* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 00-30470 

Summary Calendar

____________________

ROBERT J LEDET

Plaintiff - Appellant

v.

FLEETWOOD ENTERPRISES, INC; ET AL

Defendants

FLEETWOOD MOBILE HOMES OF INDIANA, INC

Defendant - Appellee

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana 

No. 99-CV-895-N

_________________________________________________________________

December 22, 2000

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Robert J. Ledet appeals from the

district court’s grant of summary judgment in favor of DefendantAppellee Fleetwood Mobile Homes of Indiana. We AFFIRM.
1 The Motor Home was covered by several express

warranties. The Fleetwood warranty expressly disclaimed coverage

of the engine and the chassis, as those items were covered by

separate warranties by their manufacturers, Cummins and FCCC

respectively. Furthermore, the Fleetwood warranty did not cover

normal maintenance or service items, or, if allowed by state law,

incidental or consequential damages. 

2 At this time, the Motor Home had approximately 3300

miles on it, 1000 of which were on the odometer when Ledet took

delivery from Dixie. 

3 Ledet was unsure whether Fleetwood gave him Cummins’s

number or called Cummins for him.

2

I. FACTUAL AND PROCEDURAL HISTORY

On June 30, 1997, Robert J. Ledet purchased a new 1997

Fleetwood Discovery motor home (the “Motor Home”) from Dixie

Motors (“Dixie”) in Hammond, Louisiana. Fleetwood Mobile Homes,

Inc. (“Fleetwood”) was the manufacturer of the Motor Home, but

its chassis and drive train were supplied by third-party

defendant Freightliner Custom Chassis Corporation (“FCCC”) and

its diesel engine by third-party defendant Cummins Engine

Company, Inc. (“Cummins”).1 

On April 25, 1998,2 Ledet and his fiancee, Deborah Harris,

drove the Motor Home to a campground in Navarre Beach, Florida. 

Upon arriving at the campground, they noticed that the Jeep

Wrangler, which had been towed behind the Motor Home was covered

in diesel fuel. Ledet called Dixie for instructions, and Dixie

gave him Fleetwood’s toll-free number. Ledet then called

Fleetwood, which referred him to Cummins.3 Cummins told Ledet it

would “track down a rep in the area that would take care of the
4 In Ledet’s deposition, he stated that Leaird told him

this problem was “very common.”

3

problem,” and ultimately, Cummins Alabama, Inc. (“CAI”), an

independent distributor of Cummins engines, called Ledet and told

him it would send a mechanic the next day.

On April 26, 1998, the CAI mechanic, Larry Leaird, inspected

the Motor Home and identified the problem as a split diesel fuel

line, which needed to be replaced.4 Although Ledet wished to

have the Motor Home repaired at the campsite, Leaird informed

Ledet that CAI would only perform the work at its Mobile, Alabama

facility. Therefore, the next day Leaird called All Pro Towing

and Recovery, Inc. (“All Pro”) to tow the Motor Home to the CAI

facility. The tow truck operator sent by All Pro spent two hours

hooking up the Motor Home and began towing it to Mobile. Ledet

and Harris followed in the Jeep Wrangler. 

During the drive, a truck driver informed the tow truck

operator that the rear wheels of the Motor Home were bulging

outward. The tow truck operator pulled to the side of the road

and was shortly thereafter joined by Ledet and Harris. Ledet

noticed that the rear wheels of the Motor Home were at an angle

and that smoke filled its interior. Further inspection later
5 Ledet originally alleged that the damage may have been

caused by a defective axle. However, all experts agreed that the

damage was caused by negligent towing, and Ledet conceded that

point in his Opposition to Fleetwood Enterprises, Inc. Motion for

Summary Judgment (the “Opposition”).

6 Pursuant to the plaintiff’s Voluntary Motion to Dismiss

Without Prejudice, Dixie was dismissed as a defendant on July 7,

1999.

