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Jeanes v. McBide

United States District Court, W.D. Louisiana

June 4, 2019

JANET JEANES, Plaintiff
v.
GREG MCBRIDE, ET AL., Defendants

         SECTION: “E” (4)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for partial summary judgment filed by Plaintiff Janet Jeanes[1] and a motion for summary judgment filed by Defendant Greg McBride.[2] The motions are opposed.[3] For the following reasons, the Court GRANTS Jeanes' motion for partial summary judgment and DENIES McBride's motion for summary judgment. The Court also GRANTS Plaintiff's motion in limine to exclude evidence regarding the contractor immunity defense laid out in La. Rev. Stat. § 9:2771.[4]

         BACKGROUND

         Jeanes owns property located at 2534 Hampton Dupre Road in Pine Prairie, Louisiana.[5] In the summer of 2010, she began discussing the construction of a building on the property (“the Building”) with McBride.[6] Jeanes alleges she told McBride the Building was intended to include space for her horses and living quarters for herself.[7] She alleges that, although she and McBride agreed McBride would not construct the living quarters, he knew the Building would contain living quarters and for that reason would require an inspection.[8]

         It is uncontested McBride submitted a proposal to Jeanes, which she signed on September 23, 2010 (“the Proposal”).[9] The materials and plans for the roof of the Building were provided by S & S Steel Buildings, Inc., doing business as Metal Roofing Supply (“S & S”).[10] Roy Bergis Smith, through his company, E. Smith Plumbing Service, Inc. (“E. Smith Plumbing”), provided plumbing services for the Building.[11] McBride alleges the Building was completed in 2011, and Jeanes began using the Building to store farm supplies, equipment, and hay.[12]

         During the years 2010 to 2015, Jeanes employed Bobby Nacio to feed her horses and take care of the property on which the Building is located.[13] Jeanes represents she left Louisiana in 2011 and returned in the fall of 2015.[14] She alleges she began to discover defects in the Building in the fall of 2015 and continued to discover defects through the summer of 2016.[15] Specifically, Jeanes alleges she dug underneath columns of the Building in two locations and found a sixteen-inch concrete slab, rather than the eight-foot footings and 290 feet of a 24-inch deep chain wall specified in the Proposal.[16]

         On September 9, 2016, Jeanes filed the instant suit.[17] In her Complaint and Amended Complaint, she names five Defendants: McBride; Metal Buildings by Mac, LLC (“Metal Buildings”); S & S; Roy Bergis Smith; and E. Smith Plumbing. She brings five claims: (1) breach of contract against all Defendants, (2) negligence against S & S, (3) fraud against all Defendants, (4) violation of the Louisiana Unfair Trade Practices Act (“LUTPA”)[18] against all Defendants, and (5) successor liability against Metal Buildings.[19]The claims against all Defendants but McBride have been dismissed.[20] The claims against McBride are for breach of contract, fraud, and violation of LUTPA.[21]

         On April 5, 2019, Jeanes and McBride filed the instant motions for summary judgment.[22] In her motion, Jeanes argues she is entitled to partial summary judgment that McBride is not entitled to contractor immunity under La. Rev. Stat. § 9:2771.[23] In his motion, McBride argues he is entitled to summary judgment that all of Jeanes' claims against him are perempted, pursuant to La. Rev. Stat. § 9:2772(A).[24] In the alternative, he argues he is entitled to summary judgment on (1) the breach of contract claim because he is entitled to immunity under La. Rev. Stat. § 9:2771; (2) the fraud claim because Jeanes has failed to meet the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure and failed to present evidence of fraud; and (3) the LUTPA claim because it has prescribed, and Jeanes has presented no evidence of LUTPA violations.[25] The motions are opposed.[26]

         On May 9, 2019, Jeanes filed a motion in limine to exclude evidence relating to McBride's contractor immunity defense.[27] McBride opposes the motion.[28] The Court will address this argument in conjunction with Jeanes' motion for partial summary judgment on La. Rev. Stat. § 9:2771.

