                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAR 21 2002
                           FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    CDM AUTO WHOLESALE, INC.,

               Plaintiff-Appellant,
                                                        No. 01-2181
    v.                                        (D.C. No. CIV-00-166 DJS/RLP)
                                                         (D. N.M.)
    CINDY L. JENSEN;
    ALBUQUERQUE LINCOLN
    MERCURY, INC.,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before HENRY , ANDERSON , and LUCERO , Circuit Judges.



         CDM Auto Wholesale, Inc. (“CDM”), sued Albuquerque Lincoln Mercury,

Inc. (“ALM”) alleging violations of the Federal Odometer Act, 49 U.S.C.

§§ 32701–32711. The district court granted summary judgment in favor of ALM,

finding that CDM failed to present evidence that ALM acted with intent to



*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The Court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
defraud. We review the district court’s grant of summary judgment de novo,

applying the same legal standards under Fed. R. Civ. P. 56(c) as did the district

court, and examining the factual record in the light most favorable to the party

opposing summary judgment.        See Gunnell v. Utah Valley State Coll.   , 152 F.3d

1253, 1259 (10th Cir. 1998). Because CDM did not present sufficient evidence to

defeat ALM’s motion for summary judgment, we affirm.

      Cindy Jensen,   1
                          an employee of ALM, traded in her used 1992 Ford Explorer

to ALM on August 7, 1998. At that time, the vehicle had an odometer reading of

13,801 miles. Jensen certified to ALM, on an odometer disclosure statement and

a power of attorney to disclose mileage and assign title, that the odometer reading

of 13,801 miles reflected the vehicle’s actual miles. ALM then immediately sold

the vehicle to CDM. CDM resold the vehicle and, eventually, a subsequent

purchaser discovered that the odometer had turned over. It was then determined

that at the time Jensen traded the car to ALM—and at the time ALM sold it to

CDM—the vehicle actually had 113,801 miles on it. CDM then brought this civil

action against ALM, seeking damages.

      “The Odometer Act requires any person transferring ownership of a motor

vehicle to give the transferee an accurate, written disclosure of the odometer


1
      Jensen was named as a defendant, but because she was never served the
complaint against her was dismissed for lack of prosecution. See Fed. R. Civ. P.
4(m).

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reading or, if the transferor knows the odometer reading is not correct,

a statement that the actual mileage is unknown.”      Suiter v. Mitchell Motor

Coach Sales, Inc. , 151 F.3d 1275, 1277–78 (10th Cir. 1998) (citing 49 U.S.C.

§ 32705(a)). “If the transferor, with intent to defraud, fails to comply with these

requirements, the transferor is subject to suit by the transferee and may be liable

for treble damages or $1500, whichever is greater.”      Id. at 1278 (citing 49 U.S.C.

§ 32710). Intent to defraud may be established through proof of a violation of the

statute made with the specific intent to deceive or a reckless disregard for

a vehicle’s actual mileage.   Haynes v. Manning , 917 F.2d 450, 452–53 (10th Cir.

1990). Liability under the Odometer Act could be based on a showing of reckless

disregard because such a showing could lead to an inference of fraudulent intent:

       [I]f a person lacks knowledge that an odometer disclosure statement
       is false only because he displays a reckless disregard for the truth, a
       fact finder can reasonably infer that the violation was committed with
       an intent to defraud a purchaser. The inference of an intent to
       defraud is no less compelling when a person lacks actual knowledge
       of a false odometer statement only by clos[ing] his eyes to the truth.

Id. at 453 (quotation omitted).

       In the present case, CDM did not present any evidence suggesting that

ALM “closed its eyes to the truth.” ALM presented evidence that it made

a thorough and detailed inspection of the car when Jensen traded it in, checking

for hidden defects, excessive wear and tear, and any other signs of high mileage.

ALM determined that the car was in very good, clean condition with little wear on

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its upholstery and dashboard; its engine had all original, factory-installed parts in

good condition; the oil and transmission fluids gave no indication of engine

trouble or need for further investigation; the clutch and brakes and other

mechanical parts showed no evidence of problems associated with a car with

higher mileage; the car showed no evidence of having been repainted or having

been in an accident; and it showed no hail damage or windshield pitting.

Although the car had unusually low mileage for a car of its age, ALM presented

testimony from its used car manager that he saw eight to ten used cars a month

with similarly low mileage relative to the vehicles’ age. Further, Jensen, a trusted

employee, had previously worked for other car dealerships and ALM’s used car

manager assumed the Explorer had been a dealership demonstration car. CDM

has presented no evidence of any complicity between ALM and Jensen, and the

evidence in the record on appeal is silent as to whether Jensen herself knew the

car’s actual mileage was in excess of 13,801.

      Thus, ALM presented evidence that it did not merely rely on Jensen’s

assertion regarding the vehicle’s mileage, but took independent, affirmative steps

to verify the accuracy of the odometer reading.        See Suiter , 151 F.3d at 1284.

ALM presented evidence that neither the circumstances of the trade-in from

Jensen nor its inspection of the vehicle gave it any reason to suspect that the

vehicle’s odometer reading was incorrect.         See id.


                                            -4-
       CDM presented no contradictory evidence in response. A party opposing

summary judgment cannot rest upon its pleadings, but “must bring forward

specific facts showing a genuine issue for trial as to those dispositive matters for

which it carries the burden of proof.”   Jenkins v. Wood , 81 F.3d 988, 990

(10th Cir. 1996). On this basis, the district court properly concluded that ALM

had met its burden of demonstrating it was entitled to judgment as a matter of

law and that CDM failed to meet its burden.

       On appeal, CDM argues that ALM should be held strictly liable because the

power of attorney signed by Jensen included ALM’s signed statement that the

mileage on the odometer disclosure statement was greater than the mileage

previously stated on the certificate of title. This argument is factually and legally

without merit. ALM presented evidence that the mileage listed on the odometer

disclosure statement—13,801 miles—was, in fact, greater than that previously

listed on the certificate of title provided by Jensen to ALM. Jensen’s certificate

of title, dated as of the date she acquired and titled the vehicle, showed the

vehicle had 7,811 miles; thus, ALM’s certification on the power of attorney was

not false. Further, the Odometer Act is not a strict liability statute. Under

49 U.S.C. § 32710, a transferor is only liable if it violates the Act’s requirements

with the intent to defraud, and there is no such evidence here.




                                          -5-
      CDM also argues that the question of whether one acted with a particular

state of mind—presently, whether ALM acted with intent to deceive—is

inherently a question of fact which may not be resolved through summary

judgment. To the contrary, summary judgment is warranted even when state of

mind is at issue, when the party opposing the motion fails to make the requisite

showing to defeat the motion for summary judgment.      Anderson v. Liberty Lobby,

Inc. , 477 U.S. 242, 256 (1986). Such is the case here. We agree with the district

court that CDM failed to provide any evidence from which a reasonable juror

could infer that ALM displayed a reckless disregard for the truth or acted with

actual intent to deceive when it transferred the vehicle.

      Accordingly, the judgment is   AFFIRMED .


                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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