NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-621
ANTHONY J. GASPARD, ET UX.
VERSUS
CAMPING WORLD RV SALES, LLC, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NUMBER C-20172891, DIVISION E HONORABLE MICHELE M. BREAUX, DISTRICT JUDGE
SHARON DARVILLE WILSON JUDGE
Court composed of Sharon Darville Wilson, Gary J. Ortego, and Wilbur L. Stiles, Judges.
AFFIRMED. Gabe A. Duhon Michael L. Barras George A. Day GABE A. DUHON, LLC 105 Tivoli Street Abbeville, Louisiana 70511 (337) 893-3423 COUNSEL FOR PLAINTIFFS/APPELLANTS: Anthony J. Gaspard and Terri L. Gaspard
Reid A. Jones Caroline K. Darwin WIENER, WEISS & MADISON A Professional Corporation 330 Marshall Street, Suite 1000 Shreveport, Louisiana 71101 (318) 226-9100 COUNSEL FOR DEFENDANT/APPELLEE: Southern RV, LLC
James C. Percy Ryan E. Johnson Justin Marocco Henry Steven Rauschenberger Trey Bartholomew JONES WALKER LLP 445 North Boulevard, Suite 800 Baton Rouge, Louisiana 70802 (225) 248-2000 COUNSEL FOR THIRD-PARTY DEFENDANT/APPELLEE: Keystone RV Company
Matthew Ian Percy Jamie I. Schutte PERCY, SKIAS & SCHUTTE 712 North Burnside Avenue Gonzales, Louisiana 70737 (225) 621-8522 COUNSEL FOR DEFENDANT/APPELLEE: Camping World RV Sales, LLC WILSON, Judge.
The trial court granted a summary judgment in favor of Defendant/Appellee,
Camping World RV Sales, LLC (Camping World), dismissing, with prejudice, the
suit filed by Plaintiffs/Appellants, Anthony J. Gaspard (Mr. Gaspard) and his wife,
Terri L. Gaspard (Mrs. Gaspard), relative to their purchase of an allegedly defective
camper. For the reasons that follow, we affirm the trial court’s grant of summary
judgment and dismissal of Plaintiffs’ claims against Camping World..
I.
ISSUES
We must determine whether there are genuine issues of material fact that
preclude the trial court’s granting of summary judgment in favor of Camping World.
Specifically, the Gaspards allege that the trial court committed legal error in failing
to find that: (1) Camping World is liable under the corporate successor doctrine; (2)
Camping World is liable for its actions and/or omissions in its capacity as a
depositary; and (3) Camping World is liable for its actions and/or omissions under
La.Civ.Code art. 2315.
II.
FACTS AND PROCEDURAL HISTORY
The Gaspards purchased a new 2014 Keystone Fuzion camper, model 395,
bearing Vehicle Identification Number 4YDF3953XEF811007 (the camper), from
Southern RV, LLC, d/b/a Southern RV Supercenter (Southern RV), on or about
November 14, 2013. The total purchase price was $81,921.50,1 including optional
1 This is total amount alleged in the Gaspard’s petition. In their brief, the Gaspards allege that the total purchase price was $112,871.00 pursuant to a retail installment contract and security agreement with an annual percentage rate of 4.99%, a finance charge of $41,550.50, and a financed amount of $71,321.00. The total of these amounts is $112,871.50. The copy of the contract in the record is illegible; however, the record from another appeal in this matter, Gaspard v. Camping equipment, taxes, licensing, title costs, and an extended service contract warrantying
the camper for eighty-four months. They claim that the extended service contract
added $3,340.00 to the purchase price.2 The Gaspards also purchased a road hazard
contract. According to Mr. Gaspard, Southern RV installed a washer, a dryer, and a
receiver hitch.
The Gaspards claim that they had several serious problems during their first
use of the camper on December 1, 2013, and scheduled a time for Southern RV to
repair the issues.3 They brought the camper to Southern RV on January 6, 2014.
The Gaspards picked up their camper on April 1, 2014, and claim that they
were only able to use it three times over the next eight months before water damage
in the master bedroom, mildewed cabinetry, stained and mildewed carpet and
damages due to a faulty slide required return of the camper to Southern RV for more
repairs. The Gaspards allege that they contacted Southern RV in November or
December of 2014, and they were told that Southern RV could not service the
camper until January 26, 2015.
Southern RV had the camper from January 26, 2015, to April 1, 2015. In their
petition, the Gaspards allege that they were billed $632.39.
