Jeanes v. McBride

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

JANET JEANES, CIVIL ACTION

Plaintiff

VERSUS NO. 16-1259

GREG MCBRIDE, ET AL., SECTION: “E” (4)

Defendants

ORDER AND REASONS

Before the Court is a motion for partial summary judgmentfiled by Plaintiff Janet

Jeanes1 and a motion for summary judgment filed by Defendant Greg McBride.2 The

motions are opposed.3For the following reasons, the CourtGRANTSJeanes’ motion for

partial summary judgment and DENIES McBride’smotionfor 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

Buildingwas intended to include space for her horses and living quarters for herself.7She

alleges that, although she and McBride agreed McBride would not construct the living

1R. Doc. 112.

2R. Doc. 114.

3R. Docs. 127, 141.

4R. Doc. 147. The motion is opposed. R. Doc. 165.

5R. Doc. 174 at 8, ¶ 7(1) (uncontested material facts in pretrial order).

6Id.at 9, ¶ 7(2).

7R. Doc. 141-2 at 1–2, ¶¶ 1–3.

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”).9The materials and plans for theroof of theBuilding

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 propertyon which the Building is located.13Jeanes 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

8Id.at 2, ¶ 4.

9R. Doc. 174at ¶¶ 7(2), (3). The proposal is on the record at R. Doc. 112-3.

10Id.at ¶¶ 7(6), (7).

11Id.at ¶ 7(8).

12R. Doc. 114-3 at 3, ¶ 15.

13R. Doc. 174 at 9, ¶ 7(9).

14R. Doc. 141-2 at 7–8, ¶¶ 41–42.

15Id.at 8, ¶ 44.

16Id.at 9, ¶ 51.

17R. Doc. 1.

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”)18against all Defendants, and (5) successor liability against Metal Buildings.19

The claims against all Defendants but McBride have been dismissed.20The claims against

McBride areforbreach 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, McBrideargues 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) thebreach 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 Procedureand 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

18LA.REV.STAT.§ 51:1401 et seq.

19R. Docs. 1, 35.

20 R. Docs. 55 (dismissing claims against S&S without prejudice), 67 (dismissing claims against Metal

Buildings without prejudice), 78 (dismissing claims against S&S with prejudice), 84 (dismissing claims

against Metal Buildings with prejudice), 160 (notice of settlement of claims against Roy Bergis Smith and

E. Smith Plumbing Service, Inc.).

21R. Doc. 1.

22R. Docs. 112, 114.

23R. Doc. 112-1.

24R. Doc. 114-1 at 11–15.

25Id.at 15–24.

26R. Docs. 127, 141.

On May 9, 2019, Jeanes filed a motion in limine to exclude evidence relating to

McBride’s contractor immunity defense.27McBride opposes the motion.28The Court will

address thisargumentin 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

27R. Doc. 147.

28R. Doc. 165.

29FED.R.CIV.P.56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

30DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

31Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).

32Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

33Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).

34Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.

v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).

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.”38Under either scenario, the burden then shifts back to the movant to demonstrate

the inadequacy of the evidence relied upon by the nonmovant.39If the movant meets this

35Celotex, 477 U.S. at 322–24.

36Id.at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)

(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at322–24, and

requiring the movants to submit affirmative evidence to negate an essential element of the nonmovant’s

claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential

element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in Celotex, and requiring

the movant to make an affirmative presentation to negate the nonmovant’s claims on summary judgment);

10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE

§2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and dissent both agreed as

to how the summary-judgment burden of proof operates; they disagreed as to how the standard was applied

to the facts of the case.” (internal citations omitted)).

37First Nat’l Bankof Ariz.v. Cities Service Co., 391 U.S. 253, 288–89 (1980);Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249–50 (1986).

38Celotex, 477 U.S.at 332–33.

39Id.

burden, “theburden 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

40Id. at 332–33, 333 n.3.

41Id.; see alsoFirst Nat’l Bank of Ariz., 391 U.S.at 289.

42 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d

909, 915–16 (5th Cir. 1992)).

43R. Doc. 114-1 at 11–15.

44LA.REV.STAT.§ 9:2772(H)(1).

