MICHAEL K. JEANES, CLERK DEPUTY CLERKkomonews.s3.amazonaws.com/MUSTANGSUITDOCS.pdf · SEP :,3 2015 MICHAEL K. JEANES, CLERK B. OLSON DEPUTY CLERK Plaintiff, No. _____ c v 2 0 '1 5

Gary A. Gotto, No. 007401 Alison E. Chase, No. 028987 KELLER ROHRBACK L.L.P. 3101 North Central Avenue, Suite 1400 Phoerux,Juizona 85012-2643 602-248-0088 [email protected] [email protected] Attorneys for Theodore Schuman

IN SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

Theodore T. Schuman,

COPY SEP :,3 2015

MICHAEL K. JEANES, CLERK B. OLSON

DEPUTY CLERK

Plaintiff, c v 2 0 '1 5 - 0 •j 0 4 3 3 No. _______________ _ vs.

Butch Bockmier and Jane Doe Bockmier, husband and wife; Park Place Motors, Ltd., a Washington corporation,

Defendants.

Complaint

For his Complaint against Defendants, Butch Bockmier, Jane Doe Bockmier, and Park

Place Motors, Ltd., Plaintiff Theodore T. Schuman ("Plaintiff') alleges as follows:

I. INTRODUCTION

1. The crux of this action is simple: Defendants Butch Bockmier ("Bockmier")

and Park Place Motors, Ltd. ("Park Place") (collectively, "Defendants") sold Plaintiff a car that

was not what they claimed it was. The statements that Defendants made about the car were not

puffery. Rather, Defendants made specific representations about the type of engine in the car

(among other things), and that engine simply wasn't there. On the basis of Defendants'

misrepresentations, Plaintiff purchased the car at issue - a 1967 Ford Mustang Custom Fastback

-at the 2015 Barrett-Jackson Scottsdale auto auction, and for a very substantial sum of money.

2. After discovering that the car didn't have the engine that Defendants claimed

it had, Plaintiff sought to resolve this straightforward case of misrepresentation outside of court.

Defendants, however, refused to make Plaintiff whole even though Defendants have never

denied what they did. Even worse, Defendants knew - or certainly should have known - that

they were misrepresenting the car they sold to Plaintiff. Defendant Park Place claims to be "The

West Coast's premier luxury, collector, and exotic car dealership." Defendant Park Place boasts

that it has "[o]ver two decades of experience and a sterling reputation," and crows on its website

about its "over 22 years in the special interest automobile business." Defendant Bockmier is the

co-founder and Chief Operating Officer of Park Place. He likewise boasts of his knowledge of

"collector and special interest vehicles" and extensive participation in collector car auctions,

including the Barrett-Jackson auctions.

3. Despite their claims of extensive knowledge and experience in the auto

industry, and specifically the collector car industry, Defendants misrepresented the vehicle at

issue here in critical respects. And, when called to account for these misrepresentations,

Defendants responded with dissembling excuses. This sort of behavior can't be tolerated and no

seller can be allowed to treat consumers in this way.

H. PARTIES

4. Plaintiff Theodore T. Schuman, a married man, is an Arizona resident residing

in Scottsdale, Arizona.

5. Defendant Park Place is an auto dealership located in Bellevue, Washington,

with its principal place of business located at 13710 NE 20th Street, Bellevue, Washington

98005. Upon information and belief, Park Place was founded in 1987 and is a Washington

corporation.

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6. Defendant Bockmier is, upon information and belief, a Washington resident

and the co-founder of Park Place. Park Place's website states, among other things, that: "Butch

co-founded Park Place LTD in 1987, and what started as a small wholesale dealer, Butch has

helped make into one of the premier full service special interest dealerships on the West Coast."

Upon information and belief, Jane Doe Bockmier is the spouse of Bockmier. All acts of

Bockmier complained of herein were performed for the benefit of the marital community, and

Jane Doe Bockmier is named herein for purposes of binding the marital community.

7. Non-party Barrett-Jackson is an auction company operating in Scottsdale,

Arizona, at 7400 East Monte Cristo Avenue. Barrett-Jackson is well-known for its collector car

auctions, and bills itself as "The World's Greatest Collector Car Auctions."

