
    Maxie PAYNE v. JOHN DECKER LINCOLN MERCURY, INC.
    No. 01-1469.
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2002.
    Fred Andrew Pharis, Pharis & Pharis, Alexandria, LA, for Maxie Payne.
    Steven Patrick Mansour, Alexandria, LA, for John Decker Lincoln Mercury, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and GLENN B. GREMILLION, Judges.
   AMY, Judge.

The plaintiff appeals the trial court’s determination that she failed to sustain the applicable burden of proof in her suit seeking rescission of the sale of a minivan. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Maxie Payne, purchased a 1998 Mercury Villager from the defendant, John Decker Lincoln Mercury, Inc., in June 1998 at a “Coliseum Salé” in Alexandria, Louisiana. She contends that she informed the salesmen that she wanted the minivan in order to install a wheelchair lift for her wheelchair-dependant grandson. Ms. Payne asserts that one of the salesmen assured her that a lift could be installed in the van. As the months went by, Ms. Payne became aware that the minivan was not suitable for a lift.

The record indicates that in November 1998, Ms. Payne sought a new minivan from the dealership due to what she contends were assurances regarding the possibility of installing a lift. The dealership offered to purchase the Villager from Ms. Payne, but she refused the offer as she contends that the figure offered was too low. She also refused an offer to replace the Mercury Villager with a full-sized van of approximately the same year and mileage as the Villager. Ms. Payne explained that she wanted a new van.

A Petition for Rescission of Sale Contract was filed in September 1999, naming John Decker Lincoln Mercury as a defendant. She alleged that “the principle cause of entering into the contract was the ability of the van to be fitted with a wheelchair lift[,]” the salesman assured her that the wheelchair could be fitted with the lift, and that she became aware that the van could not be fitted with a lift. She 1 ¡¡sought rescission of the sale and return of the purchase price, including all related expenses.

Following a hearing, the trial court found in favor of the defendant, concluding that the version of events offered by the plaintiff and witnesses presented on her behalf was unclear as to the occurrence and substance of conversations at the time of the sale. The plaintiff asserts error in the trial court’s determination.

Discussion

The plaintiff contends that the testimony presented at trial indicates that she was informed that the Villager could be equipped with a wheelchair lift. She points to her own testimony indicating that, before purchasing the van from John Decker Lincoln Mercury, she had contacted both the Toyota and Dodge dealerships seeking a van that could be equipped with a lift and that had rear air conditioning and had been informed that those dealerships did not have a minivan that could be so equipped. She testified that she then went to the “Coliseum Sale” in Alexandria and was approached by Cobin Hebert and James Bryant, salesmen for John Decker. She testified that she informed both of them of the need for a lift and that Mr. Bryant assured her that it could be equipped for her needs. Additionally, Ms. Payne’s daughter, Tawanda May, testified that she accompanied her mother on the day of the sale and was present when assurances were made. Ms. Payne also presented the testimony of Colleen Nu-gent, a case worker assigned to Ms. Payne’s grandson, who explained she attempted to assist Ms. Payne in having the van equipped with a lift and then in negotiations with John Decker following the sale. Ms. Nugent testified that, during her conversations with dealership representatives in November 1998, she too was told that the van could be equipped with a lift. In light of this testimony and 13the salesmen’s inability to recall conversations regarding the necessity of a lift, Ms. Payne contends that the trial court’s determination was clearly in error and must be reversed.

The Louisiana Civil Code provides the following guidance with regard to error in the formation of contracts.

Art.1948. Vitiated consent
Consent may be vitiated by error, fraud, or duress.
Art.1949. Error vitiates consent
Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.
Art.1950. Error that concerns cause
Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation.

