Phillips v. Ford Motor Company ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60312
Summary Calendar
CHARLES J. PHILLIPS
Plaintiff-Appellant,
versus
FORD MOTOR COMPANY, ET AL
Defendants,
FORD MOTOR COMPANY and
FORD MOTOR CREDIT COMPANY
Defendants-Appellees
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 97-CV-772WS
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November 21, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Charles J. Phillips (Phillips) appeals the district court’s
grant of summary judgment in favor of the Ford Motor Company and
Ford Motor Credit Company (“Ford”). Phillips maintains that
genuine issues of material fact preclude judgment as a matter of
law. Phillips seeks damages of $600 million for breach of
contract, fraud and misrepresentation, and tortious interference
with a contract. We AFFIRM.
Phillips was a participant in Ford’s “Dealer Development
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 00-60312
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Program” (DDP). Under this program Ford initially provides all
of the capital needed to purchase a dealership, offers a line of
wholesale credit, pays the dealer a salary, benefits, and a
housing allowance, and then after an initial test period, allows
the dealer-owner to begin to invest in the dealership and
eventually take it over.
Kenneth Windham owned a dealership in Baldwyn, Mississippi
and informed Ford that he wanted to retire and to sell his
dealership. Phillips applied and was accepted to participate in
the DDP with relation to Windham’s dealership. Ford and Phillips
entered into a Letter of Understanding outlining the terms of the
agreement. Specifically it provided that Ford would wholly own
the dealership and that the agreement was terminable at will.
The parties also entered into a Hired General Manager Contract
which provided that Phillips and his partner Sanford Woods would
be employed as managers. This agreement was also expressly
terminable at will. Phillips also signed an agreement not to
compete. Pursuant to the Letter of Understanding and the Hired
General Manager contract, Phillips assumed the position as
manager of the dealership formerly owned by Kenneth Windham.
Ford initially invested $840,000 plus an additional $1.5
million in this dealership. Nevertheless, under Phillips’
management, the dealership faced operating losses, the departure
of key personnel and increased advertising expenses. Despite its
efforts to keep this dealership afloat, Ford terminated Phillips
two years after he started as general manager.
Phillips contends that the dealership was not successful
No. 00-60312
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because of a highway bypass that was built in front of the
dealership. Phillips asserts that had he known the effect the
highway was going to have on profits, he never would have
uprooted his family, left his previous dealership and signed on
with Ford. Additionally, Phillips asserts that his profits were
also hurt because Windham opened a dealership in a neighboring
county.
Phillips contends Ford committed an actionable fraud and
negligent misrepresentation by representing to him that the
dealership had been successful and would continue to be.
According to Phillips, Ford failed to take into account the
effect that the newly constructed bypass would have on profits
and to warn him of this possible effect. As the district court
noted “[n]either negligent misrepresentation nor fraudulent
representation can be predicated on a promise relating to future
actions. Misrepresentation must be related to past or presently
existing facts.” See McMullan v. Geosouthern Energy Corp., 556
So.2d 1033, 1037 (Miss. 1990); House v. Holloway, 258 So.2d 251,
253 (Miss. 1972)). Phillips has failed to raise a fact issue as
to an actionable claim of misrepresentation. Phillips cannot
maintain an action in the instant case based on Ford’s mere
opinions or based on failure to accurately predict future events.
Neither are we persuaded that Phillips raised a fact issue
with respect his allegations that Ford wrongfully failed to
disclose that Windham intended to open a dealership in the
neighboring county. There is no summary judgment evidence
suggesting that, at the time Phillips entered the Letter of
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Understanding and Hired General Manager Contract, Ford was aware
that Windham would open a dealership. Morever, before taking
over the management at the dealership, Phillips was aware of the
counties in which Windham could not compete. The county in which
Windham ultimately opened his new dealership was not one of those
prohibited in the non-compete agreement. Thus, he must “abide
the consequences of his contracts and actions.” Quinn v.
Mississippi Univ., 720 So.2d 843, 850 (Miss. 1998).
Even were we to assume Ford made misrepresentations,
Phillips failed to raise a material fact as to damages. In fact,
Phillips received a salary, benefits, housing allowance and
invested no money of his own in the venture. To sustain a claim
of misrepresentation Phillips must show that Ford induced him to
rely on their statements to his detriment. See Shogyo
International Corporation v. First Nat’l Bank of Clarksdale, 475
So.2d 425, 428 (Miss. 1985). The successful dealership Phillips
claims he left behind to join Ford filed bankruptcy months before
he started with Ford. Phillips fails to quantify his
detrimental reliance on Ford’s representations.
Phillips’ breach of contract claim based on an implied duty
of good faith is without merit. Phillips was an employee at will.
Under Mississippi jurisprudence, “at-will employment
relationships are not governed by an implied covenant of good
faith and fair dealing” Hartle v. Packard Elec., 626 So.2d 106,
110 (Miss. 1993).
Phillips’ arguments with respect to tortious interference
are wholly without merit. He failed to identify any contract
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that Ford interfered with and certainly Ford cannot interfere
with its own contract with Phillips. See Liston v. Home
Insurance Co., 659 F. Supp. 276, 280 (S.D. Miss. 1986).
For the foregoing reasons and the reasons identified in the
opinion of the district court dated March 27, 2000, the district
court's grant of summary judgment in favor of the defendants Ford
Motor Company and Ford Motor Credit is AFFIRMED in its entirety.