Gordon v. Aimco, Inc. et al, No. 4:2008cv00124 - Document 128 (E.D. Va. 2011)
Court Description: OPINION and ORDER directing that the Court RESERVES ruling with respect to the availability of an attorney's fee award. Defendant's motion for summary judgment (ECF No. 105) is DENIED except with respect to the availability of an attorney&# 039;s fee award. Plaintiff's motion for summary judgment (ECF No. 68) is GRANTED in part and DENIED in part; the motion is GRANTED with respect to the defendant's liability for violation of Section 307(a) of the Servicemembers Civil Relief Act and otherwise DENIED, except with respect to the availability of an attorney's fee award. The Clerk is DIRECTED to enter judgment for the plaintiff with respect to the defendant's liability under Count IV of the complaint, which allege s a violation of Section 307(a) of the Servicemembers Civil Relief Act. A determination as to any monetary damages shall be reserved for jury trial. The parties are ORDERED to SHOW CAUSE why summary judgment should not be granted to the plaintiff wit h respect to the defendant's liability under Count III of the complaint, which asserts a common-law claim for conversion. The parties may submit written briefs with respect to this issue, not to exceed ten pages, within 7 days of date of this Order. Signed by Magistrate Judge F. Bradford Stillman and filed on 12/2/11. (mwin, )
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IN THE UNITED FiLED STATES DISTRICT COUIW FOR THE EASTERN DISTRICT OF VIRGINI DEC -2 2011 Newport News Division CLERK, US DISTRICT COURT NORFOLK. VA ANDRE GORDON, Plaintiff, Action No. V. PETE'S AUTO SERVICE OF DENBIGH, 4:08cvl24 INC., Defendant. OPINION AND ORDER This matter has been referred to the undersigned United States Magistrate Judge on consent provisions of 28 U.S.C. of Civil Procedure. § of 636(c) the parties, pursuant to the and Rule 73 of the Federal Rules Before the Court are cross-motions for summary judgment. The plaintiff, Andre Gordon, filed judgment and a brief in support on June 20, The defendant, Service"), July 22, 2011. Pete's Auto 2011. ECF No. ECF No. a Gordon motion 2011. Service of Denbigh, for ECF Nos. Inc. summary 68, 69. ("Pete's Auto filed a brief in opposition to the plaintiff's motion on 76. brief filed in a Gordon filed a reply brief on July 27, 80. Pete's Auto Service and a support brief in filed its own motion for on October opposition 11, to 2011. the summary judgment ECF Nos. defendant's 105, 106. motion on October 13, 2011. ECF No. 107. rebuttal brief on October 14, A hearing Rebecca S. Richard H. on both Colaw, Esq., Roston, Esq., Pete's 2011. motions Auto ECF No. was appeared on held Service filed a 108. on November behalf of the 2, 2011. plaintiff. appeared on behalf of the defendant. The official court reporter was Tami Tichenor. On November 4, 2011, the Court issued a Rule 56(e)(l) Order, directing the plaintiff to file a supplemental brief and supporting documents in opposition judgment. ECF No. 112. to the defendant's motion for summary The plaintiff filed his supplemental brief with supporting documents on November 21, 2011. ECF No. defendant filed a brief in response on November 22, 120. 2011. The ECF No. 123. I. In this action, Auto Service Cherokee, for the BACKGROUND Gordon seeks to recover damages from Pete's loss of his automobile, a 2002 Jeep Grand which the defendant towed and sold while the plaintiff, an enlisted member of the United States Navy, was deployed. Gordon asserts a federal claim against Pete's Auto Service for violation of Section 307(a) 50 app. U.S.C. of the Servicemembers Civil Relief Act § 537(a), In January 2007, and a state law claim for conversion. Gordon received orders Navy directing him to report to Norfolk, a Norfolk-based warship. On March 16, - 2 - ("SCRA"), from the United States Virginia, 2007, to serve aboard he and his wife signed a lease at an apartment complex in nearby Newport News, where Gordon explained that he was subject to deployment and that during his deployments his wife would return to their prior residence in Jacksonville, Florida. On the lease, Gordon identified his 2002 Jeep Grand Cherokee and provided emergency contact information for his wife. Gordon's ship was subsequently deployed in late March 2007, which time his wife returned to their home in Florida. was away complex's deployed, on deployment, parking Gordon lot. In left May his 2007, Jeep while in While he the Gordon at apartment was still a representative of the apartment complex notified Pete's Auto Service that Gordon's Jeep had a flat tire and requested that it be towed. On May 17, 2007, Pete's Auto Service towed the Jeep away and then stored it for 35 days.1 On June 22, 2007, Pete's Auto Service sold the vehicle to itself at auction in satisfaction of the $1,200 lien it had asserted for towing and storage Pete's Auto Service was the only bidder in attendance. 