Ducote v. Perry's Auto World, Inc.

• Decision Date: 05 November 1999
• Docket Number: 98 CA 1972
• Citation: 745 So.2d 229
• Parties: Jeffrey P. DUCOTE v. PERRY'S AUTO WORLD, INC.
• Court: Court of Appeal of Louisiana — District of US

745 So. 2d 229

Jeffrey P. DUCOTE

v.PERRY'S AUTO WORLD, INC.

NUMBER 98 CA 1972

COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT

November 5, 1999, Judgment Rendered

Released for Publication December 8, 1999.

Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge. State of Louisiana Suit Number 428,843. Honorable Curtis A. Calloway, Judge.

AFFIRMED AS AMENDED.

Michael P. Bienvenu, Baton Rouge, LA., For Plaintiff-Appellee - Jeffrey P. Ducote. G. Thomas Arbour, Baton Rouge, LA., For Defendant-Appellant - Perry's Auto World, Inc.

BEFORE: GONZALES, FITZSIMMONS, AND WEIMER, JJ.

FITZSIMMONS, J.

745 So. 2d 229

Jeffrey P. DUCOTE

v.

PERRY'S AUTO WORLD, INC.

NUMBER 98 CA 1972

COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT

November 5, 1999, Judgment Rendered

Released for Publication December 8, 1999.

Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge. State of Louisiana Suit Number 428,843. Honorable Curtis A. Calloway, Judge.

AFFIRMED AS AMENDED.

Michael P. Bienvenu, Baton Rouge, LA., For Plaintiff-Appellee - Jeffrey P. Ducote.

G. Thomas Arbour, Baton Rouge, LA., For Defendant-Appellant - Perry's Auto World, Inc.

BEFORE: GONZALES, FITZSIMMONS, AND WEIMER, JJ.

FITZSIMMONS, J.

This appeal involves the sale of a defective used vehicle and the validity of a contractual exclusion of the sellers warranty against redhibitory defects. After reviewing the particular factual circumstances in this case and the law, we affirm as amended.

FACTS

Mr. Jeffrey P. Ducote purchased a used 1989 Honda Prelude from Perry's Auto World, Inc (Perry's). At the time of the sale, Mr. Ducote signed a document entitled "DISCLAIMER OF WARRANTIES," which stated in pertinent part: ATTENTION! As Buyer, you have an OBLIGATION TO INSPECT this used vehicle beyond casual observation.

* * *

You are WAIVING YOUR RIGHTS to any express or implied warranty, including as to the fitness of this vehicle for any purpose

* * *

It is mutually agreed and understood that: ... (c) Perry's Auto World, Inc. and you expressly disclaim all warranties, express or implied, including any implied warranties of merchantability of fitness for a particular purpose. (Emphasis in original)

On his way home from the dealership, having just purchased the Honda, Mr. Ducote began to experience problems keeping the motor running. It was not contested in court that the vehicle possessed a pre-existing defective carburetor at the time of the purchase. Following several visits to Perry's, and to two repair shops, a different set of used carburetors was placed in the vehicle; however, the problem continued.

After receiving conflicting evidence vis-a-vis Perry's knowledge of the defective carburetor and alleged tampering with the wires on the carburetor prior to its sale, the court made the factual determination that Perry's had been aware of the condition of the carburetor, and that it withheld that information from the purchaser. The trial court rendered judgment in favor of the plaintiff/purchaser, Mr. Ducote. On review, we find that there is a reasonable basis for the court's factual conclusions, and that they are not clearly wrong. Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987).

Therefore, we accept the court's determination that Perry's was aware of the defective carburetor prior to the sale. In oral reasons for judgment, the court declared that the disclaimer of warranty executed between Mr. Ducote and the seller, Perry's, was invalid because Mr. Ducote had not [Pg 3] been apprised of the defective condition of the carburetor, which rendered the automobile unsuitable for its intended use.

WAIVER OF WARRANTY

Our legal determination focuses on the validity vel non of the waiver of warranty, i.e., did Perry's violate a duty to disclose the existence of a defective carburetor at the time that the broad waiver was executed?

