328 So.3d 1239
La. Ct. App.2021Background
- On April 13, 2019 Donald Modicue bought a 2008 Ford Fusion from Prince of Peace Auto Sale, LLC for $3,995 (paid $1,500 down; later payments totaled $1,708.78). The written contract included "as‑is" language but exempted repair of an interior door handle.
- Shortly after purchase Modicue reported multiple mechanical problems (motor mount, alternator/battery, power steering, oil leak) and sought repairs; he alleges repeated contact and promises by seller to reimburse/repair.
- Modicue missed several payments; Swayzer (sole member/agent for Prince of Peace) repossessed the car. Modicue sued seeking rescission for redhibitory defects.
- Monroe City Court granted rescission, awarded $3,591.78 in special damages (including $383 for repairs), $1,500 in general damages, and $2,500 in attorney fees (total $7,591.78), but left the seller in possession of the vehicle.
- On appeal the seller argued the sale was "as‑is," the defects were unknown at sale, the appeal was untimely, and the seller deserved a credit for the buyer’s use. The appellate court affirmed rescission but removed general damages and unproven special damages, credited the seller $1,708.78 for use, and upheld attorney fees—reducing the net award to $4,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction / timeliness of appeal | Appeal should be considered timely or any doubt resolved for appellant | Notice mailed Nov 9, 2020; appeal filed late (Dec 3) so no jurisdiction | Court declined to dismiss for untimeliness—record lacked proof of actual receipt date; doubt resolved to maintain appeal |
| Redhibition / rescission for defects | Vehicle had multiple defects shortly after sale; buyer notified seller and gave opportunity to cure; defects warranted rescission | Car operated when sold; defects not known at sale; buyer seeks rescission to avoid payments | Trial court credibility finding that defects existed and notice/cure opportunity given was not manifestly erroneous; rescission affirmed |
| Effect of "as‑is" waiver | Buyer argued seller’s statements and contract exception (door handle repair) and assurances made waiver ambiguous | Seller argued written waiver of implied warranties barred redhibition claim | Waiver must be clear, in contract, and brought to buyer’s attention; exception and seller assurances rendered waiver ambiguous—waiver invalid |
| Damages, credits, and attorney fees | Buyer sought full refund, repair costs, general damages, and fees | Seller sought credit for buyer’s use and contested unproven repair costs and general damages | Court: uphold return of amounts actually paid ($3,208.78) and $2,500 attorney fees; reject unproven $383 repair special damages and $1,500 general damages (seller was good‑faith seller); credit seller $1,708.78 for use; net award = $4,000 |
Key Cases Cited
- Myles v. Turner, 612 So.2d 32 (La. 1993) (10‑day appeal delay runs from receipt of notice of judgment)
- Smith v. Winn‑Dixie Louisiana, Inc., 626 So.2d 750 (La. App. 5 Cir. 1993) (examining notice and timeliness of post‑judgment appeal)
- Young v. Ford Motor Co., 595 So.2d 1123 (La. 1992) (standards for redhibitory defects and buyer’s burden)
- Alexander v. Burroughs Corp., 359 So.2d 607 (La. 1978) (seller entitled to credit for buyer’s use when rescission ordered)
- Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La. 1993) (manifest‑error standard for appellate review of factual findings)
- Prince v. Paretti Pontiac Co., 281 So.2d 112 (La. 1973) (requirements for an effective written waiver of warranty)