The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
19-312 Consolidated With 19-329
THE RAPIDES PARISH SCHOOL BOARD
VERSUS
ZURICH AMERICAN INSURANCE COMPANY, ET AL
**********
ON APPLICATION FOR SUPERVISORY WRITS FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 254,644 F
HONORABLE GEORGE C. METOYER, DISTRICT JUDGE
**********
JOHN E. CONERY
JUDGE
**********
Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
WRITS DENIED.
Adrian G. Nadeau
J. Weston Clark
Long Law Firm, L.L.P.
1800 City Farm Drive, Building 6
Baton Rouge, Louisiana 70806
(225) 922-5110
COUNSEL FOR DEFENDANTS/RELATORS/RESPONDENTS:
Alliance Design Group, LLC
XL Specialty Insurance Company
Temple A. Stephens
Comeaux, Stephens & Grace
One Lakeway Center, Suite 1060
3900 North Causeway Boulevard
Metairie, Louisiana 70002
(504) 219-2030
COUNSEL FOR DEFENDANTS/RELATORS/RESPONDENTS:
Ratcliff Construction Company, LLC
Zurich Insurance Company
James C. Downs
Attorney At Law
1254 Dorchester Drive
Alexandria, Louisiana 71303
(318) 448-3439
COUNSEL FOR PLAINTIFF/RELATOR/RESPONDENT:
The Rapides Parish School Board
CONERY, Judge.
This matter is before the court on the parties’ consolidated writ applications.
In writ application number 19-312, Relators Alliance Design Group, L.L.C.
(Alliance), Alliance’s Insurer, XL Specialty Insurance Company (XL Specialty
Insurance), Ratcliff Construction Company, L.L.C. (Ratcliff), and Ratcliff’s insurer,
Zurich American Insurance Company (Zurich) (collectively Defendants), seek
review of a trial court’s judgment denying its exception of peremption in part. In
writ application number 19-329, Relator is the plaintiff, Rapides Parish School
Board (RPSB), and via that writ application, RPSB seeks review of the trial court’s
decision to partially grant Defendants’ exception of peremption. For the following
reasons, we deny both writ applications.
FACTS AND PROCEDURAL HISTORY
This case involves a claim for property damages originally sustained when a
fire sprinkler head discharged water at a junior high school in Woodworth, Louisiana.
On December 26, 2014, at 3:00 a.m., a fire alarm activated at Caroline Dormon
Junior High. When responding to the alarm, the local fire department did not find
any fire, smoke, or heat. However, the fire department observed that a fire-sprinkler
head in the principal’s office had activated and released water, causing flooding in
that office and a substantial part of the administrative wing of the school. Allegedly,
the sprinkler discharge was caused by a defect in the design and construction of the
school’s fire suppression system. Defendant Alliance was the architect for the
school, and Defendant Ratcliff was the general contractor for the construction of the
school. On August 17, 2012, RPSB signed a Certificate of Substantial Completion
and accepted Ratcliff’s construction of the school with a few limited reservations.
As a result of the flooding on December 26, 2014, RPSB timely filed the
instant lawsuit on December 18, 2015, against Alliance and Ratcliff and their
insurers, XL Specialty Insurance and Zurich, respectively. In the original petition,
RPSB alleges that the design and construction of the fire suppression system caused
the sprinkler system to discharge, and RPSB seeks to recover for damages resulting
from the discharge of water from the sprinkler head. RPSB alleges that the water
throughout the sprinkler system pipe was able to freeze and expand due to below
freezing temperatures in the attic space above the ceiling and that this expansion
affected the sprinkler head’s internal mechanisms, thus causing water to leak. RPSB
also alleges that the temperature in the attic where the pipes are located dropped
below freezing because the walls in the attic were not sufficiently insulated and
because some ceiling panels in the principal’s office were covered with insulation
which prevented warmer air from the building from rising to the attic area. In its
original petition, RPSB alleges that it is entitled to recover for the costs of repairing
the water damage to the school and to recover for future school repairs which may
be necessary due to defective conditions in the school.
Because Defendants Alliance and Ratcliff made allegations that the
spontaneous discharge of the sprinkler system at the school was caused by third party
fault, RPSB filed a first amended petition on July 28, 2017, adding claims against
Tyco Fire and Building Products (Tyco), which is the manufacturer of the sprinkler
head, and Anderson Fire Protection of Alexandria, L.L.C. (Anderson Fire
Protection), which is the subcontractor that installed the fire suppression system.