1 During this time period, the following towing fees. 2 Pete's Auto and storage fees accrued: a $120 towing charge, apparently authorized by city ordinance, $980 in storage charges which accrued at the rate of $28 per day, and a $100 processing charge. See PL's Ex. 33, ECF No. 120 attach. 34, at 7. The plaintiff contests the validity of the specific amounts charged, but it is undisputed that Pete's Auto asserted and then enforced these towing and storage 2 In doing so, enforcement of a $1,200 lien against the vehicle fees. Pete's Auto followed certain procedures storage for liens, as established by state law. for the See Va. Code § 43-34. The plaintiff argues that Pete's Auto did not fully comply with these state law procedural requirements, nor with the requirements of the SCRA. - 3 - Service had the vehicle re-titled in its own name and then sold the Jeep to a third party for $4,500 on June 25, 2007. Auto Service nor the apartment wife, Auto nor enforcing did its Pete's lien on On December 17, In addition apartment to 2008, Pete's The complex contacted Gordon or his Service Service, company four and from the the three apartment court order complaint related management the companies defendants 41 as were of the leaving only Pete's Auto Service defendant. On November 17, case sua sponte, 2009, the Court dismissed the remainder of the finding that the SCRA did not provide private right of action to recover damages at law. Gordon v. Pete's Auto Serv. (E.D. 2009). Va. On October signed into right of 13, 2010, to recover 2878 fees. Inc., a See generally 670 F. Supp. 2d 453 the Veterans' Benefits Act of 2010 was amending the SCRA to expressly permit a private for attorney's Auto Serv. law, of Denbigh, for Gordon appealed. action plaintiffs 2864, before named case pursuant to Rule Federal Rules of Civil Procedure, a a Gordon filed the complaint in this case. Auto subsequently dismissed as obtain the vehicle. management defendants. Neither Pete's See monetary litigation SCRA § (codified at of Denbigh, damages, 50 Inc., and costs, to allow prevailing including reasonable 802, Pub. L. U.S.C. app. § 597a); F.3d 454, 457 637 - 4 - No. 111-275, 124 Gordon v. (4th Cir. Stat. Pete's 2011). On February 14, case, 2011, the Fourth Circuit reversed and remanded this finding that the amended statute applied retroactively with respect to compensatory and punitive damages. See id^. at 461. Fourth Circuit declined to consider whether the provision applied retroactively. attorney's The fees See id. The case now approaches the eve of trial. The defendant has conceded liability with respect to the plaintiff's SCRA claim, but contests liability with respect to his state law conversion claim. The defendant further contests the amount of compensatory damages due to the plaintiff under either theory of recovery, availability and amount of any award of punitive damages, the and the availability of an attorney's fees award for violation of the SCRA. II. MOTION FOR SUMMARY JUDGMENT STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant matter of law." if it might Lobby, 477 "genuine" Fed. R. Civ. P. is 56(a). entitled to judgment only 242, if 248 the (1986). evidence Anderson v. A dispute of material "is such that a Id. a the whole judgment and in the motion, light most the Court favorable 5 must view Liberty fact reasonable could return a verdict for the non-moving party." summary a A fact is "material" only affect the outcome of the case. U.S. as is jury In deciding record to the nonmovant. as a Terry's Floor Fashions, (4th Cir. Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 1985) . The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and demonstrating the material fact. absence of Celotex Corp. v. Catrett, If the movant makes such a showing, specific facts, a genuine 477 U.S. 317, dispute of 323 (1986). the nonmovant must set forth supported by the record, demonstrating that "the evidence presents a sufficient disagreement to require submission to the jury." Anderson, 477 U.S. at 251-52. When confronted with cross-motions for summary judgment, standards upon which the judgment do not F.2d 240, 248 court change." (6th Cir. evaluates Taft Broad. 