STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2009 CA 0294
SHERIE LANDRY WIFE OF AND RAYMOND C BURKART JR
VERSUS
ELAINE L WILLIAMSON WIFE OF AND JAMES R WILLIAMSON
WILLIAM L DUNFORD RHONDA HEMELT WIFE OF AND
CHRISTOPHER J AUBERT GROUP INTEGRITY L L C D B A KELLER
WILLIAMS REALTY JACKIE E STALEY JEAN BROWN WILLIAM
STONE HATCHETT III JOHN J HENRY JOHN J HENRY
ASSOCIATES
L L C D B A HATCHETT INSPECTION SERVICES L L C D B A HENRY
HATCHETT INSPECTION SERVICES AB INSURANCE COMPANY AND
EF INSURANCE COMPANY
NOV 1 3 2009
Judgment Rendered
Appealed from the
Twenty Second Judicial District Court
In and for the Parish of St
Tammany
State of Louisiana
Suit number 2003 13648
fi5v
1
ty
Honorable
Raymond
S Childress
Presiding
U ttf b
rlP
Ogburn Burkart
Counsel for Plaintiffs
C Burkart Jr
Sherie
Katherine
f
Vr
ymond
ovington
Gary
Hughes
Jr
L Hanes
Counsel for Defendants
Elaine
Williamson
L
Mandeville LA
James R Williamson
John P Wolff III
Counsel for Defendants
Christopher
Baton
K Jones
Rouge
LA
Christopher
and
Howard R Fussell
LCV
LA
of and
Appellees
Company
Counsel for Defendants
Covington
wife
Great Northern
William J Jones Jr
Galaspy
Appellees
J Aubert Rhonda
Hemelt Aubert
Insurance
Leland R
Raymond
C Burkart Jr
LA
Charles M
Landry
Appellants
wife of and
Appellees
Partnership
Development Co
Lee Road
Builders Inc and
Viking Land
Crowne
Colony
Inc
Gus A Fritchie III
Counsel for Defendants
Edward W
Jackie E
Appellees
New Orleans LA
Staley
Group Integrity
Williams Realty
Mariah N
Counsel for Defendant Appellee
Jay Russell
Trapolin
Rabieh
Jean Brown
LLC
Scottsdale Insurance
Sever
b
d
a
Keller
Company
New Orleans LA
William L Dunford
Defendant Appellee
Jonestown TX
Pro Se
Francis R White III
Counsel for Defendant Appellee
Covington LA
John E
Group
BEFORE
CARTER
J
C
Bruce
b
d
a
Advanced
Design
Inc
PARRO GUIDRY PETTIGREW AND GAIDRY JJ
2
GUIDRY J
Sherie
Appellants
from
appeal
of
objection
claim
a
judgment
Landry wife of and Raymond Burkart Jr the Burkarts
of the trial court
granting
peremptory exception raising the
a
prescription filed by defendant John
against
him with
For the
prejudice
reasons
E
and
Bruce
that follow
we
dismissing
their
affirm
FACTS AND PROCEDURAL HISTORY
On
in
August
Louisiana
Covington
about
28 2002 the Burkarts
26
September
rainfall
from defendants
2002
Consequently
on
naming the Williamsons
realtors
1
August
as
well
as
third
the home
party demand
at
on
and sold the home
to
filed suit
these
against
LCV to
completed the
Finally
to the
other
a
as
On
or
during periods of
petition
for
damages
in the chain of title
prior homeowners
companies
Christopher
October 9 2003
party defendants
compel
into the home
2003 the Burkarts filed
issue from the
Crowne
Development Company
third
Highlands Subdivision
defendants
asserting claims
in
tort
Rhonda Hemelt wife of and
purchased
home in
a
Elaine and James Williamson
leaking
started
water
and unidentified insurance
redhibition and
purchased
Aubert
contractors
naming
LCV
Inc
May
same
list items
originally
LeV
filed
a
partners Lee Road
Viking
Land
Inc
as
and built the home
The Auberts stated that
they had previously
defendants under the New Home
complete punch
Auberts
1995
and
who
designed
The Auberts asserted that LCV
them in
Partnership
LCV and its sole
Builders
Colony
the Auberts
on
Warranty
Act to
the house however when the work
dismissed this first suit
against
LCV without
was
prejudice
the Auberts contended that in the event the court found the defendants liable
plaintiffs
the incident sued upon occurred
design construction and repair of the
performing
moisture
a
result of LCV
s
defective
home
Sometime in 2004 the Burkarts retained
the home and
as
a
civil
engineer
who upon
examining
testing determined that the exterior walls of the
3
home
constructed with
not
were
secondary
a
method of construction caused the
Burkarts
roof
home
water