However, Tyco was subsequently dismissed from the lawsuit on an unopposed
motion for summary judgment. Although Anderson Fire Protection remains a
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defendant in the lawsuit, that defendant is not involved in the instant writ
applications.
In its first amended petition, RPSB also alleges that a post-incident inspection
of the fire suppression system revealed that the wrong sprinkler head had been
installed throughout the school and that many of the sprinkler heads were clogged
with a foreign material such that RPSB was required to replace the sprinkler heads
throughout the school. RPSB seeks to recover damages from Defendants due to
those defects.
On December 20, 2018, the trial court granted leave of court to allow RPSB
to file a second amended petition. In Paragraphs 34-35 of that petition, RPSB adds
allegations of the following deficiencies: 1) the failure to install a lower level of
insulation below the metal roof throughout the school; 2) the use of unfaced batt
insulation instead of foil-faced insulation throughout the school; 3) the failure to put
the proper vapor barrier behind the brick masonry; 4) the failure to properly
supervise the installation of an electric solar panel and electric conduit; 5) the use
of improper fan motors and circuit breakers in the heating, ventilation, and air
conditioning systems; 6) the failure to obtain a successful final electrical inspection
for the issuance of the certificate of occupancy; and 7) the making of false assurances
that the school would be built to higher than usual standards with regard to
environmental design and energy consumption. Given those deficiencies, RPSB
sought damages related both to property damage and to higher utility costs, plus
additional personnel costs resulting from monitoring the suspect systems.
Defendants filed an exception of peremption as to the second amended
petition, asserting that the newly-raised claims are barred by the five-year
peremptive periods set forth in La.R.S. 9:5607, which governs claims against
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architects, and La.R.S. 9:2772, which governs claims against building contractors.
Following a hearing, the trial court signed a judgment granting Defendants’
exception of peremption in part and dismissing a list of some of the specific
allegations raised in RPSB’s second amended petition.
The trial court also denied the exception of peremption in part, holding that
any allegations/claims in RPSB’s second amended petition not included in the list
of dismissed claims would be allowed to proceed.1 All Relators now seek review of
the trial court’s ruling by their respective applications for supervisory writs. In writ
application number 19-312, Defendants-Relators assert that the trial court erred
when it partially denied their exception of peremption. In writ number 19-329,
RPSB-Relator asserts that the trial court erred when it partially granted Defendants’
exception of peremption. Thus, Defendants take the position that the trial court
should have granted the exception of peremption in its entirety and dismissed all
claims raised in RPSB’s second amended petition. On the other hand, RPSB takes
the position that the trial court should have denied the exception of peremption in its
entirety and allowed all claims raised in its second amended petition to proceed.
LAW AND DISCUSSION
“The proper procedural vehicle to contest an interlocutory judgment that does
not cause irreparable harm is an application for supervisory writs. See La. C.C.P.
1
Defendants contend that, in essence, the trial court allowed any claims related to the fire
sprinkler system and insulation problems throughout the school, but disallowed the other claims
raised in Plaintiff’s second amended petition.
RPSB identifies the claims that have been dismissed as follows: the claims arising out of
the use of foil-backed insulation, claims for annual excess utilities charges due to the failure to
install additional insulation layers, claims regarding electrical code violations, the claims arising
out of the use of cheap fan motors in the HVAC system, and the claim for expenses needed to
remedy the building’s defects and construction code violations.
4
arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960
So.2d 931, 933. But see La.Code Civ.P. art. 2083, cmt. (b), “Irreparable injury
continues to be an important (but not exclusive) ingredient in an application for
supervisory writs.” (Citations omitted.)
Also, the denial of a peremptory exception is not appealable absent irreparable
injury, but the denial can be reviewed on supervisory writs where it fits the criteria
of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396
So.2d 878 (La.1981). Reilly v. State, 533 So.2d 1341 (La.App. 3 Cir. 1988), writ
denied, 536 So.2d 1219 (La.1989).
Defendants contend that it is undisputed that claims against architects and
contractors arising out of their work are subject to a five-year peremptive period
under La.R.S. 9:5607 and La.R.S. 9:2772, respectively. As to contractors, La.R.S.
9:2772, in pertinent part, provides as follows:
A. Except as otherwise provided in this Subsection, no action,
whether ex contractu, ex delicto, or otherwise, including but not limited
to an action for failure to warn, to recover on a contract, or to recover
damages, or otherwise arising out of an engagement of planning,
construction, design, or building immovable or movable property
which may include, without limitation, consultation, planning, designs,
drawings, specification, investigation, evaluation, measuring, or
administration related to any building, construction, demolition, or
work, shall be brought against any person performing or furnishing land
surveying services, as such term is defined in R.S. 37:682, including
but not limited to those services preparatory to construction, or against
any person performing or furnishing the design, planning, supervision,
inspection, or observation of construction or the construction of
immovables, or improvement to immovable property, including but not
limited to a residential building contractor as defined in R.S. 37:2150.1:
(1)(a) More than five years after the date of registry in the
mortgage office of acceptance of the work by owner.