World RV Sales, LLC, 20-125 (La. App. 3 Cir. 9/30/20), 304 So.3d 1050, which was made an exhibit to this appeal, is legible and indicates that finance charge of $41,550,50 and a financed amount of $71,321.50. The total purchase price indicated on the retail installment contract and security agreement is $112,872.00. 2 As noted in Gaspard, 304 So.3d at 1054: “while Plaintiffs maintain that there is an extended service contract in existence, no such contract was attached or produced with the summary judgment evidence, nor do Plaintiffs specify any terms or conditions or the scope of any such agreement.” 3 The list of alleged problems included a leaking shower head, a leaking shower pan and glass surround, a defective bathroom wall, a hole in one of the bedroom walls, a faulty screen door, faulty deadbolt latch, a faulty electrical system, faulty plumbing, faulty retractable awnings, a faulty radio, a faulty dirt devil system, and a faulty heating system.
2 The Gaspards did not attempt to use the camper until October of 2015, and
they allege that it had many defects and issues, including a water leak on the kitchen
slide and multiple electrical problems, at that time. They allege that they
immediately contacted Southern RV and were told that they could not bring the
camper in for repairs until December 26, 2015. Mr. Gaspard brought the camper
back to Southern RV on December 26, 2015, with multiple complaints including
water damages and electrical issues.
In January 2016, Camping World and Southwest RV Centers, LLC
(Southwest), entered into an Asset Purchase Agreement (the Agreement) with
Southern RV, and other principals.
According to Mr. Gaspard, he was contacted by Camping World on April 25,
2016, and informed that Camping World had purchased Southern RV and that the
repairs to the camper were completed. The Gaspards allege that when they arrived
to pick up their camper, it still had many unfixed issues, as well as new problems,
which required them to leave it at Camping World. The Gaspards allege that the
water continued to infiltrate the camper, the washer and dryer were missing, the
twelve-volt batteries were dead, and the circuit board for the camper was burnt.
Mr. Gaspard alleges that on July 12, 2016, a representative of Camping World
emailed him the following breakdown of estimated repairs:
Water leak for kitchen slide: 20 hours labor $2,580.00 to replace slide room floor[] and carpet, remove and install outside facia, inside facia, there is no charge for the materials for the floor and carpet (as per service manager) . . . Adding second battery (0.5 hours) $64.50 install second battery . . . (1.5 Hours) $193.50 to remove and replace awning light.
According to Mr. Gaspard’s affidavit, on November 26, 2016, Camping
World contacted the Gaspards to pick up the camper. Mr. Gaspard’s affidavit states
3 that Camping World demanded payment of $3,326.52, and threatened to charge
“rent” for storage of the camper.4 The Gaspards disputed that any payment was due
and contend that when they went to pick up the camper on February 16, 2017, it was
in “deplorable condition.” According to Mr. Gaspard, the batteries were dead, the
awning lights were inoperable, the location of the missing washer and dryer was
unknown, there was mold and mildew in the living room, and the carpet throughout
the camper was moldy and mildewed. The Gaspards did not take possession of the
camper at that time and instead filed a petition for recission of the sale and for
damages on May 18, 2017. They named Southern RV and Camping World as
defendants.
Southern RV filed an answer, affirmative defenses, and a third-party demand
against Keystone RV Company (Keystone), as the manufacturer of the camper.
Keystone filed an answer and affirmative defenses, denying that the camper had any
defects as that term is defined under Louisiana law. Keystone then filed a motion to
sever the third-party demand, and Southern RV filed a motion for partial summary
judgment on its claim for indemnity and defense from Keystone. Southern RV and
Keystone reached a stipulated agreement, and, on November 15, 2019, the trial court
denied Southern RV’s motion for partial summary judgment with a reservation of
Southern RV’s right to re-urge the motion, if necessary, after a judgment on the
Gaspards’ principal demand. Pursuant to the stipulation, the trial court stayed
Southern RV’s third-party demand against Keystone until after the Gaspards’
principal demand against Southern RV was concluded by judgment.
4 On May 23, 2022, Camping World sought leave of court to file a first amended, supplemental, and restated answer, affirmative defense, and reconventional demand to recover storage fees from the Gaspards. Camping World later withdrew this request.
