Hannah Tiller v. Jabbar Thammer Aldhalimi ( 2022 )

RENDERED: OCTOBER 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1247-MR
HANNAH TILLER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 21-CI-001926
JABBAR THAMMER ALDHALIMI
AND ORIENT AUTO SALE LLC APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, MCNEILL, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: This case involves an automobile accident in which the
Appellant seeks to recover damages against the seller of the car under a claim
implicating Kentucky Consumer Protection Act. Appellant, Hannah Tiller, appeals
from an order of the Jefferson Circuit Court granting the motion to dismiss the
complaint filed by the Appellee, Jabbar Thammer Aldhalimi. We affirm.
On April 1, 2021, Hannah Tiller filed a complaint in Jefferson Circuit
Court against Aldhalimi; she then filed an amended complaint on April 15, 2021,
against Aldhalimi and Orient Auto Sale LLC. Tiller alleged that “[o]n or about
April 15, 2020, [she] was driving a 2006 Toyota Corolla . . . southbound on South
8th Street when another vehicle disregarded a stop light causing a collision
with Ms. Tiller.” (Emphasis added.) The driver of the other vehicle was not
named as a party nor was otherwise identified in the complaint.
Tiller alleged that Aldhalimi had sold the Corolla to her on or about
March 2, 2020, and that Orient had sold it previously to Aldhalimi. Tiller further
alleged that she sustained severe injuries in the accident; that the Corolla had been
involved in a prior accident on or before July 1, 2019; and that the Corolla did not
properly protect her “because of the acts and/or omissions of the Defendants.”
For her causes of action as to Aldhalimi and Orient, Tiller asserted
that:
17. Plaintiff files this claim due to Defendants [sic]
negligent acts and/or omissions which include but are
not necessarily limited to, one or more of the
following:
a. Defendants were negligent for making
representations and/or failing to inform (failure to
warn) Plaintiff regarding the vehicle;
b. Defendants were negligent in its repair;
c. Defendants were negligent in its modifications;
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d. Defendants were negligent in its maintenance;
e. Defendants were negligent in its service;
f. Defendants failed to properly inspect the safety of
the vehicle;
g. Defendants failed to properly inspect for, repair
and/or report safety hazards;
h. Defendants failed to properly inspect the safety
systems on the vehicle; and/or
i. Plaintiff did not discover the negligent acts of
Defendants until an accident caused severe injuries
to Plaintiff.
18. Defendants were negligent in many ways, including
its inspection of the subject vehicle.
19. Defendants were negligent in failing to advise the
Plaintiff that the subject vehicle had suffered
extensive damage.
20. The injuries complained of herein resulted from the
gross negligence, malice, or unconscionable conduct
of Defendants, which entitles Plaintiff to exemplary
damages.
21. The negligence of Defendants were [sic]
undiscoverable until an accident occurred, and
Plaintiff had no objective knowledge of any
actionable conduct until after the accident.
22. The negligence was essentially undetectable,
inherently dormant, characterized by prolonged
latency, and no immediate injury manifested itself to
alert Plaintiff until after the accident.
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23. The facts at trial will further prove fraud and/or
deception on the part of Defendants.
24. Defendants engaged in an unconscionable action or
course of action that took advantage of the lack of
knowledge, ability, experience, or capacity to a
grossly unfair degree.
25. Defendants failed to ensure that the vehicle he [sic]
sold had properly functioning safety systems and/or
that it was crashworthy.
26. Plaintiff was a “consumer.”
27. The Defendants’ conduct, as described herein and
otherwise, constituted “false, misleading, or
deceptive” acts or practice. Each such act or practice
was a producing cause of economic damages and
damages for mental anguish to Plaintiff.
28. The wrongful conduct of Defendants was a producing
cause of damages to Plaintiff.
29. After materials are produced in discovery and after
Defendants and others have been deposed, additional
allegations may come to light and Plaintiff reserves
the right to amend pleadings.
