Conti Enterprises, Inc. v. Providence/GSE Associates, LLC, Robert E. Williams, Jr, and Aspen Specialty Insurance Company ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
M
2022 CA 12491
CONTI ENTERPRISES, INC.
PROVIDENCE/ GSE ASSOCIATES, LLC., ROBERT E. WILLIAMS, JR.
AND ASPEN SPECIALTY INSURANCE COMANY
Judgment rendered: OCI 3 0 2023
On Appeal from the
32" Judicial District Court
Terrebonne Parish
State of Louisiana
No. 174385
Judge Randall L. Bethancourt, Presiding
Stephen P. Hall Attorneys for Appellee/ Defendant
Phelps Dunbar, LLP XL Specialty Insurance Company
New Orleans, Louisiana
Adrian G. Nadeau Attorneys for Appellees/ Defendants
J. Weston Clark Hartman Engineering, Inc. and
Baton Rouge, Louisiana Jared Monceaux
Brian J. Marceaux Attorneys for Plaintiff/Appellant
Julius P. Hebert, Jr. Terrebonne Parish Consolidated
Government
Derick A. Bercegeay
Brianna Wilson Orgeron
Houma, Louisiana
BEFORE: THERIOT, HOLDRIDGE, AND HESTER, JJ.
Pesfe- r I COACkAr5
I
1 We note that 2022 -CA -1249, Conti Enterprises, Inc. vs. Providence/GSE Associates, LLC,
is consolidated with 2022 -CA -1248, Conti Enterprises, Inc. vs. Providence/ GSE Associates,
LLC, for oral argument and submission.
HOLDRIDGE, J.
In this appeal, Terrebonne Parish Consolidated Government ( TPCG) appeals
a trial court' s judgment granting a motion for summary judgment dismissing all of
TPCG' s claims against Hartman Engineering, Inc. and Jared Monceaux
sometimes collectively referred to as " Hartman"). We affirm.
BACKGROUND
This lawsuit arises out of a road construction project in Terrebonne Parish
commonly called the " Hollywood Road Widening Project" (" the Project"). On
April 21, 2015, Conti Enterprises, Inc. ( Conti), which served as the general
contractor on the Project, filed a lawsuit against Providence/ GSE Associates, LLC
Providence), Robert E. Williams, Jr., and Aspen Specialty Insurance Company,
Providence' s insurer. By amended petition filed on November 2, 2018, Conti
added TPCG and the Louisiana Department of Transportation ( DOTD) as
defendants in the litigation.
In the original and amending petitions, Conti alleged that TPCG entered into
a written contract with Providence to perform construction engineering and
inspection services, including construction administration, in connection with the
Project.
Conti further alleged that it based its bid price on the ability to construct
the Project in strict compliance with the plans, specifications,
and bidding
documents. Conti alleged that during construction, it became obvious that the
plans, specifications,
and bidding documents, including the portions designed,
issued, and let for bid by TPCG and DOTD, were inadequate and insufficient for
proper construction of the Project. Conti sought to recover all losses it claimed
were caused by the wrongful acts of the defendants in connection with the design
phase and construction administration of the Project, including all amounts for
2
additional time, effort, manpower, labor, equipment and money for which Conti
had not been paid, as well as extended overhead and home office expenses.
On May 14, 2020, TPCG filed a reconventional demand, cross- claim, and
third -party demand in which it made Hartman and its insurer, XL Specialty
Insurance Company ( XLSIC), third party defendants in the litigation.2 In the third -
party demand, TPCG alleged that Hartman contracted with TPCG on October 7,
1998, to prepare an environmental assessment and to prepare plans and
specifications for the roadway, including storm drains, associated with the Project.
