Cheyeann Crossman v. Denecker Chevrolet, Inc.

VERMONT SUPREME COURT Case No. 23-AP-142
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

NOVEMBER TERM, 2023

Cheyeann Crossman* v. Denecker } APPEALED FROM:
Chevrolet, Inc. et al. }
} Superior Court, Addison Unit, Civil Division
} CASE NO. 21-CV-02693
Trial Judge: David R. Fenster

In the above-entitled cause, the Clerk will enter:

Plaintiff Cheyeann Crossman appeals the trial court’s decision granting summary
judgment in favor of defendant Thomas Denecker. We affirm.

In 2021, plaintiff filed a complaint against Denecker and Denecker Chevrolet, Inc. (DCI)
alleging that, in November 2019, defendants sold her a 2010 Chevrolet Equinox displaying a
current inspection sticker. She claimed that the vehicle should not have passed inspection
because it had substantial rust on the frame and the exhaust system was malfunctioning. Plaintiff
alleged that Denecker, who was the president, sole shareholder, and general manager of DCI,
knew of the vehicle’s condition and represented that it would pass inspection, and that she relied
on his representations in deciding to buy the vehicle. Plaintiff claimed that Denecker and DCI
breached the implied warranties of merchantability and use for a particular purpose, violated the
Vermont Consumer Protection Act (VCPA), and engaged in negligent misrepresentation.

Defendants moved for summary judgment. The court granted summary judgment on the
breach-of-warranty claims against Denecker because he was not a party to the contract between
plaintiff and DCI. It likewise concluded that Denecker was entitled to judgment in his favor on
the negligent misrepresentation and VCPA claims because plaintiff did not show that Denecker
had directed, controlled, approved, or ratified the alleged misrepresentation about the condition
of the vehicle. It granted summary judgment to DCI on the breach-of-warranty claims because
plaintiff purchased the car “as is” and the purchase agreement contained an express disclaimer of
all warranties. However, it denied summary judgment on the remaining claims against DCI,
concluding that these claims turned on a disputed issue of fact, namely, the condition of the car
when plaintiff purchased it. The court granted plaintiff’s motion for entry of final judgment on
her claims against Denecker, and this appeal followed.

On appeal, plaintiff challenges the court’s award of summary judgment to Denecker on
her negligent misrepresentation and VCPA claims. Plaintiff argues that she presented sufficient
evidence from which a factfinder could reasonably infer that Denecker personally participated in
or directed the misrepresentation about the condition of the car. “We review a decision granting
summary judgment de novo, using the same standard as the trial court: summary judgment is
appropriate if the moving party shows that the material facts are not genuinely disputed and that
he or she is entitled to judgment as a matter of law.” Lawson v. Halpern-Reiss, 2019 VT 38,
¶ 21, 210 Vt. 224 (quotation omitted); V.R.C.P. 56(a). “In determining whether a genuine
dispute of material fact exists, the nonmoving party is entitled to the benefit of all reasonable
doubts and inferences.” Gross v. Turner, 2018 VT 80, ¶ 8, 208 Vt. 112 (quotation omitted).

To prove a claim of negligent misrepresentation, the plaintiff must show that the
defendant “ ‘supplie[d] false information for the guidance of others in their business
transactions.’ ” Burgess v. Lamoille Hous. P’ship, 2016 VT 31, ¶ 21, 201 Vt. 450 (quoting
Restatement (Second) of Torts § 552(1)). Similarly, a VCPA claim requires proof that the
defendant made “a representation, practice, or omission likely to mislead the consumer.”
Gregory v. Poulin Auto Sales, Inc., 2012 VT 28, ¶ 12, 191 Vt. 611 (mem.). “[A] corporate
officer has no liability merely by reason of his office.” Prive v. Vt. Asbestos Grp., 2010 VT 2,
¶ 19, 187 Vt. 280. However, a corporate officer may be held liable for official acts if the
plaintiff demonstrates “some form of participation by the officer in the tort, or at least shows that
the officer directed, controlled, approved, or ratified the decision which led to the plaintiff’s
injury.” Id. (quotation omitted).

In response to defendant’s motion for summary judgment, plaintiff submitted an affidavit
in which she asserted that in late October or early November 2019, she met with Denecker and
another DCI employee to discuss her needs for transportation. Denecker asked her what she
could afford for monthly payments and told her he would check with finance companies. He
assured her that she could get some kind of vehicle with monthly payments of $400-$450. She
subsequently received an email from DCI that offered three vehicle options with monthly
payments in that range. A DCI salesman, Patrick Rawls, indicated to her that all three cars had
been recently inspected. Plaintiff chose the Chevrolet Equinox. When she attempted to get the
car inspected almost a year later, she was told that it was so defective that it would not pass
inspection and was not safe to drive, and that it should not have passed inspection the year
before. Plaintiff argues that these facts, coupled with Denecker’s statement in his affidavit that
he oversaw the sales process at DCI, were sufficient to hold him liable.

Accepting plaintiff’s assertions as true for the purposes of summary judgment, they do
not demonstrate that Denecker made any representation about the condition of the car or the
inspection, or that he directed, controlled, approved, or ratified any such representation. At most,
they create an inference that after meeting with plaintiff, Denecker selected three potential
vehicles and then asked Rawls to complete the sale. The email outlining the three vehicle
options came from DCI, not Denecker. Rawls, not Denecker, told plaintiff that the cars had
recently passed inspection. To infer from these facts that Denecker was somehow involved in
the alleged misrepresentation about the condition of the vehicle would require the factfinder to
engage in speculation, and speculation is an insufficient basis to avoid summary judgment. See
Bernasconi v. City of Barre, 2019 VT 6, ¶ 11, 209 Vt. 419 (“[W]here the jury could only find for
the plaintiff by relying on speculation, the defendant is entitled to judgment.”); Fuller v. City of
Rutland, 122 Vt. 284, 289 (1961) (“Evidence which merely makes it possible for the fact in issue
to be as alleged, or which raises a mere conjecture, surmise or suspicion, is an insufficient
foundation for a verdict.”).

To the extent plaintiff is claiming that Denecker may be held liable regardless of his
participation because he is a “seller” under the VCPA, this claim fails because as explained

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above, plaintiff has not established that Denecker made “a representation, practice, or omission
likely to mislead the consumer.” Gregory, 2012 VT 28, ¶ 12; see 9 V.S.A. § 2451a(3) (defining
“seller” as “a person regularly and principally engaged in a business of selling goods or services
to consumers”). Plaintiff has not identified any authority to support the proposition that a seller
may be held liable for fraudulent acts or omissions not involving that seller. To the contrary,
“the consumer must demonstrate that he sustained ‘damages or injury as a result of any false or
fraudulent representations or practices’ of the ‘seller, solicitor or other violator.’ ” Greene v.
Stevens Gas Serv., 2004 VT 67, ¶ 13, 177 Vt. 90 (emphasis added) (quoting 9 V.S.A. § 2461(b)).

Because plaintiff failed to set forth facts tending to show that Denecker was personally
involved in the alleged misrepresentation that forms the basis of both her negligent
misrepresentation and VCPA claims, the trial court properly granted summary judgment in
Denecker’s favor.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

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