Fly v. Allstar Ford Lincoln Mercury, Inc.

690 So. 2d 759, 1996 WL 622901
CourtLouisiana Court of Appeal
DecidedAugust 21, 1996
Docket95 CA 1216
StatusPublished
Cited by10 cases

This text of 690 So. 2d 759 (Fly v. Allstar Ford Lincoln Mercury, 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
Fly v. Allstar Ford Lincoln Mercury, Inc., 690 So. 2d 759, 1996 WL 622901 (La. Ct. App. 1996).

Opinion

690 So.2d 759 (1996)

Richard J. FLY
v.
ALLSTAR FORD LINCOLN MERCURY, INC., Ford Motor Corporation, and Premier Bank, National Association.

No. 95 CA 1216.

Court of Appeal of Louisiana, First Circuit.

August 21, 1996.

*760 Thomas J. Bergman, Baton Rouge, for Plaintiff-Appellee Richard J. Fly.

Robert W. Maxwell, J. Jeffery Raborn, Pulaski, Gieger & Laborde, New Orleans, for Defendants-Appellants Allstar Ford Lincoln Mercury, Inc., and Ford Motor Corporation.

Before SHORTESS, PARRO and KUHN, JJ.

PARRO, Judge.

This appeal stems from an action in redhibition filed by plaintiff, Richard J. Fly ("Fly"). Defendants, Allstar Ford Lincoln Mercury, Inc. ("Allstar") and Ford Motor Company ("Ford"), appeal a judgment rendered in accordance with a jury verdict which awarded Fly a reduction in purchase price, expenses, and attorney fees. We amend in part and, as amended, affirm.

FACTS AND PROCEDURAL HISTORY

On July 2, 1992, Fly purchased a Ford Ranger truck from Allstar for $16,222.75. Shortly after the purchase, Fly noticed the engine warning light would occasionally come on and he became concerned. He returned the vehicle to Allstar on several occasions over the next few weeks, but the problem was not corrected. Although he never experienced mechanical failure with the truck, Fly returned it to Allstar less than two months after its purchase and left it there.

Fly ceased payments on his note to Premier Bank ("Premier"), through which he had financed the truck, and Premier eventually had the vehicle seized by the sheriff. Fly instituted a redhibition suit against Allstar, Ford and Premier. Premier purchased the truck at the sheriff's sale and eventually *761 repaired and sold it, then reconvened against Fly for a deficiency judgment.

Ford filed a motion in limine to restrict Fly's action to one for a reduction in price since the vehicle was no longer in Fly's possession and therefore could not be returned to the seller pursuant to a rescission of the sale based on redhibition. The trial court granted Ford's motion.

Premier's reconventional demand against Fly for a deficiency judgment was heard by the trial court outside the presence of the jury, and Premier was awarded $16,652.02 plus interest at the rate of 11.95% from December 4, 1992, together with 25% attorney fees, subject to a credit of $5,758.26 for the net proceeds of the sheriff's sale on October 27, 1993. The matter then proceeded to trial before the jury on the quanti minoris claim.

The jury rendered its verdict in favor of Fly and against Allstar and Ford.[1] Fly was awarded $12,913.86 as a reduction in the purchase price of the vehicle; $7,079.20 for loss of use, inconvenience, and expenses for accessories; and $9,375 as reasonable attorney fees.

Allstar and Ford appeal this judgment. They contend the trial court erred in admitting testimony about Premier's deficiency judgment against Fly and in allowing plaintiff's counsel to re-open his case to present evidence of attorney fees. They also claim the jury erred in finding the vehicle was defective, in awarding an excessive reduction in the purchase price and excessive amounts for damages and attorney fees.

STANDARD OF REVIEW

The existence of a defect in the product sold is a question of fact to be determined by the trier of fact. Long v. Panther Airboat Corp., 453 So.2d 304, 308 (La.App. 1st Cir.1984). Similarly, the avoidance of a sale or a reduction in the purchase price as a remedy for defects in a product is a factual question, the resolution of which is best left to the trier of fact. Vincent v. Hyundai Corp., 633 So.2d 240, 243 (La.App. 1st Cir. 1993), writ denied, 93-3118 (La. 2/11/94), 634 So.2d 832. A court of appeal may not set aside a fact finder's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La.1987). Before an appellate court may reverse a fact finder's determinations, it must find from the record that a reasonable factual basis does not exist for the findings and that the record establishes that the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993); see Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

DEFECT

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold which renders it 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. LSA-C.C. art. 2520.[2] In a suit for redhibition, the plaintiff must prove: 1) the seller sold the thing to him and it is either absolutely useless for its intended purpose or its use is so inconvenient or imperfect that, judged by the reasonable person standard, had he known of the defect, he would never have purchased it; 2) the thing contained a non-apparent defect at the time of sale; and 3) the seller was given an opportunity to repair the defect. Vincent v. Hyundai Corp., 633 So.2d at 243. If defects exist which merely diminish the value or utility of the vehicle, constituting a partial failure of consideration, a reduction in the purchase price, rather than a rescission of the sale, is the appropriate remedy. LSA-C.C. arts. 2541-44; Id. at 245; Rhodes v. All *762 Star Ford, Inc., 599 So.2d 812, 815 (La.App. 1st Cir.1992).

In this case, since the vehicle could no longer be returned to the seller, the trial court ruled rescission of the sale would be inappropriate and, were any defect found, Fly's recovery would be limited to a reduction in purchase price and recovery of expenses, including attorney fees. This ruling was correct. See Bourne v. Rein Chrysler-Plymouth, Inc., 463 So.2d 1356 (La.App. 1st Cir.1984), writ denied, 468 So.2d 570 (La. 1985). Our initial inquiry, therefore, is whether there is a reasonable factual basis in the record for the jury's finding that the vehicle was defective.

Fly's main complaint after purchasing the truck was the intermittent illumination of the engine warning light. The first time this occurred was on the day after he bought the vehicle, and when he brought it to the dealership, he was told to continue driving the truck. Because the problem continued, he returned to Allstar on July 13 and left the truck there for two days. When he complained again on July 15, he was told to continue driving the vehicle.

Fly testified he took the truck on vacation, but returned ahead of schedule because the engine warning light was still coming on and he noticed difficulties starting the truck in the mornings. He also experienced decreased and erratic gas mileage and an idling problem. He brought the truck to Allstar on July 24, and a new on-board computer was installed. On August 3, he was back at Allstar with the same complaints about the engine warning light and gas mileage. The truck remained at Allstar two or three days. The last time he returned the vehicle to Allstar on August 11, 1992, it remained there three days. Fly testified that when he went to Allstar to retrieve his truck after the last repair attempt, he noticed the engine warning light came on again as the truck was being brought to him. He told Allstar personnel he did not care to keep the truck and left the vehicle at the dealership.

Fly testified he liked everything about the truck, but felt he could not depend on it.

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Cite This Page — Counsel Stack

Bluebook (online)
690 So. 2d 759, 1996 WL 622901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fly-v-allstar-ford-lincoln-mercury-inc-lactapp-1996.