Wright v. Barnes

• Decision Date: 29 March 1989
• Docket Number: No. 20427-CA,20427-CA
• Citation: 541 So.2d 977
• Court: Court of Appeal of Louisiana — District of US
• Parties: Gloria WRIGHT, Appellant, v. E.J. BARNES, Appellee. 541 So.2d 977

Page 977

541 So.2d 977

Gloria WRIGHT, Appellant, v. E.J. BARNES, Appellee.

No. 20427-CA.

541 So.2d 977

Court of Appeal of Louisiana Second Circuit.

March 29, 1989.

L. Charles Minifield, Minden, for appellant.

Randy Elkins, Minden, for appellee.

Before HALL, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

This is a suit by Gloria Wright against Reverend E.J. Barnes, in which she asks to have a contract of sale annulled and the purchase price returned, plus damages and attorney fees. The trial judge denied her recovery, and Ms. Wright appeals. We reverse and render.

On December 9, 1985 Ms. Wright purchased a car from Reverend Barnes for $1,250, which she paid in cash. Reverend Barnes did not give Ms. Wright the title to the car on that day. Ms. Wright testified that she was told only to go to Reverend Barnes's attorney to get the title in three or four days. Reverend Barnes, however, testified he never told Ms. Wright exactly when she would receive the title. He admits he did not have title to the car when he sold it, but asserted that he had told her every detail about his difficulties in securing title to the vehicle. This is contradicted by Ms. Wright's mother, who was also present when Ms. Wright saw Reverend Barnes, and who testified that Reverend Barnes never mentioned any such difficulties.

Ms. Wright testified that when she saw Reverend Barnes's attorney, he said he would deliver title within a week or two. During this interval the attorney enabled Ms. Wright to acquire an inspection sticker for the car on January 21, 1986 even without title. Ms. Wright stated she made numerous attempts to obtain the car's title from the attorney, but she never received it. Ms. Wright stopped driving the car in May of 1986, when she realized the license tags had expired in March of 1986. From June of 1986 through April 1987 Ms. Wright paid her sister-in-law $40 per month to drive her.

Reverend Barnes testified that he had sold the disputed car to Charles E. Nash, who did not pay for it. To show subsequent ownership of the car, the defendant introduced the record of Webster Parish Civil Suit No. 42,526, Warren v. Nash. That suit reveals the following information. Nash acquired title to the car on November 24, 1982, and on that date took out a loan of $2,353.14 from Security National Bank, granting the bank a mortgage and lien on the car as security. Reverend Barnes endorsed the note for Nash. On June 15, 1983 Barnes was called upon to pay the note after Nash defaulted. On June 29, 1983 Security National Bank assigned its interest in the note and the lien on the car to Robert Warren, whom Reverend Barnes identified at trial as a used car dealer. On September 30, 1983 Warren filed suit against Nash for judgment in the full amount of the note, asking to have his lien on the car recognized. On October 21, 1983 Warren confirmed a default judgment in his favor. On December 2, 1983 a letter from Warren's attorney, James Johnson of Campbell, Campbell & Johnson, was sent to the clerk of court asking that a writ of fieri facias be issued for seizure of the car and any other property to satisfy the judgment. The record shows that no further action was taken until January 27, 1987 when Randy Elkins, Reverend Barnes's lawyer in the instant suit, sent a letter to the clerk of court asking that a writ of fieri facias be issued on the disputed vehicle. The record does not reflect that Elkins represented Warren or that Barnes intervened in the suit. Nevertheless, on January 28, 1987 a writ of fieri facias was issued in favor of Warren, against Nash, for sale of the car. On January 29, 1987 the Sheriff filed a notice of seizure of the car. On February 6, 1987 Reverend Barnes executed a keeper's receipt for the car. On April 2, 1987 a proces verbal was filed saying the car was sold to Ms. Wright on March 25, 1987 for $40. At trial in the instant suit Ms. Wright, without contradiction, unequivocally denied buying the car through the sheriff's sale.

