IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION
FRANCISCO MAYORGA PLAINTIFF
v. CASE NO. 4:12CV00785 BSM
STEVES AUTO CENTER OF CONWAY, INC.
and STEVE GAFNER, d/b/a STEVES AUTO
AND WRECKER SERVICE DEFENDANTS
ORDER
Defendants motion for summary judgment [Doc. No. 28] is denied.
I. FACTUAL BACKGROUND
Viewed in the light most favorable to plaintiff Francisco Mayorga, the nonmoving
party, the facts are as follows. In November 2012, Mayorga posted for sale signs on three
vehicles and parked them in the parking lot of the Kohls in Conway, Arkansas. He felt
comfortable doing this because he had done it before and because he left his vehicles parked
next to other vehicles that had for sale signs posted on them. The signs he placed on his
vehicles included his telephone number, and he received a number of calls from people
interested in the vehicles. Mayorga received one call in which he was asked whether the
three vehicles he placed on the lot belonged to him.
Mayorgas vehicles were towed on November 26, although none of the other vehicles
with for sale signs posted on them were removed from the lot. Mayorgas vehicles were
towed by Steves Auto Center of Conway, Inc. and Steves Auto and Wrecker Service
(collectively Steves). When Mayorga contacted Steves, he was told that to retrieve his
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property, he would have to produce proof of ownership and a licensed driver to pick up the
vehicles. On November 27, Mayorga went to retrieve his property, but was told by Steves
that he could not pick the vehicles up because he did not have proof of insurance. Mayorga
left but returned two days later with proof of insurance. This time he was told by Steves that
he could not pick up his property because there was an irregularity on one of the vehicles
license plates and Steves was going to contact the police. On this occasion, Steves
referenced Mayorgas national origin and threatened to call immigration officials. Mayorga
left and was later contacted by a police officer, who questioned him about his purchase of
the vehicles. Mayorga answered the questions and the officer said he would investigate.
Mayorga continued trying to retrieve his vehicles but Steves kept giving him the run-
around. Exasperated, Mayorga hired a lawyer who contacted Steves, and on December 12,
2012, Steves agreed to release the vehicles if he paid over $3,400 in storage and towing fees.
On December 19, 2012, Mayorga filed this lawsuit, alleging conversion, trespass to chattel,
and constitutional violations. Steves now moves for summary judgment. That motion is
denied.
II. LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in a light most favorable
to the nonmoving party, demonstrates that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477
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U.S. 242, 249-50 (1986). Once the moving party demonstrates that there is no genuine
dispute of material fact, the non-moving party may not rest upon the mere allegations or
denials in his pleadings. Holden v. Hirner, 663 F.3d 336, 340 (8th Cir. 2011). Instead, the
non-moving party must produce admissible evidence demonstrating a genuine factual dispute
that must be resolved at trial. Id. Importantly, when considering a motion for summary
judgment, all reasonable inferences must be drawn in the light most favorable to the
nonmoving party. Holland v. Sam's Club, 487 F.3d 641, 643 (8th Cir. 2007). Additionally,
the evidence is not weighed, and no credibility determinations are made. Jenkins v. Winter,
540 F.3d 742, 750 (8th Cir. 2008).
III. DISCUSSION
Summary judgment is denied because there are material facts in dispute. Steves
asserts that it was authorized to tow the vehicles and that it was not required to release them
to Mayorga when he attempted to retrieve them. It also asserts that it is not required to
release them now unless he pays the accrued fees. In support, Steves offers the affidavit of
its president, Tracy Gafner, who asserts that an individual named Tom Wilkins, on behalf of
Seayco, THF Conway Development, LLC (Seayco), requested that the vehicles be towed.
Gafner also states that the Conway Police Department directed Steves to hold the vehicles
pending an investigation and that Mayorga never supplied the proper paperwork to retrieve
the vehicles.
Summary judgment is denied because the affidavit upon which Steves relies in its
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motion for summary judgment is contradicted by Mayorgas affidavit. In his affidavit,
Mayorga contends that he repeatedly provided Steves with all the paperwork necessary to
retrieve his vehicles. Despite his repeated attempts, Steves threatened him based on his
national origin and refused to release his vehicles so that it could charge additional storage
fees.
Accordingly, Steves motion for summary judgment [Doc. No. 28] is denied.
IT IS SO ORDERED this 11th day of March 2014.
________________________________
UNITED STATES DISTRICT JUDGE
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