Chrysler Credit Corp. v. Harris

417 So. 2d 1370, 1982 La. App. LEXIS 7794
CourtLouisiana Court of Appeal
DecidedJuly 9, 1982
DocketNo. 12968
StatusPublished
Cited by1 cases

This text of 417 So. 2d 1370 (Chrysler Credit Corp. v. Harris) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chrysler Credit Corp. v. Harris, 417 So. 2d 1370, 1982 La. App. LEXIS 7794 (La. Ct. App. 1982).

Opinions

WARD, Judge.

This is an appeal by Ethel Harris from a District Court summary judgment in favor of Chrysler Credit Corporation [Chrysler Credit].

The judgment, commonly called a deficiency judgment, was for the balance due on a promissory note signed by Mrs. Harris on August 30, 1977, when she purchased an automobile from Star Chrysler-Plymouth Sales, Inc. [Star Chrysler]. Chrysler Credit financed the purchase and became the holder of a consumer credit contract which contained a promissory note and a chattel mortgage. Almost one year later, on August 28, 1978, Mrs. Harris filed a redhibi-tory action against Star Chrysler in the District Court, and thereafter, in November 1979, she stopped making payments on the promissory note. In January 1980, Chrysler Credit sued on the note and mortgage for executory process; judgment was rendered in favor of Chrysler Credit, and Mrs. Harris’s automobile was seized and sold. After the sale of the automobile, the proceeds [1371]*1371were applied to Mrs. Harris’s note, and Chrysler Credit sued for a deficiency judgment for the balance. Mrs. Harris answered by denying she owed Chrysler Credit anything under the note. She also pleaded as a defense her suit for redhibition that was pending against Star Chrysler, and she asked for judgment dismissing Chrysler Credit’s petition. After the answer, Chrysler Credit moved for summary judgment and supported that motion with an affidavit of its collection manager.

Counsel for Mrs. Harris did not file either an affidavit or a deposition, or answers to interrogatories, or admissions by Chrysler Credit to oppose the motion for summary judgment; rather, he was content to rely on the answer in his pleadings. The Trial Judge 'nevertheless rendered summary judgment in favor of Chrysler Credit, which Mrs. Harris now appeals. She contends the pleadings, her answer, were sufficient to defeat the motion for summary judgment, and the Trial Judge erred when he granted it.

We disagree. We believe the Trial Judge correctly rendered summary judgment, and we affirm for the following reasons.

While it is true that summary judgment is not to be used as a substitute for a full trial of controverted fact issues, its purpose is to provide a procedural device to determine before trial whether there is a genuine issue of fact, and “. .. judgment sought shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. Art. 966.

In this case the pleadings of Chrysler Credit stated a cause of action, and the affidavit supported the pleadings. The affidavit showed that Mrs. Harris had not made the payments required by the terms of her promissory note; that Chrysler Credit, through executory process, had the automobile seized and sold; and that the proceeds of the sale were applied to the note, but a deficiency remains.

Mrs. Harris did not file counter-affidavits; she filed an answer, however, which not only was a general denial, but also was an affirmative defense:

ANSWER
NOW INTO COURT, through undersigned counsel comes Ethel W. Harris, defendant herein, and in answer to said suit does state:
I.
Articles I, II, III, IV and V are denied.
AND NOW FURTHER ANSWERING, defendant does state:
1.
That she offered to tender said vehicle to petitioners herein as a result of defects in said vehicle, but that petitioners did refuse said tender; that she has filed a suit herein entitled “Ethel W. Harris versus Star Chrysler-Plymouth Sales, Inc.,” bearing number 78-12739, setting forth various allegations relative to defects in said vehicle, and therein requesting rescission of said sale; that she does plead those allegations contained in the above-mentioned suit as if copied in extenso.
WHEREFORE, the premises considered, petitioner prays that this answer be deemed good and sufficient, and after all due proceedings that there be judgment-herein in favor of Ethel W. Harris, dismissing the petition of Chrysler Credit Corporation, at its cost;
Petitioner further prays for all general and equitable relief.

Because Mrs. Harris did not file counter-affidavits, or any other proof, there is not a genuine issue of fact as to matters alleged in Chrysler Credit’s petition. Chrysler Credit, therefore, was entitled to summary judgment, unless Mrs. Harris’s affirmative defense, unsupported by affidavits, was sufficient to defeat a motion for summary judgment.

We do not believe Mrs. Harris’s pleadings were sufficient, for several reasons: they [1372]*1372did not show there was a genuine issue of fact as to matters alleged by Chrysler Credit, and they were not, moreover, supported by an affidavit. Although Mrs. Harris, in her answer, referred to pleadings in a different lawsuit filed in another section of court, that record was not offered as evidence. In other words, she did nothing but file an answer. For that proposition we rely on LSA-C.C.P. Art. 967, which states:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Further, we believe that Chrysler Credit did not have to refute by affidavit or otherwise the allegations made by Mrs. Harris in her affirmative defense to obtain a summary judgment. Facts to support an affirmative defense are largely within the knowledge of the defendant who alleges them, and the defendant should bear the burden of supporting those allegations by affidavits or other means. We believe this view is supported by the law and common sénse. The law, LSA-C.C.P. Art. 967, requires that the response be supported, and we interpret this to include pleadings which allege an affirmative defense. Common sense dictates this rule. Otherwise, the wildest unsupported allegations in an answer will defeat any motion for a summary judgment.

We recognize that there are exceptions to the rule that the failure of an adverse party to file counter-affidavits will result in a summary judgment. The exceptions to the general rule, however, “all stand for the principle that counter-affidavits need not be filed by the party opposing summary judgment if the motion for summary judgment has not been properly made.” Harris Mortgage Corporation v. Johnson, 383 So.2d 801 (La.App. 1st Cir. 1980). As an example, in Blount v. Exxon Corporation, 395 So.2d 355 (La.App. 1st Cir. 1981), the First Circuit found that the lower court erred in granting summary judgment when affidavits filed by Exxon, the moving party and the only one to file affidavits, failed to establish there was not a genuine issue of material fact.

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Bluebook (online)
417 So. 2d 1370, 1982 La. App. LEXIS 7794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chrysler-credit-corp-v-harris-lactapp-1982.