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As to architects, La.R.S. 9:5607, in pertinent part, provides as follows:
A. No action for damages against any professional engineer,
surveyor, engineer intern, surveyor intern, or licensee as defined in R.S.
37:682, or any professional architect, landscape architect, architect
intern, or agent as defined in R.S. 37:141, or professional interior
designer, or licensee as defined in R.S. 37:3171, or other similar
licensee licensed under the laws of this state, or real estate developer
relative to development plans which have been certified by a
professional engineer or professional architect, 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:
(1) The date of registry in the mortgage office of acceptance of
the work by owner[.]
....
C. The five-year period of limitation provided for in Subsection
A of this Section is a peremptive period within the meaning of Civil
Code Article 3458 and in accordance with Civil Code Article 3461,
may not be renounced, interrupted, or suspended.
It is undisputed that the trigger date for the commencement of the running of
the peremptive periods in La.R.S. 9:5607(A) and La.R.S. 9:2772(A) is August 17,
2012, the date on which the Certificate of Substantial Completion was signed by
RPSB and recorded in the mortgage records. Thus, Defendants argue that any claims
against Ratcliff or Alliance as its insurers had to be asserted by August 17, 2017.
Defendants contend that the new claims raised in RPSB’s second amended petition
were filed on December 18, 2018, more than a year after the expiration of the
peremptive periods such that, pursuant to La.Civ.Code art. 3458, the new claims
raised in the second amended petition were extinguished by peremption before they
were asserted.
6
Article 3458 provides that: “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.” Defendants point out that pursuant to
La.Civ.Code art. 3461: “Peremption may not be renounced, interrupted, or
suspended.”
Defendants further argue that the trial court erred when it found some of the
claims raised in the second amended petition to be timely based on the “relation back”
concept set forth in La.Code Civ.P. art. 1153, which provides: “When the action or
defense asserted in the amended petition or answer arises out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of filing the original pleading.”
Defendants argue that because the instant case involves peremptive rather
than prescriptive periods, the trial court should not have relied on La.Code Civ.P.
art. 1153 to conclude that some of the claims filed in the second amended petition
do relate back to the date of filing of the original petition. Defendants argue that this
court has unequivocally held that “a supplemental petition filed after a peremptive
period has run does not relate back to the time of filing of the original petition”
because peremptive periods cannot be interrupted. Robin v. Allstate Ins. Co., 02-
689, p. 11 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, 49, writ denied, 03-1818 (La.
10/17/03), 855 So.2d 763. Further, Defendants argue that the Louisiana Supreme
Court has reached that same conclusion in Naghi v. Brener, 08-2527 (La. 6/26/09),
17 So.3d 919.
In essence, Defendants argue that all of the claims raised in the second
amended petition are new and different from those raised in the original petition and
first amended petition. Defendants assert that the original petition and first amended
7
petition did not serve to put them on notice that the new claims would later be
asserted in the second amended petition. Defendants also assert that the legislative
purpose of the peremptive periods is to protect architects and contractors from
remaining indefinitely liable for claims arising out of their work. Further,
Defendants contend that it would be absurd to allow a lawsuit against an architect or
a contractor for one specific defect arising out of a single occurrence to potentially
expose that architect or engineer indefinitely to any and all claims that the RPSB
may eventually bring against them. Id.
On the other hand, RPSB notes that it entered into a written contract with the
architect (Defendant, Alliance) to design the plans and specifications for the
construction of a new middle school, and that Defendant, Ratcliff (the contractor),
was retained to build the school in a good and workmanlike manner in accord with
the plans and specifications and with applicable building codes. RPSB contends that
all of the duties of the architect and contractor in this case arose out of their contracts
with RPSB, such that its right to enforce Defendants’ duties under those contracts
constitutes the “cause of action” which is asserted in the case. The new allegations
raised in the second amended petition are not separate causes of action, but, rather,
are separate claims and demands for damages arising out of the same cause of action
asserted in the original petition. RPSB maintains that because the existence of the
additional claims and demands was not discovered until after the peremptive periods
had run and, because the additional new claims arise out of the same “transaction”
or contractual obligation as the claims raised in the original petition, the additional
claims should relate back to the date of filing of the original petition pursuant to
La.Code Civ.P. art. 1153. According to RPSB, the filing of the original petition put
8
Defendants on notice that their performance under their contracts with RPSB was
being questioned. Id.
