Louis Petkovich, Jr. and Julie D. Petkovich v. Franklin Homes, Inc., Gulf Coast Mobile Homes, Inc., Landry Mobile Home Transporters, Inc., and Nta, Inc.

LOUIS PETKOVICH, JR. AND * NO. 2021-CA-0448

JULIE D. PETKOVICH

*

VERSUS COURT OF APPEAL

*

FRANKLIN HOMES, INC., FOURTH CIRCUIT

GULF COAST MOBILE *

HOMES, INC., LANDRY STATE OF LOUISIANA

MOBILE HOME *******

TRANSPORTERS, INC., AND

NTA, INC.

APPEAL FROM

25TH JDC, PARISH OF PLAQUEMINES

NO. 60-790, DIVISION “B”

Honorable Michael D. Clement,

******

Chief Judge Terri F. Love

******

(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge

Dale N. Atkins)

Wayne R. Maldonado

John C. Henry

Warren J. Greenwood, Jr.

Karina Shareen

Brett F. Willie

UNGARINO & MALDONADO, LLC

3850 North Causeway Boulevard, Ste. 1280

Metairie, LA 70002

COUNSEL FOR GULF COAST MOBILE HOMES, INC.

Lamont P. Domingue

VOORHIES & LABBE

700 St. John St., Ste. 500

P. O. Box 3527

Lafayette, LA 70502—3527

COUNSEL FOR NTA, INC. AND FRANKLIN HOMES, INC.

John William Redmann

Edward L. Moreno

Travis J. Causey, Jr.

Cristian A. Galleguillos

LAW OFFICE OF JOHN W. REDMANN, LLC

1101 Westbank Expressway

Gretna, LA 70053

COUNSEL FOR PLAINTIFFS, LOUIS PETKOVICH, JR. AND JULIE D.

PETKOVICH

Paula M. Wellons

Jason D. Bone

TAYLOR WELLONS POLITZ & DUHE, APLC

1555 Poydras Street, Suite 2000

New Orleans, LA 70112

COUNSEL FOR LANDRY MOBILE HOME TRANSPORTERS, INC.

AFFIRMED IN PART; REVERSED IN PART; WRIT GRANTED IN PART;

WRITS DENIED

September 22, 2022

TFL

This appeal arises from the purchase, transportation, and permanent affixing

RLB

of a new modular home. Plaintiffs sustained vast damages to their modular

DNA

residence during Hurricane Isaac. Plaintiffs filed suit, over five years after

purchasing the home, against the seller, manufacturer, transporter, and engineering

firm associated with the construction, sale, and transportation of their new modular

home contending there were vices and defects and that the home was advertised to

withstand 140 mile per hour winds. Defendants filed exceptions of

peremption/prescription and no cause of action, as well as motions for summary

judgment. The trial court granted the exceptions of peremption/prescription and

found that all of plaintiffs’ claims were perempted and prescribed except for those

relating to fraud and intentional misrepresentation. Both plaintiffs and defendants

appealed.

After review and considering this Court’s jurisprudence, we find the trial

court did not err by granting defendants’ exceptions of peremption and prescription

as to all claims except those relating to fraud and intentional misrepresentation.

We convert the appeals of defendants to applications for supervisory review.

As the plaintiffs’ fraud and intentional misrepresentation claims against the

transporter were based in deficient performance, the claims were perempted. Thus,

1

we grant the transporter’s writ and dismiss the plaintiffs’ remaining claims against

it.

We find the plaintiffs sufficiently pled claims for fraud and intentional

misrepresentation against the manufacturer and engineering firm. As such, as to

the exceptions of no cause of action, their writs are denied. Moreover, we find

genuine issues of material fact remain as to the plaintiffs’ claims of fraud and

intentional misrepresentation against seller, manufacturer, and engineering firm.

Questions surrounding credibility, juxtaposed expert testimony, intent, and motive

are not suitable for summary judgment. Therefore, we deny their writs regarding

their motions for summary judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Louis and Julie Petkovich lived in their home in Plaquemines Parish when

Hurricane Katrina struck, causing catastrophic destruction, in August 2005. In an

effort to rebuild, they visited Gulf Coast Mobile Homes, Inc. (“Gulf Coast”)

seeking a new home for permanent placement on their land.

On January 9, 2007, the Petkovichs purchased a new modular home,

manufactured by Franklin Homes, Inc. (“Franklin”) and sold by Gulf Coast. Their

new home was transported to their location by Landry Mobile Home Transporters,

Inc. (“Landry”) and was affixed to a permanent concrete foundation. They moved

in approximately May 24, 2007.

On August 28, 2012, Hurricane Isaac struck, causing extensive damage to

the Petkovichs’ home. On August 28, 2013, the Petkovichs filed a Petition for

Damages against Gulf Coast, Franklin, Landry, and NTA, Inc. (the engineering

firm retained by Franklin to certify engineering specifications) (collectively

“Defendants”) alleging claims based in redhibition, Louisiana unfair trade

2

practices, negligence, misrepresentation, product liability, detrimental reliance,

breach of contract, and fraud.1 The Petkovichs asserted that they purchased their

new home because it was designed and built to withstand winds up to 140 miles

per hour.

After filing suit, numerous exceptions and motions were filed. Namely,

Gulf Coast filed Exceptions of Peremption and Prescription and a Motion for

Summary Judgment regarding the Petkovichs’ fraud and intentional

misrepresentation claims. NTA filed Exceptions of Peremption and Prescription,

as well as an Exception of No Cause of Action, which was followed by a Motion

for Summary Judgment. Franklin Homes also filed Exception of Peremption,

Prescription, and No Cause of Action, as well as a Motion for Summary Judgment.

Landry filed an Exception of Peremption, an Exception of Peremption specifically

targeting the Petkovichs’ LUTPA claims, and a Motion for Summary Judgment.

On March 11, 2021, the trial court granted Defendants’ Exceptions of

Peremption and Prescription in part as to all of the Petkovichs’ claims except for

those based in fraud and intentional misrepresentation. The Petkovichs’ claims,

besides those based in fraud and intentional misrepresentation, were dismissed

with prejudice. The Exceptions of No Cause of Action filed by Franklin and NTA

were denied. Lastly, the trial court denied Defendants’ Motions for Summary

Judgment. Defendants filed a Motion to Designate the judgment as final. The trial

court designated the March 11, 2021 judgment as final on March 30, 2021. The

Petkovichs and Defendants all filed motions for devolutive appeals, which the trial

court granted.

1 The Petkovichs brought one of approximately ten lawsuits against some of these modular home

defendants following Hurricane Isaac.

3

The Petkovichs appealed first, contending that the trial court erred by

granting the Exceptions of Peremption and Prescription and dismissing all of their

claims except for fraud and intentional misrepresentation. Defendants appealed

asserting the trial court erred by denying their exceptions in part, regarding fraud

and intentional misrepresentation, and for denying their Motions for Summary

Judgment. NTA and Franklin also maintained that the trial court erroneously

denied their Exceptions of No Cause of Action as to fraud and intentional

misrepresentation.

I. PETKOVICHS’ APPEAL

The Petkovichs contend that the trial court erred by granting Defendants’

Exceptions of Peremption and Prescription based upon La. R.S. 9:3141, et seq.; La.

R.S. 51:912.1, et seq.; La. R.S. 9:2772; and La. R.S. 51:1401, et seq. They

maintain that their claims regarding: redhibition, Louisiana unfair trade practices,

negligence, product liability, detrimental reliance, and breach of contract were

timely.

STANDARD OF REVIEW

The exceptions of peremption and prescription are peremptory exceptions.

La. C.C.P. art. 927. “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

“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. “Except as otherwise provided by law,

peremption may not be renounced, interrupted, or suspended.” La. C.C. art. 3461.

4

“[T]he party pleading peremption bears the burden of proof at the trial of the

peremptory exception of peremption.” Thrasher Const., Inc. v. Gibbs Residential,

L.L.C., 15-0607, p. 8 (La. App. 4 Cir. 6/29/16), 197 So. 3d 283, 289. “[I]f

peremption is evident on the face of the pleadings, then the burden shifts to the

other party to show that the claim is not perempted.” Id. “Courts strictly construe

peremptive statutes against peremption and in favor of the claim.” McGaha v.

Franklin Homes, Inc., 21-0244, p. 29 (La. App. 4 Cir. 2/4/22), 335 So. 3d 842,

860, writ denied, 22-00374 (La. 4/26/22), 336 So. 3d 897.

“Appellate courts review legal questions, like the denial of peremptory

exceptions, de novo.” Titus v. Wilson, 15-0575, p. 3 (La. App. 4 Cir. 12/4/15), 216

So. 3d 928, 931. This Court elaborated further as follows:

If evidence is introduced at the trial on a

peremptory exception, appellate courts review the entire

record “to determine whether the trial court was

manifestly erroneous with its factual conclusions.”

Thrasher Constr. Inc. v. Gibbs Residential, L.L.C., 2015-

0607, pp. 6-7 (La. App. 4 Cir. 6/29/16), 197 So.3d 283,

289 (quoting Metairie III v. Poche’ Constr., Inc., 2010-

0353, p. 4 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449).

