United States District Court, E.D. Louisiana
LOUIS R. KOERNER, JR.
VIGILANT INSURANCE COMPANY
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
R. Koerner, Jr. (“Koerner”) owns a house on
Jackson Avenue in New Orleans. On November 11, 2005, Koerner
contracted with CMR Construction & Roofing, LLC
(“CMR”) to replace the house's slate
roof. The roof installed by CMR- a “Slate
2.0 roof”-is at the center of the present dispute.
contends that he wanted to purchase what he labels a
“traditional slate roof, ” that CMR knew the
same, and that CMR led him to believe that the Slate 2.0 roof
was a “traditional slate roof.” According to
Koerner, a Slate 2.0 roof is not a “traditional slate
roof, ” because CMR used a synthetic membrane instead
of felt underneath the slate tiles. Koerner alleges that he
never would have purchased the Slate 2.0 roof had he known
that it was not a “traditional slate roof, ” and
had CMR not made other representations to him regarding the
quality of the roof and its advantages when compared to other
Koerner argues that representations made by CMR when Koerner
sought subsequent repair work on the roof caused him
additional damage. Koerner also contends that the overall
quality of CMR's work-the removal of the old roof and
installation of the new one, as well as the remedial work-was
shoddy. Based on these allegations, Koerner
asserts numerous Louisiana law claims against CMR, including
breach of warranty, breach of contract, rescission of
contract, detrimental reliance, redhibition, negligence, and
now moved for summary judgment, arguing that most of
Koerner's claims are perempted. CMR also contends that it is
entitled to summary judgment on Koerner's remaining
claims, which relate to repair work performed on his Jackson
Avenue house's roof in 2012. Further, CMR argues that
Koerner's fraud claims are prescribed.
judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any
affidavits, the court determines that there is no genuine
dispute of material fact. See Fed. R. Civ. P. 56.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The party seeking
summary judgment need not produce evidence negating the
existence of material fact, but need only point out the
absence of evidence supporting the other party's case.
Id.; Fontenot v. Upjohn Co., 780 F.2d 1190,
1195 (5th Cir. 1986).
the party seeking summary judgment carries its initial
burden, the nonmoving party must come forward with specific
facts showing that there is a genuine dispute of material
fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a
genuine issue of material fact is not satisfied by creating
“‘some metaphysical doubt as to the material
facts, ' by ‘conclusory allegations, ' by
‘unsubstantiated assertions, ' or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Instead, a genuine issue of material
fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts
that establish a genuine issue. Id. However, the
nonmoving party's evidence “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving
party's] favor.” Id. at 255; see also
Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
“[a]lthough the substance or content of the evidence
submitted to support or dispute a fact on summary judgment
must be admissible . . ., the material may be presented in a
form that would not, in itself, be admissible at
trial.” Lee v. Offshore Logistical & Transp.,
LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quoting 11
Moore's Federal Practice-Civil ¶ 56.91 (2017)).
“This flexibility allows the court to consider the
evidence that would likely be admitted at trial . . . without
imposing on parties the time and expense it takes to
authenticate everything in the record.” Maurer v.
Independence Town, No. 16-30673, 2017 WL 3866561, at *3
(5th Cir. Sept. 5, 2017).
argues that peremption bars most of Koerner's claims.
“Peremption is a period of time fixed by law for the
existence of a right.” La. Civ. C. art. 3458.
“Unless timely exercised, the right is extinguished
upon the expiration of the peremptive period.”
Id.; see also Naghi v. Brener, 17 So.3d
919, 926 (La. 2009) (observing that “the cause of
action no longer exists after the termination of the
peremptive period and any right to assert the claim is
destroyed”). “Peremption may not be renounced,
interrupted, or suspended.” La. Civ. C. art. 3461;
cf. Naghi, 17 So.3d at 925-26 (“Because the
cause of action no longer exists after the termination of the
peremptive period and any right to assert the claim is
destroyed, there is nothing to which an amended or
supplemental pleading filed after the peremptive period has
expired can relate back.”).
may be pleaded or it may be supplied by a court on its own
motion at any time prior to final judgment.” La. Civ.
