Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,551-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
FREDDY L. WILSON, BRANSON Plaintiffs-Appellants WILSON, AND ANTONIA BURKS
versus
GEICO CASUALTY COMPANY, Defendants-Appellees COURTESY CHEVROLET, INC. D/B/A CHEVYLAND, AND GENERAL MOTORS, LLC
Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana Trial Court No. 44-350
Honorable Glenn Fallin, Judge
LAW OFFICES OF JACK M. BAILEY, JR. Counsel for Appellants By: Jack M. Bailey, Jr. Valerie A. DeLatte
COTTON, BOLTON, HOYCHICK, & Counsel for Appellee DOUGHTY, LLP Courtesy Chevrolet By: John Hoychick, Jr. d/b/a Chevyland
BERNARD, CASSISA, ET AL Counsel for Appellee By: Carl J. Giffin, Jr. General Motors, LLC
Before MOORE, STEPHENS, and HUNTER, JJ. MOORE, C.J.
The plaintiffs, Freddy Wilson, his son Branson Wilson, and Branson’s
guest passenger, Antonio Burks, appeal two summary judgments that
dismissed their claims of redhibition, negligence, and personal injury against
Courtesy Chevrolet Inc., d/b/a Chevyland, arising from a single-car accident
involving a 2014 Chevy Camaro purchased from Courtesy. We affirm.
FACTUAL BACKGROUND
Wilson, who lives in Ringgold, Louisiana, bought the Camaro from
Courtesy, on Youree Drive in Shreveport, in December 2015, for the use of
his 22-year-old son, Branson. It was a “GM Certified Pre-Owned,” meaning
the car went through a 172-point inspection and the new owner was entitled
to a free oil change and tire rotation. Wilson took the Camaro back to
Courtesy in March 2016; they performed the oil change but could not rotate
the tires – the rear tires were not the same size as the front. Paperwork
showed that in those three months, Wilson and his son had put over 8,000
miles on the car.
Early on the morning of April 30, 2016, Branson was driving back to
Ringgold, north on U.S. 371, with his friend Antonio. It had been raining,
the road was wet, the area dark, and Branson was using the Camaro’s cruise
control. Branson suddenly lost control: the car veered left, crossed the
southbound lane, went off the road some 102 feet, struck an embankment,
flipped over, went airborne some 87 feet, and finally struck a tree and fell to
the ground. The car landed on its roof, the wheels pointing up. Branson and
Antonio were injured. Branson told State Trooper Michael Antilley, who came to the scene, that he hit a puddle of water and lost control. Antonio
had no recollection of what happened.
A local tow truck operator, Ronald Tipton, towed the Camaro to his
lot shortly after the accident. The car stayed there four days; on May 4,
Wilson got a friend to move it to his own (Wilson’s) property, in Ringgold,
where it has remained to this day. Wilson retained counsel; counsel hired an
expert, Carl Finocchiaro, P.E., of Spectrum Forensics, in Englewood,
Colorado, who examined the car in August 2016, primarily to see if a
vehicle recall had anything to do with the accident.
ACTION IN THE TRIAL COURT
In April 2017, Wilson, Branson, and Antonio filed this suit, in the
Second JDC, based on the accident.1 They named as defendants GEICO,
Wilson’s auto insurer; Courtesy, the seller; and General Motors (“GM”), the
manufacturer. In their petition, Wilson asserted a breach of duty of good-
faith adjustment against GEICO and a redhibition claim against Courtesy; all
three plaintiffs asserted products liability and personal injury claims against
GM; and Branson and Antonio asserted negligence and personal injury
claims against Courtesy. The alleged defect was that, as Mr. Finocchiaro
discovered several months after the accident, a nut was missing from the tie
rod on the driver’s side front wheel assembly; this, they alleged, caused the
car to veer off the road. The claim against Courtesy was that it allowed the
defective Camaro to be sold, and that it negligently performed (or failed to
perform) the 172-point inspection; if done right, this would have uncovered
the loose or missing nut.