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[29] “An issue is material if its resolution could affect the outcome of the action.”[30]When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.”[31] All reasonable inferences are drawn in favor of the nonmoving party.[32]There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.[33]

         If the dispositive issue is one on which the moving party will bear the burden of persuasion at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.'”[34] If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the nonmoving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.[35]

         If the dispositive issue is one on which the nonmoving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the nonmovant's claim, or (2) demonstrating there is no evidence in the record to establish an essential element of the nonmovant's claim.[36] When proceeding under the first option, if the nonmoving party cannot muster sufficient evidence to dispute the movant's contention that there are no disputed facts, a trial would be useless, and the moving party is entitled to summary judgment as a matter of law.[37] When, however, the movant is proceeding under the second option and is seeking summary judgment on the ground that the nonmovant has no evidence to establish an essential element of the claim, the nonmoving party may defeat a motion for summary judgment by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”[38] Under either scenario, the burden then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon by the nonmovant.[39] If the movant meets this burden, “the burden of production shifts [back again] to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”[40] “Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial.”[41]

         “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports the claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'”[42]

         ANALYSIS

         McBride argues that Jeanes' claims against him have been perempted under the five-year peremption period in La. Rev. Stat. § 9:2772(A).[43] Importantly, the five-year peremption period under § 9:2772(A) does not apply if “fraud has caused the breach of contract or damages sued upon.”[44] As a result, the Court first addresses McBride's argument that he is entitled to summary judgment on Jeanes' fraud claim against him and that, as a result, § 9:2772(A) applies. Second, the Court addresses McBride's argument that all of Jeanes' claims against him are perempted under § 9:2772(A). Third, the Court addresses the parties' motions for summary judgment with respect to whether McBride is entitled to immunity on Jeanes' breach of contract claim against him under La. Rev. Stat. § 9:2771 and Jeanes' motion in limine on the same issue. Finally, the Court addresses McBride's arguments that he is entitled to summary judgment on Jeanes' LUTPA claim against him.

         I. McBride is not entitled to summary judgment on Jeanes' fraud claim against him.

         McBride argues he is entitled to summary judgment on Jeanes' fraud claim against him.[45] He first argues Jeanes has not met the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure.[46] He also argues Jeanes has failed to show evidence of fraud and, as a result, there are no genuine issues of material fact, it is undisputed that he has not engaged in fraud, and he is entitled to judgment as a matter of law.[47] The Court construes his motion for summary judgment on Jeanes' fraud claim as a motion to dismiss the claim under Rule 9(b) and, in the alternative, a motion for summary judgment on the claim.

         A. Pleading Article 1953 Fraud Under Rule 9(b)

         Under Rule 9(b) a party must state with particularity the circumstances constituting the fraud of mistake alleged in the complaint. In this case, Jeanes states she brings her fraud claim under article 1953 of the Louisiana Civil Code.[48] She does not bring a claim for delictual fraud under article 2315.[49] Article 1953 provides:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.[50]

         The article is in the chapter of the Civil Code governing “Conventional Obligations or Contracts, ” in the section entitled “Vices of Consent, ” which addresses error, fraud, and duress.[51] The article contemplates fraud in the formation of a contract, not fraud in performing a contract.[52]

         “[T]here are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim's consent to (a cause of) the contract.”[53] “Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence.”[54]“Circumstantial evidence, including highly suspicious facts and circumstances, may be considered in determining whether fraud has been committed.”[55]

         In Automatic Coin Enterprises, Inc. v. Vend-Tronics, Inc., the Louisiana Fifth Circuit Court of Appeal clarified that the legal standard for showing fraud is the intention not to perform at the time the promise is made because it constitutes a misrepresentation of a present rather than a future fact:

The jurisprudence is clear that fraud cannot be imputed from alleged misrepresentation(s) alone but, rather, must be based solely on a person's intent not to perform. The general rule is that an action for fraud cannot be asserted based upon statements promissory in nature and relating to future actions. Neither can fraud be predicated upon the mere failure to perform a promise, nor is nonperformance of an agreement to do something at a future time alone evidence of fraud. . . . However, fraud also may be predicated on promises made with the intention not to perform at the time the promise is made. It has been held that promises made without any intention of performance constitute a misrepresentation of a present rather than a future fact.[56]

         B. Defendant's Motion to Dismiss Under Rule 9(b)

         McBride argues Jeanes has not met the pleading requirements for fraud in Rule 9(b) of the Federal Rules of Civil Procedure.[57] Rule 9(b) governs pleading standards for fraud claims, including state-law fraud claims.[58] “A dismissal for failure to state fraud with particularity as required by Rule 9(b) is a dismissal on the pleadings for failure to state a claim.”[59] “Therefore, the time limits applicable to motions to dismiss under Rule 12(b)(6) should apply, and a party may challenge the sufficiency of allegations of fraud in any pleading.”[60] Failure to state a claim upon which relief may be granted is a defense that may be raised at trial.[61] The instant motion to dismiss under Rule 9(b) was filed before the deadline for dispositive motions in this case and is timely.