The Thrasher Court further noted:

If the trial court’s findings are reasonable in light

of the entire record, then the appellate court may

not reverse even though it would have weighed

the evidence differently had it been sitting as the

trier of fact. Rando v. Anco Insulations Inc., [20]

08-1163, p. 20 (La. 5/22/09), 16 So.3d 1065,

1082, citing Stobart v. State, through DOTD, 617

So.2d 880, 882-83 (La. 1993). As further

explained by the Louisiana Supreme Court,

Under the manifest error standard, in order

to reverse a trial court’s determination of a

fact, an appellate court must review the

record in its entirety and (1) find that a

reasonable factual basis does not exist for

the finding, and (2) further determine that

the record establishes that the fact finder is

clearly wrong or manifestly erroneous.

5

Lomont v. Bennett, [20]14-2483, p. 17 (La.

6/30/15), 172 So.3d 620, 632-33.

Id., 2015-0607,p. 7, 197 So.3d at 289.

McGaha, 21-0244, pp. 29-30, 335 So. 3d at 860-61.

Prescription

“Generally, the party raising the exception of prescription bears the burden

of proof, unless prescription is evident from the face of the pleadings, in which

case the plaintiff bears the burden of showing that the action has not prescribed.”

Hardy v. Easy T.V. & Appliances of Louisiana, Inc., 01-0025, p. 7 (La. App. 4 Cir.

12/12/01), 804 So. 2d 777, 782. Much like for the exception of peremption, this

Court opined:

If evidence is introduced at the hearing on the

peremptory exception of prescription, the district court’s

findings of fact are reviewed under the manifest error-

clearly wrong standard of review. Rando v. Anco

Insulations, Inc., 08-1163, p. 20 (La.5/22/09), 16 So.3d

1065, 1082. If there is as an absence of evidence, the

exception of the prescription must be decided upon the

properly pleaded material allegations of fact asserted in

the petition, and those alleged facts are accepted as true.

Trust for Melba Margaret Schwegmann, 51 So.3d at 742.

Further, in reviewing a peremptory exception of

prescription, appellate courts strictly construe the statutes

against prescription and in favor of the claim. Id. Of the

possible constructions of a prescriptive or preemptive

statute, the one that maintains enforcement of the claim

or action, rather than the one that bars enforcement

should be adopted. Rando, 16 So.3d at 1083.

Ames v. Ohle, 11-1540, pp. 5-6 (La. App. 4 Cir. 5/23/12), 97 So. 3d 386, 390-91.

DISCUSSION

The trial court’s reasons for judgment summarized the Petkovichs’ issues on

appeal and corresponding legal precepts, at this pre-trial juncture, as follows:

La. C.C. art. 3458 defines peremption as “a period

of time fixed by law for the existence of a right.” The

right is extinguished upon the expiration of the

6

peremptive period unless it is timely exercised. Id. A

peremption may not be renounced, interrupted, or

suspended. La. C.C. art. 3461. Peremptive statutes are to

be strictly construed against peremption and in favor of

the claim. Rando v. Anco Insulations Inc., 2008-1163

(La. 5/22/09), 16 So.3d 1065, 1083.

Defendants base their peremption exception on the

New Home Warranty Act (NHWA), La. R.S. 9:3141 et

seq. and the New Manufactured and Modular Home

Warranty Act (NMMHWA), La. R.S. 51:912.1 et seq.

Defendants further argue that plaintiffs’ claims are

perempted under La. R.S. 9:2772, which governs the

peremptive period for actions involving deficiencies in

surveying, design, supervision, or construction of an

immovable or an improvement. Defendants assert

separate peremption exception regarding plaintiffs’ claim

based on the Louisiana Unfair Trade Practices Act

(LUTPA), La. R.S. 51:1409.

La. R.S. 9:3146 of the NHWA states that any

action to enforce a warranty is subject to a peremptive

period of thirty days after the applicable time period in

La. R.S. 9:3144. Subsection A of La. R.S. 9:3144

provides:

Subject to the exclusions provided in Subsection

B of this Section, every builder warrants the

following to the owner:

(1) One year following the warranty

commencement date, the home will be free from

any defect due to noncompliance with the

building standards or due to other defects in

materials or workmanship not regulated by

building standards.

(2) Two years following the warranty

commencement date, the plumbing, electrical,

heating, cooling, and ventilating systems

exclusive of any appliance, fixture, and

equipment will be free from any defect due to

noncompliance with the building standards or due

to other defects in materials or workmanship not

regulated by building standards.

(3) Five years following the warranty

commencement date, the home will be free from

major structural defects due to noncompliance

with the building standards or due to other defects

in materials or workmanship not regulated by

building standards.

7

The warranty commencement date is defined in

La. R.S. 9:3143(7) as the date that legal title to the home

is conveyed to its initial purchaser or the date that the

home is first occupied, whichever occurs first.

Similarly to the NHWA, La. R.S. 51:912.6 of the

NMMHWA also provides that an action to enforce a

warranty is subject to a peremptive period of thirty days

after the expiration of the appropriate time period set

forth in La. R.S. 51:912.4. La. R.S. 51:912.4(A) also has

the same one-year, two-year, and five-year time periods

for builder’s warranties; and La. R.S. 51:912.3 has the

same definition of the warranty commencement date.

Both the NHWA and NMMHWA state that they each

provide the exclusive remedies, warranties, and

peremptive periods between the builder and the owner

relative to the construction of homes. See La. R.S.

9:3150; La. R.S. 51:912.10.

In Stutts v, Melton, 2013-0557 (La. 10/15/13), 130

So.3d 808, the Supreme Court held that while the NHWA

provides the exclusive remedies and preemptive periods,

the NHWA does not immunize as seller from other

contract law provisions the seller is to follow in

connection with the sale of a home. The court stated that

an action claiming that the seller made a fraudulent

misrepresentation is not a claim relative to home

construction, but a claim that the seller has knowingly

misrepresented that the home has a quality that he knows

it does not have.

Defendants also base their exceptions of

peremption and/or prescription on La. R.S. 9:2772(A)

which 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 against any person performing or

furnishing land surveying services, as such term

is defined in R.S. 37:682, including but not

8

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:

(l)(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.

Subsection H of La. R.S. 9:2772 provides:

H. (1) The 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. The provisions of

this Subsection shall be retroactive.

(2) 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.

However, if fraud is alleged in nonresidential

contracts in an action commenced after the

expiration of the five-year period provided by this

Section, and the court determines that the

allegation was brought in bad faith and no fraud

is found, then the party who made the allegation

shall be liable for court costs and attorney fees. If

fraud is proven, then the party that has committed

the fraud shall be liable for court costs and

attorney fees.

(3) Fraud, as used in this Section, shall have the

same meaning as provided in Civil Code Article

1953.

In Thrasher Const. Inc, v. Gibbs Residential, 2015-

0607 (La. App. 4 Cir. 6/29/16), 197 So.3d 283, writ

denied, 2016-1453 (La. 11/15/16), 209 So.3d 779, the

Fourth Circuit stated that the five-year peremptive period

in La. R.S. 9:2772 would not apply to claims in which

the alleged breach of contract or damages were caused by

9

fraud.

Therefore, the exceptions of peremption and/or

prescription based on La. R.S. 9:3141 et seq., La. R.S.

51:912.1 et seq., and La. R.S. 9:2772 are overruled as

they pertain to the fraud and intentional

misrepresentation claims that the modular home could

withstand winds of up to 140 miles per hour. The

exceptions are otherwise sustained as to claims that are

not based on fraud and intentional misrepresentation.

Plaintiffs have also asserted a claim based on La.

R.S. 51:1401 et seq., the Louisiana Unfair Trade

Practices Act (LUTPA). La. R.S. 51:1409(E) states that a

private action under LUTPA shall be subject to a

liberative prescription of one year running from the time

of the transaction or act which gave rise to the cause of

action. Subsection A provides, in part:

Any person who suffers any ascertainable loss of

money or movable property, corporeal or

incorporeal, as a result of the use or employment

by another person of an unfair or deceptive

method, act, or practice declared unlawful by

R.S. 51:1405, may bring an action individually

but not in a representative capacity to recover

actual damages.

In Bottinelli Real Estate, LLC v. Johns Manville,

Inc.. 2019-0619 (La. App. 4 Cir. 12/27/19), 288 So.3d

179, the Fourth Circuit held that a claim under LUTPA

was subject to a one-year prescriptive period, which was

peremptive. Because plaintiffs’ LUTPA claims were

asserted more than one year after any alleged unfair trade

practice (which would had to have occurred during the

home purchase process in 2007), the exception of

peremption as to the LUTPA claim is sustained.

Subsequent to the trial court’s judgment, this Court addressed these exact

issues in McGaha, 21-0244, p. 1, 335 So. 3d at 842. McGaha is summarized

below:

This appeal involves tort claims brought by David

L. McGaha (hereinafter “Mr. McGaha”) and Melissa B.

McGaha (hereinafter “Mrs. McGaha”) concerning

alleged defects in their modular home. Mr. McGaha and

Mrs. McGaha (hereinafter collectively “Plaintiffs”) filed

suit against Gulf Coast Mobile Homes, Inc. (hereinafter

10

“Gulf Coast”); Franklin Homes, Inc. (hereinafter

“Franklin Homes”); Landry Mobile Home Transporters,

Inc. (hereinafter “Landry Transporters”); and NTA, Inc.