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. § 9:2771and 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

fraudand, as a result,there are no genuine issuesof material fact, it is undisputedthat 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 summaryjudgment

on the claim.

A. Pleading Article 1953Fraud 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.48Shedoes not bring

a claim for delictual fraud under article 2315.49Article 1953 provides:

45R. Doc. 114-1 at 18–21.

46Id.at 18–19.

47Id.at 19–21.

48R. Doc. 1 at 10, ¶ 35; R. Doc. 141 at 30.

49“Delictual recovery for fraud is provided for in Article 2315, the general tort provision of the Civil Code.”

EquileaseCorp. v. Smith Int'l, Inc., 588 F.2d 919, 924n.4(5th Cir. 1979)Jeanes’ complaint cites only article

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

1953. R. Doc. 1 at 10, ¶ 35. Although the “jurisprudence surrounding fraud under Article 1847[, portions of

which were restated in articles 1953–58,] iscarried over to the delictual action,” Equilease, 588 F.2d at 924

n.4, Jeanes does not bring a claim for delictual fraud in her Complaint.

The Court notes that, in her opposition to McBride’s motion for summary judgment, Jeanes recites

the elements of delictual fraud. R. Doc. 141 at 30. She quotes Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d

1058 (5th Cir. 1993), which lists the elements of delictual fraud pursuant to Civil Code article 2315, not

contractual fraud pursuant to article 1953.Id.at 1068. However, she seeks rescission and attorneys’ fees,

R. Doc. 1 at 10, ¶ 38. These remedies are addressed in LA.CIV.CODEart. 1958, which deals with contractual

fraud, not delictual fraud. See also Douglas v. Renola Equity Fund II, LLC;, No. CIV.A. 13-6192, 2014 WL

1050851, at *4(E.D. La. Mar. 14, 2014)(Vance, J.) (distinguishing between contractual and delictual fraud);

Leon H. Rittenberg III,Louisiana’s Tenfold Approach to the Duty to Inform, 66 Tul. L. Rev. 151, 169–85

(1991)(explaining distinction between contractual and delictual fraud actions).

50LA.CIV.CODEart. 1953.

51Id.

52“French doctrine distinguishes between fraud committed to entice a party into a contract (dol) and fraud

in performing a contract (fraude).”LA.CIV.CODEart. 1958 cmt. (b). Article 1953, which is a restatement of

article 1847(6) of the 1870 Civil Code, see LA.CIV.CODE art. 1953 cmt. (a), addresses only dol, or fraud

committed to entice a party into a contract.

Fraud in performing a contract, is addressed in LA.CIV.CODEart. 1997, which addresses obligors

in bad faith. Seeid.cmt. (c) (“In the context of vices of consent, ‘fraud’means a stratagem or machination

to take unfair advantage of another party. ‘Bad faith’better conveys the intended meaning here, that is, an

intentional and malicious failure to perform.”). Article 1997 restates article 1934(2) of the 1870 Civil Code,

which addressed fraude. See LA.CIV.CODEart. 1958 cmt. (b) (“[F]raud in performing a contract (fraude).

. . is the kind of fraud contemplated in C.C. Art. 1934 (1870).”).

53 Shelton v. Standard/700 Assocs., 2001-0587 (La. 10/16/01), 798 So. 2d 60, 64; see also Petrohawk

Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380, 388 (5th Cir.2012).

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 thatthe 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 intentnottoperform. 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 intentionnotto performat the timethe 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 byRule9(b) is a dismissal on the pleadings for failure to

54LA.CIV.CODEart. 1957.

55Lomont v. Bennett, 2014-2483 (La. 6/30/15), 172 So. 3d 620, 629(citations omitted).

56 433 So. 2d 766, 767–68 (La. Ct. App.),writ denied,440 So. 2d 756 (La. 1983) (emphasis in original)

(citation omitted).

57Id.at 18–19.

58Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338–39 (5th Cir. 2008) (“[S]tate-law fraud claims are

subject to the pleading requirements of Rule 9(b).”) (citing Abrams v. Baker Hughes Inc.,292 F.3d 424,

430 (5th Cir.2002);Williams v. WMXTechnologies, Inc.,112 F.3d 175, 177 (5th Cir.1997)).

