375+ # 0384

That is the responsible course of action. Bonhams told Gardner and Swater of the inevitable damage that would come from cancelling the auction. They buckled under the pressure IMHO.

Bonhams gave assurances that it turns out they could not legitimately or reasonably give.

That is what Swaters said but then Bonhams played the "ruined car valuation" card and she buckled under the pressure. Lawson and I were NOT told about Zanotti until days after the auction -- they ALL kept that secret from us because they knew we would say, enough, ENOUGH, now do the right thing and cancel the auction.

IMHO, this is what the Judge will say:

UK Judge: Mr. Bonhams, what damage to the car's value would there be had you followed Mr. Ford's instruction of Sept. 24, 2014?
Mr. Bonhams: Well . . .Juuuudge . . . .none.
UK Judge: So let me get this straight, you place a car in an auction which you know has troubled ownership and authority issues, and then you complain about the damage from calling off the unauthorized auction? Is not that like the kid who kills both his parents and then complains he is an orphan? In essence, you caused the situation to expose these owners to avoidable litigation and avoidable valuation issues, correct?
Mr. Bonhams: Well.....yes.

All IMHO!

And about Markelson, there was this exchange at my deposition, with Gardner's attorney asking the questions. I still ROTFLMAO every time I read it, especially the question at line 6.


Joe


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even OJ questions the veracity of the responses attributed to the man in legal proceedings, rather suggesting the responses could have been made by a proxy... this thread has been spoofed several times over... is there something wrong disclosing something as being genuine... mollycoddling can be a form of deception

 

Just an observation, and pointer for interested parties.

The decsion to register and host ferrarichat.co in the UK, makes everything on that site subject to UK law, including the new defamation laws that took effect at the beginning of 2014...

The use of a false address , say a Hotel on the IOW to register the domain won't help either, as there is a payment trail left by the use of a credit card.

M

 

Hi Allen,

Do you recall typing, and I quote:

"This is the 375 Plus that Jim Kimberly bought and raced after it was used in the Mille and other events in Euro. It's owned now by a Ohio nurse who got it from her father . It's a long story - but a good one ."


M

 

Alan did visit Maranello with CG back when they were paid up members of the OC. Allan has posted as both Alan Markelson and Old Racer and his posts have eerily echoed CG's. When reviewing the posts AM has made and those around them they all seemed to have been written by the same person, with the same use of words and exactly the same knowledge of key facts that only CG could have known. That's what Cheesey may have been referring to.

Alan will no doubt postulate that he is not CG, nor posting on CG's behalf, and never was but if he slams me for even suggesting such a thing then we will all know that he probably is not Allan Markelson and instead is Max Vito/ Mbzgurl/ all the others.........

Hell, he might even accuse me of being a dinky car collector.

 

And that's a lot worse than what we Poms usually accuse Kiwi's of

 

You aren't another winging Pom that likes warm beer are you LOL.....

 

Allen,

If that is really you, please, do you give me your permission to post some of your emails for all to see? It will save me time on redacting as with your permission I can post the whole email and then only redact your email address.

Joe

 

One way to answer these questions -- as well as several other things posted by others -- is to start with the difference between objective, real-world truth, and the allegations of a civil Complaint. The basic architecture of civil law is that a claimant starts the process with a written Complaint (or, it would seem, a "writ" if you're in the UK). The Complaint consists of allegations of ultimate facts sufficient to state a legally recognized claim for relief from the defendant. The defendant then files an Answer, admitting the allegations of the Complaint that the defendant does not intend to dispute, and denying all the rest. The defendant can also file a Crossclaim, naming the plaintiff, and also bringing in any non-party as a cross-defendant.

At the initiation of the action, the allegations of the Complaint or Crossclaim do not need to have any basis in fact. As long as the complainant's allegations include all the elements necessary to state a cause of action, the allegations live on until one of three things happens: (1) the parties reach a settlement and release each other from all claims; (2) a defendant wins a motion for summary judgment; or (3) the case goes to trial and a verdict, and judgment is entered.