(hereinafter “NTA”). Gulf Coast, Franklin Homes,

Landry Transporters, and NTA (hereinafter collectively

“Defendants”) filed various exceptions and motions for

summary judgment that the trial court granted in part and

denied in part. Gulf Coast now seeks review of the trial

court’s judgment, which denied its motion for summary

judgment regarding claims of fraud and intentional

misrepresentation asserted by Plaintiffs. Additionally,

Plaintiffs seek review of that portion of the trial court's

judgment that granted Defendants’ various exceptions.

Further, Franklin Homes filed an answer to the appeal

and seeks review of the trial court’s judgment denying its

exception in part as to Plaintiffs’ claims of fraud and

intentional misrepresentation.

* * *

B. Redhibition Claim

. . . Louisiana Civil Code Article 2534(A)

provides:

The action for redhibition against a seller

who did not know of the existence of a defect in

the thing sold and the action asserting that a thing

is not fit for its ordinary or intended use prescribe

in two years from the day of delivery of the thing

to the buyer or one year from the day the defect

or unfitness was discovered by the buyer,

whichever occurs first.

However, if the action for redhibition is brought

“against a seller who knew, or is presumed to have

known, of the existence of a defect in the thing sold

prescribes in one year from the day the defect was

discovered by the buyer or ten years from the perfection

of the contract of sale, whichever occurs first.” La. C.C.

art. 2534(B).

* * *

Plaintiffs herein assert that Franklin Homes, as the

manufacturer, is presumed to have knowledge of the

alleged defects in their home. They contend prescription

did not begin to run until they discovered the defects

after Hurricane Isaac.

Plaintiffs argue that La. C.C. art. 2540 applies to

its claim against NTA. Louisiana Civil Code Article 2540

provides that “[w]hen more than one thing are sold

together as a whole so that the buyer would not have

bought one thing without the other or others, a

redhibitory defect in one of such things gives rise to

redhibition for the whole.” La. C.C. art. 2540. Plaintiffs

11

allege the contract for construction of their home

included a certification the home met applicable building

standards; and they contend a home lacking such a

certification had no practical use to them. Further,

Plaintiffs argue this Court should consider all

components of the home, including the certification, as a

single unit for purposes of redhibition.

Additionally, Plaintiffs assert that Gulf Coast had a

significant role in the installation of their home. Thus,

Plaintiffs contend Gulf Coast is presumed to know of the

defects.

* * *

We note the argument that the contract in this case

was a contract to build or a construction contract has

merit. Nonetheless, Franklin Homes, NTA, and Gulf

Coast filed exceptions of peremption and/or prescription

to the claim of redhibition, which the trial court granted.

* * *

The record contains sufficient evidence for the trial

court to conclude Plaintiffs’ home lacked a defect

because it performed as expected during a category 1

hurricane. Thus, when viewing the October 23, 2006

Gulf Coast contract as a contract of sale, evidence exists

to support a finding that Gulf Coast, Franklin Homes, and

NTA lacked knowledge of a defect in Plaintiffs’ home

because it performed as expected in a category 1

hurricane. The peremptive period in such a situation is

set forth in La. C.C. art. 2534(A). Under that provision,

an action for redhibition prescribes “two years from the

day of delivery of the thing to the buyer or one year from

the day the defect or unfitness was discovered by the

buyer, whichever occurs first.” La. C.C. art. 2534(A).

* * *

The trial court’s judgment granting the exceptions

of peremption and prescription as to the claim of

redhibition against Gulf Coast, Franklin Homes, and

NTA, is reasonable in light of the entire record. Thus, the

trial court did not manifestly err in granting the

exceptions of peremption and prescription as to the claim

of redhibition.

C. Remaining Tort Claims

In their appellant brief, Plaintiffs contend the trial

court erred in granting the exception of peremption or

prescription as to their claims for violation of LUTPA,

negligence, negligent misrepresentation, violation of

LPLA, detrimental reliance, and breach of contract. They

assert that the prescriptive period found in La. C.C. art.

12

3493 applies to the remaining tort claims. Louisiana Civil

Code Article 3493 states that “[w]hen damage is caused

to immovable property, the one year prescription

commences to run from the day the owner of the

immovable acquired, or should have acquired,

knowledge of the damage.” Plaintiffs insist they could

not acquire knowledge of the damage until Hurricane

Isaac.

1. New Home Warranty Act

In their briefs, Defendants separated the remaining

claims and argued each remaining claim was perempted

or prescribed. First, they relied on the peremptive period

provided in the New Home Warranty Act (hereinafter

“NHWA”). Notably, the NHWA sets forth exclusive

remedies, warranties, and peremptive periods between a

builder and an owner of home construction. La. R.S.

9:3141-50. The NHWA defines “ ‘[b]uilder’ [as] any

person, corporation, partnership, limited liability

company, joint venture, or other entity which constructs a

home, or addition thereto, including a home occupied

initially by its builder as his residence.” La. R.S.

9:3143(1). The NHWA further provides:

(3) “Home” means any new structure

designed and used only for residential use,

together with all attached and unattached

structures, constructed by the builder whether or

not the land was purchased from the builder.

Such term includes structures containing multiple

family dwellings or residences.

(4) “Initial purchaser” means any person

for whom a home is built or the first person to

whom a home is sold upon completion of

construction.

La. R.S. 9:3143(3)-(4).

The NHWA applies to Franklin Homes as a

builder; Plaintiffs as initial purchasers; and their modular

home as a new home. Pursuant to the NHWA, Franklin

Homes warranted the following to Plaintiffs:

(1) One year following the warranty

commencement date, the home will be free from

any defect due to noncompliance with the

building standards or due to other defects in

materials or workmanship not regulated by

building standards.

(2) Two years following the warranty

commencement date, the plumbing, electrical,

heating, cooling, and ventilating systems

exclusive of any appliance, fixture, and

13

equipment will be free from any defect due to

noncompliance with the building standards or due

to other defects in materials or workmanship not

regulated by building standards.

(3) Five years following the warranty

commencement date, the home will be free from

major structural defects due to noncompliance

with the building standards or due to other defects

in materials or workmanship not regulated by

building standards.

La. R.S. 9:3144.

* * *

In this instance, Plaintiffs contend they expressed

their desire for a home that could withstand a hurricane.

They assert that the representation the home could

withstand 140-mile-per-hour winds was the “biggest

selling point.” In particular, Plaintiffs indicate this was

important because Hurricane Katrina destroyed their

prior home. Plaintiffs allege that during the formation of

the contract, Franklin Homes, Gulf Coast, and NTA

represented their home could withstand 140-mile-per-

hour winds and that their home was very sturdy. Notably,

the Franklin Homes’ quotation stated, “BUILD HOUSE

TO 140 MPH WIND SPEED ROOF RAFTERS (16”

OC).” Gulf Coast heavily advertised the 140-mile-per-

hour wind speed. The quotation referenced engineering

fees associated with certain items. Plaintiffs state they

would not have purchased the home otherwise. Thus,

while any claim for an alleged defect in the property is

presumably perempted by the NHWA, Plaintiffs stated a

cause of action for fraud and intentional

misrepresentation in the formation of the contract. The

cause of action for fraud or intentional misrepresentation

in the formation of the contract is subject to a

prescriptive period of one year commencing to run from

the day the injury or damage is sustained. La. C.C. art.

3492. When the damage is to immovable property, the

one-year prescriptive period commences to run from the

day the owner of the immovable acquired, or should have

acquired, knowledge of the damage. La. C.C. art. 3493.

Gulf Coast, Franklin Homes, and NTA contend

that Plaintiffs should have acquired knowledge of any

alleged defect due to the damages incurred by Hurricane

Gustav. In discussing constructive notice, this Court has

held:

“Constructive knowledge has been defined

by our courts as whatever notice is enough to

excite attention and put the injured party on guard

or call for inquiry.” Oracle Oil, L.L.C. v. EPI

14

Consultants, Div. of Cudd Pressure Control, Inc.,

[20] 11-0151, p. 6 (La. App. 1 Cir. 9/14/11), 77

So.3d 64, 69. “Such notice is tantamount to

knowledge or notice of everything to which a

reasonable inquiry might lead, and such

information or knowledge as ought to reasonably

put the injured party on inquiry is sufficient to

start the running of prescription.” Id. “In

assessing whether an injured party possessed

constructive knowledge sufficient to commence

the running of prescription, this court's ultimate

consideration is the reasonableness of the injured

party's action or inaction in light of the

surrounding circumstances.” Id., [20]11-0151, p.

7, 77 So.3d at 69. “The ultimate issue is the

reasonableness of the patient's action or inaction,

in light of his education, intelligence, the severity

of the symptoms, and the nature of the

defendant's conduct.’ ” [In Re Med. Review Panel

of] Lafayette, [20]03-0457, p. 6 [(La. App. 5 Cir.

10/15/03)], 860 So.2d [86,] 89 [(quoting] Campo

v. Correa, [20]01-2707, p. 12 (La. 6/21/02), 828

So.2d 502, 511[)].

