Fleet Truck Sales, Inc. v. Quality Companies, LLC et al

Filing 103

MEMORANDUM AND ORDER that the Motion for Summary Judgment, ECF No. 67 , filed by Defendants Celadon Group, Inc., Quality Companies, LLC, and Quality Equipment Leasing, LLC, is granted, in part, as follows: a. Plaintiff Fleet Truck Sales, Inc., is limited to seeking liquidated damages under the September purchase agreements. b. Quality Equipment Leasing, LLC, is dismissed from this action. c. Plaintiff Fleet Truck Sales, Inc.'s, claim for breach of oral contract is dismissed, with pre judice. d. Plaintiff Fleet Truck Sales, Inc., is not entitled to the equitable remedy of piercing the corporate veil. The Motion is otherwise denied. The Motion for Partial Summary Judgment, ECF No. 79 , filed by Plaintiff Fleet Truck Sales, Inc., is denied. The Motions to Strike, ECF Nos. 82 & 92 , filed by Plaintiff Fleet Truck Sales, Inc., are denied. The Motion to Exclude, ECF No. 89 , filed by Defendants is denied. Ordered by Chief Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

FLEET TRUCK SALES, INC.,
Plaintiff,

8:16CV366

vs.
CELADON GROUP, INC., QUALITY
COMPANIES, LLC, and QUALITY
EQUIPMENT LEASING, LLC,

MEMORANDUM
AND ORDER

Defendants.

This matter is before the Court on the Motion for Summary Judgment, ECF No.
67, and the Motion to Exclude, ECF No. 89, filed by Defendants Celadon Group, Inc.,
Quality Companies, LLC, and Quality Equipment Leasing, LLC (collectively,
Defendants). Also before the Court are the Motion for Partial Summary Judgment, ECF
No. 79, and Motions to Strike, ECF Nos. 82 and 92, submitted by Plaintiff Fleet Truck
Sales, Inc. (Fleet). For the reasons stated below, the Defendants’ Motion for Summary
Judgment will be granted in part; and Fleet’s Motion for Summary Judgment, the Motion
to Exclude, and Motions to Strike all will be denied.
BACKGROUND
Unless otherwise indicated, the following facts are those stated in the Parties’
briefs, supported by pinpoint citations to admissible evidence in the record, in
compliance with NECivR 56.11 and Federal Rule of Civil Procedure 56.

1

See NECivR 56.1(b)(1):
The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. The response should address
each numbered paragraph in the movant’s statement and, in the case of any
disagreement, contain pinpoint references to affidavits, pleadings, discovery responses,

Fleet entered into two purchase agreements with Quality Equipment Sales for the
sale of commercial trucks, one on September 3, 2015, and another on September 9,
2015.

Under the first purchase agreement, Fleet agreed to sell Quality Equipment

Sales 163 Volvo commercial trucks for $9,454,000 with $81,500 of the purchase price
due as a cash deposit. Under the second purchase agreement, Fleet agreed to sell
Quality Equipment Sales 169 Peterbilt commercial trucks for $10,309,000 with $84,500
of the purchase price due as a cash deposit. Fleet never received the purchase price
on either contract and contends it did not receive either of the respective cash deposits.
Quality Equipment Sales was not, itself, a business entity but the fictitious or
assumed name used by other business entities. Defendant Quality Equipment Leasing,
LLC, (QEL) was registered2 to do business under the assumed name of Quality
Equipment Sales from January 30, 2008, to November 15, 2011. ECF No. 86-1, Page
ID 641, 648-49.

Defendant Quality Companies, LLC, (Quality Companies) was

registered3 to do business under the assumed name of Quality Equipment Sales from
November 23, 2011, to September 28, 2015. ECF No. 86-1, Page ID 635-38. On
September 21, 2015, QEL reassumed the name Quality Equipment Sales and currently
does business under that name. There is no evidence that Defendant Celadon Group,

deposition testimony (by page and line), or other materials upon which the opposing party
relies. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.
2

QEL was originally a Delaware corporation and converted to a limited liability company in 2008.
It was registered as a foreign limited liability company in the state of Indiana and its sole member is
Quality Companies. ECF No. 14.
3

Quality Companies is registered as a domestic limited liability company in the state of Indiana
and is the sole member of QEL. Celadon Trucking Services, Inc., is the sole member of Quality
Companies. ECF No. 15.

