Kite Bros. LLC v. Timothy Alexander and Lisa Alexander

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-488

KITE BROS. LLC

VERSUS

TIMOTHY ALEXANDER AND

LISA ALEXANDER

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 89,985 A
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery,
Judges.

AFFIRMED.

Jack L. Simms, Jr.
Attorney at Law
P. O. Box 1554
Leesville, LA 71446
(337) 238-9393
COUNSEL FOR PLAINTIFF/APPELLANT:
Kite Bros. LLC

Michael A. Smith, Jr.
Alvin C. Dowden, Jr.
Dowden & Smith, L.L.C.
116 E. Lula Street
Leesville, LA 71446
(337) 238-2800
COUNSEL FOR DEFENDANTS/APPELLEES:
Timothy Alexander
Lisa Alexander

GREMILLION, Judge.

Kite Bros., LLC, appeals the judgment in favor of defendants, Timothy and

Lisa Alexander, rejecting Kite Bros.’ demands against defendants resulting from

damage to a recreational vehicle (RV) that defendants traded in when they purchased

a new RV. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL POSTURE

The Alexanders previously purchased two RVs from Kite Bros. prior to

October 15, 2013, when they purchased a 2014 Torque RV (the Torque) from Kite

Bros. and traded in their 2006 Fleetwood Gearbox fifth wheel “toy-hauler” RV (the

Gearbox). The manner in which this deal was perfected is disputed by the parties.

The Alexanders claim that the deal was discussed and perfected during a meeting in

the office of Kite Bros.’ manager, Mr. Robert Kite, on October 15, 2013. Mr. Kite,

on the other hand, testified that he and Mr. Alexander discussed the purchase price

of the Torque and the trade allowance on the Gearbox in a phone call on October 13,

2013. Kite Bros. allowed the Alexanders $25,495.00 for the trade-in. No one at

Kite Bros. inspected the interior of the Gearbox prior to perfecting the transaction,

according to Mr. Kite.

Robert Kite testified that he relied upon his prior dealings with the Alexanders

and, thus, did not inspect the interior of the trailer. Mrs. Alexander testified that

during their October 15 meeting, Mr. Kite and his son, Jeff, left her and her husband

in his office while they inspected the trailer, and Mr. Alexander confirmed this in

his testimony. Mrs. Alexander denied seeing either Robert or Jeff Kite enter the

trailer; however, when he returned to his office, Robert Kite complimented her on

how “new” looking she kept the interior. Mr. Alexander also confirmed this.

The Gearbox was not without flaws when the Alexanders traded it in. The

awning had been torn off in a storm and there was damage around the fender wells.

Robert Kite requested that they file a claim with their insurer for replacement of the

awning. The Alexanders agreed to do that, and their insurer, USAA, paid the claim.

The sale of the Torque was finalized by the execution of a “Retail Installment

Sale Contract” between the Alexanders and Kite Bros. This contract provides that

the Torque was sold “AS IS,” with only the manufacturer’s warranty. The contract

requires the Alexanders to maintain property damage insurance on the Torque for

the term of the contract, ten years. It obligates the Alexanders to pay the entire

amount under the contract even if the Torque is damaged, destroyed, or missing. It

provides for various remedies available to Kite Bros. should the Alexanders be

delinquent in their payments or in outright default. The contract is silent on any

warranties on the Gearbox.

After completing the paperwork, Kite Bros. personnel readied the Torque and

the Alexanders moved their personal effects from the Gearbox into the Torque.

Robert Kite entrusted the Alexanders with his credit card so they could fill the tank

of the Torque’s generator. They then returned the credit card and drove home, the

Torque in tow.

In November 2013, Kite Bros. contacted Mrs. Alexander and advised her that

the roof of the Gearbox had been damaged. The Alexanders went to the dealership

and were shown an area where the membrane roof material had been peeled back a

corner over the garage section of the trailer, beneath which was a “hole” in the roof

deck. Mrs. Alexander testified that she did not think the damage she was shown

could have developed during the month Kite Bros. had owned the Gearbox.

