Opinion
2011 CA 2269
11-29-2012
DEBRA BROWN-KNIGHT v. JUST ADD GAS, INC., & XYZ INSURANCE COMPANY
Raymond C. Burkart, III Amanda A. Trosclair Covington, Louisiana Corbett L. Ourso, Jr. Hammond, Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Suit number 118042
Honorable Zorraine M. Waguespack, Judge
Raymond C. Burkart, III
Amanda A. Trosclair
Covington, Louisiana
Counsel for Plaintiff-Appellee
Debra Brown-Knight
Corbett L. Ourso, Jr.
Hammond, Louisiana
Counsel for Defendant-Appellant
Just Add Gas, Inc.
BEFORE: WHIPPLE, KUHN, AND GUIDRY, JJ.
GUIDRY , J.
Defendant-appellant, Just Add Gas, Inc. (JAG), a used car dealership, appeals the trial court's judgment, which orders it to pay an aggregate amount of attorney's fees and court costs for discovery violations and awards plaintiff-appellee, Debra Brown-Knight, a reduction of the sale price of a vehicle the trial court determined had a redhibitory defect when she purchased it from JAG. Brown-Knight answered JAG's appeal, contesting the quantum of the trial court's award. For the reasons that follow, we reverse in part and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2006, Brown-Knight went to JAG looking to purchase a large vehicle to accommodate her family. Brown-Knight and her husband, Walter Knight, test drove a 1993 Park Avenue, a red tag special. They decided Brown-Knight would purchase the vehicle for $3,945.00, plus sales tax, title and license, for a total of $4,369.05. Brown-Knight tendered $1,800.00 and financed the balance through the dealership, interest free. A JAG salesman presented Brown-Knight with paperwork, and she signed all the documents.
After having several repairs made or attempted, Brown-Knight filed this lawsuit, averring that at the time of the sale, the car contained a redhibitory defect for which she was entitled to relief from JAG. JAG answered the lawsuit with a general denial. Contentious discovery disputes resulted in a finding and adjudication of JAG in constructive contempt of court by the trial court. JAG was assessed with attorney's fees and court costs on two occasions for an aggregate total of $1,760.00.
After a trial on the merits, the trial court concluded that the 1993 Buick Park Avenue contained a redhibitory defect that did not render the vehicle useless but diminished its value. Applying a presumption that Brown-Knight would have nevertheless purchased the vehicle, but at a reduced price, the trial court awarded her $2,500.00. On August 30, 2011, the trial court signed a judgment, ordering JAG to pay Brown-Knight $2,500.00 in damages; $1,760.00, "which amount is the aggregate amount due and owing in accordance with this Honorable Court's May 18, 2011, judgment, which now is final"; and total costs of $2,235.44 reimbursable to Brown-Knight. The parties each challenge the trial court's judgment.
On appeal, JAG challenges the trial court's discovery rulings, which resulted in the imposition of attorney's fees and costs. On the merits of Brown-Knight's claims, JAG asserts the trial court erred in failing to recognize a waiver of the warranty for redhibitory defects executed by Brown-Knight at the time of the sale. In her answer to the appeal, Brown-Knight asserts that the trial court erred by failing to grant a rescission of the sale and by failing to award her general and special damages.
DISCOVERY RULINGS
Initially, we note that a judgment that does not determine the merits, but only preliminary matters in the course of the action, is an interlocutory judgment. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083C. Even though an interlocutory judgment is not immediately appealable, it can still be reviewed when an unrestricted appeal is taken from a final judgment; in such an appeal, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Succession of Bell, 06-1710 (La. App. 1st Cir. 6/8/07), 964 So. 2d 1067, 1072. Thus, we turn to JAG's contentions about two of the trial court's rulings, which resulted in "the aggregate amount due" of $1,760,00 that JAG was ordered to pay in the appealed judgment.
