Appeal from the 22nd Judicial District Court, Parish of
Washington, State of Louisiana Trial Court No. 108044 The
Honorable Peter J. Garcia, Judge Presiding
E. Broome Baton Rouge, Louisiana Attorney for Appellant,
Jefferson Dye New Orleans, Louisiana Attorney for Appellee,
Nobles Construction, L.L.C.
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
Rayford appeals a judgment sustaining exceptions of
peremption and prescription, and dismissing his third party
petition against Nobles Construction, L.L.C. We reverse and
appeal arises from Nobles' construction of three houses
for Rayford, which Rayford intended to use as rental
properties. Nobles completed the construction in 2008.
Rayford alleges that after tenants moved into the houses,
hazardous mold and mildew was discovered, which Rayford
attributes to defects in construction. According to Rayford,
it became obvious that the houses could not be used for their
intended purposes. Thereafter, Rayford defaulted on the
promissory notes that financed the construction and Whitney
Bank filed the underlying suit.
2016, Rayford asserted a third party demand against Nobles.
Rayford alleged he hired Nobles as required for financing
approval, and Nobles failed to obtain required building
permits and inspections during construction. Rayford claimed
Nobles' actions and failures were fraudulent. Rayford
further alleged Nobles failed to comply with building
standards, complete the job, and rectify problems, which
resulted in a breach of contract. Finally, Rayford alleged
Nobles performed defective work or used defective materials,
resulting in mold and mildew in the houses.
response, Nobles filed peremptory exceptions of peremption
and prescription. Nobles argued Rayford's claims should
be dismissed pursuant to Louisiana Revised Statute 9:2772,
which provides the peremptive periods applicable to actions
against contractors related to construction of improvements
on immovable property. Nobles argued the unsubstantiated
fraud allegations should be disregarded and therefore the
fraud exception to Section 9:2772 is inapplicable.
Alternatively, Nobles argued Rayford's claims are
prescribed. The trial court sustained the exception and
dismissed the third party demand. Rayford
prescription is a mode of barring actions as a result of
inaction for a period of time. La. Civ. Code art. 3447.
Peremption is a period of time fixed by law for the existence
of a right. Unless timely exercised, the right is
extinguished upon expiration of the peremptive period. La.
Civ. Code art. 3458. Peremption has been likened to
prescription in that peremption is prescription that is not
subject to renunciation, interruption, or suspension.
See La. Civ. Code art. 3461; Quatrevingt v.
State through Landry, 17-0884 (La.App. 1 Cir. 2/8/18),
__ So.3d __, __(2018WL793496, p.3).
and prescription are properly raised by the peremptory
exception, and the rules governing the burden of proof as to
prescription also apply to peremption. See La. Code
Civ. Pro. art. 927; Quatrevingt, __So. 3d at__.
Ordinarily, the exceptor bears the burden of proof at the
trial of the peremptory exception. However, if the plaintiffs
claim is perempted or prescribed on its face, the burden
shifts to the plaintiff to show the action is not perempted
or prescribed. Prevo v. State ex rel Dept. of Public
Safety and Corrections Div. of Probation and Parole,
15-0823 (La. 11/20/15), 187 So.3d 395, 398.
may be introduced to support or controvert the exceptions of
peremption and prescription. See La. Code Civ. Pro.
art. 931. Here, although the parties attached documents as
exhibits to their pleadings and memoranda, no evidence was
introduced at the hearing on the exception. Unless properly
offered and introduced into evidence, documents attached to
memoranda do not constitute evidence and cannot be considered
as such on appeal. Atain Specialty Ins. Co. v. Premier
Performance Marine, LLC, 15-1128 (La.App. 1 Cir.
4/8/16), 193 So.3d 187, 190. In the absence of evidence,
exceptions of peremption and prescription must be decided on
the facts alleged in the petition with all allegations
accepted as true. See Lomontv. Bennett, 14-2483 (La.
6/30/15), 172 So.3d 620, 627. Further, where no evidence is
introduced to support ...