In re Hume, 2014-0844, pp. 7-8 (La. App. 4 Cir. 4/1/15),

165 So.3d 233, 239.

The record herein lacks evidence that Plaintiffs’

education and intelligence should have led them to

conclude Franklin Homes, Gulf Coast, and/or NTA

misrepresented the sturdiness of the home in the

formation of the contract based on the damages sustained

in Hurricane Gustav. Moreover, we take judicial notice

that the top wind speeds during Hurricane Gustav were a

maximum 117 per hour, not 140, which is what the home

was warranted to withstand.13 See Daurbigney v. Liberty

Pers. Ins. Co., 2018-929, p. 2 (La. App. 3 Cir. 5/9/19),

272 So. 3d 69, 71 n. 1. During Hurricane Gustav,

Plaintiffs lost some shingles leading to water intrusion

and damages to a limited area. Hurricane Isaac resulted

in the roof partially collapsing, as well as water intrusion

and mold throughout the entirety of the home. Thus,

Hurricane Isaac, and the resulting damage, placed

Plaintiffs on notice that the alleged representations were

false. The prescriptive period commenced to run after the

damage caused by Hurricane Isaac.

2. La. R.S. 9:2772: “Peremptive period for actions

involving deficiencies in surveying, design,

supervision, or construction of immovables or

improvements thereon”

15

Gulf Coast, Franklin Homes, and NTA also cited

La. R.S. 9:2772 in support of their exceptions of

peremption and prescription. Louisiana Revised Statute

9:2772 states, 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 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)(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.

(1)(c) If, within ninety days of the

expiration of the five-year peremptive period

described in Subparagraph (a) of this Paragraph, a

claim is brought against any person or entity

included within the provisions of this Subsection,

then such person or entity shall have ninety days

from the date of service of the main demand or,

in the case of a third-party defendant, within

ninety days from service of process of the third

party demand, to file a claim for contribution,

indemnity or a third-party claim against any other

party.

La. R.S. 9:2772(A)(1)(b)-(c).

Gulf Coast, Franklin Homes, and NTA contend

that Plaintiffs filed suit more than five years and ninety

days after first occupying the property in November

2006. Thus, they assert that all claims against them were

perempted or prescribed by La. R.S. 9:2772(A)(1)(b) and

(c).

16

In their brief, Plaintiffs counter that the fraud

exception applies. Louisiana Revised Statute 9:2772 also

provides that “[t]he 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.”

La. R.S. 9:2772(H)(1).

In Thrasher Construction Co., this Court indicated

the five-year peremptive period does not apply to claims

in which fraud caused the alleged breach of contract or

damages. 2015-0607, p.15, 197 So.3d at 293. As noted

previously, Plaintiffs allege the fraud committed by

Franklin Homes, Gulf Coast, and NTA caused the

alleged breach of contract and damages. Thus, Plaintiffs’

claims asserted pursuant to La. R.S. 9:2772 are not

perempted because Plaintiffs allege fraud.

3. La. R.S. 9:5607: “Actions against a professional

engineer”

NTA claimed peremption based on La. R.S.

9:5607, which is the statute that specifically applies to

engineers. Louisiana Revised Statute 9:5607 provides, in

pertinent part:

A. No action for damages against any

professional engineer ... relative to development

plans which have been certified by a professional

engineer ... whether based upon tort, or breach of

contract, or otherwise arising out of an

engagement to provide any manner of movable 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:

....

(2) The date the owner has occupied or

taken possession of the improvement, in whole or

in part, if no such acceptance is recorded;

....

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,

17

interrupted, or suspended.

....

E. The peremptive period provided in

Subsection A of this Section shall not apply in

cases of fraud, as defined in Civil Code Article

1953.

The five-year peremptive period set forth in La.

R.S. 9:5607 applies to all claims except fraud and

intentional misrepresentation. As set forth above,

Plaintiffs allege fraud and intentional misrepresentation.

Thus, their claims asserted against NTA are not

perempted because they have alleged fraud.

4. La. R.S. 51:1409: The Louisiana Unfair Trade

Practices Act

Plaintiffs also asserted a claim under LUTPA.

Louisiana Revised Statute 51:1409(A) provides, in

pertinent part:

Any person who suffers any ascertainable

loss of money or movable property, corporeal or

incorporeal, as a result of the use or employment

by another person of an unfair or deceptive

method, act, or practice declared unlawful by

R.S. 51:1405, may bring an action individually ...

to recover actual damages.

A private action under LUTPA shall be subject to

a prescriptive period of one year from the time of the

transaction or act giving rise to the cause of action. La.

R.S. 51:1409(E). This Court has held the one-year period

to be peremptive in Bottinelli Real Estate, L.L.C. v. Johns

Manville, Inc., 2019-0619, p. 6 (La. App. 4 Cir

12/27/19), 288 So.3d 179, 185.

Herein, Plaintiffs filed their claim on August 28,

2013. The sale, which constitutes the transaction or act

giving rise to their claim, occurred on October 23, 2006.

Thus, the trial court correctly determined the LUTPA

claim was perempted pursuant to La. R.S. 51:1409(E)

because the claim was filed several years after the

transaction or act giving rise to Plaintiffs’ claim.

Hence, we find that the trial court did not

manifestly err in granting the exceptions of peremption

and prescription as to all claims, except fraud and

intentional misrepresentation, against Gulf Coast,

Franklin Homes, and NTA; and its judgment is

reasonable in light of the entire record.

McGaha, 21-0244, pp. 1-43, 335 So. 3d at 846-68.

We find McGaha governs the Petkovichs’ appeal. Regarding the claims of

18

redhibition, this Court found that the peremptive period “in such a situation is set

forth in La. C.C. art. 2534(A). Under that provision, an action for redhibition

prescribes ‘two years from the day of delivery of the thing to the buyer or one year

from the day the defect or unfitness was discovered by the buyer, whichever occurs

first.’” McGaha, 21-0244, p. 33, 335 So. 3d at 863 (quoting La. C.C. art.

2534(A)). This Court found, as the McGahas purchased their modular home on

October 23, 2006, and filed suit on August 28, 2013, that the trial court did not err

by granting the exceptions of peremption and prescription as to the redhibition

claims, as almost seven years elapsed between purchase and filing suit. Id., 21-

0244, p. 34, 335 So. 3d at 863. This Court further determined that the remaining

non-redhibitory tort claims of the McGaha plaintiffs, not based on fraud or

intentional misrepresentation, were perempted or prescribed because suit was not

filed until almost seven years from purchasing the home. Id., 21-0244, p. 43, 335

So. 3d at 868.

In the present matter, the Petkovichs purchased their modular home on

January 9, 2007, and, it is undisputed, based on the Petkovichs’ deposition

testimony, that they moved into their new home on May 24, 2007.2 The

Petkovichs then filed suit on August 28, 2013, which was over six years after

purchasing and inhabiting their home. Therefore, as in McGaha, we find that the

trial court did not err by granting the exceptions of prescription and peremption as

to all the Petkovichs’ claims except those regarding fraud and intentional

misrepresentation. Accordingly, that portion of the trial court’s judgment is

affirmed.

2 May 24, 2007 was the date agreed upon. However, all parties agreed that the Petkovichs

inhabited their new home no later than June 24, 2007.

19

II. DEFENDANTS’ APPEALS

Gulf Coast filed an appeal asserting that the trial court erred by denying its

Motion for Summary Judgment and not dismissing the Petkovichs’ fraud and

intentional misrepresentations claims. Landry appealed averring the trial court

erred by failing to sustain, in full, its Exception of Peremption, and by denying the

Motion for Summary Judgment regarding the fraud and intentional

misrepresentation claims. Franklin and NTA also appealed and alleged the trial

court erred by denying their Exceptions of No Cause of Action and Motions for

Summary Judgment, as well as denying their Exception of Peremption in part.

JURISDICTION

“Appellate courts have a duty to determine sua sponte, whether the court has

proper jurisdiction to consider the merits of an appeal filed in the court.” Joseph v.

Wasserman, 21-0138, p. 3 (La. App. 4 Cir. 12/17/21), 334 So. 3d 413, 416.

All Defendants separately filed for appeals from the trial court’s denial of

their exceptions of prescription, peremption, and no cause of action, as well as

their Motions for Summary Judgment regarding the Petkovichs’ fraud and

intentional misrepresentation claims. The motions for appeal were filed following

the trial court’s La. C.C.P. art. 1915(B) certification of the judgment as final.

“However, a trial court’s certification pursuant to La. C.C.P. art. 1915(B) is not

determinative of jurisdiction.” McGaha, 21-0244, p. 23, 335 So. 3d at 857.

This Court previously held that “La. C.C.P. art. 1915(B)(1) does not

authorize a trial court to designate a judgment denying an exception as final for

purposes of an immediate appeal.” Id., 21-0244, p. 24, 335 So. 3d at 858. We

further stated, “[a] trial court’s certification of an interlocutory judgment as ‘final’

pursuant to La. C.C.P. art. 1915(B)(1) does not transform the interlocutory

20

judgment into a judgment subject to an immediate appeal.” Id., 21-0244, pp. 24-

25, 335 So. 3d at 858.

However, utilizing our vast discretion, we have converted appeals into

applications for supervisory review. Jacobs v. Metzler-Brenckle, 20-0585, p. 14

(La. App. 4 Cir. 5/26/21), 322 So. 3d 347, 357, writ denied, 21-00911 (La.

10/19/21), 326 So. 3d 257. “[W]e do so only when the motion for appeal has been

filed within the thirty-day time period allowed for the filing of an application for

supervisory writs under Rule 4–3 of the Uniform Rules, Courts of Appeal.”3

Delahoussaye v. Tulane Univ. Hosp. & Clinic, 12-0906, p. 5 (La. App. 4 Cir.