After Brown-Knight filed this lawsuit on November 16, 2007, and JAG answered it on December 5, 2007, Brown-Knight filed a motion to compel discovery on April 28, 2008. She averred that JAG had failed to respond to propounded requests for production of documents, which were due by March 5, 2008. After attempts to contact JAG's attorney did not yield the requested discovery, she filed the motion to compel.
According to the official minutes of the court, at the June 2, 2008 hearing on the motion to compel, the attorneys for the parties entered into a "stipulation." On July 31, 2008, the trial court issued a judgment, ordering JAG to supplement its responses to Brown-Knight's discovery requests within 30 days. The ruling ordered, in particular, that JAG provide certified copies of all documents necessary to prove the "chain of title" for the vehicle that Brown-Knight had purchased, including bills of sale, title transfers, and financing agreements; certified copies of all insurance policies in effect for JAG from 2006; and legible copies of the service history of the vehicle, including odometer readings, maintenance and parts records, and a list of all service personnel who had access to repair or maintain the vehicle from June 13, 2006 until November 21, 2006.
The record does not contain a copy of the transcript of this hearing or the contents of a stipulation.
While "chain of title" has a specific meaning in immovable property law, it has no meaning in the transfer of titled, movable vehicles.
On October 20, 2008, Brown-Knight filed a motion for adjudication of civil constructive contempt of court, averring that she had not received any supplemental responses from JAG and that, therefore, JAG was in constructive contempt of court for failing to obey the trial court's July 31, 2008 judgment. A hearing was held on December 1, 2008, at which counsel for JAG stated that JAG had provided everything it had in its file, and that it had nothing further it could add. Counsel for Brown-Knight conceded that JAG had provided her with answers to discovery but stated that those answers "reflect[ed] things that needed to be supplemented," specifically maintenance records for the vehicle. The trial court inquired of JAG's attorney if the lack of production of records from her client meant that there had been no service performed on the vehicle while in JAG's custody. The attorney responded that JAG serviced many vehicles, but it did not keep records from two years ago. Insofar as the requested insurance information, although JAG had provided a declaration sheet for a period of coverage prior to the date of the sale, its attorney stated that JAG told her that it did not have a different policy and had not changed coverage. Addressing the order to supplement the bills of sale, JAG's attorney stated that JAG "has provided everything to [Brown-Knight] that [it] had."
Although there was a hearing, only the arguments of counsel were presented. Specifically, the trial court did not examine the interrogatories in reaching its conclusion. It is obvious that the trial court did not examine any of the discovery to determine if it would be appropriate to impose a sanction. Nevertheless, the trial court concluded JAG was in contempt of court. On January 8, 2009, the trial court signed a judgment adjudicating JAG "in constructive contempt of court for willfully disobeying [the court's] judgment of July 31, 2008, by failing to provide the court ordered discovery responses for [Brown-Knight]." The ruling ordered JAG to pay to Brown-Knight $220.00 in court costs and $350.00 attorney's fees. A fine for contemptuous behavior was deferred. A motion for new trial was subsequently denied by the trial court. The appeal to this court was dismissed as an interlocutory judgment for which the law did not expressly grant an immediate appeal. See Brown-Knight v. Just Add Gas, Inc., 09-1161 (La. App. 1st Cir. 9/15/09) (unpublished).
Louisiana Code of Civil Procedure article 1471C provides, in relevant part:
[T]he court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. [Emphasis added.]
On appeal, JAG asserts that it complied with the request for production of documents, and that it had no additional documents to supplement to its responses to Brown-Knight's discovery requests within 30 days as ordered in the July 31, 2008 judgment. The record is devoid of any evidence demonstrating that JAG had any additional evidence that it failed to supplement.
A party to litigation may apply to a court for an order compelling discovery when another party fails to answer properly propounded interrogatories or requests for production. La. C.C.P. art. 1469(2). The discovery articles grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme or to obey an order compelling discovery. The decision whether to grant relief against a recalcitrant party rests within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Hardee v. City of Jennings, 10-1540 (La. App. 3d Cir. 5/11/11), 65 So. 3d 266, 269, writ denied. 2011-1190 (La. 9/23/11), 69 So. 3d 1158. When a failure to make discovery occurs, it becomes incumbent upon the disobedient party to show that his failure was justified or that special circumstances would make an award of expenses unjust. Allen v. Smith, 390 So. 2d 1300, 1302 (La. 1980).
