MILO A. NICKEL, JR.
FORD MOTOR COMPANY, ET AL.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2013-625 HONORABLE RONALD F. WARE, DISTRICT
Kenneth Michael Wright Attorney at Law, COUNSEL FOR
PLAINTIFF/APPELLEE: Milo A. Nickel, Jr.
W. Maxwell Bernard, Cassisa, Elliott & Davis, COUNSEL FOR
DEFENDANTS/APPELLANTS: Ford Motor Company Bolton Ford, LLC.
J. Mitchell, II Mitchell & Blanco, LLC, COUNSEL FOR
DEFENDANT/APPELLEE: State Farm Mutual Automobile Insurance
Jeffrey G. LaGarde Bernard, Cassisa, Elliott & Davis,
COUNSEL FOR DEFENDANTS/APPELLANTS: Ford Motor Company Bolton
composed of Shannon J. Gremillion, Phyllis M. Keaty, and D.
Kent Savoie, Judges.
SHANNON J. GREMILLION JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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."
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.
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 . . . ."
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
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
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
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 ...