2

Inc., has ever registered4 to do business under the Quality Equipment Sales name.
Thus, at the time the purchase agreements were entered into, Quality Companies was
registered to do business under the Quality Equipment Sales name.
At relevant times, however, the Celadon website, Celadontrucking.com, included
a webpage titled “Equipment Sales” that stated “Quality Equipment Sales was created
based on one concept: Quality.” ECF No. 81. The page advertised and offered preowned equipment sales services, including the selling and leasing of pre-owned tractors
and trailers. Id. Quality Companies’ vice president, Danny Williams, negotiated and
authorized the purchase agreements, and although he was not an officer of Celadon
Group, his email address was [e-mail]. The signature block
associated with Williams’s email address listed his position as vice president of Quality
Companies but also listed the contact information for Celadon Group below. Williams’s
LinkedIn page also stated his position with Quality Companies, but simultaneously
referenced Celadon Group.
Dennis Kosmicki was the Fleet sales representative who solicited Williams to
purchase the trucks.

Kosmicki had worked with Eric Meek, a Celadon Group

representative, around 2006 or 2007 to consummate a purchase agreement for trucks
and, for that particular deal, Meek instructed Kosmicki to title the trucks in the name of
“Quality Equipment.” Kosmicki Depo., ECF No. 81-4, Page ID 407. In 2015, Kosmicki
emailed Meek, who was then the Chief Operating Officer for Celadon Group, to solicit
interest in another equipment purchase, but Meek referred him to Williams and

4

Celadon Group, Inc., is a Delaware corporation registered as a foreign corporation in the state
of Indiana and it is a parent corporation to Celadon Trucking Services, Inc. ECF No. 15.

3

explained Williams was the new individual in charge of equipment purchases. Id. at
408; ECF No. 81-11, Page ID 577. Specifically, Meek responded “I will have Danny
[Williams] circle back with you if we need any stock.” ECF No. 81-11, Page ID 577
(emphasis added).

Meek also told Kosmicki that “[Williams] is handling all of our

purchasing for used/new currently.” Id. at 576 (emphasis added). Neither Meek nor
Williams explained that Williams was an officer of Quality Companies and not Celadon
Group. Kosmicki Depo., ECF No. 81-4, Page ID 408.
Kosmicki and Williams proceeded to enter into two purchase agreements
between Fleet and Quality Equipment Sales, one in March 2015 and one in May 2015.
Payment was made on these purchase orders by Celadon Trucking Services, Inc. ECF
Nos. 81-20 & 81-6, Page ID 442. Thereafter, both Kosmicki and Williams coordinated
the finalization of the two September purchase agreements at issue in this litigation.
Although Kosmicki worked with Williams directly to finalize the purchase agreements,
Kosmicki did not have the authority to enter into such contracts for Fleet. He had to get
approval from his immediate supervisor, Larry Lamer. Kosmicki Depo., ECF No. 81-4,
Page ID 407.
Quality Companies ultimately was unable to secure financing for the September
3 and September 9 purchase agreements, but for the remainder of 2015 Williams
continued to assure Fleet that both purchase agreements would be honored. ECF No.
81-13; ECF No. 81-18; ECF No. 81-31; ECF No. 81-33.

On January 13, 2016,

however, Williams sent Kosmicki an email explaining that Quality Companies had not
resolved its financing problems and recommending that Fleet sell the trucks subject to
the September purchase orders to other buyers. ECF No. 81-19. As a result, Fleet
4

began making efforts to sell the trucks to other potential buyers and initiated this action
for breach of contract. Both parties have moved for summary judgment on multiple
issues.
STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods
Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)).
“Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty.
of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for
summary judgment, the Court will view “the record in the light most favorable to the
nonmoving party . . . drawing all reasonable inferences in that party’s favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d
920, 923–24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof
at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to
be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the
mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th
Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving
party need not produce evidence showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting
Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged
by ‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s
5

case.” St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d 587, 596 (8th Cir. 2001)
(quoting Celotex, 477 U.S. at 325).
In response to the moving party’s showing, the nonmoving party’s burden is to
produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM
Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do
more than simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine issue for
trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643
F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual
dispute” between the parties in order to overcome summary judgment.

Dick v.

Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom
Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at
1042). Otherwise, where the Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party,” there is no “genuine issue of
material fact” for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076
(quoting Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).
DISCUSSION
I. Liquidated Damages

6

The Parties agree that the primary issue is whether Fleet’s damages are, as a
matter of law, limited by the liquidated damages clause in each of the September
purchase agreements. Fleet argues the purchase agreements give it the option to
pursue actual damages or to enforce the liquidated damages clause. Defendants argue
Fleet’s only option with respect to damages is enforcement of the liquidated damages
clause. This issue is one of contract interpretation.5
“The interpretation of a contract and whether the contract is ambiguous are
questions of law.” Timberlake v. Douglas Cty., 865 N.W.2d 788, 793 (Neb. 2015).
Thus, “[i]n interpreting a contract, a court must first determine, as a matter of law,
whether the contract is ambiguous.” Facilities Cost Mgmt. Grp., LLC v. Otoe Cty. Sch.
Dist. 66-0111, 868 N.W.2d 67, 74 (Neb. 2015). “A contract is ambiguous when a word,
phrase, or provision in the contract has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings,” and “[t]he meaning of an ambiguous contract is
generally a question of fact.” Id. at 74-75. “A contract written in clear and unambiguous
language is not subject to interpretation or construction and must be enforced according
to its terms.” Kluver v. Deaver, 714 N.W.2d 1, 5 (Neb. 2006). A contract must also be
read “as a whole, and if possible, effect must be given to every part of the contract.” Id.
The purchase agreements are, in all relevant respects, identical. Each is a two
page document with a “NOTICES TO PURCHASER” section at the bottom of the first

5

Defendants do not argue that it is impermissible under Nebraska law for a contract to provide a
non-breaching party the option to pursue either actual or liquidated damages. Defendants argue that the
purchase agreements at issue unambiguously restrict Fleet to pursuing liquidated damages. See, e.g.,
Hahn v. Int’l Mgmt. Servs., Inc., 298 N.W.2d 140, 142 (Neb. 1980) (“The liquidated damages provision
was optional with the seller and the record shows the seller sought the actual damages resulting from the
breach instead of liquidated damages.”).

7

page and a “Purchaser’s Certification & Terms of Sales” section that is the entirety of
the second page. ECF No. 81-10, Page ID 570-73. The liquidated damages provision
is found in the second paragraph on the second page of the Terms of Sales section and
states:
The parties agree that it would be impractical and extremely difficult to
determine the actual damages in the event of a breach by either party.
Thus, the parties agree that liquidated damages in an amount equal to the
Cash Deposit shall be paid by either party who breaches this contract.
The parties agree that this amount is a reasonable estimate of any actual
damages. Purchaser understands and agrees that in the event Purchaser
breaches this Agreement, Seller shall retain the Cash Deposit as
liquidated damages.
Id. The liquidated damages provision is preceded by the following statement in the
Notices to Purchaser section on the first page: “PURCHASER’S CASH DEPOSIT MAY
BE

RETAINED

BY

SELLER

AS

LIQUIDATED

DAMAGES

PURSUANT

TO

PARAGRAPH 2 ON PAGE 2.” Id. Reading the purchase agreement contracts as a
whole, the Court finds they are unambiguous with respect to liquidated damages. See
Boyles v. Hausmann, 517 N.W.2d 610, 615 (Neb. 1994) (“[T]he fact that the parties
have suggested opposing meanings of the disputed instrument does not necessarily
compel the conclusion that the instrument is ambiguous.”).
Fleet suggests that use of the word “may” in the Notices to Purchaser section
means that Fleet may, in its discretion, keep the cash deposit as liquidated damages, or
may pursue an action for actual damages. See Childers v. Conservative Sav. & Loan
Ass’n, 429 N.W.2d 325, 327-28 (Neb. 1988) (finding that the use of the word “may” in
the contract at issue was “permissive or discretionary” language, not “mandatory”);
Siefford v. Hous. Auth. of City of Humboldt, 223 N.W.2d 816, 823 (Neb. 1974)