Defendants are correct in their assertion that in the second amended petition,
RPSB raises new factual allegations and new “operative facts” along with claims for
further damages which had not been raised in the original petition or in the first
amended petition. In fact, in RPSB’s request for leave of court to file the second
amended petition, RPSB admits that the reason that it was filing the second amended
petition is because additional inspections revealed more defects in the design and
construction of the school.
RPSB does not dispute the fact that claims in the second amended petition
were filed after the peremptive periods at issue had expired. Instead, RPSB takes
the position that, pursuant to La.Code Civ.P. art. 1153, the additional damage claims
in the second amended petition are timely because they relate back to the date of
filing of the original petition and that no new cause of action is stated. Simply put,
RPSB is claiming that it seeks additional damages based on the same cause of action,
breach of contract.
Following a February 2019 hearing, the trial court granted in part and denied
in part the Defendants’ exception of peremption. In oral reasons for ruling, the trial
court stated:
We got a house of dominos. One domino falls and then they [all]
start to fall. All right. I’m going to grant the exception of [peremption]
in part and overrule the exception [in] other parts. As it relates to the
fire sprinkler and the insulation of the building, I’m going to overrule
the exception of [peremption] and all the other causes of action are
excused. So[,] the code violations and all of that … it’s important but
it should have been brought to the attention of somebody before this
incident happened. This was the precipitating incident, but again, the
fire sprinkler and the insulation involved with that may not be the only
answer. It may be some electrical problems involved, but [if] [it] relates
to the fire sprinkler system and any insulation problems, then I believe
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at this point the school board is correct in trying to alleviate the problem
because it’s going to be a continuing problem if - if it’s not corrected.
Okay.
In its writ application 19-312 urging reversal of the trial court’s decision to
maintain some of the newly plead claims, Defendants urge the application of the
supreme court case of Naghi v. Brener, 08-2527 (La. 6/26/09), 17 So.3d 919. It
forcefully argues that peremption should be applied to all claims in the second
amended petition. We do not find that the facts of Naghi are applicable here. Naghi
involved a claim against an attorney for malpractice, pursuant to La.R.S. 9:5605,
which states, “The one-year and three-year periods of limitation … are peremptive
periods within the meaning of Civil Code Article 3458 and, in accordance with Civil
Code Article 3461, may not be renounced, interrupted or suspended.” Benny and
Ephraim Naghi’s original petition for property damages was timely brought within
the one-year peremptive period of La.R.S. 9:5605. However, the original petition
was filed on behalf of the Naghis individually, and the property at issue was owned
by their corporation, Mohtaram, Inc. As the Naghis did not own the property in their
individual capacities, they had no right of action to make a claim for property
damages. After the one-year peremptive period had run, the Naghis sought to file a
supplemental and amended petition naming the correct owner of the property,
Mohtaram, Inc., as the proper party plaintiff.
The supreme court found that La.Code Civ.P. art. 1153, which allows the
relation back of an amended petition to a petition properly filed within the
peremptive period, did not apply, concluding: “Peremption differs from prescription
in two respects: (1) the expiration of the peremptive time period destroys the cause
of action itself; and (2) nothing may interfere with the running of a peremptive time
period.” Id. at 926. Therefore, because the Naghis’ original petition failed to state
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a right of action, as it was brought by parties without ownership of the property at
issue, the untimely filed first supplemental/amending petition could not relate back
to the original petition as the first petition was not filed in the name of a proper party
plaintiff prior to the expiration of the peremptive time period. There is no question
that in the case at bar, RPSB clearly had a right of action to pursue its claims, and
we find that Naghi’s expansive language is distinguishable and inapplicable to this
case.
In the more recent case of Scaglione v. Juneau, 10-1734, p. 2 (La. 7/27/10),
40 So.3d 127, 128, the supreme court reversed and remanded the lower court’s ruling
maintaining a peremptory exception of peremption dismissing a citizens’ petition
objecting to an appellate judge’s candidacy. In order to state a cause of action, the
plaintiffs in that case were required to name in their original petition both the
candidate and the Secretary of State within the required peremptive time period,
which they failed to do. Instead the plaintiffs named the Clerk of Court for St.
Bernard Parish, not a proper party defendant under the statute at issue.