III. JURISDICTION AND VENUE

8. This is an action for monetary and equitable relief under Arizona state law.

This Court has subject matter jurisdiction over this action pursuant to Ariz. Const. Art. 6 § 14

and A.R.S. §§ 12-123, 12-1801, and 12-1831.

9. The Defendants in this action have caused acts to occur within the State,

traveled to Scottsdale, Arizona to conduct business in this state, and completed acts underlying

this lawsuit within this state. By virtue of their conduct, they have submitted to the jurisdiction

of Arizona, and this Court has personal jurisdiction over them pursuant to Ariz. R. Civ. P. 4.2(a).

10. addition, Defendants have consented to personal jurisdiction in this court.

Pursuant to the terms of Barrett-Jackson's standard bidding agreements, parties to sales

completed at the auction at issue contractually consented to submit to the jurisdiction of this

court.

11. Venue is properly laid in Maricopa County pursuant to A.R.S. §§ 12-401(1)

3

and 401(5).

IV. FACTUAL ALLEGATIONS

12. As noted above, Barrett-Jackson runs series of well-known collector car

auctions. This action concerns a 1967 Ford Mustang Custom Fastback (the "Mustang")

purchased by Plaintiff at the 2015 Scottsdale Barrett-Jackson auction occurring in January (the

"Auction").

13. Defendants consigned the Mustang to the Auction. Defendants authored and

were responsible for the content of the representations made to the Plaintiff (and other potential

purchasers) regarding the Mustang.

14. Defendants described the car at issue, Lot 820 (VIN 7R02Sl24751), as

follows:

This '67 is the product of a professional, no-expense-spared rotisserie restoration that was completed less than 850 miles ago. Under the hood is a highperformance 427 side oiler, featuring a massive Holley HP carburetor, powdercoated Dove aluminum heads, Eagle forged crank and H-beam connecting rods, Comp Cams roller cam, Jesel roller rocker arms, polished aluminum valve covers and a Griffin aluminum radiator. A custom exhaust system with ceramic coated Hokker Super Comp headers, stainless X-pipe and MagnaFlow mufflers provide a ground-shaking soundtrack. The engine is backed by a Tremec TKO 5-speed with a Ram II clutch assembly, billet steel flywheel and a custom driveshaft driving a 4.11 Detroit Locker rear end. To handle all the extra power, the suspension has been channeled 2" up front and 1" in the rear and upgraded for the extra performance. 13" Wilwood brakes at all four comers provide ample stopping power behind 18" front and 20" rear SSR wheels with BFGoodrich GForce T/A tires.

15. This description was authored by Defendants for the purpose of selling the

Mustang.

16. Plaintiff submitted Barrett Jackson's standard-form "Bidder Registration

Packet" and submitted that packet, along with a fee, to participate as a bidder in the 2015

Scottsdale auction. Plaintiff's bidder number was 2040.

4

17. Plaintiff bid upon the Mustang at the Auction and was the winning bidder,

bidding $102,000.00. A true and correct copy of the Bill of Sale- Invoice is attached hereto as

Exhibit A. That BiB of Sale - Invoice reflects as follows:

a. In addition to the purchase price of$102,000.00, Plaintiffwas also

required to pay a 10.00% premium of $10,200.00, 6.30% sales tax of

$7,068.60, and 1.65% city tax of$1,851.30, for a total of$121,119.90.

b. The "seller" of the vehicle is identified as Butch Bockmier, Park

Place Motors Ltd, 13710 NE 20th St., Bellevue WA 98005-2028.

18. The Mustang was not, however, as Defendants had represented it to be. Soon

after completion of the sale, the Mustang began to exhibit serious mechanical difficulties.

19. In the course of having the Mustang - for which Plaintiff had recently paid in

excess of $100,000 - repaired, Plaintiff began to discover Defendants' misrepresentations. In

fact, Plaintiff barely drove the car in the short time he owned it, due to the fact that the car was

constantly breaking down and in the shop for substantial periods of time.

20. Among other things, and most importantly, in the course of having the

Mustang repaired, Plaintiff discovered that the Mustang's engine was simply not a "side-oiler" as

Defendants had claimed and advertised.

