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Walker v. Hixson Autoplex of Monroe, L.L.C.

Court of Appeals of Louisiana, Second Circuit

November 29, 2017

CALVIN WALKER Plaintiff-Appellant

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2015-1606 Honorable Bernard S. Leehy, Judge

          ANTHONY J. BRUSCATO Counsel for Appellant.

          VILAR & GREEN, LLC Mark F. Vilar Aaron L. Green Counsel for Appellee.

          Before BROWN, WILLIAMS, and MOORE, JJ.

          BROWN, C.J.

         Plaintiff, Calvin Walker, a psychiatrist, appeals from a judgment dismissing his claim for deceptive and unfair trade practices under the Louisiana Unfair Trade Practices and Consumer Protection Law ("LUTPA") against defendant, Hixson Autoplex of Monroe, L.L.C. ("Hixson"). Dr. Walker purchased a 2015 Mustang GT Anniversary Edition from Hixson. Plaintiff alleges that at the time of the sale, defendant led plaintiff to believe that the Mustang he purchased was the more valuable collector's Limited Edition. Defendant filed a reconventional demand for attorney fees and costs, alleging that plaintiff was in bad faith in bringing his LUTPA claim. The trial court denied both Dr. Walker's claim and Hixson's reconventional demand. Plaintiff has appealed, and defendant filed an answer to the appeal reasserting its claim for attorney fees and costs. For the following reasons, we affirm the judgment of the trial court.


         The original Mustang was first manufactured in 1964. To honor the car's 50th anniversary, Ford Motor Company ("Ford") manufactured two special editions of the Mustang in 2014, the "Limited Edition" and an "Anniversary Edition."

         In recognition of the original Mustang's manufacture in 1964, only 1, 964 Limited Edition Mustangs were manufactured in 2014 and were intended to be a collector's car. Each Mustang included a special trim package and had a plaque on the passenger's side dash with the particular number assigned to the vehicle out of the 1, 964 produced. The Limited Edition came in either "Wimbledon White" or "Kona Blue" and had either an automatic or manual transmission. In anticipation of the release of the Limited Edition Mustang, Ford promoted the car, which included newspaper articles written about the Limited Edition. The Anniversary Edition Mustang also came with the same special trim package, but Ford manufactured the Anniversary Edition in much larger numbers.

         Whether a dealership would get one of the 1, 964 Limited Edition Mustangs was based on a lottery, with not every Ford dealership receiving a Limited Edition to sell. In April 2014, Dr. Walker visited Hixson to inquire about purchasing a Mustang. Dr. Walker spoke with Anthony Onebene, Jr., a Hixson sales representative. At that time, neither the Limited Edition nor the Anniversary Edition was available to purchase at any dealership, and Onebene took Dr. Walker's card and told him that he would contact him if Hixson received a car.

         Dr. Walker testified that he first heard of the Limited Edition Mustang when promotional newspaper articles were published in the Monroe News Star. Dr. Walker was not aware of the Anniversary Edition. He testified, "[M]y intent was to buy the Limited Edition because I didn't know there was such a thing as a package (Anniversary) Mustang. I couldn't possibly have inquired truthfully about the package Mustang since I didn't know it existed …"

         Dr. Walker claims that he showed the articles about the Limited Edition Mustang to Onebene at the April 2014 meeting. Defendant's attorney showed Dr. Walker his deposition testimony, wherein, when asked whether he showed the articles to Onebene, Dr. Walker responded, "I'm not sure." Dr. Walker then explained that because he had mentioned showing the articles to Onebene in a letter he wrote to the attorney general, mailed approximately two months after the Hixson sale, that must have been true, because his memory of the events giving rise to the case was clearer at that time than at the time of his deposition testimony. Onebene testified that Dr. Walker did not show him the article about the Limited Edition and only said that he wanted a GT Mustang.

         After speaking with Onebene at Hixson, Dr. Walker continued to contact other dealerships. In April 2014, Dr. Walker had a telephone conversation with Walter Downey, the sales manager at Rountree Ford ("Rountree"), in Shreveport. Downey communicated that Rountree had received notification from Ford that it would get one of the Limited Edition Mustangs. Dr. Walker asked Rountree to hold the Limited Edition Mustang ("Rountree Mustang") for him, and he paid a $10, 000 nonrefundable advance deposit to the dealership and agreed to pay $15, 000 above the Manufacturer's Suggested Retail Price ("MSRP") when the vehicle was available for purchase.

         Several months later, on October 15, 2014, Onebene contacted Dr. Walker. Onebene testified that he told Dr. Walker, "I have a GT with the 50th anniversary package." Dr. Walker testified that Onebene said, "I have a car you might be interested in, " which Dr. Walker understood to mean that Hixson had a Limited Edition Mustang.

         On that day, because Dr. Walker was seeing patients, he sent his wife and daughter to Hixson to view the Mustang Onebene had said Dr. Walker would be interested in. The wife and daughter both testified that Dr. Walker's wife asked what number the car was. Onebene testified that he did not recall being asked that question by either of Dr. Walker's relatives. While at Hixson, the women learned that a tornado hit the daughter's house, and both mother and daughter quickly left.

         Later that same day, Dr. Walker went to the dealership, inspected and rode in the vehicle, reviewed the window sticker ("Monroney sticker"), which included the MSRP (suggested price and certain official specifications of the car).[1] Dr. Walker negotiated the purchase price at $3, 000 above MSRP, with the total price of the vehicle being $51, 698.19. What Dr. ...

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