Law Enforcement District of Jefferson Parish Versus Mapp Construction, LLC, Abc Insurance Company, Travelers Casualty & Surety Company, Sizeler, Thompson, Brown Artchitects Project Design Group, LLC and the Xyz Insurance Company ( 2020 )

LAW ENFORCEMENT DISTRICT OF NO. 19-CA-543
JEFFERSON PARISH
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
MAPP CONSTRUCTION, LLC, ET AL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 749-646, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
May 29, 2020
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Hans J. Liljeberg
AFFIRMED
JGG
RAC
HJL
COUNSEL FOR DEFENDANT/APPELLANT,
G. M. HORNE, LLC
Rene S. Paysse, Jr.
Darren P. Tyus
COUNSEL FOR DEFENDANT/APPELLEE,
CENTRIA SERVICES GROUP, LLC
Michael M. Meunier
Timothy R. McGibboney
James A. Collura, Jr.
Justin Scott
GRAVOIS, J.
In this appeal, appellant, third-party plaintiff G.M. Horne Commercial and
Industrial, LLC, argues that the trial court erred in granting Centria Services
Group, LLC’s peremptory exception of peremption pursuant to La. R.S. 9:2772,
dismissing Horne’s third-party demand for indemnity against Centria with
prejudice. Horne argues that the trial court erred in categorizing the contract
between the parties as a construction contract, subject to the five-year peremptive
period found in La. R.S. 9:2772, rather than a sales contract. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
This matter arises out of a 2009 construction contract between the Law
Enforcement District of Jefferson Parish (“the District”), as owner, and MAPP
Construction, LLC, as contractor, for construction of the Jefferson Parish Sheriff’s
Office Forensic Crime Laboratory building. To accomplish part of said
construction, MAPP entered into a subcontract with Horne to supply and install the
“Centria Formawall Dimension System”1 for the exterior walls of the building,
along with all of the coordination drawings and shop drawings associated
therewith. Horne, a dealer in Centria products, in turn contracted directly with
Centria to furnish materials, product application drawings, and delivery of an
insulated metal panel system to be manufactured by Centria and installed on the
project by a separate contractor.
The laboratory building’s construction was accepted by the District as
substantially complete on September 23, 2010, as evidenced by a Certificate of
Substantial Completion registered in the mortgage office of Jefferson Parish on
October 1, 2010. When the laboratory building experienced substantial external
1
The record reflects that the “Centria Formawall Dimension System” is a patented system.
19-CA-543 1
water intrusion in 2012 following Hurricane Isaac, MAPP made repairs that were
later deemed to be insufficient and/or ineffective. The building thereafter
continued to experience water intrusion and leakage, ultimately leading to this suit
by the District against MAPP and others for breach of contract, filed on May 13,
2015. In turn, on June 12, 2015, MAPP filed a third-party demand against Horne,
appellant herein, and others, alleging that Horne is obligated to fully indemnify and
reimburse MAPP if and to the extent that the District proves the existence of
defects or deficiencies in any of the materials, work, or performance of Horne on
the basis of the allegations set forth in the District’s petition and for which MAPP
is held liable to the District.
On November 13, 2015, Horne filed a third-party demand against Centria,
alleging that Centria was legally obligated to fully indemnify and reimburse Horne
“[i]f, and to the extent that [the District] and/or [MAPP] prove the existence of any
defects or deficiencies with respect to [Horne’s] performance of its contractual
obligations to provide the insulated metal system manufactured by Centria and
installed on the Project by a separate contractor, and for which [Horne] is held
liable, ... .”
In due course, on December 10, 2018, Centria filed a peremptory exception
of peremption, arguing that Horne’s third-party demand for indemnification, filed
on November 13, 2015, was perempted under La. R.S. 9:2772, having been filed
more than five years after the filing of the Certificate of Substantial Completion in
the mortgage office of Jefferson Parish on October 1, 2010.