Only routes (2) and (3) -- summary judgment and trial -- require a showing that the parties' allegations and denials have real-world evidence to back them up. Under route (1) -- settlement -- each party does of course weigh real-world truth in the balance, in deciding whether to settle, and in deciding the terms of settlement. (It is also the case that a pleader is required to have a good faith belief in the truth of his or her allegations, or at least that future investigations (aka discovery) will produce evidence in support of his or her allegations.) But the real-world truth of the pleading allegations is just one of several factors to be weighed in the balance, when deciding whether to settle. Also included are the dollar amounts demanded and offered in settlement, the costs of litigation -- including the substantial out-of-pocket expense of document review and deposition discovery -- and the uncertainty of how a jury will resolve the disputed issues of fact.

But overall, when they choose to go the settlement route, the settling parties themselves create a private version of reality. This reality may or may not correspond to objective, real-world truth. In any event there is no requirement that it do so.

You can see where I'm going with this. In the Hamilton County Ohio case of Swaters v Lawson and Ford, each side had plead a version of the truth that was disputed by the other side. Christopher Gardner -- although not then a party to the lawsuit -- was also known to have his own version of the truth. The Lawson and Ford version was that Karl Kleve's chassis and body panels had been stolen, and that Karl had never conveyed the ownership of these items to anyone. The Swaters version was that Jacques Swaters had paid Karl for the stolen items and that Karl had transferred ownership to Jacques. The Swaters version also held that Jacques had paid Karl for wheels and tires and other items that had not been stolen from Karl, and that Karl had transferred ownership of these items to Jacques as well. Chris Gardner's version, as best I can tell, is that he had paid Kristi Lawson for whatever ownership interest Karl owned at his death, and that Kristi and Joe Ford therefore own nothing.

As of the March 2013 execution of the Heads of Agreement, none of these versions of real-world truth had gone through the summary judgment or trial route. Rather, each version remained in dispute. In this thread we have seen a lot of breast beating regarding which version correctly states the real-world truth of the matter. But it remains the case, as a matter of civil law, that no party's version of the truth has ever been found to be superior to that of any other party.

It also remains the case that the four parties to the Heads of Agreement agreed, essentially, to make the real-world truth of their claims irrelevant and instead to create their own private truth. That truth was, that Bonhams would collect the running Ferrari, the spare engine, and any papers and other things in Florence Swaters's possession; that Bonhams would collect any wheels, tires, papers, and other things in Kristi's possession; and that Bonhams would market and sell at auction the complete collection of car, parts, and papers. The parties agreed that Florence ("the BC") would receive 50% of the proceeds, and and that Kristi, Joe Ford, and Christopher Gardner as a group ("the OC") would receive 50% of the proceeds.

Upon the distribution by Bonhams of the proceeds of sale, Florence, Kristi, and Ford would "promptly enter an agreement discontinuing all action in Ohio." The parties also agreed that "All clams and counterclaims between BC and OC whether already asserted or not, are hereby waived and permanently extinguished on distribution of the funds from the sale."

The HoA is silent as to the division of the proceeds between Kristi, Ford and Gardner. But it is also silent as to any of the four parties' claims to ownership of any of the items to be included in the auction.

As far as how to memorialize in writing the transfer of ownership to the Buyer at auction, the parties delegated all authority to Bonhams to decide this issue. Apparently with racing cars it is typical to use a private bill of sale to memorialize transfer of ownership from one party to another. (I expect that Jim Glickenhouse knows as much about this as anyone on the planet.) Again, there has been a good deal of breast beating in this thread about fraudulent titles, and about the power to transfer ownership of stolen property. In a vacuum these statements may or may not have meaning. But in the context of the Swaters v. Lawson and Ford litigation, as modified by the terms of settlement to which the parties agreed in the HoA, it just doesn't matter. Rather, the parties agreed in the HoA to appoint Bonhams as the sole arbiter regarding the memorialization of the transfer of ownership from Florence, Kristi, Ford and Gardner to the Buyer. Specifically, they agreed that they would deliver to Bonhams all "registration documents, USA titles, Bill of Sales, and other conveyance documents they possess," and that Bonhams would review these documents and that Bonhams would unilaterally determine "the validity of which documents will be used in the conveyance to a new owner procured by Bonham’s for this Ferrari."

This is a very important provision of the HoA, and one which does not seem to be attracting much attention, either in this thread or in any of the written materials that we've seen thus far. I'll say it again: when parties agree to settle their claims for relief -- when they agree to waive and release all such claims, and to waive and release the various competing versions of reality on which their claims depend -- the real-world truth of those allegations and denials ceases to have any importance. Going forward, only the reality as framed by the parties in their settlement has any force.