21. The difference between a "side-oiler" and a "top-oiler" is important and

substantiaL Among other things, the "side-oiler" engine design is far more rare and expensive,

and increased the racing endurance and ruggedness of the engine. The "side-oiler" engine is

period-correct engine for the Mustang. The "side-oiler" engine is an iconic Ford engine, one of

the most famous Ford racing engines ever developed. This misrepresentation - that the

Mustang's engine was a "side-oiler" when in fact it was of the less-desireable "top-oiler" variety

5

- was material.

22. Plaintiff relied on Defendants' representations in deciding to purchase the

Mustang and relied, specifically, on Defendants' representation that the Mustang's engine was a

"side-oiler." And, as to Plaintiff, Defendants are indisputably the sellers of record appearing on

the bills of sale and are indisputably the sellers of record in all legally-relevant respects.

23. Plaintiff could not, and was not allowed to, investigate and/or inspect the

Mustang and/or its engine prior to bidding on and purchasing the vehicle at the Auction. The

Mustang was kept behind a rope and with its hood closed. In any event, to even discover that the

engine was not a "side-oiler" would have required a detailed inspection, even if Plaintiff were

allowed access to the car, which he was not.

24. Defendants, in contrast to Plaintiff, had both the opportunity and the

responsibility to ensure the truth of its representations regarding the Mustang, including the

representation that its engine was a "side-oiler." Defendants knew, or could have known, that

the Mustang's engine was not a "side-oiler."

25. Upon information and belief, Defendants sold the car to at least two separate

purchasers and cannot credibly claim to lack familiarity with the Mustang or a lack of

opportunity to inspect the vehicle and verify the truth of their representations.

26. Defendants' failure to verify the accuracy of their representations was, in the

least, grossly negligent. In addition, upon information and belief, Defendants were in fact aware

that the Mustang's engine was not a "side-oiler" and knowingly misrepresented the vehicle in

seeking to find a buyer for it.

27. Park Place's website claims that:

Since our founding in 1987, Park Place LTD has been enthusiastically involved in the collector car community. We pride ourselves on our decades-old

6

relationships with some of the world's most prestigious auction companies, to the point where David and Butch, still retain Bidder Numbers 38 and 39 at BarrettJackson.

From Scottsdale to West Palm Beach, Palm Springs to Monterey, if you are at a collector car auction, keep an eye peeled for your friends at Park Place LTD.

28. With respect to Defendant Bockmier, Park Place's website claims:

With a passion for collector and special interest vehicles, and especially vintage Corvettes, Butch ensures we always have some of the most interesting and diverse inventories of collectable cars on the West Coast. He also spearheads Park Place's participation in many of the major collector car and highline auctions, including all ofBarrett-Jackson's events.

29. After discovering that the Mustang was not as represented, Plaintiff sought to

resolve the issue without the need for intervention of the court. Plaintiff brought Defendants'

misrepresentations to the attention of Barrett-Jackson; Barrett-Jackson personnel thereafter

sought to assist to negotiate and mediate a resolution between Plaintiff and Defendants.

30. Plaintiff provided extensive records and documentation to the Defendants and

Barrett-Jackson, including photographs, receipts, and contact information for mechanics who

Plaintiff had paid to work on the car.

31. Defendants, however, would not agree to make Plaintiff whole, and attempts

to reach a resolution failed.

32. Upon information and belief, Defendants never even made contact with the

mechanics who had worked on the car for Plaintiff.

V. CLAIMS

Count One: Negligent Misrepresentation

33. Plaintiff incorporates and realleges the preceding paragraphs as if fully set

7

forth herein.

34. Defendants negligently gathered, compiled, and communicated information in

the sale of the Mustang to Plaintiff and to induce Plaintiffs purchase of the Mustang.

35. These statements were made with the intent that Plaintiff rely upon them.

36. Plaintiff justifiably relied upon Defendants' misrepresentations in connection

with the purchase of the Mustang because, inter alia, Plaintiff was not allowed or permitted to

investigate and/or inspect the Mustang prior to purchasing it at auction.

37. Plaintiff was damaged by the negligence of Defendants in an amount to be

proven at trial.

