Davis v. Hixson Autoplex of Monroe, L.L.C.

249 So. 3d 177
CourtLouisiana Court of Appeal
DecidedMay 23, 2018
DocketNo. 51,991–CW
StatusPublished
Cited by4 cases

This text of 249 So. 3d 177 (Davis v. Hixson Autoplex of Monroe, L.L.C.) 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
Davis v. Hixson Autoplex of Monroe, L.L.C., 249 So. 3d 177 (La. Ct. App. 2018).

Opinion

STEPHENS, J.

*179Defendant, Hixson Autoplex of Monroe, LLC, filed a writ application in this court following the denial of its motion for summary judgment by the Monroe City Court, Parish of Ouachita, State of Louisiana, in a lawsuit for damages brought by Janella Davis. The writ was granted to docket. For the following reasons, we grant the writ, reverse the trial court and grant defendant's motion for summary judgment, dismissing Davis's suit with prejudice.

FACTS

Davis filed a petition for damages on July 21, 2016, alleging that Hixson Autoplex of Monroe, LLC ("Hixson"), failed to properly diagnose problems with her 2006 BMW 5 Series (the "vehicle") and its failure to do so resulted in further damage to the vehicle. In response, Hixson filed a dilatory exception of vagueness which resulted in the parties entering into a consent judgment to clarify that the sole act of negligence alleged by Davis is "failure to diagnose the problem of the vehicle." Hixson subsequently filed an answer denying the allegations and a motion for summary judgment asserting Davis would not be able to meet her burden at trial. That motion was denied and Hixson sought a supervisory writ, which this court granted to docket.1

The vehicle was purchased by Davis in 2014 for $13,670.00 and had a history of repairs prior to Davis purchasing it. On June 21 or 22 of 2015, Davis noticed a temperature warning light appear while driving the vehicle, and she had it towed to Hixson. John Wheat, a certified master technician employed by Hixson, inspected the vehicle and found there was a leak at the coolant pump and the radiator cap was faulty. With Davis's approval, Wheat replaced the coolant pump, thermostat, radiator cap, vent pipe, and hose clamp for a total cost of $1,550.00 to Davis.

The vehicle continued to give the same temperature warning, causing Davis to have it towed and inspected twice more, on July 6 and 9, 2015. On July 6, Davis was told the problem was resolved by adding another clamp on a hose, and on July 9, she was told the problem was an air pocket because they did not see where coolant was leaking. On July 10, 2015, the engine light came on. Hixson was unable to inspect the vehicle the following day because it was a Saturday. The engine light subsequently went off.

Then on July 16, 2015, the engine light came back on, and the vehicle began vibrating. Davis drove it to Hixson where an inspection revealed that on one occasion the vehicle exhibited a permanent fault caused by a misfire with cylinder cutout. Davis was told the problem was unrelated to the prior coolant problem and was probably caused by a faulty ignition coil. No work by Hixson was performed at this time.

The next day, the coolant light came on, and Davis's husband returned the vehicle to Hixson. Hixson was unable to detect a leak, so it placed dye in the car in an attempt to determine where the coolant was going. By the time Davis's husband got home, he observed no coolant remained in the vehicle.

On July 20, 2015, Davis's husband added coolant to the vehicle at which time white smoke appeared; they had the vehicle towed back to Hixson. Wheat inspected the vehicle and determined that due to the continued problems with the coolant system, *180the next step to address the issue was to completely disassemble and inspect the entire coolant system. Hixson estimated it would cost approximately $1,500.00 to have the entire coolant system disassembled for diagnosis. Davis claims Hixson informed her at this time that it believed the vehicle may have a cracked head from when it initially came to Hixson and it was the engine that needed to be broken down for diagnosis, not the coolant system. Either way, Davis did not authorize the work by Hixson and none was performed.

Davis subsequently took the vehicle to another repairmen, Sedric Bosley, who disassembled the engine and discovered the engine block was cracked which required the engine to be replaced. Davis purchased a used engine for $2,850.00 which Bosley installed. She paid an additional $2,300.00 in parts and labor in connection with replacing the engine.

Davis brought a suit for damages against Hixson, alleging that Hixson was negligent in failing to properly diagnose the problem with her vehicle and that its negligence caused her vehicle to continue to "run hot," which then caused her engine block to crack. In response, Hixson filed an answer and motion for summary judgment. In support of its motion, Hixson attached a memorandum, a certified copy of the consent judgment clarifying the sole allegation of failure to diagnose, and an affidavit executed by Wheat wherein he detailed the precise actions taken by Hixson on Davis's vehicle. Davis did not file an opposition or any documents in opposition to Hixson's motion for summary judgment and made no objections to the documents Hixson filed in support of its motion.

A hearing on the motion was subsequently held on September 19, 2017, and the motion was denied orally at the conclusion of the hearing on September 19, 2017. Hours after the hearing and the denial of Hixson's motion, Davis filed into the record two affidavits executed by herself and Sedric Bosley. Thereafter, Hixson filed an application for supervisory writ that this court granted on December 7, 2017. Subsequently, on December 22, the trial court signed a judgment reducing its previous oral denial of the motion to writing.

DISCUSSION

Hixson asserts in its first two assignments of error that the trial court erred by denying its motion for summary judgment despite the fact that Davis failed to file an opposition or introduce evidence, and that it erred by considering filings in the record that were not introduced by either party in either support or opposition to the motion. We agree.

The denial of a motion for summary judgment is an interlocutory judgment that is not appealable, but may be considered at the appellate court's discretion under its plenary powers to exercise supervisory jurisdiction over the trial courts. Louisiana Power & Light Co. v. Slaughter , 2004-2361 (La. App. 1 Cir. 11/4/05), 917 So.2d 532, writ denied , 2006-0217 (La. 4/24/06), 926 So.2d 550. When the overruling of an exception is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co. v. Hotel Investors of New Iberia , 396 So.2d 878 (La. 1981) ; Csaszar v. Nat'l Cas. Co., 2014-1273 (La. App. 3 Cir. 11/4/15), 177 So.3d 807, 809, writ denied , 2015-2221 (La. 1/25/16), 185 So.3d 752.

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249 So. 3d 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-hixson-autoplex-of-monroe-llc-lactapp-2018.