Allen v. Lynn Hickey Dodge, Inc. , 39 P.3d 781 ( 2001 )

WINCHESTER, J.

11 This matter concerns an action arising from an automobile accident that occurred when a vehicle driven by Margaret June Green collided with a vehicle driven by plaintiff/appellee Bobby Allen on June 17, 1995. There were three passengers in the Allen vehicle, Jane, Brett and Damon Allen. The record reflects that Damon Allen died from injuries incurred in the accident and that Jane, Brett and Bobby Allen apparently were injured. Margaret June Green drove a 1986 Buick off the car lot owned by defendant/appellant Lynn Hickey Dodge, and struck the rear of the Allen vehicle while said vehicle was stopped at a red light located several blocks from the Lynn Hickey dealership. The issue before the Court concerns ownership of the 1986 Buick driven by Ms. Green at the time of the accident.

FACTS AND PROCEDURAL HISTORY

12 On June 17, 1995, a Saturday, Ms. Green signed a Sales Order and Temporary Agreement given her by an employee of Lynn Hickey Dodge, and in return tendered the amount of one thousand five hundred dollars ($1,500.00) to Lynn Hickey Dodge and drove away in a 1986 Buick. Ms. Green signed a retail sales installment contract on the 1986 Buick on July 8, 1995. Appellees filed the instant lawsuit, alleging Lynn Hickey Dodge negligently entrusted the vehicle to Ms. Green. Appellees also sued Lynn Hickey Dodge as Ms. Green's principal. The trial court granted summary judgment in favor of Lynn Hickey Dodge on these issues, and the Court of Civil Appeals, Division I, reversed and remanded the case, cause number 95,173, for proceedings on the theory of negligent sale of a vehicle.

13 Defendant/appellee Alistate Insurance Company, underinsured motorist carrier for the Allens, filed a motion for partial summary judgment on July 9, 1998, in which the Allens joined, asserting Lynn Hickey Dodge owned the 1986 Buick at the time of the accident. The trial court granted this motion and held as a matter of law that Lynn Hickey Dodge was the owner of this vehicle at the time of the accident. On appeal, the Court of Civil Appeals, Division I, reversed and held that title to the Buick passed to Ms. Green upon delivery of the vehicle, to-wit, when she drove it off Lynn Hickey's car lot.

14 Upon de novo review, we hold partial summary judgment on the issue of ownership is inappropriate. Disputed issues of material fact exist due to ambiguous and conflicting language used in the sales agreement and in the temporary loan agreement, both of which were executed on June 17, 1995, by an employee of Lynn Hickey Dodge and Ms. Green,

REVIEW OF SUMMARY PROCEEDINGS

15 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. "[T]he inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. Our ruling must be made on the record that the parties actually presented and not on a record that is potentially possible. Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶ 12, 554 P.2d 780, 784. An order that grants summary relief disposes of legal issues. Therefore, on appeal, the review we conduct is de movo. Brown v. Nicholson, 1997 OK 32, ¶ 5 n. 1, 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 456 n. 30. "An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Manley, 1999 OK 79, ¶ 22, n. 30, 989 P.2d at 456, n. 30.

T6 The sole issue we address on cer-tiorari is whether disputed facts exist in the determination of the ownership of the 1986 Buick Ms. Green drove at the time of the accident. The parties cite 12A O.S.1991, 2-401¹ from Oklahoma's Uniform Commercial Code, in support of their arguments that one or the other actually owned the vehicle at the time of the accident. Lynn Hickey Dodge argues that under § 2-401(2), title passed to Ms. Green at the time she drove the vehicle off Lynn Hickey Dodge's care lot and the dealership had only a security interest in the vehicle. Allstate contends that when Ms. Green signed the temporary loan agreement, under § 2401(1) the parties "explicitly agreed" that Lynn Hickey Dodge would retain title to the vehicle and that title would pass to Ms. Green only if and when she secured financing.

T7 The two documents, when read together, contain ambiguous and conflicting language that precludes summary disposition on the issue of the 1986 Buick's ownership at the time of the accident. The temporary loan agreement states that "Vehicle is Lender's property. This Agreement is a contract for use of Vehicle while Vehicle is on rental to Borrower." See temporary loan agreement, page two, Section I. However, Ms. Green and Lynn Hickey Dodge's employee left substantial provisions of this document blank, including but not limited to the following: whether Ms. Green was a prospective buyer or a service customer; the identity of the person who released the car and the date and time of release; odometer readings; miles allowed; chargeable miles; rental rates; vehicle condition; the "rental will be paid by" provision and the consideration clause. The temporary loan agreement lists the subject vehicle to be the 1986 Buick Century, sticker number 6458764, driven by Ms. Green at the time of the accident.

18 The Lynn Hickey Dodge sales order document is completed in its entirety. It reflects on page one thereto, a sales price of four thousand nine hundred fifty dollars ($4,950.00), plus a processing fee of thirty-eight dollars and fifty cents ($38.50) as well as Lynn Hickey Dodge's receipt of Ms. Green's one thousand five hundred dollar ($1,500.00) down payment. It lists on page one a finance balance on the vehicle of three thousand four hundred eighty-eight dollars and fifty cents ($3,488.50). The sales order also lists the "vehicle being sold" as the 1986 Buick Century, sticker number G6450764 and contains the vehicle identification number on page one. This is the same vehicle referenced in the temporary loan agreement and the vehicle driven by Ms. Green at the time of the accident. In addition, the sales agreement states on page one "THIS AGREEMENT ON THIS PURCHASE IS UNDERSTOOD THAT THE CUSTOMER IS RESPONSIBLE FOR BUYING THEIR OWN TAG, TITLE AND TAX." It contains a limited warranty clause on page two and certain definitions of terms including but not limited to "Seller," "Purchaser" and "Manufacturer" in Section (1) on page two. Both the temporary loan agreement and the sales order contain handwritten references to a Farmers Insurance Group policy, number 08138816916.

{9 We hold that the terms of the temporary loan agreement and the sales order are ambiguous and conflicting. Indeed, when these two documents are read together, issues of material fact regarding the ownership of the 1986 Buick at the time of the accident arise. Therefore, none of the litigants is entitled to judgment as a matter of law on the issue of the 1986 Buick's ownership.

CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE TRIAL COURT REVERSED AND CASE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

10 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, JJ., concur. { 11 OPALA, J., concur. 1 12 SUMMERS, J., dissents.

1 . 12A O.S.1991, 2-401. Passing of Title; Reservation for Security; Limited Application of this Section

Each provision of this Article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this Article and matters concerning title become material the following rules apply:

(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (Section 2-501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by this act. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the article on Secured Transactions (Article 9), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.

(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading

(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but

(b) if the contract requires delivery at destination, title passes on tender there.

(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods,

(a) if the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents; or

(b) if the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.

(4) A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance re-vests title to the goods in the seller. Such revest-ing occurs by operation of law and is not a "sale".