It is undisputed that JAG complied with the order to respond to Brown-Knight's request for production. The basis of the trial court's July 31, 2008 judgment was, therefore, for the failure to comply with the supplementation of the responses. This is underscored by the fact that Brown-Knight's request was for "chain of title" and insurance information, which she already had. JAG advised the trial court that it had no other information to supply, and Brown-Knight offered no evidence suggesting differently. As such, we conclude that JAG showed that its failure to supplement the request for production was justified, and that special circumstances make an award of expenses unjust. Therefore, the trial court abused its discretion in rendering its January 8, 2009 judgment. Accordingly, we reverse that portion of the August 30, 2011 judgment that awarded $570.00 as part of the "aggregate amount due and owing in accordance with this Honorable Court's May 18, 2011, judgment, which is now final."
JAG also contends that the trial court's order for it to pay attorney's fees and costs in the amount of $1,190.00 to Brown-Knight is also unwarranted. Our review of the record shows the following relevant sequence of events.
On October 18, 2010, Brown-Knight filed a motion to compel discovery, adjudication of constructive contempt of court, attorney's fees, and costs, alleging that JAG had not timely responded to interrogatories and requests for production of documents for which answers were due by July 14, 2010. Brown-Knight's motion averred that JAG had not yet responded to the discovery although a scheduling order had set a discovery cutoff date of October 18, 2010. Additionally, the motion alleged that JAG was in contempt of court for failing to pay the attorney's fees and costs of $570.00 as ordered in the January 8, 2009 judgment.
A hearing was held on January 18, 2011, at which time JAG's counsel again reiterated that it had complied with the prior request for production and "produced every piece of tangible evidence that [his] client has in [its] possession regarding this transaction." He specifically stated, "[JAG's] got limited documents. We have provided every single document that [JAG] has."
On May 18, 2011, the trial court issued a judgment, ordering JAG to respond to the discovery within 30 days and directing JAG to pay to Brown-Knight the sum of $1,190.00 for attorney's fees and court costs as a result of the October 18, 2010 motion to compel. The record is devoid of anything that shows the trial court examined any of the discovery.
Louisiana Code of Civil Procedure article 1469(4) states, in relevant part:
If the motion is granted, the court shall, after opportunity for hearing, require the party ... whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. [Emphasis added to show the similarity with the provisions of La. C.C.P. art. 1471C]
The trial court has reasonable discretion to refuse or limit discovery of matters not relevant to the issues, unreasonably vexatious, or tardily sought which might delay the trial. Although liberality of pretrial discovery should be encouraged, it must not be fostered without regard to the right of the party against whom it is invoked to be protected against undue hardship, loss, or damage. Albright v. Prentice, 425 So. 2d 336, 338 (La. App. 3d Cir. 1982), writ denied, 430 So. 2d 84 (La. 1983). The test of discoverability is not the admissibility of the particular information sought, but whether the information appears reasonably calculated to lead to the discovery of admissible evidence. Lehmann v. American So. Home Ins. Co., 615 So. 2d 923. 925 (La. App. 1st Cir.), writ denied, 617 So. 2d 913 (La. 1993).
Our review of the interrogatories and requests for production that were the subject of the January 18, 2011 hearing shows that they were either duplicative of the information sought in Brown-Knight's original request for production or sought information that was not reasonably calculated to lead to the discovery of admissible evidence. The interrogatories requested information that was redundant: "how and from whom [JAG] acquired the [vehicle]"; "describe in detail any historical search, research, or inquiry in which [JAG] engaged when obtaining the [vehicle]"; and the names, addresses, and telephone numbers of all employees; all auto mechanics and auto technicians presently employed. Additionally, the interrogatories requested JAG to advise of its theory of the case: "state with particularity what information [JAG] would need to admit or to deny [Brown-Knight's] allegations set forth in her ... Petition"; "describe with particularity the incident in which [Brown-Knight] returned the [vehicle] to [JAG], including time, date, place, participants, discussions, and actions of each and of every individual involved in that incident"; and "state with particularity and in detail why [JAG] disagrees with [Brown-Knight's] ... factual allegations."