Count Two: Fraud and Fraudulent Misrepresentation


forth herein.

39. To prevail on a fraud claim under Arizona law, a plaintiff must establish (1) a

representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or

ignorance of its truth, (5) the speaker's intent that the information should be acted upon by the

hearer and in a manner reasonably contemplated, (6) the hearer's ignorance of the information's

falsity, (7) the hearer's reliance on its truth, (8) the hearer's right to rely thereon, and (9) the

hearer's consequent and proximate injury. See Green v. Lisa Frank, Inc., 221 Ariz. 138, 156,

211 P .3d 16, 34 (Ariz. Ct. App. 2009).

40. Defendants made material misrepresentations of fact in connection with the

sale of the Mustang described herein. Among other things, Defendants represented that the

Mustang had a side-oiler engine, which it did not.

41. Defendants' misrepresentation with respect to the Mustang's engine were

8

material: side-oiler engines are more rare, expensive, and desirable than top-oiler engines.

42. Upon information and belief, Defendants were aware that the information was

false and/or ignorant of its truth. Among other things, Defendants hold themselves out as having

extensive experience in the collective and specialty car business, over twenty years, and as

experts in the field who would presumably know that their representations were false.

43. These misrepresentations were made with the intent to induce the reliance of

potential purchasers, including Plaintiff.

44. Plaintiff justifiably relied on Defendants' representations regarding the

Mustang and Plaintiff had a right to rely on the representation.

45. Plaintiff was damaged by Defendants' deceit in an amount to be proven at

trial.

Count Three: Violation of the Arizona Consumer Fraud Act


forth herein.

47. The Arizona Consumer Fraud Act ("Acf') prohibits a variety of deceptive and

fraudulent practices in connection with the sale or advertisement of merchandise. The Act

specifically provides:

The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.

A.R.S. § 44-1522(A).

48. The elements for establishing a private cause of action for damages under the

Act are: ( 1) a deception, deceptive act, false pretense, fraud, false promise, misrepresentation or

9

concealment, (2) of a material fact, (3) made in connection to the sale or advertisement of

merchandise, (4) upon which a consumer relies, and (5) is consequently and proximately injured.

See Correa v. Pecos Valley Dev. Corp., 126 Ariz. 601, 605, 617 P.2d 767, 771 (Ariz. Ct. App.

1980).

49. Defendants made material, fraudulent, and deceptive representations to

Plaintiff regarding the Mustang. Defendants represented to Plaintiff that the Mustang had a side

oiler engine. In reliance on this representation, Plaintiff purchased the Mustang and was injured

by the purchase because he paid more than it was worth.

Count Four: Breach of Contract


forth herein.

51. Under Arizona law, a breach of contract claim contains three elements: (1) the

existence of a contract, (2) its breach, and (3) resulting damages. See Chartone, Inc. v. Bernini,

207 Ariz. 162, 170, 83 P .3d 1103, 1111 (Ariz. Ct. App. 2004).

52. Defendants had a contract with Plaintiff to sell the car described in its

advertising materials. Defendants breached this contract by failing to deliver the vehicle

described. Plaintiff incurred substantial damages including by overpaying for the vehicle

delivered.

Count Five: Promissory Estoppel


forth herein.

54. A cause of action for promissory estoppel under Arizona law requires the

plaintiff to prove (1) a promise, (2) which the promisor reasonably foresee would cause the

promisee to rely, (3) upon which the promisee actually relies to his or her detriment. Contempo

10

Constr. Co. v. Mountain States Tel. & Tel. Co., 153 Ariz. 279, 282, 736 P.2d 13, 16 (Ariz. Ct.

App. 1987). A promissory estoppel claim is not the same as a contract claim. Promissory

estoppel provides an equitable remedy and is not a theory of contract liability. Double AA

Builders, Ltd. v. Grand State Constr., L.L.C., 210 Ariz. 503, 511, 114 P.3d 835, 843 (Ariz. Ct.

App. 2005).

55. Defendants made material, fraudulent and deceptive representations to

Plaintiff regarding the Mustang, as described above.