4

revealed that, due to negligent towing,5 the axle of the Motor

Home had failed, causing severe mechanical and interior damage. 

On March 19, 1999, Ledet filed a Complaint against Dixie and

Fleetwood alleging that the defects in the fuel line and the axle

were redhibitory defects, entitling him to either recission of

the sale or damages. Alternatively, Ledet alleged that the

defendants were liable under negligence for the negligent towing

of All Pro under the theories of respondeat superior, breach of

warranty, detrimental reliance, and agency. After Dixie was

dismissed as a defendant,6 Fleetwood filed a third-party

Complaint against FCCC and Cummins, alleging that the problems

asserted by Ledet “involve the engine and/or drive train

components and/or chassis and/or related components supplied by

Cummins and/or Freightliner and for which those two corporations

separately warranted to the purchaser, original complainant.”

On March 3, 2000, Fleetwood filed a Motion for Summary

Judgment, which the district court granted. Ledet appeals.
5

II. STANDARD OF REVIEW

This court reviews a district court’s grant of summary

judgment de novo, “applying the same criteria used by the

district court in the first instance.” Bussian v. RJR Nabisco,

223 F.3d 286, 293 (5th Cir. 2000). Summary judgment is

appropriate when the record shows “‘that there is no genuine

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.’” Allen v. Rapides

Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (quoting

Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 161 (5th Cir.

1996)). The party seeking summary judgment bears the burden of

demonstrating an absence of evidence to support the nonmovant’s

case, “which it believes demonstrate[s] the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). However, if the party seeking summary judgment will

bear the ultimate burden on the issue at trial, “it must adduce

evidence to support each element of its defenses and demonstrate

the lack of any genuine issue of material fact with regard

thereto.” Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 505

(5th Cir. 1999), cert. denied, 120 S. Ct. 1171 (2000). 

Where the opposing party bears the burden of proof at trial,

the moving party need not submit evidentiary documents to

properly support its motion, but need only point out the absence

of evidence supporting the essential elements of the opposing
7 In his original Complaint, Ledet alleged that the Motor

Home had both a defective fuel line and a defective axle at the

time of purchase. However, in his Opposition, Ledet stated “It

is pretty well established that the failure of the axle was due

to the way in which the motor coach was towed.” He made no other

references to either of the alleged redhibitory defects. On the

basis of that statement, the district court concluded that “Ledet

no longer wishes to pursue his allegations of redhibitory

defect.” 

6

party’s case. See Saunders v. Michelin Tire Corp., 942 F.2d 299,

301 (5th Cir. 1991). After the movant has presented a properly

supported motion for summary judgment, the burden shifts to the

nonmoving party to show with “significant probative evidence”

that there exists a genuine issue of material fact. See Conkling

v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994). A fact is

“material” if its resolution in favor of one party might affect

the outcome of the lawsuit under governing law. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is

“genuine” if the evidence is sufficient for a reasonable jury to

return a verdict for the nonmoving party. See id. “[W]e must

view all facts in the light most favorable to the nonmovant.” 

Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d

686, 690 (5th Cir. 1999). 

III. EXISTENCE OF A REDHIBITORY DEFECT

Ledet concedes that the district court correctly dismissed

its claim that the Motor Home had a defective axle,7 but contends

that the court erred in dismissing his claim that the Motor Home
8 Furthermore, Fleetwood argues that there is no evidence

on the record to support the claim that the defect existed or,

even if it did, that it rose to the level of a redhibitory

defect. Next, Fleetwood asserts that even if the fuel line was

defective, it was not the proximate cause of the damage to the

vehicle. Finally, Fleetwood contends it should not be liable

because, even if such a redhibitory defect existed in the fuel

line, the engine was separately warranted by Cummins.