This is particularly the case where, as here, the Ohio courts have repeatedly determined, in contested proceedings, that the parties are bound to the terms of the HoA. Essentially, the terms of the HoA have the force of a judgment of the Ohio courts. That issue was appealed and decided and the time for further appeals has run out. Joe Ford contends that the Ohio courts have only found that the HoA's provision regarding choice of forum (London) and choice of law (English law) is binding on the parties; that the other provisions continue to be open to challenge. That contention is mistaken. The choice of law provision could not be binding unless the parties had entered into a binding contract which included that provision. If that contract included other provisions, it necessarily follows that these other provisions are equally binding on the parties. Sorry, but that ship has sailed. The Ohio 1st District Court of Appeals, and Judge Nadel on three occasions, has ruled that the HoA is binding on the parties.

Now it is true that Judge Nadel has twice erred in applying the terms of the HoA. The first error was reversed in May 2014, and the second error is pending before the Court of Appeals, and is likely to be reversed as well. But both reversals depend on the foundational ruling that the HoA, from A to Z, is binding on the parties.

OK, that's a lot of verbiage, and I still haven't really answered the question of, why did Bonhams do what it did, with respect to the Zanotti claim. Joe Ford also finds fault with Bonhams for not concluding that the provision in the HoA, that the auction was to be held "at the Goodwood Revival in September 2013," meant that after the Goodwood Revival had come and gone with no auction, the terms of the HoA ceased to exist.

The second issue is easy. Every contract defines an objective that the parties intend to achieve, pursuant to the terms to which they have agreed when they formed the contract. This objective can be referred to as substantial performance. In the case of the HoA, it is self evident that its objective was to liquidate, at auction, the car, the parts, and the documents, and thereby also to liquidate the parties' competing claims to ownership of these items: to convert both the hardware and the claims into hard cash.

Every contract also includes an implied duty of good faith: that each party will perform his or her covenants, and that each party will not engage in acts or omissions which interfere with the other parties' ability to perform their covenants. In the case of the HoA, Joe Ford and Kristi breached the covenant of good faith when they fixated on the extremely insubstantial request of Florence Swaters, that she not have any direct communications with any of the other parties; that she would communicate only with Bonhams (and presumably her personal counsel). The substance of Florence's performance under the HoA was to deliver the car, the spare engine, the documents, etc., to Bonhams in the UK, in time for a September 2013 auction. I am aware of no showing that Florence ever did anything other try to perform this obligation in good faith. Joe Ford's focus on the form of communications between him and Florence was a transparent pretext. Florence's choice not to communicate one-on-one with him or Kristi did not excuse him and Kristi from performing their obligation, likewise to deliver their items to Bonhams in time for a September 2013 auction.

It is likewise with respect to all the noise about Power of Attorney this, Power of Attorney that, that Joe Ford puts out. The HoA did not require or contemplate that Bonhams must be an attorney-in-fact for Ford or for Kristi. Judge Nadel, in error, ordered them to execute PoA's, and they did, and then they moved to withdraw them. So what? Ford and Kristi agreed, in the HoA, to transfer Kristi's physical items to Bonhams, to appoint Bonhams as their agent to market and auction their property and that of Florence Swaters, and to decide the form of the written memorialization of the transfer of ownership of all these things to the Buyer. If Ford and Kristi had performed their obligations under the HoA, and had also performed the implied covenant of good faith, then everything would have proceeded smoothly, with or without Powers of Attorney, whether withdrawn or in effect or in orbit in the rings of Saturn.

In any event, Ford and Lawson made it impossible for Bonhams to perform the contemplated auction sale in September 2013. Now it becomes a question of construction of contract, what do we do next? What did the parties intend to happen, when they signed the HoA in March 2013, if it was not possible for Bonhams to hold an auction six months later, in September 2013. It is a quirk of the law that the construction of a contract is within the sole jurisdiction of the trial judge. The judge may submit pivotal disputed issues of fact to a jury at trial. But where the pivotal issues of fact are not in dispute, any old judge in the context of any old law and motion proceeding can decide this issue: what did the parties intend to happen next, if the September 2013 auction did not occur? Joe Ford says the parties intended to go back to the status quo prior to the HoA, back to a state of affairs where each party resumed litigation in support of his or her version of the truth, and to take on, again, all the time and expense and risk that this would entail. To my mind that contention is absurd. Rather, it is not in dispute that the parties, in March 2013, wanted above all else to liquidate their property and their claims and to get on with their lives!