4 Southern RV also filed a motion for summary judgment, which alleged that
the Gaspards could not meet their burden of proof with respect to redhibition and
bad-faith seller claims, that their negligence, redhibition, and Louisiana Unfair Trade
Practices Act (LUTPA) claims were prescribed, and that their fitness for ordinary
use claim was foreclosed by their allegations that the camper is defective. On
December 3, 2019, the trial court signed a judgment that granted Southern RV’s
motion for summary judgment, and the Gaspards appealed. This court reversed the
trial court’s grant of summary judgment and found that:
Southern RV presented no evidence in support of its motion for summary judgment that it notified the Gaspards of the fact that it sold its business to Camping World, that the camper was to be picked up, or that it provided notice that it was unable or unwilling to make the required repairs. There is no evidence that Camping World legally assumed any responsibility of Southern RV to repair the camper, or that they were acting on behalf of or authorized to act on behalf of Southern RV in tendering the camper back to the Plaintiffs on April 25, 2016. Strictly construing La.Civ.Code art. 2534, prescription as to Southern RV did not commence to run anew on April 25, 2016, and there is no summary judgment evidence that it commenced to run anew at any time thereafter prior to the time suit was filed on May 18, 2017. As such, there exists material issues of fact in dispute as to the notice and tender of the camper making summary judgment inappropriate on this record.
Gaspard, 304 So.3d at 1056.
The Gaspards took possession of the camper in April of 2022.
On May 20, 2022, Southern RV filed a second motion for summary judgment,
alleging that the Gaspards could not establish: (1) that any defects with the camper
existed at the time of sale, that Southern RV was aware of defects, that Southern RV
committed any unfair trade practices; (2) that Southern RV was negligent in
repairing the camper, that the Gaspards had any fitness for ordinary use claim; and
(3) that Southern RV was a party to any service contract or agreement with the
Gaspards. That motion came for hearing on June 27, 2022, and the trial court granted
5 the motion with respect to the LUTPA violations, bad faith redhibition, and breach
of contract. The trial court denied the motion as it applied to the claims of good faith
redhibition, breach of the warranty of fitness for ordinary use, and negligent repairs.
Southern RV sought supervisory writs from this court, which denied the writ
application. Gaspard v. Camping World RV Sales, LLC, 22-571 (La.App. 3 Cir.
01/06/23) (unpublished writ decision).
Also on May 20, 2022, the Gaspards sought leave of court to file a first
supplemental and amended petition to add Keystone as a defendant. The motion
was denied in open court on June 27, 2022, and the Gaspards sought supervisory
writs from this court, which upheld the trial court’s ruling and denied writs. Gaspard
v. Camping World RV Sales, LLC, 22-488 (La.App. 3 Cir. 10/25/22) (unpublished
writ decision).
On May 24, 2022, Camping World filed a motion for summary judgment,
alleging that the Gaspards could not put forth any genuine issues of material fact to
support the prima facia elements of causation necessary for their recovery of
damages nor could they prove that Camping World assumed the liabilities and
obligations of Southern RV. The motion came for hearing on June 27, 2022. On
July 19, 2022, the trial court signed a judgment granting Camping World’s motion
for summary judgment and dismissing “any and all of Plaintiff’s claims against
Camping World RV Sales, LLC” with prejudice. This is the judgment which is now
before the court for consideration.
III.
STANDARD OF REVIEW
“In reviewing the trial court’s decision on a motion for summary judgment,
we apply the de novo standard of review using the same criteria applied by the trial
6 court to determine whether summary judgment is appropriate.” Lagrange v. Boone,
21-560, p 3 (La. App. 3 Cir. 4/6/22), 337 So.3d 921, 924, writ denied, 22-738 (La.
6/22/22), 339 So.3d 1185.
IV.
LAW AND DISCUSSION
Camping World argues that pursuant to La.Civ.Code art. 1822, it cannot be
held liable for the Gaspards’ claims because it did not assume any of the liabilities
or obligations of Southern RV when it purchased certain assets of Southern RV.
Louisiana Civil Code Article 1822 states, in pertinent part, that “[a] person who, by
agreement with the obligor, assumes the obligation of the latter is bound only to the
extent of his assumption.” In support of its motion for summary judgment, Camping
World submitted the affidavit of Mauricio Rodriguez (Mr. Rodriguez), its Vice
President of Real Estate and Legal Counsel, and the Gaspards’ petition for recission
of sale and damages.
The Agreement between Camping World and Southern RV was attached to
Mr. Rodriguez’s affidavit. 5 Camping World asserts that Paragraph 1.5 of the
Agreement makes clear that it did not agree to assume any liabilities of Southern
RV:
Except for Assumed Liabilities (as defined below) under the Assumed Contracts (as defined below), Buyer is not assuming and shall not be obligated or liable for any of the liabilities, obligation, contracts[,] or commitments of Seller. If Buyer incurs or becomes liable for any other expense, liability, obligation, contract[,] or commitment of Seller, which Buyer did not expressly assume under this Agreement, Buyer shall be entitled to indemnification from Seller.
