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McDonald v. Orr Motors of Little Rock, Inc.

Court of Appeals of Louisiana, Second Circuit

September 26, 2018

EMMA W. MCDONALD Plaintiff-Appellant
v.
ORR MOTORS OF LITTLE ROCK, INC. D/B/A/ SPARKS NISSAN KIA REAL ESTATE, L.L.C. Defendant-Appellees

          Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2011CV000375 Honorable Jefferson Bryan Joyce, Judge

          ANTHONY J. BRUSCATO CATHERINE LEARY Counsel for Appellant

          MCNEW, KING, & LANDRY, LLP By: Brady Dean King, II By: April Martin Hammett Counsel for Appellees

          Before WILLIAMS, PITMAN, and STONE, JJ.

          STONE, J.

         The trial court granted a peremptory exception filed by Orr Motors of Little Rock, Inc. d/b/a Sparks Nissan Kia Real Estate, L.L.C., and found Emma W. McDonald failed to prove that the contract whereby she purchased a new car should be rescinded. For the reasons set forth herein, we affirm the judgment of the trial court.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On November 30, 2010, Emma W. McDonald ("McDonald") entered into a contract with Orr Motors of Little Rock, Inc. d/b/a Sparks Nissan Kia Real Estate, LLC ("Sparks Nissan"), wherein McDonald purchased a 2011 Kia Optima LX ("the Kia") from Sparks Nissan for $23, 225 before tax ("the transaction").

         On the date of the transaction, McDonald was in her late fifties and had previously been prescribed a number of medications, including medications for blood pressure and diabetes. She was not out of any of the medications; however, she had run out of the test strips for her glucometer which tests her glucose levels. She needed to test her glucose level to determine how much insulin she should take. She drove herself to Walgreens. Upon her arrival, she discovered the pharmacy did not have the brand of test strips she required. She chose not to purchase a new meter and left the pharmacy without any test strips.

         After leaving Walgreens, McDonald drove around to "unwind," as her blood sugar level was high due to her inability to take her insulin. During her drive, she stopped at Sparks Nissan dealership where she was greeted by salesman Jesse Eldridge ("Eldridge"). Eldridge allowed McDonald to test drive the Kia while he rode with her. After all credits were applied and sales tax and other fees were charged, McDonald financed a total amount of $18, 991.84. As part of the purchase, McDonald traded in her 1995 Ford Contour. Her trade-in allowance for the vehicle was $1, 650.[1] Additionally, McDonald issued two $2, 500 checks to the dealership as down payment for the Kia, including one post-dated check. McDonald drove the Kia home that same day.

         The next day, McDonald went back to Sparks Nissan, as well as Capital One Auto Finance ("Capital One"), the institution that financed the Kia, and asked to rescind the transaction. According to McDonald, when she purchased the Kia, she was mentally impaired due to her high blood sugar levels and had no recollection of the purchase. Sparks Nissan refused to rescind the sale. McDonald stopped payment on the two $2, 500 checks and did not make any payments on the Kia. Capital One repossessed the Kia and, thereafter, sold it at an auction. The proceeds of the sale were applied to McDonald's loan, leaving a remaining balance of $198.[2]

         On January 28, 2011, McDonald filed suit against Sparks Nissan seeking rescission of the transaction alleging she was "so tired or lacking in her ability to understand since she had not taken all her medications during the day of the date of sale, and that consent by her was lacking to create a binding contract." McDonald also sought the return of her trade-in vehicle. Sparks Nissan filed an answer to McDonald's petition on February 10, 2011, seeking a judgment against McDonald in the amount of $5, 000, the total sum for the down payment checks McDonald stopped payment on.

          On July 22, 2014, McDonald filed a supplemental and amended petition asserting the transaction constituted fraudulent practices and was a violation of the Louisiana Unfair Trade Practice Act ("LUTPA"). McDonald alleged that Sparks Nissan, in an effort to get Capital One to agree to finance the Kia, represented that McDonald had paid a $5, 000 down payment, when in fact one of the $2, 500 checks was post-dated; and that Sparks had represented that her monthly income was $3, 500, when in fact it was not.

         On August 2, 2014, Sparks Nissan filed a dilatory exception of vagueness and/or ambiguity and peremptory exceptions of no right of action and/or no cause of action, both of which were denied by the trial court. Sparks Nissan filed an additional peremptory exception on December 9, 2012, seeking to dismiss all claims asserted by McDonald under LUTPA because she failed to bring the claims within the applicable one-year peremptive period. The trial court sustained Spark Nissan's exception of peremption, finding that McDonald's causes of action set forth in the supplemental and amending petition were perempted as they were not filed within one year of the date of the sale, and ...


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