C. art. 3460. As a general rule, “the exceptor bears
the burden of proof at the trial of the peremptory
exception.” Rando v. Anco Insulations, Inc.,
16 So.3d 1065, 1082 (La. 2009). However, where peremption is
“evident on the face of the pleadings, ” the
burden shifts to the plaintiff to demonstrate that an action
is not perempted. Id.
statutes are strictly construed against peremption and in
favor of the claim.” Id. at 1083. “Of
the possible constructions, the one that maintains
enforcement of the claim or action, rather than the one that
bars enforcement should be adopted.” Id.
interpreting Louisiana law-including Louisiana's
preemptive statutes-a federal court must heed the Louisiana
Supreme Court's instructions regarding statutory
interpretation. See In re Katrina Canal Breaches
Litig., 495 F.3d 191, 206 (5th Cir. 2007). “[T]he
starting point in interpreting any statute is the language of
the statute itself.” Louisiana v. Johnson, 884
So.2d 568, 575 (La. 2004).
The meaning and intent of a law is determined by considering
the law in its entirety and all other laws on the same
subject matter and by placing a construction on the law that
is consistent with the express terms of the law and with the
obvious intent of the legislature in enacting the law. A
statute must be applied and interpreted in a manner that is
logical and consistent with the presumed purpose and intent
of the legislature.
Further, it is presumed that every word, sentence, or
provision in a law was intended to serve some useful purpose,
that some effect is to be given to each such provision, and
that no unnecessary words or provisions were employed. As a
result, courts are bound, if possible, to give effect to all
parts of a statute and to construe no sentence, clause or
word as meaningless and surplusage if a construction giving
force to, and preserving, all words can legitimately be
found. Finally, it is presumed that the legislature acts with
full knowledge of well-settled principles of statutory
Moss v. Louisiana, 925 So.2d 1185, 1196 (La. 2006)
(internal citations omitted). Ultimately, “[t]he
fundamental question in all cases of statutory
interpretation” involving Louisiana law “is
legislative intent.” Id.
addition to these jurisprudential principles, the Louisiana
legislature has enacted specific rules governing the
interpretation of Louisiana's revised statutes. See
generally La. R.S. § 1. As relevant in this case,
the legislature directs that “[w]ords and phrases shall
be read with their context and shall be construed according
to the common and approved usage of the language.”
Id. § 1:3. “Technical words and phrases,
and such others as may have acquired a peculiar and
appropriate meaning in the law, shall be construed and
understood according to such peculiar and appropriate
meaning.” Id. “The word
‘shall' is mandatory and the word ‘may'
is permissive.” Id. Moreover, “[w]hen
the wording . . . is clear and free of ambiguity, the letter
of it shall not be disregarded under the pretext of pursuing
its spirit.” Id. § 1:4. Finally,
“[u]nless it is otherwise clearly indicated, the word
‘person' includes a body of persons, whether
incorporated or not.” Id. § 1:10.
these rules of construction in mind, the Court turns to the
peremption issue raised by CMR.
peremption argument focuses on La. R.S. § 9:2722, which
the Louisiana legislature enacted in 1964 “to protect
residential building contractors from liability for past
construction projects that could extend for an indefinite
period of time.” Thrasher Const., Inc. v. Gibbs
Residential, L.L.C., 197 So.3d 283, 290 (La. Ct. App.
4th Cir. 2016). The current version of § 9:2722 became
effective as of August 15, 2003, and so was in effect well
before Koerner contracted with CMR to install a Slate 2.0
roof on his Jackson Avenue house. Metairie III v.
Poche' Const., Inc., 49 So.3d 446, 450 (La. Ct. App.
4th Cir. 2010).
9:2772 provides, in pertinent part:
Except as otherwise provided in this Subsection, no
action, whether ex contractu, ex delicto, or otherwise,
including but not limited to an action for failure to warn,
to recover on a contract, or to recover damages, or otherwise
arising out of an engagement of planning, construction,
design, or building immovable or movable property which may
include, without limitation, consultation, planning, designs,
drawings, specification, investigation, evaluation,
measuring, or administration related to any building,
construction, demolition, or work, shall be brought
. . . against any person performing or furnishing
the design, planning, supervision, inspection, or observation
of construction or the construction of immovables, or
improvement to immovable property, including but not
limited to a residential building contractor as defined in
(1)(a) More than five years after the date of registry in the
mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from
the date the owner has occupied or taken possession of the
improvement, in whole or in part, more than five years
after the improvement has been thus occupied by the
R.S. § 9:2772(A) (emphasis added). In other words,
“actions involving deficiencies in surveying, design,
supervision, or construction of immovables or improvements
thereon” are subject to § 9:2772's five-year
peremptive period. Thrasher Const., 197 So.3d at
peremptive period's trigger “is not dependent on
the discovery of the defect.” Burkart v.
