         In the United States Court of Federal Claims
                                   No. 15-756C
                          (E-Filed: December 10, 2018)

                          NOT FOR PUBLICATION

                                       )
    LARRY H. MILLER                    )
    CHEVROLET                          )
    OF MURRAY, DBA for Larry H.        )
    Miller Corporation,                )
                                              Contract; Parol Evidence; Disputed
                                       )
                                              Material Facts and Legal Issues
                     Plaintiff,        )
                                              Inadequately Presented; Summary
                                       )
                                              Judgment Not Available Where
    v.                                 )
                                              Liability Is Uncertain.
                                       )
    THE UNITED STATES,                 )
                                       )
                     Defendant.        )
                                       )

Aida Neimarlija, Salt Lake City, UT, for plaintiff. Richard D. Burbridge and
Andrew J. Dymek, Salt Lake City, UT, of counsel.

Joshua A. Mandlebaum, Trial Attorney, with whom were Chad A. Readler, Acting
Assistant Attorney General, Robert E. Kirschman, Jr., Director, Allison Kidd-
Miller, Assistant Director, United States Department of Justice Civil Division,
Washington, DC, for defendant. Thomas Japhet, Office of General Counsel,
United States Department of Agriculture, Golden, CO, of counsel.

                            OPINION AND ORDER

CAMPBELL-SMITH, Judge.

        Before the court are the parties’ cross-motions for summary judgment and
their reply briefs.1 After lengthy stays of proceedings in this matter to permit

1
        The briefs before the court are plaintiff’s motion for summary judgment,
ECF No. 27, defendant’s cross-motion for summary judgment, ECF No. 44,
plaintiff’s response/reply, ECF No. 45, and defendant’s reply, ECF No. 48.
related criminal investigations to reach their conclusion, the parties request that the
court rule on their previously-briefed motions, see ECF No. 65 at 1, which do not
reflect the facts unearthed in those criminal proceedings. It is not efficient to rule
on outdated motions which do not argue from a complete and necessary
foundation of material fact.2 Oral argument was requested only if “helpful” to the
court. Id. at 2. Oral argument was not needed; the parties’ cross-motions are
denied.

I.     Background

        The primary question before the court is whether the United States
Department of Agriculture (USDA), entered into a contract with Larry H. Miller
Chevrolet of Murray, DBA for Larry H. Miller Corporation (plaintiff), to purchase
ten pick-up trucks. Both the contracting officer (CO) for USDA and the
intermediary for plaintiff, Striker Electric, have been convicted and sentenced
based on crimes that are directly related to the acquisition of these trucks by
USDA. See ECF No. 60 at 3. Thus, that transaction cannot be understood unless
the criminal behavior of the CO and Striker Electric is addressed. In the briefs
currently before the court, the criminal behavior of the CO is not addressed at all,
and the nature of the criminal activity of Striker Electric is only partially
addressed. The court cannot determine whether a contract was formed where the
facts stated by the parties ignore many of the facts and issues that are essential to
their dispute.

II.    Analysis

        The party moving for summary judgment will prevail “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Rule 56(a) of the Rules of the United States Court
of Federal Claims (RCFC). Here, the parties admit that the only possible issue
that can be decided on their summary judgment motions is the government’s
liability for breach of contract. ECF No. 65 at 1. To determine whether the
government is liable for breach of contract, the court must first determine whether
a contract was formed between USDA and plaintiff.

       This case turns largely on the question of whether USDA and plaintiff
possessed a “mutual intent to contract.” E.g., Trauma Serv. Grp. v. United States,
104 F.3d 1321, 1325 (Fed. Cir. 1997). Two disputes prevent the court from
reaching any conclusions in this regard. First, defendant contends that the court

2
        Any efficiencies realized by the parties in their reliance on previously-filed
briefs is outweighed by the inadequacy of briefs which do not present an accurate
factual background accompanied by relevant legal analysis.