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 ofRule9(b) in great detail.”63The Fifth Circuit

“interpretsRule9(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, Rule9(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

59Shushany v. Allwaste, Inc., 992 F.2d 517, 520 (5th Cir. 1993)(citing Guidry v. Bank of LaPlace, 954 F.2d

278, 281 (5th Cir.1992)).

60KeyBank Nat. Ass'n v. Perkins Rowe Assocs., Inc., No. CIV.A. 09-497-JJB-SR, 2010 WL 4942206, at *2

(M.D. La. Nov. 30, 2010)(unpublished) (citing FED.R.CIV.P. 12(h)(2)(A)); see alsoC&C Inv. Properties,

L.L.C. v. Trustmark Nat'l Bank, 838 F.3d 655, 660 (5th Cir. 2016) (“[E]ven when there is no apparent

reason for doing so, the rules allow a defendant to assert an affirmative defense that may have been suitable

for Rule 12(b)(6) disposition at the summary judgment stage.”).

61FED.R.CIV.P. 12(h)(2)(C).

62FED.R.CIV.P. 9(b).

63Guidry,954 F.2d at 288.

64Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp.,565 F.3d 200, 207 (5th Cir.2009).

65Tel–Phonic Services, Inc. v. TBS Int'l, Inc.,975 F.2d 1134, 1139 (5th Cir.1992).

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.’”68The 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 omissionsshould 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.

66LA.CIV.CODEart. 1953.

67Greene v. Gulf Coast Bank, 593 So. 2d 630, 632 (La. 1992).

68First Am. Bankcard, Inc. v. Smart Bus. Tech., Inc., 178 F. Supp. 3d 390, 402 (E.D. La. 2016)(Clement,

J.).

69Carroll v. Fort James Corp., 470 F.3d 1171, 1174 (5th Cir. 2006) (quotingUnited States ex rel. Riley v.

St. Luke's Episcopal Hosp., 355 F. 3d 370, 381 (5th Cir. 2004)).

38. Therefore, plaintiff is entitled to obtain a rescission of the

contract, damages, and attorneyfees.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 Complaintincludesallegationsthat 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 thatthe

Defendants, including McBride, made omissions thereafter, and that they gained

additional profit from the job thereby. In this case, Jeanes sufficientlyalleges the fraud is

“predicated on promises made with the intentionnotto performat the timethe 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 intendedto “obtain[] the full value of

the contract price from Jeanes while delivering a substandard Barn in order to save time

and expense.”73The Complaint also allegesMcBride 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).

70R. Doc. 1 at 10.

71Id.at 5, ¶ 15.

72Automatic Coin, 433 So. 2d at767–68(emphasis in original).

73R. Doc. 1 at 10, ¶ 36.

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 andsummaryjudgmentis 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.77The 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.78Although 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.”80Jeanesstates 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

74Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So. 2d 1002, 1006.

75Helwick v. Montgomery Ventures Ltd., 95-0765 (La. App. 4 Cir. 12/14/95), 665 So. 2d 1303, 1306,writ

denied,96-0175 (La. 3/15/96), 669 So. 2d 424.

76Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So. 2d 730, 751.

77R. Doc. 114-1 at 19–21.

78R. Doc. 114-2 at 4, ¶ 22.

79R. Doc. 141-14 at 15–16.

80R. Doc. 141-4 at 2.

81Id. at 25–27.

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 himaware 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.

82R. Doc. 114-2 at 4–5, ¶¶ 25, 26.

83R. Doc. 141-1 at 8, ¶¶ 25, 26.

84R. Doc. 141-9 at 7–8, 32.

85R. Doc. 141-3 at 41–42, 49.

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

againstany 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 orthe 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 peremptive87 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

86LA.REV.STAT.§ 9:2772(A)(emphasis added).

87 The section is entitled “Peremptive period for actions involving deficiencies in surveying, design,

supervision, or construction of immovables or improvements thereon.” See also LA. REV. STAT.

§9:2772(A)(1)(c) (referring to the “five-year peremptive period described in Subparagraph (a)”).

88LA.CIV.CODEart. 3458.

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 ofthe 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.”92Accordingly, 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.93There is no evidencethat 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 andhay 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.”94McBride 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

89LA.CIV.CODEart. 3460.

90LA.CIV.CODEart. 3461.

91Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So. 3d 1065, 1083 (citation omitted).

92Id.at 1082.

93R.Doc. 141 at 17; R. Doc. 154.

94R. Doc. 114-3 at 3, ¶¶ 15, 16.

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 toJeanes’ testimonythat “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”98to support his contention

that the Building was occupied in February 2011. McBride mischaracterizes Jeanes’

deposition testimonyabout 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 thatthe facts cited by McBride are in dispute.100During

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.”103In her affidavit, she states she “did

95R. Doc. 114-5 at 3, ¶¶ 6, 7.

96R. Doc. 114-1 at 14.

97R. Doc. 114-3 at 3, ¶ 14.

98R. Doc. 114-7 at 6.

99Id.

100R. Doc. 141-1 at 4–5, ¶¶ 14–16.

101R. Doc. 141-14 at 12.

102Id.

103Id.at 13.

not use the Building at all to house horses until after [she] returned to Louisiana in the

fall of 2015.”104

Jeanes’ testimony that shedid 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 inCivil 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.

104R. Doc. 141-8 at 5, ¶ 15.

105LA.REV.STAT. §9:2772(H)(1), (3).

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

§9:2771.108The 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

106 LA. REV. STAT. §9:2772(H)(2) provides, “In any action in which fraud is alleged, that issue shall be

decided by trial separate from and prior to the trial of any or all other issues.” To the extent this requirement

applies to cases in federal court, the parties have waived this requirement. R. Doc.179 at 2.

107R. Doc. 112.

108R. Doc. 114-1 at 15–18.

109LA.REV.STAT. §9:2771.

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.110He 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 & SSteel

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 & SSteel 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 allDefendants, 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.

Defendantsfailed 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

110R. Doc. 127 at 5–7.

111Id.at 5.

112R. Doc. 140 at 4–5.

113R. Doc. 1 at 4, ¶ 12.

114 Id. at 9, ¶¶ 27–29 (emphasis added). Jeanes also brought a negligence claim only against S&S for

damages resulting from alleged design defects.Id.at ¶¶ 30–33.

Jeanes clearly states she brings this claim against all Defendants, including

McBride. The Court finds Jeanes’ Complaint sufficiently alleged McBride isliable 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.119To the extent there were plans

for the foundation of the Building, they were made by McBride in connection with the

Proposal.120Because McBride madethe plans for the foundation of the Building, he is not

115McBride relies on Harris Builders, L.L.C. v. URS Corp., 861 F. Supp. 2d 746 (E.D. La. 2012) to argue he

is entitled to summary judgment because LA.REV.STAT.§ 9:2771 does not give a plaintiff a cause of action

for alleged design defects. R. Doc. 127 at 6. In Harris Builders, the court held §9:2771 did not provide a

general contractor with a cause of action against an engineer that prepared plans and specifications. 861 F.

Supp. 2d at 754. Harris Builders does not preclude an owner from bringing a breach of contract claim

against a contractor for damages arising from design defects.

116LA.REV.STAT.§9:2771 (emphasis added).

117Caskey v. Merrick Const. Co., 46,886 (La. App. 2 Cir. 3/14/12), 86 So. 3d 186, 192,writ denied,2012-

0847 (La. 6/1/12), 90 So. 3d 442 (citing Monteville v. Terrebonne Parish Consolidated Government,567

So.2d 1097 (La.1990)).

118The parties agree it is an undisputed fact “[t]he materials and the plans for the Buildingwere provided

by S&S.” R. Doc. 174 at 9, ¶ 7(6).

119R. Doc. 179 at 2.

120Id.

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 madewith 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

contractor causes the plans and specifications to be made and, as a result, cannot invoke

immunity under § 9:2771.121

Jeanes argues McBride caused the plans and specifications to be made.122She cites

McBride’s deposition testimony that he “purchased the Building from S & S.”123 S & S

proposals for the Building list McBride as the customer and were signed by McBride,124

and other S & Sdocumentsidentify McBride as the customer.125

McBride responds that, because Jeanes admits she met with S & S to discuss the

design of the Buildingand approved the designs, McBride did not cause the designs to be

made.126 He also cites the testimony of his proposed expert Philip Beard regarding

responsibility for design defects.127

The Court finds no genuine issue of material fact as to whetherMcBride caused the

plans and specifications for the roof and other portions of the Building to be made.