Williamson, 29 So.3d 635, 639 (La. Ct. App. 1st Cir.
2009). Moreover, “any repairs or promises to repair
alleged to have been made” do not interrupt the running
of the § 9:2772 peremptive period. Lasseigne v.
Schouest & Sons, Builders, 563 So.2d 371, 373 (La.
Ct. App. 1st Cir. 1990).
parties first dispute whether the § 9:2772 peremptive
period applies to claims arising from the underlying contract
between the parties. As the Court previously explained, the
dispute between CMR and Koerner centers on a 2005 contract in
which CMR agreed to remove the Jackson Avenue house's old
slate roof and install a new Slate 2.0 roof. Koerner contends
that a genuine dispute of material fact exists as to whether
this contract was a contract of sale or a construction
contract. If the contract was a contract of sale,
as opposed to a construction contract, then §
9:2772's peremptive period is inapplicable. See Swope
v. Columbian Chems. Co., 281 F.3d 185, 201-02 (5th Cir.
2002) (quoting KSLA-TV, Inc. v. Radio Corp. of Am.,
693 F.2d 544, 545 (5th Cir. 1982) (per curiam)). CMR
disagrees, contending that “a roof is an improvement to
an immovable, or part of an immovable, as a matter of
law”-and therefore the underlying contract obligating
CMR to remove the house's old roof and install a new one
is a construction contract falling squarely within the
purview of § 9:2772. The parties do not dispute the
work for which Koerner contracted with CMR: replacement of
the roof of Koerner's Jackson Avenue house.
law provides that “[t]racts of land, with their
component parts, are immovables.” La. Civ. C. art. 462.
Buildings, such as houses, are “components parts”
of the land and therefore are themselves immovables.
Id. art. 463. “[A] new home construction on a
vacant lot is an ‘improvement to immovable property,
'” and “it is equally the case that once such
a home is built it becomes an immovable itself, and any
further construction, be it a renovation or
addition to the home, is likewise an ‘improvement to
immovable property.'” Dugas v. Cacioppo,
583 So.2d 26, 27 (La. Ct. App. 5th Cir. 1991); see also
Moll v. Brown & Root Inc., 218 F.3d 472, 476 (5th
Cir. 2000) (discussing Dugas). As a renovation to a
home, the installation of the Slate 2.0 roof is subject to
§ 9:2772. See, e.g., Celebration Church,
Inc., v. Church Mutual Ins. Co., 216 So.3d 1059, 1061-63
(La. Ct. App. 5th Cir. 2016) (applying § 9:2772 to
claims arising from a contractor's alleged failure to
properly repair and replace a roof).
also alleges that “[h]e was solicited by CMR to
purchase a roof, not to purchase installation or repair
services, ” and thus the 2005 contract with CMR was a
contract for sale. Despite Koerner's contention,
however, the record clearly demonstrates-and Koerner
admits-that CMR provided both materials and installation
services pursuant to the 2005 contract. Indeed, many
of Koerner's claims against CMR derive from CMR's
alleged faulty installation work.
other words, Koerner did not simply buy slate tiles; he
bought the installation of a new roof for his Jackson Avenue
house, which is an improvement on an immovable as a matter of
law. Cf. Vicari v. Window World, Inc., 171 So.3d
425, 433 (La. Ct. App. 5th Cir. 2015) (“[T]he object of
the Vicari contract was not to simply sell forty-five windows
to the Vicaris, but to install those windows in their home.
To suggest that the Vicaris' only desire in contracting
with Window World was to purchase forty-five custom windows
to be delivered and set aside at their home, is illogical.
The installation was not incidental to the sale, . . . it was
the object of the contract.”). The 2005 contract is a
construction contract and so § 9:2772 applies to claims
arising from it.
addition to claims arising from the 2005 contract, Koerner
also asserts claims against CMR arising from subsequent
repair work performed on the roof in 2006, 2007, 2011, and
2012. CMR argues that such claims are also
governed by § 9:2772's preemptive
period. The Court agrees. See Celebration
Church, 216 So.3d at 1061-63 (treating roof repairs as
covered by § 9:2772); cf. Vicari, 171 So.3d at
436 (same for claims arising from repairs to previously
installed windows); but cf. Chaisson v. Avondale Indus.,
Inc., 947 So.2d 171, 196 (La. Ct. App. 4th Cir. 2006)
(observing that “no Louisiana appellate court”
had yet to hold that the particular “type of asbestos
repair and maintenance work” at issue fell within the
purview of § 9:2772).