1991). Co. "[T]he motion separately on its own merits the motions v. Inc. v. 316 F.3d 516, Harshbarger, 523 122 Court must review 929 each 'to determine whether either of (4th Cir. F.3d summary United States, the parties deserves judgment as a matter of law.'" Voorhaar, for "the 58, 62 2003) n.4 Rossignol v. (quoting Philip Morris (1st Cir. 1977)). The mere fact that both sides have moved for summary judgment does not establish that requiring that no genuine exists, thus judgment be granted to one side or the other. See Worldwide Rights Ltd. Cir. 1992); F.2d 214, Am. 216 Fid. dispute P'ship v. & Cas. (4th Cir. of material Combe Inc., Co. v. 1965). fact 955 F.2d 242, London & Edinburgh Ins. 244 Co., (4th 354 Even if the basic facts are not in - 6 - dispute, that the parties may nevertheless disagree as to the inferences reasonably may judgment may be motions. be drawn from inappropriate, See Am. Fid. & Cas. A. in which case summary necessitating the denial of both Co., III. them, 354 F.2d at 216. ANALYSIS Liability Under the Servicemembers Civil Relief Act In Count IV of his complaint, Gordon asserts a federal claim for damages against the defendant, 307(a) of the SCRA, alleging a violation of Section which provides that A person holding a lien on the property or effects of a servicemember may not, during any period of military service of the servicemember and for 90 days thereafter, foreclose or enforce any lien on such property or effects without a court order granted before foreclosure or enforcement. 50 app. U.S.C. § 537 (a) (1). October authorizes 2010, monetary damages § 597a(a). in this for Section 802 (a) a any violation As noted above, case that private Section of the SCRA, right of the of SCRA. Count Gordon now moves recover app. 50 to U.S.C. the Fourth Circuit has previously held 802 (a) applies retroactively this plaintiff to assert a claim for damages. 459-61. action enacted in for summary Gordon, to 637 judgment with and at allow F.3d at respect to IV. It times, is an undisputed active duty that Gordon military is, was servicemember. It all is relevant undisputed that Pete's Auto Service enforced its lien against Gordon's vehicle - 7 - without first obtaining a court order. strict liability statute; 667 F. Fully Supp. 2d 650, cognizant liability but Def.'s Br. not of See United States v. 662-64 this, (E.D. the damages with in Opp'n 5, Section 307 is a it does not require proof of any mens rea to establish civil liability. Inc., Moreover, ECF No. Va. 76. Enters., 2009). defendant respect B.C. expressly to the Accordingly, concedes SCRA violation. the Court will grant summary judgment to the plaintiff with respect to liability under Count Section IV of 307(a) the of complaint, the SCRA, which alleges app. U.S.C. 50 determination as to monetary damages, if any, a violation § 537 (a) . of A is reserved for jury trial. B. In Count of III Liability for Conversion his complaint, Gordon claim for damages against the defendant, tort of asserts a state law alleging the common law conversion. To assert a claim for conversion, a plaintiff must prove by a preponderance of the evidence (i) the ownership or right to possession of the property at the time of the conversion and (ii) the wrongful exercise of dominion or control by defendant over the plaintiff's property, thus depriving plaintiff of Airlines (E.D. Va. S.E.2d possession. Reporting Corp. 2001) 359, 365 v. Pishvaian, 155 F. Supp. 2d (citing Universal C.I.T. Credit Corp. v. (Va. 1956)). "The conversion is purely and simply a - 8 mental state 659, Kaplan, required 664 92 for specific intent to appropriate - the property. that the appropriation necessary." 1986). Knowledge that the property belongs to another, is unauthorized by the owner, is or not United States v. Stockton, 788 F.2d 210, 216 (4th Cir. "[0]ne may be held liable in conversion even though he reasonably supposed that he had a legal right to the property in question." (1952). Morissette v. United States, 342 U.S. 246, 270 n.31 Neither party moves for summary judgment with respect to the defendant's liability for conversion, but based upon its review of the record, it appears to the Court that summary judgment as to the defendant's liability for conversion is appropriate.3 Gordon's ownership of the vehicle at the time of the alleged conversion is undisputed. It is further undisputed that, in transferring title to the