121See, e.g., Hageman v. Foreman, 539 So. 2d 678, 682 (La. Ct. App. 1989) (holding § 9:2771 inapplicable

when builder supplied plans drafted by a third party to owner); A & M Pest Control Serv., Inc. v. Fejta

Const. Co., 338 So. 2d 946, 951 (La. Ct. App. 1976) (same).

122R. Doc. 112 at 12–15.

123R. Doc.112-2 at 27.

124R. Doc. 112-4. The proposal lists “Metal Buildings by Mac” as the customer, but it is uncontested that, in

2010 at 2011, McBride conducted business as “Metal Buildings by Mac.” R. Doc. 174 at 9, ¶ 7(3).

125R. Docs. 112-5, 112-6.

126R. Doc. 127 at 9–10.

127R. Doc. 127-3.

McBride testified he purchased the Building from S & S, and the plans and specifications

drafted by S & S show McBride was the customer. Even though Jeanes met with S & S to

discuss the designs and approved the designs, there is no genuine factual issue that

McBride caused to be made theplans for the roof and the parts of the Building other than

the foundation.

The Court has found McBride made or caused to be made the plans and

specifications for the Building. As a result, Jeanes is entitled to partial summary judgment

on McBride’s § 9:2771 immunity defense.128

V. The Court grants Plaintiff’s motion in limine relating to contractor

immunity under LA.REV.STAT. § 9:2771.

In her motion in limine, Jeanes seeks an order prohibiting McBride from

introducing evidence or testimony that he is not liable for defects because of the

affirmative defense in § 9:2771.129 Because the Court finds McBride is not entitled to the

immunity defense in § 9:2771, the Court will not permit McBride to introduce evidence

related to the defense. The Court grants Jeanes’ motion in limine.

VI. Genuine issues of material fact preclude summary judgment on

prescription ofJeanes’ LUTPA claim and on the merits of the claim.

A. LUTPA claims are subject to liberative prescription

McBride argues Jeanes’ LUTPA claim against him has prescribed.130 The Court

first addresses whether LUTPA actions are subject to prescription or peremption.

128Jeanes also argues McBride waived this defense by failing to raise it in his answer. R. Doc. 112-1 at 10–

12. Because the Court grants Jeanes’ motion for partial summary judgment on the merits of the defense,

the Court does notaddress Jeanes’ waiver argument.

129R. Doc. 147.

130R. Doc. 114-1 at 21–23.

The events at issue in the matter took place between 2010 and 2016, and this action

was filed on September 6, 2016.131The version of LUTPA in place during that time period

provided that actions alleging unfair trade practices “shall be prescribed by one year

running from the time of the transaction or act which gave rise to this right of action.”132

The statute did not specify whether the period was prescriptive or peremptive. Inits 2002

decision in Tubos de Acero de Mexico, S.A. v. Am. Int’l Inv. Corp., the Fifth Circuit held

the period isperemptive.133In 2008, the Louisiana Supreme Court,in Miller v. Conagra,

Inc., explicitly refrained from deciding whether the period is prescriptive or

peremptive.134 In May 2018, the Louisiana legislature amended the statute to clarify

violations are subject to “a liberative prescription” of one year.135 The accompanying

legislative history sheds no light on whether the legislature intended the amendment to

be retroactive.136

Jeanes argues her LUTPA claim is subject to a one-year prescriptive period because

the 2018 amendment to LUTPA is interpretive and applies retroactively.137 Article 6 of

131R. Doc. 1.

132LA.REV.STAT.§51:1409(E) (1972), amended byAct 337 of the 2018 Regular Legislative Session, 2018

La. Acts 143, 143 (2018).

133292 F.3d 471, 481–82(5th Cir. 2002)(citations omitted).

134Miller v. Conagra, Inc., 2008-0021 (La. 9/8/08), 991 So. 2d 445, 456.

135Act 337 of 2018, 2018La. Acts at 143.

136The digest accompanying the bill states:

[The bill p]rovides for a liberative prescription period with respect to

private actions for violations of the Unfair Trade Practices and Consumer

Protection Law.