In reversing the lower court’s ruling relying on Naghi, the supreme court
stated, “‘A cause of action, when used in the context of the peremptory exception, is
defined as the operative facts that give rise to the plaintiff’s right to judicially
assert the action against the defendant.’” Id. (emphasis added) (quoting Ramey v.
DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118). The Scaglione court
further distinguished Naghi by stating, “Here, the plaintiffs initially set forth a viable
claim in their original petition and the proposed addition or substitution of the
Secretary of State does not involve a different or new cause of action. See La. C.C.P.
art 1153; see also Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983).” Id.
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In a case involving a construction contract to build a swimming pool, a panel
of our sister circuit found that it was “bound by the holding in Scaglione: If an
amended petition filed after the expiration of a peremptive period does not involve
a different or new cause of action, the amended petition relates back to the original
petition under La.Code Civ.P. art. 1153, and is timely filed.” Duvio v. Specialty
Pools Co., LLC, 15-423, p. 17 (La.App. 4 Cir. 6/16/16), 216 So.3d 999, 1012.
Adopting the rationale of Scaglione, the fourth circuit denied the defendants’ claim
of peremption of the pool owner’s additional claims for damages due to additional
ground settlement causing additional damages filed after the peremptive period. Id.
The panel engaged in an extensive discussion of both Naghi and Scaglione in
reaching its conclusion that Article 1153 applied to the claims made in plaintiff’s
second amended petition. The Duvio court also found that the defendant had notice
of the additional claims based on the original petition, which contained broad
allegations of other related defects in the pool’s construction and stated:
An amended petition relates back to the original petition if the original
pleading “[gave] fair notice of the general fact situation out of which
the amended claim arises.” Gunter v. Plauche, 439 So.2d 437, 440
(La.1983). “Article 1153 requires only that the amending petition’s
thrust factually relates to the conduct, transaction or occurrence
originally alleged.” Id.
Id. In Duvio, the court found that the defendants would have had fair notice there
were foundation problems with the pool based on the original “allegations of sinking
and cracking.”
Similarly, we find that Defendants in this case also had fair notice of the issues
with the building relating to, as the trial court explained, the “fire sprinkler” and the
“insulation,” making the notice of some of the claims in RPSB’s second
supplemental and amended petition “fair” pursuant to La.Code Civ.P. art. 1153.
12
The trial court’s reasons for ruling and its detailed judgment of March 25,
2019, both indicate that only those portions of RPSB’s second amended petition that
relate to the causes of action made in the timely filed first and amended petitions
concerning “the fire sprinkler and the insulation of the building” were allowed to
remain. That finding is consistent with the reasoning in Duvio as the trial court
allowed amendment of the petition, but confined that amendment to causes of action
fairly advanced by the timely petitions.
The trial court’s finding is further consistent with the supreme court’s
explanation that for purposes of the exception of peremption, a cause of action is
defined as “‘the operative facts that give rise to the plaintiff’s right to judicially assert
the action against the defendant.’” Scaglione, 40 So.2d at 128 (quoting Ramey, 869
So.2d at 118). Moreover, in so ruling, the supreme court also referenced La.R.S.
18:1406(B), which states: “The petition shall set forth in specific detail the facts
upon which the objection or contest is based.”
The operative facts and the preserved causes of action are seen by comparison
of the timely pleadings to that filed after the close of the peremptive period. By the
original petition, RPSB described the flooding event, implicated the sprinkler and
insulations systems, and broadly alleged that:
Plaintiff shows that the substantial cost of the remediation of the
water damage to the school, and the future repairs necessary to
permanently alleviate the defective construction and condition of
the school building are the result of the combined fault, negligence,
and breach of contract by Alliance and Ratcliff, their agents and
employees, consisting of but not limited to the following:
AS TO ALLIANCE
a) Providing inconsistent and unclear plans and
specifications relative to the placement of insulation in the
ceiling and the vertical walls of the attic area near the
principal’s office;
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b) Failing to properly design a system to protect the sprinkler
piping system from freezing and damaging the sprinkler
head;
c) Failing to note during one or more of the required or
performed building inspections, the improper installation
and/or placement of insulation as described above;
d) Failing to exercise reasonable skill and care in the
rendering of architectural services to plaintiff including
not properly supervising construction of the school to
insure that it was completed in accordance with the plans
and specifications by Ratcliff and the subcontractors
engaged by Ratcliff;
e) Failing to comply with the directive of the Louisiana Fire
Marshall’s Office and of the NFPA to design and insure
the installation of a system that would protect the sprinkler
piping system from freezing, which freezing was the direct
and proximate cause of the discharge of water into the
principal’s office and beyond.