TPCG alleged that the TPCG-Hartman contract required Hartman to defend and
indemnify TPCG and to maintain insurance for the Project, listing TPCG as an
additional insured. TPCG asserted that in the event it was found liable to Conti,
Hartman and its insurers were obligated to indemnify TPCG for any and all
damages cast against TPCG in the Conti lawsuit for all costs and expenses,
including attorney' s fees. More specifically, TPCG alleged that if Conti was able
to prove its allegations regarding the site conditions or defective roadway plans,
Hartman, through its contract with TPCG, was liable to TPCG for its negligence or
fault based upon Hartman' s numerous alleged breaches of the TPCG-Hartman
contract, including: preparing plans and specifications which contained errors and
omissions; deficient preparation of topological surveys, roadway plans, including
drainage specifications, environmental assessments and Project designs; and
Hartman' s deficient implementation of its scope of work associated with the
Project.
On January 6, 2022, Hartman filed a motion for summary judgment in which
it asserted that TPCG' s claims were barred by the five-year peremptive period set
forth in La. R.S. 9: 5607 for actions seeking damages against a professional
2
By letter dated January 2, 2019, TPCG tendered the defense and indemnity of the claims made
against it by Conti in the amended petition to XLSIC.
3
engineer. Hartman relied on La. R.S. 9: 5607( A)(3), which provides that the
peremptive period in a claim against an engineer that furnished services
preparatory to construction, but did not perform inspection of the work,
commences to run from the date the engineer has completed its services.
According to Hartman, the services it was contracted by TPCG to perform in
connection with the Project were completed when Hartman signed and sealed the
last revision to its final set of roadway plans on September 16, 2013. Hartman
urged that pursuant to La. R.S. 9: 5607( A)(3), all claims against Hartman related to
its services on the Project had to be brought no later than September 16, 2018.
Since TPCG' s third -party demand against Hartman was filed in May of 2020,
nearly two years after the five-year peremption period had expired. Hartman
argued that TPCG' s claims were perempted as a matter of law and should be
dismissed.
In opposition to the motion, TPCG insisted that the statutes pertaining to
public works projects undertaken by DOTD provide the exclusive time limitation
for all work arising out projects related to a DOTD contract. The provision relied
on by TPCG, La. R.S. 48: 251. 3, provides that any action arising out or related to a
DOTD contract or on a bond furnished by a contractor prescribes five years from
recordation of the acceptance of such contract. According to TPCG, the DOTD
prescription statutes applied to this case because the Project was let out by DOTD
on TPCG' s behalf, TPCG was required to follow the protocol set forth in the
DOTD statutes, Hartman' s work done on the Project undoubtedly arises out of and
is related to the DOTD Project, and Hartman provided design services, inspection
services, and
other preparatory services outside of design engineering in
connection with the Project. TPCG asserted that the five-year prescriptive period
on such actions commenced on the date of acceptance of the work by DOTD was
19
recorded. TPCG relied on evidence showing that on June 15, 2017, DOTD' s chief
engineer, Janice Williams, signed and approved the final acceptance of the Project
and recorded that acceptance with the clerk of court in Terrebonne Parish. On June
23, 2017, TPCG filed its final accepted completion of the Project. TPCG urged
that pursuant to the DOM statutes, the five-year prescriptive period began to run
on June 23, 2017, making its 2020 claims against Hartman timely.
Alternatively, TPCG maintained that if La. R.S. 9: 5607' s peremptive period
in actions against engineers provides the applicable time limitation in this case,
subsection ( A)( 1) governs its claims against Hartman, which provides the same
time period for claims against engineers as La. R.S. 48: 251. 3— five years from the
recordation date. Thus, TPCG posited that as a matter of law, it had five years
from the recordation of the acceptance of the Project by DOM to file its lawsuit
against Hartman, La. R.S. 9: 5607( A)(3) did not apply in this case, and Hartman
was not entitled to summary judgment dismissing TPCG' s claim.
