McGowan v. Ramey

484 So. 2d 785
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1986
DocketCA841270
StatusPublished
Cited by26 cases

This text of 484 So. 2d 785 (McGowan v. Ramey) 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
McGowan v. Ramey, 484 So. 2d 785 (La. Ct. App. 1986).

Opinion

484 So.2d 785 (1986)

Willie Mae McGOWAN
v.
H.L. RAMEY, et al.

No. CA841270.

Court of Appeal of Louisiana, First Circuit.

February 25, 1986.

*786 Otha C. Nelson, Sr., Baton Rouge, for plaintiff-appellant Willie Mae McGowan.

R. Loren Kleinpeter, Baton Rouge, for defendant-appellee All American Assur. Co.

Daniel H. Taylor, Baton Rouge, for defendant-appellee H.L. Ramey, Budget Finance of Baton Rouge Inc. Rambin Corp.

H. Evans Scobee, Baton Rouge, for defendant-appellee American Motorists Ins. Co.

Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.

LANIER, Judge.

This suit commenced as cumulated causes of action in tort and unfair trade practices.

PROCEDURAL HISTORY

This suit was filed on July 22, 1980. The plaintiff, Willie Mae McGowan, alleged the following: (1) On October 13, 1978, she borrowed money from Budget Finance of Baton Rouge, Inc. (Budget)—the loan was to be repaid in monthly installments and the loan was secured by a chattel mortgage; (2) on August 3, 1979, she went to Budget's office in Baton Rouge, Louisiana, and spoke to Budget's employee, H.L. Ramey, about lowering her monthly payments; (3) Ramey "became angry and violent and said to petitioner, `If you treat me right I will fix your bill'" and then committed a battery on her; (4) as a result of this battery, she fell down on the sidewalk outside the Budget office and further injured herself; (5) such actions by Budget and its employee are unfair or deceptive acts or practices in a consumer transaction and are proscribed by the Louisiana Unfair Trade Practices and Consumer Protection Law, La.R.S. 51:1401 et seq.; and (6) she sought treble damages and attorney fees. The Rambin Corporation (Rambin) was made a defendant. Budget was wholly owned by Rambin and both corporations are now defunct. American Motorist Insurance Company was made a defendant as the insurer of Budget and Rambin.

Ramey, Budget, Rambin and American jointly answered the petition. In the answer, they pled a peremptory exception asserting the objections of no cause of action and no right of action. They contended McGowan did not have "any cause of action" for treble damages and attorney fees and does not have "any right of action" for such claims. They further assert McGowan does not have a cause or a right of action against them for unfair trade practices because she has failed to allege the unfair trade practice took place after being put on notice by the director or attorney general as provided in La.R.S. 51:1409. Apparently, these exceptions were referred to the merits because the record does not reflect that they were disposed of prior to trial.

After a trial ending on July 21, 1982, a jury rendered a verdict which held in special interrogatories that (1) Ramey did not commit an assault or battery on McGowan; (2) Ramey did engage in an unfair trade practice toward McGowan; (3) Ramey was in the course and scope of his employment with Budget when he committed the unfair trade practice; and (4) the damages were $25,000. On August 3, 1982, in accordance with the jury verdict, the trial court rendered judgment in favor of McGowan against Ramey, Budget, Rambin and American for $25,000.

American filed alternative motions for new trial and judgment notwithstanding the verdict, contending there was no evidence to support the unfair trade practice finding and it did not provide coverage for unfair trade practices. Ramey, Budget and Rambin filed alternative motions for new trial and judgment notwithstanding the verdict, contending the unfair trade practice verdict was contrary to the law and the evidence. McGowan filed a motion for a new trial, contending the verdict on the tort claim was contrary to the law and the evidence. By judgment dated September 15, 1982, the trial court rendered judgments *787 (1) denying McGowan's motion for new trial; (2) granting a new trial to Ramey, Budget and Rambin on the unfair trade practice claim after holding the jury's verdict was "clearly contrary to the law and the evidence"; and (3) granting the motion for new trial in favor of American (limited to reargument), setting aside the prior judgment against American and dismissing McGowan's claim against American with prejudice because American did not provide coverage.

McGowan took a devolutive appeal to this court on September 20, 1982. In an unpublished opinion dated October 11, 1983, this court rendered the following decisions: (1) the judgment granting the new trial to Ramey, Budget and Rambin on the unfair trade practice cause of action was not an appealable judgment, no irreparable injury was demonstrated and that portion of the appeal was not properly before the court; (2) the judgment dismissing the tort cause of action was a final judgment, interlocutory judgments relating to that claim could be reviewed with that judgment, no prejudicial error was committed on interlocutory matters, the jury verdict rejecting the tort claim was not manifestly erroneous and the dismissal of this cause of action was affirmed; and (3) McGowan's assignment of error objecting to the dismissal of her claim against American was not properly before this court because McGowan did not appeal from that judgment. Apparently, these rulings have become final.

On December 1, 1983, McGowan filed an amended petition. The following were made party defendants therein: (1) Ramey; (2) Budget; (3) Rambin; (4) American;[1] (5) All American Assurance Company (All American); (6) Stonewall Jackson Fire Insurance Company (Stonewall);[2] and (7) Southeastern Fire Insurance of Charlotte, North Carolina (Southeastern).[3] McGowan then pled the details of her various credit transactions with Budget from 1975 to May 16, 1979. McGowan alleged All American provided credit life insurance for some of these transactions, Stonewall provided credit property insurance for some transactions *788 and Southeastern provided credit fire and property insurance for some transactions. McGowan reasserted the tort and unfair trade practices causes of action. She cumulated these two causes of action with a cause of action under the Federal Truth-in-Lending Law and Regulations, 15 U.S.C.A. § 1601 et seq. and 12 C.F.R. § 226.1 et seq. She then prayed for judgment in solido against all defendants for damages for loss of wages, medical expenses, physical injury and mental injury. She also sought treble damages and an attorney fee.

All American filed a peremptory exception pleading the objections of no cause of action and prescription. All American contended the amended petition failed to state tort, unfair trade practice and truth-in-lending causes of action against it and asserted the truth-in-lending cause of action has prescribed. This exception was heard on July 27, 1984. The trial court sustained the peremptory exception insofar as it pled the objection of no cause of action and granted McGowan 15 days from the date of the hearing to amend to state a cause of action. Judgment to this effect was signed on August 6, 1984. On August 24, 1984, the trial court granted a devolutive appeal from this judgment on written motion of McGowan.

As previously indicated, in their answer, Ramey, Budget and Rambin filed a peremptory exception pleading the objections of no cause of action and no right of action. After the amended petition was filed, Ramey, Budget and Rambin filed a second peremptory exception pleading the objections of prescription and res judicata.

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Bluebook (online)
484 So. 2d 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-ramey-lactapp-1986.