Victor Bruno v. Brd US, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-233
VICTOR BRUNO
VERSUS
BRD US, INC., ET AL.
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APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2015007
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Shannon J. Gremillion (S), Van H. Kyzar, and Candyce G. Perret,
Judges.

REVERSED AND REMANDED.

Patrick Daniel

Rachel Deckelmann

Daniel & Associates, LLC

7941 Katy Freeway Suite 791

Houston, TX 77024

(713) 999-6666

COUNSEL FOR PLAINTIFF/APPELLANT:
Victor Bruno

Douglas Kent Williams

Chris D. Billings

Jordan L. Faircloth

Breazeale, Sasche & Wilson

P. O. Box 3197

Baton Rouge, LA 70821-3197

(225) 381-8032

COUNSEL FOR DEFENDANT/APPELLEE:
Courtesy Automotive Group, Inc.
Courtesy Lincoln Sales Lafayette, LLC

Michael J. Remondet, Jr.

Jeansonne & Remondet

P.O Box 91530

Lafayette, LA 70509

(337) 237-4370

COUNSEL FOR OTHER DEFENDANT:
LMS Sports, LLC
Dean Richard Enterprises, Inc.

Scott F. Higgins

LaBorde Earles

P. O. Box 80098

Lafayette, LA 70598-0098

(337) 261-2617

COUNSEL FOR OTHER DEFENDANT:
LMS Sports, LLC
Dean Richard Enterprises, Inc.

Linda A. Hewlett

Duplass, Zwain, Bourgeois

3838 N. Causeway Blvd, #2900

Metairie, LA 70002

(504) 832-3700

COUNSEL FOR OTHER DEFENDANT:
Bombardier Recreational Products,Inc.

KYZAR, Judge.

Plaintiff, Victor Bruno, appeals the granting of summary judgment in favor of
Defendants, Courtesy Automotive Group, Inc. and Courtesy Lincoln Sales Lafayette,
LLC dismissing Plaintiff's suit seeking damages for injuries allegedly incurred as
the result of the purchase of a defective off-road vehicle from Defendants. Plaintiff
also appeals the granting of a motion to strike portions of his affidavit in opposition
to Defendants’ motion for summary judgment. For the reasons assigned, we reverse
the granting of Defendants’ motion for summary judgment, and remand for further
proceedings.

FACTS AND PROCEDURAL HISTORY

On or about January 8, 2014, Plaintiff purchased a Can Am Commander XT
1000 side-by-side off-road vehicle in a transaction conducted through Courtesy
Automotive Group, Inc. and Courtesy Lincoln Sales Lafayette, LLC (Courtesy).
The uncontested facts establish that the used vehicle was sold by Eric Simon! to
Courtesy on January 8, 2014, then immediately sold by Courtesy to Plaintiff, Mr.
Bruno, the same day. Mr. Simon was an employee of Courtesy and the brother-in-
law of the general manager of the dealership, Don Hargroder, Jr. Plaintiff, Victor
Bruno, was a friend and/or acquaintance of Mr. Hargroder. Mr. Simon had originally
purchased the vehicle from Dean Richard Enterprises, Inc. a/k/a Lafayette Power
Sports, a dealer of Can Am vehicles.

According to the allegations of Plaintiffs suit, on or about January 12, 2014,
Plaintiff took his vehicle off-roading for the first time. He was wearing his seatbelt
and had engaged safety mechanisms when the vehicle rolled over, his seatbelt failed

to secure him, and the latches holding the seat in the vehicle failed. Plaintiff and the

' Eric Simon is also referred to in the record and pleadings as Eric Simone. For consistency,
we reference the former spelling.

seat he sat in were both thrown from the vehicle. Plaintiff was crushed under the
roll bar, sustaining injuries.