On July 23, 2021, Defendant Aldhalimi filed a motion to dismiss
Tiller’s complaint. In his supporting memorandum, Aldhalimi alleged that he
purchased the Corolla from the Defendant Orient in February 2020; that the
Corolla had been in an automobile accident around July 2019; and that the
Kentucky Certificate of Title issued on January 1, 2020, to Orient listed the Corolla
as a rebuilt vehicle. Aldhalimi explained that while the Corolla was in his
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possession, the title was never transferred into his name by Orient. On or about
March 2, 2020, Aldhalimi sold the Corolla to Tiller. When the vehicle was
transferred into Tiller’s name, “this had to be done by the Defendant ORIENT
AUTO SALES because the legal right to transfer the title had not yet passed to
Defendant ALDHALIMI.” (Uppercase original.) Aldhalimi did not attach a copy
of the title or any other documents to his motion.
Aldhalimi contended that at the time of sale to him and at the time of
sale to Tiller, the Corolla was considered to be a rebuilt vehicle as defined in KRS1
186A.510(7),2 meaning that it had met the roadworthy standard in KRS
186A.510(8).3 Because the Corolla was more than ten years old, the notification
provisions of KRS 186A.530 did not apply.4
Aldhalimi argued as follows:
1
Kentucky Revised Statutes.
2
KRS 186A.510(7) defines “‘[r]ebuilt vehicle’ [as] a vehicle that has been repaired to a road
worthy condition after having been registered as a salvage vehicle pursuant to KRS 186A.520, or
a similar salvage designation from another licensing jurisdiction[.]”
3
KRS 186A.510(8) defines “‘[r]oadworthy condition’ [as] a vehicle in a safe condition to
operate on the highway and capable of transporting persons or property that complies fully with
the provisions of KRS Chapter 189 pertaining to vehicle equipment[.]”
4
KRS 186A.530(8)(b) provides that: “Nondealer disclosure shall be made in accordance with
the procedures provided for in KRS 186A.060. The Department of Vehicle Regulation shall
ensure that disclosure information appears near the beginning of the application for title and
informs the buyer that the vehicle is a rebuilt vehicle.” KRS 186A.530(10) provides that: “The
notification provisions of this section shall not apply to motor vehicles more than ten (10) model
years old.”
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The only reason there is any issue is because Plaintiff
was involved in an automobile accident that the
Defendants were in no way a part of. The accident is an
intervening issue that may not be laid at the doorstep of
either Defender [sic] herein. Clearly, the Defendants
cannot be charged with the actions of a third-party
motorist who was involved in the accident with Plaintiff
TILLER [sic]. For her to assert that the Defendants
should be held accountable for the actions of a third-party
motorist lacks merit and support from any Kentucky
caselaw or other jurisprudence.
In addition, Aldhalimi argued that he did not owe Tiller any legal duty
for crashworthiness, that this is not a products liability case, that he is not a
manufacturer or designer, and that, therefore, the elements for crashworthiness
cannot be met citing Toyota Motor Corporation v. Gregory, 136 S.W.3d 35, 41
(Ky. 2004).
In her response, Tiller asserted that her first amended complaint
established a cause of action against Aldhalimi. Tiller did not dispute that
Aldhalimi’s motion to dismiss could be considered as a motion for summary
judgment under CR5 56 were it properly supported by admissible and undisputed
evidence, but she noted that Aldhalimi had failed to submit any such evidence.
By order entered September 23, 2021, the trial court granted the
motion to dismiss as follows:
On Motion of Defendant Aldhalimi, by counsel,
and the Court being otherwise sufficiently advised, IT IS
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Kentucky Rules of Civil Procedure.
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HEREBY ORDERED that the Defendant’s Motion to
Dismiss the Complaint herein is hereby granted.
THIS IS A FINAL AND APPEALABLE
JUDGMENT AND THERE IS NO JUST CAUSE FOR
DELAY.
(Upper case original.)
On October 20, 2021, Tiller filed a notice of appeal to this Court.