2/20/13), 155 So. 3d 560, 563. Moreover, we also only convert appeals to

supervisory writs “where the circumstances indicate that immediate decision of the

issue sought to be appealed is necessary to ensure fundamental fairness and

judicial efficiency, such as where reversal of the trial court’s decision would

terminate the litigation.” Id.

In the instant case, the trial court ruled on March 11, 2021. The trial court

designated the judgment as final on March 30, 2021. The Petkovichs’ Motion for

Devolutive Appeal was filed on April 12, 2021. Landry filed a Petition for

Devolutive Appeal on April 14, 2021. NTA filed a Petition for Devolutive Appeal

on April 15, 2021. Franklin filed a Petition for Devolutive Appeal on April 15,

2021. Gulf Coast filed a Petition for Devolutive Appeal on April 20, 2021.

3 RULE 4-3. TIME TO FILE; EXTENSION OF TIME, reads, in pertinent part:

The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set

a reasonable return date within which the application shall be filed in the appellate court. The

return date in civil cases shall not exceed 30 days from the date of notice, as provided in La.

C.C.P. art. 1914. In criminal cases, unless the judge orders the ruling to be reduced to writing,

the return date shall not exceed 30 days from the date of the ruling at issue. When the judge

orders the ruling to be reduced to writing in criminal cases, the return date shall not exceed 30

days from the date the ruling is signed. In all cases, the judge shall set an explicit return date; an

appellate court will not infer a return date from the record.

21

All of Defendants’ appeals were filed within thirty days of the designation of

the judgment as final.4 Moreover, a reversal in favor of any of Defendants would

terminate litigation as to one or all Defendants. Our appellate review also

promotes judicial efficiency and fundamental fairness. Accordingly, we convert

Defendants’ appeals to applications for supervisory review and proceed with our

substantive analysis.

LANDRY

Landry contends the trial court erred by grouping all Defendants together

and treating them as one entity. Landry asserts that although La. R.S.

9:2772(H)(1) contains a fraud exception,5 the Petkovichs provided no evidence to

establish fraud committed by Landry. Therefore, Landry avers the trial court erred

by not dismissing claims for fraud and intentional misrepresentation as perempted.

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,

4 Gulf Coast’s Petition for Devolutive Appeal was not filed within thirty days of the notice of the

March 11, 2021 judgment, which creates the argument that it should not be converted to a

supervisory writ for failure to comply with the requirement that a notice of intent for filing a

supervisory writ be filed within thirty days of the notice of judgment.

However, the Notice of Appeal from the 25th Judicial District Court notes that Gulf

Coast submitted a motion of appeal on April 9, 2021. Gulf Coasts contends this is because it fax

filed a Motion for Devolutive Appeal prior to the April 20, 2021 stamped filing. Additionally,

“the delay for filing an appeal of a partial judgment begins on the day the notice of signing a

motion to certify is mailed.” Fraternal Order of Police v. City of New Orleans, 02-1801, p. 5

(La. 11/8/02), 831 So. 2d 897, 900. Gulf Coast’s Petition for Devolutive Appeal was filed within

thirty days of the notice of the signing of the trial court’s certification of the judgment as final.

Moreover, Defendants’ Motion to Designate Judgment as Final Judgment or Alternatively to Fix

Return Date for Supervisory Writ Application was filed on March 26, 2021. Lastly, “[t]he

appellate court shall render any judgment which is just, legal, and proper upon the record on

appeal.” La. C.C.P. art. 2164. As such, we convert Gulf Coast’s appeal to a writ as well.

5 See McGaha, 21-0244, p. 41, 335 So. 3d at 867.

22

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) 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.

* * *

B. (1) The causes which are perempted within the time

described above include any action:

(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.

(c) For injury to the person or for wrongful death

arising out of any such deficiency.

(d) Brought against a person for the action or

failure to act of his employees.

(2) Deficiency, as used in this Section, includes failure to

warn the owner of any dangerous or hazardous condition,

regardless of when knowledge of the danger or hazard is

obtained or should have been obtained.

* * *

H. (1) The 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. The provisions

of this Subsection shall be retroactive.

23

(2) 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. However, if fraud is

alleged in nonresidential contracts in an action

commenced after the expiration of the five-year period

provided by this Section, and the court determines that

the allegation was brought in bad faith and no fraud is

found, then the party who made the allegation shall be

liable for court costs and attorney fees. If fraud is proven,

then the party that has committed the fraud shall be liable

for court costs and attorney fees.

(3) Fraud, as used in this Section, shall have the same

meaning as provided in Civil Code Article 1953.

As we explained in McGaha,

“Fraud” is defined as 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.” La. C.C. art. 1953. In Yi-Zarn

Wang v. Boudreaux, this Court noted “[t]he two essential

elements of fraud are the intent to defraud or gain an

unfair advantage and actual or probable damage.” 2020-

0249, p. 12 (La. App. 4 Cir. 1/15/20), 310 So.3d 730, 738

(quoting Dutton & Vaughan, Inc. v. Spurney, 600 So.2d

693, 698 (La. App. 4 Cir. 1992)).

The essential elements of “intentional

misrepresentation” are “(1) a misrepresentation of

material fact, (2) made with the intent to deceive, (3)

causing justifiable reliance with resulting injury.” Sys.

Eng’g & Sec., Inc. v. Sci. & Eng’g Ass’ns, Inc., 2006-

0974, p. 3 (La. App. 4 Cir. 6/20/07), 962 So.2d 1089,

1091 (quoting Goodman v. Dell Publishing Co., 1995

WL 428602 (E.D. La.1995)).

21-0244, pp. 37-38, 335 So. 3d at 865.

Mrs. Petkovich testified that she could not recall any specific statements

made by Landry while performing work on their land. She then stated that she did

not recall any conversations with Landry prior to purchasing their home or

regarding the wind load of the home. Mr. Petkovich testified that he never had a

conversation with an employee of Landry about their home. He also stated that he

never received any information about his home from Landry or relied upon any

24

information from Landry when deciding to purchase the home. Further, Mr.

Petkovich stated that he had no information that Landry attempted to deceive him,

give him false information, injure him, damage his home, or acted in an “immoral,

unethical, oppressive, or unscrupulous way.”

Moreover, Landry attached the following requests for admissions to the

Exception of Peremption:

REQUEST FOR ADMISSION NO. 2:

Please admit that you did not rely on any representation

made to you Landry Mobile Home Transporters, Inc. or

its employees in reaching your decision to purchase the

Manufactured housing at issue in this litigation.

RESPONSE TO REQUEST FOR ADMISSION NO.

2:

Request for Admission No 2 is admitted.

REQUEST FOR ADMISSION NO. 3:

Please admit that there is no written contract between

you and Landry Mobile Home Transporters, Inc. relating

in any way to the manufactured housing at issue in this

litigation.

RESPONSE TO REQUEST FOR ADMISSION NO.

3:

Request for Admission No. 3 is admitted.

REQUEST FOR ADMISSION NO. 4:

Please admit that you have no factual information which

establishes that Landy Mobile Home Transporters. Inc.

or its employees made any false representations to you

before your purchase of the manufactured housing at

issue in this litigation.

RESPONSE TO REQUEST FOR ADMISSION NO.

4:

Request for Admission No. 4 is admitted.

REQUEST FOR ADMISSION NO. 6:

Please admit that you have no factual information which

establishes that Landry Mobile Home Transporters, Inc.

had any involvement with the testing of the manufactured

housing at issue to establish, determine or certify its wind

load rating.

RESPONSE TO REQUEST FOR ADMISSION NO.

6:

Request for Admission No. 6 is admitted.

25

REQUEST FOR ADMISSION NO. 8:

Please admit that you have no information that Landry

Mobile Home Transporters, Inc. or its employees

concealed my information from you regarding the

attributes of the manufactured housing, including but not

limited to its wind load rating.

RESPONSE TO REQUEST FOR ADMISSION NO.

8:

Request for Admission No. 8 is admitted.

REQUEST FOR ADMISSION NO. 9:

Please admit that Landry Mobile Home Transporters,

Inc. did not sell the manufactured housing at issue to

you.

RESPONSE TO REQUEST FOR ADMISSION NO.

9:

Request for Admission No. 9 is admitted.

In the opposition to the exception, the Petkovichs stated that Landry

transported their home in two pre-constructed sections, placed them on piers,

leveled, and joined the two sections together. The Petkovichs claimed that

“Landry knew, or should have known, that, in order to sustain wind speeds of 140

miles-per-hour, the roof had to be properly constructed with the appropriate

materials.”

From the evidence reviewed above, the Petkovichs lacked evidence of fraud

or intentional misrepresentation by Landry. It is undisputed that Landry did not

participate in the formation of the Petkovichs’ contract. As we stated in McGaha,

this connotes that the Petkovichs’ claims against Landry were based in “allegations

of a deficient performance” and these claims were “perempted by La. R.S.

9:2772.” 21-0244, p. 44, 335 So. 3d at 869. Accordingly, in light of our review,

the trial court erred by denying Landry’s Exception of Peremption in part, as it

relates to fraud and intentional misrepresentation. Therefore, Landry’s writ is

granted and the Petkovichs’ fraud and intentional misrepresentation claims against

26

Landry are dismissed with prejudice.

