Brent Yoakum v. Tt of B. Louisville, Inc.

RENDERED: OCTOBER 21, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0266-MR
BRENT YOAKUM APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 20-CI-002230
TT OF B. LOUISVILLE, INC. APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Brent Yoakum (“Appellant”) appeals from an order of
the Jefferson Circuit Court granting the motion of TT of B. Louisville, Inc.
(“Appellee”) for summary judgment.1 Appellant argues that genuine issues of
material fact preclude summary judgment; that Appellee engaged in false, unfair,
and deceptive practices; that the parties have not completed a vehicle purchase
1
The pleadings show Appellee’s name as TT of B. Louisville, Inc., d/b/a BMW of Louisville.
agreement; and, that Appellee unjustly converted funds from the sale of his
vehicle. He seeks an order reversing the summary judgment and remanding the
matter for further proceedings. Finding no error, we affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
In 2007, Appellant’s father, Ralph Yoakum (“Mr. Yoakum”),
purchased a BMW automobile which was titled in Mr. Yoakum’s name. In 2016,
Mr. Yoakum transferred the title to Appellant.
Appellee is a BMW automobile dealership located in Louisville,
Kentucky. In May 2019, Appellant brought the 2007 BMW to Appellee for
several repairs, including an engine oil leak. Rather than pay the estimated repair
cost of over $5,000, Appellant and his father decided to trade in the 2007 BMW
and purchase a 2016 BMW. Mr. Yoakum was involved in the transaction as co-
purchaser because Appellant could not secure a loan without him.
On May 21, 2019, Appellant, Mr. Yoakum, and Appellee completed
the necessary paperwork to trade in the 2007 BMW and purchase the 2016 BMW.
Mr. Yoakum was designated as “buyer” and Appellant was shown as “co-buyer” of
the 2016 BMW. The title application indicated that Mr. Yoakum “OR” Appellant
would be title holders of the 2016 BMW. The purchase was contingent on
Appellant and Mr. Yoakum securing a loan, which was accomplished on their
behalf by Appellee’s finance department. After Appellant received a $2,000 credit
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for the trade in of the 2007 BMW, Mr. Yoakum wrote a check to Appellee in the
amount of $14,000.18, with the balance financed.
The following day, Appellant was arrested on an outstanding bench
warrant. He was also charged with felony possession of a controlled substance and
drug paraphernalia charges.
Mr. Yoakum would later state by way of affidavit that he decided to
return the 2016 BMW to Appellee because he was upset about Appellant’s arrest.
On May 28, 2019, Mr. Yoakum contacted Appellee and requested returning the
vehicle and getting his money back. Appellee informed Mr. Yoakum that the
purchase could not be undone. Mr. Yoakum then decided to trade in the 2016
BMW he and Appellant had purchased one week earlier, and purchase in its place
a 2019 BMW. The 2019 BMW was titled solely in Mr. Yoakum’s name, and was
purchased for himself rather than Appellant. Since title to the 2016 BMW was in
the name of Mr. Yoakum “OR” Appellant, Mr. Yoakum was able to trade in the
2016 BMW without Appellant’s consent or participation.
On April 1, 2020, Appellant filed the instant action against Appellee
in Jefferson Circuit Court. Appellant’s complaint alleged violation of the
Kentucky Consumer Protection Act;2 breach of an implied covenant of good faith
and fair dealing; unjust enrichment; and conversion. Appellant’s claims centered
2
Kentucky Revised Statutes (“KRS”) Chapter 367.
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on his contention that Appellee engaged in fraud by forging his signature, altering
title application documents, and falsely notarizing documents which improperly
allowed Mr. Yoakum to trade in the 2016 BMW. Appellant asserted that Appellee
forged the title application documents to include the “OR” language. He claimed
that the original documents showed, or should have showed, the purchasers to be
Appellant “AND” Mr. Yoakum. The import of this claim is that the alleged
forgery and fraud engaged in by Appellee allowed Mr. Yoakum to improperly
trade in the 2016 BMW without Appellant’s consent or authorization.
The matter proceeded in Jefferson Circuit Court, where affidavits and
deposition testimony were adduced from several witnesses, including Appellee’s
finance manager, Aldina Pekmezovic (“Ms. Pekmezovic”). Ms. Pekmezovic
stated in her deposition that she observed Appellant and Mr. Yoakum complete and
sign the various loan documents. Mr. Yoakum stated in his affidavit that his
signatures and those of Appellant were valid. Appellant said that he signed several
documents but could not recall specific details about their contents.
On July 15, 2021, Appellee filed a motion for summary judgment. In
support of the motion, Appellee argued that Appellant could produce no proof in
support of the claims set out in the complaint. On February 15, 2022, the Jefferson
Circuit Court entered an order granting the motion, and this appeal followed.