In any event, Judge Nadel has had the parties back in front of him subsequent to September 2013, as has Judge Martin, and neither of them has agreed with Joe Ford's construction of the HoA. In fact, Judge Nadel has done the opposite. He has ordered Ford and Lawson to take various steps necessary for the June 2014 auction to take place. Judge Nadel lacked the jurisdiction to do this, but his lack of jurisdiction was because the HoA -- to which Lawson and Ford agreed to be bound -- included the provision that only the London High Court had jurisdiction to make such an order.

In any event, it remains the case that Bonhams has construed the HoA to include an implied provision that Bonhams should continue with the project of auctioning the car and the rest, if the September 2013 auction did not come off, and that every court which has had this matter before it since September 2013 has either expressly adopted Bonhams' construction or has not overruled it.

As to Bonhams other decisions, acts, and omissions: it has been the case for quite some time -- possibly as much as a year -- that Bonhams has conducted itself precisely as if it had concluded that Kristi and Ford have dropped out of the picture, and that only Christopher Gardner has any interest in the OC's parts and documents and in the OC's claim to 50% of the proceeds of the auction. I do not know the basis for this conclusion. If that conclusion is mistaken, the stakes are very high. I personally think it is rash for Bonhams to have frozen out Ford and Lawson. But they seem to have concluded that they are on solid ground to have done so.

Whew, I've really got to put a period on this and hit "submit." I know there's lots more unanswered questions. I try to keep my contributions at the level of the view from 30,000 feet, because there is too much factual material in this thread to try to digest it all, and because there are many more facts that we outsiders don't know. There is also the fact that all the words we write are meaningless; that all these matters are currently before the courts, that the courts are the ones who will decide, and that one thing we know for sure is that they will take their own sweet time to do so.

 

Wow. Nothing less than a tour de force of summary and analysis of a very screwed up situation. Thank you very much, 180 Out.

 

Bill, let me add that it was VERY important to have a single version of history worked out by Lawson and Swaters, consistent with the documents to date, so that neither Kleve nor Swaters were disparaged, and neither perpetuated self-serving myths. Thus paragraph "4. Bonham’s, BC and the OC Parties will all work closely together to resolve all problems relating to the Car’s history and ownership and present a detailed and transparent account of the Car’s ownership from new." and paragraph "9. BC and the OC Parties will give full disclosure to one another and to Bonhams of all documents and information relating to the Car in their possession or control." We saw fit to dedicate alot of print as to those issues in this two page, twelve paragraph document and I can assure you it was VERY important to us as we bargained for that specifically. What we got instead was Bonhams cutting off communication and then, without any Ford/Lawson input, Bonhams assumed it could make the story up to serve Swaters' singular version, which is NOT consistent with the HOA nor the docs. If we get to litigating this, I think it highly likely it will be a substantial term one cannot ignore. It aint only about the money - it was about closure and truth. Not only had Kleve been deprived, but so too his three daughter -- of their inheritance. That is why those two paragraphs have that language.

The STAY then DISTRIBUTE then DISMISS was yet another deliberately bargained for arrangement. Ford/Lawson were ahead in Ohio litigation and the only way for us to NOT continue was to interrupt Ohio litigation for a pay-day within six months. Any hiccup in getting paid and we would dissolve the STAY and continue litigating as we were going for much more than 50/50. There is a reason it is written that way, so please dont just ignore yet another of the very few provisions within the mere 2pp HOA. We specifically discussed the fact that we did not want to trade our present lawsuit position for yet a new lawsuit of breach of a settlement, so that is WHY it is written that way. STAY-DISTRIBUTE-THEN DISMISS, with an expressly specified six-month payday at 50/50. If I am going to be tied up for more than six-months, I want to do it litigating for 100% less reimbursement for good faith improvments made to a stolen vehicle, NOT for litigating to get the 50% promised by the HOA. I appreciate that you did not know about all these facts and considerations, and think you should not be so dismissive of multiple HOA provisions.