         Rule 9(b) provides, “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.”[62] “What constitutes ‘particularity' will necessarily differ with the facts of each case and hence the Fifth Circuit has never articulated the requirements of Rule 9(b) in great detail.”[63] The Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.”[64] “At a minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.”[65]

         The Civil Code specifies that contractual fraud may “result from silence or inaction.”[66] “To find fraud from silence or suppression of the truth, there must exist a duty to speak or to disclose information.”[67] “Fraud by omission or silence ‘is by its very nature difficult to plead with particularity. Because it does not involve an affirmative misrepresentation, it often does not occur at a specific place or precise time, or involve specific persons.'”[68] The Fifth Circuit has held that “[i]n cases concerning fraudulent misrepresentation and omission of facts, Rule 9(b) typically requires the claimant to plead the type of facts omitted, the place in which the omissions should have appeared, and the way in which the omitted facts made the representations misleading.”[69]

         The section of the Complaint on Jeanes' fraud claim states:

34. Plaintiff hereby incorporates by reference the allegations set forth in the preceding paragraphs as if they were fully rewritten herein.
35. Defendants suppressed plaintiff's discovery of the defects in the Barn, including, but not limited to, the defects with the foundation and the plumbing of the Barn, by failing to schedule timely inspections as required by the RAPC, thereby preventing the Building inspectors and the plaintiff from discovering the defects. See La. C.C. art. 1953.
36. Upon information and belief, the defendants did the foregoing in order to obtain an unjust advantage over the plaintiff by obtaining the full value of the contract price from Jeanes while delivering a substandard Barn in order to save time and expense.
37. The defendants had a further and continuing duty to disclose the defects in the Barn to the plaintiff, which the defendants have never done.
38. Therefore, plaintiff is entitled to obtain a rescission of the contract, damages, and attorney fees.[70]

         The factual background section includes an allegation that McBride and Roy Bergis Smith did not “contact the appropriate permitting authority to inspect the property” during construction.[71]

         The Court finds the Complaint alleges the details of the alleged fraud with particularity. The Complaint includes allegations that the Defendants, including McBride, made a misrepresentation at the time the contract was formed that the Building would be constructed in accordance with the McBride proposal. It also includes allegations that the Defendants, including McBride, made omissions thereafter, and that they gained additional profit from the job thereby. In this case, Jeanes sufficiently alleges the fraud is “predicated on promises made with the intention not to perform at the time the promise is made.”[72]

         The Complaint sufficiently alleges McBride did not intend to perform the contract at the time he gave Jeanes the Proposal, but rather intended to “obtain[] the full value of the contract price from Jeanes while delivering a substandard Barn in order to save time and expense.”[73] The Complaint also alleges McBride remained silent, when he had a duty to disclose, because he suppressed Jeanes' discovery of alleged defects in the foundation and plumbing of the Building in order to save money. As a result, the Court finds Jeanes has pleaded sufficient facts to state a claim for fraud and denies McBride's motion to dismiss under Rule 9(b).

         C. Motion for Summary Judgment on Fraud Claim

         First, the Court notes that “summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice.”[74] “One reason for this rule is that subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is not warranted for such determinations.”[75] At the summary judgment stage, “courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.”[76]

         McBride argues Jeanes has failed to demonstrate a genuine issue of material fact exists with respect to her fraud claim against him.[77] The Court determines whether there are genuine factual disputes with respect to whether McBride poured the concrete foundation according to the parties' agreement. McBride states it is an undisputed fact that the Proposal does not itemize a cost for concrete.[78] Although this may be true, Jeanes testified at her deposition that she paid McBride $35, 000 for concrete.[79] More importantly, the Proposal, prepared by McBride and signed by Jeanes, includes as a line-item “290' Of Concrete Chain Wall According to Plans; Sixteen- 2' × 8' Concrete Shafts According To Plans.”[80] Jeanes states in her deposition that, when she dug underneath the Building, she found there was a sixteen-inch slab of concrete, rather than the eight-foot footings and 290 feet in length of a 24-inch-deep chain wall agreed to in the contract.[81]With respect to Jeanes' claim that McBride fraudulently misrepresented that he would build the foundation in accordance with the Proposal, Jeanes has established factual disputes as to whether McBride intended to pour or did pour the concrete as required in the Proposal.

