FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. C-2015-4091 HONORABLE KRISTIAN EARLES,
J. Hebert K. Wade Trahan Ottinger Hebert, L.L.C. COUNSEL FOR:
Defendant/Appellee - Glenn Lege Construction, Inc.
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
composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and Van H. Kyzar, Judges.
ULYSSES GENE THIBODEAUX CHIEF JUDGE.
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.
decide whether the trial court erred in interpreting La.R.S.
9:2772 and in granting GLC's exception of
AND PROCEDURAL HISTORY
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.
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,
Fenstermaker's exception of peremption.
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.
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.
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