Because JAG had given Brown-Knight everything it had, Brown-Knight's repetitive demand for the same information, as well as for information that could not have been reasonably calculated to lead to the discovery of admissible evidence, was simply vexatious and harassing. Mindful that Brown-Knight paid only $4,365.05 for her vehicle, and that as of December 1, 2008, JAG had given everything it had in its file to her, we conclude the trial court erred in granting Brown-Knight's second motion to compel and assessing JAG with costs and attorney's fees. Therefore, the trial court abused its discretion in ordering JAG to pay costs and attorney's fees in the amount of $1,190.00 in its May 18, 2011 ruling. Accordingly, we reverse that portion of the August 30, 2011 judgment, which awarded Brown-Knight the amount of $1,190.00 as part of the "aggregate amount due and owing in accordance with this Honorable Court's May 18, 2011, judgment, which is now final."
REDHIBITION AND WAIVER OF WARRANTY
Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold which renders the thing either absolutely useless or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice. A defect is also redhibitory when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price. La. C.C. art. 2520. To sustain a suit in redhibition, a purchaser must prove that: (1) the thing sold is absolutely useless for its intended purpose or its use is so inconvenient that had he known of the defect, he would never have purchased it; (2) the defect existed at the time of sale but was not apparent; and (3) the seller was given an opportunity to repair the defect. Ross v. Premier Imports, 96-2577 (La. App. 1st Cir. 11/7/97), 704 So. 2d 17, 21, writ denied, 97-3035 (La. 2/13/98), 709 So. 2d 750.
In order to establish a prima facie case of redhibition, a purchaser must show that a non-apparent defect existed at the time of the sale. La. C.C. arts. 2520 and 2530; Cazaubon v. Cycle Sport, LLC, 11-0289 (La. App. 1st Cir. 11/9/11), 79 So. 3d 1063, 1065. Once the purchaser establishes a prima facie case, the burden shifts to the seller to show that it can somehow escape liability. Cazaubon, 79 So. 3d at 1065.
The warranty created against redhibitory defects applies to the sale of used equipment, but it is not as extensive as in the sale of new equipment. However, what is required is that the equipment must operate reasonably well for a reasonable period of time. Ross, 704 So. 2d at 21.
A sale made "as is" is not a waiver of all warranties. The vendor is not relieved of the implied warranty under La. C.C. art. 2520, which requires that the thing must be fit for the use for which it is intended. The "as is" stipulation, especially in a sale of a used thing, means that the thing is not warranted to be in perfect condition and free of all defects, which prior usage and age may cause. Ross, 704 So. 2d at 21.
The parties may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer. La. C.C. art. 2548. In order to be effective, such waiver of warranty must satisfy three requirements: (1) be written in clear and unambiguous terms; (2) be contained in the contract; and, (3) either be brought to the attention of the buyer or explained to him. Ross, 704 So. 2d at 21. The seller bears the burden of proving the warranty has been waived. Bio-Pic Foods, Inc. v. Polyflex Film and Converting, Inc., 95-0889 (La. App. 1st Cir. 12/15/95), 665 So. 2d 787, 791, writ denied, 96-2691 (La. 1/10/97), 685 So. 2d 143. Whether there is an effective waiver of warranty is question of fact that will not be disturbed on appeal absent manifest error. Pias v. Wiggins, 96-499, p. 6 (La, App. 3rd Cir. 10/9/96), 688 So. 2d 1103, 1106, writ denied, 96-2691 (La. 1/10/97), 685 So. 2d 143.