8

(explaining the word “may” indicates “permissive, and not mandatory,” language);
accord Bahnmaier v. N. Utah Healthcare Corp., 402 P.3d 796, 800 (Utah Ct. App. 2017)
(quoting Holmes Dev., LLC v. Cook, 48 P.3d 895, 902-03 (Utah 2002) (“The plain,
ordinary, and accepted meaning of the word ‘may’ is permissive or discretionary,
generally indicating that an individual is either permitted or has a possibility to do
something”) (internal quotations omitted).
While the Court agrees that the word “may” implies permissive or discretionary
action, Fleet’s suggested interpretation is inconsistent with a plain reading of the
September purchase agreements as a whole. If either party breaches the September
purchase agreements, that party “shall” pay the non-breaching party “liquidated
damages in an amount equal to the Cash Deposit.” Under the agreements, Fleet “may”
retain the Purchaser’s cash deposits as liquidated damages in the event of a breach by
Purchaser, or Fleet may give the cash deposits back, in whole or part. That is Fleet’s
choice, and the Purchaser acknowledges and agrees it has no say in the matter.
Further, based on the quoted language above, Fleet’s suggestion that the word “retain”
requires payment of the cash deposits as a condition precedent to enforcement of the
liquidated damages clause is also inconsistent with a plain reading of the September
purchase agreements. The language of the liquidated damages provision is mandatory
and unambiguous, and Fleet has no right to pursue a claim for actual damages under
the September purchase agreements.
II. Fleet’s Claim for Breach of an Oral Contract
Fleet argues that Defendants also breached an oral contract with Fleet.
According to Fleet, “the oral agreement between the parties relates to Fleet holding
9

trucks for Defendants for over four months while the used truck market was declining.”
Pl.’s Br. Mot. Summ. J., ECF No. 80, Page ID 349.

Fleet identifies Williams’s

assurances that payment on the September purchase agreements was forthcoming as
a promise giving rise to an independent oral contract. Id. at 349-50. This claim must be
dismissed because the alleged oral contract lacked consideration and no oral contract
was formed, as a matter of law.
“[C]onsideration is an essential element to the validity of a contract.” Irwin v.
West Gate Bank, 848 N.W.2d 605, 610 (Neb. 2014) (quoting Middagh v. Stanal Sound
Ltd., 382 N.W.2d 303, 307 (Neb. 1986)). “[T]he question of consideration” depends on
“whether, as a matter of law, the promisee suffered a detriment or did anything which he
was not otherwise required to do . . . . Kissinger v. Genetic Evaluation Ctr., Inc., 618
N.W.2d 429, 436 (Neb. 2000). Consideration is lacking where the “promisor is receiving
a benefit . . . that he is already entitled to receive, and the promisee is parting with what
she . . . is already required to part with.” Id.
Here, Fleet’s promise to refrain from selling the trucks that were subject to the
September purchase orders and Williams’s reassurances that payment was forthcoming
was the same consideration supporting the September purchase agreement contracts.
Under the September purchase agreements, Fleet already had an obligation to reserve
the trucks and Quality Equipment Sales already had an obligation to pay for them.
Thus, Fleet’s claimed oral contract is not supported by any legal detriment by either
party that did not already exist under the September purchase agreements.
Fleet contends that its forbearance from reselling the trucks subject to the
purchase agreements was sufficient consideration to support an independent oral
10

contract. However, the purchase agreements did not provide a time for performance of
the payment obligations and the evidence shows that Fleet treated the purchase
agreement contracts as executory until January 13, 2016, when Williams confirmed the
payments would not be made. Goff Depo., ECF No. 522-23. Thus, Fleet’s claim for
breach of an oral contract will be dismissed.
III. Parties to the September Purchase Agreements
The Parties agree Quality Companies was a party to the September purchase
agreement contracts.

Fleet, however, contends there is a factual dispute about

whether, at the time the September purchase agreements were entered into, QEL, and
Celadon Group were also doing business under the Quality Equipment Sales name,
making each of them additional parties to the contracts. Alternatively, Fleet contends
that QEL and Celadon Group were made parties to the September purchase
agreements because Williams was a common agent of Defendants with apparent
authority to enter into the contracts on each of their behalves, collectively.
In Nebraska, a business entity that does business under another, assumed or
fictitious, name is liable for the contractual obligations it incurs under that name. Duval
v. Midwest Auto City, Inc., 425 F. Supp. 1381, 1387 (D. Neb. 1977). There is no
evidence that QEL was using the Quality Equipment Sales name on September 3, or
September 9, 2015.6 As to Celadon Group, it has never registered to do business as
Quality Equipment Sales, but Fleet relies heavily on the fact that one of
Celadontrucking.com’s internal webpages stated “Quality Equipment Sales was created

6

Fleet’s argument that QEL and Quality Companies were indistinguishable business entities is
more appropriately addressed under Fleet’s alter ego, veil-piercing theory of liability discussed below.