The manufacturer of the Gearbox, Fleetwood, had declared bankruptcy,

according to Robert Kite. It took some months for Kite Bros. to obtain the parts

needed to repair the awning. After those parts arrived in February 2014, the Gearbox

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was moved into a garage to be repaired, and deterioration inside the Gearbox was

discovered. Robert Kite contacted the Alexanders, who agreed to file a second claim

with USAA. Mr. Kite testified that the Gearbox has been stored indoors since.

USAA paid a portion of the damages but denied others as resulting from lack

of maintenance or wear and tear. The Alexanders denied any responsibility for the

damage.

In July 2014, Kite Bros. filed their “Petition for Breach of Contract” against

the Alexanders. The petition alleged that the Alexanders traded the Gearbox and

that Kite Bros. fixed the trade-in value “solely on the defendants [sic] . . .description

of the trade-in as having no leaks, rotten wood, water damage, and in good condition,

never having a leak or being damaged in any manner.” The petition further alleged

that Kite Bros. inspected the Gearbox on two separate occasions and, despite that,

did not discover that the Gearbox had been “leaking for a long time, had sustained

water damage, and had deteriorated to the extent that is was a total loss[.]” The

leaking was such, according to the petition, that it could not be detected by

reasonable and simple inspection. It concluded with a prayer for adequate

compensation, costs, and attorney fees.

The matter proceeded to trial in August 2018. The testimonies of the

Alexanders and Robert Kite have already been discussed. The trial court also heard

from Eyoul Slaydon. Mr. Slaydon is a friend of the Alexanders and went hunting

with Mr. Alexander in Colorado on several occasions in the Gearbox. After the

Alexanders traded the Gearbox, Mr. Slaydon considered purchasing it from Kite

Bros. with full knowledge of the deterioration, which he thought he could repair.

When Mr. Slaydon examined the trailer, it was sitting outside Kite Bros. Kite Bros.

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offered to sell the Gearbox to Mr. Slaydon for $11,000.00, but he decided that it was

too heavy for his truck.

Mr. Aaron Theall was offered by Kite Bros. as an expert in mobile home and

recreational vehicle appraisal, damage assessment and causation, and repair. After

questioning and traversal on Mr. Theall’s qualification, the trial court ruled that no

proper foundation had been laid to qualify him. Mr. Theall thereafter identified

photographs he took of the Gearbox on June 2, 2016. These photographs show

extensive deterioration of a large section of the roof, several feet in length rather

than the corner of the roof shown to Mrs. Alexander. They also reflect extensive

interior damage to the floor and walls in the area identified by Mr. Theall as the toy-

hauler section. The exterior wall was buckled, about which no one testified.

The trial court took the matter under advisement and rendered written reasons

for judgment in favor of the Alexanders. The trial court agreed with Kite Bros. that

the claim did not lay in redhibition; a seller owes no warranty for defects known to

the buyer or that should have been discovered by a reasonably prudent buyer.

La.Civ.Code art. 2521. Kite Bros. is engaged in the business of selling recreational

vehicles. Robert Kite testified that he did not inspect the interior of the Gearbox.

The general law of sales requires that a buyer be given a reasonable

opportunity to inspect the thing to determine whether it conforms with the contract,

even after delivery. La.Civ.Code art. 2604. The buyer can also reject a

nonconforming thing within a reasonable time. La.Civ.Code art. 2605. The trial

court found that Kite Bros. “had ample and reasonable time to inspect the 2006

Gearbox trailer.”

The trial court further interpreted the contract’s waiver of warranties and the

“AS IS” provision against Kite Bros., who drafted the contract. Further, the contract

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provided that it “contained the entire agreement” between the buyers (the

Alexanders) and the seller (Kite Bros.), and any changes must have been reduced to

writing. Because no writing altered the terms of the agreement, the contract provided

no further remedy to Kite Bros.

ASSIGNMENTS OF ERROR

Kite Bros. asserts that the following errors were committed by the trial court:

1) The trial Court erred in holding that plaintiff failed to carry
its burden of proof that defendants breached the contract with plaintiff
concerning the sale of the camper trailer, that is the subject of these
proceedings.

2) The Trial Judge erred in the apparent misapplication of the
laws and jurisprudence of the State relative to actions in redhibition to
the laws relative to a breach of contract proceeding.