Plaintiff claimed initially that the accident occurred and was caused through
the proximate negligence and/or fault of the manufacturer of the vehicle, BRP US,
Inc., Dean Richard Enterprises, Inc. a/k/a Lafayette Power Sports, as the initial seller,
and Courtesy, as the retailer that sold the vehicle to Plaintiff. He claimed that the
defendants were liable as the vehicle was unreasonably dangerous in construction or
composition, unreasonably dangerous in design, unreasonably dangerous because of
inadequate warnings, and unreasonably dangerous because of nonconformity to
express warranty. He further alleged the defendants were liable for unfairly and
deceptively selling this product to consumers. The original petition further asserted
that the accident was caused through the proximate negligence and/or fault of the
manufacturer and retailer, in failing to properly service the seat and seatbelt, in
failing to advise Plaintiff of proper maintenance of the vehicle, in failing to advise
Plaintiff of loose seat latches, and in failing to ensure the seat latches and the seat
belts were functioning properly.

Ultimately, Plaintiff dismissed the manufacturer from the lawsuit after it was
discovered that the vehicle had been modified after it left the factory. Thereafter,
Courtesy moved for summary judgment on June 11, 2019. In support thereof,
Courtesy filed as exhibits the petition of Plaintiff and the deposition of Don
Hargroder, Jr., also dated June 11, 2019. In its motion, Courtesy argued that Mr.
Bruno cannot support a cause of action against it and, therefore, requested that the
trial court grant summary judgment in Courtesy’s favor dismissing Plaintiffs claims.
In addition to the motion for summary judgment, Courtesy challenged the reply
affidavit of Mr. Bruno, submitted in opposition to the motion for summary judgment,

asserting that portions thereof were conclusory and not based on personal knowledge.

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At the conclusion of the hearing, the trial court granted Courtesy’s motion to
compel statements regarding supposed steroid use of Mr. Bruno, granted Courtesy’s
motion to strike from consideration portions of Plaintiffs affidavit, specifically
paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 24, 27, 28, 30, 31, 32,
33, 34, 35, 36, 37, 40, 42, 43, 46, 47, 51, 52, 55, 58 59, 60, 64, 68, 71, 72, 73, 75,
and 76 of the affidavit, and granted Courtesy’s Motion for Summary Judgment,
dismissing Plaintiff's claims in this matter against Courtesy with prejudice, at
Plaintiff's cost. Plaintiff appeals, asserting the following assignments of error:

1. The Trial Court erred by weighing the evidence and/or making

credibility determinations resulting in it striking from Appellant’s

affidavit numerous statements that Appellant made from his personal
knowledge.

2. The Trial Court erred by concluding that no genuine issues of

material fact exist regarding whether Appellee owes a legal duty to

Appellant.

3. The Trial Court erred by declaring that expert testimony is required

to establish the existence of a defect, and by failing to find that due to

the actions and inactions of Appellee, the Commander Vehicle was

defective at and prior to the time Appellee sold the vehicle to Appellant.

4. The Trial Court erred by not finding that genuine issues of material

fact exist regarding whether and to what extent Appellant knew, prior

to purchasing the vehicle from Appellee, about the potential for vehicle

roll-over.

5. The Trial Court erred by refusing to consider Appellant’s testimony
regarding cause-in-fact of the subject accident.

6. The Trial Court erred by concluding that Appellant has not pled a
Louisiana Uniform Trade Practices and Consumer Protection Act
(LUTPA) claim.
DISCUSSION
The Summary Judgment

After granting Defendant’s motion to strike portions of Plaintiff's affidavit in

opposition, the trial court granted Courtesy’s motion for summary judgment. We

ed

first address Plaintiff's claim that the trial court erred in granting summary judgment
dismissing his claims against Courtesy, as a reversal of that judgment
notwithstanding the ruling on the motion to strike renders that issue moot.

A summary judgment is a procedural device properly used when there is no
genuine issue of material fact. Murphy v. Savannah, 18-991 (La. 5/8/19), 282 So.3d
1034; La.Code Civ.P. art. 966. Appellate courts review summary judgments de novo
using the same criteria that governs the trial court’s determination of whether
summary judgment is appropriate, i.e., whether there is any genuine issue of material
fact, and whether the movant is entitled to judgment as a matter of law. Wright v.
La. Power & Light, 06-1181 (La. 3/9/07), 951 So.2d 1058; La.Code Civ.P. art.
966(A)}(3).