1 In the caption, plaintiffs’ counsel misspelled the passenger as Antonia Burks. 2 Courtesy filed two exceptions of vagueness, which the district court
sustained in part. In response to that judgment, Wilson filed a first amended
petition, which not only addressed the ambiguities but specifically alleged a
breach of contract and fraud, in that Courtesy never advised him that the
Camaro had previously been in an accident.
After considerable discovery, in November 2019, Wilson dismissed
his claim against GEICO, reserving all rights against GM and Courtesy.
GEICO had declared the Camaro a total loss and paid off the loan, less
$4,000, because Wilson wanted to keep the salvage.
Motions for Summary Judgment
GM filed a motion for summary judgment in January 2020. This
alleged that in his deposition, Mr. Finocchiaro could not identify any
specific defect in the Camaro, and had no opinion whether the alleged defect
caused the accident or was due to design or manufacture.
Courtesy followed with two motions for summary judgment. The first
addressed Branson and Antonio’s claims of negligence and personal injury,
arguing that there was no evidence that the nut was missing or loose at the
time of the sale. It attached a sheaf of documents, including:
● affidavit of Jimmy Sistrunk, the mechanic who performed the 172-point inspection of the Camaro at Courtesy: he stated that the nut was present on the tie rod when he inspected the car, and there was no requirement to place a tool (torque wrench) on the nut to make sure it was really tight.
● affidavit of Jason Rinardo, Courtesy’s shop foreman: he stated that a loose nut is noticeable, and would have damaged the steering knuckle and made markings on the tie rod end; however, he looked at the Camaro, parked on Wilson’s property, and found no such damage or markings. He also said a loose nut would not cause the car to pull to one side.
● report of James P. Reil, PE, of Engineering Design & Testing Corp., Dallas, Texas, an expert retained by Courtesy: he 3 stated there was no way a loose tie rod could have “persisted” from manufacture until the accident; in his view, somebody intentionally removed the nut after the accident.
● affidavit of Ronald Tipton, who towed the car from the scene: when he arrived at the scene, most of the wheel assembly on the Camaro was broken, but the tie rod on the front driver’s side was intact.
● affidavit of Trooper Antilley, who worked the accident: he spoke to Branson twice – at the scene, and the next day, at the hospital – and neither time did Branson say anything was wrong with the Camaro, only that he hit some water and lost control.
Courtesy also cited Mr. Finocchiaro’s view that the nut was on the tie
bar when the car left GM, but off when he saw it some months after the
accident, but he did not know when or how it came off; he merely theorized
that the nut was not “adequately tightened.”
From all this, Courtesy argued there was no evidence that the nut was
missing or loose when the car was sold, nobody could tell when the nut went
missing, and, at any rate, the nut had nothing to do with causing the
accident.
Courtesy’s second motion for summary judgment addressed Wilson’s
claims of redhibition, breach of contract, and breach of warranty. This
incorporated all the attachments and arguments of its first motion, but
focused on Wilson’s statement in deposition that the only thing wrong with
the Camaro was that the “new car factory warranty * * * was not necessarily
true.” Courtesy also argued that redhibition was impossible because Wilson
already got paid for the car: he had bought it for $26,000, financing it
through GM Financial, including “gap” coverage; after the accident, GEICO
offered him $27,000, which would have left a $4,000 balance; however,
Wilson wanted to retain the salvage, so GEICO lowered its offer to $21,000,
4 which Wilson accepted; later, GM Financial honored its gap coverage and
paid the balance. In short, Wilson still owed $4,000 because he kept the
wrecked car.
