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City of Youngsville v. C. H. Fenstermaker & Associates, L.L.C.

Court of Appeals of Louisiana, Third Circuit

April 18, 2018

CITY OF YOUNGSVILLE
v.
C. H. FENSTERMAKER & ASSOCIATES, L.L.C.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2015-4091 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE.

          Paul J. Hebert K. Wade Trahan Ottinger Hebert, L.L.C. COUNSEL FOR: Defendant/Appellee - Glenn Lege Construction, Inc.

          Frank X. Neuner, Jr. Brandon W. Letulier Jeffrey K. Coreil, NeunerPate, COUNSEL FOR: Defendant/Appellant - C. H. Fenstermaker & Associates, L.L.C.

          William Lee Melancon Melancon & Associates, COUNSEL FOR: Plaintiff/Appellee - City of Youngsville

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE.

         The defendant engineer, C. H. Fenstermaker & Associates, L.L.C. (Fenstermaker), provided engineering services for the construction of a roadway in the City of Youngsville. Youngsville sued Fenstermaker for deterioration of the roadway. Fenstermaker filed a third-party demand against the construction company, Glenn Lege Construction, Inc. (GLC). GLC filed an exception of peremption, which was granted by the trial court. Fenstermaker appeals the trial court's judgment in favor of GLC. Finding no error or manifest error in the trial court's judgment, we affirm.

         I.

         ISSUE

         We must decide whether the trial court erred in interpreting La.R.S. 9:2772[1] and in granting GLC's exception of peremption.

         II.

         FACTS AND PROCEDURAL HISTORY

         The City of Youngsville (City) contracted with Fenstermaker for engineering services in the design, planning, and supervision of a 6.5-mile roadway in Lafayette Parish. The City entered into a separate contract with GLC for construction of the roadway as designed. Upon the recommendation of Fenstermaker, the City opened the road to the public in 2009, but only months later, in 2009, the roadway began to fail. The City still held funds on both Fenstermaker's and GLC's open contracts. GLC did repair work, and Fenstermaker oversaw the work. The last change order on the construction contract was dated January 21, 2010. The City accepted the work and recorded its public notice of acceptance on August 27, 2010.

         Failures began again over the next few years. It was determined that the failures were due to the soil in the base and the asphalt. The City's mayor hired a new engineer in 2015 and filed suit against Fenstermaker on August 19, 2015, within five years of the recorded acceptance. Fenstermaker filed an exception of peremption, asserting a 2009 acceptance of substantial completion. The trial court denied Fenstermaker's exception of peremption. This court denied Fenstermaker's writ application, No. 16-431, [2] on Fenstermaker's exception of peremption.

         Fenstermaker filed a third-party demand against GLC on December 23, 2015, asserting fault and seeking indemnification in the amount of any judgment issued against Fenstermaker in the main demand. GLC asserted that it had followed the design specifications and used the materials required by Fenstermaker and that Fenstermaker's third-party demand against GLC was untimely. The trial court granted GLC's exception of peremption. Fenstermaker appeals the judgment of the trial court, asserting that the trial court misinterpreted the statute at issue, La.R.S. 9:2772.

         III.

         STANDARD OF REVIEW

         Questions of law, such as the proper interpretation of a statute, are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36 (citations omitted).

Peremption is a period of time fixed by law for the existence of a right. La. Civ.Code art. 3458. The right is extinguished upon the expiration of the peremptive period. Id. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. State Through Div. of Admin. v. McInnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937, 939. "Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment." La. Civ.Code art. 3460. "Peremption may not be renounced, interrupted, or suspended." La. Civ.Code art. 3461.
The peremption exception is considered a peremptory exception. Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners and Citizens of Denham Springs Economic Development Dist., 05-2274 (La.10/17/06), 945 So.2d 665, 680; La.Code Civ. Proc. art. 927. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978); see also La. Civ.Code art. 3461. As such, the following rules governing the burden of proof as to prescription apply to peremption.
If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter, 892 So.2d at 1267. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993).

Rando v. Anco Insulations Inc., 08-1163 pp. 19-20 (La. 5/22/09), 16 So.3d 1065, 1082.

         IV.

         LAW AND DISCUSSION

         The Louisiana Legislature enacted La.R.S. 9:2772 in 1964 to protect building contractors from liability for past construction projects that could extend for an indefinite period of time. Thrasher Constr., Inc. v. Gibbs Residential, L.L.C., 15-607 (La.App. 4 Cir. 6/29/16), 197 So.3d 283, writ denied, 16-1453 (La. 11/15/16), 209 So.3d 779. More specifically, La.R.S. 9:2772 provides that a suit arising from the design and construction of an immovable must be brought not more than "five years after the date of registry in the mortgage office of acceptance of the work by owner." La.R.S. 9:2772(A)(1)(a). If no acceptance is recorded within six months of occupancy or possession of the property, the date of occupancy is the date that begins the five-year period for filing suit. La.R.S. 9:2772(A)(1)(b). If the main demand is ...


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