Horne opposed the exception, arguing that the contract between the parties
was one of sale, rather than one of construction, and thus the contract was not
subject to the five-year peremptive period found in La. R.S. 9:2772. Multiple reply
memoranda and sur-reply memoranda were also filed. The exception was heard on
May 22, 2019, after which the parties filed post-trial memoranda. The trial court
19-CA-543 2
ultimately rendered judgment with reasons on July 31, 2019, granting Centria’s
exception and dismissing Horne’s third-party demand against Centria with
prejudice. This timely appeal followed.
On appeal, Horne argues that the trial court erred in finding that the contract
between Horne and Centria was a construction contract, rather than a sales
contract, thereby subjecting the contract to the five-year peremptive period found
in La. R.S. 9:2772. Horne also argues that the trial court failed to view the facts in
a light most favorable to them, as required by law. Horne also seeks a de novo
review on appeal. For the following reasons, we affirm.
ANALYSIS2
Standard of review
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. La. C.C. art. 3458. The function of the peremptory exception
is to have the plaintiff’s action declared legally nonexistent, or barred by effect of
law, and hence this exception tends to dismiss or defeat the action. La. C.C.P. art.
923. Peremption may not be renounced, interrupted, or suspended. La. C.C. art.
3461.
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.
Rando v. Anco Insulations Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065, 1083.
The standard of review of a trial court’s ruling on a peremptory exception of
prescription generally turns on whether evidence is introduced. DeFelice v.
Federated National Insurance Company, 18-374 (La. App. 5 Cir. 7/9/19), 279
2
Horne’s arguments on appeal are interrelated and therefore are addressed together.
19-CA-543 3
So.3d 422, 426 (citing Wells Fargo Financial Louisiana, Inc. v. Galloway, 17-413
(La. App. 4 Cir. 11/15/17), 231 So.3d 793, 800). When no evidence is introduced,
appellate courts review judgments sustaining an exception of prescription de novo,
accepting the facts alleged in the petition as true. Id. (citing Wells Fargo, 231
So.3d at 800; Lennie v. Exxon Mobil Corporation, 17-204 (La. App. 5 Cir.
6/27/18), 251 So.3d 637, 642, writ denied, 18-1435 (La. 11/20/18), 256 So.3d
994). Normally, when evidence is introduced at a hearing on an exception of
prescription, the trial court’s findings of fact are reviewed under the manifest error
standard. Id. (citing Wells Fargo, 231 So.3d at 800; Tenorio v. Exxon Mobil Corp.,
14-814 (La. App. 5 Cir. 4/15/15), 170 So.3d 269, 273, writ denied, 15-1145 (La.
9/18/15), 178 So.3d 149). However, when evidence is introduced but the case
involves only the determination of a legal issue, not a dispute regarding material
facts, an appellate court must review the issue de novo, giving no deference to the
trial court’s legal determination. Id. (citing Wells Fargo, 231 So.3d at 800; Cawley
v. National Fire & Marine Ins. Co., 10-2095 (La. App. 1 Cir. 5/6/11), 65 So.3d
235, 237).
At the hearing on the exception, Centria introduced both documentary and
testimonial evidence;3 Horne introduced documentary evidence, but did not
introduce any testimonial evidence. Although evidence was introduced at the
hearing, Horne asserts on appeal that the material facts in this case are not
disputed. Horne asserts that based on the undisputed material facts presented, its
contract with Centria is a sales contract, rather than a construction contract. Thus,
the standard of review herein should be de novo, rather than manifest error, and
this Court should give no deference to the trial court’s legal conclusion, citing
DeFelice v. Federated Nat’l Ins. Co., supra. Upon review, we agree. We find that
3
At the hearing, Centria introduced the deposition testimony of Robert Rutherford, its regional
distribution manager.
19-CA-543 4
there is no dispute between the parties as to the material facts giving rise to
Centria’s peremptory exception of peremption. Horne does not dispute the extent
of Centria’s actions in complying with its subcontract with Horne. The only issue
that must be resolved is whether the undisputed facts of the case clearly present a
contract that is governed by the peremptive period found in La. R.S. 9:2772, and
accordingly, whether the trial court properly granted Centria’s peremptory
exception of peremption. Our review of the trial court’s decision on the exception
will therefore be de novo.
