BRIAN BROWN v. BILL HOOD FORD ANTHONY LAMOUREUX AND MOTORS LIQUIDATION COMPANY

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Court of Appeal of Louisiana, First Circuit.

BRIAN BROWN v. BILL HOOD FORD, L.L.C., ANTHONY J. LAMOUREUX, AND MOTORS LIQUIDATION COMPANY

NO. 2015 CA 1636

Decided: January 31, 2017

BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. David A. Lowe, Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Brian Brown Paul L. Billingsley, Shawn A. McKee, Hammond, Louisiana Counsel for Defendant/Appellee Bill Hood Ford, L.L.C.

This appeal is taken from a summary judgment rendered by the Twenty-First Judicial District Court in favor of the defendant-appellee, Bill Hood Ford, L.L.C., dismissing all the claims of Brian Brown, plaintiff-appellant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The instant case involves a General Motors (GM) 2006 Chevrolet Corvette that was first sold in Florida. Due to a defect involving the transmission and clutch, GM attempted to repair the Corvette. As a result of GM's failure to repair the Corvette, GM bought the vehicle back from the original owner. The State of Florida “branded” the title, indicating the Corvette was a buyback, due to a defective clutch. The Corvette was subsequently transferred to Florida Auto Auction of Orlando.

In June of 2007, the Corvette was purchased at auction by Hood Motor Company, L.L.C. (“Hood Motor”), d/b/a Hood Automotive. At the sale, GM informed Hood Motor that the Corvette had a branded title and was repurchased by GM. On June 11, 2007, Hood Motor sold the Corvette to Bill Hood Ford, L.L.C. (“Bill Hood”).

On June 20, 2007, the Corvette was sold to Anthony J. Lamoureux, an employee of Bill Hood, for the price of $36,780.00. A State of Louisiana Disclosure of Nonconformity to Warranty was executed at the time of sale, pursuant to La. R.S. 51:1945.1.1 This document and the GM Disclosure Notice of Nonconformity both indicate that the Corvette was sold to Mr. Lamoureux by Hood Automotive, as the signature of Thomas J. Hood, a representative for Hood Automotive, appears on both documents along with Mr. Lamoureux's signature. Bill Hood did not register the Corvette's title as branded when it sold the Corvette to Mr. Lamoureux.

At the time of Mr. Lamoureux's purchase, the Corvette became subject to a “12/12000 Buyback Limited Warranty” that would end either twelve months after the date of sale to Mr. Lamoureux or after 12,000 miles, whichever occurred first. The original manufacturer's warranty was a three year/36,000 mile warranty, beginning February 2, 2006, at ten miles. It was Mr. Lamoureux's understanding that the original warranty was still in effect at the time he purchased the Corvette, and he intended to own the Corvette until the original warranty expired.

In May of 2008, Mr. Lamoureux traded in the Corvette to Bill Hood, with the mileage on the Corvette increased by 13,580 miles. Mr. Lamoureux never experienced any material defects with the Corvette. Brian Brown subsequently purchased the Corvette on November 29, 2008, with an odometer reading of 17,860 miles. Mr. Lamoureux participated in the sale by selling to Mr. Brown an extended warranty on the car. The cash price of the Corvette in that sale was $35,135.00, with tax. The title Mr. Brown received does not appear to be branded, and Mr. Lamoureux never disclosed to Mr. Brown that the title was branded.

Mr. Brown filed a petition for damages against Bill Hood, Mr. Lamoureux, and Motors Liquidation Company 2 on November 30, 2009. Mr. Brown does not state in the petition that the Corvette exhibited any mechanical or physical defects while he owned it; rather, he claims that by failing to disclose the branded title to him upon his purchase of the Corvette, he suffered financial loss by purchasing a vehicle that was either worthless or a fraction of the price for which he paid. Mr. Brown alleges negligence, intentional tort, breach of duty, fraud, conspiracy, unfair trade practices, and detrimental reliance as causes of action, and violation of the Louisiana “Lemon Law,” La. R.S. 51:1941, et seq.

Bill Hood filed a motion for summary judgment. In a judgment signed May 11, 2015, the trial court granted Bill Hood's motion for summary judgment. The trial court included written reasons within the judgment that a warranty was in effect at the time Mr. Brown purchased the Corvette and that Louisiana law did not require Bill Hood to make any disclosure to Mr. Brown. Mr. Brown's demands against Bill Hood were dismissed.

