Milo A. Nickel, Jr. v. Ford Motor Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-978

MILO A. NICKEL, JR.

VERSUS

FORD MOTOR COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2013-625
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

REVERSED.

Kenneth Michael Wright
Attorney at Law
203 West Clarence Street
Lake Charles, LA 70601
(337) 439-6930
COUNSEL FOR PLAINTIFF/APPELLEE:
Milo A. Nickel, Jr.

Robert W. Maxwell
Bernard, Cassisa, Elliott & Davis
130 Terra Bella Boulevard
Covington, LA 70433
(985) 590-5019
COUNSEL FOR DEFENDANTS/APPELLANTS:
Ford Motor Company
Bolton Ford, LLC

Allen J. Mitchell, II
Mitchell & Blanco, LLC
One Lakeshore Drive, Suite 1495
Lake Charles, LA 70629
(337) 436-8686
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Company

Jeffrey G. LaGarde
Bernard, Cassisa, Elliott & Davis
3838 N. Causeway Blvd, Suite 3050
Metairie, LA 70002
(504) 834-2612
COUNSEL FOR DEFENDANTS/APPELLANTS:
Ford Motor Company
Bolton Ford, LLC

GREMILLION, Judge.

Ford 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.

FACTUAL AND PROCEDURAL BACKGROUND

Nickel 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.

Nickel 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.”

Nickel 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.

Bolton 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 . . . .”

Following 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 costs.

Ford 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 now appeal.
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ASSIGNMENTS OF ERROR

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 repairs.

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
elements, allowing its condition to deteriorate.

7. The trial court erred in awarding Nickel $30,000 in attorney’s
fees for a straightforward redhibition action and for awarding
him costs for which he provided no evidence. Moreover, the
trial court erred in awarding Ford credit for use in the amount
of $.20 per-mile, when the current government rate is $.54.
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DISCUSSION

Prescription

Louisiana Civil Code Article 2534 provides (emphasis added):

A. (1) The action for redhibition against a seller who did not
know of the existence of a defect in the thing sold prescribes in four
years from the day delivery of such thing was made to the buyer or
one year from the day the defect was discovered by the buyer,
whichever occurs first.

(2) However, when the defect is of residential or commercial
immovable property, an action for redhibition against a seller who
did not know of the existence of the defect prescribes in one year
from the day delivery of the property was made to the buyer.

B. The action for redhibition against a seller who knew, or is
presumed to have known, of the existence of a defect in the thing
sold prescribes in one year from the day the defect was discovered
by the buyer.

C. In any case prescription is interrupted when the seller
accepts the thing for repairs and commences anew from the day he
tenders it back to the buyer or notifies the buyer of his refusal or
inability to make the required repairs.

A party asserting a claim in redhibition must tender the vehicle for repair in

order to interrupt prescription and maintain the action. Granger v. Deville, 583

So.2d 583 (La.App. 3 Cir. 1991). We review the trial court’s finding that Nickel’s

claim was not prescribed using the manifest error standard of review because

evidence was adduced at hearing on the exception. Leija v. Ford Motor Co., 49,574

(La.App. 2 Cir. 1/14/15), 161 So.3d 1020. Accordingly, if the trial court’s finding

is reasonable after thoroughly reviewing the record, we cannot reverse it even if we

may have held differently. Stobart v. State, Through Dep’t of Transp. & Dev., 617

So.2d 880 (La.1993).

[W]here documents or objective evidence so contradict the witness’s
story, or the story itself is so internally inconsistent or implausible
on its face, that a reasonable factfinder would not credit the witness’s
story, the court of appeal may find manifest error or clear wrongness
even in a finding purportedly based upon a credibility determination.

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Id. at 882.

The trial court found that there was no paper trail because Nickel was personal

friends with the owner of the Shetler Ford dealership. The trial court denied the

exception based on its finding that there was an ongoing pattern of the vehicle being

brought in for inspection and that prescription was interrupted until Bolton Ford sent

notice to Nickel on January 18, 2013 that its repair efforts had ceased. The trial court

stated at the conclusion of the trial:

Due to the personal relationship Mr. Nickel had with Mr. Don
Shetler, who owned the dealership at the time, and the fact that the
vehicle never malfunctioned at the shop, formal work orders or
repair orders were not executed or generated on every occasion Mr.
Nickel brought the truck in because of these continuous, constant,
reoccurring problems.