         With respect to Jeanes' claim that McBride fraudulently concealed the alleged defects by not obtaining inspections for the Building, McBride asserts it is undisputed that, according to Blake Steiner, an employee of the Rapides Area Planning Commission, no inspections were necessary under Jeanes' permit for the barn, and McBride could construct the barn without obtaining inspections.[82] Jeanes also disputes these assertions.[83] She cites other portions of Steiner's depositions, in which Steiner testifies inspections were required.[84] Jeanes also cites McBride's deposition testimony in which he stated that Jeanes made him aware she intended to have the Building be “mixed use, ” meaning commercial and residential, and that residential construction requires inspections.[85] The Court finds Jeanes has established a genuine issue of material fact as to whether McBride agreed to provide the living quarters, whether he failed to schedule an inspection even though he knew Jeanes intended for the Building to be “mixed use, ” and whether he knew an inspection was required. Genuine issues of material fact preclude summary judgment on Jeanes' fraud claim.

         II. Genuine issues of material fact preclude summary judgment on the issue of whether all of Jeanes' claims are perempted.

         Because the Court denies McBride's motion for summary judgment on Jeanes' fraud claim, the Court must examine whether the five-year peremptive period in La. Rev. Stat. § 9:2772(A) applies.

         A. Peremption under La. Rev. Stat. § 9:2772(A)

         La. Rev. Stat. § 9:2772(A) provides:

Except as otherwise provided in this Subsection, 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:
(1)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.[86]

         Under the statute, if applicable, the five-year peremptive[87] period applies to all claims made in this action, whether in contract, tort, or otherwise. “Peremption 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.”[88] Peremption need not be pleaded.[89] “Peremption may not be renounced, interrupted, or suspended.”[90]“Peremptive statutes are strictly construed against peremption and in favor of the claim. Of the possible constructions, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement should be adopted.”[91]

         “Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception.”[92] Accordingly, McBride bears the burden of proof on the issue of peremption. He must show there is no genuine issue of fact that the peremptive period began more than five years before Jeanes filed suit.

         It is undisputed that Jeanes did not obtain a certificate of occupancy for the Building.[93] There is no evidence that acceptance of the work was registered in a mortgage office. As a result, the applicable legal standard is whether Jeanes occupied or took possession of the Building more than five years before September 6, 2016. The statute and the cases interpreting the statute do not clearly define “occupied” or “taken possession.” The Court interprets this as a factual quesiton to be determined on a case-by-case basis.

         McBride asserts it is uncontested “Nacio testified that he began to use and store farm supplies, farm equipment and hay in the barn building in February of 2011” and that “prior to and following completion of the barn in February of 2011 the barn was used for Janet Jeanes' horse breeding operations.”[94] McBride cites portions of Nacio's affidavit, in which he states the Building was “continuously used as a barn for the storage of hay, farm supplies, and farm equipment prior to and after its completion in February of 2011” and for “horse breeding activities prior to and after its completion in February of 2011.”[95]McBride further argues the Building “was always in the possession of Jeanes because it was built on her property” and that it was “occupied in part and whole by Jeanes for use as a barn beginning in February of 2011.”[96]

         McBride points to Jeanes' testimony that “after the barn was completed, she stored the farm equipment in her barn.”[97] He cites a portion of the transcript of Jeanes' deposition in which she states, “We told Bobby Nacio my machinery, my tractors, my 38-foot hay trailer, everything is supposed to be inside the barn”[98] to support his contention that the Building was occupied in February 2011. McBride mischaracterizes Jeanes' deposition testimony about her instructions to Nacio. During her deposition, Jeanes does not state on which date during Nacio's 2011-15 employment she told Nacio her equipment was “supposed to be inside the barn.”[99]

         Jeanes points to evidence that the facts cited by McBride are in dispute.[100] During her deposition, she testified the barn had no lights and no electricity.[101] She stated, “The barn was never used. The barn has never been used, until we started getting ready to work on the barn.”[102] She also stated that by “working on the barn, ” she meant “[t]o get the electricity, to get the water to get a trailer house for somebody to live in, to live on the property, ” and this work “didn't happen until 2016.”[103] In her affidavit, she states she “did not use the Building at all to house horses until after [she] returned to Louisiana in the fall of 2015.”[104]

         Jeanes' testimony that she did not use the Building and there were no horses in the building until she returned to Louisiana in 2015 creates a genuine factual dispute as to when Jeanes occupied or took possession of the Building. As a result, the Court denies McBride's motion for summary judgment on peremption grounds. The jury will determine the date on which Jeanes occupied or took possession of the Building.