JAG introduced into evidence six documents that Brown-Knight acknowledged she had signed. Among these was a retail installment contract and security agreement, containing no mention of a waiver of the warranty against redhibitory defects. A document entitled "BUYERS GUIDE," signed by Brown-Knight, provided two options for a buyer to select. The option "AS IS-NO WARRANTY," set forth in one-centimeter-tall, bolded capital letters, was selected with an "X." Below that, the option "WARRANTY," also set forth in one-centimeter-tall, bolded capital letters, was not selected. And below that, handwritten by the salesman who sold Brown-Knight the vehicle, was the phrase "AS IS NO WARRANTY" in approximately one-half-inch-tall capital letters. Brown-Knight's signature appeared immediately below the salesman's handwritten phrase. Brown-Knight also identified her signature on the back of the form, which listed numerous "major defects that may occur in used motor vehicles." Lastly, of relevance to this litigation, is the bill of sale, which Brown-Knight signed twice. Set forth immediately preceding her first signature is the following relevant provisions:
THIS VEHICLE IS SOLD WITHOUT WARRANTY; "AS-IS" WAIVER OF ALL WARRANTIESImmediately adjacent to Brown-Knight's signature, in a smaller font and bolded, the preprinted form stated, "DO NOT SIGN IF THE ABOVE STATEMENT IS NOT TRUE." Below that, Brown-Knight's signature appeared a second time, immediately above a notary public certification.
It is understood and agreed by the undersigned that Seller ... does hereby expressly disclaim all warranties, either express or implied, including, but not limited to, any warranties of merchantability of fitness for a particular purpose, and of any hidden defects or vices. Buyer has been expressly made aware of the [former] provisions of Civil Code Article[] 2476 which read[]: "The warranty respecting the seller has two objects: The first is the buyer's peaceable possession of the things sold, and the second is the hidden defects of the things sold or its redhibitory vices."
And [the former provisions of] Civil Code Article 2520 which read[]: "Redhibition is the avoidance of a sale on account of some vice or defect in the things sold, which renders it either absolutely useless, or
its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. In having knowledge of these articles and in understanding the import of same, buyer herein waives any rights he may have in and under and by virtue of these articles in and against Seller as concerns the purchase of the at issue vehicle. Furthermore, buyer waives any and all rights he/they may have, now or, in the future, to recover from Seller any [damages] ... including expressly waiving herein the right to claim a return of purchase price and/or a claim in redhibition. ** THE WAIVER OF ALL WARRANTIES HAS BEEN FULLY EXPLAINED TO ME. I AM AWARE THAT I HAVE NO RIGHT TO SUE THE SELLER FOR ANY DEFECT IN THIS VEHICLE**
Although La. C.C. art. 2476 is now codified in art. 2475, effective January 1, 1995, the modification did not change the law. See 1993 Revision Comment (a) to La. C.C. art. 2475. The provisions of La. C.C. art. 2520 were likewise amended, effective January 1, 1995, but the modification did not change the law. See 1993 Revision Comment (a) to La. C.C. art. 2520.
We note that the undisputed testimony of witnesses for both parties was that the certification was not contemporaneous with Brown-Knight's signature.
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JAG's account and finance manager, Michael Roy, Jr., testified that after the salesman sold Brown-Knight the car and filled out some of the paperwork for JAG, he went over and explained all the documents to Brown-Knight before she signed each. Referring to the buyer's guide that Brown-Knight signed on both the front and the back, Roy identified the handwritten statement "AS IS NO WARRANTY' as having been filled in by a salesman and explained the repetition of the statement by both the marking of the selected option and the handwriting of the salesman was a redundancy check. Roy testified that he explained the as-is, no warranty provision to Brown-Knight many times. Roy stated that he also explained the bill of sale to Brown-Knight but admitted that he did not go over the waiver of warranty language specifically, although Brown-Knight had the opportunity to read it.