Construction contract versus sales contract
On appeal, Horne argues that the trial court erred in finding that the contract
between Horne and Centria was a construction contract, rather than a sales
contract, thereby subjecting the contract to the five-year peremptive period found
in La. R.S. 9:2772.
The statute at issue in this case, La. R.S. 9:2772, provides, in pertinent part:
A. 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. (1) The causes which are perempted within the time described
above include any action:
19-CA-543 5
(a) For any deficiency in the performing or furnishing of land
surveying services, as such term is defined in R.S. 37:682,
including but not limited to those preparatory to construction
or in the design, planning, inspection, or observation of
construction, or in the construction of any improvement to
immovable property, including but not limited to any
services provided by a residential building contractor as
defined in R.S. 37:2150.1(9).
(b) For damage to property, movable or immovable, arising out
of any such deficiency.
***
(3) Except as otherwise provided in Subsection A of this Section,
this peremptive period shall extend to every demand, whether
brought by direct action or for contribution or indemnity or by
third-party practice, and whether brought by the owner or by
any other person.
***
(Emphasis added.)
In its extensive and detailed written reasons for judgment, the trial court
stated:
… [Centria] argues in its motion that [Horne’s] third-party
demand against Centria was untimely, pursuant to La. R.S. 9:2772,
which provides a five-year peremptive period for cases arising out of
construction contracts. The parties do not dispute that [Horne] did not
file its third-party demand until after the expiration of the five-year
peremptive period. The only issue for the Court to decide is whether
the five-year peremptive period applies in this case. This hinges on
whether the contract is a construction contract or a sales contract.
***
In support of its motion, Centria relies heavily on the testimony
of Robert Rutherford, Centria’s Regional Distribution Manager.
[MAPP] lodged an objection to Mr. Rutherford’s testimony on the
grounds that it was not based on personal knowledge and was
unqualified opinion testimony. This Court finds that the objection has
merit in regards to the unqualified opinion testimony and disregards
any opinion testimony made by Mr. Rutherford regarding legal
conclusions drawn. However, a large portion of his testimony was
based on his personal knowledge of this project.
Rutherford testified that Centria uses a team of engineers and
drafters to develop designs that suit the needs of each individual
project. The panels used on the Jefferson Parish Sheriff’s Office
Forensic Crime Laboratory were specifically designed and
manufactured for this building. The drawings created for this building
cannot be used on any other project, nor can the panels manufactured
19-CA-543 6
for this building be used on any other project. Centria’s Ex. 7, pp. 16-
17. Further, the materials were not manufactured in advance of this
project. Id. at p. 17.
Rutherford’s testimony demonstrated that significant custom
design went into the panels. Engineering services were rendered to
determine span and loading structural requirements of the project. Id.
at p. 24. Engineering calculations that determine the support spans
and the size and type of tube steels that will be required to hold the
load are unique to each project. Id. at pp. 25-27. Design and drafting
services were provided to determine the fit of the panels. Id. at p. 35.
The dimensions, including the length, width, and thickness of the
panels, are unique to this particular building. Id. at pp. 36-37. Both
the engineering calculations and panel dimensions are determined by
Centria’s team, not by the architect or building designers. Id. at pp.
38, 40, 164.
The Court notes that Centria published an extensive product
catalog showcasing numerous “standard” options for many aspects of
their products, which creates an impression that their products are not
customized. However, Rutherford explained that these catalogs are
marketing tools, aimed at individuals who are not panel experts, to
explain how the system works and what features and design options
are available. Centria’s Ex. 8, p. 34. The Court also notes that a
number of parts used to make up the panels were outsourced from
third parties. However, the Court finds the extent to which Centria
furnished the custom design, engineering, and planning for the panels
outweighs these other factors and renders this a contract to build.
For these reasons, the Court finds that the primary obligation in
the contract was an obligation “to do,” rather than an obligation “to
give.” As such, La. R.S. 9:2772 applies, rendering the filing of the
third party demand untimely. For these reasons, Centria’s exception
of peremption is granted, dismissing it from this suit with prejudice.
