JOSEPH P. LOPINTO, III, SHERIFF OF THE PARISH OF JEFFERSON (AS SUCCESSOR IN OFFICE TO HARRY LEE) AND JEFFERSON LAW ENFORCEMENT DISTRICT
PROFESSIONAL CONSTRUCTION SERVICES, INC. AND SWAGER COMMUNICATIONS, INC.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL
DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA,
DIRECTED TO THE HONORABLE GLENN B. ANSARDI, DIVISION
''H'', NUMBER 635-664
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and Marion F. Edwards, Judge Pro Tempore
GRANTED; EXCEPTION OF PEREMPTION SUSTAINED; MATTER
judgment on review in this writ application is a ruling by
the trial court denying an exception of peremption. For the
following reasons, we find the trial court erred as a matter
of law in that ruling.
matter arises from protracted litigation beginning in August
of 2006, when Harry Lee, the former sheriff of Jefferson
Parish, filed suit against several defendants for damages
sustained when a radio communications tower in Gretna
collapsed during Hurricane Katrina on August 29, 2005.
of the work on the tower by the owner was filed in the
registry of the mortgage office on October 15, 1998. Several
of the defendants have been dismissed from the lawsuit
pursuant to peremption and summary judgment. The only two
remaining defendants (relators herein) are PCS, which served
as the general contractor for the construction of the tower,
and Swager, a sub-contractor which fabricated and erected the
filed a motion for summary judgment and an exception of
peremption. Both the motion and the exception were denied by
the trial court. However, relators filed this writ
application seeking review of the denial of the peremption
prior decision in this matter, this Court established that,
because the plaintiffs did not acquire the right to sue until
they discovered the damage in 2005, their rights had not
vested before the 2003 enactment of La.
applicable version of La. R.S. 9:2772 established the
peremptive period for "actions involving deficiencies in
surveying, design, supervision, or construction of immovables
or improvements thereon." It read in pertinent part as
A. 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 land surveying services,
as such term is defined in R.S. 37:682, including but not
limited to those services preparatory to construction, or
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 R.S.
(1)(a) More than five years after the date of registry in the
mortgage office of acceptance of the work by owner.
is a period of time fixed by law for the existence of a
right.Unless timely exercised, the right is
extinguished upon the expiration of the peremptive
period. When the peremptive period has run, the
cause of action itself is extinguished unless timely
exercised. Peremption may be pleaded or it may be
supplied by a court on its own motion at any time prior to
final judgment.Peremption may not be renounced,
interrupted, or suspended.
date peremption began to run was October 15, 1998, the date
of acceptance by the owner, and the date plaintiffs'
cause of action accrued was August 29, 2005. Suit was filed
on August 28, 2006, well beyond the five-year peremptive
period. Thus, the action is perempted on the face of the
argue the trial court erred in denying the exception of
peremption since both are contractors. Thus, plaintiffs'