the franchisor is not automatically entitled to immunity from having its offer scrutinized and from that offer’s bona fides being tested against other evidence as to what “approached the fair market value.” Hence the franchisor may not avoid the raising of a genuine issue of fact concerning his offer, and may not obtain a summary judgment merely because he has based the offer in question on the results of an independent appraisal. That approach would not protect the franchisee in a case, which we would hope would be the unusual one, in which the appraisal is flawed “through sloppiness or mere error.”

We wish to emphasize, however, that we do not hold that summary judgment for the franchisor can never be proper, and that jury trial must always be had, whenever the parties each produce an appraisal and the appraisals do not arrive at identical conclusions on value. Indeed, Sandlin provides a clear example of a case in which judgment was proper for the franchisor in spite of a difference between the parties’ appraisals, because the difference between the two was relatively small and the franchisor’s offer was between the two.³ Hence it was decided, on the record facts in Sandlin, to hold as a matter of law that the offer was bona fide.

In sum, in reviewing the summary judgment granted to Amoco here, we must determine if there is a genuine issue of material fact whether Amoco’s February 1995 offer at $132,000 was bona fide, considering the circumstances objectively. Thus considering this record, we are convinced that the evidence and reasonable inferences therefrom do reveal such a factual issue concerning that offer.

In the first place, the magnitude of the difference between the Hopkins appraisal, on which the $132,000 offer was based, and the Turner appraisal cannot be ignored in reviewing this summary judgment. Mr. Turner’s appraisal, prepared at the request of plaintiff Rhodes, was for $77,500. The lowest appraisal obtained by Amoco from Mr. Hopkins was $132,000. Amoco’s lowest appraised value is thus some 70% higher than the Turner appraisal obtained by plaintiff.⁴

Viewing this “factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment,” Applied Genetics, 912 F.2d at 1241, the appraisal of Rhodes’ expert, Turner, must be considered as evidence showing an accurate estimate of fair market value. It is important to note that Amoco offered no criticism of the Turner appraisal in its motion for summary judgment and supporting papers. Instead, Amoco emphasized the process by which it made various earlier offers to Rhodes, suggesting that they prove the bona fides of its offer at issue. That evidence about earlier offers is not persuasive. Under the objective standard enunciated in Sandlin, the only issue here is whether a genuine issue of material fact was raised concerning whether Amoco’s final $132,000 offer was bona fide.

While “there may be a range of prices with reasonable claims to being fair market value,” Slatky, 830 F.2d at 485, the evidence here clearly raises factual issues on the bona fide offer question. Amoco has provided nothing other than the Hopkins appraisal which would cast doubt on the analysis and conclusion reached by Turner. Amoco has provided no evidence as to the degree of discrepancy between the two appraisals in question which could be considered “normal” or reasonable.

The discrepancy here between Hopkins’ $132,000 appraisal and Amoco’s offer based on it, and the Turner appraisal of $77,500, is in stark contrast to the facts in Sandlin. The highest estimate there was $233,535, and the lowest was $200,000, a difference of about 17%. The appraisals in Sandlin must actually be viewed as having less variation than that, however, because the lowest excluded tanks and equipment, while the highest included them. 900 F.2d at 1482 n. 2. While we did not indicate what the permissible differential was in Sandlin, it was nowhere close to the 70% variation we are faced with in the instant case.⁵ And the $216,000 offer in question in Sandlin fell well between the two estimates there.

Moreover, there is no response addressing plaintiffs other evidence. These specific points were developed by Mr. Turner in his affidavit, offered by Rhodes, each of which identifies asserted deficiencies in the 1995 Hopkins appraisal submitted by Amoco:

1. Although the primary structure of the service station was erected in 1953 and the car wash bay was added in 1975, Mr. Hopkins concluded, without explanation or documentation, that the “effective age” of the property was 15 to 18 years.

2. Hopkins did not account for the trend of declining sales at plaintiffs location over recent years, nor did he take into account the declining profit margins of retail service stations generally.

3. Hopkins did not consider the impact of two new, major competitors in the immediate vicinity of the subject property and their influence on traffic patterns.

4. In evaluating sales of comparable properties, Hopkins made adjustments to the sales prices on three properties without proper explanation or documentation.

5. In applying the cost approach, Hopkins used a replacement cost of $80 per square foot, while Turner recommended, based on his information and experience, a figure of about $58 per square foot.

6. Depreciation estimates given by Hopkins were mere opinion without supporting data.

7. Hopkins’ cost approach reflects a lack of understanding of the changing business climate.

8. In using the sales comparison approach, Hopkins used the other sales in the area by Amoco, without adjustment for the fact that all of the buyers were “under duress” because of their relationships with Amoco; none of these sales should have been considered normal, arms’ length transactions.

App. at 282-85.

Plaintiff Rhodes also submitted an affidavit from Mr. Steve Martens, who is president of a real estate services company. A checklist was attached and incorporated in Martens’ affidavit, which also identified a number of alleged deficiencies in the Hopkins appraisal. Among other things, Mr. Martens questioned why Mr. Hopkins had relied only upon the cost approach of estimating the market value. The standard procedure, he explains, is to prepare estimates using the cost approach, the income approach, and the comparable sales approach, before selecting the estimate which best represents fair market value. Mr. Martens concluded that the Hopkins appraisal was not acceptable. App. at 286-87, 293-94.⁶

In sum, considering the record evidence before us in the light favorable to Rhodes, as we must in reviewing this summary judgment, we hold that there is a genuine issue of material fact whether Amoco’s $132,000 offer in question was bona fide under the PMPA requirement. Accordingly, we reverse the summary disposition of that controlling factual issue without trial.