A material fact is one that “potentially insures or precludes recovery, affects
a litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines
v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). “A genuine
issue of material fact is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need for trial on that
issue and summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-
2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

Although the mover bears the burden of proof for the motion, if that party will
not bear the burden of proof at trial, then it need only point out to the trial court “the
absence of factual support for one or more elements essential to the adverse party’s
claim, action, or defense.” La.Code Civ.P. art. 966(D)(1). Once this occurs, the
burden shifts to “the adverse party to produce factual support sufficient to establish
the existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.” Id.

Plaintiff's second assignment of error argues that the trial court erred by
concluding that no genuine issues of material fact exist regarding whether Courtesy,
as the seller of the ATV, owes a legal duty to him. Alleged error number three relates
to whether there is a material issue of fact as to the existence of a defect in the vehicle
and whether expert testimony was necessary to establish such. Similarly, in his
fourth assignment of error, he argues that the trial court erred by not finding that
genuine issues of material fact exist regarding whether and to what extent Plaintiff
knew, prior to purchasing the vehicle from Courtesy, about the potential for vehicle
roll-over. As these issues are interrelated to the granting of summary judgment, we
address them together.

To find tort liability for a non-manufacturer seller of a product such as a
vehicle requires proof of three elements. A/exander v. Toyota Motor Sales, U.S.A.,
13-756 (La. 9/27/13), 123 So.3d 712. First, the product sold must be defective.
Second, the seller must have had actual or constructive knowledge that the product
it sold was defective. Lastly, the seller must have failed to deciare the defect. /d.
(citing Reaux v. Deep S. Equip. Co., 02-1571 (La.App. 4 Cir. 2/5/03), 840 So.2d 20).
All of the elements must be proven to succeed in such a claim and, therefore, a lack
of factual support for just one element renders summary judgment in favor of the
seller appropriate. /d.

A non-manufacturer/seller in some instances has a duty to warn

a purchaser of defects and/or dangerous propensities in the products he

sells. In the case of a defective product, i.e., one which is unreasonably

dangerous in normal use, the non-manufacturer/seller can be held liable

for damages in tort only if he knew or should have known that the

product was defective and failed to declare the defect to the purchaser.

Hopper v. Crown, 555 So.2d 46, 48 (La.App. Ist Cir.1989), reversed

on other grounds, 558 So.2d 1117 (La.1990); see also, Thomasson v.

A.K, Durnin Chrysler—Plymouth, Inc., 399 So.2d 1205, 1208 (La.App.

Ist Cir.1981). However, a non-manufacturer seller is not required to

inspect the product prior to sale to determine the possibility of inherent

vices or defects. Nelton v. Astro-Lounger Mfg. Co., Inc., 542 $o.2d 128,
131 (La.App. Ist Cir.1989); Harris v. Atlanta Stove Works, Inc., 428

5

So.2d 1040, 1043 (La.App. Ist Cir.), writ denied, 434 So.2d 1106
(La.1983). Under some circumstances, a non-manufacturer vendor
who holds the product out to the public as its own may be classified as
a “professional vendor” and may have the same responsibility as a
manufacturer. Chappuis v. Sears Roebuck & Co., 358 So.2d 926, 930
(La.1978).

Adams v. Owens-Corning Fiberglas Corp., 04-1589, pp. 6-7 (La.App. 1 Cir.
9/23/05), 923 So.2d 118, 123, writ denied, 05-2318 (La. 3/10/06), 925 So.2d 519.

In support of its motion, Courtesy introduced the affidavit of Don Hargroder,
Jr., Courtesy’s General Manager. He states therein that at the time of the transaction,
done as a favor or “courtesy” for Mr. Bruno, a personal friend, Courtesy had no
knowledge of any defect or vice in the Can Am vehicle, that this was not the type of
vehicle normally sold by the automotive dealership, and, as a result, it did not inspect,
repair, or represent the vehicle as one normally sold thereby. He asserted that
Courtesy did not change any parts on the vehicle before the transaction in question.
Accordingly, Courtesy did set forth evidence establishing the absence of factual
support for one or more elements essential to Plaintiff's claim, such that the burden
shifts to Mr. Bruno to produce factual support sufficient to establish the existence of
@ genuine issue of material fact or that the mover is not entitled to judgment as a
matter of law.