In reasons for ruling, the trial court explained, in part:

As I appreciate the burden in this particular case, Ms. [Payne] has the, the burden of proving, of the course [sic] the standard is by a preponderance, that she was misle[a]d on the principle [sic] cause of this particular contract, into believing that she could receive a lift installed in the size vehicle she had requested. Ahm, that’s about the only thing clear in the whole issue. After that we get into confusion resulting with the discussions that were had and the Court will notice that ah, a point not brought up by either counsel is, the fact that she had been looking at other vehicles, had had discussions concerning lifts in mini vans, ahm, months later can come back to cloud as to who said what, and what conversations were held. That’s one of the factors we look at as to how many different people we talked to. I say that because there were some concerns I have with the relationships between Ms. [Payne] ... and ah, both Mr. Hebert and Mr. Bryant. Ah, there were pieces of discussions ah, that even Mr. Bryant admitted, there were discussions concerning a grandchild that was handicapped. There were also discussions that the handicap issue was one of the primary concerns for rear air, and we needed to circulate back with him because his temperature was so clear. Basically, what I’m saying is, there were lots of differing issues that blended ah, together that can explain or confuse pieces of all the | testimony. In that regard, this is not unlike most trials. I checked the notes, there are no notes in the sales documents, no discussions of who or how a lift would [be] installed, no mention as to sending anything else, there’s no documentation whatsoever concerning ahm, a lift. There is documentation concerning the fact that there are two salespersons, however, page nineteen of Defendant’s Exhibit Five, just list[s] one salesperson. Ah, it lists him by the last four digits of [] his social security number. I don’t have the benefit of knowing whose that was, clearly there was a lead sales person and this one, the Court accepts Mr. Hebert would have the lead, and Mr. Bryant would have been doing the financial matter, ah, that was done after it. Ahm, discussions that were held at the tent sale, ah, seem to be amorphous at best; ah, they, they move from group to group; ah, Tawanda overhearing some, not overhearing others, participating in some: Ms. Payne, ah, some confused as to who they had talked to; even discussions with Mr. Landry, although that was concerning mileage issues only. Ah, again, if the central theme of this was to get a lift, ah, it’s strange that it wasn’t mentioned anywhere else besides that. The fact that there was no mention of misrepresentation that the Court can find until several months after; and I understand it takes a while to start finding out that you can’t get this cured. But the fact that there was no misrepresentation that was brought to the attention of the dealership ah, in November, ahm, gives me some concern that, with that much time and having talked to other dealerships, there have been [sic] some confusion as to who actually said what about which vehicle. As the plaintiffs would have to show by a preponderance that the ability to install a lift was the deal making or breaking issue, ah, I would have to find, I believe, under the law, that the sales people were made aware that this was the condition precedent for buying this van. And that it wasn’t rear air, it wasn’t ah, mileage, it wasn’t the others that, that was the condition precedent for buying this van. That she could install the lift. And then I would have to find that they gave her blind assurances with no basis on which to act, because we all know, from a factual basis now, the lift can’t go into that particular van. When I look at the [] totality of the circumstances, I don’t find the Plaintiff carried the burden of proof that the seller was put on notice that the condition precedent for buying this particular van was that a lift could be placed ah, in the van. I, I think it was an unfortunate confusion of several attempts to buy; I think there was mistake that was made, but I don’t think it was a mistake that rises to a 1949 Article error to vitiate the consent. I’m hesitant to put a duty on a dealership or a seller to know the ramifications of a specialized requests if not’s clearly articulated or they’re actually put on notice. Ahm, this is not to say that Ms. Miles didn’t think that she had ah, expressed an interest in having ahm, a van that was capable of taking a lift, and more particularly a mini van that would take a lift. But I don’t find by a preponderance that that shifted to an awareness or a should have known to the dealer that they should not have sold that vehicle | swithout first making the assurances, to themselves that, that was what made the deal. There’s a difference in saying, I can’t deny it, and I don’t remember it. The testimony, as I go back to look at the two sales people were, this is a big deal, this is unusual, we would have remembered it, the fact we don’t remember it, I’m not gonna say under oath, it didn’t happen, but that’s something I would have remembered. So, i[t] falls just short of reaching the burden of shifting the duty to knowing or should have known, that the primary cause was that lift, and having reached that conclusion, I have no choice but deny the Plaintiffs claim, at cost.
Our review of the record reveals no error in this determination. Although Ms. Payne and Tawanda testified as to the June 1998 purchase of the van and indicated that the salesmen were aware of the need for the lift, the trial court was not required to accept this testimony, even if essentially consistent, nor was it required to find that any information provided by the plaintiff was specific as to the necessity of a lift. Rather, the trial court was made aware that several individuals from John Decker were involved in the sale, that the role played by the individual salesmen and the information provided to and by each was unclear, and that the testimony offered by Colleen Nugent as to her conversations with individuals at the dealership was inconsistent. Although the salesmen did not offer unequivocal denials that assurances were made, the trial court pointed to testimony indicating that such an assurance was out of the ordinary and would likely have been recalled. The following exchange between Cobin Hebert and defense counsel reflects this testimony:
Q. Did you at any time talking with Ms. Payne, at the coliseum sale, ever discuss, or tell her that a wheelchair lift could, could go in the, the ah, Mercury Villager van that was ultimately sold to her?
A. I’ll be, I’ll be, I’ll really, if I, if she would have discuss[ed] that, I would have talked to John about; but as far as that goes I don’t remember, as far as her talking about anything like that.
IsQ. Would that be something that normally, if it was discussed or asked of you, you would have gone and, and find out, and remember discussing that?
A. Sure. Sure, that’s a big thing.
Q. Can we assume that if you don’t have specific recollection of that, that you’re saying that it wasn’t discussed?
A. Exactly.