PRELIMINARY ISSUE- DECRETAL LANGUAGE

Initially we note that the trial court's final judgment is problematic as to its form. The judgment, which is titled “summary judgment,” is essentially written reasons with decretal language. In the first paragraph, the trial court states that it is dismissing Mr. Brown's demands “based upon the Louisiana ‘Lemon Law,’ and specifically La. R.S. 51:1941 [et seq.] [a]nd, in particular, La. R.S. 51:1945.1.” Subsequently, in the decree, the trial court states it is dismissing Mr. Brown's “demands at the cost of [Mr. Brown].” The decree does not state whether the dismissal is with or without prejudice.

This Court's appellate jurisdiction extends only to final judgments. La. C.C.P. 2083(A), Adair Asset Management, LLC/US Bank v. Honey Bear Lodge, Inc., 2012-1690 (La. App. 1 Cir. 2/13/14), 138 So.3d 6, 16. A final judgment must be precise, definite, and certain, and must contain certain decretal language that names the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Id. Out of caution, we will decide sua sponte whether we have appellate jurisdiction over the instant case. See Motorola, Inc. v. Associated Indem. Corp., 2002-1351 (La. App. 1 Cir. 10/22/03), 867 So.2d 723, 725.

When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment. La. C.C.P. art. 1918. Clearly the trial court did not follow this procedural requirement, but we find the error is not fatal to the judgment. A document that is titled “judgment” (or in this case, “summary judgment”), which contains decretal language is not invalid merely because written reasons are included in the body of the document, as long as it determines the rights of the parties and awards the relief to which they are entitled. See Conley v. Plantation Management Co., L.L.C., 2012-1510 (La. App. 1 Cir. 5/6/13), 117 So.3d 542, 547, writ denied, 2013-1300 (La. 9/20/13), 123 So.3d 178, citing Hinchman v. International Brotherhood of Electrical Workers, Local Union No. 130, 292 So.2d 717, 720 (La. 1974). Therefore, as long as the trial court's judgment is valid as to all other requirements of form, including written reasons with the decree is permissible.

While the reasons for judgment state at the outset that Mr. Brown's “Lemon Law” claims are dismissed, the decree states that his “demands” are dismissed. A final judgment can be inconsistent with the written reasons. Written reasons are considered to be interlocutory rulings and do not carry the finality of a judgment. Thurman v. Thurman, 521 So.2d 579, 581 (La. App. 1 Cir. 1988). As such, we deem the decree's language that the “demands” against Bill Hood are dismissed to mean that all of Mr. Brown's demands against Bill Hood are dismissed.

Finally, we note that the judgment does not specify whether the dismissal of Mr. Brown's demands are with or without prejudice. When a judgment is silent as to whether it is being dismissed with or without prejudice, the dismissal must be without prejudice. Collins v. Ward, 2015-1993 (La. App. 1 Cir. 9/16/16), ___ So.3d ___; State ex rel. Dep't of Soc. Serv. V. A.P., 2002-2372 (La. App. 1 Cir. 6/20/03), 858 So.2d 498, 503 n. 10. Therefore, the dismissal is without prejudice, and the judgment is final and appealable.

ASSIGNMENTS OF ERROR

Mr. Brown asserts five assignments of error:

1. The trial court erred in dismissing Mr. Brown's claims under La. R.S. 51:1941, et seq. via summary judgment.

2. The trial court erred in concluding that Mr. Brown did not establish that the Corvette failed to conform with Bill Hood's express warranties.

3. The trial court erred in concluding that Bill Hood was entitled to summary judgment dismissing Mr. Brown's redhibition claim.

4. The trial court erred in dismissing Mr. Brown's claims that were not addressed in Bill Hood's motion for summary judgment.

5. The trial court erred in concluding that Bill Hood carried its burden of proof in establishing that a warranty covered the Corvette when it sold the Corvette to Mr. Brown.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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(C)(2)3 , Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669, 686.

DISCUSSION

Mr. Brown avers in his first assignment of error that the trial court should not have granted summary judgment based on La. R.S. 51:1941, et seq. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. Duncan v. U.S.A.A. Ins. Co., 2006-0363 (La. 11/29/06), 950 So.2d 544, 546. The trial court stated that there were no triable genuine issues of material fact, and we agree. The trial court dedicates most of its written reasons to Mr. Brown's claim under the Louisiana “Lemon Law.” Although Mr. Brown does not cite La. R.S. 51:1941, et seq. specifically in his petition, there are sufficient allegations contained in the pleading, such as referring to the Corvette as a “lemon” and claiming that the defendants breached their duty to disclose the Corvette's defect, from which a claim under the Lemon Law can be constructed.