NO CAUSE OF ACTION

Franklin and NTA maintain that the trial court erred by denying their

Exceptions of No Cause of Action.

“A peremptory exception of no cause of action questions whether the law

extends a remedy against a defendant to anyone under the factual allegations of a

petition.” White v. New Orleans Ctr. for Creative Arts, 19-0213, p. 7 (La. App. 4

Cir. 9/25/19), 281 So. 3d 813, 819. “An exception of no cause of action tests ‘the

legal sufficiency of the petition by determining whether the law affords a remedy

on the facts alleged in the pleading.’” Moreno v. Entergy Corp., 10-2281, p. 3 (La.

2/18/11), 62 So. 3d 704, 706 (quoting Everything on Wheels Subaru, Inc. v. Subaru

South, Inc., 616 So. 2d 1234, 1235 (La. 1993)). Further,

“In deciding an exception of no cause of action a

court can consider only the petition, any amendments to

the petition, and any documents attached to the petition.”

Green, 2017-0695, p. 4, 248 So.3d at 453(quoting 2400

Canal, LLC v. Bd. of Sup’rs of Louisiana State Univ. Agr.

& Mech. Coll., 2012-0220, p. 7 (La. App. 4 Cir. 11/7/12),

105 So.3d 819, 825). “A court cannot consider assertions

of fact referred to by the various counsel in their briefs

that are not pled in the petition.” Id. “The grant of the

exception of no cause of action is proper when, assuming

all well pleaded factual allegations of the petition and any

annexed documents are true, the plaintiff is not entitled to

the relief he seeks as a matter of law.” Id. Further, “any

doubt must be resolved in the plaintiffs’ favor.” Id.

However, the mere conclusions of the plaintiff

unsupported by facts do not set forth a cause of action.

Green, 2017-0695, p. 4, 248 So.3d at 453-54 (citing 831

Bartholomew Investments–A, L.L.C. v. Margulis, 2008-

0559, p. 10 (La. App. 4 Cir. 9/2/09), 20 So.3d 532, 538).

White, 19-0213, pp. 7-8, 281 So. 3d at 819.

Appellate courts review a trial court’s ruling on an exception of no cause of

action de novo because the exception raises a question of law. Ocwen Loan

27

Servicing, LLC v. Porter, 18-0187, p. 3 (La. App. 4 Cir. 5/23/18), 248 So. 3d 491,

495.

Our de novo review “is limited to reviewing the four

corners of the petition to determine whether on its face

the petition states a cause of action.” Id. “[A]ll well-

pleaded facts in the petition are accepted as true for

purposes of determining the issues raised by an exception

of no cause of action. The mover bears the burden of

proving that the petition states no cause of action; and de

novo review does not take into consideration whether the

party will be able to prevail on the merits.” Id.

Id. (quoting Boyd v. Cebalo, 15-1085, p. 2 (La. App. 4 Cir. 3/16/16), 191 So. 3d

59, 61).

In their Petition, the Petkovichs asserted that “Franklin had advertised as

being able to withstand winds of up to one hundred forty (140) miles per hour.”

Further, the Petition alleged:

XVIII.

Also during the design and manufacture of

Petitioners’ Home, Franklin had an engineering firm,

NTA, confirm that both the design and manufacturing of

Plaintiffs’ Home (prior to leaving Franklin’s facility)

allegedly met the relevant building codes and certain

design loads, such as the aforementioned one hundred

forty (140) miles per hour wind rating.

* * *

XX.

Also upon information and belief. Gulf Coast,

Franklin, Landry, and NTA had knowledge of these vices

and defects in Petitioners’ Home, but failed to disclose

this information to the Petitioners at the time of the

purchase and, in fact, fraudulently and falsely represented

that the Home did not contain the defects.

XXI.

Gulf Coast, Franklin, Landry, and NTA acted

fraudulently by informing Petitioners at the time of

purchase that their Home could sustain wind loads of one

hundred forty (140) miles per hour.

XXII.

Petitioners would not have purchased the Home

had they known of the vices and defects in its design,

28

manufacture, construction and/or assembly.

* * *

XXXIII.

Upon information and belief, Gulf Coast, Franklin,

Landry, and NTA supplied products to the Petitioners

that it knew or should have known were defective, and

knew could not be repaired. Gulf Coast, Franklin,

Landry, and NTA made intentional or negligent

misrepresentations regarding the home’s ability to

withstand high winds and failed to disclose problems

with this modular home model.

* * *

XLIII.

Petitioners reaver and reallege all the preceding

allegations of the preceding paragraphs.

XLIV.

Gulf Coast, Franklin, Landry, and NTA made

fraudulent misrepresentations and omissions to

Petitioners about the design, manufacture, and structural

integrity of Petitioners’ Home, including without

limitation, misrepresenting that the home could sustain

wind loads of one hundred forty (140) miles per hour.

XLV.

As a result of their actions and inactions, Gulf

Coast, Franklin, Landry, and NTA are liable to

Petitioners for all damages resulting therefrom,

including, but not limited to: rescission of the sale or

specific performance; quanti minoris damages;

consequential and/or resultant damages; loss of contents

and other personal property; inconvenience and

displacement; mental anguish; loss of enjoyment of life;

personal injuries resulting from mold exposure and/or

unsafe conditions at the property; exemplary/punitive

damages; interest, attorneys’ fees, and costs; and any and

all other damages reasonable upon the premises, and

proven at trial.

The trial court, upon reviewing the Petition, found:

Franklin Homes and NTA are the only defendants

asserting this particular exception. They argue that

plaintiffs failed to allege sufficient facts to state a cause

of action under the various legal theories asserted by

plaintiffs. The only claims that plaintiffs have remaining,

after the exceptions of peremption and prescription were

sustained in part, are the claims based on fraud and

intentional misrepresentation.

Plaintiffs alleged that defendants made fraudulent

misrepresentations and omissions regarding the design,

29

manufacture, and structural integrity of Petitioners’

Home, including without limitation, misrepresenting that

the home could sustain wind loads of 140 miles per hour.

An exception of no cause of action questions

whether the law extends a remedy against the defendant

to anyone under the factual allegations of the petition.

Scott v. Zaheri, 2014-0726 (La. App. 4 Cir. 12/3/14), 157

So.3d 779. The purpose of the exception is not to

determine whether the plaintiff will prevail at trial, but to

ascertain if a cause of action exists. Bruzeau v. Wells

Fargo Bank, N.A.. 2012-0075 (La. App. 4 Cir. 8/2/12),

99 So.3d 1010.

Plaintiffs sufficiently plead a cause of action for

fraud and intentional misrepresentation based on their

allegations concerning the representations of the modular

home’s wind rating.

Upon our de novo review, we agree with the trial court. The Petkovichs

sufficiently pled claims for fraud6 and intentional misrepresentation.7 As such,

Franklin and NTA’s writs are denied as it pertains to the Exceptions of No Cause

of Action.

SUMMARY JUDGMENT

The remaining defendants, Gulf Coast, Franklin, and NTA filed appeals

contending the trial court erred by denying their Motions for Summary Judgment.

6 As we stated in McGaha:

“Fraud” is defined as 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.” La. C.C. art. 1953. In Yi-

Zarn Wang v. Boudreaux, this Court noted “[t]he two essential

elements of fraud are the intent to defraud or gain an unfair

advantage and actual or probable damage.” 2020-0249, p. 12 (La.

App. 4 Cir. 1/15/20), 310 So.3d 730, 738 (quoting Dutton &

Vaughan, Inc. v. Spurney, 600 So.2d 693, 698 (La. App. 4 Cir.

1992)).

21-0244, p. 37, 335 So. 3d at 865.

7 Again, from McGaha:

The essential elements of “intentional misrepresentation”

are “(1) a misrepresentation of material fact, (2) made with the

intent to deceive, (3) causing justifiable reliance with resulting

injury.” Sys. Eng’g & Sec., Inc. v. Sci. & Eng’g Ass’ns, Inc., 2006-

0974, p. 3 (La. App. 4 Cir. 6/20/07), 962 So.2d 1089, 1091

(quoting Goodman v. Dell Publishing Co., 1995 WL 428602 (E.D.

La.1995)).

21-0244, pp. 37-38, 335 So. 3d at 865.

30

For the following reasons, we find their assertions lack merit and deny the writs

filed by Gulf Coast, Franklin, and NTA.

Standard of Review

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action, except those disallowed by Article

969.” La. C.C.P. art. 966(A)(2). “[A] motion for summary judgment shall be

granted if the motion, memorandum, and supporting documents show that there is

no genuine issue as to material fact and that the mover is entitled to judgment as a

matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof rests with the

mover.” La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the

burden of proof at trial . . . the mover’s burden on the motion does not require him

to negate all essential elements of the adverse party’s claim.” Id. Instead, the

mover must “point out to the court the absence of factual support for one or more

elements essential to the adverse party’s claim, action, or defense.” Id. Then,

“[t]he burden is on the adverse party to produce factual support sufficient to

establish the existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law.” Id.

“Appellate courts review motions for summary judgment de novo under the

same criteria that govern the trial court’s consideration of whether summary

judgment is appropriate.” Wood v. Del Giorno, 06-1612, p. 3 (La. App. 4 Cir.

12/19/07), 974 So. 2d 95, 98.

