Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lopinto v. Professional Construction Services, Inc.

Court of Appeals of Louisiana, Fifth Circuit

July 13, 2018

JOSEPH P. LOPINTO, III, SHERIFF OF THE PARISH OF JEFFERSON (AS SUCCESSOR IN OFFICE TO HARRY LEE) AND JEFFERSON LAW ENFORCEMENT DISTRICT
v.
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

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore

         WRIT GRANTED; EXCEPTION OF PEREMPTION SUSTAINED; MATTER REMANDED

         The 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.

         The 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.

         Acceptance 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.[1] 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 tower.

         Relators 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 exception only.

         In a 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. R.S.9:5607.[2]

         The 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 follows:

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. 37:2150.1(9):
(1)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.

         Peremption is a period of time fixed by law for the existence of a right.[3]Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.[4] When the peremptive period has run, the cause of action itself is extinguished unless timely exercised.[5] Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment.[6]Peremption may not be renounced, interrupted, or suspended.[7]

         The 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 petition.

         Relators argue the trial court erred in denying the exception of peremption since both are contractors. Thus, plaintiffs' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.