the Court must determine which, if any, of Koerner's
claims are perempted under § 9:2772(A). Under the
“clear and specific” language of § 9:2772,
Celebration Church, 216 So.3d at 1062, the five-year
peremptive period for claims arising from construction work
runs either 1) from “the date of registry of the
acceptance in the mortgage office of the work by the owner,
” or 2) if the owner does not register his acceptance
“within six months from the date the owner has occupied
or taken possession of the improvement, in whole or in part,
” from the date that “the improvement has been
thus occupied by the owner, ” La. R.S. §
9:2772(A)(1). In this case, neither party argues that Koerner
registered CMR's roof work.
first asserted claims against CMR arising from CMR's roof
work on November 14, 2016. Under § 9:2772(A), then,
any claims arising from “improvement[s]” that
Koerner “occupied” prior to November 14,
2011, would fall outside the required five-year window and be
parties do not dispute that CMR's removal of his old roof
and installation of the Slate 2.0 roof, as well as the repair
work in 2006 and 2007, all constitute improvements that
Koerner occupied well before November 14, 2011. Any claims
arising from these jobs are therefore perempted under §
9:2772(A). Likewise, the parties do not dispute that claims
arising from repair work performed by CMR in 2012 are not
perempted under § 9:2772(A).
parties do dispute, however, whether claims arising from roof
repairs performed by CMR in late 2011 are perempted. CMR
contends that these roof repairs were completed by November
10, 2011. On the other hand, Koerner-“based
on [his] understanding”-suggests that those specific
repairs were part of a larger remedial project that was not
completed until November 2012.
closer examination, the record belies Koerner's belief
that the repairs that CMR completed by November 10, 2011,
were part of one continuous project that did not come to
fruition until November 2012. CMR's job report
documenting the 2011 repairs lists the job as
“Closed” on November 10, 2011. CMR next
agreed to do work for Koerner approximately three months
later, in early February 2012, when Koerner entered into an
agreement with CMR to do a discrete repair
project. CMR performed additional repair work for
Koerner between late February and July 2012.Finally, in
October 2012, Koerner entered into an agreement with a third
party-not CMR-to undertake certain repairs.
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007). There is no genuine dispute that the repair work
performed in 2011 amounts to an “improvement”
distinct from the repair work performed in 2012, and that
Koerner “occupied” this “improvement”
at the time of its completion. As such, claims arising from
CMR's 2011 repair work are perempted under §
§ 9:2772(A) applies to many of Koerner's claims, the
Court's analysis is not at an end because Koerner
contends that he is able to escape this preemptive period by
way of § 9:2772(H). Under this subsection, “[t]he
peremptive period provided by [§ 9:2772(A)] shall not
apply to an action to recover on a contract or to recover
damages against any person . . . whose fraud has caused the
breach of contract or damages sued upon.” La. R.S.
§ 9:2772(H)(1). For § 9:2772(H)(1) to apply, the
breach or damages must in fact be caused by fraud;
where damages are a result of alleged deficient work, for
example, then fraud did not cause the damages.
See Thrasher Const., 197 So.3d at 293.
term “fraud” as used in § 9:2772 has
“the same meaning as provided in Civil Code Article
1953.” La. R.S. § 9:2772(H)(3). Article 1953
defines “fraud” as “a misrepresentation or
a suppression of the truth made with the intention either to
obtain an unjust advantage for one party or to cause a loss
or inconvenience to the other.” This article further
clarifies that fraud may result from either silence or a
failure to act. La. Civ. C. art. 1953.
establish fraud involving a contract, a plaintiff must show
“(1) a misrepresentation, suppression, or omission of
true information; (2) the intent to obtain an unjust
advantage or to cause damage or inconvenience to another; and
(3) the error induced by a fraudulent act must relate to a
circumstance substantially influencing the victim's
consent to (a cause of) the contract.” Shelton v.
Standard/700 Associates, 798 So.2d 60, 64 (La. 2001).
Evidence is “sufficient to support an inference of
fraudulent intent if [it] either ‘(1) show[s] a
defendant's motive to commit [ ] fraud or (2)
identif[ies] circumstances that indicate conscious behavior
on the part of the defendant.'” Cargill, Inc.
v. Degesch Am., Inc., 875 F.Supp.2d 667, 675 (E.D. La.
2012) (quoting Herrmann Holdings Ltd. v. Lucent Techs.