widespread
he determined that
Additionally
and roof
penetrations and chimney
barrier
and that this
intrusion
water
improper
throughout the
improper flashing of the windows
valleys created leaking problems
or
the
potential for leaking problems
Thereafter the Burkarts filed
August
2 2005
negligence
Louisiana
naming
Home
subsequently
filed
naming John
E
a
Warranty
second
Bruce db
negligence in failing
to
Advanced
Inc
as
were
liable
The
on
a
April
design drawings
the trial court
the Burkarts
signed
claim
a
were
11
2008
defendant for his
The Burkarts three
jointly severally and in solido
peremptory exception raising the objection
a
completed
or
sometime in 1996
judgment sustaining
against
the
Burkarts
asserting that the Burkarts claim against him had prescribed
from the date his
dismissing
amending petition
under
claims
2545
art
properly design the plans for the home
On June 12 2008 Mr Bruce filed
hearing
C C
on
asserting claims for
and
superior
Design Group
petitions alleged that all of the defendants
of prescription
and
amending petition
defendants and
and La
supplemental
a
as
respondeat
Act
and
supplemental
LCV and its insurers
negligent supervision
New
first
a
him with
Mr Bruce
prejudice
s
one
year
Following
a
exception and
The Burkarts
now
appeal
from this judgment
DISCUSSION
Ordinarily
claim has
the
prescribed
party pleading prescription bears the burden of proving the
However
plaintiff s claim
has
prescription
interrupted
was
1st Cir 9 23 05
prescribed
or
923 So 2d 131
when the face of the
the burden shifts
suspended
135
Kirby
v
to
the
4
plaintiff
to demonstrate
Field 04 1898 p 6
writ denied 05 2467
1230
petition reveals that the
La 3 24 06
La
App
925 So 2d
The Burkarts
home in August 2002 and that
into the home in
naming
September
Mr Bruce
would appear
on
for
original petition
as
they began
2002
to
experience problems with
supplemental
The second
defendant
a
damages stated that they purchased their
was
the face of the
filed until
not
April
and
11
that their claim
petition
water
leaking
amending petition
As such
it
Mr Bruce
is
2008
against
prescribed
to
architects
applies
their home
claim
filed within
was
prescriptive period applicable
filing of
severally
their
Burkarts
one
claim
See La C C P
against
Mr Bruce is
art 927 B
to recover
planning
their claim is not
such
discovery
of the defects in
was
interrupted by
they
assert
arts 2324
are
we
timely
the
liable
jointly
and 3492
prescriptive period applies
matter because
then
their claim
to
applies
one
find
sua
perempted in accordance with
to
the instant
sponte that the
La R S 9 2772
1
A No action whether
but not limited to
period
See La C C
for resolution of this
as
the Burkarts argue that if the
other defendants who
Louisiana Revised Statute 9 2772
or
year
determination of which
not necessary
of their
delictual actions
to
and in solido with Mr Bruce
a
ten years
Alternatively
because the
petition against
However
is
timely
prescriptive period applicable
Mr Bruce and
against
See La C C art 3500
their claim is still
case
to their
because it
prescribed
year
the Burkarts assert that the ten year
appeal
On
an
2
provides in part
contractu
ex
ex
delicto
action for failure to
damages
or
construction
warn
otherwise arising
design
or
or
otherwise
to
out
including
recover on a
contract
of an engagement of
building immovable
or
movable
property which may include without limitation consultation planning
designs drawings specification investigation evaluation measuring
1
In 2008 La C C P art 927 A
was
amended to add
peremption
objection
permit the
as an
by peremptory exception Further paragraph B was amended to
appellate court to supply the objection of peremption on its own initiative
Revision Comments
2
2008
c
or
that may be raised
trial court or the
See La C C P art 927
and d
Louisiana Revised Statute 9 5607 sets forth
a
similar
peremptive period