Courtesy also argued that the collateral source rule does not apply
when the right of subrogation is involved: without evidence that GEICO’s
subrogation claim was waived, Wilson was not entitled to recover twice,
Ellis v. Brown, 50,690 (La. App. 2 Cir. 5/18/16), 196 So. 3d 665. Courtesy
attached the joint motion to dismiss GEICO; this recited a reservation of
rights against Courtesy and GM, but no waiver of subrogation. It also
attached the affidavit of GEICO’s attorney, Marshall Pierce, who stated that
GEICO did not waive, but retained, its right of subrogation.
Wilson opposed the second MSJ, asserting generally that the “missing
or improperly torqued nut caused the failure” of steering and caused the
ultimate crash. He also asserted that Courtesy did not properly inspect the
car before selling it; committed fraud by representing otherwise; and
breached every applicable duty of reasonable care. In support, he attached
an NHTSA recall notice, July 2, 2014, affecting 2014 Chevy Camaros
because of “improperly torqued fasteners” which may cause the lower
control arm and the lower ball joint to separate.
Six months later, Wilson filed a supplemental opposition, attaching
the nearly two-hour video deposition of Steve Horn, a Courtesy employee.
In this, Horn stated that before the Camaro came to Courtesy, it had been an
Avis rental car, and had been in a wreck in Houston, Texas, and repaired.
By contrast, Wilson had stated in his deposition that nobody at Courtesy
ever mentioned the wreck and repair, or gave him the Carfax report; had he
known about it, he would never have bought the car. Wilson also stressed a 5 portion of Mr. Finocchiaro’s deposition stating that a loose or missing nut
would cause exactly the loss of control that Branson experienced in the
Camaro; he dismissed as “unsupported” Courtesy’s position that the accident
was a result of Branson falling asleep at the wheel.
Courtesy responded, reasserting that Wilson was fully compensated
for the Camaro and GEICO had the subrogation rights; hence, there was no
redhibition action. Courtesy also showed that Mr. Finocchiaro candidly
admitted that he could not testify as to the standard of care applicable to auto
mechanics, and did not know when the nut came off. Finally, Courtesy
argued that affiants and depositions are deemed to be credible, but Wilson
was contending that they were not.
ACTION OF THE DISTRICT COURT
The matter came for a hearing on all three motions for summary
judgment in May 2021. When the court convened, GM’s counsel announced
that the plaintiffs would withdraw their opposition to GM’s motion.
Plaintiffs’ counsel confirmed: “I do not believe that I can tell the court that
there’s a viable cause of action on any basis against” GM.
After hearing argument, the district court found that even though
Wilson still owed $4,000 to GM Financial, he got to keep the wrecked car,
so he was already made whole; hence, there was no redhibition claim.
After further argument, the court expressed doubt that the technician
performing the 172-point inspection must both visually inspect the tie rod
nut and then put it under a torque wrench to make sure it is on really tight.
The court ruled that there was no genuine issue regarding negligence and
personal injury. The court granted both summary judgments and rendered
judgment dismissing all claims. 6 Wilson, Branson, and Antonio (hereinafter collectively referred to as
“Wilson”) appealed.
APPLICABLE LAW
A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of the relief sought by
a litigant. Murphy v. Savannah, 18-0991 (La. 5/8/19), 282 So. 3d 1034. The
summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of civil actions (except for certain domestic
matters) and is favored by our law. La. C.C.P. art. 966 A(2). A court must
grant a motion for summary judgment if, after an opportunity for adequate
discovery, 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. La. C.C.P. art. 966 A(3); Murphy v. Savannah,
supra.
A defendant moving for summary judgment has the burden of
pointing out to the court that there is an absence of factual support for one or
more elements essential to the plaintiff’s claim. Thereafter, if the plaintiff
fails to produce factual support to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of material fact.
La. C.C.P. art. 966 D(1); Johnson v. Purpera, 20-01175 (La. 5/13/21), 320
So. 3d 374. Mere speculation is not sufficient to create a genuine issue as to
an essential element of the plaintiff’s case and defeat a properly supported
motion for summary judgment. Gifford v. Arrington, 14-2058 (La.