Bill, the authority was not that of God, it was to select from among the existing title documents pooled together to impartially choose that would be best for valid conveyance, not to select one to undermine Ford or Lawson rights or make nonsense of Ohio title law. The ONLY answer to that was the current Ohio title because the Ohio title Swaters thought was valid was invalidated in 2001. I even suggested adding Ms. Swaters as a third owner to the current Ohio title so to preserve the unbroken chain of title provenance (ownership!!) and respectfully recognize Ms. Swaters in connection with the settlement as an owner. THAT is what is called good faith and being reasonable. Her attorney refused. Again, read HOA paragraphs as a whole and in harmony to give it a reasonable meaning. All one need to do is put yourself in a particular signee's shoes and you will see why provisions were included and had a purpose.

Actually there are more facts that you do not know. The validity of the HOA was challenged but then the Judge overruled all prior motions and dismissed the case ILLEGALLY on August 19, 2013. That is an invalid premise for all actions taken in the Auguist 19, 2013 Order AND it has been invalidated by the appeals court. At the oral argument on appeal, we made the panel aware of those other issues that were prematurely ended with the Aug 19 Order and the appeal court said those things are not before the appeal court and, in what I read as a receptive and positive note, the appeal court added langauge to reinstate claims so that we would get our day in court as to those prematurely dismissed claims. In essence, our first bite at that apple was prevented by the premature ILLEGAL dismissal of the case.

I agree with your analysis, and add that new evidence is going to change the above legal analysis even further. Conclusion I predict - the HOA was never a contract.

You are being dismissive. You cannot just simply and subjectively ignore multiple lines and paragraphs of the HOA that we specifically bargained for. It was NOT only about 50/50. We had a time frame (six-month payday) and a need for closure with truth (true and transparent account for history, working TOGETHER).

Whoa! That is quite a jump to a conclusion. Haas, attorney for Ford, Lawson, and Gardner made a proposed Order that would Lift the Status Quo Order, Lift the Restraining Order, and file an Agreed Final Judgment that would end litigation triggered on distribution - he virtually quoted the HOA. This is the Haas April 18, 2013 Proposed Order.

Swaters agreed to sign it and we were ready to start shipping parts. Then Swaters refused to sign it, and on May 20, 2013 proposes a total rewrite with a Dismissal with Prejudice effective immediately, regardless of distribution. That was not per the HOA, so we refused to sign it. It is Swaters who breached and prevented shipment of Ohio Parts. This is all well documented with emails back and forth, for months. The new evidence will show much more.

Absurd??? Bill, you are too dimissive of precise contract langauge. It was the way we bargained for and intended to act. STAY, DISTRIBUTE, THEN DISMISS. In that scenario, we get payday of 50% in six-months, or, if any hiccups, no problem, we finish litigating in Ohio for 100% less reimbuirsements for good faith improvments to a stolen car. The Motions were already drafted, including two finding Swaters in Contempt. To conclude otherwise makes mere surplusage to several HOA passages. Again, I appreciate that these are not widely known facts.

I agree. The Bonhams "rationale" has changed with the seasons. First, it was the HOA. Then they depended on the Aug 19, 2013 Order, reversed by the May 28, 2014 appeal decision. Then they relied on Judge Martin's Preliminary Injunction language, clarified on Jan 17, 2014. Then they run to Ohio court to get the withdrawn LPOA's reinstated, and yet another Order that a few days later is invalidated as a result of the May 28, 2014 appeal decision. Add to that the fact that Gardner's attorney gets an official Ohio BMV block on ANY conveyance until Ohio litigation resolves ownership. There is no honest way to claim they had authority IMHO.

I see so many reasons to have never started promoting the auction in the first place. I see even more reasons to stop at many later points in time. Bonhams acted irresponsibly IMHO.

And it is totally reasonable to have a proceeding in London where Bonhams chases me and Lawson for a commission while in Ohio I litigate for the 100% ownership less reimbursements for good faith improvements.

And, again, all is IMHO and thanks for your time and for the elevated discourse in the best tradition of "point / counterpoint" from an informed legal perspective.

Joe

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Interesting.

Thanks!

One point.

Most of the race cars I've bought 002, SL71-32, 0854, J6, The Baja Boot were titled by DMV registration before I bought them and that title transferred to me upon my purchase of them so many race cars do have DMV registration and Title which is transferrable upon sale. This car certainly could have been road registered.

 

Does the car need to be road worthy to be road registered ?

K

 

Thank you Joe for your lengthy reply. But unless someone wants to send me a check for $10,000, to cover the 20 hour document review I would need to get up to speed, I will never be your equal in arguing the facts. This is why I prefer to cruise along at 30,000 feet. My response from that altitude will therefore be that, of the five parties to the HoA, three of them have resolved each dispute of material fact set forth in your posts to this thread differently than you have. As to the fourth -- Kristi Lawson -- in fact we don't actually know.