The Court is satisfied with the explanations and reasons
offered for the lack of a so-called paper trail detailing the dates and
number of times the truck was brought in for inspection and repair.

The defendant’s peremptory exception of prescription is
denied. Evidence of this ongoing pattern of the truck being brought
in for inspection when it was having problems and the problems
being undetectable once at the shop is found throughout the record.
Again, therefore, prescription has not been proven. It was
interrupted until Ford Motor Company sent notice to Mr. Nickel on
January 18, 2013 that its repair efforts had ceased.

We find the trial court manifestly erred in its finding. There was no reasonable

basis upon which the trial court could have found that Nickel brought the vehicle in

for repair subsequent to May 29, 2009, but before the next records were generated

by Bolton Ford on September 6, 2011.

The evidence relating to this issue was as follows. Mike Shetler, the owner

of Shetler Ford when Nickel purchased the vehicle, testified that he has known

Nickel for a number of years as they grew up together. Shetler testified that Nickel,

an attorney, had also represented the dealership and him personally in legal matters,

which included a redhibition claim. Shetler said that Nickel had purchased vehicles

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from him in the past. The Ford Flex that Nickel purchased was the first year that it

was released. Shetler stated that the Ford Flex was much different than any vehicle

that had come before it because it had a different electronics system meant to be a

more comprehensive computerized electronic component. Shetler ordered the car

for Nickel, and it took approximately six months to arrive. As Nickel was a family

friend, Shetler sold the car to him at “cost.” Nickel picked up the 2009 model vehicle

on September 11, 2008. According to Shetler’s testimony, this Ford Flex was the

first one sold by Shetler’s dealership.

Shetler stated that Nickel would call him directly if he needed to address a

problem. After about a week of owning the vehicle, Nickel called Shetler and said

that the computer navigation system screen would turn off and lose the memory of

information Nickel had input into the system. Shetler said that Nickel also reported

that the blinkers would turn on and off and the dash lights “would do goofy things”

but that the problems could not be duplicated at the dealership. Shetler testified that

Nickel brought the vehicle in for repairs but the dealership was never able to

determine what was causing the problems with the vehicle.

Shetler testified that Nickel called him from the scene of the October 21, 2008

accident and reported that he rear-ended someone. The vehicle was sent out for body

work by Lloyd Lauw Repair Shop. During that time, Shetler Ford ordered a part

from Ford and awaited the return of the vehicle. Shetler noted the part was installed

in January 2009, after the vehicle came back from the body shop.1 Shetler testified

that in the spring following the purchase of the vehicle, Nickel reported that the

vehicle died going down the road, but the dealership could not duplicate the concern.

1
Shetler explained that the way that Ford rates dealerships relates to the timing between
the ordering of a part and the closing of the ticket. Therefore, in order to maintain a good rating,
even though the part had been ordered in the fall of 2008, the official Ford “ticket” was not dated
until January 2009.
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Shetler then reviewed repair orders issued by his dealership dated January 9,

2009, January 15, 2009, and May 27, 2009. In January 2009, the radio/navigation

assembly was replaced; in March 2009, the radio navigation was replaced again; and

in May 2009, Nickel’s steering wheel sensor was replaced. In August 2009, Shetler

sold the dealership to Tarver Ford.

Brian Bates, a service manager at Bolton Ford started working there in 2009

and was promoted to service manager in July 2012. Bates testified as to the

procedure when someone brings in a car for repair. He said a technician writes down

the complaints or problems the customer is having with the vehicle and then has the

customer sign the paper, which authorizes the dealership to work on the car. A repair

order is then generated and given to a dispatching agent, who assigns a technician to

work on the car. Bates said this procedure is followed in every case for insurance

reasons and so that they can be paid by Ford. Even if no problems are found or can

be identified, a repair order is always generated because the dealership is still paid

for diagnostic tests and time.

Christopher Furnas, an expert in automotive technology, had worked for Ford

for over twenty-four years. Furnas explained that Ford’s policy is that a vehicle does

not come into a service bay without having a ticket written up. He said he has

worked in every Lake Charles service department and all follow this procedure.

Ford generated no records whatsoever of Nickel bringing his vehicle in for

repair for nearly two years and four months. Shetler Ford’s last-generated repair

order was May 27, 2009. Shetler sold the dealership three months later in August.