3) The Trial Judge erred in his interpretation of the applicable
Codal Articles and Jurisprudence of this State, thus rendering a
Judgment that is clearly wrong, and contrary to the law and evidence.

4) The Trial Judge erred in not allowing the expert testimony of
Aaron Theall concerning causation of the damage to the defendants'
trade-in trailer.

ANALYSIS

Redhibition

The trial court found, and the parties agree, that this matter does not sound in

redhibition. We agree. Sellers—in this case the Alexanders—do not warrant against

defects in a thing, such as the Gearbox, that “were known to the buyer [Kite Bros.]

at the time of the sale, or for defects that should have been discovered by a

reasonably prudent buyer of such things.” La.Civ.Code art. 2521. The trial court

concluded that Kite Bros. should have discovered all defects in the Gearbox because

it has been in the RV business for many years. We could not reverse on this finding.

Findings such as the existence of a redhibitory defect and whether the same

should have been detected by a reasonably prudent buyer are findings of fact and are
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reviewed under the manifest error standard. Under that standard, the issue is not

whether the trial court was right or wrong, but whether its conclusions were

reasonably supported by the whole record. Stobart v. State, Dep’t of Transp. and

Dev., 617 So.2d 880 (La.1993). In this case, the record supports the trial court’s

finding. Robert Kite testified that he did not inspect the Gearbox. The Alexanders

testified that he did. Either way, redhibition would be precluded as a viable cause

of action.

Other remedies

In addition to an action in redhibition, a buyer enjoys remedies in contract.

Louisiana Civil Code Article 2524, although it appears in Chapter 9 of Title VII,

which governs redhibition, affords the buyer additional warranties (emphasis added):

The thing sold must be reasonably fit for its ordinary use.

When the seller has reason to know the particular use the buyer
intends for the thing, or the buyer's particular purpose for buying the
thing, and that the buyer is relying on the seller's skill or judgment in
selecting it, the thing sold must be fit for the buyer's intended use or for
his particular purpose.

If the thing is not so fit, the buyer's rights are governed by the
general rules of conventional obligations.

Comment (b) provides:

Under this article when the thing sold is not fit for its ordinary
use, even though it is free from redhibitory defects, the buyer may seek
dissolution of the sale and damages, or just damages, under the general
rules of conventional obligations. The buyer’s action in such cases is
one for breach of contract and not the action arising from the warranty
against redhibitory defects.

“Thus, it appears that the legislature intended to separate and categorize three

different types of warranties applicable to sales rather than to have all such

warranties defaulted into the category of the warranty against redhibitory defects.”

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Cunard Lines Ltd. v. Datrex, Inc., 05-1171, pp. 6-7 (La.App. 3 Cir. 4/5/06), 926

So.2d 109, 114.

Clearly, Kite Bros. was not relying on the Alexanders’ “skill or judgment in

selecting” the Gearbox. La.Civ.Code art 2524. The Alexanders did not seek out a

Gearbox for Kite Bros.; they had the Gearbox and were seeking to trade that

particular Gearbox for an adjustment to the amount they ultimately had to pay for

the Torque. Thus, the only remaining warranty available to Kite Bros. was that the

Gearbox was unfit for ordinary use. The enforcement of that remedy lay in the

“general rules of conventional obligations.” Id.

General law of sales provisions

“When the thing the seller has delivered. . . is not of the kind or quality

specified in the contract or represented by the seller, the rights of the buyer are

governed by other rules of sale and conventional obligations.” La.Civ.Code art.

2529. Separate from claims in redhibition, the general law of sales gives a buyer a

reasonable opportunity to inspect a thing. La.Civ.Code art. 2604. “A buyer may

reject nonconforming things within a reasonable time.” La.Civ.Code art. 2605. “A

buyer’s failure to make an effective rejection within a reasonable time shall be

regarded as an acceptance of the things.” Id. “Things do not conform to the contract

when they are different from those selected by the buyer or are of a kind, quality, or

quantity different from the one agreed.” La.Civ.Code art. 2603.

