Ray Chevrolet-Olds, Inc. v. Garbarino

479 So. 2d 374, 1985 La. App. LEXIS 10147
CourtLouisiana Court of Appeal
DecidedNovember 7, 1985
DocketNo. 84-812
StatusPublished
Cited by1 cases

This text of 479 So. 2d 374 (Ray Chevrolet-Olds, Inc. v. Garbarino) 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
Ray Chevrolet-Olds, Inc. v. Garbarino, 479 So. 2d 374, 1985 La. App. LEXIS 10147 (La. Ct. App. 1985).

Opinion

DOMENGEAUX, Judge.

This appeal arises from a suit to enforce specific performance of a contract of sale filed by Ray Chevrolet-Olds, Inc., plaintiff-appellant, against Helene H.K. Garbarino, defendant-appellee. The plaintiff brought this suit to recover the purchase price of a 1983 Oldsmobile Regency automobile which it claims the defendant purchased from the plaintiff. The defendant countered by claiming that the automobile delivered to her by plaintiff was not the vehicle she had agreed to purchase. The district judge dismissed the plaintiff’s case.

Upon making the decision to purchase a new automobile, Mrs. Garbarino initially visited Wilson Motors, an Oldsmobile dealership in Lake Charles. Mr. Steve Fox, a salesman for Wilson Motors, assisted Mrs. Garbarino while she shopped at the dealership. Mrs. Garbarino and Mr. Fox testified that Mrs. Garbarino found an automobile which she wished to purchase on the Wilson lot; however, she was informed that this automobile had been committed to another buyer and was not available for sale. The automobile Mrs. Garbarino saw at the Lake Charles dealership was a light sand grey exterior color with a maple top and interior.

Mrs. Garbarino decided that if the vehicle would be ordered, she would prefer to order it through the Oldsmobile dealership in Jennings, an agency with whom she had dealt for some twenty years. To further assist Mrs. Garbarino, Mr. Fox wrote the color “light sand grey metallic, maple top,” on the back of his business card and gave it to Mrs. Garbarino.

During the same time period, the plaintiff, Ray Chevrolet-Olds, Inc., was in the process of purchasing the Jennings Oldsmobile dealership. Therefore, in order to maintain her business dealings with the Jennings dealership, the defendant contacted the plaintiff dealership about the purchase of a car.

Mr. and Mrs. Garbarino met with the plaintiff’s sales manager, Mr. Roger J. Gu-ilbeau, Jr. on a Sunday. Mrs. Garbarino testified that there was no automobile of the color that she wanted available on the plaintiff’s lot so she decided to place an order for a car.

At this point in our narrative the facts come into dispute.

Mrs. Garbarino claims that she ordered a light sand grey automobile. Mr. Guilbeau, the plaintiff’s sales manager, testified that light sand grey was never mentioned and after consulting a color chart Mrs. Garbari-no ordered a silver car. Needless to say, a silver car was ordered for Mrs. Garbarino.

Several weeks later Mrs. Garbarino was advised that her vehicle was available for delivery. Mrs. Garbarino and her husband went to the dealership in Abbeville to pick up the auto at about 11:00 A.M. on June 15, 1983. Upon arriving at the plaintiff’s place of business they were informed that Mr. Guilbeau was not in and so they went to lunch and returned to the dealership at about 2:30 P.M. when Mr. Guilbeau had returned.

Mrs. Garbarino testified that June 15, 1983, was a rainy, overcast day and that she looked at the car under the lights of the dealership showroom.

[376]*376Defendant and Mr. Guilbeau then removed to Mr. Guilbeau’s office to discuss the sale price and a bug screen and large spare tire which were to be added to the automobile. Mrs. Garbarino testified that she had expected and intended to pay for the automobile through the Regency Oldsmobile dealership which plaintiff was opening the following week in Jennings. However, she was required to purchase the car through Ray Chevrolet-Olds, Inc.

Mrs. Garbarino wrote a check for the auto and drove it back to Jennings. She testified that upon arriving at home and on further inspection she realized that the automobile was not the color she had ordered.

Again there is conflict in the testimony as she stated that on Saturday night, June 18, 1983, she phoned Mr. Guilbeau and explained that the car was not the auto which she had ordered. Mr. Guilbeau denied having received a telephone call from Mrs. Garbarino.

In any event, the car was returned to the Jennings dealership on Monday, June 20, 1983, and Mrs. Garbarino put a stop-payment order on the check she had issued for the auto.

At the time of trial the auto remained at the dealership’s lot in Jennings.

The district judge dismissed the plaintiffs case. In his reasons for ruling the trial judge noted, “[t]he vehicle delivered to Mrs. Garbarino was not the vehicle she ordered and was delivered to her by misrepresentation of plaintiff and its employees and therefore, there was no agreement between the parties as to the sale.”

The plaintiff-appellant appeals the decision of the district court and files three specifications of error:

(1) The district court erred “in finding Plaintiff Appellant’s witness, Mr. Roger Guilbeau, unworthy of belief and in finding that Defendant Appellee was a credible and believable witness.”

(2) The district court erred in failing to find that plaintiff-appellant and defendant-appellee entered into a binding contract of sale.

(3)The district court erred in failing to rule that the failure of the defendant to call her husband as a witness creates a presumption that his testimony would have been adverse to the defendant.

SPECIFICATION OF ERROR NO. 1

The appellant argues that the district judge erred in finding that the appellant’s witness, Mr. Roger Guilbeau, was not a credible witness and that the defendant was a credible and believable witness. In essence the appellant wishes us to review the district judge’s factual determination.

In the district judge’s written reasons for judgment he provided insight and explanation as to why he believed Mrs. Garbarino’s account of the events which transpired in the sale transaction. He noted:

“Without going into any details, for the record will speak for itself as will his deposition, Mr. Guilbeau contradicted himself on numerous occasions to the extent that the Court did not believe him to be a credible witness and the Court could not rely on or believe his testimony.
On the other hand, this Court heard Mrs. Garbarino’s testimony and finds that her testimony was not only accurate, but was credible and believable.”

For an appellate court to overturn the factual determination of the district court it must find that the factual determination of the trial court is clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

What we have here is a common eviden-tiary dilemma: Two competing interested parties whose version of the facts are in conflict. Such a situation was envisioned by our Supreme Court when it held in Canter v. Koehring, 283 So.2d 716 (La.1973):

“the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of [377]*377fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

Here, the district judge observed the demeanor of both Mr. Guilbeau and Mrs. Garbarino as they testified, which placed him in a position to make a just determination of credibility.

Furthermore, a review of the record indicates that the district judge did not err in finding that Mrs.

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479 So. 2d 374, 1985 La. App. LEXIS 10147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-chevrolet-olds-inc-v-garbarino-lactapp-1985.