On January 6, 2022, XLSIC filed a separate motion for summary judgment,
seeking dismissal of all claims against it as Hartman' s insurer. XLSIC argued in
its motion that there was nothing in either the TPCG-Hartman Contract or the
XLSIC insurance policy at issue which rendered TPCG an insured under that
policy. XLSIC further argued that TPCG' s claims on its alleged status as an
additional insured of XLSIC were perempted. Therefore, XLSIC urged the trial
court to grant its motion for summary judgment.
By judgment dated June 28, 2022, the trial court granted Hartman' s motion
for summary judgment, and in a second judgment signed on that same date, the
trial court granted XLSIC' s motion for summary judgment. TPCG filed separate
5
motions appealing both judgments.' TPCG' s appeal from the summary judgment
rendered in favor of XLSIC was docketed as 2022 -CA -1248, while the judgment
granting Hartman' s motion for summary judgment was docketed as 2022 -CA -
1249. In connection with both appeals, this court initially issued rules to show
cause orders as to whether the appeals should be dismissed. Thereafter, this court
maintained the appeals. Conti Enterprises, Inc. v. Providence/ GSE Associates,
LLC, 2022- 1248 ( La. App. 1 Cir. 4/ 17/ 23); Conti Enterprises, Inc. v.
Providence/ GSE Associates, LLC, 2022- 1249 ( La. App. 1 Cir. 4/ 17/ 23). The
appeals were later consolidated for oral argument and submission by this court.
SUMMARY JUDGMENT
After an opportunity for adequate discovery, summary judgment shall be
granted if the motion, memorandum, and supporting documents show that there is
no genuine issue of material fact and that the mover is entitled to judgment as a
matter of law. La. C. C. P. art. 966( A)(3). Appellate courts review summary
judgments de novo, using the same criteria that govern the trial court' s
consideration of whether summary judgment is appropriate, i.e., whether there is
any genuine issue of material fact and whether the mover is entitled to judgment as
a matter of law. See La. C. C. P. art. 966( A)(3); Turner v. Rabalais, 2017- 0741
La. App. 1 Cir. 12/ 21/ 17), 240 So. 3d 251, 255, writ denied, 2018- 0123 ( La.
3/ 9/ 18), 237 So. 3d 1193.
A genuine issue is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, summary judgment is
appropriate. Collins v. Franciscan Missionaries of Our Lady Health System,
Inc., 2019- 0577 ( La. App. 1 Cir. 2/ 21/ 20), 298 So.3d 191, 194- 95, writ denied,
3 We note that this court remanded this matter to the trial court, on a joint motion of parties, to
fix the decretal language in the judgment pursuant to La. C. C. P. art. 1918( A). The trial court
signed an amended judgment on March 16, 2023.
6
2020- 00480 { La. 6/ 22/ 20), 297 So. 2d 773. A fact is " material" when its existence
or non- existence may be essential to plaintiff' s cause of action under the applicable
theory of recovery. A material fact is one that would matter at a trial on the
merits. Any doubt as to a dispute regarding a material issue of fact must be
resolved against granting the motion and in favor of trial on the merits. Collins,
298 So. 2d at 195.
The Code of Civil Procedure places the burden of proof on the party filing
the motion for summary judgment. La. C. C. P. art. 966( D)( 1). The mover can meet
this burden by filing supporting documentary evidence, and the mover' s supporting
documents must prove the essential facts to carry the mover' s burden. Thus, in
deciding a motion for summary judgment, it must first be determined whether the
supporting documents presented by the mover are sufficient to resolve all material
factual issues. Jenkins v. Hernandez, 2019- 0874 ( La. App. I Cir. 6/ 3/ 20), 305
So. 3d 365, 370- 71, writ denied, 2020- 00835 ( La. 10/ 20/ 20), 303 So. 3d 315.
Once the mover demonstrates the absence of factual support for one or more
elements essential to the adverse party' s claim, the burden shifts to the non-moving
party to produce factual support, through the use of proper documentary evidence
attached to its opposition, which establishes the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.
