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Whitney Bank v. Rayford

Court of Appeals of Louisiana, First Circuit

March 29, 2018


          On Appeal from the 22nd Judicial District Court, Parish of Washington, State of Louisiana Trial Court No. 108044 The Honorable Peter J. Garcia, Judge Presiding

          Willie E. Broome Baton Rouge, Louisiana Attorney for Appellant, Henry Rayford

          David Jefferson Dye New Orleans, Louisiana Attorney for Appellee, Nobles Construction, L.L.C.


          CRAIN, J.

         Henry 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 remand.


         This 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.[1]

         In 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.

         In 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 appeals.[2]


         Liberative 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).

         Peremption 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.

         Evidence 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 ...

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