7

had a defective fuel line, which also constituted a redhibitory

defect. Ledet asserts that because Fleetwood failed to address

the issue of the defective fuel line in its Motion for Summary

Judgment, it did not meet its evidentiary burden, and therefore,

the district court should not have granted summary judgment as to

both of Ledet’s redhibitory defect claims.

While admitting that no mention of the allegedly defective

fuel line was made in its Motion for Summary Judgment, Fleetwood

maintains that the grant of summary judgment on both redhibitory

defect claims was appropriate. First, Fleetwood contends that as

there was no mention of this redhibitory defect claim in either

its Motion for Summary Judgment or Ledet’s Opposition, raising

the issue at this time is inappropriate.8

We recognize that the party seeking summary judgment bears

the burden of demonstrating an absence of evidence to support the

nonmovant’s case, see Celotex, 477 U.S. at 323; however, we also

note that the party opposing summary judgment has a duty to

inform the district court of the reasons why summary judgment is

not appropriate. See Hargrave v. Fibreboard Corp., 710 F.2d

1154, 1164 (5th Cir. 1983) (“In DeBardeleben v. Cummings, 453
9 Fleetwood argued (1) that it should not be liable

because improper towing, not a redhibitory defect, caused the

damage to the vehicle; and (2) even if there were defects in the

chassis or the drive, those items were covered by their

respective manufacturers and not Fleetwood. Nowhere in its

Motion for Summary Judgment did Fleetwood specifically assert

that there was inadequate evidentiary support for Ledet’s claim

that the defective fuel line constituted a redhibitory defect. 

In fact, in its brief on appeal, Fleetwood admits: “Not mentioned

in the Motion for Summary Judgment . . . was a ‘defective’ fuel

line.” 

8

F.2d 320 (5th Cir. 1972), this court characterized as almost

axiomatic ‘the principal that any genuine material issue of fact

must somehow be shown to exist in the District Court.’”). 

Although Ledet did allege two separate redhibitory defects in his

Complaint, a defective fuel line and a defective axle, and

Fleetwood arguably failed to meet its burden on summary judgment

with regard to the alleged fuel-line defect,9 those facts do not

end the inquiry. Ledet’s failure to raise the issue in front of

the district court in Opposition to Fleetwood’s Motion for

Summary Judgment constitutes a waiver of the issue for summary

judgment purposes, regardless of whether the issue was raised in

Ledet’s Complaint.

“[W]e have specifically refused to overturn a summary

judgment motion on a theory not advanced in opposition to the

motion in the district court.” Savers Fed. Sav. & Loan Assoc. v.

Reetz, 888 F.2d 1497, 1501 (5th Cir. 1989). Fleetwood moved for

complete summary judgment. In so doing, it argued that it should

not be liable for the damage to the Motor Home (1) because the
9

damage was not caused by a redhibitory defect and (2) because

even if a redhibitory defect did exist, the engine and the

chassis were covered by separate warranties. Even though

Fleetwood did not specifically assert a lack of evidence to

support the claim of a redhibitory defect in the fuel line, Ledet

was clearly on notice that Fleetwood was moving for summary

judgment on both rehibitory defect issues. In his Opposition,

Ledet’s only mention of his redhibitory defect claims was an

admission that the experts all agreed that the damage to the

vehicle had not been caused by a redhibitory defect.

“In Batterton, we reapproved and applied Hargrave’s holding

that even a pleaded theory was waived when it was not raised in

opposition to a motion for summary judgment.” Id.; see Batterton

v. Tex. Gen. Land Office, 783 F.2d 1220, 1224-25 (5th Cir. 1986);

Hargrave, 710 F.2d at 1163-64; see also Liberles v. County of

Cook, 709 F.2d 1122, 1126 (7th Cir. 1983) (“It is a well-settled

rule that a party a opposing summary judgment motion must inform

the trial judge of the reasons, legal or factual, why summary

judgment should not be entered. If it does not do so, and loses

the motion, it cannot raise such reasons on appeal.). 