vehicle to itself, and then subsequently to a third party, Pete's Auto Service exercised dominion or control over Gordon's property, thus Pete's Auto Service suggests, wrongful because it depriving however, strictly Gordon of possession. that its actions were not complied with the procedural requirements of Virginia Code § 43-34 in enforcing its storage lien against Gordon's Jeep. 3 The plaintiff's motion for summary judgment is expressly limited to Count IV, alleging violation of the SCRA. See PL's Mot for Summ. J., ECF No. 68. The defendant's motion seeks summary judgment on Count III, alleging conversion, solely on the absence of any admissible evidence to establish damages; the defendant has expressly declined to request summary judgment on the issue of liability for conversion. See Def.'s Br. in Supp. 5-7, ECF No. 106; Def.'s Rebuttal Br. 6, ECF No. 108. The Court addresses the damages issues separately below. - 9 - The plaintiff disputes whether Pete's Auto Service strictly complied with the requirements of Va. Code § 43-34, but this issue is not material to the defendant's liability for conversion. assuming that Pete's Auto Service procedures established by state law, comply with Section 307(a) complied it most fully Even with the certainly failed to of the SCRA, which required Pete's Auto Service to obtain a court order before enforcing its lien against Gordon's vehicle. That Pete's Auto Service may have mistakenly believed that it had a legal right to re-title the Jeep is of no moment. See defendant had no first Morissette, obtaining legal a 342 right court U.S. at to take order, its 270 n.31. title Because to the acquisition of the Jeep without the vehicle constitutes the wrongful exercise of dominion or control over the plaintiff's property, Accordingly, the pursuant to Rule 56(f) its inclination to respect to complaint, the depriving the plaintiff of possession. Court provides the parties with notice of the Federal Rules of Civil Procedure of grant summary defendant's judgment liability to the plaintiff with under Count III of which asserts a common-law claim for conversion. the The parties will be ordered to show cause why summary judgment should not be granted to the liability for plaintiff with conversion. - 10 - respect to the defendant's C. Both parties move Compensatory Damages for summary judgment with issue of compensatory damages. for both Counts III and IV respect to the The measure of compensatory damages is the same the value of Gordon's vehicle at the time when Pete's Auto Service transferred title to itself and then (recognizing that a third See compensatory damages and conversion claims 4 party.4 The defendant Gordon, for this 637 F.3d at plaintiff's 460 SCRA are coextensive). suggests that the measure of damages for the plaintiff's SCRA claim differs from that of his conversion claim, arguing that any damages for the SCRA violation must be determined with reference only to the defendant's failure to obtain a court order prior to enforcement of its lien. Based on this strained construction, the defendant argues that the resultant harm is too speculative to support an award of damages because even if the defendant had petitioned a court for an order allowing the sale of Gordon's vehicle, there would have been "a multitude of possible outcomes," some of which would have resulted in the very same loss. Def.'s Br. in Supp. 7-8, ECF No. 106. But by its terms, Section 307 (a) of the SCRA clearly prohibits a lienholder from "foreclos [ing] or enforcing] any lien on [the property of a servicemember] without a court order granted before foreclosure or enforcement." 50 app. U.S.C. § 537 (a) (1). It is the act of foreclosing or enforcing the lien without first obtaining a court order that triggers liability, not simply the lienholder's failure to seek a court order. Gordon's loss of the vehicle was a consequence of the defendant's wrongful enforcement of its lien, and thus it constitutes a compensable actual injury. See Standard Oil Co. of N.J. v. S. Pac. Co., 268 U.S. 146, 155 ("It is fundamental in the law of damages that the injured party is entitled to compensation for the loss sustained."). Whether the plaintiff can prove damages with the requisite specificity to justify recovery of more than nominal damages is another matter. See generally Town & Country Props., Inc. v. Riqqins, 457 S.E.2d 356, 399 (Va. 1995) ("An award of nominal damages is appropriate . . . where, from the nature of the case, some injury has been