Date: 09-17-2014

Case Style: Roy F. Witt v. Hudiburg Chevrolet, Inc. d/b/a Hudiburg Chevrolet

Case Number: CJ-2011-2127

Judge: Tom A. Lucas

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Don Horn

Defendant's Attorney: Bill Archibald, Richard Bruce and Stefan Wenzel

Description: Norman, Cleveland County, OK - Roy F. Witt and Cory Carbaugh sued Hudiburg Chevrolet, Inc. d/b/a Hudiburg Chevrolet on conversion theories claiming:

1) Plaintiff, Roy F. Wit, is a resident of Oklahoma County, State of Oklahoma.
2) Plaintiff, Cory Carbaugh, is a resident of Cleveland County, State of Oklahoma, and the wrongful arrest oecuned in Cleveland County, State of Oklahoma.
3) Defendant, Fludiburg Chevrolet, Inc., is a Oklahoma corporation with a place of business in Oklahoma County, State of Oklahoma.
4) On or about December 6, 2010, Roy F. Wit went to Hudiburg Chevrolet, Inc., a dealership which is located at 6000 Tinker Diagonal, Midwest City, Oklahoma, for the purpose of purchasing a new vehicle. He drove his 1998 Chevrolet Silverado 2500 truck to the dealership because the intention at that time was to trade that vehicle in on a new vehicle. He spoke to a salesman who is identified on the contracts as Jaineson C. Dreher. In those discussions he negotiated for the purchase of a 2009 C25 Full Size 2WD Extended Cab Chevrolet truck. The initial agreement was for a purchase price of the new vehicle in the amount of $25,510.00. Mr. Wit was given a $4,000.00 trade in credit for the 1998 vehicle and a contract was created by Hudiburg Chevrolet, Inc. reflecting that Mr. Wittwas to pay $21,510.00 and trade in the 1998 vehicle. Mr. Wit did not have the money with him at that time to purchase the vehicle. His purpose was to negotiate a purchase price so he could then go to the bank and retrieve the money necessary to pay for the new vehicle. He left the dealership with his 1998 vehicle intending to carry out this plan.
After returning home and giving the transaction some thought, Mr. Wit thought it would be more in his interest to keep the 1998 vehicle instead of trading it in. Mr. Wit called the salesman and asked if there was any problem with him paying the agreed price of $25,510.00 for the new vehicle without a trade in. Mr. Wit was assured by the salesman that would not be a problem.
The exact date of the following portion of the transaction is not clear. The replacement contracts created by Hudiburg Chevrolet, Inc., reflect that all these events occurred on the same day, December 6, 2010. Mr. Win recalls that it was the next day, December 7,2010, but the receipt from Tinker Federal Credit Union for the check to Hudiburg Chevrolet, Inc. is dated December 8, 2010. In any event, within a day or two of the first contact Ms. Witt returned to the dealership with a cashier’s check made payable to Fludiburg Chevrolet, Inc. for the agreed price to purchase the 2009 truck without the trade in of his 1998 Silverado 2500 truck. His wife brought him to the dealership in her car. Mr. Wit made contact with the salesman, a new contract was drafted by Hudiburg Chevrolet, Inc., Mr. Wit paid the full purchase price for the 2009 vehicle and drove that vehicle home.
On or about December 16, 2010 the 1998 Chevrolet pickup was givin to Cory Carbaugh, his grandson, and at a family Christmas gathering. Title to the vehicle was signed over from Roy F. Win to Cory Carbaugh on or about January 19, 2011. Mr. Carbaugh operated the vehicle without difficulty until August 10,2011. On August 10,2011, while returning home from work in his 1998 Chevrolet truck, Cory Carbaugh was arrested by officers of the Norman Police Department for possession of a stolen vehicle. The arresting officer had his weapon drawn, placed Mr. Carbaugh face down in the street, handcuffed him, and took him to jail. Mr. Carbaugh later was released by paying a bail bondsman to post bond. The charges have since been dismissed, but the arrest and fact that he was charged remains on Mr. Carbaugh’s record. Mr. Carbaugh missed work while in the custody of the Norman Police Department. His vehicle has not been returned by Hudiburg Chevrolet, Inc. in spite of demands for its return. He has had to rent and then purchase alternate transportation.
Information obtained after August 10, 2011, reveal Mr. Carbaugh’s vehicle was taken from the