It is undisputed that Horne filed its third-party demand for indemnity against
Centria more than five years after the Certificate of Substantial Completion of the
subject project was filed in the mortgage records of Jefferson Parish by the
District.
La. R.S. 9:2772 applies only to contracts to build, and not contracts of sale.
DeWoody v. Citgo Petroleum Corp., 604 So.2d 92, 99 (La. App. 3rd Cir. 1992);
Poree v. Elite Elevator Services, Inc., 94-2575 (La. App. 4 Cir. 11/16/95), 665
So.2d 133, 135.
When the “words of a contract are clear, unambiguous, and lead to no absurd
consequences, we may not look beyond the contract language to determine the true
19-CA-543 7
intent of the parties.” ETI, Inc. v. Buck Steel, Inc., 16-0602 (La. App. 4 Cir.
2/1/17), 211 So.3d 439, 445, writ denied, 17-0396 (La. 4/13/17), 218 So.3d 626.
In this case, in its January 6, 2009 Quotation to Horne for the subject project
(which was later accepted and confirmed through a Purchase Order from Horne to
Centria dated February 26, 2009 and an Invoice from Centria to Horne dated April
16, 2010), Centria proposed “to furnish the material, product application drawings,
and delivery for the material requirements for the above project as specified in the
Contract Documents4 for a lump sum price of: $1,392,400.00 … .”5 Among other
terms and conditions, the Quotation called for Centria to provide the following
items for the District’s laboratory building (as per detailed specifications contained
in the nine-page Quotation):
 Formawall Panels, consisting of approximately 31,320 square feet of
“Formawall Dimension Series horizontal insulated metal wall panels;”
 Formavue Windows, consisting of approximately 2,710 square feet of
“CENTRIA’s fixed and thermally broken FV-400 HRS Thru-Tube
Window System;”
 Profiled Siding @ Fence, consisting of approximately 1,830 square feet
of “20 gage un-insulated BR5-36 horizontal metal siding;”
 Integrated C/S Sunshades, consisting of “Construction Specialties Model
DS100-3 Series Sunshade System;”
 Louvers, consisting of approximately 230 square feet of “Construction
Specialties Aluminum Louvers, Model DC-6174;” and
 Support Steel Framing System, consisting of “Vertical structural tubes
(6” x 2”) spaced a maximum of 6’-0” on center at the main field areas
4
The Contract Documents were identified in the Quotation as follows:
This proposal is based upon the following:
A. Drawings: See attached drawing list.
B. Specification Section: 07410 “Exterior Insulated Wall Systems” and 07620 “sheet
Metal Flashing & Trim” – no dates.
C. Addenda: Addendum #1 dated 12/2/08, Addendum #2 dated 12/5/08, Addendum #3
dated 12/10/08, Addendum #4 dated 12/19/08, Addendum #5 dated 12/30/08, and
Addendum #6 dated 1/5/09.
5
The Quotation did not include any prices per item, but rather only included a total price of all of
the items combined ($1,392,400.00, plus $25,000.00 added “to firm materials shipment to December 31,
2009”). The Invoice, which totaled $1,441,289.00, included total prices per individual item (including
“Engineering,” “Embeds,” “Extra Work,” and “Replacement DS Panels” as additional items), but did not
specifically break down the costs of labor and materials, respectively.
19-CA-543 8
and a maximum of 5’-0” on center at the corner areas to anchor the
Horizontal Formawall Panel/Formavue Window System.”
In his testimony, Mr. Rutherford stated that Centria’s contract on the
laboratory building at issue was on a lump sum basis, rather than on a unit price
basis. On lump sum contracts, the owner’s professional design team (architects
and engineers for the project) provide the plans and specifications that Centria
reviews, assesses, and applies its products to that design to determine whether its
products will work. Centria then does specific custom drawings based on the
architect and engineer plans to not only seek their approval of the layout of the
drawings and that Centria is meeting their requirements, but also to generate the
bill of materials that eventually goes into Centria’s machinery that creates the
product.