Assuming that there is no daylight between you and Kristi, then I hope that she has been well advised that the price tag of these prospective words on a page, that you deem to have been of deal-breaking importance, includes an unknown number of months and years of litigation; the delay if not the total loss of her share of the $19 million auction proceeds; and personal exposure to seven-figure liability if your idiosyncratic construction of the HoA is ultimately a loser in court. That's a very high price to pay for a piece of paper to which no Ferrari historian or tifosi will ever give any credence. If Kristi was not advised of this very high price in exchange for so very little, I hope her attorneys' E&O coverages have healthy policy limits.

Regarding the provisions of the HoA with respect to these prospective words on a page, I think I would research the term "illusory promise," also known as an agreement to agree. You probably recall these terms from your first year Contracts class, including the rule that an agreement to agree is not an enforceable contract. You have quoted the operative language, and attached below is my transcription of the HoA, for the benefit of those who do not keep a copy folded up in their wallets. The operative language is in paragraph 4: "Bonham’s, BC and the OC Parties will all work closely together to resolve all problems relating to the Car’s history and ownership and present a detailed and transparent account of the Car’s ownership from new." As we can see, the ultimate objective that the parties undertook to achieve was a "detailed account" of #0384, presumably in writing, at some future date. But the only present duty was to "work closely together," to try to put some squiggly marks on a piece of paper. The present duty of performance was not actually to produce the squiggly marks.

The courts are likely to characterize an alleged agreement actually to produce some squiggly marks as an unenforceable agreement to agree. The defect of an agreement to agree is that it lacks the element of a "meeting of the minds," that the formation of a contract requires. At the time of the execution of the HoA, Joe Ford and Lawson contended that the history of #0384 was that it had been stolen from Karl Kleve, that he had never transferred ownership to anyone, and that Jacques Swaters had engaged in multiple nefarious acts to take possession and to maintain possession of a feeble old man's stolen property. For her part Florence Swaters contended that her father was one of the great men of Ferrari lore, that he had lawfully acquired ownership of #0384, that he had paid Karl for the car and for the Ohio parts, and that Kristi was unlawfully retaining possession of the Ohio parts. Henry Kissinger could not produce a document which could reconcile these two competing versions of reality, other than to resort to a vague whitewash which does not adopt either side's version of the real world facts. As I already wrote, no historian or tifosi would ever give such language any credence. All would correctly recognize this to be the bastard child of litigation, written by *shudder * trial lawyers, with no meaning to anyone but the litigants themselves.

But I digress. (The writing would improve greatly if someone would send me that $10,000 check.) Focusing on the performance to which the parties actually agreed -- "work closely together" to put some squiggly marks on a page -- what were the acts and omissions on the part of Florence Swaters which constituted her breach of this agreement? It seems to me that the most productive way to kick off the process would be for one or more party to create a first draft of the prospective document and to circulate it to the others for their comments and revisions. Did this happen? If I were the judge and the answer is no, and that instead Party A comes to me with the story that Party B's first move was to chose to communicate with Party A solely through Bonhams or through her attorneys, and that this entirely reasonable choice constituted a breach sufficient to excuse Party A from any further performance, I would not be buying it. I would instead suspect Party A to have created a pretext for blowing up the whole deal, thereby causing a lot of trouble for everyone, including Party A's supposed ally, Party C. If the facts verified this suspicion, I would be very unhappy with Party A.

Turning to another subject -- the allegedly fraudulent nature of the HoA -- another term for legal research would be "choice of law." Joe Ford essentially contends that the HoA is negated -- that it ceases to exist -- because Swaters or Gardner or Bonhams (or all three?) made a false representation to him -- whose substance Joe Ford continues to keep to himself -- knowing the representation to be false and intending to induce Joe Ford to change position, and that Joe Ford did reasonably rely on this false representation, and did change position, to his detriment. The next question is, in which forum does he seek an adjudication of these contentions? There seem to be three choices: (1) When another party sues Joe Ford in London for breach of the HoA, Joe Ford can assert the affirmative defense that the HoA is a product of fraud and that therefore its terms are not binding on him, including its choice of venue/choice of law provision. (2) Joe Ford can bring a motion in the existing Swaters v. Lawson and Ford case in Hamilton County Ohio, seeking a judicial declaration that the HoA is not binding on him. (3) Joe Ford can file a new action in Ohio -- or London if he prefers -- alleging that Swaters or Gardner or Bonhams have committed the tort of fraud and that this has caused him to suffer an injury in an amount to be determined at trial.