Regarding the question of whether any conversation occurred as to the necessity of a lift, James Bryant testified:

Q. Okay. Do you think that if ah, did you ever tell Ms. Payne at any time, at the coliseum sale, that that Mercury Villager that she was purchasing, could be equipped with a wheelchair lift?
A. No sir, I didn’t, because I have no knowledge that it could be, one way or other, and that was never asked.
Q. Okay. And, specifically, if there was any discussion in your presence about a wheelchair lift, would you have recalled that?
A. Yes sir, ... if there had been a discussion of that, yes sir, I would have known and I — (interrupted.)
Q. And your testimony is, there was not.
A. There was not.

The trial court apparently chose to credit this testimony as to the uniqueness of questions regarding the conversion of vans and their failure to recollect such a conversation with the plaintiff. The court’s determination to credit this testimony against those of the plaintiff and her witnesses as well as the absence of evidence indicating any reporting of inaccurate assurances prior to November 1998, months after the June 1998 purchase, is the type of evidentiary decision best left to the trier of fact and not one requiring reversal. See Touchard v. SLEMCO Elec. Found., 99-3577 (La.10/17/00); 769 So.2d 1200. Accordingly, we affirm the judgment rendered in favor of the defendant.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff, Maxie Payne.

AFFIRMED.

COOKS, J., dissents and assigns reasons.

11 COOKS, J.

Dissenting.

It is undisputed Mrs. Payne purchased the van to transport her handicapped grandson. The trial court’s reason for ruling against Mrs. Payne was that it did not find she met her burden of proving she clearly disclosed this intent to the defendant. The trial court acknowledge, as the record proves, Mrs. Payne would not have purchased the van were she aware it could not accommodate a wheelchair lift. The sole question turns.on whether representatives of the defendant dealership knew or should have known Mrs. Payne would not have purchased the van had she known it could not be fitted to accommodate a wheelchair lift.

Ms. Tawanda May testified she and her mother, Mrs. Payne, went to the “coliseum sale” to shop for a van. Ms. May testified when Cobin Hebert approached and asked them what they were interested in, she and her mother told him they wanted a van that a wheelchair lift “could be put in.” According to Ms. May, Mr. Hebert left to get a second salesman, James Bryant. After telling him they needed a wheelchair lift installed in the van, Ms. May stated Mr. Bryant “[assured] us that a lift could be put in that van.”

Mrs. Payne testified when Mr. Hebert approached them, she told him she was looking for a van that would lift her grandson. She stated Mr. Hebert did not really “speak up on it,” but Mr. Bryant specifically addressed the subject. She testified he told her a wheelchair lift could be installed in the van. Mrs. Payne had previously looked at Dodge and Toyota vans, but ruled them out when she was told they could not accommodate a wheelchair lift. After purchasing the vehicle, she attempted to get the lift installed in the van. When she could not find anyone that could install the lift, she called Colleen Nugent, her grandson’s case worker, for assistance in finding a retrofitter to install the lift. When Ms. Nugent was unable to help, Mrs. Payne went to John Decker Lincoln Mercury in November of 1998. She was accompanied by Ms. Nugent. At that time the mileage on the van was approximately 10,000 miles. |2When she was finally informed by Mr. Bryant that a wheelchair lift could not be installed in the van, Mrs. Payne asked that the deal be rescinded. Mr. Bryant then brought in Tim Landry, the dealership manager, who told Mrs. Payne he also attempted to find a business that could install a wheelchair lift in the van, but was unsuccessful. Mr. Landry offered to buy back the van for $17,000.00, which was refused by Mrs. Payne because it was below the blue book value of the vehicle. She also refused an offer to swap the vehicle for another used model.