In opposition to the motion for summary judgment, Mr. Bruno filed his own
affidavit, as well as the deposition testimony of Mr. Hargroder. Part and parcel of
that deposition transcript was an invoice for the purchase and installation of tires on
the Can Am vehicle in question performed by G & H Tire that was billed to Courtesy.
The invoice was dated February 20, 2013, almost a year before the transaction
between Courtesy and Mr. Bruno. In his deposition testimony, Mr. Hargroder
asserted that as Mr. Simon worked for Courtesy and owned the Can Am, he had the
tires and wheels changed by G & H, a company that the dealership does business

with, and had G & H invoice the dealership. He thinks that Mr. Simon would later
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have reimbursed Courtesy for the expense, though he was uncertain as to whether
this was actually done. It is unclear from the record who actually paid for the
purchase and installation of the tires on the Can Am vehicle.

Plaintiff also introduced the deposition testimony of Mr. Simon. Therein, he
testified that the Can Am was purchased new from Lafayette Powersports
approximately a year before the accident involving Mr. Bruno. After the purchase,
Mr. Simon had a stereo installed and changed the wheels and tires to a different size
than the original tires sold with the vehicle. He later sold the vehicle to Courtesy
and in turn Courtesy sold it to Mr. Bruno. He does not know anything about the
details of the sale to Mr. Bruno. He did recall that he had the original twelve-inch
rims and corresponding tires that came with the vehicle from the manufacturer
replaced with fourteen-inch rims and tires. The original tires were three ply and the
replacement tires were six ply tires. He later recalled purchasing the new tires and
wheels from TMW Off-road in January 2013 and had the tires and wheels installed
by G & H Tire located in Maurice, Louisiana. He did not recall whether the
particular tires and wheels he had installed on the vehicle were authorized or
approved by the manufacturer.

Mr. Bruno also attached the deposition testimony of Seth Richard, now Vice
President of Lafayette Powersports, as an exhibit to his opposition to the motion for
summary judgment. According to that testimony, the Can Am vehicle was received
from the factory and sold to Mr. Simon on December 19, 2012. Mr. Richard was
Service Manager in 2012 when this vehicle was sold to Mr. Simon. He explained
that after a vehicle such as this Can Am arrives at the dealership, portions or parts
have to be installed and assembled onto the vehicle, such as the roll cage system,
suspension, etc. One part that must be installed by the dealer is a portion of the seat

belt system that attaches to the roll bar. The tensor mechanism of the seat belt,

7

however, is already installed on the vehicle, as it came from the factory, and as such
Lafayette Powersports did not install that piece. Other than these necessary
attachments, Lafayette Powersports purportedly did not modify the vehicle in any
way, except to install a factory purchased stereo.

The factory-issued tires that are supposed to be on the Can Am vehicle are
Maxxis Bighorn 2.0. These are not the tires that were installed on the Can Am
vehicle at the time of the incident. Mr. Richard testified that Lafayette Powersports
has no record of tires or wheels being changed on this vehicle at any time. He
testified that the vehicle would not have been sold to Mr. Simon or delivered unless
the seat latch was working properly, which is the mechanism that secures the seat to
the vehicle frame. Mr. Richard did note, however, that he personally would not
operate the vehicle without reading the safety manual. He asserts there is a sticker
on the vehicle so saying. In his deposition, Mr. Richard was asked specifically about
modifications to the vehicle, including increasing the tire and wheel size, as follows:

Q Suppose somebody wants to change the tires on it, would that be
recommended to go through Lafayette Power Sports?

A We do offer that as a service, yes, but ] would have records of that
for this particular vehicle.

Q_ Well, here’s my question: I’m not asking you whether or not you
have records, I’m asking you is it advisable for any modifications to
this vehicle be done by Lafayette Power Sports?

A _ Ifthe customer wanted to do any kind of, you know -- any kind
of work, they can ask and if we’re willing to do it then, yes, but if it’s a
modification we’re not comfortable doing then, no. If it’s a safety
related modification then no.

Q_ Not all tires are suitable for this subject vehicle; is that correct?
A You could say that, yeah.

Q __ Does[sic] the tires affect the stability of the subject vehicle?

A ___Incertain cases, yes.