Mr. Rutherford stated that on lump sum contracts, the drawings from one
project cannot be used on another project, and likewise, the materials that are
produced for a lump sum project cannot be used on another project. As part of the
process, Centria also produces placement or installation drawings (“detailed to,
like, an eighth of an inch, so it has to be exact”) that cannot be used on another
project.6 Centria then manufactures the materials pursuant to the aforementioned
drawings. The manufacturing is specific to each project on a lump sum contract.
Centria does not manufacture the materials in advance in a lump sum project. Mr.
Rutherford specifically confirmed that Centria manufactured customized products
for this particular project.
Mr. Rutherford also confirmed that lump sum contracts include engineering
services, and that a “great deal of engineering” went into this particular project,
including the span and loading structural requirements of the project.7 Centria did
6
More than 100 pages of Centria’s detailed drawings for this particular project were introduced
into evidence at the hearing on the exception.
7
The Invoice from Centria to Horne introduced into evidence indicates that Centria billed Horne
a total of $113,000.00 for “Engineering.”
19-CA-543 9
engineering calculations that were custom for this project by determining the
support spans, which are always unique between each building. Mr. Rutherford
explained “[t]hat’s the heavy engineering on the front [end] to make sure every
part and piece is going to work, meet code, not fall off the building, keep
everybody safe and do its job.” The engineering work at issue was unique to this
particular project.
Mr. Rutherford also stated that the tube steel, insulated panels, and windows
were designed and manufactured specifically for this particular project. All
drawings, which were created by Centria’s drafting department, were unique to this
particular project. Also, all measurements were unique to this particular project.
None of these assertions made by Mr. Rutherford in his testimony were
disputed by Horne.
As this Court stated in Alonzo v. Chifici, 526 So.2d 237, 241 (La. App. 5th
Cir. 1988), writ denied, 527 So.2d 307 (La. 6/2/88) (citing Acadiana Health Club,
Inc. v. Hebert, 469 So.2d 1186, 1189 (La. App. 3rd Cir. 1985)):
“There are three major factors in determining whether a
contract is a contract of sale or a contract to build or to work by the
job. First, in a contract to build, the “purchaser” has some control
over the specifications of the object. Second, the negotiations in a
contract to build take place before the object is constructed. Lastly,
and most importantly, a building contract contemplates not only that
the builder will furnish the materials, but that he will also furnish his
skill and labor in order to build the desired object.” (Internal citations
omitted.)8
Considering the factors set forth in Alonzo, and interpreting and construing
the language contained in La. R.S. 9:2772 and in the above-noted contract
documents between Horne and Centria, and applying the undisputed facts present
in this case, upon de novo review, for the following reasons, we find no error in the
8
The Alonzo case did not concern the applicability of La. R.S. 9:2772, but rather focused, for
other reasons, on whether the contract between the parties was one “to build” or one of sale on an open
account (a contract to give). However, its analysis of the type of contract involved therein is relevant and
pertinent to the issues in this case.
19-CA-543 10
trial court’s legal conclusion that the contract between Horne and Centria was a
construction contract, i.e., a contract “to build,” rather than a contract “of sale.”