         III. The jury will determine whether the fraud exemption in La. Rev. Stat. § 9:2772(H) precludes the application of the five-year peremptive period.

         La. Rev. Stat. § 9:2772(H) establishes the following exception to the five-year peremptive period in § 9:2772(A):

(1) The [five-year] peremptive period provided by this Section shall not apply to an action to recover on a contract or to recover damages against any person enumerated in Subsection A of this Section, whose fraud has caused the breach of contract or damages sued upon.
. . .
(3) Fraud, as used in this Section, shall have the same meaning as provided in Civil Code Article 1953.[105]

         The Court denies McBride's motion for summary judgment on Jeanes' fraud claim against him because there are disputed issues of fact as to whether McBride committed fraud. The jury will determine whether Jeanes is liable for fraud under article 1953 of the Louisiana Civil Code.

         The jury must find whether McBride is liable for fraud before determining whether Jeanes' claims are perempted under § 9:2772(A).[106] If the jury finds McBride liable for fraud, the five-year peremptive period in § 9:2772(A) will not apply. If the jury finds McBride not liable for fraud, the jury will determine when Jeanes occupied or took possession of the building, and the breach of contract and LUTPA claims may be perempted.

         IV. With respect to the breach of contract claim, Jeanes is entitled to summary judgment on McBride's affirmative defense of immunity under § 9:2771.

         Jeanes moves for summary judgment that McBride is not entitled to the statutory immunity afforded by La. Rev. Stat. § 9:2771.[107] McBride moves for summary judgment on Jeanes' breach of contract claim against him, arguing he is entitled to immunity under § 9:2771.[108] The statute provides:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.[109]

         A. Allegations in Complaint with respect to Design Defects

         McBride argues that Jeanes did not allege in her Complaint that McBride was responsible for design defects in the Building.[110] He argues he was “not put on fair notice to defend such claims and would be unfairly prejudiced” if he is required to do so.[111]Jeanes responds that the Complaint alleges that McBride was responsible for design defects.[112]

         In her Complaint, Jeanes makes the following factual allegation:

Upon information and belief, McBride contacted S & S Steel Buildings to design and manufacture the Barn, and S & S Steel Buildings did in fact design and manufacture the materials to be used in the construction of the Barn. Upon information and belief, the plaintiff met with representatives of S & S Steel Buildings, who were doing business as Metal Roofing Supply, to discuss specifics for the design and manufacture of the Barn. Subsequently, using the design of S & S Steel Buildings, McBride and Metal Buildings by Mac began construction of the Barn.[113]

         In the portion of her Complaint regarding her breach of contract claim, which Jeanes brought against all Defendants, including McBride, Jeanes states:

Defendants agreed to provide the plaintiff with a usable, safe, and structurally sound Barn and design and construct the Barn in a good, workmanlike manner.
Defendants failed to comply with their obligations when they defectively designed and constructed the Barn. See La. C.C. arts. 2769, 2762.
Plaintiff has suffered damages due to defendants' breach of contract.[114]

         Jeanes clearly states she brings this claim against all Defendants, including McBride. The Court finds Jeanes' Complaint sufficiently alleged McBride is liable for the Building's allegedly defective design.[115]

         B. Immunity Under § 9:2771

         Section 9:2771 provides a contractor with immunity for work constructed “according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications.”[116] The statute is “strictly construed against the party claiming the immunity and must not be extended beyond [its] obvious meaning.”[117]

         In their joint pretrial order, the parties state it is undisputed that S & S, not McBride, made the plans and specifications for the Building.[118] However, during the pretrial conference, the parties clarified that S & S furnished the plans for the metal roof the Building, but not for the foundation of the Building.[119] To the extent there were plans for the foundation of the Building, they were made by McBride in connection with the Proposal.[120] Because McBride made the plans for the foundation of the Building, he is not entitled to immunity under § 9:2771 on any claims arising from alleged defects in the foundation.

         The Court turns to whether McBride is entitled to immunity under § 9:2771 on any claims arising from defects in the roof or elsewhere in the building. The Court must determine whether McBride caused the plans and specifications to be made with respect to those portions of the Building. Louisiana courts of appeal consistently hold that, when a general contractor hires a subcontractor to provide plans and specifications, the general ...


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