Anthony J. Gaspard, Et Ux v. Camping World Rv Sales, L.L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-125

ANTHONY J. GASPARD, ET UX
VERSUS

CAMPING WORLD RV SALES, L.L.C., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20172891
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar,
Judges.

REVERSED AND REMANDED

Gabe A. Duhon

Christina S. Lemaire

P. QO. Box 478

Abbeville, LA 70511-0478

(337) 893-3423

COUNSEL FOR PLAINTIFF/APPELLANT:
Anthony J. Gaspard
Terri L. Gaspard

Reid A. Jones

Wiener, Weiss & Madison

P. O. Box 21990

Shreveport, LA 71120

(318) 226-9100

COUNSEL FOR DEFENDANT/APPELLEE:
Southern RV, L.L.C.

Ryan E. Johnson

Jones Walker, LLP

445 North Blvd., #800

Baton Rouge, LA 70802

(225) 248-2000

COUNSEL FOR DEFENDANT/APPELLEE:
Keystone RV Company

Erin W. Lanoux

Percy, Lanoux, Mumphrey

712 N. Burnside Ave.

Gonzales, LA 70737

(225) 621-8522

COUNSEL FOR DEFENDANT/APPELLEE:
Camping World RV Sales, L.L.C.

KYZAR, Judge.

Plaintiffs appeal the trial court’s granting of summary judgment in favor of
Defendant, Southern RV, L.L.C., D/B/A Southern RV Supercenter, dismissing
Plaintiffs’ suit with prejudice as to this party, on the grounds of prescription. For the
reasons herein, we reverse the judgment of the trial court and remand for further
proceedings.

FACTS AND PROCEDURAL HISTORY

On May 18, 2017, Plaintiffs, Anthony and Terri Gaspard, filed suit naming as
defendants Camping World RV Sales, L.L.C (Camping World) and Southern RV,
L.L.C., D/B/A Southern RV Supercenter (Southern RV). The petition asserts that on
or about November 14, 2013, the Gaspards purchased a new 2014 Keystone Fuzion
camper, model 395, from Southern RV for a total purchase price of $81,921.50
including optional equipment, taxes, licensing and title costs.' Plaintiffs claim they
took possession of the camper on November 15, 2013.

Plaintiffs experienced problems with the camper during their first use and
scheduled an appointment for January 6, 2014 to allow Southern RV to fix the issues.
The Gaspards’ camper was returned to them on April 1, 2014, after which it was used
a handful of times before being returned to Southern RV for more repairs on January
26, 2015. Southern RV returned the camper to the Gaspards on April 1, 2015. The
next time the camper was used on or around October 2015, it was found to have many
alleged defects and issues, and Southern RV again took it for repairs on December 26,
2015.

On April 25, 2016, the Gaspards were contacted by Southern RV to come take

possession of the repaired camper. Upon arrival, a variety of unfixed issues were

' While Plaintiffs asserted in the petition that a copy of a “Retail Installment Contract and
Security Agreement” is attached as “Exhibit A.” and that included in the price was an extended
service contract warrantying the camper for an eighty-four (84) month period, no such exhibit
appears attached to the Petition in the record on appeal. A “Retail Installment Contract and Security
Agreement” was filed as an exhibit in Plaintiffs” reply to Defendant’s motion for summary
judgment.

noted, and the Gaspards ultimately left the camper with Southern RV for further
repairs. On November 26, 2015, the Gaspards were again notified that the camper
was repaired and ready to be picked up, but that a payment of $3,326.52 was required
before they could take possession, though Plaintiffs maintain the camper was still
under extended warranty at the time. The Gaspards went to pick up the camper in
February 2017 and immediately noticed a multitude of problems, including visible
mold and a dead battery. Each service appointment with Southern RV includes
detailed invoices listing the purported defects and complaints. The Gaspards have not
had possession of the camper since December 26, 2015.

On May 16, 2017, the Gaspards filed a Petition for Recission of Sale and
Damages. Southern RV filed an answer in August 2017 and ultimately filed a motion
for summary judgment on September 3, 2019, asserting that Plaintiffs cannot meet
their burden of proof with respect to their redhibition and “bad faith” seller claims,
that Plaintiffs’ negligence, redhibition, and Louisiana Unfair Trade Practices Act
claims are prescribed, and that Plaintiffs’ fitness for ordinary use claim is foreclosed
by their allegations that the camper is defective.

Southern RV’s motion for summary judgment on the prescription issue was
heard on November 18, 2019, at the conclusion of which the trial court granted the
motion. Judgment to that effect was signed on December 3, 2019, dismissing
Plaintiffs’ suit with prejudice. This appeal followed. Herein, Plaintiffs assert two
assignments of error.