In the instant suit the trial judge, in oral reasons for judgment, concluded that Ms. Wright failed to prove that Reverend Barnes did not tell her that he did not own the car, and further stated that he could not determine whether or not Reverend Barnes owned the automobile at the time of the purported sale to Ms. Wright. The judge also noted that since March of 1987, the date of the judicial sale, Ms. Wright had some "paperwork" evidencing ownership of the vehicle. The trial judge rejected the demands of the plaintiff.

Ms. Wright appeals, arguing that the trial judge erred in not declaring the sale a nullity under LSA-C.C. art. 2452, and asking that she be awarded the return of her purchase price, damages, and attorney's fees. Reverend Barnes has neither answered the appeal nor filed a brief with this court.

The jurisprudence of this state does not require that the actual certificate of title to a vehicle be transferred in order for the sale to be a valid one. Shanks v. Callahan, 232 So.2d 306 (La.App. 1st Cir.1969). The sale of a motor vehicle is governed by the civil code articles relating to the sale of movables, and is not affected by non-compliance with the requirements of the Vehicle Certificate of Title, LSA-R.S. 32:701 et seq. Scott v. Continental Ins. Co., 259 So.2d 391 (La.App. 2d Cir.1972); Talley v. Hughes, 481 So.2d 172 (La.App. 4th Cir.1985); Sherman v. State Farm Mut. Auto. Ins. Co., 413 So.2d 644 (La.App. 1st Cir.1982), writ denied 414 So.2d 776 (La.1982).

LSA-C.C. art. 2452 provides that the sale of a thing belonging to another is null. Carroll v. Boosahda, 51 So.2d 836 (La.App. 2d Cir.1951); Pierce Enterprises of La., Inc. v. Mamoulides, 337 So.2d 621 (La.App. 4th Cir.1976); Wood v. Zor, Inc., 154 So.2d 632 (La.App. 4th Cir.1963). The sale of a thing belonging to another is not absolutely null but only relatively so, and such nullity is in the interest of the purchaser. Wood v. Zor, Inc., supra.

The trial judge, in oral reasons for judgment, concluded that he could not determine whether or not Reverend Barnes did or did not own the car at the time he sold it to Ms. Wright. A trial judge's findings of fact are to be reviewed to determine if they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We must hold that the judge was clearly wrong in failing to find that Reverend Barnes did not own the car on December 9, 1985. Reverend Barnes testified that he had previously sold it to Nash. Defendant then introduced the record of Civil Suit No. 42,525 into evidence to show the subsequent chain of title. As we have reviewed above, there is nothing in that record which would show that Reverend Barnes ever regained ownership of the car. As the trial judge noted, Reverend Barnes had been in possession of the car almost two years when he sold it to Ms. Wright. However, according to the record before us, Reverend Barnes never re-purchased the car from Nash, nor acquired the car through judicial sale, nor procured a judgment rescinding the sale to Nash. The conclusion is inescapable that Reverend Barnes was not the owner of the car when he purportedly sold it to Ms. Wright.

Admittedly the March 25, 1987 judicial sale appears to give Ms. Wright some semblance of title, but it does not prohibit her from bringing this action of nullity. A thing can be sold by judicial sale only to a bidder who is present or properly represented. LSA-C.C. arts. 2615; 2617. The purchase at an auction sale by an unauthorized agent is not binding upon the purported purchaser until ratified by him. Union Garment Co. v. Newburger, 124 La. 820, 50 So. 740 (1909). Ms. Wright's uncontradicted testimony at trial was that she did not purchase the vehicle at the March 25, 1987 sheriff's sale, nor did she authorize anyone to do so on her behalf. In a letter from her attorney dated January 2, 1987 she had already advised Reverend Barnes that she wanted to get her money back and return the car. There is no evidence in the record showing she ratified the sale; she has expressly declared that she wanted only to return the car and have her money returned. She filed suit to annul the sale before her attorney was advised the judicial sale had taken place. The March 1987 judicial sale did not transfer ownership of the car to...