The first sale of the Corvette that took place in Louisiana was to Mr. Lamoureux, either by Hood Automotive or Bill Hood. The exact name of the seller is not important to the instant case.4 What is significant is that Mr. Lamoureux was made aware of the Corvette's nonconformity pursuant to La. R.S. 51:1945.1. After Mr. Lamoureux traded in the Corvette to Bill Hood, Bill Hood subsequently sold the Corvette to Mr. Brown, again in Louisiana. The record does not contain any notice of disclosure of nonconformity documents signed by Mr. Brown.

Louisiana Revised Statutes 51:1945.1(A) applies the mandatory disclosure to any second-hand vehicle “previously returned to a manufacturer for nonconformity to its warranty pursuant to the requirements of [Title 51, Chapter 27: Motor Vehicle Warranties].” The Corvette was returned to the manufacturer pursuant to the laws of the State of Florida, and therefore La. R.S. 51:1945.1 has no applicability to this case. Mr. Brown's first assignment of error has no merit.

Mr. Brown claims in his second and fifth assignments of error that the Corvette failed to conform to Bill Hood's express warranties and that the Corvette was not covered by any warranty on the date of purchase. We disagree. Initially we note that Mr. Brown has not claimed the Corvette is mechanically defective. He has presented no evidence of any apparent defect in the clutch or any other mechanism which placed the Corvette out of service.

Three express warranties are involved in the instant case. The original manufacturer's warranty came into effect on February 2, 2006, when the Corvette had ten miles on its odometer. That warranty was to last until February 2, 2009, or 36,010 miles, whichever occurred first. When Mr. Lamoureux purchased the Corvette, it became subject to a limited buyback warranty, beginning June 25, 2007 and 4,280 miles, which reflected the date of the sale and the Corvette's odometer reading at that time. This warranty was to expire either on June 25, 2008, or at 16,280 miles, whichever occurred first. Mr. Brown purchased the Corvette on November 29, 2008, with the odometer reading 17,860 miles. Therefore, at the time of this sale, the limited buyback warranty had expired, but the original manufacturer's warranty was in effect, both by time and by mileage. Mr. Brown also purchased an extension on the warranty.

Mr. Brown claims that when Mr. Lamoureux purchased the Corvette, the original manufacturer's warranty expired after twelve months or 12,000 miles of Mr. Lamoureux's ownership of the Corvette. However, Mr. Brown is misreading the GM Resale Disclosure Notice of Nonconformity form. The pertinent section states: “From the date of delivery of this motor vehicle to the next consumer, the remainder of the manufacturer's original warranty will apply. In no case shall the warranty be less than 12 months or 12,000 miles ․ , whichever comes first.” (Emphasis added.)

The “next consumer” was Mr. Lamoureux, and the original warranty was still in effect. Had there been less than twelve months or 12,000 miles left on the original warranty, it would have been extended to at least twelve months or until another 12,000 miles were reached on the odometer, whichever occurred first. However, that was not the case. At the time Mr. Lamoureux purchased the Corvette, approximately twenty months remained on the original warranty, as well as approximately 31,730 miles. The original warranty outlasted the limited buyback warranty, and contrary to Mr. Brown's assertions, the original warranty was in effect when he purchased the extension.

Louisiana Revised Statutes 51:1943(A)(1) requires that vehicles conform to their express warranties. It contemplates vehicles that have been subject to repair in order to conform the vehicle to the express warranty. The record indicates the Corvette underwent such a repair only one time, in the state of Florida. Neither Mr. Lamoureux nor Mr. Brown delivered the Corvette for repairs. Louisiana Revised Statutes 51:1943 does not apply to the instant case, as no evidence of the Corvette's nonconformity to its express warranty is found in the record. We find that the original manufacturer's warranty was in effect at the time Mr. Brown purchased the Corvette, and that it did conform to the express warranty. Mr. Brown's second and fifth assignments of error have no merit.

In his third assignment of error, Mr. Brown claims the trial court should have found Bill Hood liable under the laws of redhibition. Louisiana Civil Code article 2520 states the warranty against redhibitory defects as follows:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.

A defect is redhibitory when it renders the thing useless, or its use is so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives the buyer the right to obtain rescission of the sale.