. . .

Present lawprovides that an action to recover actual damages is

prescribed by one year running from the time of the transaction or act

which gave rise to the rightof action.

Proposed lawamendspresent lawto provide that such action to recover

actual damages is subject to a liberative prescription of one year running

from the time of the transaction or act which gave rise to the right of action.

LA.B.DIGEST,ENGROSSED, H. 2018-759 Reg. Sess. (2018).

137R. Doc. 141 at 34.

the Louisiana Civil Code provides, “In the absence of contrary legislative expression,

substantive laws apply prospectively only. Procedural and interpretative laws apply both

prospectively and retroactively, unless there is a legislative expression to the contrary.”138

The Fifth Circuit has explained that determining whether a law is procedural or

substantive under article 6 requires the following “two-fold inquiry”:

First, the court must ascertain whether in the enactment, the

legislature expressed its intent regarding retroactive or

prospective application. If the legislature did so, the judicial

inquiry ends. If the legislature did not, the court must then

classify the enactment as substantive, procedural, or

interpretive. Substantive laws ‘either establish new rules,

rights, and duties or change existing ones.’ Procedural laws,

in contrast, ‘describe the method of enforcing, processing,

administering or determining rights, liabilities or

status.’Thus, if a statute ‘merely prescribes the method of

enforcing a right which previously existed or maintains

redress for invasion of rights, it is classified as procedural.’

Interpretive laws ‘merely establish the meaning that the

interpretive statute had from the time of its enactment.’139

“In Louisiana, statutes of limitation are generally treated as procedural laws.”140

In this case, the legislative history of the 2018 LUTPA amendment sheds no light

on whether the amendment was meant to have retroactive effect. As a result, the Court

follows the general principle that statutes regarding prescription and peremption are

procedural and have retroactive effect.141 The Court holding the 2018 LUTPA

amendment is interpretive and has retroactive effect.

138LA.CIV.CODEart. 6.

139Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 192 (5th Cir. 2010)(citing Cole v. Celotex Corp.,599

So.2d 1058 (La.1992)and quoting Prejean v. Dixie Lloyds Ins. Co.,655 So.2d 303 (La.1995)).

140Id.(citing Chance v. Am. Honda Motor Co.,635 So.2d 177, 178 (La.1994)).

141 The Court notes that LA.REV.STAT. § 1:2 provides, “No Section of the Revised Statutes is retroactive

unless it is expressly so stated.” The Fifth Circuit has explained this applies only to substantive, not

procedural or interpretive legislation. See Holt, 627 F.3d at 192n.3.

This holding is consistent with the holding of the Louisiana Third Circuit Court of

Appeal in Congregation of Immaculate Conception Roman Catholic Church of Par. of

Calcasieu v. Sam Istre Constr., Inc.142 In that case, the court held the 2018 amendment

to LUTPA suggests “the legislature always intended the time period tobe prescriptive”

and that the amendment “merely clarifies and interprets an existing law.”143 The court

found that the amendment did not change the law, but rather clarified that LUTPA claims

have always been subject to liberative prescription, not peremption.144 This holding also

is consistent with Judge deGravelles’ holding in Trinity Med. Servs., L.L.C. v. Merge

Healthcare Sols., Inc.145

B. Contra non valentem

Jeanes argues that her LUTPA claim has not expired because of the doctrine of

contra non valentem.146For claims subject to prescription, “contranonvalentemapplies

an exception to the statutoryprescriptiveperiod where in fact and for good cause a

plaintiff is unable to exercise [her]cause of action when it accrues.”147

In this case, Jeanes brings her LUTPA claim on the basis that McBride fraudulently

refused to schedule mandatory inspections, which is also a factual basis for her fraud

1422017-1186 (La. App. 3 Cir. 8/8/18), 253 So. 3d 196, 201.

143Id.at 201.

144 Id. at 201–02 (citingArdoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331, 1339 (La. 1978)

(“[I]nterpretive legislation does not create new rules, but merely establishes the meaning that the

interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one,

that establishes rights and duties.”)).

145 No. CV 17-592-JWD-EWD, 2018 WL 3748399, at *9 (M.D. La. Aug. 7, 2018). But see United States v.

Cytogel Pharma, LLC, No. CV 16-13987, 2018 WL 5297753, at *12 (E.D. La. Oct. 25, 2018).