In opposition to the motion, Plaintiff also introduced the owner’s manual for
the Can Am vehicle, issued by the manufacturer. It states clearly that oversized tires
are not to be installed, as it can increase the likelihood of a vehicle roll-over accident.
Further, Plaintiff attached and introduced the policies and procedures of Courtesy,
which state that the dealership undertakes to inspect used vehicles prior to sale and
that it will not sell vehicles with tires installed that are not factory approved.

Our review of the evidence in support of and in opposition to the motion for
summary judgment points to issues of material fact in dispute concerning the actual
or constructive knowledge of Courtesy, through its employee Mr. Simon and
through the invoice for the tire installation made out to Courtesy. Mr. Simon was
the previous owner of the Can Am vehicle before he sold it to his employer, Courtesy,
which acted as an intermediary in the sale to Mr. Bruno later that same day. Clearly,
Mr. Simon, the only previous owner of the Can Am vehicle, was aware it had been
modified by the installation of differently sized tires and wheels. Notably, when the
tires and wheels were replaced during Mr. Simon’s ownership, the invoice therefor
was made out in the name of Courtesy.

Courtesy argues that it acted only to facilitate the transaction as a “courtesy”;
however, it cannot avoid the consequences of its involvement when its own
employee had specialized knowledge of the vehicle, its employee had previously
invoiced the replacement wheels and tires to Courtesy, notwithstanding that these
replacement wheels and tires were contraindicated by the manufacturer’s warnings,
and Courtesy chose voluntarily to act as the seller of the vehicle. Further, Courtesy
had internal policies in place at the time that it was to inspect vehicles prior to sale
and that it would not sell vehicles with oversized tires. This policy was not followed

in this instance. Mr. Hargroder asserts this is because the Can Am was not a vehicle

normally sold by Courtesy. Yet, despite this, Courtesy voluntarily chose to
undertake this transaction.

In this case, Courtesy is not the manufacturer. It argues as well that it is not
the seller but is only involved as an intermediary between the actual owner-seller,
Mr. Simon, and the buyer, Mr. Bruno. However, this position ignores that Courtesy
first purchased the vehicle from Mr. Simon, its own employee, then acted as the
actual and listed seller of the vehicle to Mr. Bruno. Whether Courtesy actually
benefitted from the transaction or whether it was done as a “courtesy” is of no
consequence as it did in fact sell the vehicle. As such, it assumed the duties normally
undertaken by sellers generally under law. See La.Civ.Code arts. 2474, et seq. Thus,
Courtesy can be liable as a seller if it knew or should have known that the product
was defective and failed to declare the defect to the purchaser. See La.Civ.Code art.
2475; see also La.Civ.Code art. 2545. Here, Mr. Simon, who worked for Courtesy
and was the brother-in-law of the general manager Mr. Hargroder, owned the Can
Am vehicle immediately prior to the sale from Courtesy to Mr. Bruno. He had
specialized knowledge of the vehicle, including the fact that the stock tires and
wheels had been replaced with tires and wheels that are not approved for the vehicle
according to the manufacturer’s specifications. Further, the evidence indicates that
information regarding this modification was available to Courtesy in the form of the
invoice from G & W Tires, reflecting that the original tires and wheels had in fact
been replaced on the Can Am vehicle. This information was not provided to the
buyer, Mr. Bruno. Thus, to the extent that there existed an employment relationship
between the previous owner, Mr. Simon, and the dealership manager, Mr. Hargroder,
there is a question of fact as to the actual or constructive knowledge of Courtesy
regarding modifications to the Can Am vehicle which may have created a defective

condition, i.e., a greater propensity to roll over. We find this question of fact to be

10

material and, thus, find summary judgment to be inappropriate on the record
presented here. See Alexander, 123 So.3d 712.

The next question posed is related to the proof of causation for Plaintiff's
accident. While the trial court determined that Plaintiff failed to put forth proof in
support of the element of causation of the accident, we find that there is such proof
submitted in opposition to the motion. First, Plaintiff submitted an affidavit setting
forth the factual assertions surrounding the accident. In the portions of his affidavit
ruled admissible by the trial court, Mr. Bruno asserts that he suffered severe injury
when the Cam Am vehicle rolled over, causing the seat to become detached and
throwing Mr. Bruno from the vehicle breaking his femur and injuring his neck, back,
and head. He asserts that he was never provided an owner’s manual for the Can Am
vehicle, nor was he advised to obtain an owner’s manual, safety DVD, or dealer
checklist. He asserts that he bought the Can Am from the dealer following a brief
inspection of approximately three minutes and was never advised to inspect the
vehicle, its seat, or its seatbelt prior to use.