Jenkins, 305 So. 3d at 371. If the non-moving party fails to prove the existence of
a genuine issue of material fact, La. C. C. P. art. 966( D)( 1) mandates the granting of
the motion for summary judgment. Id.
Applicable Time Period
asserts that the five-year peremptive period provided for in La. R.S.
9: 5607( A)(3) applies to TPCG' s claims. Louisiana Revised Statutes 9: 5607
provides, in pertinent part, as follows:
7
A. No action for damages against any professional engineer ...
whether based upon tort, or breach of contract, or otherwise arising
out of an engagement to provide any manner of moveable or
immovable planning, construction, design, or building, which may
include but is not limited to consultation, planning, designs,
drawings, specifications, investigation, evaluation, measuring, or
administration related to any building, construction, demolition, or
work, shall be brought unless filed in a court of competent
jurisdiction and proper venue at the latest within five years from:
1) The date of registry in the mortgage office of acceptance of the
work by owner; or
2) The date the owner has occupied or taken possession of the
improvement, in whole or in part, if no such acceptance is
recorded; or
3) The date the person furnishing such services has completed the
services with regard to actions against that person, if the person
performing or furnishing the services, as described herein, does
not render the services preparatory to construction, or if the
person furnishes such services preparatory to construction but the
person furnishing such services does not perform any inspection
of the work.
C. The five-year period of limitation provided for in Subsection A of
this Section is a peremptive period within the meaning of Civil
Code Article 3458 and in accordance with Civil Code Article
3461, may not be renounced, interrupted, or suspended.
Hartman contends that because it performed work only preparatory to construction
and did not provide inspection of the work or any engineering services during the
construction of the Project, under the plain language of La. R.S. 9: 5607( A)(3), the
five-year peremptive period began to run on the date it completed its services
under its contract with TPCG. Thus, Hartman maintains, any claims TPCG may
have had related to its engineering services were perempted five years after
Hartman completed its services under the TPCG contract. This occurred when
Hartman signed and sealed the last revision to its final set of roadway plans on
September 16, 2013.
In support of the motion, Hartman submitted Mr. Monceaux' s December 22,
2021 affidavit, together with numerous exhibits attached thereto; Conti' s petition
for damages and amended petition; correspondence between TPCG' s attorney and
Hartman' s attorney'; TPCG' s cross claim and amended cross claims; and
Hartman' s discovery responses.
In his affidavit, Mr. Monceaux, an engineer and owner of Hartman
Engineering, who was familiar with Hartman' s scope of work on the Project, and
who stamped and sealed Hartman' s final plan revisions, made the following
attestations: On October 71 1998, Hartman entered into a " Contract for
Engineering Services" with TPCG, whereby Hartman agreed to provide
Environmental Assessment ( EA) and related engineering services to TPCG for the
Project. On June 5, 2001, Hartman and TPCG entered into a supplemental
agreement to the contract wherein the parties agreed to modify the payment clause
of the contract, that Hartman had satisfactorily completed the EA services, and that
Hartman would prepare preliminary plans for the Project. On October 4, 2004, the
contract was again supplemented to reflect the parties' agreement that Hartman
would prepare revisions to plans developed and perform related survey services.
The ," public liability" provisions of the contract were replaced with "
indemnity"
and " errors and omissions" provisions.
Continuing, Mr. Monceaux attested that: On October 12, 2005, Hartman
and TCPG entered into a third supplemental agreement to the contract, in which
the parties agreed that Hartman' s scope of work would be modified to include the
preparation of a right-of-way map and final plans for the construction of the
roadway for the Project and to replace the " public liability" provisions with new
indemnity" and " errors and omissions" provisions. On May 30, 2013, Hartman
and TPCG entered into a fourth supplemental agreement to the contract in which
4 We note that the correspondence, which was not attached to an affidavit, is not competent
summary judgment evidence. See La. C. C. P. art. 966( A)(4) and comment ( c). Additionally, it is
noted that the discovery attached to the motion for summary judgment was not answered under
oath.