First, the ultimate “purchaser” (here, the District, through its architect), rather than
Centria, maintained overall control over the general specifications and construction
of the project. Second, the negotiations for the subject contract between Horne and
Centria took place well before the component parts for the subject building called
for in the contract were designed, built, and delivered by Centria. Lastly and
undoubtedly, the contract contemplated not only that Centria would furnish the
component parts for the subject building, but would also furnish its skill and labor
in order to manufacture and build the component parts to the detailed
specifications developed by Centria. Alonzo, supra.9
On appeal, Horne also argues that the trial court failed to view the facts in a
light most favorable to them, as required by law. We disagree. In its arguments,
Horne focuses extensively on the fact that the contract did not provide for Centria
to test or install the subject systems at the construction site, and that such
installation was performed by a third-party contractor. We find, however, that
Horne takes a much too narrow view of the main object of the contract: for Centria
to design, build, and deliver the component parts for the subject building called for
in the contract. As confirmed by the undisputed testimony of Mr. Rutherford, the
contract, despite not including a provision for Centria to perform the installation,
was no mere sale of stock building materials to be incorporated into a building by a
third party. Rather, the evidence clearly shows that the main object of the contract
was for Centria to design, build, and deliver the wall panel system, the window
9
Alonzo also briefly mentions the “value test” for determining whether a given contract is a
contract of sale or a construction contract. Alonzo, 526 So.2d at 241. Under the “value test,” the court
determines whether the labor expended in constructing the item, or the materials incorporated therein,
constitute the “principal value of the contract.” Id. Although Horne argues in brief that the “value test”
should be used herein, upon review, we find that, in light of the fact that the subject contract is on a lump
sum basis rather than on a unit price basis, the record lacks a sufficient specific breakdown of Centria’s
cost of labor and materials, respectively, in fulfilling the subject contract, thus preventing us from
applying the “value test” herein.
19-CA-543 11
system, and the structural support steel framing system that composed much of the
building’s structure, to the particular plans and detailed specifications developed
by Centria for this particular building.
The fact that Centria did not install the items it custom manufactured for this
project does not render this contract merely one “of sale.” Horne likens Centria’s
role in this case to “simply providing minimal design services,” such as in ETI, Inc.
v. Buck Steel, Inc., supra. ETI concerned interpretation of a contract between the
parties, which result would determine whether the plaintiff was entitled to certain
types of contractual damages. Id., 211 So.3d at 443. It did not concern the issue of
La. R.S. 9:2772’s peremption defense to the suit. Defendant Buck Steel was found
to be a vendor, not a contractor, based upon the interpretation of its contested
contract, which required Buck Steel to furnish a set of “shop drawings” and steel
parts which a third party would assemble into a building. Relying on Alonzo v.
Chifici, cited above, the court held that the contract between ETI and Buck Steel
was not a construction contract because it failed to contain any requirements that
the alleged builder, Buck Steel, would furnish skills and labor to actually build the
product. Id. at 445. The case further fails to describe the nature of the steel parts
Buck Steel was to supply. As previously found, the product that Centria contracted
to provide to Horne, the custom-designed wall, window, and support systems for
the laboratory building, including the engineered drawings associated therewith,
was considerably more specific than the “steel parts” and “shop drawings”
germane in ETI.
Horne also argues that the materials and processes used by Centria to make
these particular systems were “standard” ones used by Centria in every order it
receives. However, it is the actual design, construction, and providing of the
systems that is material to the contract, not the nature and substance of the raw
materials used in the construction thereof. This assertion is simply an attempt by
19-CA-543 12
Horne to downplay the fact that the finished systems manufactured by Centria for
the contract were not “stock” items, but rather were ordered by Horne to be
manufactured to the particular detailed specifications developed by Centria.
Horne also argues that La. R.S. 9:2772 was enacted only to protect
architects, contractors, and surveyors, not suppliers and manufacturers such as
Centria, citing Burmaster v. Gravity Drainage District No. 2 of St. Charles Parish,
366 So.2d 1381 (La. 1978). However, Burmaster, wherein the Supreme Court
considered a constitutional challenge to La. R.S. 9:2772 on the basis that it was a
“special” law creating a special privilege or immunity for architects and
contractors, drew a distinction between the former group on one hand, and owners,
lessors, or tenants on the other hand. In finding the law constitutional, the
Supreme Court found that there was “a valid distinction between persons
performing or furnishing the design, planning, supervision, inspection or
observation of construction or the construction of an improvement to immovable
property and a person in possession or control, as owner, lessor, tenant or
otherwise, of such improvement at the time of the incident giving rise to the cause
of action.” Id. at 1385. The Burmaster court found that it was reasonable that
those with access to and control of improvements to immovable property (owners,
lessors, or tenants) should not be accorded the protection of the peremptive period
established by La. R.S. 9:2772. Id. at 1385-86. Considering Burmaster, Centria is
clearly not an owner, lessor, tenant, or “otherwise” someone who maintained
control over their product after its incorporation into the immovable. Thus,
Burmaster does not stand for the position that an entity such as Centria may not
invoke the peremption found in the statute.