VI. PRAYER

In view of the foregoing, Plaintiff prays for judgment against Defendants as follows:

A. Rescission;

B. Compensatory damages in an amount as shall be established at trial;

C. Punitive damages;

D. Attorney fees and expenses;

E. Taxable costs;

G. Interest on the sum of these amounts from the date of entry of judgment until paid in full;

H. Declaratory relief;

and,

I. Any other relief the Court deems just.

VII. JURY TRIAL DEMAND

Plaintiffs hereby demand a trial by jury on all issues so triable.

11

DATED September 3, 2015.

KELLU:.:CKL.L.P. ~-

By: Gary A. Gotto 7 Alison E. Chase 3101 North Central Avenue, Suite 1400 Phoenix, Arizona 85012 Attorneys for Theodore T. Schuman

12

Exhibit A

7400 Ea~t Monle Cristo Ave ScoHsdale, Arizona 85260

Tel: (480) 421-6694 Fax: (480) 421-6697

Bidder#: 2040 Sold To; THEODORE T SCHUMAN

Dealer#:

PlANET ONE COMMUNICATION$ 9845 E BEll ROAD SCOTTSDALE AZ 85260

. , . PURCHASES Lot # Car Description . . . . 820 1967- FORO MUSTANG CUSTOM FASTBACK

VIN: 7R02Sl24751

Oate Type

01/15/2015 HOLO·WIRE

Blll of Lading: NO

Buyer's Apj>rov111:

BUYERPAYMENT HISTORY' Number Payment

f.O.Ob

FOR OFFICE USE ONLY

Release of C<lr

R$1ease of Keys

Rerease at Gate

Helease .of Title

Invoice Date:

Pho,ne: 01/15/2015 800 2:}1·6264

Tax#:

Applied

$0 00

Pureh·an .Price

1 0.00% Pr&mium T:ucat»e Fees . . .

6.30% State Tax

0;00% District Tax

1.65% City Tax

Ot.herFees Lot Total

Amount RQ<;eived

Balance Due

$102.000.00 $10,200,00

so.oo $7,068.60

$0.00 $1,851.3()

$0.00 $121,119.90

$0.00 $121,119.90

Buy~r :,~c~nO'..vledges l:lndrepresent:s to Sl:lrr'ett•..iacl(spn At:u;:tion Cq ~!.C t~t the Lot ~s«rib.e(! <~l;lqve was pV.rchased ·A$ lS," andJn accoi'Clance w1th ali other \erm& and conditiQns of s.a~e that ap~ar on. aiodef.s Agr~ent, whi~h.ar~ ifl<iorporated her¢ln by (eference. $uyer .guaran~ees go6d lind mechantable lunds In the amout'lt of ihe tohtl cue, · PA:$ SING Of tiTlE· • ·Title pal!se~; from seuer to Bv.yer at compietk»n <>I the sale a& ev!denc~ l?y tile fall of lhe li!UC!ioneet's hli!mm~r. From that point forw<~nt Suye! .;~ssumos lJ!l risll £11 !Ol;S frorrr any cause whai.so1wer. Th:i.s aocumli!n! shaU be binding t;Jpon the Buyer and Seller and upon thek respective principals, hei(s, personal representilt1Ve$.. successors. and as~>ignt>. l! sh;iU not be modltled except by wr~ing signed by .Barrefi.Jackson Auction Co. LLC.

Sarrett.Jackson Representative ~.! 11 ilJ.'Gk<J<}\.,£. Name: SUTCH BOCKMIER

PARK PLACE MOTORS LTD 13710 NE 20TH ST. BELLEVUE WlA 98005--202.8

Dealer#: 1706

Title Mailed On:

SELLER INFORMATION Aect# 28044 Phone#: 20p 612-2439 BUTCH

Tax#:601 147 761

SELLER PROCEEDS

Cert#

ADDITIONAL ITEMS FOR PICK UP AT PROPERTY ROOM

BUYER'S COPY

MICHAEL K. JEANES, CLERK DEPUTY CLERKkomonews.s3.amazonaws.com/MUSTANGSUITDOCS.pdf · SEP :,3 2015 MICHAEL K. JEANES, CLERK B. OLSON DEPUTY CLERK Plaintiff, No. _____ c v 2 0 '1 5

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