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Sixty Three Twenty Four Chef Menteur Highway, LLC v. Phoenix Development Group, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

July 31, 2019

SIXTY THREE TWENTY FOUR CHEF MENTEUR HIGHWAY, LLC
v.
PHOENIX DEVELOPMENT GROUP, L.L.C. AND DECATUR HOTELS, LLC

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-02332, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Jeffrey Scott Loeb Sean McAllister LOEB LAW FIRM II John Randall Whaley ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT.

          John A. Stewart, Jr. BALDWIN HASPEL BURKE & MAYER, LLC Julie Steed Kammer STAINES & EPPLING Jay Russell Sever Matthew G. Greig PHELPS DUNBAR LLP COUNSEL FOR DEFENDANTS/APPELLEES.

          Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Tiffany G. Chase.

          Tiffany G. Chase, Judge.

         Sixty-Three Twenty-Four Chef Menteur Highway, LLC (hereinafter "Chef Menteur") seeks review of the trial court's November 13, 2018 judgment granting the exceptions of peremption, no cause of action and no right of action filed by J.B. Russell & Son Construction Co., Inc. (hereinafter "JBR"), Southeastern Commercial Roofing Company, Inc. (hereinafter "Southeastern") and Scottsdale Insurance Company (hereinafter "Scottsdale"). After consideration of the record before this Court, and the applicable law, we affirm the November 13, 2018 judgment of the trial court.

         Facts and Procedural History

         Phoenix Development Group, LLC (hereinafter "PDG") entered into an offer to purchase agreement with Chef Menteur for property located at 6324 Chef Menteur Highway. The offer to purchase agreement was partially contingent upon Chef Menteur providing clear title to the property.[1] Decatur Hotels, LLC (hereinafter "Decatur"), a subsidisry of PDG, entered into a contractual agreement with JBR to perform site restoration and miscellaneous services at various hotel sites, including 6324 Chef Menteur Highway. JBR retained Southeastern to perform roofing work on the property. PDG took possession of the property and the contractors began work on the property.

         The sale of the property to PDG was not completed because Chef Menteur was unable to provide clear title. On April 21, 2006, due to the failure of completion of the sale of the property, Chef Menteur regained possession. On March 13, 2007, Chef Menteur filed a petition for damages against PDG and Decatur alleging damage to the property and improper possession.[2] After numerous supplemental and amending petitions, Chef Menteur filed a fifth supplemental and amending petition on August 28, 2017, naming JBR and Southeastern as defendants.[3] In this petition, Chef Menteur alleged damage as a result of roof repair work performed by JBR and Southeastern. This petition also alleged civil trespass by JBR and Southeastern. On April 16, 2018, Chef Menteur filed a seventh supplemental and amending petition adding Scottsdale as a defendant in its capacity as Southeastern's insurer.[4]

         On July 12, 2017, JBR filed exceptions of peremption, no cause of action and no right of action. JBR alleged Chef Menteur's claims against it were perempted by La R.S. 9:2772; that Chef Menteur was not the proper party to bring a civil trespass claim; and that there was no cause of action regarding Chef Menteur's claim of unjust enrichment. On October 4, 2018, Southeastern filed exceptions of peremption, no cause of action and no right of action based on the same grounds as Chef Menteur's exceptions. On October 10, 2018, Scottsdale filed a motion formally adopting Southeastern's arguments.

         The matter was heard by the trial court on October 19, 2018. By judgment dated November 13, 2018, the trial court sustained the exceptions of peremption, no cause of action and no right of action. In strictly construing the peremptive statute, the trial court determined that the time period for Chef Menteur to file a damage claim had expired, thus granting the exception of peremption. Additionally, the trial court determined a procedural defect existed regarding the civil trespass and unjust enrichment claims, finding the claims to be tort claims, which were filed more than one year from the date of knowledge of the alleged activity. As such, the trial court granted the exceptions of no cause of action and no right of action. However, the trial court allowed Chef Menteur twenty-one days, from the date of judgment, to amend its petition to state a cause of action. This appeal followed.

         Assignments of Error

         Chef Menteur lists two assignments of error: (1) the trial court erred in its interpretation of La. R.S. 9:2772 and the five-year peremptive period designated in the statute does not apply to JBR and Southeastern; and (2) the trial court erred in holding that the five-year peremptive period of La. R.S. 9:2772 applied to Chef Menteur's claims of civil trespass against JBR and Southeastern. Chef Menteur seeks review of the trial court's ruling relative to the exception of peremption.

         Standard ...


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