AS TO RATCLIFF
a) Failing to follow the plans and specifications with regard
to the installation of the insulation batts between the metal
supporting studs in the area of the principal’s office;
b) Placing insulation batts horizontally on top of the
suspended ceiling so as to inhibit the transfer of heat from
the interior of the office into the attic space immediately
above to which actions or failures described in this
paragraph and the paragraph immediately above permitted
the attic temperature to fall below freezing and freeze the
water within the sprinkler system resulting in the
discharge of water into the principal’s office and beyond;
c) Failing to advise the architect of the uncertainty or
discrepancy in the plans and specifications in regard to the
installation of the insulation in the school building and
thus obtain a clarifying instruction from the architect
regarding the insulation installation;
d) Failing to supervise and direct the installation of the
insulation by Ratcliff’s agents, employees or
subcontractors so as to prevent the improper installation
procedures in the area of the principal’s office;
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e) Failing to install the fire protection’s sprinkler system in
accordance with the requirements of the NFPA and
particularly Section 13:8.1.5.3.1 and the directives of the
Louisiana Office of the Fire Marshal.
(Emphasis added.) RPSB continued, alleging that:
Because the deficiencies in the installation of the insulation
described above were concealed within the attic crawl space and
because the peculiarities of the installation requirements are peculiarly
within the areas of expertise of architects, engineers, contractors and
other like professionals, plaintiff was unaware until the flooding event
of December 26, 2014 that the building was designed and/or
constructed in a defective manner; immediately after receiving the
verbal report of the forensic engineer who performed the examination
and testing in this case plaintiff’s representative contacted Alliance and
informed the representative of the investigation and the claim to be
made herein. The representative advised that Ratcliff, would be
contacted by Alliance and advised of the findings of the investigation
and the claim.
The petition further references the contractual relationship with the insurers which
obligated those insurers “to pay and indemnify plaintiff for the damages and
expenses occasioned by the flooding incident described hereinabove.” That incident,
as described by RPSB in the petition, stemmed from the fire suppression and
insulation aspects of the building.
By its timely filed first amended petition, RPSB not only included Tyco and
Anderson Fire Protection as defendants, it reiterated that:
[P]laintiff alleges upon information and belief that the primary cause of
the sprinkler head discharge and the resulting flooding damages to the
school and the consequences thereof was the design of the building, the
failure to inspect the construction and the improper insulation of the
attic space and the failure to follow the various NFPA requirements
concerning the protection of the sprinkler system from freezing[.]
RPSB maintained its broad demand “for the full extent of the flooding and
remediation damages” and further sought “all expenses and damages incurred by the
Board in the subsequent inspection, removal and replacement of the fire sprinkler
heads throughout the school by Jefferson Sprinkler[.]”
15
Identifying these timely petitions as advancing causes of action associated
with purported defects in the “fire sprinkler system and the insulation of the building,”
the trial court looked to the allegations of the second amended petition and
maintained the original, broad claim for damages arising from that common factual
basis. It excised, however, those portions of the petition associated with the claim
for damages for “all other causes of action[.]”
The excluded portions of the petition reveal specific allegations related to:
purported violations of Louisiana Public Bid Law, National Electrical Code
violations in the installation of wiring conduit pipes throughout the building as well
as other “many other NEC code provisions in the electrical system” that “exist and
must be corrected[,]” installation of circuit breakers affecting the motors of the air
conditioning and heating system, and failure to obtain final building inspections and,
in turn, an occupancy permit requiring the hiring of personnel to monitor conditions
associated with “faulty or defective or inadequate construction and installation of
the various electrical plumbing and other systems at the school,” plus multiple
suspected violations of building codes and safety regulations that could be
demonstrated by further inspection. Due to these additional claims of faulty
performance, RPSB claims additional damages beyond those associated with
damages initially caused by the flooding and remediation and now seeks damages
for all issues related to the design and construction of the school. RPSB further seeks
diminution in the value of the school, past, present, future increased utility costs, and
adjustments to the contract price.