The subsequent owner of the dealership was not a witness at trial.

Nickel was very vague in his allegations that he brought his vehicle in for

repair but no repair orders were generated. His testimony relating to the two plus

years of no records was as follows:
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Q. Okay. Then from the – from the spring of ’09, Mr. Shetler
sold the dealership, until September 6th of 2011, there were no repair
records, no service, nothing done at Shetler Ford or Tarver or anyone.
We have a complete lack from 2009 to 2011. If my math is correct
it’s two years and four months; and when the vehicle came in, it had
69,357 more miles than you did, you know, at the time when you
were having the – after it got back from the repair shop. So, does
that sound about correct?

A. Some of that sounds correct. I disagree with the statement
that I didn’t take it anywhere from 5/09 to whatever, two years. I
disagree with that.

Q. Well, if you did – you – you told us, I believe – is it correct,
sir – that you didn’t have this vehicle at any non-Ford dealership.
You just took it to Ford dealerships.

A. That’s correct.

Q. Okay. And if I ask you to assume that there’s no repair
records of any sort during this two-year-and-four-month period
during which you drove 69,000 miles, if I’m incorrect, could tell me
where you went and –

A. I –

Q. – where the repair record is?

A. I don’t know about the repair record, but I know that I
stopped at – the Ford dealership – Shetler Ford dealership in
Crowley between 2009 and 2011.

Q. And that was one day you had called them and they
couldn’t look at your vehicle; am I correct?

A. That’s right.

Q. Okay. I didn’t mean – let me limit the question a little bit
better, Mr. Nickel. I’m not talking about maybe you stopped in or
you called somebody on the telephone. I’m talking about you
bringing the vehicle in, saying, please service this vehicle and them
doing some sort of work on it and giving you the vehicle back and
giving you the repair order because the records indicate that there
was a two-year-and-four-month gap; and when we next see the
vehicle being serviced, it had an additional 69,357 miles on the
odometer.

A. Sure. It’s an objectively true statement.

Q. Okay.

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A. But it’s not accurate to say that there were no complaints
during that period because –

Nickel generally claimed to have no control over what paperwork Ford

generated. He produced no records or proof of any kind that he brought the car into

Tarver Ford or any other Ford dealership for repair. As an attorney with experience

in redhibition claims, Nickel would have had more awareness than a regular

customer that a paper-trail of attempted repairs, even one he created for himself,

should have been generated. Furthermore, because there was no special relationship

with the owner of Tarver Ford, there is no reason that Tarver Ford would not

generate the same records that every other Ford dealership generates when a

customer brings a vehicle in for repair. Moreover, the records generated by Shetler

Ford generally disprove Nickel’s claim that he would bring it in but no records would

be generated. Further, the start of the Shetler Ford service records is January 2009,

some three months following the accident which required over $9,000.00 in repairs.

In the meantime, over the two-year period, Nickel accumulated 77,000 miles on the

car that allegedly constantly caused him problems.

We find that it was unreasonable for the trial court to conclude that Nickel

continued to bring the car in for repairs but that no orders were generated.

Accordingly, Nickel’s redhibition claim against Ford prescribed on May 27, 2010,

one year after his last attempt at service at Shetler Ford. Even if we gave Nickel the

benefit of the doubt and concluded that he did bring it in to Shetler for repairs or to

be looked at, Shetler sold the dealership in August 2009. Nickel established no

special relationship with the subsequent owner whereby he would just bring it in

with no formal paperwork generated in the routine and ordinary course of business.

The subsequent owner did not testify at trial. Therefore, even if we assume that

Nickel brought in the vehicle through August 2009 while Shetler was still the owner,

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we find reasonable people could only conclude that Nickel may have brought it in

without any records being generated by Shetler Ford before Shetler sold the

dealership in 2009. Thus, even under this strained scenario, Nickel’s claim is

prescribed.

Because we find that Nickel’s claim is prescribed, all of the remaining

assignments of error pertaining to redhibition are rendered moot, and the judgment

of the trial court in favor of Nickel is reversed.

