Joiner v. Bill Hood Ford, Inc.

843 So. 2d 1147, 2002 La.App. 1 Cir. 0996, 2003 La. App. LEXIS 790, 2003 WL 1759609
CourtLouisiana Court of Appeal
DecidedApril 2, 2003
DocketNo. 2002 CA 0996
StatusPublished
Cited by2 cases

This text of 843 So. 2d 1147 (Joiner v. Bill Hood 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
Joiner v. Bill Hood Ford, Inc., 843 So. 2d 1147, 2002 La.App. 1 Cir. 0996, 2003 La. App. LEXIS 790, 2003 WL 1759609 (La. Ct. App. 2003).

Opinions

| .PETTIGREW, J.

In this case, plaintiffs filed a motion to dissolve a writ of sequestration that had previously been issued by the trial court. After hearing testimony and argument on the motion, the trial court denied same, finding that there was no contract of sale between the parties and that defendant owned the truck in question. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 28, 2001, plaintiffs, Todd and Carla Joiner (the “Joiners”) visited an automobile dealership owned and operated by defendant, Bill Hood Ford, Inc. (“Bill Hood”), for the purpose of purchasing a vehicle. After deciding on a 2000 Ford F-350 Pickup Truck, the Joiners indicated their intent to trade in their 1998 Ford Mustang and were offered a gross trade-in allowance of $11,000.00 toward the purchase of the truck. The Joiners agreed to the offer and subsequently signed a contract entitled “RETAIL INSTALLMENT SALES CONTRACT, COMBINATION PROMISSORY NOTE, TRUTH IN LENDING DISCLOSURE STATEMENT AND SECURITY AGREEMENT.” The contract provided for the purchase of the truck at a cash price of $26,908.31, with the understanding that Bill Hood would promptly pay Ford Motor Credit Company the balance owed on the Mustang. The lender that Bill Hood was going to use for this transaction was Hibernia National Bank. However, stamped on the face of the agreement was “SUBJECT TO CREDIT APPROVAL.” After signing the contract, the Joiners left their Mustang as a trade-in and were allowed to take the Ford truck home with them.

Shortly thereafter, an employee of Bill Hood contacted the Joiners and advised [1149]*1149them that Hibernia had rejected the loan, but that a different company would be used to finance the deal. Thereafter, on May 26, 2001, the Joiners returned to Bill Hood and signed a new contract entitled “LOUISIANA SIMPLE INTEREST PROPERTY RETAIL INSTALLMENT CONTRACT,” a second document entitled “RETAIL BUYER’S ORDER/LEASE FORM,” and a final document entitled “VEHICLE APPLICATION” for the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles. According to these documents, the selling price was listed as $26,855.00. Fairlane Credit |aLLC was going to finance $25,582.36 for the Joiners’ purchase of the truck. Unlike the first contract signed by the Joiners, these documents did not have “SUBJECT TO CREDIT APPROVAL” stamped anywhere on them. However, despite the fact that the Joiners signed these documents on May 26, 2001, neither document was signed by a representative of Bill Hood. Again, the Joiners were allowed to retain possession of the truck, but were advised by a representative of Bill Hood that they would need to provide certain information in connection with their credit application. According to the record, the Joiners never produced the information necessary to complete the deal, in spite of numerous requests by Bill Hood and its representatives. Thereafter, Bill Hood asked the Joiners to return the truck, a request that the Joiners did not honor.

Sometime between the original application for credit on April 28, 2001, and the second one on May 26, 2001, Bill Hood sold the Joiners’ 1998 Mustang to a third party in Baton Rouge. When Bill Hood realized that the transaction with the Joiners was not going to be finalized, the Mustang was reacquired, and the Joiners were advised that it was at the dealership. Before the Mustang was returned to Bill Hood, it was driven approximately four thousand miles. There were also new tires and rims put on the Mustang by Bill Hood.

On August 14, 2001, the Joiners filed the instant suit for damages against Bill Hood seeking damages they suffered as a result of Bill Hood’s tortious conduct. In response, Bill Hood filed an answer, generally denying the allegations of the Joiners’ petition, and a reconventional demand, requesting a rescission of the transaction and a writ of sequestration. The truck was subsequently seized pursuant to a writ of sequestration that was issued without bond and was signed by the trial court on September 6, 2001. A $5,000.00 bond was later posted by Bill Hood on October 17, 2001.

On November 9, 2001, this matter came before the trial court on a motion filed by the Joiners to dissolve the writ of sequestration. After hearing the evidence and arguments from counsel, the trial court denied the motion for dissolution of the writ of sequestration, finding that no contract existed between the Joiners and Bill Hood. A judgment in accordance with the court’s findings was signed on January 22, 2002, | ¿wherein the court ordered that the judgment be deemed final for purposes of appeal. It is from this judgment that the Joiners have appealed, assigning the following specifications of error:

1. The trial court erred when it failed to dissolve a Writ of Sequestration which was obtained prematurely and in improper form as it lacked the required security provided in LA. C.C.P. Article 3501 (i.e. a bond) and the demonstration of a lawful cause.
2. The trial court erred when it failed to find a contract of sale existed and was ratified when, despite the lack of signatures, a buyer signs a contract that is not marked “subject to credit approval” [1150]*1150and relinquishes their vehicle as a trade-in, which was sold to a third party before being offered to be returned in an altered condition.

VALIDITY OF THE WRIT OF SEQUESTRATION (Assignment of Error 1)

In their first assignment of error, the Joiners assert that the writ issued by the trial court on September 6, 2001, was obtained prematurely and was in improper form because it lacked the security required by La.Code Civ. P. art. 3501. We disagree.

The Louisiana Supreme Court has described a writ of sequestration as an “extremely harsh remedy which is only extended where the formalities of the law have been strictly and literally complied with.” Hancock Bank v. Alexander, 256 La. 643, 652, 237 So.2d 669, 672 (1970); Matherne v. Estate of Matherne, 341 So.2d 1254, 1257 (La.App. 1 Cir.1976), writ denied, 343 So.2d 1072 (La.1977). Pursuant to La.Code Civ. P. art. 3501, a writ of sequestration “shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.” Article 3501 further provides that anyone applying for a writ of sequestration “shall furnish security as required by law.”

Louisiana Code of Civil Procedure article 3571 prescribes the grounds for sequestration as follows:

When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.

| sWith regard to the security required for a writ of sequestration, La.Code Civ. P. art. 3574 provides that “[a]n applicant for a writ of sequestration shall furnish security for an amount determined by the court to be sufficient to protect the defendant against any damage resulting from a wrongful issuance, unless security is dispensed with by law.” Moreover, under certain circumstances, the court may order sequestration on its own motion. Pursuant to La.Code Civ. P. art.

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843 So. 2d 1147, 2002 La.App. 1 Cir. 0996, 2003 La. App. LEXIS 790, 2003 WL 1759609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joiner-v-bill-hood-ford-inc-lactapp-2003.