done but the proof fails to show the amount."). - 11 - In his motion for award of summary judgment, compensatory damages in articulating any factual basis the the plaintiff requests amount for this of $33,507 figure.5 an without The plaintiff having failed to cite to any materials in the record to support his claim to damages, plaintiff with damages. See In summary its the Court respect Fed. R. motion, judgment failed to adduce determine the to the Civ. the on must P. deny requested Counts any admissible quantum of judgment award of to the compensatory 56(c)(l)(A). defendant both summary argues III that and evidence damages. This IV it is entitled because upon which Gordon the has jury may argument presupposes exclusion of the plaintiff's expert witness, to Dale Fitzwater, the who is expected to testify at trial that Gordon's Jeep was worth as much as $14,300 at the time of Fitzwater 3, ECF defendant's motion, testimony was See of Order to 114. a pending, Nov. pending motion respect No. in conversion. 3, motion but 2011, limine, Fitzwater's At to that ECF nor the time of exclude motion No. any expert See Expert other filing Dale of the Fitzwater's expert denied. There form testimony of subsequently was 111. the Report at of is currently objection, trial. The no with Court further notes that the defendant has proffered the expert testimony 5 This figure appears to represent the original purchase price of the Jeep as a new vehicle when sold in 2002. But the record is clear, and the plaintiff concedes in its response to the defendant's motion for summary judgment, that Gordon purchased the Jeep as a used vehicle in 2005 - for $20,000. 12 - of David Breeding, independent $6,150 the appraisal the record might the at time a of is of of contains base time who expected to testify that the in vehicle conversion. other Moreover, competent finding with respect conversion namely, which three Pete's days The value of Auto to $1,200 Court finds Gordon's issue that there vehicle at that the of Gordon's price it notes which jury Jeep at for which Pete's auction and the $4,500 price the vehicle to a at is the a genuine third time when Pete's judgment as Auto to both parties of party third party. to the Service Accordingly, with respect compensatory damages. an of Punitive Damages Service moves for summary Both Counts III and damages. punitive punitive damages IV of the respect to complaint request Fourth Circuit in this case, for conversion are available "when the defendant's 'willful (quoting PGI, Inc.v. 2003)) . Punitive violation judgment with damages. As previously recognized by the was dispute a punitive wanton upon and then Pete's Auto conduct Court itself D. award valuing deny summary Court must to the sold prepared an later. transferred title to the the the value the Service 2007 evidence Auto Service acquired the vehicle at for June he and Rathe damages of the wanton.'" Prods., are Inc., likewise SCRA. - Id. 13 Gordon, - 576 637 S.E.2d available F.3d 438, for (recognizing at 444 willful that 460 (Va. and punitive damages for this plaintiff's SCRA and conversion claims are coextensive). The the key fact at issue with respect SCRA is whether Pete's Auto Service belonged to a servicemember when to punitive damages knew that the Gordon's Jeep it put the vehicle up for auction, purchased the vehicle on its own account, to a third party. Certain evidence of most the favorable aware of the court order property. to SCRA's requirement before See nonmovant, enforcing PL's Ex. Pete's Auto Service is law." Atkins v. The the SCRA are support, it operator of deposition. states that, Walker's because was No. to U.S. in an her she a and case marker, and or see 14 a - was obtain a servicemember's 30. Moreover, knowledge of the violation of of In law. owner testimony, prior The for transcript any other to first Walker, deposition Jeep defendant matter the testimony anything - as Lynne servicemember. deposition damages by the light (1985). and Service, inspected sticker, not a attach. 