Gulf Coast

Gulf Coast’s application for supervisory review seeks review of the trial

court’s denial of its Motion for Summary Judgment. Specifically, Gulf Coast

31

contends the Petkovichs cannot carry their burden of proof for the fraud and

intentional misrepresentation claims.

In support, Gulf Coast submitted Mrs. Petkovichs’ deposition wherein she

stated that Gulf Coast knew their home was not built to the specifications it

represented. She testified, “I guess I just feel that it’s possible that they knew

things weren’t the way that it should have been.” She further stated that “[m]y

understanding is that the home should be able to withstand 140-mile-per-hour

wind. . . . I guess my understanding was that at 140-mile-per-hour wind that I

shouldn’t have much damage. I guess, you know, just was able to withstand 140-

miles-an-hour wind.” However, Mrs. Petkovich could not recall the exact

language used by the Gulf Coast employee. Mr. Petkovich stated in his deposition

testimony that he did not recall anything the salesperson or other Gulf Coast

employees said. Likewise, he did not recall discussing the alleged 140 miles per

hour wind rating prior to purchasing the home.

In opposition, the Petkovichs submitted additional deposition excerpts of the

Petkovichs. Mrs. Petkovich stated “Well, that’s what the paperwork we had said.

That the homes were built so it would withstand 140-mile-an-hour wind. That was

one of the things that were brought to our attention at the time of the sale; and, you

know, we were replacing a home that was from a hurricane.” Although, she

admitted that the documents did not contain the word “withstand,” but that is what

she understood the 140 miles per hour rating to mean.

The Petkovichs also attached a report from Gurtler Bros. Consultants, Inc.,

an engineering consulting company, wherein the expert, Michael Gurtler – the

president and operator, stated that after reviewing the damage to the Petkovichs’

home, the calculations may likely result in a “constructive total loss.” The Gurtler

32

report summarized their conclusions regarding issues with the Petkovichs’ home:

The roof is constructed at the plant in fold-down

sections. For transportation, the roof is folded down and

once on site, the roof is unfolded to form a gable roof.

The roof failed at each of the folded joints. The roof

covering was damaged and failed prematurely due to

defective installation. Water that landed on the roof

above any joint was allowed to flow into the house

through the joint. Additionally, we have inspected over

10 homes built by die same manufacturer in the same

time frame and installed in this area. After reviewing the

installation instructions from the manufacturer, we

determined that the manufacturer was to ship 15# roofing

felt for use at these joints. We consistently found that a

thin paper material, not suitable for use as roofing felt,

was substituted for the felt specified by the manufacturer.

Every home we looked at suffered water intrusion

damages as a result of similar roof failures and excess

water intrusion at the hinged joint.

The OSB sub-decking and exterior wall sheathing

that got wet as a result of the subsequent rainwater

intrusion must be removed and replaced, as it has lost its

structural integrity and is promoting mold growth.

The building framing is clearly shifted and out of

position due to wind effects caused by the storm. It

should also be noted that the home was constructed to

meet a wind load of 140 miles per hour. Sustained winds

in this area during Hurricane Isaac were well below this

threshold.

Numerous damaged and poor quality roof trusses

were observed. The shifted framing will impair the

ability of the structure to resist future wind events.

Substantial gusset plates will have to be added to the

deformed and damaged connections in the attic to restore

structural integrity. The connections will have to be

designed and stamped by a Louisiana Licensed

Professional Engineer. The shims used on top of some of

the foundation piers are not installed in accordance with

manufacturer’s installation instructions. Improper

shimming along with defective materials and

construction in the modular home caused the house to

shift.

Considerable water entered the house as result of

roof damages caused by defective installation. Severe

interior damages were noted in most interior rooms. The

EPA guidelines for remediation after a moisture intrusion

event indicate that any absorbent materials (sheetrock,

insulation and the kitchen or bathroom cabinet frames)

33

must be removed and replaced, any semi-absorbent

materials (wood framing and plywood) must be dried,

cleaned and sealed with an anti-fungicidal treatment and

any non-absorbent materials must be cleaned.

Under-floor insulation is kept in place with a vapor

barrier. Once the insulation was saturated due to the

leakage of the storm, the insulation kept the water in

contact with the floor framing system and subfloor,

preventing the house from drying. We inspected this

house over 7 weeks after the storm passed and water

could still be found running from the vapor barrier when

it was punctured.

When viewing the cement board siding, we noted

that there does not appear to be butt flashing under the

siding, as required by the manufacturer. Gaps noted at

numerous siding seams suggest twisting and racking of

the house and not long-term foundation settlements.

Additionally, during our inspections of the other modular

homes with cement board siding installed, we noted that

fasteners were installed to a depth where the nail head

almost penetrates the board. This is a violation of the

manufacturer’s installation instructions and contributed

to the siding being weaker than designed and contributed

to its failure.

Because the house could not be properly dried,

there is not one piece of wood framing inside this house

that was not subjected to excess moisture either in die

form of direct rainwater or elevated humidity. In our

opinion, based on the racking and damages to the

structure and the remediation required by the EPA

guidelines, the costs to repair this house will be

substantial and could approach the point of being a

constructive total loss. Should you request, we can

provide an adjustment in Xactimate for the damage repair

costs for clarification.

If you have any questions regarding this report or

need further assistance, please call. This report is an

instrument of professional service and is the property of

Gurtler Bros. Consultants, Inc. This report is strictly and

solely a professional opinion of the subject property

based on the observations made on the day of our

Inspection.

Any third party use of this report is prohibited. The

scope of this report is limited to the above items. This

report does not include environmental aspects or building

code compliance.

Further, excerpts from Michael Gurtler’s deposition in a similar matter with

34

different plaintiffs was attached, wherein Mr. Gurtler discussed some deficiencies

found in other modular homes in the area.

Franklin

Like Gulf Coast, Franklin’s application for supervisory review seeks review

of the trial court’s denial of its Motion for Summary Judgment regarding the

Petkovichs’ claims of fraud and intentional misrepresentation. Specifically,

Franklin maintains the trial court erred “because the evidence demonstrated that

the only statements attributable to Franklin were neither fraudulent nor intentional

misrepresentations and Plaintiffs failed to present any competent evidence of intent

on the part of Franklin to obtain an unjust advantage or cause a loss or

inconvenience to Plaintiffs.”

In support, Franklin presented excerpts from the Petkovichs’ depositions.

Mrs. Petkovich contends she and her husband partook in conversations at Gulf

Coast about the home being about to withstand 140 mile per hour winds. She

stated that she did not have any verbal communications with anyone from Franklin

prior to purchasing the home. When Mrs. Petkovich was questioned regarding the

documents from Franklin that included language about 140 mile-per-hour winds,

she could not say that she relied upon the documents to purchase her home.

However, she testified that she believed Franklin had knowledge of what damage

her home could sustain during a storm with less than 140 mile per hour sustained

winds, such as Hurricane Isaac. Mrs. Petkovich did not reach out to anyone at

Franklin prior to purchasing the home.

Further, a document entitled “Quotation” from Franklin included the

statement “ADD 140 MPH WIND” for $1,000.00. The “data plate” document also

included “140MPH” next to “Wind Speed MPH” describing some specifications of

35

the home. Franklin also attached excerpts from Mr. Gurtler’s deposition from

another modular home lawsuit. He explained that a 140 mile-per-hour standard

does not mean a home will experience no damage at all, but is a “theoretical design

standard.”

In opposition, the Petkovichs submitted much of the same excerpts of

depositions and documents as Franklin. Mrs. Petkovich stated that one of the

reasons they selected a Franklin home was “I guess it was just the style of the

house, and the fact that it was supposed to withstand the -- you know, about the

hurricane winds.” In addition, the excerpt contained the following colloquy:

Q: In your -- in your Petition, you make an allegation

about 140-miles-per-hour winds. Can you tell me about

that?

A. Well, that’s what the paperwork we had said. That the

homes were built so it would withstand 140-mile-an-hour

wind. That was one of the things that were brought to our

attention at the time of the sale; and, you know, we were

replacing a home that was from a hurricane.

Q. And that’s the basis of the allegation in your Petition?

A. Right. That – that’s what the homes were supposed to

be able to withstand -- 140-miles-an-hour wind.

Again, Mrs. Petkovich stated that she understood that to mean the home could

withstand 140 mile per hour winds. However, Mrs. Petkovich admitted she had no

verbal communication with Franklin prior to purchasing the home.

The Gurtler report again opined that the Petkovichs’ home could be a

“constructive total loss” and included the conclusions discussed in the Gulf Coast

section above. Further, Mr. Gurtler, in a deposition from another modular home

lawsuit, responded thusly when asked if Franklin, NTA, Landry, or Affordable

Homes committed fraud:

A. Okay. There’s certainly some inconvenience to

others, meaning that these homeowners were

tremendously inconvenienced because their houses were

36

basically destroyed in a storm that was significantly

below the wind rating where their house would be

expected to be destroyed. So from that point of view I

think there is a loss and inconvenience to these

homeowners.

Suspress [sic] -- suppression of the truth or

misrepresentation, I don’t -- I think a misrepresentation

could be interpreted as these people bought a home that

was supposed to survive to a certain wind load. You have

a storm coming that’s clearly well below that wind load,

you would not expect widespread and catastrophic

damages based on that storm forecast.

