United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge.
matter is before the Court on the Motion for Summary
Judgment, ECF No. 67, and the Motion to Exclude, ECF No. 89,
filed by Defendants Celadon Group, Inc., Quality Companies,
LLC, and Quality Equipment Leasing, LLC (collectively,
Defendants). Also before the Court are the Motion for Partial
Summary Judgment, ECF No. 79, and Motions to Strike, ECF Nos.
82 and 92, submitted by Plaintiff Fleet Truck Sales, Inc.
(Fleet). For the reasons stated below, the Defendants'
Motion for Summary Judgment will be granted in part; and
Fleet's Motion for Summary Judgment, the Motion to
Exclude, and Motions to Strike all will be denied.
otherwise indicated, the following facts are those stated in
the Parties' briefs, supported by pinpoint citations to
admissible evidence in the record, in compliance with NECivR
and Federal Rule of Civil Procedure 56.
entered into two purchase agreements with Quality Equipment
Sales for the sale of commercial trucks, one on September 3,
2015, and another on September 9, 2015. Under the first
purchase agreement, Fleet agreed to sell Quality Equipment
Sales 163 Volvo commercial trucks for $9, 454, 000 with $81,
500 of the purchase price due as a cash deposit. Under the
second purchase agreement, Fleet agreed to sell Quality
Equipment Sales 169 Peterbilt commercial trucks for $10, 309,
000 with $84, 500 of the purchase price due as a cash
deposit. Fleet never received the purchase price on either
contract and contends it did not receive either of the
respective cash deposits.
Equipment Sales was not, itself, a business entity but the
fictitious or assumed name used by other business entities.
Defendant Quality Equipment Leasing, LLC, (QEL) was
registered to do business under the assumed name of
Quality Equipment Sales from January 30, 2008, to November
15, 2011. ECF No. 86-1, Page ID 641, 648-49. Defendant
Quality Companies, LLC, (Quality Companies) was
registered to do business under the assumed name of
Quality Equipment Sales from November 23, 2011, to September
28, 2015. ECF No. 86-1, Page ID 635-38. On September 21,
2015, QEL reassumed the name Quality Equipment Sales and
currently does business under that name. There is no evidence
that Defendant Celadon Group, Inc., has ever
registered to do business under the Quality Equipment
Sales name. Thus, at the time the purchase agreements were
entered into, Quality Companies was registered to do business
under the Quality Equipment Sales name.
relevant times, however, the Celadon website,
Celadontrucking.com, included a webpage titled
“Equipment Sales” that stated “Quality
Equipment Sales was created based on one concept:
Quality.” ECF No. 81. The page advertised and offered
pre-owned equipment sales services, including the selling and
leasing of pre-owned tractors and trailers. Id.
Quality Companies' vice president, Danny Williams,
negotiated and authorized the purchase agreements, and
although he was not an officer of Celadon Group, his email
address was firstname.lastname@example.org. The signature
block associated with Williams's email address listed his
position as vice president of Quality Companies but also
listed the contact information for Celadon Group below.
Williams's LinkedIn page also stated his position with
Quality Companies, but simultaneously referenced Celadon
Kosmicki was the Fleet sales representative who solicited
Williams to purchase the trucks. Kosmicki had worked with
Eric Meek, a Celadon Group representative, around 2006 or
2007 to consummate a purchase agreement for trucks and, for
that particular deal, Meek instructed Kosmicki to title the
trucks in the name of “Quality Equipment.”
Kosmicki Depo., ECF No. 81-4, Page ID 407. In 2015, Kosmicki
emailed Meek, who was then the Chief Operating Officer for
Celadon Group, to solicit interest in another equipment
purchase, but Meek referred him to Williams and explained
Williams was the new individual in charge of equipment
purchases. Id. at 408; ECF No. 81-11, Page ID 577.
Specifically, Meek responded “I will have Danny
[Williams] circle back with you if we need any
stock.” ECF No. 81-11, Page ID 577 (emphasis added).
Meek also told Kosmicki that “[Williams] is handling
all of our purchasing for used/new currently.”
Id. at 576 (emphasis added). Neither Meek nor
Williams explained that Williams was an officer of Quality
Companies and not Celadon Group. Kosmicki Depo., ECF No.
81-4, Page ID 408.
and Williams proceeded to enter into two purchase agreements
between Fleet and Quality Equipment Sales, one in March 2015
and one in May 2015. Payment was made on these purchase
orders by Celadon Trucking Services, Inc. ECF Nos. 81-20
& 81-6, Page ID 442. Thereafter, both Kosmicki and
Williams coordinated the finalization of the two September
purchase agreements at issue in this litigation. Although
Kosmicki worked with Williams directly to finalize the
purchase agreements, Kosmicki did not have the authority to
enter into such contracts for Fleet. He had to get approval
from his immediate supervisor, Larry Lamer. Kosmicki Depo.,
ECF No. 81-4, Page ID 407.