The trial court found that Kite Bros. had a reasonable opportunity to discover

the defects in the Gearbox. Kite Bros. argues that the defects were discovered within

a reasonable time, that notice was properly given to the Alexanders, and that it

operated in the belief that “the initially discovered nonconforming things would be

fixed, or cured, since the defendants agreed to file an insurance claim, and a portion

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of the claim was paid.” Kite Bros. also makes much of the “existence of the damages,

and the extent thereof, as shown in the photographs taken by Aaron Theall.” In

essence, Kite Bros. is arguing that the trial court’s finding that it had a reasonable

opportunity to inspect and discover the defects was wrong. This finding is one of

fact and subject to the manifest error standard. See Stobart, 617 So.2d 880.

We find that the trial court’s finding is reasonably supported by the record.

Kite Bros. did not contact the Alexanders about the problem for a month. We are

unable to reverse the trial court’s finding; if the purpose of taking the Gearbox in

trade was to sell it, as evidenced by the fact that Kite Bros. offered it to Mr. Slaydon,

surely Kite Bros. would have incentive to get the Gearbox turned around and ready

to sell as quickly as possible.

We find that the trial court properly applied Louisiana’s law of sales in ruling

in favor of the Alexanders. Assignments of error 1, 2, and 3 lack merit.

Kite Bros’ final assignment of error complains of the trial court’s refusal to

allow Mr. Theall to testify as an expert. Louisiana Code of Evidence Article 702(A)

provides:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:

(1) The expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and
methods; and

(4) The expert has reliably applied the principles and methods to
the facts of the case.

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“The decision to accept or reject a witness as an expert lies within the great

discretion of the trial court and will not be overturned unless that discretion was

abused.” State v. Eckert, 17-848, p. 11 (La.App. 3 Cir. 5/2/18), 244 So.3d 551, 558,

writ denied, 18-908 (La. 1/28/19), 262 So.3d 887. The trial court found that Mr.

Theall possessed significant experience in damage appraisal of RVs. However, he

received no formal education in that field and the methodology he employed in

arriving at his opinions was not elicited from his testimony. Further, the trial court

found that no foundation had been laid to qualify Mr. Theall as an expert in the area

of causation of the damage to the Gearbox. In response to qualification and traversal

of his expertise, Mr. Theall testified to his experience in estimating repair costs of

damaged RVs during the years he managed a repair facility. He is currently

employed performing appraisals on RVs damaged in accidents for the purpose of

determining whether they can be repaired and the approximate cost of repairing them,

and he has done this for several years. However, there was no testimony qualifying

Mr. Theall in the area of differentiating certain types of damage from a causation

perspective.

Further, Mr. Theall first examined the Gearbox in June of 2016, almost three

years after the transaction at issue. Mr. Theall identified the photographs taken

during his inspection. These showed extensive damage beyond anything any party

testified to. We find no error in not allowing Mr. Theall to render expert opinions

on the issue of causation, not only because the trial court did not abuse its discretion

in finding that his qualifications were not adequately established, but also because

there is a serious question about the adequacy of the facts upon which such an

opinion would be based. See La.Code Evid. 702(A)(2). It is far from certain that

the damage depicted in the photographs, which were taken three years after the sale

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and after the Gearbox was allowed to sit exposed outdoors for three or four months

with a hole in its roof, existed at the time of the transaction. Indeed, no inspection

of even a cursory nature could have failed to detect the buckling of the walls of the

trailer. Anyone simply walking past the Gearbox would have noticed it.

This assignment of error lacks merit.

CONCLUSION

Even a sophisticated buyer is given remedies under the law for deficiencies in

its purchases. The availability of those remedies sometimes depends upon its actions.

In the present case, Kite Bros. claims it performed no inspection of the Gearbox until

a month after it purchased the Gearbox. The trial court determined that it did not

discover the defects in a reasonable, timely fashion, and we find no error in this

ruling. The trial court did not abuse its discretion in determining that Kite Bros. did

not lay a proper foundation to qualify Mr. Theall as an expert witness in the field of

RV damage causation.

The judgment of the trial court is affirmed. All costs of this appeal are taxed

to plaintiff/appellant, Kite Bros. LLC.

AFFIRMED.

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