Mr. Bruno further asserts he was only provided the high-speed performance
key with the vehicle and was not informed of the existence of a separate, low-speed,
safety key for the vehicle, nor did he receive the safety key. He states that the dealer
emphasized both the speed and safety of the Can Am vehicle. Additionally,
Courtesy represented itself as the seller of the vehicle at all times. All payments
were made to Courtesy, and al! paperwork was made out to Courtesy. Mr. Bruno
did not receive any documentation with Mr. Simon’s name on it and claims that Mr.
Hargroder stated that he “wasn’t making much money” off the vehicle, without
reference to Mr. Simon, confusing the true seller of the vehicle.

Plaintiff introduced evidence that the tires and wheels of the vehicle had been

changed to a larger size than those originally sold with the vehicle. The tires that

1]

are sold with the Can Am vehicle measure twelve inches; however, the tires that
were on the vehicle when it was purchased by Mr. Bruno were fourteen inches. Mr.
Bruno asserts he was not informed of the modified tires being put on the vehicle.
The owner’s manual introduced into evidence specifically states that the
modification of the Can Am by installing oversized tires may change the center of
gravity of the vehicle and make it more prone to a roll-over accident. In the
deposition testimony of Mr. Seth Richard, attached as an exhibit, he stated that not
all tires are suitable for this vehicle and that the tires of the vehicle can affect its
stability.

Plaintiff's burden of proving causation may be met by
circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La.

995, 245 So.2d 151 (1971); Naquin v. Marquette Casualty Company,

244 La. 569, 153 So.2d 395 (1963); Weber, supra. Circumstantial

evidence of causation need not negate all other possible causes.

DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26

(La. 1981), cert.den., 459 U.S. 836, 103 S.Ct. 82, 74 L.Ed.2d 78 (1983).

Both the manufacturer and the retailing supplier of a defective
product are liable. See Beil v. Jet Wheel Blast, supra; Chappuis v. Sears
Roebuck & Company, supra.

Joseph v. Bohn Ford, Inc., 483 So.2d 934, 940-41 (La.1986).

Considering Plaintiff's affidavit that the accident involved was a roll-over
accident, and considering the additional evidence introduced by Plaintiff in
opposition to the motion as detailed above, we find there is sufficient proof of the
existence of a potential defective condition and causation presented so as to create a
material issue of fact thereon, such that summary judgment is not appropriate on this
record.

Motion to Strike
Given our determination that the summary judgment was improperly granted

in this case based on the record considered by the trial court, Plaintiff's allegation of

error as to the striking of portions of his affidavit submitted in opposition to the

12

motion is “deprived of practical significance” and is rendered moot. Cat’s Meow,
Inc. v. City of New Orleans Through Dep’t of Fin., 98-601, p. 8 (La. 10/20/98), 720
So.2d 1186, 1193.
LUTPA

In assignment of error number five, Plaintiff asserts that the trial court erred
by concluding that Appellant has not pled a Louisiana Uniform Trade Practices and
Consumer Protection Act (SLUTPA”) claim. La.R.S. 51:1401, et. seq. However,
the judgment is silent as to any ruling on that issue. Our review of the record reveals
that the trial court, after granting summary judgment, stated in its oral reasons that
all other issues were moot. An appellate court will generally not adjudicate issues
not ruled upon by the trial court. Kilbourne v. Hosea, 19 So.2d 279, 281 (La.App.
1 Cir.1944). Thus, we do not consider the issue at this time.

DECREE

The judgement of the trial court granting the motion for summary judgment
in favor of defendants Courtesy Automotive Group, Inc. and Courtesy Lincoln Sales
Lafayette, LLC dismissing Plaintiff's suit with prejudice is reversed. The matter is
remanded for further proceedings. All costs of this appeal are assessed to
Defendants, Courtesy Automotive Group, Inc. and Courtesy Lincoln Sales,
Lafayette, LLC.

REVERSED AND REMANDED.

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