REVERSED and REMANDED for further proceedings consistent with this opinion.

1 . In his detailed opinion, the district judge stated that Turner’s appraisal placed a fair market value of $115,000 on the property. 955 F.Supp. at 1289. As Rhodes pointed out in a motion for reconsideration, this statement was understandable but significantly flawed. Turner’s appraisal did in fact state that amount. But the parties have agreed at all times that both Turner's and Hopkins' appraisals must be adjusted to exclude the value of car wash equipment owned by Rhodes. In this opinion we will refer in all instances to the value of any appraisal as adjusted to reflect only the value of Amoco’s property. In an unpublished order denying plaintiff's motion for reconsideration, the district judge stated that his conclusions were unaffected by this correction to his findings.

2 . This bona fide offer requirement applies where an oil company terminates or fails to renew a franchise for a permissible business purpose unrelated to the franchisee’s misconduct. Slatky, 830 F.2d at 478.

3 . In Sandlin, wc reversed a judgment for the franchisee after a jury trial, holding that there was no evidence from which the jury could have found that the franchisor’s offer was not bona fide, and remanded with instructions to enter judgment for the franchisor. 900 F.2d at 1482-83.

4 . The dissent, p. 1378, observes that "the PMPA speaks in terms of offers, not appraisals” and concludes that we should examine not the difference between the estimates of fair market value provided by the two appraisers, but the difference between the parties’ offers. The PMPA has nothing to say about offers made by a franchisee. We are examining only the offer of Amoco to determine if it is objectively bona fide. The dissent agrees that the criterion is whether the offer approaches fair market value. On this record the parties' appraisals provide substantial evidence on that question. In pursuing that inquiry on this record, however, it is unsound to take Rhodes' offer of $90,000 as binding on him as a measure of fair market value.

Fair market value is generally defined as the price at which a sale would take place "between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts." Brownstein v. Arco Petroleum Products Co., 604 F.Supp. 312, 315 n. 3 (E.D.Pa.1985) (emphasis added) (quoting Black’s Law Dictionary 537 (5th ed.1979)). The dissent implicitly assumes that the buyer here was under no compulsion to buy. It is surely wrong to make that assumption on summary judgment. The record indicates that Rhodes had operated the station at this location since 1984. Rhodes, 955 F.Supp. at 1289. If we were to draw any inference from this fact, mindful of our duty to make reasonable inferences in favor of the nonmovant on summary judgment, we would infer that Rhodes had acquired goodwill in his business and that the goodwill was tied, at least in part, to operation of the business at its existing location. The familiar definition of fair market value assumes a hypothetical buyer who is willing to buy, but not a buyer who already has a vested interest to protect and is under pressure from the franchisor's nonrenewal. No doubt that is why another circuit has observed that under the PMPA a bona fide offer "would not include the value of the franchisee's own goodwill or [the franchisor's] franchise value of the station." Ellis v. Mobil Oil, 969 F.2d 784, 788 (9th Cir.1992). Further, Congress recognized that nonrenewal of a franchise can have a "punitive" character because "[t]he reasonable expectations of the franchisee ... are destroyed." S.Rep. No. 95-731 (1978), reprinted in 1978 U.S.C.C.A.N. 873, 876. Hence the franchisee’s offer cannot be presumed to be unaffected by coercion, particularly on summary judgment.

5 . On remand the district court in Slatky received evidence to the effect that appraisers attempt to get within 5% of the anticipated actual selling price; that selling prices can vary from 25% over to 25% under offering price; that properties are often sold at 15% to 20% over the appraised price; that two appraisers- attempting to estimate fair market value should reach results within 10% to 15% of each other; and that the expected variation between appraisals could be greater when using the replacement cost approach. Slatky v. Amoco Oil Co., 626 F.Supp. 1223 (M.D.Pa.1989) (order denying motion for reconsideration of order granting injunctive relief). (This order was placed in the district court record in an appendix submitted with defendant’s memorandum in support of its motion for summary judgment, and it also is included in our record on appeal. App. at 246-47.)

6 . After having noted Sandlin and the objective nature of the scrutiny of the franchisor’s offer, the district judge proceeded to hold that plaintiff's evidence, which we have just summarized, had "little, if any, probative value, on the bona fides of Amoco’s offers” because the evidence was not communicated to Amoco until after suit had been filed. 955 F.Supp. at 1293. -Thus, the district judge apparently disregarded plaintiff's evidence submitted in opposition to the motion for summary judgment because the judge somehow felt that the evidence should have been disclosed to the defendant during the pre-litigation negotiations. We find no support for such a requirement in the principles of Sandlin. In spite of his acknowledgment of Sandlin, the judge seems to have analyzed the issue in terms of Amoco's subjective good faith. As we have noted, the proper test is an objective analysis whether the final offer of Amoco was bona fide. In this analysis, whether the plaintiff's evidence was communicated to Amoco before commencement of the lawsuit could have no bearing.