                                              2
should consider parol evidence in its quest to discover intent to contract, whereas
plaintiff insists that the court ignore parol evidence and instead focus on the
documents presented to the USDA by Striker Electric and signed by the CO.
None of the parties’ extensive arguments regarding parol evidence are at all
informed by the CO’s conviction for accepting a gratuity from Striker Electric.3

       As both parties note, however, parol evidence serves a purpose when
contract documents are created in circumstances where fraudulent or sham
transactions are suspected.4 When wrongful conduct of one of the parties is
alleged, courts have been willing to look beyond the text of the document executed
by both parties. See, e.g., Union Bank v. Swenson, 707 P.2d 663, 666 (Utah 1985)
(“Parol evidence is admissible to prove that a party was induced into a contract by
fraud.”) (citation omitted). The contract documents relied upon by plaintiff were
signed in circumstances that included behavior of a criminal nature. The parties’
arguments regarding parol evidence cannot be divorced from that factual
background, and the admissibility of parol evidence cannot be decided as if such
facts did not exist. In other words, the court cannot rule on the relevance of parol
evidence here, in circumstances tainted by criminal behavior, until all of the facts
pertinent to the admissibility question have been adequately briefed by the parties.

       The second dispute that prevents the court from reaching the contract
formation issue is the question of the CO’s subjective intent to contract at the time
he signed the contract forms proffered by Striker Electric. What the CO knew,
what the CO assumed, what the CO intended, what the CO gained from putting his
signature on the documents are all questions that the parties extensively and
exhaustively debated in the briefs before the court. Nowhere, however, do these

3
       The parol evidence dispute is central to the liability question before the
court, and was extensively argued by the parties. See ECF No. 27 at 20-24
(arguing that only objective evidence found in the language of the contract
documents, not parol evidence of subjective intent, is relevant to this dispute);
ECF No. 44 at 35-36, 45, 50, 53 (relying on parol evidence to conclude that the
CO had no intent to enter into a contract with plaintiff); ECF No. 45 at 7-8, 16-20
& n.5 (arguing that no extraordinary circumstances in this transaction merit the
consideration of parol evidence); ECF No. 48 at 12-13 (arguing that parol
evidence should be considered by the court in this case).
4
       See ECF No. 44 at 35-36 (citing authorities for the use of parol evidence
where invalidating circumstances may exist); ECF No. 45 at 16-18 (citing
authorities for the proposition that extraordinary circumstances such as fraud
permit recourse to parol evidence); ECF No. 48 at 12-13 (citing authorities for the
proposition that the circumstances of contract execution may permit the
introduction of parol evidence).


                                             3
outdated briefs acknowledge the CO’s criminal conviction for accepting a gratuity
from Striker Electric. Thus, these briefs inaccurately and incompletely analyze the
CO’s actions.

       The parties now know a great deal more about the CO’s activities at the
time of alleged contract formation, but their briefs do not reflect this knowledge.5
The conclusions drawn as to the CO’s subjective intent, and the legal conclusions
drawn as to the significance of the CO’s signatures on the forms presented by
Striker Electric, are necessarily incomplete. The parties also do not adequately
address the question of whether criminal actions by an officer of the United States
can bind the United States in contract, see ECF No. 44 at 55-66 (citing cases), and
whether that question is relevant to the facts of this case.

III.   Conclusion

        In sum, the briefing before the court does not adequately address a number
of disputed material facts and issues of law, and does not permit a determination
of liability in this matter. Accordingly,

       (1)    Plaintiff’s motion for summary judgment, ECF No. 27, is DENIED;

       (2)    Defendant’s cross-motion for summary judgment, ECF No. 44, is
              DENIED; and,

       (3)    The parties shall FILE a joint status report proposing further
              proceedings in this matter on or before December 19, 2018.

       IT IS SO ORDERED.



                                          s/Patricia E. Campbell-Smith
                                          PATRICIA E. CAMPBELL-SMITH
                                          Judge




5
       The court does not believe further discovery is required. Moving forward,
the parties must found their arguments regarding contract formation upon the facts
they have disclosed to the court, and must tailor their legal analyses accordingly.


                                             4