9
they agreed that Hartman would update the roadway plans previously prepared to
current DOTD specifications, add driveways, revise quantities, and revise other
associated items.
According to Mr. Monceaux, pursuant to the contract, as amended and
supplemented, Hartman submitted its stamped and sealed set of final roadway
plans for construction of the Project on July 15, 2013. Hartman submitted its final
invoices to TPCG for payment on August 6t' and 7t", 2013, which were paid in full
by TPCG by check dated August 26, 2013. Thereafter, at the request of DOTD' s
engineer for the Project, Mr. Monceaux made limited revisions to the plans to
address changes for the final bid set of documents, stamped the revised plan sheets
on September 16, 2013, and issued them to DOTD. This was the last revision of
the plans Hartman prepared under its contract with TPCG, and with this final
revision, Hartman completed its services under its contract with TPCG as amended
and supplemented.
After Hartman completed its work under TPCG contract, Mr. Monceaux
responded to emails from DOTD' s engineer and a contractor exchanged from
September 2013 through February of 2014 relative to questions arising during the
bidding process. However, Mr. Monceaux advised the DOTD engineer that
answering contractor questions was not included within the contract as amended.
Mr. Monceaux' s request to be compensated for answering such questions was
denied. Hartman responded to emails from DOTD and a contractor to direct
attention for ease of reference to a special provision Hartman had included in its
final plans and to provide native design files for the contractor' s convenience.
Hartman was not paid for these email communications as they were provided as a
matter of courtesy.
10
Mr. Monceaux acknowledged that in 2014, he was retained by TPCG as an
expert witness relative to an expropriation complaint by Henry Richard, who
owned property along Hollywood Road. He stated his scope as an expert witness
was merely to review documents and provide opinions and that neither he nor
Hartman performed any design services in conjunction with the expert witness
engagement.
Finally, Mr. Monceaux made the following attestations: The TPCG contract,
as amended and supplemented, did not include an agreement for Hartman to
provide any construction and
engineering inspection services, construction
administrative services, or any other construction phase services; Hartman
submitted a proposal to TPCG to be one of the engineering firms considered for
those services for the Project; however, Hartman' s proposal was not accepted by
TPCG; Hartman did not perform any construction phase services in connection
with the Project and Hartman was not asked to and did not observe or inspect any
work on the Project.
Additional evidence submitted by Hartman in support of its motion for
summary judgment corroborating Mr. Monceaux' s attestations included the TPCG-
Hartman contract, executed on October 7, 1988, setting forth scope of Hartman' s
services to include: Preliminary Engineering, Right of Way Survey and Maps, and
Final Plans. On December 9, 1998, TPCG issued a notice to proceed on the
contract. On June 5, 2001, the contract was amended to provide to include all
engineering services required for the completion of the preliminary plans and
estimates for the Project and to set forth a schedule for the completion of
Hartman' s work. The contract was again amended on October 5, 2004, to include
all engineering services required to revise the preliminary plans due to roadway
changes since the original survey was acquired and to set forth deadlines for the
11
completion of these services. On October 12, 2005, another amendment was
executed to include all necessary right of way map preparation and the
of final plans for the Project. The contract was further amended on
May 30, 20:13, to expand the scope of the services to include all engineering
services to revise the construction plans, including bringing them up to current
DOTD specifications and adding driveways.
The final plans were recommended and approved by Hartman and TPCG on
July 15, 2013. DOTD approved the plans on August 9, 2013. On August 5, 2013,
Hartman submitted an invoice to TPCG in the amount of $10, 435. 27 for services
rendered from July 1, 2013 through July 31, 2013. On August 7, 2013, Hartman
submitted an invoice to TPCS in the amount of $20, 134. 93 for services rendered
from April 23, 2009 through July 31, 2013. On August 26, 2013, TPCG issued
Hartman a check in the amount of $30, 570. 00.