130 punitive affidavit did 120 affidavit In owned by the against 115, this Auto affidavit she ECF that lienholder lien Pete's when a any that unavailable found no decal, vehicle 472 argues points suggests viewed in the "presumptively charged with Parker, defendant 29, and then sold the vehicle record, that under its and of her Walker auction, she indication that defendant are identify argues the that unrebuttted, Gordon's Jeep and as belonging to willfully or wantonly violated The servicemember, plaintiff military Auto a base vehicle Service and his papers that clearly on vehicle apartment that the date complex, See Gordon's testify effects, vehicle the vehicle notes the fact have the including in bear placed that of to the a vehicle uniform the a Pete's belonged military owner have SCRA. did should not items vehicle as a While the plaintiff is in no position to nor that when Gordon base PL's sworn at of could evidence that Walker in fact observed a vehicle pass a military Jeep. 307(a) which identifying the vehicle, on Service further plaintiff military servicemember.6 decal the decal personal provide direct that pass The Auto Section notice on servicemember. contained asserts Pete's to based on decal Auto submits 31, answers trial, Pete's vehicle Ex. the Service decal No. 120 had present towed own been attach. interrogatories his still it documentary evidence pass ECF was the suggest issued indicate personal from to 32. on the for his Moreover, that he knowledge, will that the vehicle bore a military base vehicle pass decal when he left it the in March 7. The apartment 2007. See complex PL's Ex. parking 42, ECF evidence proffered by Gordon on 6 These the employees upon No. 120 his deployment attach. summary judgment items were apparently recovered third-party plaintiff. lot purchaser, According to who ultimately Walker, neither ever inspected the contents - 15 - 43, at is sufficient in for from the vehicle by returned she nor of the vehicle. them to the any of her a reasonable towed by jury Pete's The Auto are insofar Virginia Code question of § immaterial of the defendant the § 43-34. expert this times with as in law. the valuing The plaintiff has finds present when punitive damages for a matter of The procedural above Dale that of for a a law. requirements respect conversion, with failed the vehicle with for complied Moreover, satisfaction The Court still acted according to Virginia noted clearly law requirement testimony of was as liability strictly it case Virginia to the whether law is the the plaintiff argues that in at comply to of with acted willfully and wantonly state vehicle that all But federal fraudulent appraisal to avoid a "at defendant's because decal in complied Service requirements it 43-34. the Auto it the argues further that as that Service. unavailable defendant argues Pete's infer defendant conversion law," to any event, less than securing a $7,500 court order prior lien. See so as to selling generally Va. Code proffered documentary evidence and the Fitzwater there is on a this issue. genuine dispute as to whether the actions of Pete's Auto Service giving rise to its liability for conversion for violation of and the SCRA were Accordingly, the Court must deny summary with to respect the issue of punitive - 16 - willful judgment damages. and wanton. to the defendant E. The Court fee award at reserves this Attorney/s ruling on the 1. reasons, the Court Court RESERVES ruling availability of an attorney's is fee following: respect to the (ECF No. 105) case. summary judgment case. The plaintiff's motion for summary judgment is GRANTED in part and DENIED in part; respect 307(a) in this the except with respect to the availability of an attorney's award in this 3. for ORDERS with fee award The defendant's motion DENIED, attorney's CONCLUSION foregoing The 2. the availability of an time. IV. For Fees to the defendant's (ECF No. the motion is GRANTED with liability for violation of this The Clerk is DIRECTED to enter judgment for the plaintiff respect complaint, to if 5. Civil any, the defendant's alleges to a Relief shall Pursuant Procedure, judgment the which Servicemembers damages, fee award case. 4. with Section of the Servicemembers Civil Relief Act and otherwise DENIED, except with respect to the availability of an attorney's in 68) be violation Act. A reserved Rule parties liability are 56 (f) of - Count Section determination for ORDERED should not be granted to of under IV 307(a) as to of the of the monetary jury trial. the to Federal SHOW Rules CAUSE why of Civil summary the plaintiff with respect to the 17 - defendant's liability under Count III of the complaint, which asserts a common-law claim for conversion. The parties may submit written briefs with respect to this issue, not to exceed ten pages in length, IT IS within 7 days of the date of this Order. SO ORDERED. UNITED Norfolk, Virginia December 5> ,2011 - 18 - STATES MAGISTRATE JUDGE
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