11

based on one concept: Quality.” Pl.’s Br. Mot. Summ. J., ECF No. 80, Page ID 341
(“Celadon’s webpage establishes that it was doing business as Quality Equipment
Sales . . . .”); ECF No. 81.

Fleet also relies on its assertion that Celadon Group

instructed Fleet to use the Quality Equipment Sales name on a purchase agreement
several years ago; however, the evidence shows Fleet was not instructed to do so.
Kosmicki Depo., ECF No. 81-4, Page ID 407 (stating he was “advised to title the
equipment in the name of Quality Equipment,” not Quality Equipment Sales). Thus, the
only evidence supporting Fleet’s contention that Celadon Group held itself out as doing
business under the Quality Equipment Sales name is the above statement on a
Celadontrucking.com webpage and there is no evidence that the website was exclusive
to Celadon Group.7 No rational trier of fact could find, based on this evidence, that
Celadon Group, specifically, was holding itself out and doing business as Quality
Equipment Sales.8
An agency relationship arises where “the principal ‘manifests assent’ to the agent
that the agent will ‘act on the principal’s behalf and subject to the principal’s control[,]’
and the agent “consents so to act.” RM Campbell Indus., Inc. v. Midwest Renewable
Energy, LLC, 886 N.W.2d 240, 251 (Neb. 2016) (quoting Koricic v. Beverly Enters.—
Neb., Inc., 773 N.W.2d 145, 150 (Neb. 2009). The relationship “may be implied from
the words and conduct of the parties and the circumstances of the case evidencing an

7

There is evidence that other associated business entities had “Celadon” in their name, like
Celadon Trucking Services, Inc. ECF No. 15.
8

The Court also notes that the Parties’ course of dealing contradicts Fleet’s argument that QEL
and Celadon Group, Inc., were parties to the September purchase agreements. The March and May
purchase agreements were paid for by Celadon Trucking Services, Inc., which has not been named as a
defendant in this case. ECF No. 81-20.

12

intention to create the relationship irrespective of the words or terminology used by the
parties to characterize or describe their relationship.” RM Campbell Indus., 886 N.W.2d
at 251-52.
“Apparent authority is authority that is conferred when the principal affirmatively,
intentionally, or by lack of ordinary care causes third persons to act upon an actor’s
apparent authority.” Kohout v. Bennett Constr., 894 N.W.2d 821, 828 (Neb. 2017). An
agent’s “power to affect the principal’s legal relationships with third parties[,]” through
apparent authority, “arises from, and is limited to, the principal’s manifestations to those
third parties about the relationships.” Id. Thus, “apparent authority for which a principal
may be liable exists only when the third party’s belief is traceable to the principal’s
manifestation and cannot be established by the actor’s acts, declarations, or conduct.”
Id. The third party’s belief that an agent is apparently acting with proper authority must
also be reasonable. Koricic, 773 N.W.2d at 152. Whether an agency relationship exists
and whether an agent had the apparent authority to act on the principal’s behalf are
factual questions. Id. at 149, 152.
Although Fleet argues Williams was a common agent for Defendants with
apparent authority to enter into purchase agreements on each of their behalves, there is
no evidence that Fleet actually believed it was contracting with, and Williams was acting
for, all three business entities simultaneously. See Kohout, 894 N.W. 2d at 829 (finding
third-party did not actually believe he had contracted with the principal); see also 12
Williston on Contracts § 35:21 (4th ed.) (“A party that deals with an agent must prove . .
. that it believed the agent was acting within the scope of its authority.”). In fact, the
language of the September purchase agreements suggests otherwise. Paragraph 7 of
13

the Terms of Sales section in each purchase agreement affirmatively states Williams
had the authority to act on behalf of one entity, Quality Equipment Sales. Even if Fleet
did actually believe Williams was acting with apparent authority to make Defendants
parties to the September purchase agreements, collectively, no rational trier of fact
could find that such a belief was reasonable. Thus, Fleet’s contention that Williams was
a common agent acting with apparent authority for all three Defendants, collectively, is
not supported by the language of the purchase agreements or any other evidence. 9
However, based on Kosmicki’s email correspondence with Meek, the Chief
Operating Officer for Celadon Group, ECF No. 81-11, Page ID 576-77, there is
evidence upon which a rational trier of fact could find that Fleet reasonably believed
Williams had the authority to enter into the September purchase agreements on
Celadon Group’s behalf. When Kosmicki solicited Meek’s interest in purchasing trucks,
Meek referred him to Williams stating Williams “is handling all of our purchasing for
used/new currently.” Id. at 576 (emphasis added). Although the September purchase
agreements state Williams had the authority to contract for Quality Equipment Sales,
this evidence raises a factual question as to whether Fleet reasonably believed Williams
had the authority to, and was actually acting on behalf of, Celadon Group.10 With