According to the Bonhams "writ" that Max Vito has posted on his "FChat" website, Bonhams has already put option (1) in motion. Has Joe Ford alleged the affirmative defense, or filed a Crossclaim, seeking relief from this fraud -- i.e., seeking an order that the HoA ceases to exist? If he has done so, then his next move would be to file a motion in London for change of venue back to Ohio. That motion would be based on principles that he has uncovered from his legal research of the term "choice of law." Specifically, where a contract includes provisions for choice of venue and choice of law, and a party to the contract alleges that these provisions are not binding on him, on the ground that he was fraudulently induced to sign the contract, what is the correct venue to adjudicate that foundational allegation?

A final area for legal research that I will mention today has to do with whether the law of fraudulent inducement is different in the context of a settlement agreement and release ("SAR") than in the context of a garden variety commercial contract. The operative principle of fraudulent inducement is that a buyer did not actually agree to buy the seller's item, because the item that the buyer thought he was buying was materially different than the item the seller was actually selling. To relieve this result when it happens, the principle of "buyer beware" is modified, such that the law will not require every buyer to conduct an investigation into every representation of the seller, on penalty of getting stuck with something different than what the buyer intended to buy. But in the context of litigation, Party A knows that Parties B, C, and D have made allegations that Party A knows, or believes, to be false. Party A knows that Parties B, C, and D do *not* mean him no harm; rather, he knows that they want very much to bend him over a chair and etc. He knows that they actually to keep out of the courtroom as many true but unfavorable facts that they possibly can, within the rules of evidence. In other words, an SAR is a different animal. This is why every SAR I have ever seen includes a provision whereby each party releases the others from every claim, known or *unknown*, arising from the transaction giving rise to the lawsuit. The HoA in this case includes such language. Paragraph 1 states that the "BC and OC Parties have agreed to extinguish all claims and counterclaims between them in relation to a Ferrari 375 Plus motor car." Paragraph 2 states that "All clams [sic] and counterclaims between BC and OC whether already asserted or not, are hereby waived and permanently extinguished on distribution of the funds from the sale."

Essentially -- and I wrote this yesterday as well -- when litigants agree to dispose of their litigation claims according to the terms set forth in an SAR, they are saying that they don't care what is the truth out there in the real world. They surrender any further right to squabble over their competing versions of reality, in exchange for a little peace (and a couple dollars). The Ohio Court has added its imprimatur to this result, in four separate rulings. On these facts, a party who seeks to overturn the present status quo, as well as to undo 1.5 years of performance by the parties and the resulting involvement of a third party, Les Wexner, had better have an *extremely* compelling tale of fraud. I seriously doubt that this is the case. But what do I know? I'm 30,000 feet up, crunching on popcorn.

 

With no other way to convey these sentiments, permit me to use FC to offer my sincere condolences to Kristy Kleve Lawson. My sympathies have been with her throughout this saga, but after reading 180 Out's compelling and devastating posts I am now fearful that the best she can hope for is for this thing to end with her being free from any liability to anyone. Ocean Joe's weak and plaintive reply to 180 Out's methodical dismantling of his case was hard to read. All this over a car. For Kleve's daughter, a real tragedy.

 

^^^ Echo those sentiments.

Perhaps the term OJ most urgently needs to research isn't a legal one, but simply "over confidence"... IMHO.

>8^)
ER

 

Before it can be driven on the road but not to register it. Once registered it has to pass inspection before it can be driven on the road and needs all road equipment a car of it's date of manufacture was required to have. Generally cars over 25 years old require no pollution control except for mufflers.

Generally in order to register a car you also have to prove all customs duties have been paid and pay all sales tax due.

 

Bill may not be getting a pay check but his pro bono work seems comprehensive and commendably concise, given the subject matter and it's complexity.

 

+1

and in lieu of payment Bill please accept an offer of lunch if ever you are in London

 

Depends on the state. When I brought my car to Florida all they looked at was the VIN before registering it. No follow up inspections either.

