Opinion
2012 CA 0284
11-02-2012
SUSAN C. LIGGETT AND STEVEN F. LIGGETT v. ROBINSON BROTHERS FORD, LLC
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 572,314, SEC. 22, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE TIMOTHY KELLEY, JUDGE
Patrick F. Robinson
Prairieville, Louisiana
Counsel for Plaintiffs-Appellees
Susan and Steven Liggett
Keith D. Jones
Baton Rouge, Louisiana
Counsel for Defendant-Appellant
Robinson Brothers Ford, LLC
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
Disposition: AFFIRMED. ADDITIONAL ATTORNEY'S FEES AWARDED ON APPEAL.
KUHN, J.
Defendant-appellant, Robinson Brothers Ford, LLC (Robinson Brothers), appeals the trial court's judgment, awarding $34,702.41 and attorney's fees to plaintiffs-appellees, Susan and Steven Liggett; declaring the sale of a 2008 Ford Edge SUV they purchased from Robinson Brothers null and void; and ordering its return to the dealership. The Liggetts answered the appeal and request an increase in the amount of the award as well as attorney's fees for the work performed in defending this appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 28, 2008, after having undertaken general research on the internet, Susan Liggett went to Robinson Brothers' dealership looking to purchase a Ford Edge SUV with a panoramic vista sunroof. Because her children were playing sports, she wanted an SUV, and because her husband, Steven, had worked for Robinson Brothers in the past, the Liggetts chose that dealership to obtain the vehicle.
Once the Liggetts were on the lot, Susan walked through the rows of Edge SUVs, noting that only one had the panoramic vista sunroof. Robinson Brothers' sales representative, Will Merrick, inquired whether she was looking for a particular vehicle. After she indicated her preference, Susan asked to drive the only Edge that had the panoramic vista sunroof. While driving, she noticed that the SUV had about 3,000 miles on it. Merrick advised that the model was a demonstrator. In light of her husband's 20-25 years experience in the automotive industry, the fact that the SUV was a demonstrator vehicle did not concern Susan. After discussing it with Steven, Susan decided to purchase the Edge.
Susan and her daughter were inside the vehicle as they waited to discuss financing details with a Robinson Brothers' representative when Steven noticed some defects in the paint in several spots in the front of the vehicle. Based on his experience, it was obvious to Steven that the SUV had been repainted. Steven asked Merrick if the vehicle had been repainted, and the sales representative stated he was unaware of anything but that he would check with the sales manager. He returned and advised the Liggetts that there was no paperwork indicating anything had been done to the vehicle. After Steven insisted that the SUV had been repainted, Merrick returned with the sales manager, who apologized to the Liggetts and told them that there should have been paperwork on the vehicle but it was not in the office. Sales manager, Jack Vaughn, testified that he indicated to the Liggetts that he "knew the vehicle had been in a minor fender bender." According to Vaughn, because the purchase occurred on a Saturday and the Edge had just been repaired, the repair order had not been returned to his desk.
The Liggetts purchased the Ford Edge, aware that it had been in "a minor fender bender," and that it was a demonstrator vehicle. In conjunction with the sale, the Liggetts executed two written acknowledgements. The first one stated that the vehicle "may have sustained slight hail damage," and that the Liggetts acknowledged "having received a discounted price in lieu of any repairs." The other acknowledgement stated that the Liggetts took the vehicle "as is," expressly indicating that they had "received a discount in the place of repairing the paint." It is undisputed that the price of the SUV was reduced by $500.00 to offset the paint defects that Steven had noticed. The Liggetts purchased the Ford Edge.
About three months after she purchased the SUV, Susan was parking her car into a space at work, with her foot on the brake. When she moved the gear shift into park, it slid up in a manner that Susan noted was different from usual. She took her foot off the brake, and the car continued to drive. Susan cut the engine off and called Robinson Brothers. The SUV was towed on a flatbed back to the dealership, where it remained approximately a month to a month and a half, for replacement of the wire harness to ensure no additional electrical issues.
While the SUV was being repaired, Susan called the service manager and asked for all work orders showing any repairs that had been done to the SUV. Robinson Brothers faxed four pages that showed the "minor fender bender was a frontal impact crash." Susan subsequently spoke with Tracey White, the Robinson Brothers' employee who had been involved in the accident that resulted in the paint defects that Steven noticed prior to purchase. According to White, the accident occurred on the interstate in stop-and-go traffic when White rear-ended a big truck. The trailer hitch went through the radiator; smoke was everywhere; and the dealership had to tow the SUV back to its premises. The paperwork Susan received indicated the total cost of repairs was $3,680.45. A repair invoice admitted into evidence showed that Robinson Brothers' actual repair cost was $2,714.69 and noted that in addition to the replacement of numerous body parts, the radiator and oil cooler had been replaced in the engine. Susan stated that had she known the SUV had been in a frontal impact accident before she purchased it, she would never have agreed to buy the vehicle.
Susan testified that in addition to the failure of the SUV to shift into park, she experienced other problems with the SUV. Foam protruded from the dashboard, which had little ripples in it. The car rattled. And occasionally, when she turned left or right, the radio turned itself off.
