Wiley C. Sharbino v. Cooke Family Enterprises, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1306

WILEY C. SHARBINO

VERSUS

COOKE FAMILY ENTERPRISES, LLC, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 229,151
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters and Marc T. Amy, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Stephen E. Everett
823 Johnston Street
Alexandria, LA 71301
(318) 443-6312
COUNSEL FOR PLAINTIFF/APPELLANT:
Wiley C. Sharbino

Carroll Devillier, Jr.
Breazeale, Sachse & Wilson
Post Office Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
COUNSEL FOR DEFENDANT/APPELLEE:
Cooke Family Enterprises, LLC

AMY, Judge.

The plaintiff filed a suit for rescission of the sale of a motorcycle which he

purchased from the defendant. The defendant filed a motion for summary judgment

alleging that it should be dismissed as the sale was rescinded prior to the filing of

suit. The trial court entered summary judgment in favor of the defendant and awarded

attorney fees. The plaintiff appeals. For the following reasons, we affirm in part,

reverse in part, and remand for further proceedings.

Factual and Procedural Background

On February 5, 2007, the plaintiff, Wiley Sharbino, purchased a 2003 Harley

Davidson motorcycle from the defendant, Cooke Family Enterprises, L.L.C., d/b/a

Renegade Harley-Davidson. He filed this matter on September 10, 2007, alleging

that within two days of purchase, the motorcycle sustained a broken drive belt. He

contended that, upon return to the dealership, he was informed that “the drive

sprockets on the transmission and the rear wheel of the motorcycle were mismatched,

causing the drive belt to break.” He stated that the condition could not be remedied

without changing the appearance of the motorcycle and that he would not have

purchased the motorcycle had he known of this condition. He alleged that the

dealership knew of the condition prior to the sale and that it was in bad faith in the

sale. Thus, the plaintiff asserted that he was entitled to the sales price plus interest,

reasonable expenses related to the sale and preservation of the motorcycle, and

attorney fees.

In its answer, the defendant acknowledged that the plaintiff purchased the

motorcycle, but denied, among other things, that its employees acted in bad faith.

The defendant further asserted that the petition failed to allege a cause of action as it

had previously “rescinded the sale, paid all amounts outstanding on the purchase

price of the Motorcycle, and satisfied all liens against the Motorcycle.” The

defendant contended that the plaintiff could not have suffered pecuniary damages, as

he had not made payments on the motorcycle, and that he did not suffer non-

pecuniary damages.

Thereafter, on July 8, 2008, the defendant filed a motion for summary

judgment, which it supplemented with the affidavit of Eddy F. Soberon, the

defendant’s co-owner and dealer/operator. Included in his statements are details of

the sale of the motorcycle, as well as the rescission of the sale and the defendant’s

satisfaction of the related lien. The record contains no opposition filed by the

plaintiff. The minutes and transcript reflect that neither the plaintiff nor his counsel

was present at the motion for summary judgment hearing conducted on August 25,

2008. Following the hearing, the trial court entered judgment in favor of the

defendant, dismissing the plaintiff’s petition and, upon oral motion of the defendant’s

attorney, awarded $1,000.00 in attorney fees as well as court costs.

The plaintiff appeals, questioning both the entry of summary judgment and the

imposition of attorney fees.

Discussion

The plaintiff contends that summary judgment was inappropriate and that he

did not assert an opposition as there was “no discovery in this case.” He also argues

that the defendant’s submission was without “references to the critical issue of

knowledge of defects prior to the sale, determinative of Plaintiff’s claimed right to

relief under Civil Code Article 2545.” He also asserts that the “mover never carried

its burden by negating by affidavit or other proof glaringly obvious issues of material

fact, the burden therefore never shifted to Plaintiff, and the Motion for Summary

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Judgment should not have been granted.” The plaintiff’s argument fails in various

respects.

Louisiana Code of Civil Procedure Article 966(B) provides that summary

judgment “shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to material fact, and that mover is entitled to judgment as

a matter or law.” With regard to burden of proof, Article 966(C)(2) provides that:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

This article indicates that, since it was the plaintiff who had the burden of proving all

aspects of his claim at trial, the defendant was only required to point out an absence

of factual support for “one or more elements essential to the adverse party’s claim[.]”

Id. Thereafter, the plaintiff was required to establish that he would be able to meet

his evidentiary burden of proof. The plaintiff failed to do so.

Louisiana Civil Code Article 2520 instructs, in part, that:

The seller warrants the buyer against redhibitory defects, or vices,
in the thing sold.

A defect is redhibitory when it renders the thing useless, or its use
so inconvenient that it must be presumed that a buyer would not have
bought the thing had he known of the defect. The existence of such a
defect gives a buyer the right to obtain rescission of the sale.

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A defect is redhibitory also 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 plaintiff’s suit was for rescission of the sale, and, due to his allegation of bad

faith on the part of the defendant, he sought recovery under La.Civ.Code art. 2545,

which provides:

A seller who knows that the thing he sells has a defect but omits
to declare it, or a seller who declares that the thing has a quality that he
knows it does not have, is liable to the buyer for the return of the price
with interest from the time it was paid, for the reimbursement of the
reasonable expenses occasioned by the sale and those incurred for the
preservation of the thing, and also for damages and reasonable attorney
fees. If the use made of the thing, or the fruits it may have yielded, were
of some value to the buyer, such a seller may be allowed credit for such
use or fruits.

A seller is deemed to know that the thing he sells has a redhibitory
defect when he is a manufacturer of that thing.