We find that the expansion of the facts plead in the second amended petition
to components of the building project or elements of damage not relating to the fire
sprinklers and insulation did not provide “fair notice” to Defendants. The trial
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court’s signed judgment detailing and parsing the factual allegations of the untimely
second amended petition balances the concept that a “right is extinguished upon the
expiration of the peremptive period” as provided by La.Civ.Code art. 3458, with the
principle that issues of peremption are to be strictly construed against peremption
and in favor of the claim.2
Neither do we find that the trial court’s factual focus is contrary to
jurisprudence advanced by Defendants in their latest response brief. While
Defendants suggest that Udomeh v. Joseph, 11-2839 (La. 10/26/12), 103 So.3d 343,
supports their peremption claim, Udomeh involved a paternity action in which the
purported father failed to request a judgment of paternity within his initial allegations,
a pre-requisite to his stating a right of action. Again, RPSB clearly has a right of
action in this case. Additionally, Defendants reference to Udomeh’s broad statement
that “‘relation back of an amended or supplemental pleading … is not allowed to
amend the running of a peremptive period’” must be viewed within the context of
2
As explained in Ristroph v. Louisiana Public Facilities Authority, 06-1669, p. 9 (La.App.
1 Cir. 9/14/06), 943 So.2d 492, 497:
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. LSA–C.C. art. 3458. Peremption may not be renounced, interrupted, or
suspended. LSA–C.C. art. 3461. “Nevertheless, when an action asserting a right
subject to peremption has been commenced or served as provided in Article 3462
[by filing suit], the right has been exercised and so long as the action is pending the
lapse of the period of peremption does not extinguish the right.” LSA–C.C. art.
3461, Revision Comments–1982, comment c; Capitol House Preservation Co.,
L.L.C. v. Perryman Consultants, Inc., 98–2216 (La.App. 1 Cir. 11/5/99), 745 So.2d
1194, 1195, writ denied, 99–3446 (La.2/11/00), 754 So.2d 937. Like prescription
statutes, peremption statutes are to be strictly construed against peremption and in
favor of the claim that is said to be extinguished. Of the possible constructions, the
one that maintains enforcement of the claim or action, rather than the one that bars
enforcement, should be adopted. Albach v. Kennedy, 00–0636 (La.App. 1 Cir.
8/6/01), 801 So.2d 476, 482, writ denied, 01–2499 (La.10/12/01), 799 So.2d 1138.
See Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065. See also Phoenix of
Hartford Ins. Co. v. U.S. Rubber Co., 245 So.2d 436 (La.App. 1 Cir. 1970).
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the facts of that case. Id. at 348 (quoting Naghi, 17 So.3d at 925). The interpretation
urged by Defendants is not in keeping with the supreme court’s ruling in Scaglione.
Defendants further rely on Robin v. Allstate Insurance Co., 02-689 (La.App.
3 Cir. 2/5/03), 844 So.2d 41, writ denied, 03-1818 (La. 10/17/03), 855 So.2d 763
and Marsh Engineering, Inc. v. Parker, 04-509 (La.App. 3 Cir. 9/29/04), 883 So.2d
1119. Neither case dictates a finding of peremption under the facts of this case.
In Robin, 844 So.2d at 49, a panel of this court favorably remarked on the
principle that “a supplemental petition filed after a peremptive period has run does
not relate back to the time of filing of the original petition.” Explaining that the
reasoning for that concept “is very simple[,]” the panel continued, however, and
stated:
Pursuant to La.Code Civ.P. art. 1153 an amending or
supplemental petition relates back to the date of filing of the original
pleading if the amended petition arises out of the conduct, transaction,
or occurrence set forth in the original petition. This is because the
original petition has served to interrupt prescription on the subject
matter raised in the amended petition. However, in this case a claim
for legal malpractice was asserted for the first time in the amending
petition which we have already stated is governed by a peremptive
period. Since a peremptive period cannot be interrupted, the original
petition would not have served to interrupt prescription on this claim.
Id. at 49-50. In this case, the timely petitions preserved certain causes of action as
discussed, allowing the relation back of the allegations pertaining to those matters.
In Robin, however, the plaintiff’s first-filed petition lodged only a policy claim
against an automobile insurer. The amended petition lodged a separate, factually
distinct legal malpractice claim. We find that Robin is factually and legally distinct
from this case.
Likewise, Marsh, 883 So.2d 1119, involved a suit where an initial, timely
claim was brought for damages sustained in a business transaction. The plaintiffs
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advanced various causes of action, including breach of contract, fraud, breach of
fiduciary duty, and nullity. One of the defendants, an attorney, was alleged to have
functioned as the plaintiff’s legal advisor. By an amended petition, however, the
plaintiff “asserted for the first time” that both the defendant attorney, Parker, and his
partner, Bean, had provided legal representation. Id. at 1122. Given that assertion,
the plaintiff sought to include Bean and the law firm of “Bean and Parker” as
defendants and solidary obligors in a legal malpractice claim. Although the plaintiff
claimed that the suit “related back” to the timely filed petition, the appellate panel
determined that “Bean’s alleged acts of legal malpractice [were] separate causes of
action from Parker’s alleged legal malpractice acts.” Id. at 1125 (emphasis added).