5 The Agreement is subject to a joint motion for protective order, in which the parties agreed that the Agreement is “confidential” and filed under seal. The portions quoted in this opinion are those that are quoted in Camping World’s statement of undisputed facts in support of its motion for summary judgment and in the motion for summary judgment itself.
7 The Agreement also stated that: “There are no actions, suits, proceedings[,]
or investigations . . . pending or . . . threatened against [Southern RV], the Business
or the Dealership Locations at law, in equity or otherwise, in, before, or by any court
or governmental agency or authority.” The Agreement also stated that: “All
covenants, representations, warranties[,] and indemnities made herein shall, except
as otherwise set forth herein, survive the Closing for a period of eighteen months.”
The Agreement, in Section 7.2 , also included an indemnification provision in
which the Principals and Southern RV agreed to indemnify and hold harmless
Camping World, on a several basis, from, against, and in respect of:
(a) Any and all losses, damages[,] or deficiencies resulting from any and all misrepresentations or breaches by [Southern RV] or Principals of any warranty, covenant, provision[,] or term contained in this Agreement;
(b) Any and all losses, damages[,] or deficiencies resulting from the assertion against [Camping World and Southwest] of any claim by any customer, creditor[,] or claimant relating to an obligation or liability of [Southern RV] or Principals with respect to the operation, ownership, use[,] or maintenance of the Assets prior to the Closing Date for any Asset; and
C. The reasonable costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments[,] or judgments in respect of any matter for which [Camping World and Southwest] is indemnified under Section 7.2(a) or (b) above, including legal and accounting fees and expenses.
Camping World alleges that prior to the closing date of the asset purchase,
Donald, a technician from Southern RV, performed various work on the Gaspards’
camper. According to Camping World, the Gaspards left their camper at Camping
World for over six years, refusing to take possession of it all of that time.
Louisiana Civil Code Article 2520 provides, in pertinent part, that “[t]he seller
warrants the buyer against redhibitory defects, or vices, in the thing sold.” Camping
World is neither the manufacturer nor the seller of the camper and cannot be liable
8 to the Gaspards for any redhibitory defects for damages which allegedly existed in
the camper. Southern RV still owned and operated the dealership the last time that
the Gaspards brought the camper in for repairs before the instant suit was filed.
Louisiana Code of Civil Procedure Article 966(D)(1) provides that the mover
bears the burden of proof on a motion for summary judgment. If the mover does not
have the burden of proof on the issue that is the subject of the motion for summary
judgment, the mover’s burden “does not require him to negate all essential elements
of the adverse party’s claim[.]” Id. The mover is required “to point out to the court
the absence of factual support for one or more elements essential to the adverse
party's claim[.]” Id. Then, the burden shifts to “the adverse party to produce factual
support sufficient to establish the existence of a genuine issue of material fact the
mover is not entitled to judgment as a matter of law.” Id. For the following reasons,
we find that Camping World properly supported its motion for summary judgment
by showing a lack of factual support for the Gaspards’ claims against it. When the
burden shifted, the Gaspards did not establish the existence of a genuine issue of
material fact.
In opposition to Camping World’s motion for summary judgment, the
Gaspards introduced the November 4, 2019 affidavit of Mr. Gaspard, which is the
same one that was attached to the opposition to Southern RV’s motion for summary
judgment on the issue of prescription that was before this court in Gaspard, 304
So.3d 1050. It does not address the issues presented in Camping World’s motion.
In their brief to this court, the Gaspards argue that there is a genuine issue of
material fact as to whether Camping World assumed the obligations of Southern RV
following the sale of Southern RV to Camping World in 2016 under the corporate
successor doctrine.
9 [T]he general rule of corporate liability is that, when a corporation sells all of its assets to another, the latter is not responsible for the seller’s debts or liabilities, except where (1) the purchaser expressly or impliedly agrees to assume the obligations; (2) the purchaser is merely a continuation of the selling corporation; or (3) the transaction is entered into [sic] escape liability.
J.D. Fields & Co., Inc. v. Nottingham Const. Co., LLC, 15-723, p. 4 (La.App. 1 Cir.
11/9/15), 184 So.3d 99, 100, quoting Golden State Bottling Co., v. Nat’l Labor Rels.