The defendant produced evidence indicating that the plaintiff would be unable

to establish the merits of his claim and further evidence indicating that no damages

were owed. Particularly, Mr. Soberon’s affidavit provided that, when the plaintiff

rejected the possible repair to the motorcycle, the defendant agreed to rescind the sale.

The defendant tendered the full “pay-off balance” on the motorcycle, which included

interest since the plaintiff had not made any payments after the purchase. This

arrangement was further evidenced by a letter from Harley-Davidson Credit

indicating that the loan had been paid in full and a Lien Satisfaction form issued by

Eaglemark Savings Bank, the title holder. As for the plaintiff’s contention that he

was owed additional damages because the loan balance did not include his down

payment, Mr. Soberon’s affidavit indicated that he and other employees “repeatedly

asked Mr. Sharbino to come retrieve his pistol and Mr. Sharbino refused. Mr.

Sharbino maintained he wanted $1,500 instead. He told Mr. Sharbino that Sharbino

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was not entitled to a refund of anything other than what his actual down payment was,

which was the pistol.” Finally, he stated that the “pistol is in safe keeping at

Renegade Harley and Sharbino is free to retrieve it at any time.”

Despite this evidence, the plaintiff offered no opposing evidence indicating that

he would be able to satisfy his evidentiary burden of proof at trial as is required by

La.Code Civ.P. art. 966(C)(2). While the plaintiff argues that the defendant failed to

introduce evidence of its good faith, he was the party required to come forward with

evidence of bad faith pursuant to Article 966(C)(2) as he would have been required

to do at trial. The mere allegation of bad faith in his petition was insufficient.

Finally, it bears mentioning that the plaintiff has not demonstrated his entitlement to

any damages. Rather, the record is silent on this point. In light of the fact that the

sale had been rescinded prior to the filing of suit, the entirety of the loan and finance

charges were paid by the defendant, and the plaintiff had the motorcycle in his

possession for only a few days, it is unclear what damages could have been incurred.

Nor is there merit to the plaintiff’s assertion that summary judgment was

inappropriate as there had been no discovery in this case. The plaintiff filed the

petition in this case on September 10, 2007, whereas the defendant did not file the

motion for summary judgment until ten months later, on July 15, 2008. The record

contains no indication that the plaintiff instituted discovery during that time, although

the matter initially had a trial date of August 19, 2008 according to the parties’ joint

motion to continue trial. The plaintiff did not apprise the trial court of any need for

additional time to respond to the motion for summary judgment as is provided by

La.Code Civ.P. art. 966(B), which provides: “For good cause the court shall give the

adverse party additional time to file a response, including opposing affidavits or

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depositions.” In short, there was no request or showing of good cause for additional

time.

For these reasons, the trial court correctly entered summary judgment in favor

of the defendant, dismissing the plaintiff’s petition.

Attorney Fees

The plaintiff also contests the trial court’s award of $1,000 in attorney fees to

the defendant. While defense counsel orally moved for attorney fees at the summary

judgment hearing, the record does not definitively indicate on what basis the request

was made or on what basis the trial court made the award. In its brief, defense

counsel suggests that attorney fees were appropriate under La.Code Civ.P. art. 863,

which provides:

A. Every pleading of a party represented by an attorney shall
be signed by at least one attorney of record in his individual name,
whose address shall be stated. A party who is not represented by an
attorney shall sign his pleading and state his address.

B. Pleadings need not be verified or accompanied by affidavit
or certificate, except as otherwise provided by law, but the signature of
an attorney or party shall constitute a certification by him that he has
read the pleading; that to the best of his knowledge, information, and
belief formed after reasonable inquiry it is well grounded in fact; that it
is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law; and that it is not interposed for
any improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation.

....

D. If, upon motion of any party or upon its own motion, the
court determines that a certification has been made in violation of the
provisions of this Article, the court shall impose upon the person who
made the certification or the represented party, or both, an appropriate
sanction which may include an order to pay to the other party or parties
the amount of the reasonable expenses incurred because of the filing of
the pleading, including a reasonable attorney's fee.

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E. A sanction authorized in Paragraph D shall be imposed only
after a hearing at which any party or his counsel may present any
evidence or argument relevant to the issue of imposition of the sanction.

Even if the trial court found attorney fees appropriate under this article, the

imposition of such a sanction is appropriate after a “hearing at which any party or his

counsel may present any evidence or argument relevant to the issue of imposition of

the sentence.” As the plaintiff’s counsel did not attend the summary judgment

hearing and the request for attorney fees was made at that hearing, no evidentiary

hearing has yet been held on the sanctions issue. Moreover, Article 863(D) requires

a designation by the trial court as to whether the sanction is “impose[d] upon the

person who made the certification or the represented party, or both[.]” Accordingly,

we reverse the imposition of attorney fees and remand this matter for notice and a

hearing in accordance with La.Code Civ.P. art. 863.

Frivolous Appeal

The defendant asserts in its brief to this court that damages should be awarded

for the filing of a frivolous appeal under La.Code Civ.P. art. 2164. In light of the

order of remand, we do not make an award under Article 2164.

DECREE

For the foregoing reasons, the summary judgment is affirmed insofar as it

dismissed the plaintiff’s Petition for Rescission of Sale and for Damages with

prejudice and awarded court costs. The judgment is reversed insofar as it ordered the

payment of attorney fees. This matter is remanded for a hearing on the issue of

whether sanctions are appropriate pursuant to La.Code Civ.P. art. 863. All costs of

these proceedings are assessed to the appellant, Wiley C. Sharbino.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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