Thereafter, the evidence shows that on September 25, 2013, DOTD' s project
engineer sent Hartman an email regarding a revision to estimated quantities. The
engineer advised other than changing the date of the revision to September 30,
2013, the plan sheets were " good to go." DOTD' s engineer stated that he would
change the date and planned to readvertise the Project on October 2" d. Another
email from DOTD' s project engineer to Hartman on September 19, 2013, stated
that DOTD had received a number of questions from contractors on the
construction plans and specifications; he advised that the Project would have to be
withdrawn from letting, and the next possible letting would be October 23, 2013, if
the plans and specifications were complete by the close of business on September
30, 2013. Hartman responded on September 19, 2013, to inquire whether DOTD
paid for addressing contractor questions during the bidding phase. Hartman sent
an email later that day requesting that DOTD' s engineer send him the applicable
12
contractor questions; DOTD' s engineer responded that the main question was
temporary asphalt, which Hartman addressed, and the remainder of the questions
were regarding the utility plans. Email correspondence exchanged between
Hartman and others in November of 2013 were also attached; in one of the emails,
Hartman was asked for a contract expiration date for the Project, and the sender
was instructed to " close it out" as they were " 100 percent complete." In February
of 2014, various emails were exchanged between Hartman and TPCG regarding a
special provision drafted by Hartman, and a request for a release of the CAD
drawing on the Project. Finally, in August of 2017, DOTD requested Hartman' s
design files to update its inventory files at it had just received final acceptance of
the Project.
In further support of the motion, Hartman submitted its responses to TPCG' s
interrogatories, in which it asserted that it only provided professional engineering
services in preparation for construction of the Project. Hartman denied providing
any engineering services pursuant to any written contract with DOTD or Conti,
denied providing any services whatsoever during the construction phase of the
Project, and denied having ever been contracted relative to any problems during
the construction phase of the Project. Hartman acknowledged that at request of
DOTD, Hartman made limited revisions to plan sheets to address changes
requested by DOTD' s engineer, issued the revision to DOTD on September 16,
2013, and the September 16, 2013 revisions were the last revisions Hartman made
to its plans under its contract with TPCG.
In opposition to the motion for summary judgment, TPCG insists that La.
R. S. 9: 5607( A)(3) does not apply to its claims against the Hartman. Instead,
TPCG maintained that pursuant to La. R.S. 28: 251. 3 or La. R.S. 9: 5607( A)( 1), it
13
had five years from the date the final acceptance of the Project was filed and
recorded on June 23, 2017. 5
After Hartman' s motion for summary judgment was filed, the deposition of
Mr. Monceaux was taken in which he was thoroughly questioned on the statements
made in his affidavit. His deposition was an exhibit to TPCG' s opposition to
Hartman' s motion for summary judgment. The deposition testimony of Mr.
Monceaux did not establish that the inspection or any other work was done by
Hartman through January 2015.
Louisiana Revised Statutes 48: 250 et seq., set forth the laws specially
governing DOTD contracts for public works and all contracts for the construction
of public works let by DOTD on behalf of political subdivisions. The provision
relied on by TPCG, La. R.S. 48: 251. 3, entitled, " Prescription; claims by
contractors; surety," provides, in part:
Any action arising out of or related to a department contract or on the
bond furnished by a contractor shall prescribe five years from
recordation of the acceptance of such contract or of notice of default
of the contractor or other termination of the contract, whichever
occurs first.
TPCG urged that this provision, which governs DOTD-related contracts, such as
contracts for construction and engineering on public works projects, applies to its
claims against Hartman. TPCG insisted that its evidence showed that the TPCG-
Hartman contracts arose out of and were related to the DOTD contract, focusing on
the following: DOTD bid and let out the contract for the Project; DOTD selected
engineers, prepared the bid documents, selected the contractor; prepared all
contracts for the Project, including the TPCG-Hartman contract, which contains a
DOTD number; DOTD paid 80% of the cost for the Project; DOTD selected
Hartman and Providence to perform engineering services, which then contracted
5 DOTD' s engineer signed the final acceptance of the Project on June 15, 2017; TPCG filed the
final acceptance in the mortgage records on June 23, 2017.