11/26/14), 153 So. 3d 999; Mansoor v. Jazz Casino Co., 12-1546 (La.
9/21/12), 98 So. 3d 795; Watts v. Party Central Family Fun Ctr., 54,171
(La. App. 2 Cir. 1/12/22), 332 So. 3d 1279, writ denied, 22-00279 (La. 7 4/12/22), 336 So. 3d 81. The question whether a legal duty is owed may be
properly resolved by summary judgment. Allen v. Lockwood, 14-1724 (La.
2/13/15), 156 So. 3d 650; Bufkin v. Felipe’s La. LLC, 14-0288 (La.
10/15/14), 171 So. 3d 851; Watts v. Party Central Family Fun Ctr., supra.
Appellate review of a summary judgment is de novo, with the
appellate court using the same criteria that governed the trial court’s
determination, i.e., whether there is any genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law. Murphy v.
Savannah, supra; Watts v. Party Central Family Fun Ctr., supra. Whether a
particular fact in dispute is “material” for summary judgment purposes is
viewed in light of the substantive law applicable to the case. MB Indus. LLC
v. CNA Ins. Co., 11-0303 (La. 10/25/11), 74 So. 3d 1173; Putman v.
Costello, 53,142 (La. App. 2 Cir. 11/20/19), 284 So. 3d 1225.
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. La. C.C. art. 2520;
Modicue v. Prince of Peace Auto Sale LLC, 54,095 (La. App. 2 Cir.
9/22/21), 328 So. 3d 1239, writ denied, 21-01864 (La. 2/15/22), 332 So. 3d
1188. The buyer must prove that the vice existed before the sale was made
by him; however, if the vice appears within three days immediately
following the sale, it is presumed to have existed before the sale. La. C.C.
art. 2530; Holloway v. Gulf Motors Inc., 588 So. 2d 1322 (La. App. 2 Cir.
1991).
A buyer who obtains rescission because of a redhibitory defect is
bound to return the thing to the seller, for which purpose he must take care 8 of the thing as a prudent administrator, but is not bound to deliver it back
until all his claims, or judgments, arising from the defect are satisfied. La.
C.C. art. 2532; Gandhi v. Sonal Furniture & Custom Draperies LLC, 49,959
(La. App. 2 Cir. 7/15/15), 192 So. 3d 783, writ denied, 15-1547 (La.
10/23/15), 184 So. 3d 19. The buyer bringing an action in redhibition is
obligated to tender the object which he alleges to be defective or give a
reasonable excuse for his failure to do so. Edmundson Bros. v. F.M.
Carriere & Son Inc., 552 So. 2d 1229 (La. App. 3 Cir. 1989), writ denied,
558 So. 2d 587 (1990); Starwood v. Taylor, 434 So. 2d 1236 (La. App. 1
Cir. 1983). The collateral source rule does not apply where the right of
subrogation is involved; in such a case, the plaintiff may recover only his
remaining interest in the partially subrogated claim. Ellis v. Brown, supra,
and citations therein.
Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948.
Fraud is a misrepresentation or a suppression of the truth made with the
intention either to obtain an unjust advantage for one party or to cause a loss
or disadvantage to the other. La. C.C. art. 1953. In order to rescind a
contract for fraud, the plaintiff must prove (1) a misrepresentation by the
defendant; (2) an intent to obtain an unjust advantage; (3) that the
misrepresentation related to a circumstance significantly influencing the
victim’s consent; and (4) a relation of confidence. Henderson v. Windrush
Oper. Co., 47,659 (La. App. 2 Cir. 8/21/13), 128 So. 3d 283, writ denied,
13-2502 (La. 2/14/14), 132 So. 3d 411.