1. The trial court committed legal error in failing to find that the claim
for redhibitory defect [had] not prescribed.

2. The trial court committed manifest error in finding that the claim for
breach of contract had prescribed.

DISCUSSION
“Although typically asserted through the procedural vehicle of the peremptory

exception, the defense of prescription may also be raised by motion for summary

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judgment.” Hogg v. Chevron USA, Inc., 09-2632, p. 6 (La. 7/6/10) 45 So.3d 991, 997.
When prescription is raised this way, review is de novo, using the same criteria used
by the district court in determining whether summary judgment is appropriate. /d.

Ordinarily, the party pleading the exception of prescription bears
the burden of proving the claim has prescribed. However, when the face
of the petition reveals that the plaintiff's claim has prescribed, the burden
shifts to the plaintiff to show why the claim has not prescribed. Lima v.
Schmidt, 595 So.2d 624, 628 (La.1992). This traditional allocation of the
burden of proof is altered somewhat when prescription is raised through a
motion for summary judgment rather than through the peremptory
exception. In such a case, the movant is required to prove, based solely
on documentary evidence and without the benefit of testimony at a
hearing, that there is no genuine material factual issue in dispute
regarding the date upon which the plaintiffs acquired actual or
constructive knowledge of the damage sufficient to commence the
running of prescription. Labbe Service Garage, 94-1043 at p. 10, 650
So.2d at 829.

Id. at 998
Louisiana Civil Code article 2520 provides for the redhibition action in
Louisiana and states, in part:

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.

Further, La.Civ.Code art. 2545 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 might have yielded,
were of some value to the buyer, such a seiler 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.

Louisiana Civil Code article 2534 provides the prescriptive period for

redhibition actions in Louisiana and states in pertinent part as follows:

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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.

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.

Plaintiffs’ petition also alleges claims for warranty, breach of contract, and
violations of the Unfair Business and Trade Act. We conclude that these claims,
based in redhibition, are subject to the same liberative prescriptive period as the
redhibition claims.

“In determining the applicable prescriptive period, we are guided
by the well-settled principle that ‘[t]he character of an action disclosed in
the pleadings determines the prescriptive period applicable to that
action.’ ” Parry v. Administrators of Tulane Educ. Fund, 02-0382, p. 7
(La. App. 4 Cir. 9/4/02), 828 So.2d 30, 35 (quoting Starns v. Emmons,
538 So.2d 275, 277 (La. 1989) (collecting cases)). A breach of contract
claim has a prescriptive period of 10 years. See La. C.C. art. 3499. An
action for redhibition prescribes in one year from the date the defect is
discovered by the buyer. La. C.C. art. 2534. A “breach of contract claim
based upon the sale of an allegedly defective product would be founded
in redhibition and subject to the one year prescriptive period.” Stewart
Interior Contractors, L.L.C. v. MetalPro Indus., L.L.C., 13-0922, pp. 5-6
(La. App. 4 Cir. 1/8/14), 130 So.3d 485, 489.

Bottinelli Real Estate, L.L.C. v. Johns Manville, Inc., 19-0619, p. 5 (La.App. 4 Cir.
12/27/19), 288 So.3d 179, 184-85.

Plaintiffs’ petition further asserted allegations as to breach of warranty or
service contract while also seeking relief in redhibition. However, while Plaintiffs
maintain that there 1s an extended service contract in existence, no such contract was
attached or produced with the summary judgment evidence, nor do Plaintiffs specify

any terms or conditions or the scope of any such agreement. Thus, the one-year

prescriptive period found in Louisiana Civil Code art. 2534 is the applicable

prescriptive period for Plaintiffs suit.

In its oral reasons for granting Southern RV’s motion for summary judgment,

the trial court stated the following:

Okay, gentlemen, the Court has read the briefs, looked at the

timeline. Specifically, November 14, 2013 where the camper was
purchased. There were seven dates that the Court took note of,
specifically April 25, 2016, as well as the filing suit date which was May
18, 2017. With all of that said, the matter has prescribed. The Court is
going to grant the motion.

When asked thereafter by counsel for Plaintiffs if this included the breach of

contract/warranty claims, the trial court stated that it did.

In reviewing the prescription issue herein, we look to the pertinent material

facts and dates that are not in dispute. These are derived from Plaintiffs’ Petition for

Rescission of Sale & Damages.’

November 14, 2013: Plaintiffs purchase the Camper from Southern
RV.

January 6, 2014: Plaintiffs take the Camper to Southern RV for
repairs

April 1, 2014: Southern RV returns camper to Plaintiffs

January 25, 2015: Plaintiffs bring Camper back to Southern RV

April 1, 2015: Southern RV returns Camper to Plaintiffs

December 26, 2015: Plaintiffs bring Camper back to Southern RV
January 13, 2016: Southern RV is sold to Camping World

April 25, 2016: Camping World notifies Plaintiff of purchase of
Southern RV and notifies Plaintiff that the camper is to be picked up

from its facility.