The panel instead explained that the plaintiff failed to timely file suit against Bean
“for his individual acts of legal malpractice within that time period[.]” Id. As a result,
the panel found no error in the determination that the suit against both Bean and the
law firm “for any acts of legal malpractice by Bean were perempted.” Id.
Although Defendants advance Robin and Marsh for the proposition that a
supplemental petition filed after a peremptive period has expired does not relate back
to a timely filed petition, examination of those cases, however, reveals the courts’
inquiry into whether “the original petition has served to interrupt prescription on the
subject matter raised in the amending petition.” Robin, 844 So.2d at 50. In this case,
the trial court identified certain common operative facts in fashioning its ruling.
While we agree with Defendants that the jurisprudential doctrine of contra
non valentem does not apply and peremption cannot be extended due to a late
discovered and new cause of action,3 we also find that the “relation back” provision
3
The supreme court has plainly explained that, as peremption extinguishes a right, and it
may not be interrupted, suspended or renounced, the doctrine of contra non valentem is
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of La.Code Civ.P. art. 1153 allows the relation back of additional damages as long
as the claims have a sufficient factual basis to the claims originally plead. See
Scaglione, 40 So.3d 127; Duvio, 216 So.3d 999. On examination for such operative
facts, jurisprudence provides for a strict construction in favor of maintaining
enforcement of the newly asserted claim or action. See Lomont v. Bennett, 14-2483
(La. 6/30/15), 172 So.3d 620, cert. denied, _ U.S. _, 136 S.Ct. 1167 (2016); Rando,
16 So.3d 1065. See also Thrasher Constr., Inc. v. Gibbs Residential, L.L.C., 15-607
(La.App. 4 Cir. 6/29/16), 197 So.3d 283, writ denied, 16-1453 (La. 11/15/16), 209
So.3d 779; Ristroph, 943 So.2d 492.
Further, we recognize and agree with the arguments made by RPSB that the
filing of the initial petition and first amended petition should have put Defendants
on notice of alleged faulty design and construction of the entire school. This issue
involves design and construction of a school where lives of innocent children,
teachers, school personnel, and administrators were allegedly all put at risk. The
allegations of record indicate that neither the architect nor the contractor sought or
obtained a Final Inspection of the school construction from the Rapides Area
Planning Commission, the agency responsible for permitting the permanent
connection of electrical power to the school. In fact, it was an electrical fire in the
HVAC and air conditioning units at the school on September 11, 2018 that caused
RPSB to hire additional engineers and experts who eventually brought to light the
allegations of additional repairs and damages claimed in the second amended
petition at issue. We agree that the equities are in favor of RPSB and the post
inapplicable to peremptive periods. Borel v. Young, 07-419 (La. 11/27/07), 989 So.2d 42. In
contrast, a prescriptive period is an inchoate right and may be renounced, interrupted, or suspended.
Thus, contra non valentem may apply to a prescriptive period and only “where in fact and for good
cause a plaintiff is unable to exercise his cause of action when it accrues.” Id. at 49.
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peremption supplemental claims, if proven to be true, directly result from breaches
of the legal and contractual responsibility of the architect and contractor. The facts
in this case present a close question as to whether all of the “new claims” alleged by
RPSB are sufficiently related to the broad allegations of faulty design and
construction alleged in the original petition such that they “relate back” to the timely
pled original petition under La.Code Civ.P. art. 1153, as ably argued by counsel for
RPSB.
However, the legislature failed to expressly so limit the peremptive statutes at
issue. While we acknowledge the line of cases such as Ristroph, 943 So.2d 492, that
hold that peremption claims should be strictly construed against the moving party
claiming peremption and in favor of the claimant, we are constrained to find that,
except for the new claims allowed by the trial court as being fairly related to the
timely filed initial claims, the broad expansion of the pleadings in this case alleging
admittedly new claims goes beyond that which the supreme court has previously
allowed in cases of this nature.
Under the current state of the law, we find that the trial court’s carefully
crafted judgment was within its discretion and we affirm the trial court’s decision in
its entirety.
CONCLUSION
For the foregoing reasons, we deny Defendants’ writ application number 19-
312 and RPSB’s writ application number 19-329. We affirm the trial court’s detailed
judgment of March 25, 2019, with each party to pay its own costs.
WRITS DENIED.
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