On November 5, 2008, the Liggetts filed this lawsuit against Robinson Brothers, seeking rescission of the sale or a reduction in the price and other items of damages. Robinson Brothers answered the lawsuit, generally denying the allegations. After a trial on the merits, the trial court rendered a judgment, declaring the sale of the Ford Edge null and void, awarding the amount of $34,702.41 to the Liggetts without itemizing the bases for the award, as well as $7,500.00 for the Liggetts' attorney's fees. Robinson Brothers suspensively appealed. And the Liggetts answered the appeal.
RESCISSION
Robinson Brothers contends that the Liggetts failed to prove a defect in the vehicle so as to support either the trial court's order that effectively rescinded the sale, or its award of damages and attorney's fees. The dealership suggests that the record is devoid of any evidence showing that the prior accident was the cause of any problems Susan subsequently experienced with the SUV.
Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold that renders the thing either absolutely useless or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice. La. C.C. art. 2520.
Nothing in the record supports a finding that any of the problems Susan had with the SUV were as a result of the earlier accident. Thus, we agree with Robinson Brothers that the Liggetts did not prove the SUV contained a vice or defect that rendered it absolutely useless or its use so inconvenient that they would not have purchased it had they known of it. But that does not end our inquiry.
According to La. C.C. art. 2529, when the thing the seller has delivered, though in itself free from redhibitory defects, is not of the kind or quality specified in the contract or represented by the seller, the rights of the buyer are governed by other rules of sale and conventional obligations. La. C.C. art. 2545 provides that a seller who declares that a thing has a quality that he knows it does not have is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. A trial court's factual findings are governed by the manifest error/clearly wrong standard of review. See Stobart v. State, 617 So.2d 880, 882-83 (La. 1993). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882.
Both the Liggetts and Robinson Brothers' sales manager Vaughn all testified that the Liggetts were advised that the SUV had been in a minor fender bender. Susan stated that she was told it was "a very minor fender bender in a Wal-mart parking lot." Steven testified he was advised the accident was "a minor fender bender in a parking lot," without specifying an exact location. On direct examination, Vaughn said that he told the Liggetts he knew the vehicle had been in a minor fender bender, but did not recall having told them the exact location of the accident. On cross, he admitted "I may have drawn a general scenario of how it could have happened." Thus, based on the testimony, the trial court did not clearly err and was not manifestly erroneous in concluding that Robinson Brothers, through its employee Vaughn, had declared that the SUV had a quality that he knew it did not have, i.e., that the damage it sustained in the prior accident was merely cosmetic damage. As such, under Article 2545, the trial court did not err in the ordering return of the price the Liggetts paid for the vehicle and damages. Cf. Miller v. Ford Motor Co., 2001-1299 (La. App. 3d Cir. 2/6/02), 815 So.2d 997, 1000 (buyer of repaired vehicle represented as new contained redhibitory defect). See also La. C.C. arts. 1948, 1949, 1953 (consent may be vitiated by error or fraud) and 2033 (the parties must be restored to the situation that existed before the contract was made when a court has declared a contract is relatively null); Danilson v. Crown Buick, Inc., 480 So.2d 503, 505 (La. App. 4th Cir. 1985) (seller's misleading representations regarding value and/or quality of automobile, which had been involved in accident, but which seller represented was "like a new car," were sufficient to vitiate purchase contract, where principal motive and quality in purchaser's decision was that she wanted to buy new vehicle or "like new" demonstrator).
Robinson Brothers asserts that the trial court erred to the extent that it relied on the provisions of the Louisiana Motor Vehicle Commission Law, La. R.S. 32:1251-1269, to conclude the vehicle had a redhibitory defect that entitled the Liggetts to rescission and damages. The trial court did not expressly find that a failure to provide written notice under La. R.S. 32:1264 constituted a redhibitory defect; or that because Robinson Brothers violated La. R.S. 32:1264A, the vehicle contained a redhibitory defect. Moreover, La. R.S. 32:1264 establishes an affirmative duty on the part of an automobile dealer to disclose damage to a prospective buyer on penalty originally of criminal prosecution, and now of civil penalty and delicensing. See Morrison v Allstar Dodge, Inc., 2000-0398 (La. App. 1st Cir. 5/11/01), 792 So.2d 9, 13 (interpreting the provisions of La. R.S. 32:1264 prior to their amendment, reenactment, and relocation by Acts 2005, No. 500, § 1). Thus, La. R.S. 32:1264 does not govern the issue of good faith disclosure in a contract of sale or affect the seller's duty to disclose in considering whether a sale may be rescinded. Morrison, 792 So.2d at 13. Under the plain language of subsection C, the affirmative duty to disclose to a purchaser any body or mechanical damage (as set forth in subsection A) shall apply regardless of whether other codal, statutory or regulatory provisions, including but not limited to La. C.C arts. 2520 et seq., are also applicable. Accordingly, the trial court correctly rescinded the sale and awarded damages based on an application of the provisions of La C C arts. 2529 and 2545.
