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Nickel v. Ford Motor Co.

Court of Appeals of Louisiana, Third Circuit

May 23, 2018

MILO A. NICKEL, JR.
v.
FORD MOTOR COMPANY, ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2013-625 HONORABLE RONALD F. WARE, DISTRICT JUDGE.

          Kenneth Michael Wright Attorney at Law, COUNSEL FOR PLAINTIFF/APPELLEE: Milo A. Nickel, Jr.

          Robert W. Maxwell Bernard, Cassisa, Elliott & Davis, COUNSEL FOR DEFENDANTS/APPELLANTS: Ford Motor Company Bolton Ford, LLC.

          Allen J. Mitchell, II Mitchell & Blanco, LLC, COUNSEL FOR DEFENDANT/APPELLEE: State Farm Mutual Automobile Insurance Company.

          Jeffrey G. LaGarde Bernard, Cassisa, Elliott & Davis, COUNSEL FOR DEFENDANTS/APPELLANTS: Ford Motor Company Bolton Ford, LLC.

          Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          SHANNON J. GREMILLION JUDGE

         Ford Motor Company (Ford) and Bolton Ford, LLC (Bolton Ford) appeal the trial court's judgment in favor of Milo A. Nickel, Jr. (Nickel) awarding him $37, 347.40 for rescission of the sale of a 2009 Ford Flex; $37, 582.04 in rental charges minus a credit for use at $.20 per mile totaling $15, 480.00; $15, 000.00 for inconvenience and emotional distress; $379.91 for out-of-pocket expenses; $5, 381.88 in costs; and $30, 000.00 in attorney's fees. For the following reasons, we reverse.

         FACTUAL AND PROCEDURAL BACKGROUND

         Nickel purchased a new 2009 Ford Flex on September 11, 2008 from Don Shetler Ford, Inc. (Shetler Ford) in Sulphur, Louisiana, for $37, 347.10. The 2009 Ford Flex debuted the Ford SYNC system, an in-vehicle communications and entertainment system designed by Microsoft. Nickel experienced multiple problems with the system due to incompatibility issues between Microsoft and Apple, and Shetler Ford eventually replaced the radio navigation system.

         Nickel was involved in an accident on October 21, 2008. His vehicle was repaired by Shetler Ford and a collision repair center. The repairs cost $9, 057.61. Subsequent to the repair, Nickel stated in his petition that in addition to the other SYNC problems he was experiencing, "the gauges would sporadically stop working, all of the warning lights/and indicators would activate, the air conditioner would stop cooling and chimes would sound."

         Nickel filed a petition against Ford, State Farm Automobile Insurance Company (State Farm), and Bolton Ford in February 2013 for rescission of the sale due to vice or defect.

         Bolton Ford filed a peremptory exception of no cause of action on April 3, 2013, arguing that, since it had not sold the vehicle to Nickel, it should be dismissed as no cause of action could lie in redhibition. Nickel filed an amending petition for damages in June 2013, urging rescission of the sale against Ford and for damages against Bolton Ford for negligent repairs, stating that Bolton Ford was liable to him for, "failure to diagnose and repair the vehicle for extended periods of time, and all damages suffered as a result thereof, including, but not limited to loss of use, reimbursement for rental charges, inconvenience and aggravation, mental anguish, or any other damages which the facts support . . . ."

         Following a two-day trial in November 2016, the trial court rendered a judgment as follows: Ford and Bolton Ford's peremptory exception of prescription was denied; State Farm's motion for involuntary dismissal was granted; discovery sanctions in favor of Nickel's counsel in the amount of $3, 000.00 was made final; and the trial court further rendered judgment in favor of Nickel as follows:

1.Re[s]cission of the sale and return to Plaintiff, MILO A. NICKEL, JR., of the sale price of the 2009 Ford Flex vehicle in the sum of $37, 347.40;
2. Reimbursement to Plaintiff, MILO A. NICKEL, JR., of plaintiff's vehicle rental charges in the amount of $37, 582.04, minus a credit of 20 [cents] per mile in the amount of $15, 480.00, resulting in a reimbursement in the total amount of $22, 102.04;
3.General damages for inconvenience and emotional distress payable to Plaintiff, MILO A. NICKEL, JR., in the total amount of $15, 000.00;
4. Reimbursement to Plaintiff, MILO A NICKEL, JR., for out-of-pocket expenses in the amount of $379.91; and
5.Payment of attorney's fees to Kenneth Michael Wright as counsel for Plaintiff, MILO A. NICKEL, JR., are to be determined at a subsequent hearing on attorney's fees and costs.

         Ford filed a motion for new trial in May 2017, which was denied in June 2017. The trial court rendered a judgment in June 2017 casting Ford and Bolton Ford with all court costs and awarding Nickel's counsel $30, 000.00 in attorney's fees and $1, 000.00 in paralegal fees. Ford and Bolton Ford now appeal.

         ASSIGNMENTS OF ERROR

         Ford assigns as error:

1. The trial court erred in denying Ford's Peremptory Exception of Prescription despite undisputed evidence that the prescriptive period expired on Nickel's redhibition claims during the 28-month period that Nickel drove the vehicle 69, 000 miles without once tendering the vehicle for repairs.
2. The evidence is insufficient to support the trial court's finding that a redhibitory defect existed in Nickel's vehicle and that the problems he experienced were unrelated to software incompatibility issues between the "SYNC" system and Nickel's mobile device and not caused by an accident involving the vehicle that occurred six weeks after Nickel purchased it.
3. The trial court erred in permitting Nickel to recover from Bolton Ford under a redhibition or negligent repair theory even though Bolton Ford was not the seller off Nickel's vehicle, Nickel did not give Bolton Ford essential information concerning the vehicle's collision history when he tendered his vehicle for repairs, and Nickel denied Bolton Ford authorization to perform repairs to Nickel's vehicle once the problem was diagnosed.
4. The trial court erred in awarding $15, 000 in non-pecuniary damages to Nickel for his inconvenience and emotional distress related to his redhibition claims in the absence of any argument or finding that Nickel purchased the vehicle for any non-pecuniary purposes.
5. The trial court erred in awarding Nickel excessive damages for his rental care fees, most of which directly resulted from Nickel's failure to mitigate his damages and which he failed to prove with any documentation. Ford should not be charged for a year's worth of rental fees that Nickel incurred after refusing repairs and then abandoning his vehicle at a dealership for over a year.
6. The trial court erred in awarding Nickel the full purchase price of his vehicle because he failed to maintain the vehicle as a prudent administrator when he abandoned the vehicle to the ...

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