9

The Court notes there is no dispute that Williams had the actual authority to enter into the
September purchase agreements for Quality Companies as its vice president.
10

The other evidence Fleet relies on—Williams’s email domain ([e-mail])
and signature block, Williams’s LinkedIn profile, and Celadontrucking.com’s senior management list—do
not support a finding of apparent authority. Email address domains and email signature blocks are not
sufficient to support a finding of apparent authority, on their own. Airline Support, Inc. v. ASM Capital II,
L.P., 279 P.3d 599, 608 (Alaska 2012) (citing CSX Transp., Inc. v. Recovery Express, Inc., 415 F. Supp.
2d 6 (D. Mass. 2006) (email domain); Lynn v. Romar Marina Club, LLC, Civil Action No. 07-0173-KD-C,
2009 WL 4667387, at *21 (S.D. Ala. Dec. 1, 2009) (email signature block). Williams’s personal LinkedIn
profile does not support a finding of apparent authority because it is evidence of Williams’s own

14

respect to QEL, Fleet has not identified a manifestation, traceable to QEL, that
suggested Williams had the authority to contract on QEL’s behalf.
The Court will grant Defendants’ Motion for Summary Judgment, in part, and
dismiss QEL from this action. Celadon Group will not be dismissed, however, because
there is a question of fact as to whether Williams was acting with the apparent authority
to make Celadon Group a party to the September purchase agreements.
IV. Alter Ego Theory of Liability
Fleet also seeks to hold QEL and Celadon Group liable for any damages it may
be entitled to receive based on an alter ego theory of liability.11
“State law is viewed to determine whether and how to pierce the corporate veil.”
Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 649 (8th Cir. 2003). The Nebraska
Supreme Court has explained that “in equity, the corporate entity may be disregarded
and held to be the mere alter ego of a shareholder or shareholders in various
circumstances where necessary to prevent fraud or other injustice.”

Medlock v.

Medlock, 642 N.W.2d 113, 124 (Neb. 2002). Similarly, a limited liability company’s
identity may be disregarded and the members held liable for its debts “only where the
company has been used to commit fraud, violate a legal duty, or perpetrate a dishonest
representations, not of a manifestation from Celadon Group, Inc. See Kohout, 894 N.W.2d at 828
(apparent authority must be based on manifestations from the principal, not the declarations of the
purported agent). Nor is the senior management list on Celadontrucking.com, which lists Williams as the
vice president of Quality Companies, LLC, evidence of apparent authority because the list is from October
2016, over a year after the September purchase agreements were signed. 12 Williston on Contracts §
35:21 (4th ed.) (a third party cannot support its claim of apparent authority with “later-discovered facts”);
Wischnowski Decl., ECF No. 81-2, Page ID 361. There is also no evidence that Celadon Group, Inc.,
managed or controlled Williams during the negotiation and finalization of the purchase agreement
contracts.
11

“[P]iercing the corporate veil under an alter ego theory is best thought of as a remedy to
enforce a substantive right, and not as an independent cause of action.” Tamko Roofing Prods., Inc. v.
Smith Eng’g Co., 450 F.3d 822, 826 n.2 (8th Cir. 2006).

15

or unjust act in contravention of the rights of another.”

Thomas & Thomas Court

Reporters, L.L.C. v. Switzer, 810 N.W.2d 677, 686 (Neb. 2012).

Thus, neither a

corporation’s nor a limited liability company’s identity will be disregarded unless the
plaintiff demonstrates such equitable action from the court is necessary to prevent a
fraud or injustice to the plaintiff. Id.
With respect to QEL, Fleet has failed to demonstrate that holding QEL to be the
alter ego of Quality Companies is necessary to prevent any particular fraud or injustice
to Fleet. Fleet has also failed to provide evidence that QEL “was under the actual
control” of Quality Companies. Christian v. Smith, 759 N.W.2d 447, 462 (Neb. 2008).
Although there is evidence that Quality Companies and QEL provided similar services
and shared officers, this evidence is insufficient to justify the equitable remedy of
disregarding Quality Companies’ identity. See Global Credit Servs. v. AMISUB, 508
N.W.2d 836, 842 (Neb. 1993) (explaining “a plaintiff must show more than the mere
sharing of services” and officers).
It is unnecessary at this time to address the merits of Fleet’s arguments
regarding Celadon Group’s corporate veil, because Celadon Group may be directly
liable for breach of the September purchase agreement contracts based on Fleet’s
theory of apparent authority.