Tiller’s argument on appeal is that the trial court committed reversible error in
dismissing Defendant Aldhalimi because he could not show that Plaintiff had
failed to state any claim upon which the trial court could grant relief.
CR 12.02 provides in relevant part that:
[T]he following defense[] may . . . be made by motion:
. . . (f) failure to state a claim upon which relief can be
granted . . . . If, on a motion asserting the defense that
the pleading fails to state a claim upon which relief can
be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
In Benningfield v. Pettit Environmental, Inc., 183 S.W.3d 567 (Ky.
App. 2005), this Court explained that:
A motion to dismiss should only be granted if it appears
the pleading party would not be entitled to relief under
any set of facts which could be proved in support of his
claim. When ruling on the motion, the allegations in the
pleadings should be liberally construed in a light most
favorable to the plaintiff and all allegations taken in the
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complaint to be true. In making this decision, the trial
court is not required to make any factual findings.
Therefore, the question is purely a matter of law.
Accordingly, the trial court’s decision will be reviewed
de novo.
Id. at 570 (internal quotation marks and citations omitted).
Subsection A of Tiller’s argument is that the trial court erred in
granting Aldhalimi’s motion to dismiss because it was “based solely on allegations
of ‘fact’ outside of the pleadings” which failed to meet the requirements for
consideration as a motion for summary judgment under CR 56. Tiller asserts that
there was no way for Aldhalimi to know what the title actually said, having
claimed that the title was never transferred to him, and that “[w]ithout the actual
title, or a copy thereof,” Aldhalimi’s statements about the title are inadmissible.
Tiller relies upon Spillman v. Beauchamp, 362 S.W.2d 33, 34 (Ky.
1962), which holds that:
It is true that CR 12.02 provides that if, on a motion to
dismiss on the ground that the complaint fails to state a
claim on which relief can be granted, ‘matters out-side
the pleading’ are presented to and not excluded by the
court, the motion shall be treated and disposed of as one
for summary judgment. But statements of fact in a legal
memorandum are not within the category of ‘matters
outside the pleading’ contemplated by the rule. They
lack the ceremonial quality of testimony in open court
which may be found in depositions, admissions or
affidavits.
(Citations omitted.)
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We cannot presume that the trial court improperly considered
statements in Aldhalimi’s legal memorandum about the Corolla’s title in the case
before us. A “circuit court . . . speaks only through written orders entered upon the
official record.” Kindred Nursing Centers Ltd. P’ship v. Sloan, 329 S.W.3d 347,
349 (Ky. App. 2010). The trial court’s order does not reflect that it considered any
matters relating to the Corolla’s title whatsoever. See McCarthy v. RiteScreen Co.,
Inc., No. 2011-CA-000888-MR, 2013 WL 2660783, at *4 (Ky. App. Jun. 14,
2013) (holding that where the trial court’s order does not demonstrate “reliance on
qualifying matters outside the pleadings . . . we must presume such matters were
excluded by the court and the motion to dismiss was not converted to one for
summary judgment. Under such circumstances, appellate review will be pursuant
to the standard set forth in CR 12.02(f)”).
We proceed with our review under CR 12.02(f). Contrary to Tiller’s
argument in her reply brief, Aldhalimi’s motion to dismiss was not based entirely
“upon the claimed existence” of a certificate of title listing the Corolla as a rebuilt
vehicle. More significantly, Aldhalimi also argued that the motor vehicle accident
was caused by a third party and that Tiller’s assertions that “Defendants should be
held accountable for the actions of a third-party motorist lacks merit and support
from any Kentucky caselaw or other jurisprudence.”
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In her complaint and amended complaint, Tiller alleged that “[o]n or
about April 15, 2020, Plaintiff was driving a 2006 Toyota Corolla . . . southbound
on South 8th Street when another vehicle disregarded a stop light, causing a
collision with Ms. Tiller.” (Emphasis added.) She also pleaded that “[d]uring the
accident sequence, Plaintiff sustained severe injuries.”