Every act whatever of man that causes damage to another obliges him
by whose fault it happened to repair it. La. C.C. art. 2315 A. Louisiana
courts have adopted a duty-risk analysis in determining whether liability 9 exists under the facts of a given case. Under this analysis, the plaintiff must
prove (1) the defendant had a duty to conform his or her conduct to a
specific standard of care; (2) the defendant failed to conform his or her
conduct to that standard; (3) the defendant’s substandard conduct was a
cause-in-fact of the plaintiff’s injuries; (4) the defendant’s substandard
conduct was a legal cause of the plaintiff’s injuries; and (5) actual damages.
Bufkin v. Felipe’s La., supra; Pinsonneault v. Merchants & Farmers Bank &
Trust Co., 01-2217 (La. 4/3/02), 816 So. 2d 270; Watts v. Party Central
Family Fun Ctr., supra.
DISCUSSION
Genuine Issues Regarding Inspection and Certification
By his first assignment of error, Wilson urges the court erred in
granting summary judgment when genuine issues of material fact exist as to
if a proper inspection of the Camaro was performed prior to “certification”
and sale to Wilson. He contends the inspection was deficient because there
was no test drive by anyone at Courtesy and because no manager signed the
inspection form. He concedes that Courtesy’s records show the car was
driven a few miles, but asserts that this is simply not enough to constitute a
true test drive. He also concedes that the service manager, Sistrunk, stated
he performed a full inspection, but argues that a reasonable person could
find that Sistrunk’s “testimony is unreliable.” He contends that Courtesy
“passed up” a second opportunity to discover the defect, when Wilson
brought the car back for an oil change in March 2016; on that occasion,
Wilson told them the car was pulling to the left, but Courtesy personnel
replied that this would require an alignment, which was not part of the
warranty, and that the tires were extremely worn, and these were also not 10 under warranty. He suggests that the worn tires contributed to the wreck.
Finally, he urges that nobody at Courtesy told him about the “previous front
end wreck” or gave him the Carfax report, which would have disclosed this.
He asserts that that accident affected the “driver’s side tire steering and
suspension systems,” contributing to the accident in this suit. He concludes
that all these discrepancies precluded the grant of summary judgment.
The defendant moving for summary judgment must first point out to
the court the absence of factual support for one or more elements essential to
the plaintiff’s claim. La. C.C.P. art. 966 D(1). To defeat the motion, the
plaintiff must produce factual support that he will be able to satisfy his
evidentiary burden at trial. Id. We have therefore examined the summary
judgment evidence, de novo, to see if it creates any genuine issues.
The 172-Point Inspection certificate showed a mileage of 28,999; the
customer acknowledgment form showed a mileage of 29,001; this suggests
the car was driven about two miles while at Courtesy. Sistrunk, the
mechanic who performed the inspection, stated by affidavit that he took the
car on a test drive. Branson testified by deposition that before they bought
the car, he took it on a test drive, with the salesman in the car, from
Courtesy’s lot down to the Circle K, about two miles each way; somehow,
those four miles are not reflected on the customer acknowledgment form.
However, the evidence shows that Courtesy drove the car about two miles,
and Branson about four. There is no record evidence, expert or lay, that
these excursions were inadequate for a test drive. We perceive no genuine
issue of material fact.
Sistrunk’s affidavit stated that he worked as an auto mechanic for 39
years, he regularly performed 172-point inspections, he performed the 11 inspection on this Camaro, and he would have seen if the nut was loose on
the tie rod stud or tie rod end; and he did not see this. Further, when he test-
drove the car, if the nut had been loose, he would have detected this in the
feel of the drive and the noise of the tie rod; he detected nothing like this.
Finally, the work he performed to make the car pass inspection, changing the
rear brake pads and refinishing the rotors, did not require him to remove the
nut on the front driver’s side tie rod. There is no record evidence to
contradict any of this. Mere speculation is not enough to defeat a properly
supported motion for summary judgment. Gifford v. Arrington, supra. The
suggestion that a jury might disbelieve the defendant’s witness is not
evidence. Babin v. Winn-Dixie La., 00-0078 (La. 6/30/00), 764 So. 2d 37; In
re Succession of Byrd, 48,996 (La. App. 2 Cir. 6/11/14), 142 So. 3d 1058.
