McDonald v. Orr Motors of Little Rock, Inc.

256 So. 3d 1132
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2018
DocketNo. 52,225-CA
StatusPublished
Cited by2 cases

This text of 256 So. 3d 1132 (McDonald v. Orr Motors of Little Rock, 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
McDonald v. Orr Motors of Little Rock, Inc., 256 So. 3d 1132 (La. Ct. App. 2018).

Opinion

STONE, J.

*1135The trial court granted a peremptory exception filed by Orr Motors of Little Rock, Inc. d/b/a Sparks Nissan Kia Real Estate, L.L.C., and found Emma W. McDonald failed to prove that the contract whereby she purchased a new car should be rescinded. For the reasons set forth herein, we affirm the judgment of the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 30, 2010, Emma W. McDonald ("McDonald") entered into a contract with Orr Motors of Little Rock, Inc. d/b/a Sparks Nissan Kia Real Estate, LLC ("Sparks Nissan"), wherein McDonald purchased a 2011 Kia Optima LX ("the Kia") from Sparks Nissan for $23,225 before tax ("the transaction").

On the date of the transaction, McDonald was in her late fifties and had previously been prescribed a number of medications, including medications for blood pressure and diabetes. She was not out of any of the medications; however, she had run out of the test strips for her glucometer which tests her glucose levels. She needed to test her glucose level to determine how much insulin she should take. She drove herself to Walgreens. Upon her arrival, she discovered the pharmacy did not have the brand of test strips she required. She chose not to purchase a new meter and left the pharmacy without any test strips.

After leaving Walgreens, McDonald drove around to "unwind," as her blood sugar level was high due to her inability to take her insulin. During her drive, she stopped at Sparks Nissan dealership where she was greeted by salesman Jesse Eldridge ("Eldridge"). Eldridge allowed McDonald to test drive the Kia while he rode with her. After all credits were applied and sales tax and other fees were charged, McDonald financed a total amount of $18,991.84. As part of the purchase, McDonald traded in her 1995 Ford Contour. Her trade-in allowance for the vehicle was $1,650.1 Additionally, McDonald issued two $2,500 checks to the dealership as down payment for the Kia, including one post-dated check. McDonald drove the Kia home that same day.

The next day, McDonald went back to Sparks Nissan, as well as Capital One Auto Finance ("Capital One"), the institution that financed the Kia, and asked to rescind the transaction. According to McDonald, when she purchased the Kia, she was mentally impaired due to her high blood sugar levels and had no recollection of the purchase. Sparks Nissan refused to rescind the sale. McDonald stopped payment on the two $2,500 checks and did not make any payments on the Kia. Capital One repossessed the Kia and, thereafter, sold it at an auction. The proceeds of the sale were applied to McDonald's loan, leaving a remaining balance of $198.2

On January 28, 2011, McDonald filed suit against Sparks Nissan seeking rescission of the transaction alleging she was "so tired or lacking in her ability to understand since she had not taken all her medications during the day of the date of sale, and that consent by her was lacking to create a binding contract." McDonald also sought the return of her trade-in vehicle. Sparks Nissan filed an answer to McDonald's petition on February 10, 2011, *1136seeking a judgment against McDonald in the amount of $5,000, the total sum for the down payment checks McDonald stopped payment on.

On July 22, 2014, McDonald filed a supplemental and amended petition asserting the transaction constituted fraudulent practices and was a violation of the Louisiana Unfair Trade Practice Act ("LUTPA"). McDonald alleged that Sparks Nissan, in an effort to get Capital One to agree to finance the Kia, represented that McDonald had paid a $5,000 down payment, when in fact one of the $2,500 checks was post-dated; and that Sparks had represented that her monthly income was $3,500, when in fact it was not.

On August 2, 2014, Sparks Nissan filed a dilatory exception of vagueness and/or ambiguity and peremptory exceptions of no right of action and/or no cause of action, both of which were denied by the trial court. Sparks Nissan filed an additional peremptory exception on December 9, 2012, seeking to dismiss all claims asserted by McDonald under LUTPA because she failed to bring the claims within the applicable one-year peremptive period. The trial court sustained Spark Nissan's exception of peremption, finding that McDonald's causes of action set forth in the supplemental and amending petition were perempted as they were not filed within one year of the date of the sale, and they did not relate back to McDonald's original petition. The trial court dismissed all the causes of action under LUTPA set forth in McDonald's supplemental and amended petition.

A trial on the claims stated in McDonald's original petition and on Spark Nissan's counterclaim was held on August 9, 2017. After all evidence had been adduced, the trial court entered judgment against McDonald, finding she failed to prove the sale of the Kia should be rescinded. The trial court also denied Spark Nissan's counterclaim against McDonald.

DISCUSSION

McDonald essentially raises two assignments of error on appeal. First, McDonald asserts the trial judge erred as a matter of law in sustaining Sparks Nissan's exception of peremption. McDonald asserts her supplemental and amended petition adding the LUTPA cause of action relates back to her original petition in accordance with La. C.C.P. art. 1153, and therefore, her claim did not prescribe. In her second assignment of error, McDonald contends the trial court erred in finding she did not prove her claim for rescission.

Peremptory Exception of Peremption

Peremption is defined in La. C.C. art. 3458 as a period of time during which a right can be exercised and provides that "[u]nless timely exercised, the right is extinguished upon the expiration of the peremptive period." In Cote' v. Hiller, 49,623 (La. App. 2 Cir. 02/27/15), 162 So.3d 608, it is explained that, although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation; peremption, however, extinguishes or destroys the right.

La. R.S. 51:1409 establishes causes of action under the LUTPA and defines the time limits within which actions must be brought. It states in pertinent part as follows:

A. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair *1137or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs. Upon a finding by the court that an action under this Section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney fees and costs.
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Bluebook (online)
256 So. 3d 1132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-orr-motors-of-little-rock-inc-lactapp-2018.