Pursuant to La. C.C. art. 2545, the seller who knows that a product contains a defect, yet "omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer ...." Expanding on this fundamental precept, La. C.C. art. 2548, thereafter, provides for an alternative distribution of duties between the parties in the following relevant language:

The parties may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer.

A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have. (Underscoring supplied)

The longstanding jurisprudential interpretation of the standards governing the waiver of the seller's warranty against hidden defects prior to its codification in La. C.C. art. 2548 in 1993, has established three criteria for such a waiver to be effective:1) The waiver must be written in clear and unambiguous terms

2) The waiver must be contained in the sale document;

3) The waiver must be brought to the attention of the buyer or explained to him.Jeffers v. Thorpe, 95-1731, p.5 (La. App. 4th Cir. 1/19/96), 673 So. 2d 202, 205, writ denied, 96-1721 (La. 10/4/96), 679 So. 2d 1390.

In the instant matter, the total exclusion of the warranty against redhibitory defects was stated in several different ways throughout the document. Mr. Ducote is a high school graduate, and there is no indication that he was incapable of comprehending the straightforward language expressed in the waiver of warranties. Moreover, it is not necessary that a waiver of warranty be verbally brought to a purchaser's attention, if the language, format of the document, and waiver are sufficient to bring the waiver to the buyer's attention. Ross v. Premier Imports, 96-2577, p.7 [Pg 4] (La. App. 1st Cir. 11/7/97), 704 So. 2d 17, 21, writ denied, 97-3035 (La. 2/13/98), 709 So. 2d 750.

The trial court believed the plaintiff's testimony that he had been led to understand from the automobile dealership that the vehicle was operable at the time of purchase. In this regard, Mr. Ducote stated at trial that Perry's representatives told him that the "car was in good working condition when [Mr. Ducote] bought it." Perry's misrepresentation of its knowledge of the defective carburetor relieves the buyer from the terms of the exclusion of warranty pursuant to La. C.C. art. 2548. Moreover, Perry's disingenuous remarks constitute fraud. La. C.C. art. 1953. Fraud vitiates the terms of the waiver executed between the buyer and seller. La. C.C. art. 1948-1949 n1.

-------------- Footnotes ---------------

n1 We reserve for another day consideration of the question of the viability of the waiver of warranty of redhibition on the basis that it was set forth in a separate contemporaneously executed document, but the waiver was not referenced in the act of sale.

------------ End Footnotes--------------

It is argued that Perry's liability should be limited to $ 1,500.00. That amount represents the cost of two new carburetors. This matter does not, however, involve circumstances in which the seller did not know that the thing sold had a defect. Accordingly, the seller is not entitled to the benefit of the provisions of La. C.C. art. 2531, which state that he is "only bound to repair, remedy, or correct the defect." Perry's rightfully bears the responsibility "for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale ... and also for damages and reasonable attorney fees." La. C.C. art. 2545.

NONPECUNIARY DAMAGES

In addition to awarding Mr. Ducote sums for the return of the purchase price, with interest, other financing costs, as well as liability and collision insurance premiums, the court awarded $ 3,500.00 for inconvenience, mental anguish, and aggravation. This sum is challenged.

Louisiana Civil Code articles 2545 and 1998 are the controlling codal axioms to be followed in the present case for nonpecuniary damages involving claims in redhibition. A review of both articles places Mr. Ducote's claim in redhibition squarely within the realm of a bad faith act on the part of the seller. Perry's intentional abuse of Mr. Ducote commenced with the initial sale of the defective vehicle. Thereafter, during the numerous attempts by Mr. Ducote to have the vehicle repaired, Perry's continued to [Pg 5] deceive him with nefarious acts, such as replacing the carburetors with unsuitable parts. Mr. Ducote testified that, due to the protracted debacle involving the car that he had purchased, he had to: bring the car back and forth to Perry's on numerous occasions during lunch breaks from work, solicit rides from his parents and friends, suffer the repeated breakdown of the car in question each time he retrieved it from Perry's (which required getting a ride from someone), and continue to make payments on an...