Bd., 414 U.S. 168, 182 n. 5, 94 S.Ct. 414, 424 (1973).
Further, as this court previously recognized: “There is no evidence that
Camping World legally assumed any responsibility of Southern RV to repair the
camper, or that they were acting on behalf of or authorized to act on behalf of
Southern RV in tendering the camper back to the Plaintiffs on April 25, 2016.”
Gaspard, 304 So.3d at 1056. Since the Gaspards have presented no additional
evidence since this court considered Southern RV’s prior motion, the record in this
regard is unchanged.
Despite the Gaspards’ claims that there are genuine issues of material fact as
to whether “substantially all” of Southern RV’s assets were transferred to Camping
World and that it is “entirely possible” that Camping World impliedly assumed
liability, the Gaspards failed to introduce any evidence to support these claims. To
the contrary, the Agreement establishes that Camping World did not purchase all of
the assets of Southern RV since Section 1.1 references that “the Buyer will acquire
certain of the assets relating to the recreational vehicle dealership operations[.]”
(Emphasis added.) Section 1.2 goes on to list those business assets that are being
purchased and those assets that are not included.
10 The Gaspards further contend that the camper remained on Camping World’s
property for an extended period of time and was “essentially allowed to rot where it
stood.” The Gaspards rely on La.Civ.Code art. 2930,6 which provides:
When the deposit is onerous, the depositary is bound to fulfill his obligations with diligence and prudence.
When the deposit is gratuitous, the depositary is bound to fulfill his obligations with the same diligence and prudence in caring for the thing deposited that he uses for his own property.
Whether the deposit is gratuitous or onerous, the depositary is liable for the loss that the depositor sustains as a result of the depositary’s failure to perform such obligations.
As Camping World points out, however, the Gaspards cannot establish that
Camping World caused damage to the camper. The Gaspards have not produced
any evidence of Camping World’s failure to exercise due care or that Camping
World made negligent repairs to the camper. The Gaspards cite La.Civ.Code art.
2315(A): “Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.” But the Gaspards come forward with no
evidence of Camping World’s fault. Mr. Gaspard’s affidavit, which was executed
in 2019, cannot speak to the condition of the camper in 2022. Mr. Gaspard’s
affidavit does not address the manner in which Camping World stored the camper.
The Gaspards simply submitted no evidence that the camper was damaged while in
the possession of Camping World.
The affidavit of Mr. Gaspard, for the most part, merely restates the conclusory
allegations found in Plaintiffs’ petition. “[A]ffidavits with conclusory allegations of
fact[,] which are devoid of specific facts[,] are not sufficient to defeat summary
6 In their brief, the Gaspards cite La.Code Civ.P. art. 2937; however, we note that there is no such article. The language quoted in their brief is from La.Civ.Code art. 2930.
11 judgment.” Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1633, p. 16
(La. 4/23/10), 35 So.3d 1053, 1062. “In opposing a motion for summary judgment,
a plaintiff may not satisfy his burden of showing he will be able to satisfy his
evidentiary burden at trial by resting on mere allegations or by filing self-serving
conclusory affidavits which merely restate those allegations.” Sicard v. Sicard, 11-
423, p. 8 (La.App. 5 Cir. 12/28/11), 82 So.3d 565, 568-569. The Gaspards have
failed to produce any factual support sufficient to show that they would be able to
carry their evidentiary burden of proving that Camping World is liable under the
corporate successor doctrine, that Camping World breached any duty it may have
had as a depositary, or that Camping World was negligent in any way. Furthermore,
as noted above, this affidavit was signed some three years before this motion for
summary judgment was filed by Camping World and does not address the issues
raised in Camping World’s motion.
V.
CONCLUSION
Pursuant to La.Code Civ.P. art. 966(A)(3), “a motion for summary judgment
shall be granted if the motion, memorandum, and supporting documents show that
there is no genuine issue as to material fact and that the mover is entitled to judgment
as a matter of law.” For the reasons detailed herein, Plaintiffs, Anthony J. Gaspard
and his wife, Terri L. Gaspard, failed to present any factual support sufficient to
establish the existence of any genuine issues of material fact in this case. We affirm
the grant of summary judgment in favor of Defendant/Appellee, Camping World RV
Sales, LLC, dismissing, with prejudice, the suit filed by Plaintiffs/Appellants,
relative to their purchase of the 2014 Keystone Fuzion camper, model 395, bearing
Vehicle Identification Number 4YDF3953XEF811007.
12 AFFIRMED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.