The court must assume that all affiants are credible. Succession of Moore,
54,338 (La. App. 2 Cir. 3/30/22), __ So. 3d __; Joliboix v. Cajun Comfort
Inc., 16-414 (La. App. 3 Cir. 12/7/16), 207 So. 3d 655. We perceive no
genuine issue of material fact.
The absence of the manager’s signature on the 172-point inspection
form is more concerning. Wilson made clear that the inspection was a major
selling point for the car; Courtesy’s suggestion that the manager’s signature
was merely a contractual matter between the dealership and GM is without
factual support and seems to miss the point. However, aside from the mere
allegation, there is no evidence that the manager double checks or performs
a second inspection after the mechanic, or that the unexplained omission of
the manager’s signature casts any doubt on the adequacy or reliability of the
inspection. Viewing this record de novo, we find no genuine issue of
material fact. 12 Wilson stated in deposition that nobody at Courtesy ever gave him the
Carfax report for this car; he argues in brief that this would have disclosed
the prior accident, which affected the same area of the Camaro that later
failed, causing this accident. However, Branson testified that he got the
Carfax report. Mr. Reil, Courtesy’s expert engineer, examined these records
and testified that when the Camaro was owned by Avis, it was in an accident
in September 2014, in Houston; the crash data retrieval system showed that
it was going only 12 mph and the airbags did not deploy. Repairs included a
new front license plate panel, a bumper absorber, a lower grille, front end
cover and panel brackets, one light bulb, and paint, costing $826.
Courtesy’s shop manager, Jason Rinardo, stated by affidavit that this
damage had no effect on the nut holding the tie rod to the steering assembly
and tire. There is no evidence that the minor accident in Houston did
anything to the tie rod nut or created any defect. We perceive no genuine
Finally, Wilson contends that Courtesy missed a second opportunity
to uncover the defect, when he brought the car back for a scheduled oil
change in March 2016. He testified that three or four weeks before this, he
noticed that the car would pull or veer slightly to the left when driven at
slower speeds, up to about 45 mph; at 60 mph, it did not happen. When he
brought the car in for the oil change, he reported this, and the service
manager replied it was probably due for a tire rotation; when he picked up
the car, the service manager said, “It’s ready to go.” However, Wilson said
the car was still having the problem, and sometime later he told his salesman
about it. The salesman replied that he probably needed an alignment, but
Wilson admitted he did not ask for the alignment. 13 Steve Horn, the Courtesy representative who certified all Courtesy’s
records involving the Camaro, stated by affidavit that the tires could not be
rotated because the rear tires were larger than the front ones (the work order
stated “No Rotation”), and there was no evidence that Wilson asked for an
alignment. He added that Sistrunk, who performed the inspection and
changed the oil, never hesitated to make work orders or perform repairs
when so requested.
In short, the summary judgment evidence does not support the claim
that the initial inspection or the scheduled maintenance was inadequate or
fraudulent. This assignment of error lacks merit.
Genuine Issues Regarding Cause of Accident
By his second assignment of error, Wilson urges the court erred in
granting summary judgment when the experts offered competing opinions as
to the cause of the crash and the defective condition of the Camaro. He
concedes where his expert, Mr. Finocchiaro, and Courtesy’s, Mr. Reil,
agreed: the tie rod separated from the steering knuckle on the front driver’s
side, because the nut was missing; and the nut had separated from the rod
without damaging the ball stem, so it did not pop off as a result of the
collision. However, he argues that Mr. Finocchiaro testified that the nut
came off close in time before the crash, and the separation of the tie rod
from the steering knuckle caused the car to leave the roadway. In Wilson’s
view, Mr. Finocchiaro concluded that the loss of the nut initiated the
accident. Wilson concludes that with this expert opinion, the court could not
have found no genuine issue of material fact.