14
with TPCG for those services. TPCG also claims that its evidence shows that
Hartman' s work was more than preparatory and involved inspection work through
2015. In support, TPCG relies on the fact that Mr. Monceaux testified on behalf of
TPCG on January 28, 2015, in a lawsuit brought by a property owner seeking
damages against TPCG. According to TPCG, this evidence proves that Hartman
provided inspection services by its involvement in the design issues that arose
during the construction of the Project through January 28, 2015, rendering La. R.S.
9: 5607( A)(3) inapplicable.
We disagree. TPCG failed to show how Mr. Monceaux' s retention by
TPCG to testify in a lawsuit by a property owner on Hollywood Road equates to
Hartman' s providing inspection and other work on the Project through January of
2015. Mr. Monceaux was hired by TPCG to serve as an expert witness in a lawsuit
by a property owner who resided on Hollywood Road. Mr. Monceaux attested that
his services in connection with the lawsuit did not involve any design work. TPCG
failed to introduce any contract for engineering services with Mr. Monceaux from
2015 and it has not supported its claim that Mr. Monceaux' s testimony in a lawsuit
related to the Project constitutes inspection of the work so as to bring its claims
outside of the scope of La. R.S. 9: 5607( A)(3). 6
Furthermore, we find no merit in TPCG' s argument that the DOTD statutes
pertaining to public works projects override the specific peremptive period
provided by La. R.S. 9: 5607. It is a well-settled canon of statutory construction
that the more specific statute controls over a general statute. Sharp v. Sharp, 939
6 In an affidavit submitted by TPCG in support of its opposition to the motion, Al Levron, who
was TPCG' s parish manager who worked closely on, supervised, and was intimately involved
with the Project, attested that " Hartman ... performed services outside the scope of design work
for the Project," citing Hartman' s environmental, survey, and title work for the Project;
Hartman' s handling of issues involving citizens disputes; and Hartman' s exchange of
information with contractors during the bidding phase of the Project. However, TPCG failed to
show how any of these actions were unrelated to the engineering services Hartman was hired to
perform on behalf of TPCG or occurred within the 5 -year peremptive period set forth in La. R.S.
9: 5706( A)( 3).
15
So.2d 418, 421 ( La. App. I Cir. 6/ 28/ 06), writ denied, 2006- 1877 ( La. 11/ 17/ 06),
842 So. 2d 533. Louisiana Revised Statutes 9: 5607 applies to all actions for
damages against a professional engineer arising out of an engagement to provide
design services related to any manner of moveable or immovable planning,
design, or building, including, but not limited to, consultation,
planning, designs, drawings, specification, investigation, evaluation measuring, or
administration.
It contains three factual circumstances that trigger the running of
the peremptive period: ( 1) the date of registry in the mortgage office of acceptance
of the work by the owner; ( 2) the date the owner has occupied or taken possession
of the improvement, if no such acceptance is recorded; and ( 3) the date the
engineer rendering services has completed the services, if the engineer does not
render services preparatory to construction or if the engineer furnishes services
preparatory to construction but does not perform any inspection of the work.
These factual triggers clearly contemplate that work performed by professional
engineers in connection with public works projects fall within the scope of La. R.S.
9: 5607.
We are mindful of the difference between prescription and peremption.
Although related, the two are not the same and should not be confused; what is true
of prescription may not be true of peremption. Peremption differs from
prescription in two respects: ( 1) the expiration of the peremptive time period
destroys the cause of action itself-,and ( 2) nothing may interfere with the running
of a peremptive time period. Naghi v. Brener, 2008- 2527 ( La. 6/ 26/ 09), 17 So. 3d
919, 926. Statutes of limitation are exclusively a legislative prerogative. In setting
the five-year: peremptive period under La. R.S. 9: 5607( A)(3) for claims against a
professional engineer, the legislature determined that after five years, no cause of
action can arise, regardless of the claim. See Reeder v. North, 97- 0239 ( La.