Both Brown-Knight and her husband acknowledged that when she purchased the vehicle they realized that it was over 13 years old and had over 100,000 miles. Knight stated that he had been working on cars since he was 10 years old. He looked under the hood of the car and, after the test drive, realized there were problems with the vehicle, specifically noticing a noise in the engine. The JAG salesman with whom he discussed the noise stated that it was "just a little something" and based on the salesman's comments, Knight believed that he might be able to fix it. He did not discourage his wife from buying the vehicle because she wanted it and he figured that if there was not too much wrong with it, he could fix it.
In conformity with one another, both Brown-Knight and Knight testified that the salesman brought a stack of papers for Brown-Knight to sign, and that no one from JAG explained the papers to her. Although Brown-Knight did not finish high school, she completed the eleventh grade and could read. The couple felt pressured to get the documents signed quickly. Brown-Knight testified that she did not have the opportunity to read everything, in particular the bill of sale, and that she did not have her reading glasses with her at the time. Brown-Knight demonstrated at trial that she was unable to read the waiver of warranty language in the bill of sale without her reading glasses.
By awarding Brown-Knight a reduction in price, the trial court implicitly concluded that the waiver of warranty was not brought to Brown-Knight's attention. We find that the record reasonably supports this determination. The waiver of warranty language contained in the bill of sale, which is the only document containing information generally regarded as necessary for a valid waiver of warranty, was written in small, light print, which Brown-Knight demonstrated at trial she was unable to read without her reading glasses. Further, Roy admitted that he did not go over the waiver of warranty language in the bill of sale with Brown-Knight and he did not state that he otherwise brought the language to her attention. Therefore, from our review of the record, we find no manifest error in the trial court's determination that JAG failed to establish a valid waiver of warranty.
Further, we likewise find no error in the trial court's determination that Brown-Knight was entitled to a reduction of the purchase price. In a redhibitory suit, the trial court's decision to order a reduction of the price instead of a recission of the sale is a factual question, which may not be set aside in the absence of manifest error or unless it is clearly wrong. Fly v. Allstar Ford Lincoln Mercury, Inc., 95-1216, p. (La. App. 1st Cir. 8/21/96), 690 So. 2d 759, 761. Brown-Knight presented evidence that two days following the sale, she began experiencing problems with the vehicle and returned it to JAG, whereupon JAG agreed to pay half of the repair cost. However, within one week of receiving the vehicle after the repairs were made, Brown-Knight again experienced problems with the vehicle. Brown-Knight testified that she had the vehicle repaired two times by different mechanics, and that her husband also attempted several repairs, but to no avail. Brown-Knight stated that she drove the vehicle in between the repairs, but ultimately, she sold the vehicle for scrap, as she could no longer use it for transportation. Brown-Knight also acknowledged that she had previously purchased a vehicle from JAG, which she knew had problems, but she paid a substantially lesser price for that vehicle. From our review of the record, we find no error in the trial court's decision to award a reduction of the purchase price rather than a recission of the sale. Additionally, because costs incurred in repairing the defect are a principal factor in an award of a reduction of the purchase price, we find Brown-Knight's argument that the trial court erred in failing to award additional damages for repair costs to be without merit.
Finally, we find no error in the trial court's denial of Brown-Knight's claims for special damages for lost wages and additional general damages and attorney's fees for JAG's bad faith. First, with regard to Brown-Knight's claim for special damages, we note that a plaintiff seeking damages for past lost wages bears the burden of proving lost earnings and the amount of time missed from work. See Cotton v. State Farm Mutual Automobile Insurance Company, 10-1609 pp. 15-16 (La. App. 1st Cir. 5/6/11), 65 So. 3d 213, 224, writ denied, 11-1084 (La. 9/2/11), 68 So. 3d 522. Such damages must be proved by a reasonable certainty. Boudreaux v. State. Department of Transportation and Development, 04-0985, p. 13 (La. App. 1st Cir. 6/10/05), 906 So. 2d 695, 705, writs denied, 05-2164 (La. 2/10/06), 924 So. 2d 174 and 05-2242 (La. 2/17/06), 924 So. 2d 1018. In the instant case, Brown-Knight testified at trial that she was unable to work because the defective vehicle left her with no transportation. However, Brown-Knight did not specifically enumerate how much time she missed from work, nor did she introduce any documentary evidence establishing any amount of time missed from work. Further, Brown-Knight acknowledged that she could have used her husband's truck to go to work, but she did not do so because the cost to drive it outweighed the earnings from her job. Accordingly, from our review of the record, we find no error in the trial court's failure to award damages for lost wages.