Moreover, it is significant that the statute in question does not use specific
characterizations such as “architect” or “contractor.” By its own terms, the statute
states that “no action … shall be brought against any person performing … the
19-CA-543 13
construction of immovables, or improvement to immovable property, … .”
(Emphasis added.) Clearly, because it designed and manufactured custom
components incorporated into an immovable, Centria is the type of entity
contemplated by La. R.S. 9:2772. This was also the conclusion of the court in the
similar case of Poree v. Elite Elevator Services, Inc., 98-0032 (La. App. 4 Cir.
4/8/98), 711 So.2d 816. In Poree, Dover Elevator Services, Inc. (“DES”) was the
designer of an elevator which was found to be an improvement and a component
part of a building. A third-party subcontractor installed and constructed the
elevator that became a part of the immovable property, in accordance with the
plans and specifications prepared by DES. Id. at 818. The court noted that
elevators are not a prepackaged, stock product, but are a construction involving
multiple components that are assembled into and made part of the building in
which they are installed. In Poree, the various parts of the elevator were shipped
to the installing contractor to be constructed into the building in accordance with
the design prepared by DES. Id. at 819. Significantly, DES was not involved with
the construction, installation, or inspection of the elevator, and provided only its
design and engineering. Nevertheless, the court found that DES fell within the
ambit of La. R.S. 9:2772’s prescriptive period and affirmed the trial court’s
judgment granting DES’s exception and motion for summary judgment. Id.
In sum, upon de novo review, for the foregoing reasons, based on the
undisputed facts presented and the applicable law, we find no error in the trial
court’s legal conclusion that the contract between Horne and Centria was a
construction contract, i.e., a contract “to build,” rather than a contract “of sale,”
and thus, the five-year peremptive period found in La. R.S. 9:2772 is applicable
thereto. Accordingly, the trial court did not err in granting Centria’s peremptory
exception of peremption.
19-CA-543 14
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment in favor of
Centria Services Group, LLC, and against G.M. Horne Commercial and Industrial,
LLC, dismissing Horne’s third-party demand for indemnity against Centria as
perempted under La. R.S. 9:2772 with prejudice.
AFFIRMED
19-CA-543 15
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-543
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
CHRISTOPHER K. TANKERSLEY (APPELLEE) DENNIS J. PHAYER (APPELLEE) RENE S. PAYSSE, JR. (APPELLANT)
ROBERT I. SIEGEL (APPELLEE) TIMOTHY R. MCGIBBONEY (APPELLEE) MICHAEL M. MEUNIER (APPELLEE)
ELLIOT W. SCHARFENBERG (APPELLEE) DAVID J. KREBS (APPELLEE)
MAILED
CHRISTOPHER R. TESKE (APPELLEE) JOHN G. YADAMEC (APPELLEE) ELTON F. DUNCAN, III (APPELLEE)
ATTORNEY AT LAW DANIEL M. REDMANN (APPELLEE) MICHAEL T. WAWRZYCKI (APPELLEE)
1100 POYDRAS STREET ATTORNEY AT LAW ATTORNEY AT LAW
SUITE 1800 3838 N. CAUSEWAY BOULEVARD 400 POYDRAS STREET
NEW ORLEANS, LA 70163 SUITE 2900 SUITE 1200
METAIRIE, LA 70002 NEW ORLEANS, LA 70130
BRETT M. BOLLINGER (APPELLEE)
L. PETER ENGLANDE (APPELLEE) DARREN P. TYUS (APPELLANT) MATTHEW K. BROWN (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW
406 NORTH FLORIDA STREET 701 POYDRAS STREET 909 POYDRAS STREET
SUITE 2 SUITE 4700 SUITE 2600
COVINGTON, LA 70433 NEW ORLEANS, LA 70139 NEW ORLEANS, LA 70112