Nevertheless, Fleet has not identified any fraud or

injustice that would result unless the Court finds Quality Companies to be the alter ego
of Celadon Group. Nor has Fleet provided any evidence that Celadon Group actually
controlled Quality Companies. Christian, 759 N.W. 2d at 462. The Court will, therefore,
grant summary judgment in favor of Defendants on Fleet’s alter ego, veil-piercing theory
of liability.
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V. Evidentiary Motions
A. Fleet’s Motions to Strike
Fleet’s first Motion to Strike, ECF No. 82, asks the Court to strike two statements
from Williams’s affidavit that assert “Quality [Companies] and Fleet fully performed” the
March and May purchase orders because these statements are impermissible legal
conclusions. Williams Aff., ECF No. 68-2, Page ID 184. Its second Motion to Strike,
ECF No. 92, asks the Court to strike Dennis Elschide’s affidavit, ECF No. 86-1, because
Defendants failed to disclose him as a witness under Fed. R. Civ. P. 26(a), and because
his statements lack foundation.
The Court will deny Fleet’s Motions to Strike. Williams’s statements were not
material to deciding the Parties’ summary judgment motions and Defendants’ failure to
disclose Elschide as a witness under Rule 26(a) was harmless. See Fed. R. Civ. P.
37(c)(1); Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). Elschide’s affidavit
lays foundation for the Indiana Secretary of State’s records showing each Defendants’
state of organization and official registration of the Quality Equipment Sales name,
which are all public records maintained on the Indiana Secretary of State’s website. As
such, the information in the affidavit was readily available to Fleet regardless of
Defendants’ failure to disclose Elschide as a witness. The Motion to Strike Elschide as
a witness, however, is subject to reassertion if Defendants seek to procure testimony at
trial regarding matters beyond those included in his affidavit.
B. Quality Companies’ Motion to Exclude
The Objection and Motion to Exclude, ECF No. 89, will be denied for failure to
comply with the Court’s local rules. See NECivR 7.1(a)(1) & (c). The Motion was
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submitted without an accompanying brief, and although Defendants submitted a reply
brief to Fleet’s response, the reply was submitted out of time.
CONCLUSION
The Parties’ Motions for Summary Judgment will each be granted, in part. Fleet
is limited to seeking liquidated damages under the September purchase agreements,
and may not recover actual damages in excess of the liquidated damages agreed upon
in the September purchase agreements. Fleet’s claim for breach of an oral contract will
be dismissed.
Celadon Group will not be dismissed from this action, because there is a factual
question as to whether Fleet reasonably believed Williams was acting with the apparent
authority to make Celadon Group a party to the September purchase agreements.
QEL, however, will be dismissed from this action. The Parties’ evidentiary motions will
be denied.
Accordingly,
IT IS ORDERED:
1.

The Motion for Summary Judgment, ECF No. 67, filed by Defendants
Celadon Group, Inc., Quality Companies, LLC, and Quality Equipment
Leasing, LLC, is granted, in part, as follows:
a.

Plaintiff Fleet Truck Sales, Inc., is limited to seeking liquidated
damages under the September purchase agreements;

b.

Quality Equipment Leasing, LLC, is dismissed from this action;

c.

Plaintiff Fleet Truck Sales, Inc.’s, claim for breach of oral contract is
dismissed, with prejudice;

d.

Plaintiff Fleet Truck Sales, Inc., is not entitled to the equitable
remedy of piercing the corporate veil;

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The Motion is otherwise denied;
2.

The Motion for Partial Summary Judgment, ECF No. 79, filed by Plaintiff
Fleet Truck Sales, Inc., is denied;

3.

The Motions to Strike, ECF Nos. 82 & 92, filed by Plaintiff Fleet Truck
Sales, Inc., are denied; and

4.

The Motion to Exclude, ECF No. 89, filed by Defendants is denied.

Dated this 3rd day of January, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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