16
10/ 21/ 97), 701 So. 2d 1291, 1296. Stated differently, after the five-year peremptive
period expires as mandated by La. R.S. 9: 5607, the cause of action no longer
exists; it is ' lost. See Regions Bank v. Eymard, 2021- 0926 ( La. App. 1 Cir.
5/ 23/ 22), 342 So.3d 908, 919, writ denied, 2022- 00977 ( La. 10/ 18/ 22), 348 So. 3d
731. Thus, we find that although the DOTD statute, La. R.S. 48: 251. 3, applies to
this case, the more specific statute, La. R.S. 9: 5607, is applicable and creates a
peremptive period that TPCG had five years from September 16, 2013 to file an
action for damages against Hartman. After September 16, 2018, the peremptive
period had lapsed and any cause of action against Hartman for engineering services
no longer existed. Therefore, La. R.S. 48: 251. 3 only applies if a cause of action
against an engineering service exists. In this case, after September 16, 2018, no
cause of action existed against Hartman or Mr. Monceaux.
Hartman offered evidence on the motion demonstrating that the services it
performed on behalf of TPCG were preparatory to construction of the Project.
Hartman was not contracted by TPCG to provide construction engineering and
inspection services, construction administration services, or any other construction
phase engineering services. Instead, another engineering firm was engaged by
TPCG to perform the construction phase engineering and inspection services.
Hartman' s evidence showed that it did not inspect the work on the Project. The
evidence offered by TPCG in opposition to the motion failed to create a genuine
issue of fact as to whether Hartman provided services falling outside the purview
of La. R. S. 95067(A)(3).
Accordingly, we hold that in this case, the five-year peremptive period
began to run on the date Hartman completed the services it was contracted to
provide to TPCG. Hartman showed that its services under the TPCG contract, as
amended and revised, were completed when Hartman signed and sealed the last
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revision of the final set of roadway plans on September 16, 2013. TPCG had until
September 16, 2018 to file an action for damages against Hartman. Because
TPCG' s claim against Hartman was not filed until May of 2020, any action it may
have had against Hartman arising out of the design services provided by Hartman
was extinguished.
The trial court correctly granted summary judgment dismissing
TPCG' s claims as those claims were perempted under La. R.S. 9: 5607( A)(3).'
CONCLUSION
For the foregoing reasons, the trial court' s judgment granting summary
judgment in favor of Hartman Engineering, Inc. and Jared Monceaux is affirmed.
Costs of this appeal, docketed as 2022 CA 1249, in the amount of $23, 728. 50, are
assessed to Terrebonne Parish Consolidated Government.
AFFIRMED.
7 We reject TPCG' s argument that its claims against Hartman should " relate back" to the date the
original lawsuit was filed by Conti in April of 2015. There is nothing to relate back since the
cause of action does not exist.
See Stewart v. Continental Cas. Co., Inc., 2011- 0505 ( La. App.
1 Cir. 11/ 9! 11), 79 So. 3d 1047, 1049, writ denied, 2011- 2721 ( La. 2/ 17/ 12), 82 So. 3d 285.
Under La. R.S. 9: 5607( C), the five-year peremptive period may not be interrupted or suspended.
Furthermore, La. C.C.P. art. 1041, which provides for a 90 -day grace period for filing incidental
demands, only applies if the incidental demand was filed within 90 days of the date of service of
the main demand.
TPCG did not file its claims against Hartman until 2020, long after the
lawsuit was filed by Conti. TPCG was added to the suit by Conti on October 22, 2018, and
TPCG was served with Conti' s suit on November 8, 2018. Unfortunately, when TPCG was
sued, its claim against Hartman and Mr. Monceaux was perempted and no longer existed.
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