Bolton Ford/Negligent Repair

Forgetting the fact that it is legally impossible for Bolton Ford to be liable to

Nickel for a redhibitory defect in a car he purchased from another dealership,

Nickel’s claim in redhibition was prescribed as discussed above. See La.Civ.Code

art. 2520. Therefore, the only remaining claim against Bolton Ford to be reviewed

for manifest error is whether the trial court reasonably found that Bolton is liable to

Nickel for negligent repair, a cause of action lying in tort rather than redhibition.

See La.Civ.Code art. 2316; Landry v. Int’l Harvester Co., 452 So.2d 806 (La.App.

3 Cir. 1984). The trial court found that Nickel did not abandon his vehicle at the

dealership:

I don’t think he just abandoned the vehicle. They were in
possession of the vehicle for quite some time. As I said earlier, they
didn’t expect it and they didn’t – for a while. And Mr. Nickel, I
think, was that, we’re not going to do anything more. That should
have been made clear to him sooner than it was. And I, you know,
I don’t think he necessarily abandoned the vehicle. He was waiting
to hear from Ford Motor Company and Ford Motor Company was –
it took them a while to get to that point, which I thought – when
listening at the trial, I thought they should have gotten there much
sooner and I thought they – it would be in their interest if they had,
but they didn’t. They were a little delinquent in getting that –
making that known to Mr. Nickel while everything is just – you
know, nothing is happening for a number of months.

So I don’t think he necessarily abandoned the vehicle.

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The evidence at trial indicated that a repair order was generated by Bolton

Ford on September 6, 2011. The repair order indicates that Nickel stated that the car

would not start, but when the technician started the car the following morning it

started every time, and no repairs were made. Subsequent repair orders generated

by Bolton Ford show multiple attempts to diagnose and fix the problems Nickel

claimed to be having with the vehicle. The vehicle remained at Bolton Ford until

Furnas was able to assess the vehicle in April 2012. After getting a rundown of the

car’s history from the technicians, Furnas immediately had the car “racked” and

determined it had been wrecked, a fact which had not been reported by Nickel.

Furnas said that he could see evidence of body work and damage to the electrical

area. He determined that the problems were electrical and most likely caused by the

October 2008 accident. Furnas recommended that the power distribution box and

electrical wiring harness be replaced. The cost of the repair was $2,500.00. Nickel

subsequently contacted his insurer, State Farm, who refused to pay for the repair.

Nickel testified that he refused to pay for the repair unless the dealership could

guarantee 100% that the car would be fixed. Nickel was questioned:

Q. And after that time, since you declined to pay and State
Farm declined to pay, there was nothing else done on the vehicle,
correct?

A. Correct.

Q. And it sat there on the dealer lot for almost 18 months with
nothing being done, correct? You left it there?

A. Eighteen months?

Q. Yes, sir.

A. From when? You’re saying –

Q. Well, from the spring of 2012 through the middle of 2013,
so maybe 18 months – it was, say, 12 months, 12 or 13 months.

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A. Whatever that period of time was. I don’t know the
number of months, but it was there until we took it back.

Q. And during that time period, no one from Bolton Ford told
you to please leave the car here for this year, right?

A. That’s correct.

Q. No one said we’re repairing your car during this year from
2012 to 2013, did they sir?

A. No.

Q. And, in fact, you finally got a certified letter from Bolton
Ford from the service manager saying, please come get [y]our
vehicle off of our lot?

A. That’s true.

Bolton Ford sent a letter to Nickel in January 2013 requesting that he retrieve

his vehicle from the Bolton Ford lot. The facts and testimony are clear that Nickel

refused to pay for the repair and, effectively, abandoned his vehicle at the dealership.

Considering that Bolton never actually repaired anything because Nickel refused to

pay for the repair, it is hard to fathom how it could be found to have negligently

repaired Nickel’s Ford Flex or was otherwise negligent for allowing Nickel’s vehicle

to remain in storage on its lot. Accordingly, we reverse any finding by the trial court

that Bolton Ford was negligent in any way pertaining to this vehicle.

CONCLUSION

The judgment of the trial court finding Ford Motor Company and/or Bolton

Ford, LLC liable in redhibition is reversed, as Nickel’s redhibition claim is

prescribed. Accordingly, all money judgments in his favor are reversed. The trial

court’s judgment casting Bolton Ford, LLC in judgment is reversed. All costs of

this appeal are assessed to the Plaintiff-Appellee, Milo A. Nickel, Jr.

REVERSED.

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