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STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.“Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellant, through counsel, argues that the Jefferson Circuit Court
committed reversible error in granting Appellee’s motion for summary judgment.
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He directs our attention to what he claims are several genuine issues of material
fact which preclude summary judgment. He characterizes as a factual dispute the
question of whether Appellee had the authority to check the “OR” box on the title
application rather than the “AND” box which would have established joint title to
the 2016 BMW. Appellant asserts that he gave Appellee no authority to check the
“OR” box on the application. Appellant also directs our attention to the fact that
Appellee has claimed that Mr. Yoakum executed a $14,000.00 check as a down
payment on the 2016 BMW, when the check was actually in the amount of
$14,000.18. Appellant also points to other unresolved issues which he argues
preclude summary judgment. Those issues include: the date that Ally Bank
approved the loan on the 2016 BMW; Appellee’s authority to sign Mr. Yoakum’s
name on an application for a duplicate title for the 2007 BMW; and whether
Appellee’s conduct justifies an award of punitive damages. In sum, Appellant
seeks an opinion and order reversing the order of summary judgment and
remanding the matter for further proceedings. In response, Appellee argues that
the record is void of any evidence in support of Appellant’s claims, that no genuine
issues of material fact are found in the record, and that the order on appeal should
be affirmed.
Appellant’s claims center on the application of the Kentucky
Consumer Protection Act, KRS 367.220(1), which states:
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Any person who purchases or leases goods or services
primarily for personal, family or household purposes and
thereby suffers any ascertainable loss of money or
property, real or personal, as a result of the use or
employment by another person of a method, act or
practice declared unlawful by KRS 367.170, may bring
an action . . . to recover actual damages. The court may,
in its discretion, award actual damages and may provide
such equitable relief as it deems necessary or proper.
Nothing in this subsection shall be construed to limit a
person’s right to seek punitive damages where
appropriate.
Unlawful acts are defined in the Act as “[u]nfair, false, misleading, or deceptive
acts or practices in the conduct of any trade or commerce[.]” KRS 367.170(1).
The term “unfair” means “unconscionable.” KRS 367.170(2).
The dispositive question for our consideration is whether the Jefferson
Circuit Court correctly found that there are no genuine issues of material fact, and
that Appellee is entitled to a judgment as a matter of law. Scifres, 916 S.W.2d at
781. We must answer this question in the affirmative. Appellant has not raised
any genuine issues of material fact in support of his claim that Appellee engaged in
unfair, false, misleading, or deceptive acts per KRS 367.220(1). Appellant
acknowledged that he has no memory of any specific discussions or
representations made on the issue of joint ownership of the 2016 BMW, and Mr.
Yoakum and Ms. Pekmezovic each testified as to the authenticity of the signatures
and the proper execution of the purchase agreement and title application. Mr.
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Yoakum recognized his son’s signatures on the relevant documents, and stated that
he observed Appellant sign every document.
Nothing in the record supports Appellant’s claim that the applicable
documents, powers of attorney, and duplicate title applications evince unfair, false,
misleading, or deceptive acts committed by Appellee. No evidence exists that
Appellee altered any documents, nor that it checked the “OR” box on the title
application contrary to Appellant’s wishes. Mr. Yoakum stated in his affidavit that
he wanted the “OR” box checked due to Appellant’s legal issues. He also stated
that it was Appellant’s intention that the “OR” box was checked.
Appellant asserts that Appellee fabricated power of attorney
instruments as part of its fraudulent scheme, forged a title transfer, falsified a title
application, engaged in a pattern and practice of falsely notarizing signatures, and
made material misrepresentations to both Ally Bank and Mr. Yoakum to
improperly induce their participation in the loan and the second sales transaction.
Nothing in the documentary or testimonial evidence supports these claims.
Further, there is no basis for concluding that the parties failed to consummate the
sale of the 2016 BMW as argued by Appellant. There is also no evidence that
Appellee improperly retained and converted the 2007 BMW nor wrongfully
absconded with Appellant’s personal items or proceeds of the sale. Even when
viewing the record in a light most favorable to Appellant, and resolving all doubts
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in his favor, we find no circumstances under which Appellant could produce
evidence at trial warranting a judgment in his favor. Steelvest, Inc., 807 S.W.2d at
480.
CONCLUSION
Having closely examined the record and the law, and after careful
review, we conclude that the Jefferson Circuit Court correctly found that there are
no genuine issues as to any material fact and that Appellee is entitled to a judgment
as a matter of law. Scifres, supra. Accordingly, we find no error and affirm the
order of the Jefferson Circuit Court granting Appellee’s motion for summary
judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Zachary L. Taylor Liam E. Felsen
Louisville, Kentucky Jason Renzelmann
Louisville, Kentucky
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