Now every storm can have wide variations of loads

in a particular area because there’s tornados involved and

there’s a lot going on from a meteorology point of view.

But in this case we had 10 or so homes in 10 or so

different locations that all suffered the same basic

damage. So I’m thinking that the problem that was

experienced by these homeowners is more of a design

and construction issue, than 10 different places in South

Plaquemines Parish each got hit by tornados at -- at the

passage of this relatively minor storm. But in storms we

all know anything is possible.

I think the misrepresentation might be that the

homeowners were told this house was stronger and

would survive better in minor storms than clearly these

houses did in this relatively minor storm. Does that

answer your question?

NTA

NTA contends the trial court erred by denying the Motion for Summary

Judgment as it related to the Petkovichs’ fraud and intentional misrepresentation

claims because the Petkovichs “produced no proof of NTA’s Intent to harm them

nor that NTA said their home could ‘withstand’ 140 MPH winds.”

NTA submitted Mrs. Petkovichs’ deposition wherein she stated that she had

no verbal communication with NTA prior to purchasing the home. When asked

about NTA specifically, Mrs. Petkovich stated:

Q. All right. Did you believe that anyone at NTA

intended for the damages that occurred during Hurricane

Isaac to occur?

37

A. Again, I’m not saying they intended, but there is a

possibility of they had knowledge what could have

happened in the situation.

Mr. Petkovich stated that he did not have verbal communication with anyone from

NTA before or after purchasing the home.

NTA also attached the testimony of David Tompos, the general manager and

vice-president of NTA, from another plaintiffs’ suit against Defendants. He stated

he was a licensed and registered engineer in Louisiana. Further, excerpts from Mr.

Gurtler’s deposition in another matter was attached, wherein he was questioned by

counsel for NTA. He stated that while he received an engineering degree, he was

not a licensed professional engineer.

The Petkovichs opposed and attached excerpts from their depositions

including the information submitted against Gulf Coast and Franklin. They also

attached the sales documents, including a letter from NTA. The NTA letter stated:

This is to confirm that NTA, Inc., inspected the

above referenced model while being built in Franklin

Homes production facility. NTA, Inc. also reviewed and

approved the model plans for SN#13219 on December

12, 2006. The plan review and in plant inspection

confirmed that the modular unit was built to the

following codes:

2003 International Residential Code

2002 National Electrical Code

The plans were designed and approved for the following

design loads:

20 psf Roof Live Load

40 psf Floor live Load

140 mph Wind - Exposure C

Seismic Design Category C

Also, the data plate specification sheet for the Petkovich home stated that the

design was approved by NTA with “140MPH” listed as the “Wind Speed MPH.”

38

The Petkovichs also attached portions of Mr. Gurtler’s deposition testimony

from another matter regarding his opinion on whether fraud was committed, block

quoted above in the section on Franklin. The Gurtler conclusions from the report

were also included.

Summary Judgment Application

In denying Gulf Coast’s, NTA’s, and Franklin’s Motions for Summary

Judgment, the trial court stated:

All four defendants moved for summary judgment

arguing that there are no genuine issues of material fact

that there is any factual basis for plaintiffs’ claims against

them. Defendants and plaintiffs submitted copious

amounts of evidence to support their respective positions.

This case boils down to a credibility call as to what

the plaintiffs were or were not told about the 140 mile per

hour wind rating for their modular home. Credibility

determinations are unsuited for a motion for summary

judgment. Alfred Conhagen, Inc, of La. v. Ruhrpumpen,

Inc., 2018-0414 (La. App. 4 Cir. 12/19/18), 262 So.3d

306, writ denied, 2019-0126 (La. 3/18/19), 267 So.3d 94.

In ruling on a motion for summary judgment, the trial

court cannot consider the merits, evaluate testimony, or

weigh evidence. Suire v. Lafayette City-Parish Consol.

Gov’t, 2004-1459 (La. 4/12/05), 907 So.2d 37.

We agree. Our de novo review of the Petkovichs’ claims against Gulf Coast,

NTA, and Franklin reveal genuine issues of material fact and credibility issues as

to what the Petkovichs were told, what they relied upon, and juxtaposed expert

testimony.8 “[A] motion for summary judgment is not suitable for the disposition

of cases requiring a judicial determination of subjective facts such as intent,

knowledge, motive, malice, or good faith.” Ballex v. Naccari, 95-1339, p. 2 (La.

App. 4 Cir. 9/15/95), 663 So. 2d 173, 175. Additionally, we are prevented from

8 Additional expert testimony taken by deposition after the hearing in lieu of live testimony at the

hearing. The depositions were not discussed herein because the depositions were not attached in

support of or in opposition to the Motions for Summary Judgment.

39

weighing evidence. Coto v. J. Ray McDermott, S.A., 99-1866, p. 4 (La. App. 4 Cir.

10/25/00), 772 So. 2d 828, 830. Accordingly, Gulf Coast’s, NTA’s, and Franklin’s

writs are denied.9

9 Gulf Coast, NTA, and Franklin also assert their Motions for Summary Judgment should have

been granted because the Petkovichs were put on constructive notice after the previous Hurricane

Gustav, which would mean the fraud and intentional misrepresentation claims were prescribed as

well. We addressed this issue while addressing the Petkovichs’ appeal and examined the same

issue in McGaha, as follows:

Gulf Coast, Franklin Homes, and NTA contend that

Plaintiffs should have acquired knowledge of any alleged defect

due to the damages incurred by Hurricane Gustav. In discussing

constructive notice, this Court has held:

“Constructive knowledge has been defined by our

courts as whatever notice is enough to excite attention and

put the injured party on guard or call for inquiry.” Oracle

Oil, L.L.C. v. EPI Consultants, Div. of Cudd Pressure

Control, Inc., [20] 11-0151, p. 6 (La. App. 1 Cir.

9/14/11), 77 So.3d 64, 69. “Such notice is tantamount to

knowledge or notice of everything to which a reasonable

inquiry might lead, and such information or knowledge as

ought to reasonably put the injured party on inquiry is

sufficient to start the running of prescription.” Id. “In

assessing whether an injured party possessed constructive

knowledge sufficient to commence the running of

prescription, this court’s ultimate consideration is the

reasonableness of the injured party’s action or inaction in

light of the surrounding circumstances.” Id., [20]11-0151,

p. 7, 77 So.3d at 69. “The ultimate issue is the

reasonableness of the patient’s action or inaction, in light

of his education, intelligence, the severity of the

symptoms, and the nature of the defendant’s conduct.’ ”

[In Re Med. Review Panel of] Lafayette, [20]03-0457, p. 6

[(La. App. 5 Cir. 10/15/03)], 860 So.2d [86,] 89

[(quoting] Campo v. Correa, [20]01-2707, p. 12 (La.

6/21/02), 828 So.2d 502, 511[)].

In re Hume, 2014-0844, pp. 7-8 (La. App. 4 Cir. 4/1/15), 165

So.3d 233, 239.

The record herein lacks evidence that Plaintiffs’ education

and intelligence should have led them to conclude Franklin Homes,

Gulf Coast, and/or NTA misrepresented the sturdiness of the home

in the formation of the contract based on the damages sustained in

Hurricane Gustav. Moreover, we take judicial notice that the top

wind speeds during Hurricane Gustav were a maximum 117 per

hour, not 140, which is what the home was warranted to

withstand.13 See Daurbigney v. Liberty Pers. Ins. Co., 2018-929, p.

2 (La. App. 3 Cir. 5/9/19), 272 So. 3d 69, 71 n. 1. During

Hurricane Gustav, Plaintiffs lost some shingles leading to water

intrusion and damages to a limited area. Hurricane Isaac resulted in

the roof partially collapsing, as well as water intrusion and mold

throughout the entirety of the home. Thus, Hurricane Isaac, and the

resulting damage, placed Plaintiffs on notice that the alleged

40

DECREE

For the above-mentioned reasons, we find the trial court did not err by

finding the Petkovichs’ claims against Defendants, except for those regarding fraud

and intentional misrepresentation, were perempted or prescribed. The trial court

properly dismissed those claims in line with our previous jurisprudence, McGaha.

Upon reviewing, we find Defendants’ appeals necessitated conversion to

applications for supervisory review.

Finding the Petkovichs’ claims against Landry were based in “allegations of

a deficient performance,” we find all of the Petkovichs’ claims against Landry

were perempted. Therefore, we grant Landry’s writ and the Petkovichs’ fraud and

intentional misrepresentation claims against Landry are dismissed with prejudice.

We find the Petkovichs sufficiently pled claims for fraud and intentional

misrepresentation. As such, Franklin and NTA’s writs are denied as to the

Exceptions of No Cause of Action. Lastly, we find genuine issues of material fact

remain as to the Petkovichs’ claims of fraud and intentional misrepresentation

against Gulf Coast, NTA, and Franklin. Questions surrounding credibility,

juxtaposed expert testimony, intent, and motive are not suitable for summary

judgment. Therefore, we deny Gulf Coast, NTA, and Franklin’s writs regarding

their Motions for Summary Judgment.

AFFIRMED IN PART; REVERSED IN PART; WRIT GRANTED IN PART;

WRITS DENIED

representations were false. The prescriptive period commenced to

run after the damage caused by Hurricane Isaac.

McGaha, 21-0244, pp. 38-40, 335 So. 3d at 865-66. Accordingly, these assertions lack merit.

41