With regard to Brown-Knight's claim for general damages and attorney's fees for JAG's bad faith, we note that pursuant to La. C.C. art. 2545, a seller is liable to a buyer for said damages and attorney's fees when he knows that a product contains a defect yet omits to declare it, or when he declares that the thing has a quality that he knows it does not have. However, from our review of the record, we find no evidence supporting that JAG was in bad faith and accordingly, we find no error in the trial court's determination.
DECREE
For the foregoing reasons, we reverse that portion of the trial court's judgment, ordering JAG to pay an aggregate sum of $1,760.00 as determined to be due and owing in accordance with the court's May 18, 2011 judgment. We affirm that part of the trial court's judgment awarding Brown-Knight $2,500.00, plus judicial interest from the date of judicial demand on November 16, 2007 until paid, as a reduction in the purchase price. Appeal costs are assessed equally against Debra Brown-Knight and Just Add Gas, Inc.
REVERSED IN PART; AFFIRMED IN PART.
DEBRA BROWN-KNIGHT
V.
JUST ADD GAS, INC., AND
XYZ INSURANCE COMPANY
NO. 2011 C A 2269
KUHN, J., dissenting in part.
Although I fully agree with the majority's disposition of the discovery issues and its reversal of the trial court's order that JAG pay an aggregate sum of $1,760.00, I disagree with its affirmance of an award for a reduction in the sales price of the vehicle Brown-Knight purchased. Because Brown-Knight executed a waiver of warranty at the time of the sale, the trial court's failure to apply it as written was reversible error.
Brown-Knight does not dispute that the language set forth in both the buyer's guide and the bill of sale was clear and unambiguous. Although the retail installment contract and security agreement form that Brown-Knight signed did not reference the as-is, no warranty provision, clearly the provisions were contained in the contract of sale as evidenced by both the buyer's guide and the bill of sale.
A waiver of warranty does not have to be verbally brought to a purchaser's attention where the language and format of the bill of sale and buyer's guide clearly and unambiguously set forth that a buyer is waiving her rights to claim a return of purchase price and/or a claim in redhibition and that the vehicle was "AS IS-NO WARRANTY." See Ross v. Premier Imports, 96-2577 (La. App. 1st Cir. 11/7/97), 704 So.2d 17, 22, writ denied, 97-3035 (La. 2/13/98), 709 So.2d 750; see also Keaty v. Moss Motors, Inc., 93-1452 (La. App. 3d Cir. 6/1/94), 638 So.2d 684, 687, writ denied, 94-2211 (La. 11/11/94), 644 So.2d 399 (a verbal explanation is not necessarily required to bring a waiver of warranty to a buyer's attention; it is sufficient if the facts demonstrate that the purchaser should have known of the existence of the waiver through presentation of the documents and the language and format of the waiver).
Brown-Knight acknowledged she did not think she was buying a warranty and that she knew the car was over 13 years old and had in excess of 100,000 miles. The record also established that her husband, who was familiar with the mechanics of a gasoline engine, looked under the hood and knew there were problems but nevertheless supported his wife's decision to purchase the vehicle believing he might be able to fix the problems. Clearly, the warranty was sufficiently brought to Brown-Knight's attention by the presentation of the documents and the language and format of the waiver. Based on the undisputed evidence, the trial court erred in failing to apply the waiver of warranty executed by Brown-Knight at the time of sale. As such, the award of $2,500.00 for a reduction in the purchase price and the assessment of costs in the amount of $2,235.44 reimbursable to Brown-Knight were erroneously ordered, and I would reverse both. Accordingly, I dissent.