for actions
against
because the Burkarts failed to introduce any
professional engineers
evidence at the hearing to support their contention that Mr Bruce is an architect and the allegations
in their petition unequivocally state that Mr Bruce is not a registered and or licensed architect we
and architects
find that La R S 9 2772
applies to the
However
instant
case
5
administration related
shall
building construction demolition or work
brought against any preson performing or furnishing land
be
services
surveying
limited
as
to any
such
term
is defined in R S 37 682
but
including
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
not
to
immovables
limited
to
or
a
improvements to immovable property including but not
residential building contractor as defined in R S
37 2150 1 9
1
More than five years after the date of
a
office of acceptance of the work
registry in the mortgage
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
occupied by the owner
Emphasis
The
added
legislature established the peremptive period
any person
performing
or
construction
projects
from which the
discovery
peremptive period
123
exceptions
writ denied
to
08 2302
prescription
period Succession
such
as
run
2d
So
interrupted
La
contra
2d 371
373
4
La
12
08
non
or
a
of time
La
definite time
not
at 373
Because the
App
dependent
La
C C
valentem do
2d 1119
not
apply to
period
on
the
period
art
is
3461
994 So 2d
1st Cir 8 21 08
996 So
See
1st Cir
App
which is
suspended
or
Furthermore
a
peremptive
of James 07 2509 at p 4 994 So 2d at 123
originally had a ten year period when it was added by 1964 La
period was decreased to seven years by 1999 La Acts No 1024 S
to the current five year period in 2003 by 2003 La Acts No 919 S 1
Louisiana Revised Statute 9 2772
Acts No
1
563
In reSuccession of James 07 2509 p
120
protect
liability for past
period
9 2772 establishes
starts to
Lasseigne
indefinite
an
563 So
La R S
it cannot be renounced
peremptive
3
Builders
Sons
of the defect
from
the construction of immovables
To achieve this purpose
1990
see
or
which could extend for
Schouest
v
in La R S 9 2772 to
furnishing the design planning supervision inspection
observation of construction
Lasseigne
improvement has been thus
the
after
years
3
The
189
period
S
1 In 1999 the
was
shortened
For purposes ofthis discussion however it is not necessary to determine which version of La RS
the
9 2772 applies to the instant case because under any time period ten seven or five years
Burkarts claims are perempted
6
Therefore
an
action
the work
against
by the
owner was
then from the date the
there is
no
filed for
owner
evidence
as
to
original
owners
The Burkarts did
1995
naming
original
pursuant
Bruce is
Mr
Bruce
owners
as
took
a
not
or
at
an
if no
took
or
the peremptive
1
acceptance
occupied by the
was
filing
filed within six
In the instant
owner
acceptance of the work
was
filed in the
undisputed that the Auberts
purchased and occupied the home in May
file their second
defendant until
for
possession of the improvement
However it is
issue
period
from either the date the acceptance of
or
thus
if
owners
possession
to any and all
was
when
of the home
run
registry
occupied
improvement
mortgage office by the original
the
S 9 2772 A
Mr Bruce commenced to
months from the date the
case
to La R
according
April
supplemental
2008
of the home
some
Therefore
and
amending petition
thirteen years after the
under any time
versions of La R S 9 2772 the Burkarts
claim
period
against
Mr
perempted
Accordingly
Burkarts claim
we
find
against Mr
no
error
Bruce with
in the trial court
s
judgment dismissing the
prejudice
CONCLUSION
F or the
the Burkarts
be borne
foregoing
claim
reasons we
against
affirm the judgment of the trial
Mr Bruce with
prejudice
All
costs
court
of this
by the appellants Sherie Landry wife of and Raymond Burkart
AFFIRMED
7
dismissing
appeal
Jr
are
to