Colleen Nugent was employed by the State of Louisiana and assigned to provide social services to Mrs Payne’s grandson. She was an independent witness whose credibility was not attacked at trial. Ms. Nugent testified Mrs. Payne called her and explained she was having difficulty getting a wheelchair lift installed in a van she had recently purchased. She called numerous businesses that installed lifts and found that the type van Mrs. Payne purchased could not be fitted with a lift. She then spoke with Mr. Bryant, who despite being told of Ms. Nugent’s efforts to find someone who could install the lift, still insisted the van could accommodate a wheelchair lift. Subsequently, Mrs. Payne and Ms. Nugent went to the dealership premises and requested the sale of the van be rescinded. They then met with Mr. Landry, who made the $17,000 offer on the van.

Cobin Hebert, who at that time was a salesman for John Decker, testified he approached Mrs. Payne at the coliseum sale. He “vaguely” remembered Mrs. Payne. He also stated he did not remember if anyone was with Mrs. Payne. Mr. Hebert acknowledged, at some point, he brought Mr. Bryant into the negotiations with Mrs. Payne. Mr. Hebert candidly admitted he could not remember if Mrs. Payne mentioned the necessity of installing a lift in the van.

Mr. Bryant testified he assisted Mr. Hebert in selling the vehicle to Mrs. Payne. He remembered Mrs. Payne had someone with her during the negotiations. He also recalled being told that Mrs. Payne had a handicapped grandson. However, Mr. | aBryant could not recall being asked whether a wheelchair lift could be installed in the van. Specifically, he testified “neither one of ’em, as far as I can remember sir, had asked anything about this van needs a ah, wheelchair lift if, or I cannot purchase this ... If it was said, I do not remember it” Mr. Bryant also could not recall ever telling Mrs. Payne and Colleen Nugent in November of 1998 that a wheelchair lift could be installed in the purchased van. He conveniently could not recall ever speaking with Colleen Nugent at any time.

Tim Landry testified he met with Mrs. Payne and “the lady that represented the State of Louisiana” in November of 1998. Mr. Landry admitted telling Mrs. Payne, at that time, that a wheelchair lift could not be installed in the van and he offered to buy back the van at less than its purchase price.

The trial court’s reason for rejecting Mrs. Payne’s claim was because he felt she must have been confused, noting “the fact that she had been looking at other vehicles, had had discussions concerning lifts in mini vans, ahm, months later can come back to cloud as to who said what, and what conversations were held.” However, Mrs. Payne’s actions and testimony belie his finding. Mrs. Payne testified she looked at both Toyota and Dodge vans, and was told by salesmen for each that their vans could not be fitted with lifts. The fact that she bought the Mercury van from John Decker, and did not buy the Toyota or Dodge van supports Mrs. Payne’s version of events.

The trial court also found it “strange” that if the “central theme of this was to get a lift” there was no mention in the sales documents of a wheelchair lift. This failure is not strange at all. Installation of wheelchair lifts is a particular task, performed by businesses that specialize in that area. Dealerships generally do not install lifts. Therefore, no reason existed to mention the lift installation in the sales documents.

It is also quite telling that Mrs. Nugent, the only independent witness | testifying in this matter, stated even after the sale Mr. Bryant continued to insist a lift could be placed in the van. Her credibility was not attacked and no reasons exist in the record to doubt her memory.

I am satisfied the evidence preponderates in Mrs. Payne’s favor and the sale should be rescinded. Is it reasonable to believe, if Tim Landry really thought the salesmen did not mislead Mrs. Payne, he would have offered to buy back the van or exchange it?  