We have closely read Mr. Finocchiaro’s deposition and find that his
factual observations do not support the “conclusion” that the nut came off 14 shortly before the accident. He stated that the nut was in place when the car
left GM, and missing when he examined it on Wilson’s property in August
2016. Otherwise, he had no information whether the nut was adequately (or
inadequately) tightened: “I can’t describe how that came to be.” He testified
that had the nut come loose, it would have left evidence in the form of
“chatter” in the steering knuckle, but he found no such “chatter.” He also
testified when the nut is properly attached, it can be removed only by
significant pressure from a torque wrench; he had no information whether
someone came to the site and removed the nut after the accident. Finally, he
admitted that he performed no accident reconstruction. In short, he cited no
factual support for his theory that the nut came loose shortly before the
accident, and he conceded many facts that would refute that theory.
The parts of Mr. Finocchiaro’s deposition that refute the conclusion
are supported by other evidence. Courtesy’s shop foreman, Rinardo, stated
by affidavit that he inspected the Camaro, on Wilson’s property, and found
that the tie rod was bent, and the stud threads were free of markings or
deformity; neither of these would be the case if the nut had come off before
the accident. Courtesy’s expert engineer, Mr. Reil, testified that when he
examined the Camaro, the front wheel assembly was still attached, but this
would not be the case if the tie rod had separated from the steering knuckle
pre-impact. He also testified that if the nut had been loose, it would have
come off well before 3½ years and 37,000 miles. He concluded that the
most likely explanation for the missing nut was “human intent.” Finally, the
tow truck driver, Tipton, stated by deposition that when he arrived at the
scene of the accident, the Camaro was lying wheels-up; before he attached it
to his truck, “the tie rod on the front driver’s side was still holding the wheel 15 onto the vehicle.” Nothing in Mr. Finocchiaro’s deposition disputes any of
these findings.
The expert’s interesting – yet unsupported – opinion simply does not
show that Wilson would be able to offer any evidence creating a genuine
This court also recognizes that aside from speculation about the tie
rod nut, there was ample evidence of other causes of the accident. Mr. Reil
measured the tire treads at between 1/32 inch (left rear) and 5/32 inch (left
front), very close to the level (2/32 inch) where replacement is advised;
Tipton, the tow truck driver, confirmed that the tires were “slick and not in
good shape.” The summary judgment evidence shows that the accident
occurred on a slick road after rain. Trooper Antilley stated in deposition that
both at the scene and the next day, in the hospital, Branson told him that
water in the roadway caused him to slide off the road; in his own deposition,
Branson admitted that he may have said this to the trooper. According to
Antilley, Branson never ascribed the accident to any mechanical problems.
On this large record, the expert’s hypothesis regarding when the tie
rod nut came loose is not supported and does not create a genuine issue of
material fact. This assignment of error lacks merit.
Genuine Issues Regarding Redhibition
By his third assignment of error, Wilson urges the court erred in
granting summary judgment when genuine issues of material fact exist as to
redhibition. He asserts that he is still $4,000 in debt to GM Financial, so he
has not been made whole. He shows that a bad-faith seller is liable for
return of the purchase price, reasonable expenses, damages, and attorney
fees, La. C.C. art. 2545, and argues that because it failed to disclose all the 16 problems with the Camaro, Courtesy is a bad-faith seller. He also shows
that the buyer need not show the precise cause of the defect, but merely the
existence of the defect, to prevail in redhibition, Wilks v. Ramsey Auto
Brokers, 48,738 (La. App. 2 Cir. 1/15/14), 132 So. 3d 1009. He concedes
that when he settled with GEICO, he owed $25,302.72 on the car, GEICO
paid the creditor $21,524, and he (Wilson) was allowed to keep the salvage,
but he argues this was “required” due to the ongoing litigation, so he should
have a redhibition claim for the balance.