May 18, 2017: Plaintiffs file suit

As reflected above and noted by the trial court, Camping World, which bought

Southern RV, sent written notice to Plaintiffs on April 25, 2016 that the camper was

2 The exact nature of Plaintiffs’ complaints concerning the camper and the actions of
Southern RV to address the same are not relevant in the analysis of the prescription issue here.

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to be picked up from its facility. The affidavit of James Hicks, managing member of
Southern RV, was submitted by Southern RV in support of its motion for summary
judgment. It specifically states that “[f]rom 2013 until January 2016, Southern RV
was in the business of selling recreational vehicles to end-user customers” and that
“Southern RV was an authorized dealer for several recreational vehicle manufacturers,
including Keystone RV Company”. Further, Mr. Hicks stated the “[o]n or about
January 13, 2016, Southern RV was sold to a third party, Camping World RV Sales,
LLC” and that “[a]t that point, Southern RV ceased all operations as a recreational
vehicle dealer.”

In his affidavit, Plaintiff Anthony Gaspard acknowledges the April 25, 2016
date and the fact that he knew at that point that Southern RV was no longer in
business and had been sold to Camping World, who then had possession of the RV.

On or about April 25, 2016, I was contacted and informed that the 2014

Keystone Fuzion camper was repaired and ready to be picked up. Upon

arrival is when I first became aware that Camping World had purchased

Southern RV, and I| noticed that water continued to infiltrate the camper

and the living room floor remained wet, rotten floors, the washer and

dryer were missing, the awning lights were not repaired, the 12-volt

batteries were dead, and the circuit board for the camper was burnt. As a

result of the failure to make necessary repairs, the 2014 Keystone Fuzion

camper was left at Camping World for further remedial measures[.]

Mr. Gaspard’s affidavit further reflects that the camper was not picked up on
April 25 and still remains in the “care, custody and control of Southern and/or
Camping World[.]” His affidavit also states that while he “presented Southern RV
with multiple complaints” on December 26, 2015, he states that on the same date “a
representative of Camping World mentioned to me that the camper was wired wrong,
that the bight[sic] switch for the outdoor light was wired backwards[.]” This
statement is somewhat contradictory to the previous statements that the first time he

knew that Southern RV was sold to Camping World was in April 2016. Regardless,

on April 25, 2016 the Gaspard’s did know that Southern RV was no longer in

possession of the camper and that Camping World was operating the facility. They
further admit that they were told to pick up the camper by Camping World that day.
“Liberative prescription is a mode of barring of actions as a result of inaction
for a period of time.” La.Civ.Code art. 3447. “Generally, prescription statutes are
strictly construed against prescription and in favor of the claim sought to be
extinguished by it; thus, of two possible constructions, that which favors maintaining,
as opposed to barring an action, should be adopted.” Nickel v. Ford Motor Co., 18-
1035, p. 1 (La. 10/15/18), 254 So.3d 1199, 1199 (citing Wells v. Zadeck, 11-1232 (La.
3/30/12), 89 So.3d 1145). The interpretation of any statute begins with the language
of the statute itself. When a law is clear and unambiguous and its application does not
lead to absurd consequences, the law shail be applied as written and no further
interpretation may be made in search of the intent of the legislature. Red Stick Studio
Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev., 10-193 (La. 1/19/11), 56 So. 3d 181.
As provided for in La.Civ.Code Art. 2534 (emphasis added), “prescription is
interrupted when the se/ler 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.” On April 25, 2016, Plaintiffs knew that Southern RV
was no longer in business, had been sold to Camping World, and was no longer in
possession of the camper. However, it was Camping World that notified Plaintiffs to
pick up the camper, not Southern RV. Southern RV was the seller of the camper, not
Camping World. Southern RV presented no evidence in support of its motion for
summary judgment that it notified the Gaspards of the fact that it sold its business to
Camping World, that the camper was to be picked up, or that it provided notice that it
was unable or unwilling to make the required repairs. There is no evidence that
Camping World legally assumed any responsibility of Southern RV to repair the
camper, or that they were acting on behalf of or authorized to act on behalf of

Southern RV in tendering the camper back to the Plaintiffs on April 25, 2016. Strictly

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construing La.Civ.Code art. 2534, prescription as to Southern RV did not commence
to run anew on April 25, 2016, and there is no summary judgment evidence that it
commenced to run anew at any time thereafter prior to the time suit was filed on May
18, 2017. As such, there exists material issues of fact in dispute as to the notice and
tender of the camper making summary judgment inappropriate on this record.
Accordingly, the judgment of the trial court is reversed.
DECREE

The judgment of the trial court granting Southern RV’s motion for summary
judgment dismissing Plaintiffs’ suit as prescribed is reversed and the matter is
remanded to the trial court for further proceedings consistent herewith. Costs of this
appeal are assessed to Defendant Southern RV Sales and Service, LLC.

REVERSED AND REMANDED.