A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Aucoin v. Southern Quality Homes, LLC, 2007-1014 (La. 2/26/08), 984 So.2d 685, 690-91.

Mr. Brown has not claimed the Corvette is useless. Therefore, the second paragraph of article 2520 does not apply. Mr. Brown instead claims that the Corvette has no practical value due to its branded title. Such a claim is baseless. A review of the record illustrates neither Mr. Brown nor Mr. Lamoureux brought the Corvette in for repair due to mechanical problems. Mechanically, the Corvette is functional. It certainly possesses practical value.

To successfully apply the third paragraph of article 2520, Mr. Brown must satisfy the presumption that a buyer would still have bought the used Corvette for a lesser price. No such evidence exists in the record. If the Corvette is worth less than what Mr. Brown paid, he has not presented evidence to show what the Corvette should have been worth without the branded title, or what the Corvette is worth with the branded title. It is clear from the record that on June 20, 2007, Mr. Lamoureux, with knowledge of the branded title, purchased the used Corvette with 4,280 miles for the price of $36,780. On November 29, 2008, Mr. Brown, without knowledge of the branded title, purchased the same used Corvette with 17,860 miles for the price of $35,135. Mr. Brown has only brought a self-serving allegation that he would have paid less for the used vehicle had he known the title was branded. Mr. Brown has failed to satisfy his burden of proof to trigger the third paragraph of article 2520. Thus, Mr. Brown's third assignment of error lacks merit.

In the fourth assignment of error, Mr. Brown claims the trial court erred by dismissing all of his claims, when not all the claims were addressed in Bill Hood's motion for summary judgment. The motion for summary judgment does not mention Mr. Brown's claims. It simply states that there is no issue of material fact in the case. The summary judgment signed by the trial court cannot be characterized as a partial summary judgment since it addressed all the claims of the petition, albeit some more than others.

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F)(1). Although Bill Hood's memorandum in support of summary judgment focuses on certain claims, the motion itself does not; however, the motion also contains an affidavit and exhibits, all of which, when taken as a whole, can be used to adjudicate all the claims. As such, the trial court did not violate La. C.C.P. art. 966(F)(1) in addressing and disposing of all of Mr. Brown's claims. See Duplantis v. Miller, 2014-1070 (La. App. 3 Cir. 3/4/15), 159 So.3d 1153, 1158.

In our review of the fraud, tort, unfair trade practices, and other claims alleged by Mr. Brown, we find that the record supports the trial court's determination that there is no triable issue of material fact in the instant case. We rely on the same evidence discussed supra to make this determination. The fourth assignment of error lacks merit.

DECREE

The summary judgment of the Twenty-First Judicial District Court in favor of Bill Hood Ford, L.L.C., the appellee, is affirmed. All costs in this matter are assessed to the appellant, Brian Brown.

AFFIRMED.

While I believe that majority's interpretation of LSA-R.S. 51:1945.1A is legally correct, it is problematic. Such interpretation protects only one class of consumers by requiring mandatory disclosure of nonconformity only where the original branding of the title was pursuant to Louisiana law. This result seems to undermine the intent of the statute, which is to protect purchasers in Louisiana of previously branded vehicles. However, this issue is best resolved by the legislature.

FOOTNOTES

1.   La. R.S. 51:1945.1(A) states, in pertinent part: “(1) Upon the sale or transfer of title by a manufacturer, its agent, or any dealer of any second-hand motor vehicle, previously returned to a manufacturer for nonconformity to its warranty pursuant to the requirements of this Chapter, the manufacturer shall execute and deliver to the buyer an instrument in writing in a form prescribed by the commissioner setting forth the following information in ten point, all capital type: “IMPORTANT: THIS VEHICLE WAS RETURNED TO THE MANUFACTURER OR DEALER BECAUSE IT DID NOT CONFORM TO ITS WARRANTY AND THE DEFECT OR CONDITION WAS NOT FIXED WITHIN THE TIME PROVIDED BY LOUISIANA LAW.”

2.   The petition indicates that Motors Liquidation Company was previously known as General Motors Corporation, or GM.

3.   Louisiana Code of Civil Procedure art. 966 was amended and reenacted by 2015 La. Acts, No. 422, § 1, with an effective date of January 1, 2016. Section 2 of the Act provides that the amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of La. C.C.P. art. 966 in this case.

4.   Mr. Brown claims that Hood Automotive was and is a registered trade name of Bill Hood.

THERIOT, J.