In subsection B of her Appellant’s Brief, Tiller argues that “Defendant
and the Trial Court completely ignored the very reason and purpose for
Defendant’s being joined into the lawsuit. Specifically . . . that Defendant was
negligent in the repair, modification, service and maintenance” of the Corolla
before he sold it to Tiller. “Therefore, it was not simply a matter of a negligent
failure to disclose potential issues related to the sale” of the Corolla.
Briner v. General Motors Corporation, 461 S.W.2d 99 (Ky. 1970),
involved an action against Universal, an automobile dealer, on a theory of
negligent repair. Briner was injured when the Chevrolet which she was driving
struck an on-coming vehicle. She testified that something had happened to the car,
that it veered to the left, and that when she tried to steer to the right, the wheel
would not turn. On appeal, Briner argued that it was error to direct a verdict for
Universal. The former Court of Appeals of Kentucky disagreed and affirmed as
follows:
Assuming that Universal failed to make a proper
inspection, to establish a case of negligence creating
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liability the causal relationship between the acts or
omissions and the accident must be shown. To forge
the link between Universal’s alleged misconduct and the
accident, it was incumbent upon plaintiff to prove by
evidence of substance that the alleged negligence was a
proximate cause of the accident.
Id. at 101 (citations omitted) (emphases added). Furthermore, the Court found no
prejudicial error in the trial court’s denial of Briner’s “motion to file an amended
complaint against Universal which injected a breach of warranty theory of liability
against it. This theory fails to bridge the gap which we hold was fatal to
plaintiff’s original claims against Universal . . . .” Id. at 103 (emphasis added).
The same gap is fatal to Tiller in the case before us. The allegations
of Tiller’s complaint and amended complaint fail to establish an essential element
of her claim; i.e., that Aldhalimi’s alleged negligence -- whether in the inspection,
repair, modification, maintenance, service, and/or disclosure of potential issues
with the Corolla -- was a proximate cause of the accident. To the contrary, the
allegations of Tiller’s complaint and amended complaint, which we take as true,
plainly state that another vehicle caused the collision by disregarding a stop light.
To the extent that Tiller appears to allege a cause of action for negligence per se
against Aldhalimi for violation of any statute, the result is the same. “Failure to
comply with the terms of a statute is negligence per se. However, in an action for
damages, the violation of the statute must be the proximate cause of the injury to
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permit recovery.” Peak v. Barlow Homes, Inc., 765 S.W.2d 577, 578 (Ky. App.
1988).
In subsection C of her argument, Tiller explains that she “has alleged
that modifications and repairs to the [Corolla] made the vehicle less safe were the
vehicle to be involved in an accident.” What Tiller alleged in her complaint and
amended complaint was that “Defendants failed to ensure that the vehicle he [sic]
sold had properly functioning safety systems and/or that it was crashworthy.”
As our Supreme Court explained in Toyota Motor Corporation, 136
S.W.3d at 41:
In a crashworthiness or enhanced injury case, the
plaintiff claims not that a defect in a motor vehicle
caused a collision, but that a defect in the vehicle caused
injuries over and above those which would have been
expected in the collision absent the defect. The claim, in
essence, is that the design of the vehicle failed to
reasonably protect the occupant in a collision. These
cases are also known as second impact cases, the first
impact being the vehicle’s collision with another object,
and the second impact being the occupant’s contact with
interior structures or components of the vehicle. . . .
The elements of a prima facie crashworthiness are:
(1) an alternative safer design, practical under the
circumstances; (2) proof of what injuries, if any, would
have resulted had the alternative, safer design been used;
and (3) some method of establishing the extent of
enhanced injuries attributable to the defective design.
We agree with Aldhalimi that none of these elements was or could have been met
in the case before us.
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Accordingly, we affirm the trial court’s September 23, 2021, order
dismissing.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
James Ryan Turner Nader George Shunnarah
Florence, Kentucky Louisville, Kentucky
Lorin M. Subar
Dallas, Texas
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