Although this record is unusually long, the summary judgment
evidence regarding redhibition is straightforward. When he dismissed his
claim against GM, Wilson conceded that the Camaro had no defects when it
left GM. The 172-point inspection checklist shows that suspension system
and gear/rack and pinion were inspected and passed; Sistrunk, the mechanic
who performed the inspection, stated by affidavit that the tie rod nut was in
place when he saw it; had it been missing or loose, he would have noticed it.
Mr. Finocchiaro, Wilson’s expert, expressly declined to state an opinion as
to the duty of care of a mechanic performing such an inspection, or that
Sistrunk’s conduct was substandard. The only irregularity in the inspection
is that the checklist, signed by Sistrunk, was not also signed by a manager;
however, there is no summary judgment evidence to show that this affected
the validity of the inspection. In short, there is no summary judgment
evidence that the nut was loose or missing when the car left Courtesy and,
hence, no genuine issue as to that essential element of a redhibition claim
under Art. 2530.
Wilson correctly shows that he is still about $4,000 in debt for the car.
However, the summary judgment evidence shows that Wilson released his 17 insurer, GEICO, with a reservation of rights against GM and Courtesy. The
affidavit of GEICO’s lawyer, Mr. Pearce, stated that GEICO did not waive
subrogation; Wilson offered no summary judgment evidence to contradict
this. On this showing, the collateral source rule does not apply, and Wilson
has no redhibition claim. Ellis v. Brown, supra. There is no genuine issue
of material fact that Wilson has been fully compensated for the car, by
insurance proceeds and retention of salvage.
This assignment of error lacks merit.
Other Alleged Errors
Although Wilson did not formally designate this as an assignment of
error, he argues in brief that the court erred in dismissing Courtesy when the
plaintiffs’ claims for fraud and breach of contract were never before the
court. He contends that in February 2018, he received leave of court to
amend his petition, and did so to add claims of fraud and breach of contract.
He argues that these claims were not addressed by either of Courtesy’s
motions for summary judgment, so even if the court’s ruling was correct, it
was overbroad for failing to consider these claims.
This court and others have recognized that redhibition and breach of
contract are distinct claims: they have different prescriptive periods, and
judgment rejecting one is not res judicata as to the other. Cameron v. Bruce,
47,463 (La. App. 2 Cir. 9/26/12), 106 So. 3d 587, writ denied, 12-2346 (La.
12/14/12), 104 So. 3d 446; Davidson v. Sanders, 18-308 (La. App. 3 Cir.
12/6/18), 261 So. 3d 889; Berman Daferner Inc. v. Causey, 97-1647 (La.
App. 1 Cir. 9/25/98), 723 So. 2d 467.
Wilson correctly shows that, in response to two exceptions of
vagueness, he filed a first amended petition on February 9, 2018, alleging 18 breach of contract and fraud against Courtesy. However, Courtesy’s motion
for summary judgment, filed over 18 months later, specifically referred to
Wilson’s claim “that there is a breach of contract” and that he “was not
informed of those defects.” In short, both issues were properly before the
district court when it ruled on the motions. Wilson’s argument to the
contrary lacks merit.
On the merits, this record does not show enough evidence to create a
genuine issue whether Courtesy misrepresented the condition of the Camaro
or whether the absence of the manager’s signature invalidated the 172-point
inspection. And, for the reasons already discussed, the evidence does not
create a genuine issue whether any defect was present at the time of the sale.
Judgment was proper, as a matter of law, dismissing the claims of fraud and
breach of contract.
CONCLUSION
For the reasons discussed, the judgments granting the motions for
summary judgment are affirmed. All costs are to be paid by the appellants,
Freddy Wilson, Branson Wilson, and Antonio Burks.
AFFIRMED.