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Jackson v. European Service, Inc.

Court of Appeals of Louisiana, Second Circuit

February 28, 2018

KENNETH JACKSON Plaintiff-Appellee
EUROPEAN SERVICE, INC. Defendant-Appellant

         Appealed from the Monroe City Court Parish of Ouachita, Louisiana Trial Court No. 2016CV2927 Honorable Tammy D. Lee, Judge

          THE PARHMS LAW FIRM, LLC By: Carlton L. Parhms Counsel for Appellant

          ROUNTREE LAW OFFICES By: James A. Rountree Counsel for Appellee

          Before BROWN, COX, and GASKINS (Ad Hoc), JJ.

          BROWN, C. JUDGE.

         Plaintiff, Kenneth Jackson, purchased a truck from defendant, European Service, Inc. As plaintiff was driving the truck home from defendant's lot, the vehicle stopped working. Defendant refused to refund the purchase price or replace the truck upon plaintiff's request, which was made one day after the sale. Plaintiff asserted a claim for fraud in the Monroe City Court. The trial court rendered a judgment in favor of plaintiff and ordered defendant to refund the purchase price, pay damages, attorney fees, and costs. For the following reasons, we affirm.


         On August 29, 2016, plaintiff purchased a used 2010 Ford F-150 truck from defendant to use in Pennsylvania for work on a pipeline; plaintiff told defendant of his intended use for the truck. The truck's mileage was 195, 285 miles at the time of sale. Plaintiff testified that the salesman who sold him the truck said of the vehicle, "It's a good truck, you know. It [will] do the job." During the test drive, the salesman asked as plaintiff drove the truck, "Is anything wrong? Do you feel anything up under the truck? Do you feel anything by your feet? Is it making any kind of noises?" Plaintiff testified that the test drive occurred in heavy traffic, so he was not able to drive the truck at a higher speed. Therefore, he told the salesman that he did not feel any shaking or hear any unusual noises during the test drive. Plaintiff testified that the "check engine" light was illuminated in the truck, and he asked the salesman why. The salesman responded, "Well, it's just probably a little sensitive. But it ain't nothing wrong with the truck." Toshano Nash corroborated her husband's testimony as to the questions the salesman asked as plaintiff drove the truck and what the salesman said regarding the truck's condition.

         Defendant and plaintiff decided on a sales price of $13, 500 for the truck, with an additional $199 for an inspection, a temporary tag, and notary work, for a total price of $13, 699. Defendant's initial asking price for the truck was $16, 000. No warranty appears on the invoice of sale. Plaintiff paid $13, 200 in cash for the truck that day, and he planned to return the next day to pay the balance and get the title to the vehicle. Plaintiff then attempted to drive the truck home.

         The truck stopped working while plaintiff was driving from Monroe to his home in Oak Grove. Plaintiff heard unusual noises and felt the truck shake. Plaintiff called defendant and was told that the truck probably needed a new battery. Plaintiff purchased a new battery for $200 and installed it in the vehicle; however, the truck still did not work. Plaintiff testified that he called defendant's salesman again and was told to return to defendant's lot the next day to have the truck repaired. The next day, August 30, 2016, plaintiff took the truck to Firestone, the repair shop defendant told him would check out the truck. Plaintiff testified that a Firestone mechanic told him the motor was no good.

         That same day, plaintiff returned to defendant's car lot to demand a refund of the purchase price or get a replacement vehicle for the truck. Plaintiff testified that defendant's representative, Ali Moghimi, stated, "[H]e can't get no money back or no vehicle. No nothing. . . . This is an as-is-car." Plaintiff then told Moghimi that the sale of the truck was a warranty sale, and that he had papers in the truck to prove there was a warranty.

         Plaintiff gave the warranty papers to Moghimi, who then told plaintiff to "Get out." Plaintiff refused. Both Moghimi and plaintiff called the police. Plaintiff informed the police that Moghimi had taken his warranty papers. Moghimi's reply was, "What warranty papers?" Ms. Nash corroborated her husband's testimony that he and Moghimi argued over the warranty. Plaintiff testified that he then had to pay another $600 to Moghimi to get the title to the truck, and that a police officer had to make Moghimi turn over the title to plaintiff. Plaintiff had to get a ride to Pennsylvania with a coworker and share the expenses of the trip; plaintiff's share amounted to approximately $300.

         Plaintiff filed a petition claiming fraud on September 1, 2016. Plaintiff sought damages "to pay all costs of this proceeding, refund the purchase price, and pay plaintiff's attorney's fees." Plaintiff averred in the petition that "defendant knew the truck was defective when defendant sold it to plaintiff."

         On September 7, 2016, defendant filed a dilatory exception of prematurity on the grounds that plaintiff had signed an arbitration agreement when he bought the truck from defendant. Defendant was represented by Moghimi, who was not licensed to practice law in Louisiana. In the exception of prematurity, Moghimi sought dismissal of the suit because plaintiff did not first seek arbitration before filing his petition. Moghimi did not ...

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