REIMBURSEMENT OF EXPENSES
In their appeal, the Liggetts claim that the trial court's judgment failed to fully compensate them. They contend that they are entitled to reimbursement for automobile insurance premiums they paid for the SUV as well as the interest they paid to finance the vehicle.
The trial court awarded $34,702.41. The undisputed evidence shows that the Liggetts put $3,000.00 down on the SUV. According to the installment contract, they paid a total of $30,344.00 for the SUV. They received a $400.00 rebate, and with a credit for the down payment, had an unpaid balance of $26,944.00. License, title, and registration fees of $108.50, official fees of $18.00, and local and state taxes of $2,694.96 were assessed. A notary/documentary fee of $127.00, payable to Robinson Brothers, a service contract of $1,410.00 in favor of "Ford ESP," and GAP coverage of $400.00 were also added to the financed amount, resulting in a total of $31,702.46. Thus, the trial court awarded approximately $3,000.00 in damages beyond the amount that had been financed. The signed judgment did not contain an itemization of the bases for the additional $3,000.00 award.
The copy of the installment contract is difficult to read and appears to state "$31,702.41" as the amount financed. A close inspection, along with a calculation of the itemized amounts, shows the actual amount financed was $31,702.46.
The record contains a proposed judgment submitted by the Liggetts, which included a District Court Rule 9.5 certificate. That judgment was not signed by the trial judge, who instead marked through it and cross referenced the judgment signed on September 12, 2011. In the oral reasons for judgment, the trial court ordered Robinson Brothers to pay reimbursement of insurance premiums and interest on the amount the Liggetts had financed in conjunction with the purchase. The September 12, 2011 judgment, which does not contain a District Court Rule 9.5 certificate, simply awards the amount of $31,702.41. Where there is a discrepancy between the judgment and the reasons for judgment, the judgment prevails. Scoggins v. Frederick, 98-1814 (La App 1st Cir. 9/24/99), 744 So.2d 676, 680 n.4, writ denied. 99-3557 (La. 3/17/00) , 756 So.2d 1141. Thus, we focus our examination on the propriety of the amount awarded in the signed judgment.
Plaintiff bears the burden of proving with legal certainty every item of damages claimed. South Cent. Bell v. Milton J. Womack & Associates, Inc., 97-2413 (La. App. 1st Cir. 11/6/98), 744 So.2d 635, 640, writ denied. 99-0644 (La. 4/23/99), 742 So.2d 889.
The only evidence of the amount of insurance premiums the Liggetts paid was Steven's testimony that the annual premium was "approximately $1,300[.00], $1,400[.00] ... right in there." Insofar as interest paid on the note, Steven testified that they paid a monthly note of $510.00. Additionally, attached to discovery responses, which the Liggetts introduced into evidence, was an unnamed document addressed to Susan from Ford credit, indicating payment due as of October 12, 2008 in the amount of $510.96. A copy of the installment contract included the terms, which stated, among other things, an annual percentage rate of 4.9, a finance charge of $5,021.00, an amount financed of $31,702.00.00, and total of payments in the amount of $34,724.00. The evidence offered by the Liggetts failed to state with specificity either the actual amount of insurance premiums paid or an itemization of the bases for the premium charge. Additionally, the Liggetts failed to offer proof of the actual amounts of interest paid on the note. Thus, the award of additional expenses in the amount of $2,999.95 is certainly within the range of the amount of reimbursement the evidence supports. As such, we find no error in the trial court's award.
Although it would have been appropriate for the trial court to award a credit for the Liggetts' three years' use of the SUV, see La. C.C. art. 2545, Robinson Brothers did not raise the issue in its pleadings. Although generally, pleadings may be enlarged by evidence adduced without objection, see La. C.C.P. art. 1154; Fitzgerald v. Tucker, 98-2313 (La. 6/29/99) 737 So 2d 706 715 if the evidence was admissible for any other purpose, the pleadings cannot be enlarged without the express consent of the opposing parry. Hebert v. ANCO Insulation, Inc. 2000-1929 (La. App. 1st Cir. 7/31/02), 835 So.2d 483, 492, writs denied, 2002-2956, 2002-2959 (La 2/21/03), 837 So.2d 629. In this evidence regarding the Liggetts' use was relevant to show that the SUV did not have a vice or defect that rendered it absolutely useless. Accordingly Robinson Brothers' pleadings were not expanded at trial to include a claim for a credit.
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ATTORNEY'S FEES FOR APPEAL
The Liggetts have requested this court award a sum for the work expended by their attorney in defending this appeal by Robinson Brothers. We award the amount of $1,200.00 for their attorney's successful defense of the claim for rescission of the contract of sale. See La. C.C. art. 2545; Matt v. Agro Distribution, LLC, 2005-291 (La. App. 3d Cir. 6/1/05), 904 So.2d 928, 937.
DECREE
For these reasons, the trial court's judgment is affirmed. An award of $1,200.00 is made to plaintiffs-appellees, Susan and Steven Liggett, for their attorney's fees in defending this appeal. Appeal costs are assessed against defendant-appellant, Robinson Brothers Ford, LLC.
AFFIRMED. ADDITIONAL ATTORNEY'S FEES AWARDED ON APPEAL.