In Hargrave, we found that the appellant Nicolet, Inc.

(“Nicolet”) had “abandoned his alternative theories of recovery

by failing to present them to the trial court.” 710 F.2d at

1164. Hargrave, one of the asbestos litigation cases, involved

varying procedural claims of a third-party plaintiff Nicolet, a
10

third-party defendant T & N, and a former subsidiary of T & N,

Keasbey & Mattison Co. Nicolet had filed a third-party complaint

against T & N based on three different theories: an alter ego

theory, a successor-in-interest theory, and a

contribution/indemnification theory. See id. at 1156. T & N

subsequently filed motions for summary judgment on the merits,

alleging that the actions were barred by the running of the

statute of limitations, that the degree of control was

insufficient to warrant alter ego liability, and that no basis

existed for the imposition of succession in interest liability. 

See id. Nicolet’s response addressed only the alter ego theory

and did not address any of T & N’s other arguments or Nicolet’s

own alternative theories of liability. See id. at 1157. In

granting summary judgment for T & N, the district court addressed

only the alter ego theory. See id. at 1157. Again, in its

motion for reconsideration, which was refused by the district

court, Nicolet addressed only the alter ego theory. See id. at

1157-58. Ultimately, in its appeal, Nicolet asserted that the

district court’s failure to consider the alternative theories

presented in its third-party complaint was error. See id. at

1163. We found

[a]lthough the complaint refers to both of these

grounds of recovery, Nicolet never broached them again

until this appeal. Neither Nicolet’s brief in

opposition to T & N’s motion for summary judgment nor

its comments at oral argument on the summary judgment

motion mentioned a single fact that would trigger a

genuine issue on these theories. This failure to raise
11

potential factual issues is especially enlightening in

view of T & N’s head-on challenge in its motion for

summary judgment; T & N not only attacked Nicolet’s

alternative successorship liability theory, but also

raised its own independent ground for dismissal, the

Pennsylvania survival of claims statute. Still Nicolet

failed to present facts in support of its pleaded

theories.

 

Id. at 1163-64 (footnote omitted). Because “Nicolet’s opposition

to the motion not only failed to present any data tending to

establish the existence of a genuine issue of fact, but also

completely failed even to refer to its alternative theories of

recovery,” id. at 1164, Nicolet had abandoned those alternative

theories of recovery and “the district court appropriately

granted summary judgment for T & N on the whole case.” Id.

The same situation is before us today. Although Ledet

alleged the existence of a redhibitory defect in the fuel line in

his Complaint, his complete failure to raise any legal or factual

issue regarding that claim in his Opposition constitutes a waiver

of the issue. See, e.g., Grenier v. Cyanamid Plastics, Inc., 70

F.3d 667, 678 (1st Cir. 1995) (“Even an issue raised in the

complaint but ignored at summary judgment may be deemed waived. 

‘If a party fails to assert a legal reason why summary judgment

should not be granted, that ground is waived and cannot be

considered or raised on appeal.’” (quoting Vaughner v. Pulito,

804 F.2d 873, 877 n.2 (5th Cir. 1986))); Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992) (“[T]his court .

. . will not consider evidence or arguments that were not
10 “To be effective such a limitation [to limit or exclude

the implied warranty against redhibitory defects] must be

contained in the contract of sale (or similar document), be clear

and unambiguous, and must be brought to the buyer’s attention or

explained to him.” Datamatic, Inc. v. Int’l Bus. Machs. Corp.,

795 F.2d 458, 464 (5th Cir. 1986). Ledet contends that whether

12

presented to the district court for its consideration in ruling

on the motion.”).

Therefore, we affirm the decision of the district court

granting summary judgment to Fleetwood on both of Ledet’s

redhibition claims. 