Inc., 302 F.3d 552, 565 (5th Cir. 2002)) (alternation in
will not nullify contractual consent “when the party
against whom the fraud was directed could have ascertained
the truth without difficulty, inconvenience, or special
skill, ” unless “a relation of confidence has
reasonably induced a party to rely on the other's
assertions or representations.” La. Civ. C. art. 1954;
see also Cashman Equip. Corp. v. Acadian Shipyard,
Inc., 66 Fed. App'x 524 (5th Cir. 2003) (per curiam)
(discussing and applying La. Civ. C. art. 1954). A
“relation of confidence has been found to exist where
there is a long-standing and close relationship between the
parties due to numerous transactions.” Sepulvado v.
Procell, 99 So.3d 1129, 1137 (La. Ct. App. 3rd Cir.
2012). The required “confidante/trustee relationship is
less likely to exist between parties to a single or limited
business transaction.” Id. at 1137-38.
must state all allegations of fraud with particularity by
identifying the time, place, and contents of the false
representations, as well as the identity of the person making
the misrepresentation and what that person obtained
thereby.” Owens v. Jastrow, 789 F.3d 529, 535
(5th Cir. 2015) (internal quotation marks omitted); see
also Fed. R. Civ. P. 9(b); Williams v. WMX Tech.,
Inc., 112 F.3d 175, 177 (5th Cir. 1997) (“We see
no principled reason why the state claims of fraud should
escape the pleading requirements of the federal rules . . .
.”). Further, plaintiffs must state “the
specifics of the false representation.” United
States ex rel. Grubbs v. Kanneganti, 565 F.3d 180,
188-89 (5th Cir. 2009).
need only be proven by a preponderance of the evidence and
may be established by circumstantial evidence.”
Lomont, 172 So.3d at 629. Such evidence may include
“highly suspicious facts and circumstances.”
Court must first consider if a genuine dispute of material
fact exists as to whether fraud caused any of the damages
upon which Koerner is suing.
alleges that CMR misrepresented the nature of the product
that he was purchasing, i.e., that a Slate 2.0 roof
was a “traditional slate roof, ” that a Slate 2.0
roof would “outlast” Koerner, and that a Slate
2.0 roof was backed by a 75-year warranty. Koerner also
alleges that CMR did not properly remove the old roof from
the Jackson Avenue house, that CMR did not properly install
the Slate 2.0 roof, and that CMR did not properly repair the
Slate 2.0 roof's deficiencies after
installation.As a result, Koerner argues that he did
not receive the roof that he wanted and that his house
sustained damage from CMR's work.
extent that Koerner asserts claims against CMR for physical
damage resulting from the removal of his old roof, the
installation of the Slate 2.0 roof, and subsequent repair
work in 2006, 2007, and 2011-all jobs performed and completed
by CMR before November 14, 2011-there is no genuine material
dispute that fraud did not cause the damages.
Rather, the quality of CMR's work-alleged to be
deficient-is to blame. See Thrasher Const., 197
So.3d at 293. Koerner cannot salvage claims arising from the
alleged substandard quality of CMR's work by relying on
the § 9:2772(H) fraud exception and so such claims are
perempted. Thus, all claims arising from CMR's repair
work in 2006, 2007, and 2011 are perempted and will be
other hand, Koerner's claims arising from his
purchase of the Slate 2.0 roof from CMR may
qualify for the § 9:2772(H) exception. With respect to
the purchase, the “damages sued upon”-purchasing
one product under false pretenses- could have been
caused by fraud. La. R.S. § 9:2772(H)(1).
argues that Koerner cannot prove that his purchase of the
Slate 2.0 roof was caused by any fraud on the part of CMR.
CMR points out that its agent provided Koerner with product
literature,  and that the 2005 contract between CMR
and Koerner explicitly provided for a Slate 2.0
roof. Further, the 2005 contract does not
mention a 75-year warranty and explicitly notes, after
listing 10-year workmanship and materials warranties, that
“THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED, AND
THERE IS NO IMPLIED WARRANTY OF
MERCHANTABILITY.” To CMR, Koerner's assertion that
fraudulent behavior by CMR led to his purchase of the Slate
2.0 roof is “devoid of factual
only evidence that fraud caused him to purchase the Slate 2.0
roof is his own unsworn declaration under penalty of perjury,
in which Koerner details his interactions with the CMR agent
with whom he dealt to purchase the roof. According to
Koerner, “I made it clear to CMR's salesman that I
wanted to purchase a traditional ...