 

Bill,

Would you venture an opinion on what affect there might be if Gardner loses in his arbitration with OJ and his standing to have been a rightful signatory to the HoA goes away?

Jeff

 

Absolutely agree!

 

Another question for discussion:

Suppose that, for example, sometime in January of 2014, three of the five signees to the HOA agreed amongst themselves to "amend" the HOA, and they all signed a document with say, uhhh, say 9 paragraphs, one of which, maybe paragraph 3, says something like:

"The parties agree that any registration or other document of title for the car issued in Ohio after 1st January 2014 ("a New Ohio Title") shall be sent promptly to Bonhams by the party or parties named in the document as title holder and shall be delivered by Bonhams to the Buyer of the Car together with all other US or European titles in Bonhams' possession."

I know there are NO other European titles (because such has never been produced in the proceedings, ever). So, if there are only US titles (Ohio, most current listing Ford and Lawson as owners), and Bonhams plus two other signatories indicate the necessity to deliver the New Ohio Title (plus prior Ohio titles) to the prospective Buyer, do you think Bonhams or Gardner or Swaters can now credibly claim they don't need the Ohio title? I wonder who was trying to get a new Ohio title at or around that time? I do know that around May 4, 2014 Gardner's Ohio attorney obtained an official Ohio Bureau of Motor Vehicles "block" on any conveyance pendng the outcome of the pending Ohio litigation.

P.S. - Lawson and I signed no such document - knew nothing about it.

And it gets better . . . more popcorn, please.

Joe

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Joe, the full transcript of the December 2013 Court hearing has been posted by Max Vito

<removed>

Interesting debate on the title. In December 2013, the month before your latest conspiracy theory, your own attorney was confirming that Bonhams had the right to sell the car and sort out the defective title (also debated at length)

Also the Judges comments on why Kristie Lawson gave up 70% of a $20m car for only $5,000 of Gardners money. If Kristie only got $5,000 how much did her sisters end up with ?

 

Kim,

As to my attorney's "confirmation", it was limited to the Judge's question which was asked as to a particular point in time -- "at this point anyway" -- i.e. before the Sept 2013 Auction. So, my attorney confirms that BEFORE the Sept 2013 auction, Bonhams had, per the HOA, the exclusive rights to auction / sell / deliver title - in the Judge's words "handle all the stuff." Whatever authority it was, it ended with the Sept 2013 auction.

Also, that Dec 16, 2013 hearing was one of about three hearings where Gardner tried to "Reform" the Ohio Title, and the Judge refused the request each time. I think you correctly link the January 2014 "amendment" about a "New Ohio Title" to the actions of the others. That amendment shows Bonhams knew it needed to be able to convey the Ohio title and was attempting to side-step Ford and Lawson. When Gardner failed to reform the Ohio title into his name, Bonhams should have known that Gardner's claims were koolaid (i.e. mere allegations).

Bottom line as to the Dec. 16, 2013 hearing transcript is that Gardner's Motion to Reform the Title FAILED. There was NO change to the Title that lists Ford and Lawson as owners.

As to giving up 70% for only $5,000 etc, your numbers are wrong, as is the premise. A timeline helps to show value and show the uncertainty until adjudication or settlement, and to resolve that uncertainty is gonna take money, all at risk of getting nothing.

Example of uncertain outcome on value:
I have a $2 Ohio lottery ticket for a chance to win $50,000,000. I will sell you a 30% interest in that lottery ticket for $100,000. Interested?

Example of financial versus ownership interest:
If per a finance agreement you borrow the $100,000 from an investor to buy an interest in the Ohio lottery ticket, does that make the investor an owner?

Example of fraud:
The investor runs to the UK and claims he owns the WHOLE Ohio lottery ticket and then places it up for auction. Is not that fraud? If the auction house sets up an auction knowing the investor has no (or only partial) ownership interest, knowing the claimed Ohio owners withdrew all authority, and thus knowing it cannot convey title to that Ohio lottery ticket, is that not also a fraud and conspiracy to commit fraud on prospective bidders?

See where we are headed?

IMHO the auction should NEVER have been scheduled much less conducted, the auctioneers knew it, and so they and some (not all) of the ownership claimants devised a scheme to lure bidders into thinking they were bidding on a litigation settled, free and clear title Ferrari. Then the auction house and some (not all) of the ownership claimants sanction the skim of $3,000,000 of the buyer's money to pay a bogus claim.

It just reeks.

Joe

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