In Cytogel, this Court relied on CheckPoint Fluidic Sys. Int'l, Ltd. v. Guccione, 888 F. Supp. 2d 780,

792 (E.D. La. 2012), for the proposition that the Court is “bound by the Fifth Circuit's holding that La. R.S.

51:1409(E) is a peremptive period, but it does not begin to run until a continuing violation ceases.” 2018

WL 5297753, at *12n.170. The Court did not analyze whether the statute was substantive, procedural, or

interpretive, but instead found that, whether prescription or peremption applied, there would be a “genuine

issue of material fact as to when theprescriptionor peremption period began.”Id.

146R. Doc. 141 at 34–35.

147Borel v. Young, 2007-0419 (La. 11/27/07), 989 So. 2d 42, 49,on reh'g(July 1, 2008).

claim.148 As with Jeanes’ fraud claim, McBride alleges there are no genuine issues of

material fact with respect to Jeanes’ LUTPA claim. As the Court found in connection with

McBride’s motion for summary judgment on Jeanes’ fraud claim against him, there are

genuine issues of material fact as to whether McBride concealed the defects that are the

subject of Jeanes’ LUTPA claim.

The Court finds there is a genuine issue of material fact as to whether Jeanes has

good cause for not exercising her LUTPA cause of action within one year. As a result, the

Court denies McBride’s motion for summary judgment on Jeanes’ LUTPA claims on

prescription grounds. If the jury finds that the LUTPA claim is not perempted under

§9:2772, the jury will also determine whether the claim has not prescribed under the

doctrine ofcontra non valentem.

C. Motion for Summary Judgment on Merits of LUTPA Claim

LUTPA makes unlawful “[u]nfair methods of competition and unfair or deceptive

acts or practices in the conduct of any trade or commerce.”149 “A trade practice is unfair

under the statute only when it offends established public policy and is immoral, unethical,

oppressive or unscrupulous. What constitutes an unfair trade practice is determined by

the courts on a case-by-case basis.”150 “The ‘defendant’s motivation’ is a critical factor—

his ‘actions must have been taken with the specific purpose of harming the

competition.’”151

The Court finds the disputed issues of material fact that preclude summary

judgment on Jeanes’ fraud claim against McBride also bar summary judgment on the

148R. Doc. 1 at 11, ¶ 41.

149LA.REV.STAT.§51:1405(A).

150Tubos, 292 F.3d at480(citations omitted).

151IberiaBank, 907 F.3d at 839–40 (quoting id.).

LUTPA claim. As a result, the Court denies McBride’s motion for summary judgment on

the LUTPA claim.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that the motion for partial summary

judgment, filed by Plaintiff Janet Jeanes, be and hereby is GRANTED. Defendant Greg

McBride is not entitled to the contractor immunity defense in LA. REV. STAT. § 9:2771.

IT IS FURTHER ORDERED that the motion for summary judgment, filed by

Defendant Greg McBride, be and hereby is DENIED.'*?

IT IS FURTHER ORDERED that Jeanes’ motion in limine to prevent McBride

from introducing evidence or testimony at trial that he is not liable for defects based on

the contractor immunity defense in § 9:2771 be and hereby is GRANTED. '54

New Orleans, Louisiana, this 4th day of June, 2019.

SUSIE sion i

UNITED STATES DISTRICT JUDGE

152 R. Doc. 112.

153 R. Doc. 114.

154 R. Doc. 147. The jury will first determine whether McBride is liable for fraud. If the jury finds McBride

liable for fraud, the five-year peremptive period in § 9:2772(A) will not apply, and the jury will make

findings with respect to the remaining issues. If the jury does not find McBride liable for fraud, the five-

year peremptive period in § 9:2772(A) will apply. The jury will determine when Jeanes occupied or took

possession of the Building. If the jury finds Jeanes occupied or took possession of the Building more than

five years before this suit was filed, all of Jeanes’ claims will be perempted. If the jury finds Jeanes occupied

or took possession of the Building less than five years before this suit was filed, the claims will not be

perempted, and the jury will make findings with respect to the remaining issues.

28