Conrad v. Lamarque Ford, Inc.

13 So. 3d 1154, 8 La.App. 5 Cir. 673, 2009 La. App. LEXIS 795, 2009 WL 1324759
CourtLouisiana Court of Appeal
DecidedMay 12, 2009
Docket08-CA-673
StatusPublished
Cited by7 cases

This text of 13 So. 3d 1154 (Conrad v. Lamarque Ford, Inc.) 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
Conrad v. Lamarque Ford, Inc., 13 So. 3d 1154, 8 La.App. 5 Cir. 673, 2009 La. App. LEXIS 795, 2009 WL 1324759 (La. Ct. App. 2009).

Opinions

FREDERICKA HOMBERG WICKER, Judge.

1 ^Lamarque Ford Inc. appeals a final judgment certifying a class of “All persons who purchased a vehicle from Lamarque Ford from 1998 through the present, who were entitled to a rebate, but whose purchase documents do not disclose that they received that rebate.” Lamarque contends on appeal that the trial court erred by certifying the class. We disagree with Lamarque’s contentions and affirm the judgment.

Factual Background

Plaintiffs/Appellees George H. Conrad and Brian Arthur as purported class representatives sued defendant/appellant Lamarque1 due to its alleged failure to provide them with manufacturer rebates on their vehicle purchases. William P. Chauvin and William T. Cochran, Jr. later joined the suit as class representatives. The plaintiffs alleged that they purchased vehicles from Lamarque in 1999 and | ¡¡2000. They alleged that the manufacturer provided rebates for these vehicles but Lamarque did not so advise them. Instead, Lamarque received the rebate from the manufacturer when it should have been paid to the plaintiffs. They further alleged that in each case there was a “Customer Cash Authorization” form, which allowed Lamarque to receive the rebates. The plaintiffs alleged that a signature purporting to be that of each plaintiff was affixed to provide such authorization but [1157]*1157none of the plaintiffs actually signed the form.

In the original and supplemental petitions, the plaintiffs defined the class as follows: “[a]ll persons who purchased motor vehicles from the defendant [who] were also entitled to rebates which were not disclosed to them, for which they received no credit and which were converted by the defendant.”

The plaintiffs alleged various causes of action, including fraud. They sought to recover the rebates, a refund of all loán finance charges or credit service charges, attorneys’ fees, and costs.

The court held a hearing on the request for class certification on November 28, 2007. On the morning of the hearing, plaintiffs’ counsel orally revised the parameters of the requested class definition to “all persons who purchased a vehicle from Lamarque Ford from 1998 through the present, who were entitled to a rebate, but whose purchase documents do not disclose that they received that rebate.” The revised definition changed in two respects. First, it now limited the membership in the class to those who purchased vehicles “from 1998 through the present” rather than “all persons who purchased vehicles.” Second, it removed the requirements that the member received no credit for the rebate and that the dealer converted the rebate. Rather, the member need only show that the person was entitled to a rebate, but his purchase documents did not disclose that he received the rebate.

RPlaintiffs argued that the goal at the certification hearing was not to prove whether the plaintiffs received the rebate. Plaintiffs’ counsel explained that the defendant only provided dealer files of the named plaintiffs but refused to give any further information. He stated that in order to engage in further discovery, to determine class membership, the class must be defined. However, plaintiffs’ counsel had documents that had already been produced in other litigation involving the defendant that he would attempt to introduce that day. He argued that the other files clearly indicated that these individuals were entitled to rebates but the documents did not reveal that they received them.

Lamarque’s counsel pointed out that the plaintiffs were attempting to change the definition of the class presented in their petition. He stated that the newly-defined class might essentially include almost everyone who purchased a vehicle. Also, he stated that the plaintiffs were trying to obtain class certification in order to conduct a fishing expedition and subpoena all of the defendant’s records. Counsel further stated that if the court proceeded to conduct a hearing to certify the class as newly-defined, he would “certainly put on a defense to that.” Thus, counsel did not specifically object to the trial judge’s proceeding with the hearing.

Plaintiffs’ counsel responded that he did not have to prove his case in a class certification hearing. At first, he stated that he would prove the elements required for class certification “after the class gets certified,” thus suggesting that he conceded that he did not meet the requirements for class certification. Next, however, he explained that he merely had to prove the elements required for class certification. He stated that whether or not the putative members actually did receive the rebate would be subject to further proof. Therefore, considering his statements in context, it appears that counsel was merely indicating that proof of the merits of the claims was inappropriate for a class certification hearing. He tasked the court for an opportunity to call witnesses and asked that the class be certified in accordance with his newly-defined class.

[1158]*1158The trial judge replied: “Go ahead, call your first witness.”

Plaintiffs’ counsel introduced 1999 and 2000 customer sales documents from Lam-arque for thirty-eight customers involving approximately twenty-six salespersons.2 These sales pertained to various models and sales prices.

With the exception of one file, all files introduced into evidence included a document labeled “Customer Cash Payment Authorization.” One section of the authorization described incentive information for the vehicle, listing program number(s) and dealer amount(s).3 A second section provided the customer with two options. Option “A” was an assignment of the cash incentive to the dealer, Lamarque. Option “B” was direct payment to the customer. Also included on the document was a signature which purported to be that of the customer selecting Option “A,” the assignment.

Of the thirty-eight customer files introduced into evidence, twenty-two contained a “Retail Buyers Orders” form with the purported purchaser’s signature indicating that the form was explained to them and that they understood it. The “Retail Buyers Orders” form included a section labeled “Rebates.” But in those twenty-two cases, the rebate was not disclosed on the retail buyers order in that section or otherwise noted on the retail buyers order. Of these twenty-two, the files also contained a purported assignment of the rebate to Lamarque.

Of the thirty-eight customers’ files, thirteen contained the vehicle application to the state as well as the rebate assignment to Lamarque. The vehicle | ^application to the state in those thirteen files, however, did not disclose the rebate in the section provided for that purpose.4

Plaintiffs’ counsel called William P. Chauvin, a purported class representative, and Guy Perniciario, a long-term Lam-arque employee, as witnesses. Mr. Chau-vin was the only plaintiff to testify at the hearing. He stated that he purchased a vehicle from the defendant in 2000. The rebate was never discussed with him at any time during the purchase negotiations. Although his signature was purportedly on the document assigning the rebate to Lam-arque, he testified that he did not sign the document.

Guy Perniciario testified that he was one of the two salespersons who handled the Chauvin sale. Counsel referred Mr. Per-niciario to Mr. Chauvin’s customer file documents. Mr. Perniciario agreed that Mr.

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13 So. 3d 1154, 8 La.App. 5 Cir. 673, 2009 La. App. LEXIS 795, 2009 WL 1324759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conrad-v-lamarque-ford-inc-lactapp-2009.