Nonnan Police Department by Christopher Eric McBroom who identified himself as an agent of Fludiburg
Chevrolet, Inc. The title to Mr. Carbaugh’s vehicle was transferred to Hudiburg Chevrolet, Inc. on or about
March 11, 2011, without any legal authority.
Hudiburg Chevrolet, Inc., falsely claiming to be the owner of the 1998 Chevrolet vehicle, falsely claimed that vehicle had been stolen from them. All these actions were done with the intention of requiring police authorities to become Hudiburg Chevrolet, Inc.’s agents in forcibly taking the vehicle and delivering it to Hudiburg Chevrolet, Inc. These actions were done with the intention and certainty that the possessor of the vehicle would be arrested. The possessor of the vehicle was the rightful owner.
5) The contracts created by Hudiburg Chevrolet Inc. include language requiring arbitration of disputes over terms of the contract. That provision does not apply to this dispute. There is no contractual dispute, nor any dispute over the condition of vehicles or performance of any term of any contract. Upon belief, problem is that the Defendant used a power of attorney they secured for a contract which was superseded to transfer title to a vehicle they had no right to, made themselves the fiduciary of those documents, and then abused that fiduciary relationship.
6) The action of transferring title to the 1998 vehicle from Mr. Wit’s name to their’s was an intentional act. The action of reporting that vehicle stolen was an intentional act. The only foreseeable result of those acts was to secure the arrest and imprisonment of the possessor of that vehicle. The fact that Hudiburg Chevrolet, Inc. never had any legal right or claim to that vehicle cannot be defended as mere negligence. Those actions were either intentional with the malicious purpose of causing harm, or were so reckless and certain of causing harm that they should be treated as being intentional and malicious.
7) The exact mechanism by which Hudiburg Chevrolet, Inc. perpetrated its fraud on the law enforcement agencies is not known to Plaintiffs at this time. Discovery is necessary. It caimot be claimed that it was a mere accident. Hudiburg Chevrolet, Inc.’s agents recognized there was inconsistency in the documents they kept. After Mr. Wit took delivery of the 2009 vehicle and before the title documents were sent to him, he received a call from someone at Fludiburg Chevrolet, the, telling him they owed him $4000.00 and the money would be sent to him with the documents necessary to transfer title to the new vehicle. There was no explanation as to why they owed him money, and he assumed that there might have been a rebate or other such issue. The $4000.00 has never been sent with the title documents. Mr. Witt knew he had complied exactly with the agreement they reached, and gave no further thought to the mailer until August 10, 2011. There was no further contact with Mr. Witt about the transaction even though he was in the dealership many times after December, 2010, doing service work on his new truck. One phone call would have avoided the damage.
8) Compensatory Damages claimed:
a. The value of the converted vehicle;
b. The cost oftemporary replacement of the vehicle until a pennanent replacement was found;
c. The cost of hiring an attorney to deal with a false felony criminal charge;
d. The cost of posting bail for a false felony criminal charge;
e. Lost earnings while incarcerated and appearing in court for a false criminal charge;.
£ The cost of clearing Cory Carbaugh’s record of any trace of this false criminal charge;
g. Future damage to employability because the arrest records may never be completely removed; and
h. Emotional distress, mental anguish, and embarrassment.
9) Punitive damages are claimed as the actions of the Defendant were wanton, malicious, and intentional and done with the wilful and deliberate intention of depriving the rightful owner of their property.
WHEREFORE, Plaintiff prays the court to grant ajudgment against the Defendant in an amount in excess of$1 0,000.00 for compensatory damages, exemplary damages, costs of the action, and any other relief Plaintiffs’ might be determined to be entitled to.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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