Companies ultimately was unable to secure financing for the
September 3 and September 9 purchase agreements, but for the
remainder of 2015 Williams continued to assure Fleet that
both purchase agreements would be honored. ECF No. 81-13; ECF
No. 81-18; ECF No. 81-31; ECF No. 81-33. On January 13, 2016,
however, Williams sent Kosmicki an email explaining that
Quality Companies had not resolved its financing problems and
recommending that Fleet sell the trucks subject to the
September purchase orders to other buyers. ECF No. 81-19. As
a result, Fleet began making efforts to sell the trucks to
other potential buyers and initiated this action for breach
of contract. Both parties have moved for summary judgment on
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884
(8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary
judgment is not disfavored and is designed for every
action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(en banc)). In reviewing a motion for summary judgment, the
Court will view “the record in the light most favorable
to the nonmoving party . . . drawing all reasonable
inferences in that party's favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing
Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.
2004)). Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, “Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than the mere
existence of some alleged factual dispute” between the
parties in order to overcome summary judgment. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir.
2016) (quoting Vacca v. Viacom Broad. of Mo., Inc.,
875 F.2d 1337, 1339 (8th Cir. 1989)).
other words, in deciding “a motion for summary
judgment, facts must be viewed in the light most favorable to
the nonmoving party only if there is a genuine dispute as to
those facts.” Wagner, 788 F.3d at 882 (quoting
Torgerson, 643 F.3d at 1042). Otherwise, where the
Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving
party, ” there is no “genuine issue of material
fact” for trial and summary judgment is appropriate.
Whitney, 826 F.3d at 1076 (quoting Grage v. N.
States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir.
Parties agree that the primary issue is whether Fleet's
damages are, as a matter of law, limited by the liquidated
damages clause in each of the September purchase agreements.
Fleet argues the purchase agreements give it the option to
pursue actual damages or to enforce the liquidated damages
clause. Defendants argue Fleet's only option with respect
to damages is enforcement of the liquidated damages clause.
This issue is one of contract interpretation.
interpretation of a contract and whether the contract is
ambiguous are questions of law.” Timberlake v.
Douglas Cty., 865 N.W.2d 788, 793 (Neb. 2015). Thus,
“[i]n interpreting a contract, a court must first
determine, as a matter of law, whether the contract is
ambiguous.” Facilities Cost Mgmt. Grp., LLC v. Otoe
Cty. Sch. Dist. 66-0111, 868 N.W.2d 67, 74 (Neb. 2015).
“A contract is ambiguous when a word, phrase, or
provision in the contract has, or is susceptible of, at least
two reasonable but conflicting interpretations or meanings,
” and “[t]he meaning of an ambiguous contract is
generally a question of fact.” Id. at 74-75.
“A contract written in clear and unambiguous language
is not subject to interpretation or construction and must be
enforced according to its terms.” Kluver v.
Deaver, 714 N.W.2d 1, 5 (Neb. 2006). A contract must
also be read “as a whole, and if possible, effect must
be given to every part of the contract.” Id.
purchase agreements are, in all relevant respects, identical.
Each is a two page document with a “NOTICES TO
PURCHASER” section at the bottom of the first
page and a “Purchaser's Certification
& Terms of Sales” section that is the
entirety of the second page. ECF No. 81-10, Page ID 570-73.
The liquidated damages provision is found in the second
paragraph on the second page of the Terms of Sales section
The parties agree that it would be impractical and extremely
difficult to determine the actual damages in the event of a
breach by either party. Thus, the parties agree that
liquidated damages in an amount equal to the Cash Deposit
shall be paid by either party who breaches this contract. The
parties agree that this amount is a reasonable estimate of
any actual damages. Purchaser understands and agrees that in
the event Purchaser breaches this Agreement, Seller shall
retain the Cash Deposit as liquidated damages.
Id. The liquidated damages provision is preceded by
the following statement in the Notices to Purchaser section
on the first page: “PURCHASER'S CASH DEPOSIT
MAY BE RETAINED BY SELLER AS LIQUIDATED DAMAGES PURSUANT TO
PARAGRAPH 2 ON PAGE 2.” Id. Reading the
purchase agreement contracts as a whole, the Court finds they
are unambiguous with respect to liquidated damages.
See Boyles v. Hausmann, 517 N.W.2d 610, 615
(Neb. 1994) (“[T]he fact that the parties have
suggested opposing meanings of the disputed instrument does
not necessarily compel the conclusion that the instrument is
suggests that use of the word “may” in the
Notices to Purchaser section means that Fleet may, in its
discretion, keep the cash deposit as liquidated damages, or
may pursue an action for actual damages. See Childers v.
Conservative Sav. & LoanAss'n, 429
N.W.2d 325, 327-28 (Neb. 1988) (finding that the use of the
word “may” in the contract at issue was
“permissive or discretionary” language, not
“mandatory”); Siefford v. Hous. Auth. of City
of Humboldt, 223 N.W.2d 816, 823 (Neb. 1974) (explaining
the word “may” indicates “permissive, and
not mandatory, ” language); accord Bahnmaier v. N.
Utah Healthcare Corp., 402 P.3d 796, 800 (Utah Ct. App.
2017) (quoting Holmes Dev., LLC v. Cook, 48 P.3d
895, 902-03 (Utah 2002) (“The plain, ordinary, ...