IV. AGENCY

The district court found that Fleetwood was entitled to

summary judgment on Ledet’s claim that All Pro and Cummins were

acting on the apparent authority of Fleetwood and, therefore,

that Fleetwood was responsible for their negligent acts. The

court reasoned that in light of the language of the Fleetwood and

the Cummins warranties, Fleetwood never assumed responsibility

for the engine, and therefore, the alleged subsequent negligence

of All Pro or CAI, when it referred Ledet to Cummins. Moreover,

given the express language of the warranties, the court found

that it was unreasonable for Ledet to believe Fleetwood had

assumed responsibility for the engine. In fact, the district

court interpreted Fleetwood’s referral of Ledet to Cummins as an

express denial of responsibility for the engine.

Ledet argues that because there is an issue of fact as to

whether the waiver of the implied warranty was valid,10 it was
the waiver of the implied warranty against redhibitory defects is

valid is a question of fact.

13

reasonable for him not to rely on the express language of the

warranties. He asserts that because Fleetwood referred him to

Cummins, it manifested Cummins with its authority, and Ledet

reasonably relied on that manifestation. Fleetwood responds that

in simply referring Ledet to the engine manufacturer, it made no

manifestations or assertions on which Ledet could reasonable

rely; therefore, Fleetwood should not be liable for the acts of

two independent legal entities. We agree.

Under Louisiana law, “[a]pparent authority is a judicially

created concept of estoppel which operates in favor of a third

party seeking to bind a principal for the unauthorized act of an

apparent agent.” Boulos v. Morrison, 503 So. 2d 1, 3 (La.

1987). “Implied or apparent agency exists if the principal has

the right to control the conduct of the agent and the agent has

the authority to bind the principal.” Urbeso v. Bryan, 583 So.

2d 114, 117 (La. Ct. App. 1991); see also Barrilleaux v. Franklin

Found. Hosp., 683 So. 2d 348, 354 (La. Ct. App. 1996). 

For the doctrine of apparent authority to apply

the principal must first act to manifest the alleged

agent’s authority to an innocent third party. Second,

the third party must rely reasonably on the manifested

authority of the agent. . . . [T]he principal will be

bound for the agent’s actions if the principal has

given an innocent third party a reasonable belief the

agent had authority to act for the principal.
14

Boulos, 503 So. 2d at 3. “Apparent agency is established by the

words and conduct of the parties and the circumstances of the

case. An agency relationship may be created even though there is

no intent to do so.” Urbeso, 583 So. 2d at 117; see also

Barrilleaux, 683 So. 2d at 354. However, “[a]n agency

relationship is never presumed; it must be clearly established.” 

Barrilleaux, 683 So. 2d at 354. 

The burden of proving apparent authority is on the

party seeking to bind the principal. A third party may

not blindly rely on the assertions of an agent, but has

a duty to determine, at his peril, whether the agency

purported granted by the principal permits the proposed

act by the agent.

Id.

As Fleetwood met its summary judgment burden of

demonstrating an absence of evidence to support Ledet’s case, the

burden shifted to Ledet to show with significant probative

evidence that there exists a genuine issue of material fact. The

only evidence to which Ledet points is that Fleetwood referred

him to Cummins; Fleetwood manufactured the vehicle; and Fleetwood

chose Cummins to manufacture the engine. We agree with the

district court that, in light of the warranties, this is not

sufficient evidence to establish a genuine issue of material fact

that Fleetwood manifested authority in All Pro. Additionally, we

agree with the district court that Ledet’s reliance on those
11 Ledet’s argument that his reliance was reasonable

because Fleetwood cannot establish waiver of the implied warranty

against redhibitory defects, discussed supra, is inapposite. The

issue is whether it was reasonable for Ledet to rely on the fact

that by referring Ledet to Cummins to repair the leak in the fuel

line, Fleetwood manifested apparent authority in All Pro that

would render Fleetwood liable for All Pro’s allegedly negligent

towing. 

15

actions as a manifestation of authority in All Pro was

unreasonable.11 

V. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the

district court.